Case 3:25-cv-06162-JSC Document 71 Filed 11/10/25 Page 12 of 13
transactions or swaps … that are based upon the occurrence, extent of an occurrence, or
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contingency.” 7 U.S.C. § 7a -2(c)(5)(C)(i). The Act has a “special rule for review and approval of
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event contracts” wherein the Commission “may determine” the event contracts “are contrary to the
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public interest” if they “involve” certain activity, including “gaming.” Id. § 7a-2(c)(5)(C)(i)(V).
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In light of this framework, Plaintiffs have not shown the Court has jurisdiction to decide
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whether Kalshi’s event contracts violate the C ommodity Exchange Act. That decision belongs to
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the Commodity Futures Trading Commission, which has “exclusive jurisdiction” ove r its contract
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markets. 7 U.S.C. §§ 2(a)(1)(A), (C)(ii). Plaintiffs point to no applicable exception. 3 Additionally,
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while Plaintiffs argue the event contracts are presumptively unlawful under the Act,
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“presumption” and any variation of that word are absent from the Commodity Exchange Act, its
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special rule for event contracts, or Commission regulations for self-certification. 7 U.S.C. § 7a-
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2(c)(5)(C)(i)(V); 17 C.F.R. § 40.2. The Commodity Exchange Act ’s special rule provides “the
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Commission may determine” event contracts are “contrary to the public interest . ” 7 U.S.C. § 7a-
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2(c)(5)(C)(i). Congress did not say courts could so determine or that the Commission must make a
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presumption. Rather, the only enforcement mechanism belongs to the Commission , which “may
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determine” that an event contract “be subject to a 90 - day review” period during which the contract
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listing is suspended pending a final determination. 17 C.F.R. § 40.11(c). “ To the extent the States
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or other interested parties object to Kalshi offering sports … event contracts, they must take that
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up with the [Commodity Futures Trading Commission] and Congress. Such policy issues are
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beyond the jurisdiction of this court. ” Hendrick , 2025 WL 1073495 at *8.
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As a final note, the Court does not take lightly Plaintiffs’ concerns about the effects
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Kalshi’s activities might have on tribal sovereignty and the Tribes’ finances. Indeed, by self-
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certifying the legality of its event contracts in way that insulates its activities from judicial review,
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3 After the hearing, Plaintiffs filed a “notice of supplemental authority,” attaching N. Am. Derivatives Exch., Inc. v. Nev. On Rel. of the Nevada Gaming Control Bd. , 2025 WL 2916151 (D. Nev. Oct. 14, 2025). (Dkt. No. 65.) The Court will not consider th at opinion’s statutory interpretation analysis for purposes of the preliminary injunction motion because the parties did not raise it in their briefing, and Plaintiffs attached the supplemental material after the hearing on this motion, in violation of the Northern District of California’s local rules. See Civil L.R. 7- 3(d)(2). Plaintiffs are free to brief this argument in relation to Defendants’ pending motions to dismiss.
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