Case: 25-1922 Document: 83 Page: 24 Date Filed: 09/24/2025
Page 23
1 You know, and then that's going to impact folks economically,
2 but just how granular do you need to get? I mean I've seen
3 your -- the website, and you know there's a lot of really very
4 specific things.
5
MR. HAVEMANN: Yeah, I -- so I think that Congress, as
6 you noted, Chief Judge, used a broad definition, but that
7 definition does not encompass everything. It still has to have
8 potential financial consequences. I'm sure that there is a de
9 minimis, you know, respect in which it may, even if you put
10 money on a bet or something like that, that's not what Congress
11 has in mind.
12
It also has to be outside of the control of the
13 parties. So that's another limitation, and then there's a
14 whole list of exclusions from that definition, and then they
15 give the CFTC authority to -- to create further exclusions,
16 which the CFTC has done, and it has done in a way, by the way,
17 that would probably even if you thought we were in a world
18 where the CFTC has authority over off exchange transactions,
19 they've probably exempted all of this stuff anyway.
20
But the key statutory sort of distinction that
21 Congress has drawn since 1974 is, if it's on exchange, it's
22 subject to the CFTC'S jurisdiction. If it's off exchange, the
23 states can regulate it, and that is a sensible result, we
24 think, and it is certainly, you know, they invoke the absurdity
25 canon, and it's certainly nothing like the sort of evidence
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