Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 54 of 110
a DCM self-certifies a new contract for trading, it must identify whether the
contract is a swap, option, or future. See 17 C.F.R. § 38.4(b). The statutory
definition of “swap” expressly excludes futures and options, see 7 U.S.C.
§ 1a(47)(B)(i), and the CFTC has different certification requirements for
each contract type, see 17 C.F.R. pt. 38, App’x C. Kalshi self-certified all of
its contracts as “swaps”—not futures or options—in order to list them for
trading. CFTC, Designated Contract Market Products—KEX , bit.ly/
3YPbRoo (visited Jan. 22, 2026). Kalshi cannot now make a contrary argu-
ment to this Court. See Rissetto v. Plumbers & Steamfitters Loc. 343 , 94
F.3d 597, 604 (9th Cir. 1996) (judicial estoppel applies to representations
made to an agency).
In any event, Kalshi’s argument is wrong for three reasons. First, its
contracts do not involve excluded commodities. The relevant definition of
“excluded commodity” requires “an occurrence, extent of an occurrence, or
contingency” that is “associated with a financial, commercial, or economic
consequence.” 7 U.S.C. § 1a(19)(iii). This definition is more restrictive than
that of “swap,” because it requires actual (not merely potential) economic
consequences. Because Kalshi’s contracts are not swaps, they also are not
contracts in excluded commodities, as is required for either a future or an
option. 1-ER-21-22; see 7 U.S.C. § 2(a)(1)(A).
Second, Kalshi’s contracts are not options. An “option” is a contract
that “grants to the purchaser ‘the right, for a specified period of time, to
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