Fraud, Manipulation and Deception: CFTC/SEC Proposed Rules

Morrison & Foerster LLP

On November 3, 2010, both the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) proposed rules under the new anti-manipulation and anti-fraud provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or the “Act”).

The CFTC proposed rules broaden the scope of existing prohibitions on price manipulation. The SEC Proposed Rule 9j-1 expands the language of 10b-5 as specifically applied to security-based swaps to capture instances of fraud and manipulation in connection with on-going obligations arising under security-based swaps, such as cash flow payments. The anti-fraud and anti-manipulation provisions of the Dodd-Frank Act will be effective, in the case of the CFTC’s rules, on the date on which the related implementing rules take effect and, in the case of those provisions in the Securities Exchange Act of 1934 (the “Exchange Act”), not less than 60 days after publication of the final related rules. The comment period for the proposed CFTC rules is open until January 3, 2011, and the comment period for the proposed SEC rule is open until December 23, 2010.

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