FOIA CONFIDENTIAL TREATMENT REQUESTED BY SPECTRAXE LLC PURSUANT TO 17 C.F.R. PART 145

317375107 1

January 5, 2024

By CFTC Portal

Assistant Secretary of the Commission for FOI, 

Privacy and Sunshine Acts Compliance

U.S. Commodity Futures Trading Commission 

Three Lafayette Centre

1155 21st Street, N.W. 

Washington, DC 20581

RE: FOIA Confidential Treatment Request and Written Justification – SpectrAxe 

Dear Assistant Secretary:

SpectrAxe LLC (“SpectrAxe”) hereby requests that the U.S. Commodity Futures Trading Commission (the

“Commission”) accord confidential treatment under the Freedom of Information Act (the “FOIA”) to the

attached SpectrAxe Fee Schedule (the “Fee Schedule”) and SpectrAxe Price Maker Discount Program (the 

“Discount Program”), which were submitted to the Commission on this date pursuant to Commission 

Regulation 40.6. This request pertains to all material set forth in the Fee Schedule and Discount Program. 

SpectrAxe requests that confidential treatment be afforded as long as the Commission retains the Fee 

Schedule and Discount Program. In accordance with the Commission’s FOIA regulations, the Fee Schedule

and Discount Program each bear the designation “Confidential Treatment Requested by SpectrAxe LLC”. 

This request for confidential treatment under FOIA is made pursuant to Commission Regulation 145.9(d), 

as the Fee Schedule and Discount Program contain information that would reveal the trade secrets or 

confidential commercial or financial information of SpectrAxe and its affiliates.

The general test for determining whether commercial information is exempt from disclosure under FOIA 

pursuant to this exemption is whether release of the information would “cause substantial harm to the 

competitive positions of the person from whom the information was obtained.” Acumenics Research & Tech. 

v. Dep’t of Justice, 843 F.2d 800, 807 (4th Cir. 1988) (quoting National Parks & Conservation Ass’n v. 

Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)). There is no requirement to demonstrate actual competitive 

harm, rather “[a]ctual competition and the likelihood of substantial competitive injury is all that need to be 

shown.” Gulf & Western Indus., Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979). Information is 

considered confidential where (i) there is actual competition in the relevant market, and (ii) disclosure is 

likely to cause substantial competitive injury. Id. With regard to proof of potential injury, evidence 

demonstrating the potential for economic harm is sufficient, and neither the Commission nor the courts 

must conduct a sophisticated economic analysis to determine the likely effects of disclosure. Utah v. Bahe 

et al., 256 F.3d 967, 970 (10th Cir. 2001); Public Citizen Health Research Group v. Food & Drug Admin., 

704 F.2d 1280, 1291 (D.C. Cir. 1983).

The information contained in the Fee Schedule and the Discount Program include non-public information 

regarding business structure and financial costs relating to certain technological means for accessing 

SpectrAxe. SpectrAxe believes that disclosure of this information would provide its competitors with 
FOIA CONFIDENTIAL TREATMENT REQUESTED BY SPECTRAXE LLC PURSUANT TO 17 C.F.R. PART 145

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valuable insights regarding SpectrAxe’s clients, access to its products, and how SpectrAxe operates and 

funds its business. Disclosure of such information would allow other swap execution facilities insight into 

the strengths and weaknesses of SpectrAxe which could be used to achieve a competitive advantage. 

Disclosure of the Fee Schedule or Discount Program would thus result in precisely the type of competitive 

harm to SpectrAxe that the provisions of FOIA and 17 C.F.R. § 145.9(d)(ii) are designed to prevent. See 

National Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 684 (D.C. Cir. 1976) (prohibiting disclosure 

where it would “provide competitors with valuable insights into the operational strengths and weaknesses” 

of a company). Disclosure of the Fee Schedule or Discount Program would provide SpectrAxe’s 

competitors with an informational windfall at SpectrAxe’s expense that they are not entitled to under FOIA. 

See Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 52 (D.C. Cir. 1981) (“as a matter basic to our 

free enterprise system, private business information should be afforded appropriate protection, at least from 

competitors”). The Fee Schedule and the Discount Program thus fall squarely within the type of information 

that the provisions of FOIA and Commission Regulation 145.9(d)(ii) are designed to protect from disclosure.

For the foregoing reasons, SpectrAxe respectfully requests that the Commission maintain the confidential 

privilege afforded to this type of information and refrain from releasing the Fee Schedule or Discount 

Program as such action could prove harmful to SpectrAxe. 

If you have any questions, please do not hesitate to contact Cheryl L. Isaac, K&L Gates, LLP at +1-202-

778-9089 or cheryl.isaac@klgates.com, or the undersigned at +1-929-581-0340 or mlee@spectraxe.com.

Very truly yours,

Michael Lee

Chief Compliance Officer

SpectrAxe, LLC