On February 21, the Commodity Futures Trading Commission filed a petition for rehearing and suggestion for rehearing en banc with the U.S. Court of Appeals for the Sixth Circuit of the opinion in CFTC v. Erskine¸ which held that the foreign currency transactions at issue were “forward contracts” as opposed to “futures contracts” and, therefore, were not subject to CFTC jurisdiction. The CFTC argued that the panel had violated a rule of the Sixth Circuit, which provides that a reported decision of the court, in this case The Andersons v. Horton Farms, Inc. (relating to “hedge-to-arrive” contracts), may only be overruled by the court en banc. The CFTC also objected to the Court’s finding that an instrument is a futures contract only if it is exchange-traded and contains standardized terms. The CFTC argued that the “totality of the circumstances” should be examined and, in the absence of a legitimate expectation of delivery by the parties, the instruments should be deemed to be futures contracts.

http://www.cftc.gov/stellent/groups/public/documents/legalpleading/ogcerskinepetition022208.pdf