Event Contracts & Derivatives Regulation
What the CFTC's Event Contracts Amicus Brief Is Missing
R Tamara de Silva | Law360 Expert Analysis | March 12, 2026
On February 17, 2026, the U.S. Commodity Futures Trading Commission filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in North American Derivatives Exchange Inc. v. Nevada, entering the event contracts litigation as a formal participant for the first time. The case asks whether state gambling laws may reach event contracts listed on CFTC-registered designated contract markets. The CFTC says no.
The brief argues that event contracts are swaps within the plain meaning of the Commodity Exchange Act and that the CEA field-preempts state gambling laws as applied to instruments traded on federally registered exchanges. Those arguments are aggressive and substantively important. But the brief's most consequential feature is what it declines to resolve.
Midway through its analysis, the CFTC acknowledges that it need not determine the outer boundary between instruments that qualify as swaps and those that might be characterized as wagers. That concession has implications well beyond this appeal. More than 3,000 event contracts are currently trading on designated contract markets. Every one of them now exists in a regulatory space where the federal overseer has confirmed, in a formal submission to a federal appellate court, that the line between its jurisdiction and state gambling authority remains officially undrawn.
This article analyzes the CFTC's statutory arguments, the preemption framework it advances, and the strategic logic behind the boundary the commission refused to draw. It also addresses the Loper Bright dimension of the commission's silence, the deepening circuit split, and the compliance implications for exchanges, clearinghouses, and intermediaries with event contract exposure.
Published in Law360 as part of the Expert Analysis series.
Read the full article (PDF): [PDF LINK HERE]
This article is for general informational purposes only and does not constitute legal advice. R Tamara de Silva is the Managing Attorney of De Silva Law Offices, LLC, a boutique financial regulatory law firm in Chicago.