Évolution des priorités en matière d'application de la loi à la CFTC et à la SEC

It should come as no surprise that priorities have shifted at the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”), particularly with the enforcement divisions at both agencies — which had faced widespread internal and external criticism for jurisdiction overreach and massive fines. What may be a little surprising to some, however, is the extent and speed of the shift in priorities and the resulting impact on the number of investigations, enforcement actions, and shifts away from entire areas.

COMMODITY FUTURES TRADING COMMISSION PRIORITIES

“Back to Basics”

Upon being appointed Acting Chair of the Commodity Futures Trading Commission (“CFTC”), Acting Chair Caroline Pham announced a desire to get “back to basics”¹ and move away from “regulation by enforcement.”² Consistent with these stated desires, in early February 2025, Acting Chair Pham implemented a reorganization of the Division of Enforcement, resulting in the elimination of a number of specialized task forces — including the Cybersecurity and Emerging Technologies Task Force and Environmental Fraud Task Force — and the creation of the Complex Fraud Task Force and the Retail Fraud and General Enforcement Task Force.³

Acting Chairman Pham subsequently lauded the Department of Justice’s April 7, 2025 memorandum regarding “Ending Regulation by Prosecution” announcing that the Department of Justice “will no longer pursue litigation or enforcement actions that have the effect of superimposing regulatory frameworks on digital assets while President Trump’s actual regulators do this work outside the punitive criminal justice framework.”⁴ The Acting Chair directed CFTC staff to “adhere to the Justice Department’s policy on digital assets enforcement priorities and digital assets charging considerations set forth in the Deputy Attorney General’s memorandum, Ending Regulation by Prosecution, dated April 7, 2025, with respect to ongoing investigations, litigation including the agency’s litigating position and arguments, and other enforcement matters.”⁵ She further directed CFTC staff and the Enforcement Director “to not seek to ‘charge regulatory violations in cases involving digital assets,’ in particular, ‘violations of registration requirements under the Commodity Exchange Act,’ unless ‘there is evidence that the defendant knew of the licensing or registration requirement at issue and violated such a requirement willfully,. . . . ”⁶ And the Acting Chairman once again stated that the Division of Enforcement’s focus should be on “fighting fraud and helping victims.”⁷

Consistent with the effort to refocus priorities, in March of this year, Acting Chairman Pham launched a 30-day enforcement sprint, in which the CFTC sought expedited resolution — within 30 days — of investigations and enforcement matters involving compliance issues, such as recordkeeping or reporting violations, where there was no customer harm, fraud, or market abuse.⁸ Firms had two weeks from March 11, 2025 to contact CFTC staff with an update on remediation plans and a reasonable settlement offer. Notably, the announcement of this initiative included a recognition that recent penalties may have been too high. Acting Chairman Pham explained that “[i]n order to assess the CMP, the CFTC will take a more holistic approach that will look at CMPs over time, including over the last 10 years, not just the last few years.”⁹

The stated goal of this initiative was to free up the Division of Enforcement’s resources so that it could focus on fraud and manipulation cases. The sprint, however, does not appear to have resulted in the resolution of a large number of matters. In May, after the conclusion of the 30-day sprint, Acting Chairman Pham said,

Of approximately two dozen firms that expressed interest in participating in the enforcement sprint, over five matters are, or will soon be, in circulation for a Commission vote on the administrative settlement orders.¹⁰ These proposed settlement orders resolve years of investigation, apply the new DOE advisory regarding mitigation credit, and have civil monetary penalties that are reflective of historical amounts — a fraction of DOE’s previous initial demand amounts that were often disproportionately 10, 20, or even 100 times larger than in the past.¹¹

Although the enforcement sprint does not appear to have generated huge numbers of resolutions, it appears that some internal housekeeping at the Division of Enforcement has resulted in the closing of a very large number of cases. In her “100 Days” address, Acting Chair Pham reported that the Division of Enforcement had “dispositioned 50% (representing several hundreds) of its open enforcement matters, including preliminary investigations, investigations, and litigation. Of these resolved matters, over a dozen had been open for over 15 years and over three dozen had been open for over 10 years . . . ”¹² She noted that clearing this backlog, “will enable DOE to refocus its resources on catching fraudsters and scammers, and helping victims, especially egregious or prolonged systematic deficiencies or material weakness in the supervisory system or controls, or program.”¹³

The Division of Enforcement’s reorganization, enforcement sprint, and measures to clear out old cases do not, however, appear to have achieved its stated goal, at least as of yet. As of the date of this article’s submission, the CFTC has only brought one new enforcement action.¹⁴ Although this action is entirely consistent with the Division’s focus on fraud — the CFTC accuses the individual defendant and his investment advisory company of defrauding the defendant’s mother and another client by failing to disclose risks associated with trading, hiding losses, and charging excessive fees — this single case is a far cry from the steady stream of retail fraud cases that has been present throughout the past 10 years, including during the previous Trump administration. The chart in Appendix A compares the number of enforcement actions brought in the first six month of the calendar year since 2017.

It is, of course, very likely that the ability to initiate new enforcement actions has been hampered by the presence of only two Commissioners. That said, the Commission only had two members in late 2021 and the first few months of 2022, and still initiated many fraud and recordkeeping actions.

The decision to initiate new enforcement actions may also be hampered by recent layoffs and reported restructuring. As reported in the financial press in July of 2025, the CFTC had laid off, or is in the process of laying off, just over 24 individuals, including staff in the Division of Enforcement. It was also reported that the CFTC would no longer employ regional office directors or chief trial attorneys, and that staff attorneys will instead report up to associate directors. Regarding additional restructuring, it was reported that the Division some staff attorneys responsible solely for investigating complaints, while others will be in a specialized trial unit in charge of prosecuting any cases the agency brings based on the results of those investigations.

Decisions not to pursue enforcement

The CFTC’s shift in enforcement priorities is further reflected in announcements indicating that the CFTC would not take enforcement action in certain areas. As discussed above, the Acting Chair directed that the Enforcement Staff not proceed with purely regulatory violations in the digital assets space barring a knowing violation of the law.

In addition, at the end of January 2025, the CFTC released a no action letter against KalshiEX LLC, Kalshi Klear LLC, or their participants for failure to comply with certain swap-related recordkeeping requirements and for failure to report to swap data repositories data associated with binary option transactions and variable payout contract transactions executed on or subject to the rules of KalshiEX LLC and cleared through Kalshi Klear LLC.¹⁵ This letter also removed the condition that prohibited Kalshi participants from clearing contracts through a third-party clearing member.

In March 2025, the CFTC withdrew its Staff Advisory on Swap Execution Facility Registration Requirement.¹⁶ The September 29, 2021 advisory had been the basis for many threatened enforcement actions. The staff acknowledged that the Advisory had “created regulatory uncertainty regarding whether certain entities that operate in the swaps market are required to register as Swap Execution Facilities (“SEFs”) with respect to their particular functions within the swaps market, as well as the specific attributes of their business models.”¹⁷

On July 23, 2025, CFTC staff issued a no-action letter regarding event contracts. The letter advised that the Division of Market Oversight and the Division of Clearing and Risk will not recommend the CFTC initiate an enforcement action against CME or its participants for failing to comply with certain swap-related recordkeeping requirements and for failing to report to swap data repositories data associated with binary option transactions executed on or subject to the rules of CME (subject to the terms specified in the no-action letter).¹⁸

Advisories and guidance

Instead of new enforcement actions, the CFTC and the Division of Enforcement have published new enforcement guidance and launched new enforcement initiatives. Many of these initiatives appear to be designed to provide much-urged transparency regarding decisions relating to enforcement actions.

First, on February 25, 2025, the CFTC released an updated Enforcement Advisory regarding Self-Reporting, Cooperation, and Remediation.¹⁹ This advisory sets forth and describes different tiers for levels of self-reporting, cooperation, and remediation, as well as providing a “Mitigation Credit Matrix” setting forth percentage discounts for different levels of cooperation and self-reporting, ranging from zero to 55 percent. This advisory makes clear self-reporting credit is provided for any self-reporting, not just self-reports to Division of Enforcement.

Second, on April 17, 2025, the CFTC issued a Staff Advisory establishing a materiality standard and what criteria operating divisions will use to determine referrals to the Division of Enforcement.²⁰ According to the Advisory, “[t]he Operating Divisions may refer violations that are material to the Division of Enforcement, for example those that involve harm to clients, counterparties or customers, or members or participants, as applicable; harm to market integrity; or significant financial losses.”²¹ Materiality will be determined with a reasonableness standard using the following criteria: (1) especially egregious or prolonged systematic deficiencies or material weakness of the supervisory system or controls, or program; (2) knowing and willful misconduct by management, such as conduct evidencing an intent to conceal a potential violation, or supervision or non-compliance issue; or (3) lack of substantial progress towards completion of a remediation plan for an unreasonably lengthy period of time, such as several years, particularly after a sustained and continuous process with the Appropriate Division regarding the lack of substantial progress. The mere failure to meet, or extension of, a deadline for corrective action or remediation plan, on its own, will not be sufficient for a referral to the Division of Enforcement.

Third, on July 9, 2025, the CFTC sought to provide clarity as to when it would make referrals to the Department of Justice.²² Staff Letter 25-19 identified the following factors that Enforcement Staff should consider when determining whether to refer alleged violations of criminal regulatory offenses to the Department of Justice:

• The harm or risk of harm, financial or otherwise, caused by the potential offense.
• The potential gain to the alleged defendant that could result from the offense.
• Whether the alleged defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue.
• Evidence, if any is available, of the alleged defendant’s general awareness of the unlawfulness of his conduct, as well as his knowledge or lack thereof of the regulation at issue.
• Whether the alleged defendant is a recidivist or has otherwise engaged in a pattern of misconduct.
• Whether the DOJ’s involvement will provide additional meaningful protection to participants in the derivatives markets.

In another letter, the staff provided clarity about how staff will interpret certain cross-border definitions.²³ The letter explained the application of various cross-border definitions for market participants involved in a foreign jurisdiction: “non-U.S. Person” for calculating the swap dealer de minimis threshold; “U.S. Person” as defined under 2013 Guidance; “foreign-located person” under FCM exemption under Rule 3.10; “participant located in the United States” under Rule 30.1; “person located in the United States” under CFTC Rule 48.2 for FBOTs.

The key factors in determining the status of a person under the various cross-border definitions are place of organization and principal place of business.

Education and outreach efforts

The CFTC’s move away from enforcement is not a withdrawal of the agency from all activities. The CFTC has produced a number of education initiatives directed towards consumers who are a risk from fraudsters on topics like: ‘Dating or Defrauding?’ A Joint Effort to Alert Online Daters, Social Media Users of Relationship Investment Scams;²⁴ CFTC’s Office of Customer Education and Outreach Releases New Advisory on Fraud Using Generative AI;²⁵ CFTC Warns Public of Imposter Scam Targeting Fraud Victims.²⁶ The CFTC has also reached out to the industry for comment on a variety of topics, including the trading and clearing of “perpetual” style derivatives.²⁷

CFTC’s transition to new Chair

Former Commissioner Brian Quintenz was nominated to be the CFTC Chair in February 2025. However, his nomination was officially withdrawn on September 30, 2025.²⁸ Some have speculated that Quintez’s nomination was pulled under pressure from cryptocurrency executives, Tyler and Cameron Winklevoss.²⁹ The Trump administration has not yet named a new nominee, though there has been speculation Michael Selig, chief counsel to the Securities and Exchange Commission’s (SEC) crypto task force may be the most likely nominee.³⁰ Overall the withdrawal of Quintez’s nominating means Acting Chair Caroline Pham’s tenure is unlikely to end soon.

SECURITIES AND EXCHANGE COMMISSION PRIORITIES

A new day

While Chair Atkins has declared “it is a new day at the SEC”³¹ and his policies are a departure from recent Chairs. Several months into Chair Atkins’ most recent term as Chair of the SEC have shown he retains a similar vision of the SEC’s role as he held in his 2002-2008 term.³² This vision does not include regulation through enforcement and includes a general slowdown in rule-making. Since Atkins was sworn in on April 21, 2025, we have seen compliance deadlines extended, a departure from industry sweeps, and a focus on economic analysis of penalties and individual liability. We are also likely to see an easing of regulatory burdens on capital formation and an emphasis on efforts to protect retail investors.

Atkins’ public remarks

A “new day” for Atkins seems to come with a hefty dose of analyzing the past. His public remarks have emphasized the history of the SEC and its original mission. The opening of Atkins remarks at the SEC primarily discussed the market and SEC of the 1960s³³ and in front of Congress, Atkins pledged a return to the core mission of the SEC as envisioned by Congress 90 years ago.³⁴

Atkins has indicated that protecting investors, facilitating capital formation, and maintaining fair, orderly, and efficient markets will be the SEC’s focus during his tenure. In both his remarks on May 20th and June 3rd, Atkins emphasized that the SEC will “return” to rulemaking, implicitly signaling that the SEC will be moving away from the trend of regulation by enforcement in lieu of rulemaking that had become common practice under previous Chair Gary Gensler.

Regional reorganization and staffing

Publicly Atkins has affirmed his belief in the “SEC’s regional office concept” and the “need to maintain these offices.” While the regional offices are not likely to go anywhere, their leadership structure has been centralized. There are no longer regional directors for each of the SEC’s 10 regional offices. As reorganized, there are now three deputy directors to oversee three geographic regions — Northeast, Southwest, and West — and one deputy director for the specialized units. Enforcement Staff report directly to one of the four respective deputy directors.

Messages around staffing from Chair Atkins seems to run contrary to current and contemplated staff numbers. The SEC’s Offices and Divisions have decreased headcount by 15% since the beginning of the current fiscal year. Chair Atkins has stated that, “[t]hese departures leave vacancies that in many cases need to be filled. When I left the agency in 2008, we had approximately 3,600 employees. At our height a year ago, we had approximately 5,000 employees plus 2,000 contractors. Today we are at approximately 4,200 employees and 1,700 contractors.”³⁵ While this sounds like Atkins contemplates filling the recent vacancies, his fiscal year 2026 budget request seemed to contemplate staff levels remaining at current decreased levels. The fiscal year 2026’s budget request was $2.149B which is relatively flat year-over-year and contemplates approximately 4,100 employees.

What’s next: divisions of examination and enforcement

As of the submission of this article, there is still no permanent Director appointed for the Division of Examinations. With no new director for the Division of Examinations, the latest guidance available to companies is from the previous administration in October of 2024. A new Director for the Division of Enforcement was announced on August 21, 2025.³⁶ The new Enforcement Director is Judge Margaret “Meg” Ryan, and her term began on September 2, 2025. Former acting Director of Enforcement Sam Waldon returned to his previous role as Chief Counsel for the Division. Judge Ryan joins the SEC from the United States Court of Appeals for the Armed Forces. She was nominated to the Court by President George W. Bush and previously served as a clerk to Supreme Court of the United States Associate Justice Clarence Thomas and to Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit. Judge Ryan’s introductory remarks stating she looks forward to “ensur[ing] that the Division is true to the SEC’s mission in taking action on behalf of investors harmed by those who break the securities laws and providing an effective deterrent against fraudulent and manipulative activities in our financial markets,”³⁷ seems to be in line with Atkins and other members of the Trump administration that have indicated that priorities for the division will be protection of retail investors, conduct based in fraud, cybersecurity and artificial intelligence, and complex financial instruments.

The digital finance revolution

Regarding financial technological innovation and digital assets, Chair Atkins has made it clear that we can expect an SEC that will be much “friendlier” in these areas. On July 31, 2025, he gave a speech entitled, “American Leadership in the Digital Finance Revolution”.³⁸ The below-points summarize some of the key takeaways from this speech and Chair Atkins anticipated agenda in these areas:³⁹

• Today, I would like to discuss what Commissioner Hester Peirce and I are calling “Project Crypto,” which will be the SEC’s North Star in aiding President Trump in his historic efforts to make America the “crypto capital of the world.”
• We are at the threshold of a new era in the history of our markets. As I mentioned earlier, today I am announcing the launch of “Project Crypto” — a Commission-wide initiative to modernize the securities rules and regulations to enable America’s financial markets to move on-chain.

• Now, Project Crypto will involve a broad range of initiatives across the Commission.
• First, we will work to bring crypto asset distributions back to America. The days of convoluted offshore corporate structures, decentralization theater, and confusion over security status, are over. President Trump has said that America is in its Golden Age — and under our new agenda, our crypto asset economy will be, too.
• Despite what the SEC has said in the past, most crypto assets are not securities. But confusion over the application of the “Howey test” has led some innovators to prophylactically treat all crypto assets as such.
• I have directed the Commission staff to work to develop clear guidelines that market participants can use to determine whether a crypto asset is a security or subject to an investment contract.
• Second, to achieve the President’s goals, it is incumbent on the SEC to ensure that market participants have maximum choice when deciding where to custody and trade crypto assets.
• Third, a key priority of my chairmanship is to allow market participants to innovate with “super-apps.” I am often asked, “What do you mean by a super-app?” Plain and simple: securities intermediaries should be able to offer a broad range of products and services under one roof with a single license.
• Fourth, I have directed the Commission staff to update antiquated agency rules and regulations to unleash the potential of on-chain software systems in our securities markets.

While this speech was not specific to enforcement, it thematically continued the refrain from Chair Atkins that it is indeed a “new day” at the SEC. The legacy of the SEC under the tenure of Chair Gensler as judged by history may be “regulation by enforcement” and may also be an antagonistic relationship with the securities industry and, in particular, aggressively so with the digital asset industry. The vision that Chair Atkins has for the SEC under his leadership offers perhaps the starkest contrast possible from the Chair Gensler regime; with his open willingness to turn away from regulation by enforcement, encourage financial innovation, and embrace digital assets.