Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 23 of 29
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if its sports-based event contracts do not qualify as excluded commodities, then the special rule in 7 U.S.C. § 7a-2(c)(5)(C) does not work with respect to contracts involving gaming. But a contract on whether the World Series of Poker will occur this year would be such a contract. The World Series of Poker has inherent financial consequences because the host (Caesars Entertainment) charges entrance fees to participants. And it involves gaming. Further, even if Kalshi’s contracts are deemed excluded commodities, § 2(a) does not state that the CFTC has exclusive jurisdiction over excluded commodities, which are defined separately from commodities. Congress could have included excluded commodities in § 2(a) but it did not. See S.E.C. v. McCarthy , 322 F.3d 650, 656 (9th Cir. 2003) (“Congress’s explicit decision to use one word over another in drafting a statute is material.”). Given the subject matter of excluded commodities, that distinction makes sense. The CFTC does not have exclusive jurisdiction over interest or exchange rates, currencies, securities, or macroeconomic indicators. Nor does it have exclusive jurisdiction over the subject matter in the special rule related to excluded commodities, such as activity that is unlawful under federal or state law, terrorism, assassination, war, or gaming. See 7 U.S.C. 7a-2(c)(5)(C). Although an “excluded commodity” could be thought of as a subset of “commodity,” substituting “excluded commodity” for “commodity” in § 2(a) does not grammatically or logically make sense. Excluded commodities do not involve things that are “contracts of sale of a commodity for future delivery.” 7 U.S.C. § 2(a). Interest rates, exchange rates, credit risks, inflation indexes and measures, and other macroeconomic indexes or measures are not sold “for future delivery.” Nor are occurrences, extents of occurrences, or contingencies that are beyond
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(referring to excluded commodities as “primarily financial commodities but also commodities such as weather”).
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