WE ARE CFTC DEFENSE LAWYERS WHO HANDLE CFTC INVESTIGATIONS AND ENFORCEMENT PROCEEDINGS THROUGHOUT THE UNITED STATES
Congress enacted the Commodities Futures Trading Act of 1974 (CEA) and established the Commodities Futures Trading Commission (the “CFTC”) to regulate the commodities futures industry in the United States. It regulates the creation, modification and trading of all futures contracts to promote the industry and protect investors from fraud through misrepresentations and misleading statements, manipulation, fraudulent devices and schemes, cheating, fictitious trades, and misuse of customer funds. In 1982, the CEA was amended and now regulates all futures contracts and options traded on U.S. futures exchanges. In 2000, Congress amended the CEA once again by enacting the Commodity Futures Modernization Act to increase competition and reduce systemic risk in futures and the over-the-counter derivatives market. The last major revision of the CEA came with the Dodd-Frank Act, which gave the CFTC new enforcement authority over futures, swaps, leveraged precious metal transactions and broader powers to regulate fraud in actual purchases of a commodity known as “spot” or “physical” transactions. In addition to prohibiting misrepresentations, misleading statements and price manipulation, the CEA now prohibits (like the 34 Act Rule 10b-5) “manipulative or deceptive devices or contrivances.”
The CFTC investigates and prosecutes alleged violations of the CEA and CFTC Regulations in CFTC administrative proceedings and federal court enforcement proceedings. The CFTC works closely with the U.S. Attorney’s Office (USAO) and Federal Trade Commission (FTC) in policing the commodities markets, so those of you in this business should be concerned whenever subpoenas are issued and CFTC investigators knock on your door.
WHAT SHOULD I DO WHEN I RECEIVE A CFTC SUBPOENA?
The CFTC subpoenas are issued to companies and individuals to collect evidence when it has reason to believe the federal securities laws may have been violated. At this point, a Formal Order of Investigation has been entered and authority has been granted to its attorneys and investigators to subpoena documents and take testimony to determine whether indeed there is evidence that any violations have occurred.
Subpoenas are issued to persons who may ultimately be the target or subject of the investigation as either a respondent in an administrative proceeding or defendant in an enforcement proceeding to be filed in Federal court. Subpoenas are also issued to individuals and entities the CFTC attorneys and investigators believe may have some evidence of the suspected violation. The CFTC will not tell you whether you are a target, subject or mere witness. In fact, the CFTC attorneys and investigators will tell you nothing about the investigation!
So, the first thing you should do is contact an experienced CFTC defense attorney to help you to quickly decide how you are going to respond to the subpoena. Individuals (not corporations or other legal entities) always have their right to assert their privilege to not incriminate oneself as guaranteed by the Fifth Amendment to the U.S. Constitution. Once you produce documents or information or testify it may be too late to assert your Fifth Amendment right! In a published Court opinion, Federal District Court Judge Janet C. Hall wrote:
“Since 1983, Attorney Pearce has continued his specialized education by attending hundreds of hours of seminars focused on SEC and Commodity Futures Trading Commission (“CFTC”) investigation and enforcement proceedings and the practices and procedures of the securities and commodities industry. He has received intensive training on broker-dealer practices and procedures (both front and back office) in the OTC market and the New York Stock Exchange (“NYSE”), the American Stock Exchange (“AMEX”), and the Chicago Board Options Exchange (“CBOE”). In short, Attorney Pearce has knowledge and skill gained over  years of specialized training on the minutiae of broker-dealer practices and procedures and SEC enforcement proceedings which could not be obtained by a competent practicing attorney through routine research or legal experience.”
Attorney Pearce has successfully defended clients involved in CFTC informal inquiries, formal investigations and enforcement actions since the mid-1980s from his South Florida offices. He has faced the CFTC in its many sweeps of Commodities Option brokerages, Off-Shore FOREX companies, Leveraged and Cash-only Precious Metals firms, Futures Commission Merchants and small Introducing Brokerage firms over his 40 year career.
Attorney Pearce works closely with in-house legal and management teams to achieve the client’s ultimate objective and avoid prosecution. It is essential, at the outset of any new commodities investigation or enforcement action, to identify a sound strategy that is calculated to lead to a speedy and favorable resolution. In some cases, it is advisable to work cooperatively with the government; in other cases, a more defensive posture is appropriate. Regardless of the strategy, Mr. Pearce is a lawyer who has a reputation for credibility and effectiveness in his dealings with government investigators.
MR. PEARCE IS AN EXPERIENCED PRECIOUS METALS DEFENSE ATTORNEY
The commodities environment has become more challenging with the Dodd-Frank Amendments and increased authority granted to the CFTC and its Division of Enforcement. As a result, the CFTC has shown unprecedented aggressiveness in its investigations of trading activity in the nation’s commodity markets. The precious metals brokerage business has become the focus of the CFTC and other regulators’ attention in South Florida and nationwide. Before the Dodd Frank Amendments became effective, Mr. Pearce successfully defended clients in the leveraged precious metals business because the CFTC had “no jurisdiction” over the businesses anywhere in the United States prior thereto.
Hear From Our Clients
At The Law Offices of Robert Wayne Pearce, P.A., we believe the ultimate barometer of our success is surpassing the expectation of our clients.
The following clients have direct knowledge of our firm's processes from the inside and experienced our fierce advocacy.
Hear From Our Clients
- “Robert Pearce is part of that unusual breed of lawyers that are able to create empathy with clients and thoroughly adopt their cause”
No half efforts here. He and his group of professionals are outstanding strategists that can execute with precise fervor and unyielding determination. Theirs is a huge wave of facts, research, precedents and preparation, that has impressed me in its thoroughness and creativity, and most importantly with the results. No stone goes unturned and no effort is ever spared. In my book, he and they are those of a very rare kind that one wants to keep for a very long time.- Ramon Flores-Esteves -
- “Just like the song from HAMILTON, it's so nice to have Bob Pearce on your side.”
Just like the song from HAMILTON, it's so nice to have Bob Pearce on your side. He is the consumate plaintiff's lawyer: smart. dedicated, fully able to try a case but a great negotiator in a mediation. He did a wonderful job for us, fully supporting us through the process and more than holding his own against a large national law firm.- Maurice Z. -
- "Mr. Pearce and his staff exceeded all of our expectations."
Mr. Pearce and his staff exceeded all of our expectations. We were able to reach a settlement that was of our complete satisfaction, all within a very smooth, professional and efficient process. Mr. Pearce is now not only our lawyer but our family friend. We highly recommend him and his team!- Severiano L. -
- "For the best fighting chance, Robert Pearce is the lawyer you want in your corner."
This law firm is the real deal. We were so lucky that they took our case as they have so much experience in securities and all the wrongdoing that happens in these investment companies where they mislead you and your money (as in our case) into schemes that are not what you think they are. Mr. Robert Pearce is one of the best lawyers around, a truly professional who will fight for you and will tell you as it is all the time. We could not have gone thru this experience if it was not for all the advice, guidance and support he and all of his staff and associates brought to the game. For the best fighting chance, Robert Pearce is the lawyer you want in your corner.- Astrid M. -
- "He never felt intimidated and his study of the case and perseverance prevailed at all times."
Attorney Robert Pearce was our lawyer in a case against a Brokerage Firm and I'm witness to his ability and intelligence to deal with lawyers from the most prominent law firm in New York which was the key to recovering much of our losses cheered by their negligence. He never felt intimidated and his study of the case and perseverance prevailed at all times.- Jose A. C. -
- "In the end, Bob and I had the last laugh when the arbitrators awarded me almost 6 million dollars."
No lawyer except Bob said I had a chance of winning. When UBS Lawyers laughingly offered me zero to settle the dispute, Bob became even more determined to prove everybody wrong. Bob was extremely prepared, and always a step ahead of the opposing attorneys throughout the arbitration. In the end, Bob and I had the last laugh when the arbitrators awarded me almost 6 million dollars.- J. Blanco -
- "Every meeting and phone call was made with dedication and desire to help our family every step of the way."
Robert's team is excellent. They are very competitive in what they do and they are very responsible. Every meeting and phone call was made with dedication and desire to help our family every step of the way. Their professionalism, responsibility and empathy assured us that we were in good hands. Recommend to everyone.- Mayra A. -