MFA urges court to certify interlocutory appeal in Kahle v. Cargill amicus brief

MFA, alongside three other industry organizations, has submitted an amicus letter to the Honorable Analisa Torres of United States District Court for the Southern District of New York. The letter urges the Court to grant the defendant’s motion to certify the Court’s May 9, 2023, order for interlocutory appeal regarding a legal dispute concerning swap agreements. The letter highlights MFA’s support of Cargill’s request for an appeal to clarify whether the swap agreement safe harbor provision applies to state insolvency proceedings, emphasizing the potential impact of disrupting market stability and increasing costs for market participants.

The letter argues that the Court’s order satisfies the statutory criteria for interlocutory certification, finding that:

  • First, the order “involves a controlling question of law.”
  • Second, and relatedly, an “immediate appeal” would “materially advance the ultimate termination of the litigation.”
  • Third, “there is substantial ground for difference of opinion” on the preemption question.