On October 3, TOTAL filed a motion for expedited consideration of its appeal to the Fifth Circuit in its declaratory judgment action against FERC. TOTAL requested that the court enter an accelerated briefing schedule, that preparation of the record on appeal be expedited, and that the case be calendared for oral argument as soon as practicable after completion of briefing. According to TOTAL, this expedited treatment is necessary to spare TOTAL—and taxpayers—the costs of an unlawful agency adjudicatory proceeding before a FERC administrative law judge for FERC’s market manipulation case against TOTAL.
On September 30, Judge Analisa Torres of the U.S. District Court for the Southern District of New York issued an order denying motions for summary judgment, and partially granting motions to exclude certain testimony in the CFTC’s enforcement action against defendants DRW Investments, LLC and Donald R. Wilson for alleged manipulation and attempted manipulation of the price of certain futures contracts on interest rate swaps. With respect to the CFTC’s market manipulation claims, Judge Torres found that CFTC must prove the defendants had the specific intent to affect market prices that did not reflect the legitimate forces of supply and demand. In doing so, Judge Torres rejected the CFTC’s interpretation that the intent standard is merely the intent to affect market price. In addition, Judge Torres granted in part, and denied in part, each party’s motions to exclude certain expert testimony.
After this ruling, the case was reassigned to Judge Richard J. Sullivan. On October 7, Judge Sullivan issued an order setting the case for jury trial to begin on December 1, and instructed the parties to submit a joint proposed pretrial order.