The Commodity Futures Trading Commission (“CFTC”) has now joined the Securities and Exchange Commission (“SEC”) in taking a stand against broad non-disclosure provisions in employment agreements.
Last week, the CFTC announced a settlement with Trafigura Trading LLC, in which the company agreed to pay a $55 million penalty, in part because it required employees to sign agreements that impeded voluntary communications with the CFTC.
In its decision, the CFTC specifically found:
Between July 31, 2017 and 2020, Trafigura required its employees to sign employment agreements, and requested that former employees sign separation agreements, with broad non-disclosure provisions that prohibited the sharing of Trafigura’s confidential information with third parties. These nondisclosure provisions did not contain carve-out language expressly permitting communications with law enforcement or regulators like the Commission.
The CFTC concluded that such non-disclosure provisions violate Regulation 165.19(b), 17 C.F.R. § 165.19(b) (2023), implementing Section 23(h)-(j) of the Act, 7 U.S.C. § 26(h)–(j), even without any additional actions impeding communications.
As a result of this finding, among others involving misappropriation of material nonpublic information and manipulative conduct, the CFTC not only levied a significant fine on Trafigura, but imposed a host of conditions and undertakings with which Trafigura was required to comply. Relevant here, the CFTC required that Trafigura modify its non-disclosure provisions to include language making clear that “no term in any such Agreement should be understood to limit or prevent the filing of a complaint with; or voluntary, lawful communication with; or disclosure of information to any federal, state, or local governmental regulatory or law enforcement agency.”
Director of the Whistleblower Office Brian Young commented, “This is the first CFTC action charging a company under regulations designed to prevent interference with whistleblower communications. This groundbreaking action demonstrates the CFTC’s commitment to protecting potential whistleblowers and puts the market on notice that the CFTC will not tolerate contractual arrangements that could impede communication by potential witnesses.”
We have long reported on the SEC’s targeting of employment agreements. With the CFTC following suit, employers should expect additional agencies to scrutinize language in employment agreements, separation agreements and other employment-related documents, such as employee handbooks and Codes of Conduct. To minimize such scrutiny and exposure employers should take action to modify non-disclosure and other provisions such as non-disparagement and confidentiality clauses that might have the purpose or effect of impeding agency communications. Such modifications must include carve-out language clarifying that nothing precludes current and former employees from communicating in any way with a government agency, such as the CFTC or the SEC. It is more important than ever for employers to work with counsel to conduct a comprehensive review of their policies, practices, and agreements for language that such agencies may find problematic.
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