Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 12 of 43
complex, six-part definition outlining which agreements, contracts, or transactions qualify as “swap[s].” See 7 U.S.C §1a(47)(A). And, in a cor- responding move, Congress made it generally “unlawful” for people to en- ter into swaps outside of a CFTC-regulated contract market. 7 U.S.C. §2(e); see also CFTC Br.4. At the same time, Congress added statutory language empowering the CFTC to prohibit certain contracts if they “involve,” among other topics, “gaming.” 7 U.S.C. §7a-2(c)(5)(C)(i). In discussing this change, lawmak- ers noted their desire to prevent “gambling through supposed ‘event con- tracts,’” including “gaming contract[s],” which are “used predominantly by speculators or participants not having a commercial or hedging inter- est.” See 156 Cong. Rec. S5902, S5906–07 (daily ed. July 15, 2010) (em- phasis added) (statements of Sen. Blanche Lincoln and Sen. Dianne Fein- stein). II. Since receiving authority over swaps in 2010, the CFTC has taken a constrained view of what fits within that category. For example, shortly after its jurisdiction increased, the CFTC promulgated a rule prohibiting designated contract markets from listing any contract “that involves, re- lates to, or references … gaming.” 17 C.F.R. §40.11(a). This prohibition,
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