Case 2:25-cv-00575-APG-BNW Document 237 Filed 11/24/25 Page 24 of 29
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the control of the parties to the relevant contract and associated with a financial consequence sold for “future delivery.” It is not logical to state that Kalshi is offering contracts of sale of a sports event (or its outcome) for future delivery. Thus, Kalshi’s gaming contracts do not qualify as “contracts of sale of commodities for future delivery” under § 2(a). Ruling that the CFTC does not have exclusive jurisdiction over excluded commodities under § 2(a) does not oust the CFTC from regulating excluded commodities. The CFTC would still have jurisdiction over DCMs who list such agreements under § 7(d)(1), just not exclusive jurisdiction under § 2(a). Thus, the Board has established that Kalshi is not likely to succeed in showing that Kalshi’s contracts fall within the CFTC’s exclusive jurisdiction under § 2(a) even if they are excluded commodities. D. Kalshi has shown serious questions on the merits. Although I conclude Kalshi has not shown a likelihood of success, it has raised serious questions on the merits. The issues in this and similar cases are complex, novel, and evolving. Kalshi has raised serious questions about how to properly interpret the statutory language, to divine congressional intent, and to resolve the tension between what constitutes state-regulated gambling versus federally regulated derivatives. I therefore address the other factors regarding whether to grant a TRO under the sliding scale approach of Alliance for the Wild Rockies. V. THE BALANCE OF HARDSHIPS DOES NOT TIP SHARPLY IN KALSHI’S FAVOR AND THE PUBLIC INTEREST DOES NOT FAVOR AN INJUNCTION. Because Kalshi has shown serious questions on the merits, the Board must show that the balance of hardships does not tip sharply in Kalshi’s favor. It also must show that the public interest does not favor the injunction. The Board has met its burden on these factors.
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