The CFTC should lose this suit as a matter of law. In many ways, though, the CFTC would benefit from such a loss, which would allow it to walk away from a material part of the flawed rulemaking and restart with a better approach. As things are progressing, the agency may have no choice. The House of Representatives today passed a bipartisan bill (supported by both the Republican and Democratic leaders of the House Agriculture Committee) that would effectively render the guidance moot (…

Prior to the SEC's class no-action relief, non-U.S. options exchanges that sought to make their equity and index options available to U.S. investors were required to obtain individual no-action relief from the SEC. The SEC issued several such letters to non-U.S. options exchanges over the years concerning largely the same conditions. Given the similarity of these letters, the SEC issued class no-action relief to non-U.S. options exchanges in July 2013, thereby relieving the exchanges of the…

During the Dodd-Frank rulemaking process, the tango between the CFTC (under former Chairman Gensler) and Better Markets has been interesting to watch. Regardless of the burden of regulation the CFTC would propose, Better Markets would write a comment letter asserting that the CFTC should impose a greater burden. Then, in its review of comment letters, the CFTC would quote from Better Markets' letters extensively. In reaching its conclusions, the CFTC would then summarize with language…

That the CFTC's Guidance is actually a "rule" issued in contravention of the Administrative Procedures Act is a widely held view. Robert Zwirb, in his comment below, summarizes a few of the reasons that the CFTC should be required to implement a formal rulemaking process in place of the Guidance.

With regard to a "race to finish" rulemaking, a loss on this case will be very damaging to the CFTC, as it will be forced to reexamine many of the rules that it had raced to complete.…