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Court Requests Supplemental Briefs from Parties in SIFMA v. CFTC Cross-Border Guidance Case

The U.S. District Court for the District of Columbia (the "Court") requested supplemental briefs from SIFMA, ISDA, the Institution of International Bankers ("Associations") and the CFTC regarding (i) shareholder standing and (ii) interpretive rules in the lawsuit against the CFTC's Cross-Border Guidance.

Specifically, the Court and newly assigned Judge Paul Friedman requested that the Associations and the CFTC submit no more than 12 pages in length addressing:

  • whether the "shareholder standing" rule in the Cross-Border Guidance, which states that "[n]o shareholder – not even a sole shareholder – has standing in the usual case to bring suit . . . on a claim that belongs to the corporation," is jurisdictional, prudential or a manifestation of the Federal Rules of Civil Procedure Rule 17(a)'s real-party-in-interest requirements. The Court also asked what implications the shareholder standing rule had in this case regarding the elements of the CFTC's Cross-Border Guidance that, if and when applied, "would seem to directly regulate the plaintiffs' members' legally distinct subsidiaries – but no member itself"; and
  • whether the Cross-Border Guidance is an interpretive rule, based on the Court's articulated standards for distinguishing interpretive rules from policy statements and legislative rules, and what the implications of an interpretive rule might be as to ripeness, cost-benefit requirements and the level of deference to be applied by the Court.

The Court requested that both parties submit supplemental briefs addressing these issues by July 14, 2014.

See: Request for Supplemental Briefs.

Related news: SIFMA v. CFTC Cross-Border Guidance Case Reassigned to New Judge (June 19, 2014); Judge Grants Amici Motion for Leave to File Brief in Support of CFTC; CFTC Submits Notice of Supplemental Authority in SIFMA v. CFTC Cross-Border Guidance Case (with Lofchie Comment) (June 18, 2014); Congressional Democrats' Amicus Brief Sides with CFTC in SIFMA v. CFTC (with Lofchie Comment and Energy Metro Desk Article Quoting Commissioner O'Malia) (March 24, 2014); Better Markets Amicus Brief Supports CFTC's Cross-Border Guidance (with Lofchie and Zwirb Comments) (March 20, 2014) CFTC Legal Memorandum to Dismiss Challenge to Its Cross-Border Guidance (with Lofchie and Zwirb Comments) (March 17, 2014) Chamber of Commerce Submits Amicus Brief Regarding Lawsuit against CFTC Cross-Border Rule (with Zwirb Comment) (February 4, 2014) Market Participants File Amended Complaint Challenging CFTC Cross-Border Guidance (with Zwirb and Lofchie Comments) (January 7, 2014) Market Participants File Lawsuit Challenging CFTC Cross-Border Guidance for Being a Rule Adopted in Violation of the APA (with Lofchie Comment) (December 4, 2013).