Case 3:25-cv-02121-VDO Document 58-1 Filed 01/16/26 Page 14 of 29
CEA’s definition of “swap”—and thus the CFTC’s jurisdiction over such transactions—simply does not extend to Coinbase’s sports bets. Both the Supreme Court and Second Circuit apply the “strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.” Epic Sys. Corp. v. Lewis , 584 U.S. 497, 510 (2018) (internal quotations omitted); Garfield v. Ocwen Loan Servicing, LLC , 811 F.3d 86, 89 (2d Cir. 2016) (“When it is claimed that a later enacted statute creates an irreconcilable conflict with an earlier statute, the question is whether the statute, by implication, has repealed all or, more typically, part of the earlier statute.”); Auburn Hous. Auth. v. Martinez , 277 F.3d 138, 144–45 (2d Cir. 2002) (recognizing the “‘cardinal rule’ that repeal by implication is disfavored”). Congress’s intent to repeal must be “clear and manifest.” Epic Sys. , 584 U.S. at 510 (internal quotations omitted). “Congressdoes not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Id. at 515 (internal quotations omitted); see also Garfield , 811 F.3d at 89 (“In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” (quoting Morton v. Mancari , 417 U.S. 535, 550 (1974))). Here, IGRA and the CEA can easily be harmonized by reading the CEA to exclude sports betting, consistent with longstanding CFTC regulations. 1. Coinbase’s sports-betting contracts are not “swaps.” As relevant here, the CEA defines “swap” as “any agreement, contract, or transaction … that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence.” 7
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