Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 26 of 110
Reform and Consumer Protection Act 3 (2017). To capture the various forms
of swaps in the market, Congress provided a detailed, six-part definition of
“swap.” 7 U.S.C. § 1a(47)(A). If a contract qualifies as a swap, option, or
future, it only can be traded on a CFTC-registered DCM (unless both parties
are banks, major corporations, or the like). See id. § 2(e) (swaps); id. § 6(a)
(futures); 17 C.F.R. § 33.3(a) (options).
To offer a contract for trading, a DCM can self-certify that the contract
complies with the CEA and immediately start trading, without any action
by the CFTC. 7 U.S.C. § 7a-2(c)(1)-(2). In its self-certification, the DCM
must identify whether the contract is a swap, option, or future. See 17
C.F.R. § 38.4(b). The CFTC can review a self-certification and disallow a
contract that fails to comply with the CEA’s requirements. 7 U.S.C. § 7a-
2(c)(3). Further, under the “Special Rule,” the CFTC may disallow a con-
tract that involves “activity that is unlawful under any Federal or State
law,” “terrorism,” “assassination,” “war,” or “gaming.” Id. § 7a-2(c)(5).
The CFTC has repeatedly recognized that it is not a gaming regulator
and that gaming should not occur on DCMs. Exercising its authority under
the Special Rule, the CFTC categorically prohibited contracts “that in-
volve[], relate[] to, or reference[]” “gaming.” 17 C.F.R. § 40.11(a). Further,
the CFTC explained that it “does not believe that it has the statutory man-
date nor specialized experience appropriate to oversee” gaming. Event Con-
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