A recent CFTC settlement order underscores the risks posed by commodities insider-trading prosecutions, even where the defendant may have reasonable arguments against a finding of guilt. Indeed, defendants’ decision to settle this matter rather than litigate may have reflected their determination that the cost of trial and the risk of an adverse jury verdict were unjustifiably high. Businesses worldwide that trade commodities (which are broadly defined to include swaps, FX, interest rates, cryptocurrencies, energy and more traditional commodities in U.S. derivatives and physical markets) should take note of this result, especially as CFTC now has the authority to prosecute insider trading by virtually all participants in U.S. commodities markets. Given the very high costs associated with even a successful defense of an insider-trading prosecution, businesses should take steps to assess and mitigate any insider trading risks related to their operations to ensure, to the greatest extent possible, that their practices do not come close to the line dividing permissible and insider trading. More information on the subject can be found at Clifford Chance's U.S. Insider Trading Q & A.

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