CFTC Files Supplemental Declaration in CFTC Cross-Border Guidance Case

The CFTC filed a motion to submit the supplemental declaration of CFTC Assistant General Counsel Martin B. White (the “declaration”) and two additional documents that, in the words of the CFTC, contradict “the positions SIFMA and other Plaintiffs have taken on key legal points in this case.”  Specifically, the two exhibits filed include (i) a document titled “Note Regarding Non-U.S. Affiliate Participation in Swaps Market” (“SIFMA’s Note”), and (ii) a copy of an article published by POLITICO Pro titled “Banks Outline Pushback on Swap Guarantee Worries.”

According to the declaration, SIFMA’s Note states that Congress “set standards” for cross-border swaps regulation, which contradicts the claims of SIFMA, ISDA and the Institution of International Bankers (“Associations”) in the Cross-Border Guidance case.  Additionally, the CFTC stated, SIFMA’s Note concedes that the Cross-Border Guidance is “guidance,” which differs from the Associations’ claim that the Cross-Border Guidance “is a rule in disguise that extends the Title VII Rules overseas.”  

The CFTC also claimed that the apparent purpose of SIFMA’s Note is to suggest to its members a public explanation for a new business practice, in which U.S. parents of overseas affiliates remove guarantees from swaps with foreign counterparties.  The CFTC stated that this indicates that the Associations’ claim to injury from the Cross-Border Guidance may not be true.

See: CFTC Motion to File Supplemental Declaration; Martin White’s Supplemental Declaration (with SIFMA Note and POLITICO Pro Article).
Related news: Court Requests Supplemental Briefs from Parties in SIFMA v. CFTC Cross-Border Guidance Case (June 25, 2014); SIFMA v. CFTC Cross-Border Guidance Case Reassigned to New Judge (June 23, 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 (June 18, 2014); Congressional Democrats’ Amicus Brief Sides with CFTC in SIFMA v. CFTC (March 25, 2014); Better Markets Amicus Brief Supports CFTC’s Cross-Border Guidance (March 21, 2014); CFTC Legal Memorandum to Dismiss Challenge to Its Cross-Border Guidance (March 18, 2014); Chamber of Commerce Submits Amicus Brief Regarding Lawsuit against CFTC Cross-Border Rule (February 5, 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).

 

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