Case 3:25-cv-06162-JSC Document 35 Filed 09/04/25 Page 18 of 34
v. Heckler , 725 F.2d 1489, 1509 (9th Cir.), cert. granted, judgment vacated on other grounds, 469
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U.S. 1082 (1984); U.S. Philips Corp. v. KBC Bank N.V. , 590 F.3d 1091, 1094 (9th Cir. 2010).
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Additionally, the Ninth Circuit “has adopted and applied a version of [a] sliding scale
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approach” in which “the elements of the preliminary injunction test are balanced, so that a stronger
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showing of one element may offset a weaker showing of another. For example, a stronger showing
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of irreparable harm to a plaintiff might offset a lesser showing of likelihood of success on the
merits.” Alliance For The Wild Rockies v. Cottrell , 632 F.3d 1127, 1131–1132 (9th Cir. 2011).
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a.
Likelihood of Success on the Merits
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“To establish a likelihood of success, plaintiffs need not conclusively prove their case or
show that they are ‘more likely than not’ to prevail.” Stewart v. City & Cnty. of San Francisco,
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California , 608 F. Supp. 3d 902, 911 (N.D. Cal. 2022), aff’d sub nom. Stewart v. City & Cnty. of
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San Francisco , No. 22-16018, 2023 WL 2064162 (9th Cir. Feb. 17, 2023) (citing Univ. of Texas
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v. Camenisch , 451 U.S. 390, 395 (1981)). “Rather, a ‘fair chance’ of success is the standard for
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granting preliminary injunctive relief.” Id. (quoting Benda v. Grand Lodge of Int’l Ass’n of
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Machinists & Aerospace Workers , 584 F.2d 308, 315 (9th Cir. 1978)).
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IGRA establishes the Tribes’ right to permanently enjoin class III gaming in violation of
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their respective Compacts or Secretarial Procedures. 25 U.S.C. § 2710(d)(7)(A)(ii). As articulated
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above, Kalshi’s contracts are presumptively contrary to the public interest and are, therefore,
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prohibited from being listed under the CEA and CFTC Regulations. As the licensed operator of its
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DCM, Kalshi has taken substantial steps toward attracting consumers interested in engaging in
sports betting activity, which is class III gaming activity. See Kretz Decl. 16, Ex. 16; 28-31, Ex.
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28-31; see also 25 C.F.R. § 502.4(c). The defects in Kalshi’s self-certifications and lack of CEA
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compliance arising therefrom, coupled with Kalshi’s targeting of the class III gaming market,
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compel the conclusion that Kalshi’s contracts constitute class III gaming which, on Indian lands,
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is expressly precluded by IGRA.
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Because IGRA precludes such unauthorized class III gaming, there is a substantial
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likelihood that the Tribes will prevail on the merits of their IGRA claim. Therefore, the relief
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9 NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES [ Case No.: 25-cv-06162-JSC]
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