Case: 25-1922 Document: 73 Page: 27 Date Filed: 08/14/2025
583, 591 (D.C. Cir. 2001) (jurisdiction of CFTC versus FTC); Chicago Mer- cantile Exch. v. SEC , 883 F.2d 537, 548 (7th Cir. 1989) (jurisdiction of CFTC versus SEC). Despite Kalshi’s (at 28) truncated quotations, their meaning is clear: Congress’s goal was to “‘avoid unnecessary, overlapping and duplicative regulation,’ especially as between the Securities and Ex- change Commission and the new CFTC.” 9 Ken Roberts , 276 F.3d at 588. But when it comes to historic state regulation, “the weight of the evidence strongly confirms that Congress did not intend for Dodd-Frank” to “le- galiz[e] sports betting nationwide” nor “displac[e] states’ authority to reg- ulate it” entirely. Martin , 2025 WL 2194908, at *11. 3. New Jersey Law Does Not Conflict With The Act. With no express preemption and no comprehensive scheme demon- strating field preemption, Kalshi is left with conflict preemption. But the case for conflict preemption is weak. In the very 2010 Dodd-Frank amendments on which Kalshi relies, Congress specifically empowered the CFTC to prohibit the exact type of sports-wagering contracts Kalshi offers here. Appellants’ Br. 48–49. And the CFTC exercised its authority to do exactly that: a “registered entity shall not list for trading” a “swap” that “involves, relates to, or references,” among others, “gaming, or an 9 To the extent the CFTC wrongly believes that the Act field preempts state laws, its opinion is irrelevant. Appellee Br. 27. Even through the Chevron era, courts never “deferred to an agency’s conclusion that state law is pre-empted.” Wyeth , 555 U.S. at 576; AT&T Corp. v. Core Commc’ns, Inc. , 806 F.3d 715, 728 n.82 (3d Cir. 2015).
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