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In June 2018, we published an article discussing the government’s efforts to prosecute defendants who engage in a form of trading activity on commodity futures exchanges known as “spoofing,” which the law defines as “bidding or offering with the intent to cancel the bid or offer before execution.” See, Jodi Misher Peikin & Brent M. Tunis, “When Is a Bid or Offer a ‘Spoof’?,” Business Crimes Bulletin (June 2018). In that article, we observed that the failure of the Commodity Futures Trading Commission (CFTC) to define what specific conduct qualifies as spoofing has left market participants uncertain about when cancellation of a bid or offer crosses the line from an acceptable trading strategy to an illegal “spoof.” This ambiguity is compounded by the fact that rapid cancellation of orders is prevalent in the commodities markets. See, Richard Haynes & John S. Roberts, CFTC, “Automated Trading in Futures Markets” at 9 (2015) (“[J]ust over 50 percent of market orders are cancelled within half a second, approximately the speed of human reaction.”).
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