IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT THE LOAN SYNDICATIONS AND TRADING ASSOCIATION, Petitioner-Appellant, v. No. 17-5004 SECURITIES AND EXCHANGE COMMISSION; BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, Respondents-Appellees. JOINT MOTION TO ESTABLISH A BRIEFING SCHEDULE AND APPELLANT S UNOPPOSED MOTION REGARDING ORAL ARGUMENT Pursuant to Federal Rule of Appellate Procedure 27 and the Court s Order of January 11, 2017, the Loan Syndications and Trading Association ( LSTA, the Securities and Exchange Commission ( Commission and the Board of Governors of the Federal Reserve System ( Board jointly respectfully request that the Court establish a briefing schedule as follows: - Appellant s Opening brief due April 19, 2017 - Amicus briefs in support of Appellant due April 26, 2017 - Appellees brief due June 7, 2017
- Amicus briefs in support of Appellees due June 14, 2017 - Appellant s Reply brief due July 12, 2017. The parties state that there is good cause for this motion. The proposed briefing schedule will permit the parties to more adequately address the substantial and complex record in this case, which includes two rounds of proposed rulemaking over more than three and a half years, more than 550 submitted comments, and the district court s decision on summary judgment. The proposed briefing schedule will also facilitate coordination between the LSTA and its multiple members on the one hand and between the Commission and the Board and the four other federal agencies that jointly adopted the rules on the other hand. The LSTA also respectfully requests that this Court set a date for oral argument at its earliest convenience following the completion of briefing. 1 The LSTA s challenge to the Credit Risk Retention rules has been pending for over two years. The rules were issued on October 22, 2014, and the LSTA timely filed a petition for review, following this Court s precise instructions that when a party is uncertain about where and when to file their suit, the proper course is to file a petition in this Court. N.Y. Republican State Committee v. S.E.C., 799 F.3d 1126, 1129 30 (D.C. Cir. 2015. The uncertainty about where to file suit stemmed from the agencies invocation of multiple sources of authority for the rules, including 12 1 The Commission and the Board do not oppose this request. 2
U.S.C. 1848 and 15 U.S.C. 77i which both provide for initial review of agency action in this Court. In their briefs before this Court, the LSTA, the Commission, and the Board all agreed that jurisdiction was proper in this Court. On March 18, 2016, after briefing on the merits, supplemental briefing on jurisdiction, and oral argument, this Court ruled that it lacked jurisdiction over the petition for review and transferred the case to the District Court for the District of Columbia. In the district court, the LSTA filed an unopposed motion to expedite consideration of the matter in light of the rules impending effective date of December 24, 2016. The district court issued its opinion denying the LSTA s motion for summary judgment and granting the Commission and the Board s motion for summary judgment on December 22, 2016. The case is now back before this Court, and an oral argument date at the Court s earliest convenience after the completion of briefing would facilitate the resolution of this protracted litigation. 3
Respectfully submitted, Dated: February 10, 2017 /s/ Richard Klingler Sarah Prins Richard Klingler Securities and Exchange Commission Peter D. Keisler 100 F Street, NE Jennifer J. Clark Washington, DC 20549 SIDLEY AUSTIN LLP Telephone: (202 551-5159 1501 K Street, N.W. Counsel for the Securities and Washington, D.C. 20005 Exchange Commission Telephone: (202 736-8000 Facsimile: (202 736-8711 Counsel for the Loan Syndications and Trading Association Joshua Chadwick Board of Governors of the Federal Reserve System 20th and C Streets, NW Washington, DC 20551 Telephone: (202 263-4835 Counsel for the Board of Governors of the Federal Reserve System 4
CERTIFICATE OF SERVICE I hereby certify that on this 10th day of February, 2017, I have caused the foregoing to be electronically filed with the Clerk of the Court through the Court s CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. /s/ Richard Klingler Richard Klingler