Case 2:25-cv-00978-APG-BNW Document 42 Filed 08/04/25 Page 10 of 26
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any other board of trade, exchange, or market, and transactions subject to regulation by the [CFTC] pursuant to section 23 of [the CEA]. 7 U.S.C. § 2(a)(1)(A) (emphasis added). In KalshiEX, LLC v. Hendrick , this Court found this “plain and unambiguous language grants the CFTC exclusive jurisdiction over accounts, agreements, and transactions involving swaps or contracts of sale of a commodity for future delivery” traded on a CFTC-designated exchange. 2025 WL 1073495, at *5 (D. Nev. Apr. 9, 2025) (hereinafter “ Kalshi v. Hendrick I ”). The pleadings in this case, and judicially-noticeable facts, establish that the Sports Event Contracts traded on CDNA are exactly that—swaps traded on a DCM. See supra pp. 4–7. Accordingly, Section 2 of the CEA expressly preempts states from asserting their authority to regulate these contracts. 7 U.S.C. § 2(a)(1)(A). This case really is as simple as that. 2. Nevada Gaming Laws Are Field Preempted as Applied to CDNA. Even if express preemption somehow did not apply, field preemption does. Field preemption is implied “[w]hen the federal government completely occupies a given field or an identifiable portion of it.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation and Dev. Comm’n , 461 U.S. 190, 212–13 (1983). “[T]he ultimate touchstone of pre-emption analysis” is the “purpose of Congress.” Nat’l Fed’n of the Blind v. United Airlines Inc. , 813 F.3d 718, 724 (9th Cir. 2016) (quoting Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516 (1992)). Congress’s intent to occupy a field can be expressed in a statute’s text and legislative history, see e.g. , Pac. Gas & Elec. Co. , 461 U.S. at 203–13, or in a scheme of “federal statutory directives” that “provide a full set of standards” that are “designed as a ‘harmonious whole,’” Arizona, 567 U.S. at 401 (quoting Hines v. Davidowitz , 312 U.S. 52, 72 (1941)). “Where Congress occupies an entire field . . . even complementary state regulation is impermissible.” Id. The CEA’s text and legislative history, as well as the comprehensive nature of its regulatory framework, illustrate Congress’s clear intent to occupy the field of derivatives trading on federally designated contract markets. Statutory Text . The same provisions discussed with respect to express preemption demonstrate Congress’s intent to preempt the field of derivatives traded under CFTC oversight. It could not be clearer—Section 2 affords “exclusive jurisdiction” to the CFTC over derivatives
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