Case 2:25-cv-00978-APG-BNW Document 105 Filed 10/14/25 Page 8 of 27
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been appealed. KalshiEX LLC v. Flaherty , No. 25-1922 (Third Cir.); KalshiEX LLC v. Martin , No. 25-1892 (Fourth Cir.). The Third Circuit heard oral arguments on September 10, 2025, but has not yet issued a decision. The Fourth Circuit appeal is still in briefing. Despite my prior ruling in Hendrick , I reach a different conclusion in this case. For the reasons discussed below, I deny Crypto’s motion for judgment on the pleadings and for a preliminary injunction.
II. CRYPTO’S EVENT CONTRACTS BASED ON THE OUTCOME OF LIVE EVENTS ARE NOT SWAPS FALLING WITHIN THE CFTC’S EXCLUSIVE JURISDICTION.
“A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party’s pleadings as true, the moving party is entitled to judgment as a matter of law.” Fajardo v. Cnty. of Los Angeles , 179 F.3d 698, 699 (9th Cir. 1999). When, as here, the plaintiff moves for judgment on the pleadings, I look to the defendants’ allegations in their answer. See Nat’l Lifeline Ass’n v. Batjer , No. 21-15969, 2023 WL 1281676, at *2 (9th Cir. Jan. 31, 2023) (“Because [the plaintiff] moved for judgment on the pleadings, this court looks to the allegations in the Defendants’ pleadings, here their answer.”). To qualify for a preliminary injunction, a party must demonstrate: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm, (3) the balance of hardships favors the movant, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). Alternatively, under the sliding scale approach, the plaintiff must demonstrate (1) serious questions on the merits, (2) a likelihood of irreparable harm, (3) the balance of hardships tips sharply in the plaintiff’s favor, and (4) an injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011).
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