433 West Van Buren Street › Suite 700S › Chicago, IL 60607 › cboe.com

November 1, 2023

Assistant Secretary of the Commission

 for FOIA Matters, Privacy and Sunshine Acts Compliance

Commodity Futures Trading Commission

Three Lafayette Centre

1155 21st Street, N.W.

Washington, D.C. 20581

Re: FOIA Confidential Treatment Request and Detailed Written Justification:

Appendix A to Cboe Futures Exchange, LLC

Rule Certification Submission Number CFE-2023-021

All:

Pursuant to § 40.8(c) and § 145.9(d) of the regulations promulgated by the Commodity 

Futures Trading Commission (“Commission” or “CFTC”) under the Commodity Exchange Act

(“CEA”) and pursuant to the Freedom of Information Act (“FOIA”), Cboe Futures Exchange, 

LLC (“CFE” or “Exchange”) hereby petitions the Commission for confidential treatment of

Appendix A (“Appendix A”) to CFE Rule Certification Submission Number CFE-2023-021

dated November 1, 2023 (“CFE-2023-021”).

CFE-2023-021, Appendix A, and this confidential treatment request and detailed written 

justification for confidential treatment have all been concurrently submitted to the Commission in 

accordance with Commission Regulation § 40.8(c)(1). Appendix A has been segregated from 

CFE-2023-021 in accordance with Commission Regulation § 40.8(c)(2). Additionally, in

accordance with Commission Regulation § 40.8(c)(3), CFE-2023-021 indicates that Appendix A 

to CFE-2023-021 has been segregated from that submission.

The information included in Appendix A (“Confidential Information”) should be afforded

confidential treatment based on, among other things, § 145.9(d)(1)(ii) of the Commission’s 

regulations, which implements FOIA Exemption 4 of the Freedom of Information Act (5 U.S.C.

§ 552(b)(4)), because disclosure would reveal trade secrets or confidential commercial or

financial information of CFE. This request is also consistent with Section 8 of the CEA.

Exemption 4 protects “trade secrets and commercial or financial information obtained 

from a person” that is “privileged or confidential.” For purposes of Exemption 4, the term 

“commercial information” is given its ordinary meaning.1

 The D.C. Circuit has also firmly held 

that § 145.9(d)(1)(ii) is not confined to records that “reveal basic commercial operations,” holding 

instead that records are commercial so long as the provider of the information has a “commercial

1 Dow Jones Company, Inc. v. Federal Energy Regulatory Commission, 219 F.R.D. 167, 176 (C.D. Cal. 2003)

(citing Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)).
2

interest” in the information submitted.2

 A commercial interest is present where, for example,

disclosure of the relevant documents could aid competitors to identify and exploit a company’s 

competitive position in the market.3 The Exchange has a “commercial interest” in the

Confidential Information, and it falls under the definition of “commercial” or “financial” 

information for purposes of Exemption 4. Appendix A sets forth a market maker program for a 

product traded on CFE. The Confidential Information includes the financial terms of this market

maker program. Among other things, the Confidential Information is commercially valuable 

because it took significant time and effort to develop. Other trading venues offer or may offer

products that compete with CFE’s product. Competition in this regard includes the provision of 

incentives to liquidity providers to trade in CFE’s product in a manner that enhances market 

quality in CFE’s product to the benefit of all market participants in that product. Disclosure of

the terms of CFE’s market maker program could aid these competitors in identifying and 

exploiting CFE’s competitive position in the market for this type of product and similar products

and in relation to attracting and retaining liquidity providers for CFE’s product.

Additionally, Appendix A also qualifies as “confidential” for purposes of Exemption 4. 

Information submitted to the CFTC is considered confidential under Exemption 4 if it is 

customarily kept private, or at least closely held, by the person imparting it.

4 The U.S. Supreme 

Court has referred to the definitions “known only to a limited few”, “not publicly disseminated”, 

and “intended to be held in confidence or kept secret” as examples of definitions that elucidate

this standard.5

 Consistent with this standard, CFE both customarily and actually treats as private 

the market performance benchmarks and benefits provided under the market maker program set 

forth in Appendix A. It is customary for designated contract markets and swap execution

facilities not to make available to the public the market performance benchmarks and benefits 

provided pursuant to their market maker programs. For competitive and commercial reasons, 

CFE follows the same practice and will do so for the market maker program set forth in Appendix 

A and any subsequently adopted or amended market maker programs.

Disclosure of the commercial terms of the market maker program described in Appendix 

A holds the potential for significant competitive harm to the Exchange as it would allow 

competitors of the Exchange to view the commercial terms of the market maker program and 

potentially undermine any competitive advantage obtained by the Exchange. CFE voluntarily 

provided Appendix A to the Commission in connection with a rule certification to the 

Commission to demonstrate compliance with the CEA and relevant Commission regulations. 

Furthermore, it should be noted that there is no regulatory requirement that this information be

publicly disclosed.

2 Baker & Hostetler LLP v. United Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006); Nat’l Ass’n of 

Home Builders v. Norton, 309 F.3d 26, 38 (D.C. Cir. 2002); Pub. Citizen Health Research Group v. FDA,

704 F.2d 1280, 1290 (D.C. Cir. 1983) (citing Wash. Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982) 

and Bd. of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392, 403 (D.C. Cir. 1980)). See also

Soghoian v. Off. of Mgmt. & Budget, 932 F. Supp. 2d 167, 174-75 (D.D.C. 2013) (“Commercial 

information withheld under Exemption 4 includes any document that ‘in and of itself’ serves a 

“’commercial function or is of a commercial nature’”); Brockway v. Dep’t of the Air Force, 370 F.Supp. 

738, 740 (N.D. Iowa 1974) (concluding that reports generated by commercial enterprise “must generally be 

considered commercial information”), rev’d on other grounds, 518 F.2d 1184 (8th Cir. 1975).

3 Baker & Hostetler, 473 F.3d at 319-20.

4 Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2363 (2019).

5 Id. at 2363.
3

CFE hereby requests that Appendix A be afforded confidential treatment in perpetuity.

CFE requests that the Commission notify CFE upon the receipt of any request by any 

party for any access under FOIA to the Confidential Information or any court order, subpoena, or 

summons for disclosure of the Confidential Information for the entire duration that the 

Commission retains the Confidential Information. CFE further requests notification in the event 

that the Commission intends to disclose the Confidential Information in whole or in part to

Congress or to any other governmental agency or unit pursuant to Section 8 of the CEA. CFE 

does not waive its notification rights under Section 8(f) of the CEA with respect to any subpoena 

or summons for the Confidential Information. This confidential treatment request shall also not be 

construed as a waiver of any other protection from disclosure or confidential treatment accorded 

by law, and CFE may rely on and invoke any such confidentiality protection.

The address at which CFE can be reached is as follows:

Cboe Futures Exchange, LLC

433 West Van Buren Street, Suite 700S

Chicago, Illinois 60607

Attention: General Counsel

Please contact the undersigned at (484) 798-9350 or swilkerson@cboe.com if you have 

any questions regarding this request.

Very truly yours,

/s/ Shane M. Wilkerson

Shane M. Wilkerson

Senior Counsel