Case: 25-1922 Document: 83 Page: 16 Date Filed: 09/24/2025
Page 15
1 know, they don't have to show that they're likely to win,
2 right? Just that they -- just that they have a significantly
3 better than negligible argument, are you saying that the -- the
4 position is not significantly better than negligible?
5
MR. EHRLICH: Well, I guess I would say two things. I
6 don't think we think that's the standard, and we quote a
7 contrary case in our briefs for likelihood of success, but I
8 also don't think it matters. I mean, it's a -- it's a pure
9 question of law in our view. Here, which would be de novo
10 regardless, and on a de novo review, the idea that Congress
11 inserted swaps to -- to put all gambling, make all casinos
12 felons and then preempted all state law would just not work,
13 for all the reasons that we've been talking about, and so I
14 think under any standard you would apply, it just, it wouldn't
15 meet it.
16
JUDGE CHAGARES: Great. Judge Roth, do you have
17 anything else?
18
JUDGE ROTH: I have nothing further. Thank you.
19
JUDGE CHAGARES: Okay. Great. Thank you. We'll get
20 you on rebuttal and we'll hear from the appellee now.
21
You may proceed.
22
MR. HAVEMANN: Good morning, Your Honors, may it
23 please the Court. Will Havemann, on behalf of Kalshi. The
24 District Court correctly held that Congress's decision to vest
25 the CFTC with, remember the statutory language, exclusive
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