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Wall Street groups contest CFTC cross-border guidelines

Gary Gensler, chairman of the Commodity Futures Trading Commission (CFTC), listens during an interview with Reuters in London October 2, 201
Gary Gensler, chairman of the Commodity Futures Trading Commission (CFTC), listens during an interview with Reuters in London October 2, 201

By Emily Stephenson and Sarah N. Lynch

WASHINGTON (Reuters) - Three Wall Street trade groups sued the U.S. Commodity Futures Trading Commission on Wednesday in hopes of beating back tough overseas trading guidelines they fear could hurt markets and cut profits.

The groups accused the CFTC in their lawsuit of avoiding a rigorous rulemaking process, tacking changes on to the guidelines without seeking public input, and failing to study economic impacts of the regulation and its costs to industry.

They also said the lawsuit aims to stop the CFTC from what they described as an "unceasing effort" to seize authority over the global swaps market by publishing hasty, unpredictable advisory documents instead of issuing formal rules.

"This action, which has been taken so far outside the bounds of normal regulatory course ... needs to be addressed through the court system," Judd Gregg, chief executive of the Securities Industry and Financial Markets Association (SIFMA), told Reuters.

SIFMA, the International Swaps and Derivatives Association (ISDA) and the Institute of International Bankers (IIB) filed the suit in U.S. District Court for the District of Columbia.

A spokesman for the CFTC did not have an immediate comment.

The CFTC, the nation's top swaps regulator, was required by the 2010 Dodd-Frank law to write dozens of rules bringing the $630 trillion market under federal oversight for the first time. Regulators were also instructed to determine how their rules should apply to U.S. companies with operations overseas.

The issue sparked a trans-Atlantic conflict with banks and European regulators who did not want companies to have to comply with both U.S. and foreign rules.

Complicating matters, the U.S. Securities and Exchange Commission, which oversees a small portion of the swaps market regarding equities and some credit instruments, has taken a different approach. It is pursuing a formal rule that will govern how its regulations apply across the globe.

The CFTC gave final approval in July to guidance that would generally let the overseas branches of U.S. banks follow foreign swaps regulations, as long as they are roughly comparable to U.S. rules.

The guidance was subjected to public comment and approved by the commission, with Republican Commissioner Scott O'Malia dissenting.

But the groups challenging the guidance said they were alarmed by follow-up "advisories" issued by CFTC staff at the request of Chairman Gary Gensler, a Democrat. Those were not released for comment beforehand or voted on publicly.

Two advisories, issued on November 14 and 15, greatly expanded the scope of the CFTC's rules to include swaps that were negotiated in the United States, even if the trades were booked offshore and outside of the U.S. marketplace.

The trade groups said the change would be costly for firms that were complying with an earlier interpretation of the rules and should have gone through the full public comment process.

"This lawsuit comes in direct response to Chairman Gensler's decision to ignore the rule of law and disregard long-established procedures at the CFTC for adopting new rules," Republican Representative Frank Lucas, who chairs the House of Representatives' agriculture committee, said in a statement.

GENSLER'S LEGACY

Should the challenge prevail, it could detract from Gensler's legacy as chairman. His term ends on January 3.

He has gained a reputation as an especially aggressive financial regulator in his push to finalize tough interpretations of new regulations required by Dodd-Frank.

The lead attorney representing the trade groups, Eugene Scalia of Gibson Dunn & Crutcher, has a track record of often winning legal challenges to Wall Street regulations.

The CFTC has had mixed success in defending against legal challenges during Gensler's tenure.

The agency lost one case filed by SIFMA and ISDA against a set of rules to rein in how banks and other large traders place bets in the commodity markets.

But it has successfully beaten back other challenges, including one filed against the agency by Bloomberg LP over derivatives rules and another lawsuit filed by industry groups that targeted fund registration requirements.

Joel S. Telpner, a partner at law firm Jones Day, said the court may wish to take a narrow approach to the challenge to avoid creating major confusion.

"It creates somewhat of a challenge or dilemma for the court on having to face the reality that if they throw out the cross-border guidance at this point, how does it impact all of the other rules that were issued?" he said.

The court may focus on just the procedural issue of whether the CFTC should have issued formal rules rather than guidance, he said, to avoid creating ambiguity about whether the cross-border requirements still apply.

(Reporting by Emily Stephenson and Sarah N. Lynch; Editing by Karey Van Hall, Tim Dobbyn and Andre Grenon)

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