The CFTC's enumerated factors for criminal referrals are not surprising. They are consistent with the DOJ's overall approach of focusing its prosecutorial resources on fact patterns involving more egregious conduct, including when the alleged perpetrator had specialized expertise or has engaged in a pattern of misconduct.

Deciding whether to self-report is a significant, complex, and stressful decision for clients as they try to predict the likelihood of potential outcomes.  If the Commission can demonstrate the pathway forward for receiving meaningful cooperation credit in various real-world circumstances, the Commission is likely to receive more and better cooperation.

Criminal investigations and resulting prosecutions are extremely serious matters. This Memorandum is a refreshing acknowledgement that DOJ should not be wielding its tremendous prosecutorial powers to play high stakes games of "gotcha" in an area where the regulators have thus far not clearly defined the relevant rules.

All broker-dealers must have AML policies irrespective of their customer base. Not only must those policies and procedures be specifically tailored to the nature of the firm’s business, but this AWC is a reminder of the type of minutia that FINRA expects to be included, including guidance on how to detect or monitor for suspicious transactions and how to conduct and document a review of a purported red flag.