Case: 25-1922 Document: 83 Page: 26 Date Filed: 09/24/2025
Page 25
1 preempted is not, all derivatives transactions or not
2 everything that touches a derivatives transaction, the field is
3 instead the regulation of trading on a DCM, and I think that
4 what courts immediately recognized and then there were
5 subsequent amendments to the CEA that codified that
6 recognition, is that when you are applying a state law fraud
7 claim to fraud that happens to happen, that happens to happen
8 on a DCM, then you're not really regulating futures trading on
9 a DCM, you're regulating fraud that happens to happen there.
10 It's not a direct regulation, and that's what courts -- that's
11 how courts interpreted the CEA right from the beginning, right
12 from 1974 when it added the exclusive jurisdiction provision.
13 And then Congress codified that, in subsequent amendments to
14 the CEA, like where it provided certain authority to states,
15 including the authority, of course, to bring state common law
16 claims under their fraud laws when it enacted Section 16 in
17 1983, which refers to state common law fraud -- common law
18 fraud actions.
19
JUDGE PORTER: When I asked you for examples of kinds
20 of sports betting that -- that aren't included within a swap, I
21 guess I really only heard you say, kind of, player props. So I
22 guess I can understand -- I'm not saying you need to apologize
23 for this. If it's preempted, it's preempted, but I can
24 understand why New Jersey thinks, man, you've sort of taken
25 everything that we're accustomed to regulating. Does that sort
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