Case 1:25-cv-01283-ABA Document 29 Filed 05/19/25 Page 10 of 17
intent given the uniform pre-2010 precedent holding that the exclusive jurisdiction provision “preempts the application of state law” regarding trading on DCMs. Leist v. Simplot , 638 F.2d 283, 322 (2d Cir. 1980) (Friendly, J.); Am. Agric. Movement , 977 F.2d at 1156-57 (any state law that “would directly affect trading on or the operation of a futures market” regulated by the CFTC “is preempted”); FTC v. Ken Roberts Co. , 276 F.3d 583, 590-91 (D.C. Cir. 2001) (“the CFTC’s jurisdiction was to be exclusive with regard to the trading of futures on organized contract markets ”). Defendants cite a CFTC release (at 19) for the proposition that swaps were only “meant to cover” events “in the heartland of the CFTC’s authority” like “a specific farmer’s crop yield.” See Concept Release, 73 Fed. Reg. 25,671 (May 7, 2008). But that is not a faithful account of the release, which contemplates contracts involving “a multitude of subcategories, such as political or entertainment . . . events .” Id. at 25,671 (emphasis added). The release adds that the CEA “supersedes and preempts other laws , including state and local gaming and bucket shop laws, with respect to transactions executed on or subject to the rules of a Commission-regulated market.” Id. at 25,673. Defendants cite (at 19) Senate floor statements during debate over the Dodd-Frank Act, claiming they evince an intent to exclude gaming contracts from the definition of swaps. But, even if relevant, the floor statements suggest the opposite. Two Senators noted that “gaming” contracts raise public-interest concerns, which the Senators recognized would be addressed by the Special Rule giving the “CFTC . . . the power” either to approve or prohibit them. See Cong. Rec. S5906-07 (daily ed. July 15, 2010) (statements of Senators Feinstein and Lincoln). 5 It is undisputed that Congress, in bringing swaps within the CFTC’s exclusive jurisdiction,
5 Available at: https://www.congress.gov/111/crec/2010/07/15/CREC-2010-07-15-senate.pdf.
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