Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 38 of 110
are “swaps,” “option[s],” or “contracts of sale of a commodity for future de-
livery” so that the CEA applies, and (2) if the CEA applies, it preempts all
state gaming law as to them. Kalshi cannot show either.
Kalshi’s position has a fundamental problem: It is so sweeping that
it would give the CFTC all authority over sports betting, to the exclusion of
States and Tribes. 1-ER-2. That is why three of the four courts to address
this issue have concluded that Kalshi’s argument cannot possibly be correct.
See 1-ER-3; KalshiEX LLC v. Martin , 793 F. Supp. 3d 667 (D. Md. 2025),
appeal docketed , No. 25-1892 (4th Cir. Aug. 6, 2025); Order, Massachusetts
v. KalshiEX LLC , No. 2584CV02525 (Mass. Sup. Ct. Suffolk Cnty. Jan. 20,
2026) (Mass. PI Order) (available at Dkt. 32); but see KalshiEX LLC v. Fla-
herty , 2025 WL 1218313 (D.N.J. Apr. 28, 2025), appeal argued , No. 25-1922
(3d Cir. Sept. 10, 2025) (relying on the early, now-reversed decision in this
case).
Courts presume that Congress did not preempt state law, “particu-
larly” in cases involving “a field which the States have traditionally occu-
pied.” Medtronic, Inc. v. Lohr , 518 U.S. 470, 485 (1996) (internal quotation
marks omitted). Courts also require Congress to speak clearly when it gives
an agency authority to regulate a field of “vast economic and political sig-
nificance.” West Virginia v. EPA , 597 U.S. 697, 716 (2022) (internal quota-
tion marks omitted).
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