Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 15 of 29
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This is consistent with the congressional purposes behind the Dodd-Frank Wall Street Reform and Consumer Protection Act that added swaps to the CEA. Pub. L. No. 111–203, 124 Stat. 1376 (2010) (“Dodd-Frank”). Dodd-Frank was a “direct and comprehensive response to the financial crisis that nearly crippled the U.S. economy beginning in 2008.” S. Rep. 111-176, 2, 29-30 (Apr. 30, 2010). 4 A “major contributor to the financial crisis was the unregulated over- the-counter (“OTC”) derivatives market” that was “explicitly exempted” from the CFTC’s jurisdiction and posed a “systemic threat” to the U.S. economy. Id. Congress thus aimed Dodd- Frank at systemic risks in the financial sector that undermined U.S. financial stability, and the Act’s language should be interpreted through that lens. This view is further supported by the CFTC’s rulemaking after Congress added swaps to the CEA. The CFTC determined that certain consumer agreements, contracts, and transactions would not be considered swaps “when entered into by consumers . . . primarily for personal, family, or household purposes.” 5 Further Definition of “Swap,” “Security-Based Swap,” and “Security-Based Swap Agreement”; Mixed Swaps; Security-Based Swap Agreement Recordkeeping , 77 Fed. Reg. 48208-01, 48246, 2012 WL 3257776 (Aug. 13, 2012). The CFTC stated that in determining whether consumer transactions are swaps, it would consider factors such as whether the contracts at issue (1) “do not contain payment obligations, whether or not contingent, that are severable from the agreement, contract, or transaction”; (2) “are not traded the CFTC that not only a game but things that happen during a game have potential financial consequences. See, e.g. , ECF No. 152-8 at 2, 14. 4 Dodd-Frank is another name for The Restoring American Financial Stability Act of 2010. See Laborers’ Loc. v. Intersil , 868 F. Supp. 2d 838, 848 (N.D. Cal. 2012). 5 The CFTC did not specifically identify sports wagers as consumer contracts that are not swaps, but that may be explained by the fact that the CFTC had already issued its regulation at 17 C.F.R. § 40.11(a) that prohibits DCMs from listing contracts involving gaming. See Provisions Common to Registered Entities , 76 FR 44776-01, 44785, 2011 WL 3099850 (July 27, 2011).
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