Hecker Fink Files Petition for Writ of Certiorari in the U.S. Supreme Court on behalf of Neil Phillips in U.S. v. Phillips

On April 22, 2026, Hecker Fink LLP filed a petition for a writ of certiorari on behalf of Neil Phillips in United States v. Phillips, No. 24-1908, challenging the Second Circuit’s affirmance of his conviction on one count of commodities fraud. Mr. Phillips was convicted after trial in the Southern District of New York based on an alleged scheme in which he executed a high volume of trades in the currency pair USD/ZAR on the unregulated foreign exchange (“FX”) spot market, purportedly to manipulate the price and trigger a One Touch Option tied to the USD/ZAR exchange rate. The petition can be read here.

The petition presents two questions. First, the petition asks whether the CEA permits criminal prosecution arising from trades in the FX spot market that Congress has explicitly exempted from the statute’s reach since 1974, an issue on which the Second Circuit's holding conflicts with Fifth Circuit precedent in United States v. Radley, 632 F.3d 177 (5th Cir. 2011) and Aspire Commodities v. GDF Suez Energy N. Am., 640 F. App’x 358 (5th Cir. 2016). Second, the petition appeals the Second Circuit’s determination that the CEA’s extraterritoriality provision, 7 U.S.C. § 2(i), is satisfied when a defendant executes wholly foreign transactions that are linked to U.S. commerce only through an internal risk from Morgan Stanley’s U.K.-based subsidiary to a U.S. affiliate and a U.K. branch of JPMorgan serving as prime broker, arguing that such attenuated connections effectively invert the presumption against extraterritoriality for the $730 trillion global derivatives market. The petition argues that the Second Circuit's decision eviscerates Congress's deliberate and repeated choice to exclude foreign currency spot transactions from CEA regulation and gives the U.S. government a back door through which it can prosecute unregulated conduct. Moreover, the decision threatens international comity and foreign nations' abilities to enact monetary policy through currency markets, and improperly dispenses with the mens rea requirement for criminal conduct by holding that a defendant need not know the facts establishing a connection to U.S. commerce.

The Hecker Fink team includes Sean Hecker, Jenna Dabbs, David Gopstein, Jeffrey Fisher, Anne Yearwood, Selena Kitchens, Michael DeLuca, Laila Véissid, and Sarah Doyle.