The Dodd-Frank Act May Require Registration As A "Commodity Pool Operator" And A "Commodity Trading Advisor" For Entities Associated With Securitization Transactions

Upon effectiveness of the U.S. Commodity Futures Trading Commission ("CFTC") final rules defining "swaps" under the Dodd-Frank Act, entities associated with securitization transactions may be required to register as commodity pool operators ("CPOs") and/or commodity trading advisors ("CTAs").¹ Absent exemptive relief, these registration requirements will apply irrespective of whether the "swaps" are subject to mandatory clearing under the Dodd-Frank Act.²

Based on the Dodd-Frank Act and current CFTC regulations, certain entities associated with public and certain private securitization transactions are not exempt and may have to register as CPOs and/or CTAs.

With respect to securitization transactions offered without registration under the Securities Act of 1933, as amended (the "Securities Act"), there is "de minimis" exemptive relief available from registration as a CPO and CTA. However, the availability of the relief is unclear due to uncertainty of the