The Commodity Futures Trading Commission Division of Enforcement has revised its “Enforcement Advisory on Cooperation” concerning the attorney-client and work product privileges to clarify the Division’s view on privileged materials and to assist prospective respondents and defendants and their counsel in assessing possible settlement positions and litigation risks.

The revised Advisory states that the Division, in evaluating whether a company cooperated with Division staff to a degree that would prompt the Division staff to recommend reduced sanctions to the Commission, may consider a company’s (i) good faith in uncovering and investigating misconduct; (ii) cooperation with the Division’s staff in reporting the misconduct and the company’s actions with respect to it; and (iii) efforts to prevent future violations. The Division also may consider “additional factors” that may enhance or mitigate sanctions, but also may recommend enforcement even where all or most of the factors identified above are present.