Case 2:25-cv-01541-JCM-DJA Document 7 Filed 08/19/25 Page 20 of 31
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the scope of preemption is the field of commodity futures and swaps trading, including event contract trading, on CFTC-designated exchanges. First , the CEA provides expressly that the CFTC “shall have exclusive jurisdiction” over commodity futures and swaps trading on CFTC-designated exchanges. 7 U.S.C. § 2(a)(1)(A). Express provisions of this type are regularly held to preempt state law. See, e.g. , BNSF Ry. Co. v. Cal. Dep’t of Tax & Fee Admin. , 904 F.3d 755, 765-66 (9th Cir. 2018) (describing statute’s grant of “exclusive” jurisdiction as a “broad and general” preemption provision); Slaney v. Int’l Amateur Athletic Fed’n , 244 F.3d 580, 594-95 (7th Cir. 2001) (holding that statute’s “exclusive jurisdiction” provision preempts state law claims). This express preemption provision includes event contracts, which are “transactions involving swaps or contracts of sale of a commodity for future delivery,” over which the CFTC has “exclusive jurisdiction” when “traded or executed on a [designated] contract market.” 7 U.S.C. § 2(a)(1)(A). The term “swap” includes “any agreement, contract, or transaction” that (among other things) “provides for any purchase, sale, payment, or delivery (other than a dividend on an equity security) that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence.” Id. § 1a(47)(A)(ii). The term “swap” was added to the CEA in 2010 by the Dodd-Frank Act. See Pub. L. No. 111-203, §§ 721(a)(21) (adding the definition of “swap” in 7 U.S.C. § 1a(47)), 722(a)(1)(D) (adding “swaps” to the exclusive jurisdiction provision in 7 U.S.C. § 2(a)(1)(A)), 124 Stat. 1376, 1666, 1672. Alternatively, or in addition to being swaps, event contracts may be considered transactions in a type of intangible commodity that the CEA calls an “excluded commodity.” See United States v. Wilkinson , 986 F.3d 740, 745 (7th Cir. 2021) (reviewing “excluded commodities” under the CEA). An “excluded commodity” includes “an occurrence, extent of an occurrence, or contingency (other than [certain exceptions]) that is (I) beyond the control of the parties to the relevant contract, agreement, or transaction; and (II) associated with a financial, commercial, or economic consequence.” 7 U.S.C. § 1a(19)(iv).
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