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Amicus Briefs

Clarke v. CFTC

The PredictIt Market provides a platform for investors to trade contracts that predict the likely outcome of elections and other significant political events. In 2014, CFTC authorized the trading market’s establishment and assured its creators that the market could operate lawfully under the Commodities Exchange Act. After, millions of dollars and years of sweat equity have been invested to build and operate the market, CFTC pulled the rug out from under its operators and told them to shut everything down by the apparently arbitrary date of February 15, 2023—or else. Many thousands of third-party traders have invested in PredictIt Market contracts offered over the years—some of which remain open.

The Administrative Procedure Act (APA) requires courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Clearing this low bar is the least we expect from unelected administrators entrusted to promulgate and enforce ever-expanding reams of regulation. Yet here, CFTC failed to clear the bar. The agency acted arbitrarily and capriciously by reversing course on PredictIt Market without considering reliance interests and providing a reasoned explanation for disregarding those interests.

In July 2023, the U.S. Court of Appeals for the Fifth Circuit ruled that CFTC’s threatened crackdown on the PredictIt Market without clear explanation was “likely arbitrary and capricious.” The Court ordered the U.S. District Court for the Western District of Texas to grant a preliminary injunction against CFTC’s action, a victory for NCLA.

Mark Chenoweth
President and Chief Legal Officer
Jenin Younes
Litigation Counsel
Margaret A. Little
Senior Litigation Counsel
Russ Ryan
Senior Litigation Counsel
NCLA FILINGS

Decision of the U.S. Court of Appeals for the Fifth Circuit

July 21, 2023 | Read More

Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Plaintiffs-Appellants

February 1, 2023 | Read More

PRESS RELEASES

In NCLA Amicus Win, Fifth Circuit Blocks CFTC’s Abusive Policy Reversal Against PredictIt Market

July 24, 2023 | Read More

NCLA Amicus Brief Condemns CFTC’s Arbitrary and Capricious “Switcheroo” on PredictIt Market

February 1, 2023 | Read More

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