CFTC Names Mark P. Wetjen as Its Acting Chairman (with Lofchie Comment)

The CFTC announced that its members have unanimously elected Commissioner Mark P. Wetjen to serve as Acting Chairman upon the end of Chairman Gary Gensler's service.Wetjen was sworn in as a Commissioner of the CFTC in October 2011. Prior to his CFTC service, he worked in the U.S. Senate as a senior leadership staffer, advising on all financial-services-related matters. Before his service in the Senate, Wetjen was a lawyer in private practice.

Lofchie Comment: The new acting Chairman is in a difficult position. Many who participate in the financial markets and navigate the CFTC's rules view much of the recent rulemaking as needing a reboot. Query: to what extent should the new Chairman embody continuity as opposed to reconsideration? By way of example, what does the new acting Chairman do in regard to the recent litigation asserting that the CFTC's cross-border guidance was adopted in violation of the Administrative Procedures Act? (see, e.g.,Market Participants File Lawsuit Challenging CFTC Cross-Border Guidance for Being a Rule Adopted in Violation of the APA (with Lofchie Comment)) If the CFTC fights the case and then loses, the CFTC will lose a considerable amount of time and then may be forced to reconsider a good portion of what it has done under the prior Chairman. If the CFTC abandons the fight and takes on the task of issuing a rule (and not merely guidance) as to the cross-border application of Dodd-Frank, the CFTC loses somewhat less time, but loses its place as the regulatory leader in enacting Dodd-Frank. If the CFTC fights the case and wins, it is still left with implementing guidance that the CFTC has already said can not be enforced in that a violation of "guidance" is not the equivalent of a violation of law. There is just no easy path on this issue; and that is to say nothing of matters of near equivalent significance, such as (i) the CFTC's position limits proposal (see, e.g., CFTC Issues Proposed Position Limits Rule for Derivatives (Pre-Fed. Reg.) (with Zwirb Comment)) and (ii) the very low standards that the CFTC has set for a swap being deemed "made available to trade" (see, e.g.,Javelin SEF Submits More Limited MAT Determination to CFTC (with SIFMA AMG Comment Letter and Lofchie Comment).

See: CFTC Press Release.