USCA4 Appeal: 25-1892
Doc: 16
Filed: 10/15/2025
Pg: 28 of 97
Third , before the CFTC’s contemplated rulemaking was finalized, Congress in the Dodd-Frank Act of 2010 added exchange-traded swaps to the CFTC’s exclusive jurisdiction . See 124 Stat. 1376, 1666. That represented a reversal, following the 2008 financial crisis, of the CFTC’s prior decision to exempt swaps categorically from CFTC oversight. See Inv. Co. , 891 F. Supp.
2d at 173-174. Section 2(a) now provides that the CFTC “ shall have exclusive
jurisdiction … with respect to … transactions involving swaps … traded or
executed on a contract market designated ” by the CFTC.
7 U.S.C.
§ 2 (a)(1)(A). Congress defined “swap” to encompass, among other things,
contracts providing for payment “dependent on the occurrence … of an event
or contingency associated with a potential financial, economic, or commercial consequence.” Id. § 1a(47)(A)(ii). That language echoed the language Congress added to the “excluded commodity” definition in 2000. Id. § 1a(19)(iv). Dodd- Frank also created a “Special Rule” regarding certain “swaps in excluded commodities that are based upon … occurrence[s] ”— i.e. , “ [e]vent contracts .” Id. § 7a-2(c)(5)(C)(i). Recognizing that certain categories of
event contracts warranted closer CFTC scrutiny, Congress authorized the
CFTC to review and prohibit six categories of contracts if it concludes they are “contrary to the public interest.” Id. § 7a-2(c)(5)(C)(ii). The Special Rule
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