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Monex Deposit Company, et al. v. Commodity Futures Trading Commission

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 18-55815 · judgment July 25, 2019

Certiorari denied · June 29, 2020
Pre-decision estimate: 6% cert probability (95% interval 5%–9%)

Before the decision, about 1.6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a business petitioner.

Questions presented

Commodities can be anything sold in commerce. The federal Commodity Exchange Act defines “commodity” broadly, reaching items from pigs to potatoes. 7 U.S.C. § 1a(9). But the federal law, and the federal agency it creates, regulate commodity futures, not every transaction in any commodity. This case concerns the limits on the authority of the Commodity Futures Trading Commission (CFTC) to regulate, and penalize, transactions outside the commodity futures markets. The questions presented are:

  1. Whether 7 U.S.C. § 9, the Commodity Exchange Act’s “Prohibition Against Manipulation,” empowers CFTC to punish conduct that does not manipulate any commodities market, simply because the conduct involves a retail transaction in a commodity.

  2. Whether CFTC violated fundamental principles of due process when it abruptly reversed its 30-year position that petitioners’ business model was not subject to CFTC’s regulatory authority and retroactively applied its new and incorrect position in this $290 million enforcement action.

Counsel of record

For petitioner
William McGinley Jay
Goodwin Procter, LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 2 conferences

Amicus briefs
2 cert-stage

Proceedings

  1. Jun 29 2020
    Petition DENIED.
  2. Jun 09 2020
    DISTRIBUTED for Conference of 6/25/2020.
  3. Jun 09 2020
    Reply of petitioners Monex Deposit Company, et al. filed. (Distributed)
  4. May 26 2020
    Brief of respondent Commodity Futures Trading Commission in opposition filed.
  5. Apr 30 2020
    Motion to extend the time to file a response is granted and the time is further extended to and including May 26, 2020.
  6. Apr 29 2020
    Motion to extend the time to file a response from May 4, 2020 to May 26, 2020, submitted to The Clerk.
  7. Mar 26 2020
    Motion to extend the time to file a response is granted and the time is extended to and including May 4, 2020.
  8. Mar 25 2020
    Motion to extend the time to file a response from March 30, 2020 to May 4, 2020, submitted to The Clerk.
  9. Feb 27 2020
    Response Requested. (Due March 30, 2020)
  10. Feb 19 2020
    DISTRIBUTED for Conference of 3/6/2020.
  11. Feb 19 2020
    Brief amicus curiae of New Civil Liberties Alliance filed. (Distributed)
  12. Feb 19 2020
    Brief amicus curiae of Mountain States Legal Foundation filed.
  13. Feb 10 2020
    Waiver of right of respondent Commodity Futures Trading Commission to respond filed.
  14. Jan 23 2020
    Petition for a writ of certiorari filed. (Response due February 24, 2020)