Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 9 of 29
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(quotation omitted). Therefore, Big Lagoon is distinguishable and does not prohibit the Board’s action where the relevant federal agency has not and is not required to have taken final action. Further, regardless of whether the CFTC took final action, I disagree that the Board’s only route for relief is through the APA. Concluding that a defense to Kalshi’s preemption argument must be brought solely through the APA puts the cart before the horse. To decide if something falls within the CFTC’s jurisdiction to potentially preempt state law, courts must interpret the CEA because the CEA specifically defines that jurisdiction. Additionally, Congress, through the CEA, defined what is a swap, and nothing in the CEA gives the CFTC the exclusive power to interpret the statutory language defining words like “swap.” See Crypto , 2025 WL 2916151, at *6, 11. Kalshi (and Robinhood in the related case) assert that the CEA expressly delegates to the CFTC the exclusive power to decide whether products listed on a DCM qualify as swaps or other regulated derivatives. They contend the CEA does so through the provisions that delegate to the CFTC the authority to oversee the listing of new contracts, including through the self- certification process. They note that under 7 U.S.C. § 7a-2(c)(5)(B), Congress directed that the CFTC “shall approve a new contract . . . unless the [CFTC] finds that the new contract . . . would violate [the CEA or the CFTC’s regulations].” But that speaks to what the CFTC must do, not what a court can or must do. It also refers to the CFTC’s “approval” of a contract, not the CFTC’s inaction on a self-certification. A registered entity can seek the CFTC’s prior approval of a contract, and the CFTC can conduct a post-listing review. See 7 U.S.C. §§ 7a-2(c)(4), (c)(5)(C). Thus, § 7a-2(c)(5)(B) provides that if the CFTC reviews a listing, either pre- or post- listing, it must approve the contract unless it finds the listing violates the CEA or CFTC regulations.
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