Case 1:25-cv-01283-ABA Document 29 Filed 05/19/25 Page 8 of 17
jurisdiction over event contracts “traded or executed” on a DCM, 7 U.S.C. § 2(a)(1)(A). IGRA’s definition of “gaming” does not refer to sports event contracts, 25 U.S.C § 2703(7)-(8), and even if it did, the CEA’s exclusive jurisdiction provision would displace any attempt by tribes to regulate those contracts. The argument (at 16) that the “specific governs the general” fails for similar reasons. The CEA’s grant of exclusive jurisdiction to the CFTC over trading on DCMs is more specific than the federal laws generally regulating gambling outside of DCMs. Defendants suggest (at 18) that Kalshi’s position would result in an elephant hidden in a mousehole. But the preemption of state gaming laws as applied to the narrow category of trading event contracts on DCMs is not an elephant—it leaves state gaming laws, the Wire Act, and IGRA operative in the vast majority of applications. Nor is anything hidden—Congress’s preemption of state laws as applied to event contracts is the clear consequence of the addition of “swaps” to the CFTC’s exclusive jurisdiction. The change in the landscape derives not from the CFTC’s exclusive jurisdiction over trading on DCMs, but rather from the recent laws in states like Maryland legalizing sports betting in the wake of the Supreme Court’s decision in Murphy v. National Collegiate Athletic Association , 584 U.S. 453, 486 (2018). Defendants claim (at 17) that noscitur a sociis limits the definition of a “swap” to contracts with “consequences that directly affect ‘rates, currencies, commodities, securities, instruments of indebtedness, indices, [or] quantitative measures.’” But that argument ignores that the definition of a swap broadly encompasses events “associated with a potential financial, economic, or commercial consequence.” See 7 U.S.C. § 7a-2(c)(5)(C)(i) (emphasis added). The canon of superfluity likewise does not apply: Sections 1a(47)(A)(i) and (iii) apply to contracts based on the “value” or “level” of certain financial instruments. Section 1a(47)(A)(ii), on the other hand, applies to contracts based on the “occurrence, nonoccurrence, or the extent of the
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