Case 3:25-cv-06162-JSC Document 35 Filed 09/04/25 Page 20 of 34
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contract involving gaming to comport with the public interest and, thereby, be lawful under the
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CEA and CFTC regulations, if such contracts constitute gaming activity that falls within the scope
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of IGRA and those contracts are offered on Indian lands, the contracts must comply with IGRA,
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its implementing regulations, the applicable compact or secretarial procedures, and the applicable
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tribal gaming ordinance. (“class III gaming activities shall be lawful on Indian lands only if such
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activities are- (A) authorized by an ordinance…that- (i) is adopted by the gaming body of the
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Indian tribe…”) (emphasis added). 25 U.S.C. § 2710 (d)(1). Kalshi’s contracts unequivocally do
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not comply with IGRA. Thus, even if the Court were to determine that Kalshi’s self-certifications
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comply with the CEA and CFTC regulations, Kalshi’s activity would still constitute class III
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gaming activity located on Indian lands and conducted in violation of the Tribes’ Compact,
Secretarial Procedures, and Gaming Ordinance. See 25 C.F.R. § 502.4(c). Therefore, the Tribes
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are likely to succeed on the merits of their IGRA claim.
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Additionally, the Tribes can demonstrate that the Defendants are liable for false
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advertising. The elements of a false advertising claim under section 1125(a)(1)(B) of the Lanham
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Act are: (1) a false statement of fact by the defendant in a commercial advertisement about its own
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or another’s product; (2) the statement actually deceived or has the tendency to deceive a
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substantial segment of its audience; (3) the deception is material, in that it is likely to influence the
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purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and
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(5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct
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diversion of sales from itself to defendant or by a lessening of the goodwill associated with its
products. Southland Sod Farms v. Stover Seed Co. , 108 F.3d 1134, 1139 (9th Cir. 1997). A plaintiff
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may establish the “falsity” of the advertisement in one of two ways—by “show[ing] that the
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statement was literally false, either on its face or by necessary implication, or that the statement
was literally true but likely to mislead or confuse consumers.” Id ; Suzie’s Brewery Co. v. Anheuser-
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Busch Companies, LLC , 519 F. Supp. 3d 839, 846 (D. Or. 2021) (“ Suzie’s Brewery ”).
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“When an advertisement is shown to be literally or facially false, consumer deception is
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presumed, and ‘the court may grant relief without reference to the advertisement’s [actual] impact
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11 NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES [ Case No.: 25-cv-06162-JSC]
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