Compliance and senior supervisors should take a close look at this case. The ALJ delved deeply into the facts and the result is an opinion that is quite thoughtful and rich in detail. Though the decision can't be summarized in a few paragraphs, here are a few observations about it:

(1) The Number of Regulatory Inquiries. The ALJ noted that on average the firm received 1,100 to 1,500 regulatory inquiries in a year. That seems a tremendous number. If larger firms are…

Congress habitually requires the SEC and other agencies to adopt rules that have timetables that are impossible to meet. For example, most Dodd-Frank deadlines fit in this category. It is hard to imagine on what basis a court could require the SEC to proceed with the adoption of this particular rule when so many other rules are well past their legislative "deadlines."

The risk that needs more attention is a clearinghouse's demand for more margin in a period of falling prices and declining liquidity – a demand that has the potential to lead to a massive and rapid sell-off of assets. The requirement that clearinghouses maintain sufficient capital to cover one year of operation is trivial in light of the potential cost of the economic risks that flow through a clearinghouse.

The judicial decision that the CFTC's cross-border guidance was "guidance" and not a rule was both remarkable and disappointing. The holding of the case seems to be that if a regulatory agency called something "guidance," there was no need for further judicial inquiry. (In reaching its decision, the Court asserted that a major factor in its holding was the CFTC's characterization of its statement as guidance and not a rule – which seems circular, since the whole point of the litigation…