Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 6 of 29
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contracts. That provision states that a swap is “any agreement, contract, or transaction . . . that provides for any purchase, sale, payment, or delivery . . . 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 U.S.C. § 1a(47)(A)(ii). I interpreted the word “occurrence” to mean something happened. Id. at 8. I interpreted the word “event” to mean “a happening of some significance that took place or will take place, in a certain location, during a particular interval of time, such as a particular sporting event or an organized activity or celebration for the public or a particular group.” Id. I rejected the proposed definition that an “event” can be an “outcome,” and in the specific context of sports, I ruled that the “event” would be “the sporting event itself, not who wins it.” Id. (“An ordinary American interpreting the word ‘event’ would conclude that the Kentucky Derby is an event. But who wins the Kentucky Derby is an outcome of that event, not a separate event in and of itself.”). Kalshi raises several arguments as to why I should not evaluate whether Kalshi’s contracts qualify as swaps, why it believes I erred in Crypto , and why I should consider other parts of the CEA to conclude that Kalshi’s sports-based event contracts fall within the CFTC’s exclusive jurisdiction. I address each in turn. A. The Administrative Procedure Act is not the Board’s only avenue to litigate whether Kalshi’s sports-related event contracts fall within the CFTC’s exclusive jurisdiction. Kalshi argues that the only mechanism for the Board to challenge the CFTC’s action or inaction in relation to the listing of event contracts on a CFTC-designated exchange like Kalshi’s is through a claim under the Administrative Procedures Act (APA). The Board responds that courts routinely review statutory language to conduct a preemption analysis without requiring that be done through an APA claim. They also argue that an APA claim requires final agency
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