Market Participants File Statement to Explain Their Standing in Lawsuit Challenging CFTC Cross-Border Guidance

In response to the Court’s request, the ISDA, SIFMA and the Institute of International Bankers (“IIB”) (together, the “Associations”) filed a statement and declarations explaining to what extent the Associations have standing to bring a regulatory challenge against the CFTC’s Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations (the “Cross-Border Rule”). 

Previously, the Associations filed an amended complaint against the CFTC on December 27, 2013, which asserted that the Cross-Border Rule and related actions were issued in violation of the Administrative Procedure Act (“APA”).  Along with filing an amended complaint, the Associations submitted a procedural motion seeking expedited consideration of a motion for summary judgment and, at the same time, the CFTC filed a motion to delay the summary judgment, stating that it needed time to brief a motion to dismiss the complaint.   During the status conference of the case on January 14, 2014, according to the submission, the Court had expressed doubt that standing is a genuine issue, but requested that the Associations provide “something short, ten pages or less, explaining to what extent does one need to worry about standing” as to the 14 Title VII Rules accompanying the Cross-Border Rule. 

In response to this request, the Associations stated that there is “little question” about the standing to bring a regulatory challenge, and provided declarations from six members affirming that the Association’s members “have suffered actual injury as a result of both the Cross-Border Rule and the extraterritorial application that the Commission evidently contends the Title VII Rules have of their own force.”

See:  SIFMA Statement and Declarations Regarding Standing
See also:  SIFMA Opposition to CFTC Motion to Hold in Abeyance; CFTC Motion to Hold in Abeyance; SIFMA Motion for Expedited Consideration of Summary Judgment; SIFMA v. CFTC Amended Complaint; SIFMA Motion for Summary Judgment; SIFMA v. CFTC Civil Docket.
Related news:  Market Participants File Opposition to CFTC’s Motion to Delay Judgment in Lawsuit Challenging CFTC Cross-Border Guidance (January 17, 2014); Market Participants File Amended Complaint Challenging CFTC Cross-Border Guidance (January 8, 2014); Market Participants File Lawsuit Challenging CFTC Cross-Border Guidance for Being a Rule Adopted in Violation of the APA (December 4, 2013); CFTC Commissioner O’Malia Dissents from CFTC Cross-Border Guidance Statement (July 19, 2013); CFTC Approves Cross-Border Guidance and Exemptive Order (July 15, 2013).