Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 7 of 29
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action, and the CFTC has not taken final agency action with respect to the event contracts that Kalshi and other exchanges have been listing. Under the APA, “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704; Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys ., 603 U.S. 799, 808 (2024) (“Unless another statute makes the agency’s action reviewable . . ., judicial review is available only for final agency action.” (quotation omitted)); Prutehi Litekyan: Save Ritidian v. United States Dep’t of Airforce , 128 F.4th 1089, 1107 (9th Cir. 2025) (stating the APA “limits review to final agency action” (quotation omitted)). No one has pointed to anything in the CEA that makes the CFTC’s action or inaction on a listed contract subject to judicial review. And the CFTC has recently made clear that it has taken no final, definitive position on these contracts. CFTC Letter No. 25-36 (Sept. 30, 2025). The CFTC indicated that it is aware of the controversy surrounding these event contracts, including the various related lawsuits. Id. at 1-2. In footnote 4 of that letter, the CFTC stated that it “has not, to date, been requested to take or taken any official action to approve the listing for trading of sports-related event contracts on any DCM . . . . Id. at 2 n.4. The CFTC also stated: All sports-related event contracts that are currently listed for trading on DCMs have been listed pursuant to self-certifications filed by the relevant DCM . . . and the Commission has not, to date, made a determination regarding whether any such contracts involve an activity enumerated or prohibited under . . . 7 U.S.C. § 7a-2(c)(5)(C)(i) or Commission regulation 40.11(a), 17 CFR 40.11(a). Id. Consequently, there has been no final agency action so the APA provides no avenue for relief. Nor is the CFTC’s inaction on these contracts a basis to channel a suit solely through the APA. Where a person sues over an agency’s failure to act, “the APA expressly authorizes a
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