Case: 25-1922 Document: 73 Page: 18 Date Filed: 08/14/2025
Kalshi’s response is unavailing. The company cites (at 25, 54) an- other statutory provision, arguing that because Congress expressly de- clined to preempt “the application of any” state statute to transactions “ not conducted on” a designated contract market or to entities that are “required to be registered” but “fail or refuse” to do so, the “only coherent inference is that the [Act] does preempt the application of state law to transactions that are conducted on” designated contract markets. But that provision does not apply to swaps, which is how Kalshi characterizes its sports bets. See 7 U.S.C. § 2(d); id. § 16(e)(1). So it cannot counter the opposite inference from the express-preemption provisions that do apply to swaps: “Congress’s decision to expressly preempt state gaming laws for certain transactions and state-insurance laws for swaps—compared to its silence as to all others—is strong evidence that Congress did not intend to” preempt “all state law.” Martin , 2025 WL 2194908, at *9; see 7 U.S.C. § 2(d). The Act’s two savings clauses reinforce that conclusion. Appellants’ Br. 32–34. The first preserves “the jurisdiction” of state authorities when acting outside the CFTC’s exclusive jurisdiction. See 7 U.S.C. § 2(a)(1)(A). Contrary to Kalshi’s argument (at 24, 55), it says nothing about the scope of “concurrent state and federal regulation” for transactions within the CFTC’s exclusive jurisdiction. But the second savings clause does: for ac- tivity that falls within the CFTC’s exclusive jurisdiction, Congress ex- pressly preserved “the jurisdiction” of state courts. Id. Both the district
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