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.…

The new certifications are another challenge facing Chairman Wetjen. Either he can go full-speed ahead with these rules risking trading problems that are disruptive to the market; or he can risk criticism by throttling back regulation (in the interest of market safety) by taking market comment on the guidance.

Even if one believes that mandatory SEF trading is of some value in price discovery, it almost certainly does nothing to make the economy safer (see, ). Accordingly, there…

Since the day that the CFTC issued its cross-border guidance, we have stated our belief that the guidance was issued in violation of the Administrative Procedure Act. (See relevant Cadwalader commentary dated July 18, 2013 and July 12, 2013.)

If the CFTC loses this case, it could be forced to return to square one in establishing its regulations relating to swaps since it will be required to reconsider the costs and benefits of many of its most significant adopted rules.…