I see what you mean about *commodities,* but I am not talking about those. I’m talking about *markets*–”exempt markets,” to be precise. As there are no such things as “excluded markets,” so that usage would err.

I still don’t understand what you’re getting at with regard to “exempt,” given that I’m talking only about a certain regulatory classification–exempt markets–and not about commodities of any particular type. So I think my usage comports with that of the CEA and the CFTC. There is no such thing as a “excluded market,” after all.

Jason: I draw a different, more general lesson from Zelener. It stands for the proposition that parties can avoid CFTC jurisdiction by carefully stepping outside what ought to be clearly defined boundaries. That’s true even if the transactions in question function much like the sorts of transactions the CFTC properly regulates. As the Zelener court noted, after all, the Forex transactions in question *did* typical resolve in offsets. The contracts did not expressly promise to allow for offsets, however, saving them from the CFTC’s reach.

My suggestion for dodging the CFTC’s jurisdiction operates on a different principle: By not dealing in contracts but rather in notes. Those are distinct legal entities, ones that competent attorneys and courts have no trouble keeping apart. And, importantly, the CFTC has no jurisdiction over transactions in notes.

Thanks for asking, but I really did mean to say “exempt markets.” Some such markets deal in “excluded” commodities, which must be what you were thinking of.