Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 55 of 110
either buy or sell the subject of the option at a predetermined price.’ ” White
Pine Tr. , 574 F.3d at 1226 (internal quotation marks omitted) (citing 7
U.S.C. § 1a(36)); see Saberi v. CFTC , 488 F.3d 1207, 1210 n.2 (9th Cir. 2007).
Kalshi does not explain how its contracts confer any such right, and they do
not—the buyers of its contracts have no right to buy or sell the outcomes of
the events that are the subject of those contracts.
Third, Kalshi’s contracts are not “contracts of sale of a commodity for
future delivery.” 7 U.S.C. § 2(a)(1)(A). They are wagers on the outcomes of
events, not promises to deliver those outcomes. See 1-ER-24-25. Kalshi
argues (Br. 55-56) that a future does not require actual delivery and can
instead be cash settled, but the contract still must involve something that
can be delivered. Fisher v. Dean Witter Reynolds, Inc. , 526 F. Supp. 558,
559-60 (E.D. Pa. 1981). For example, an interest-rate future is based on
interest-bearing Treasury notes that can be delivered. See id. Here, noth-
ing is or could be delivered.
4. Kalshi’s Position Would Require All Sports Betting to Be Regulated Only by the CFTC The implications of Kalshi’s position are extreme. Under Kalshi’s def-
initions, all sports wagers would qualify as “swaps” (or futures or options).
1-ER-18-19. The CEA requires that all consumer swaps, options, and fu-
tures be traded on CFTC-regulated DCMs. 7 U.S.C. §§ 2(e), 6(a), 6c(c); 17
C.F.R. § 33.3(a). And according to Kalshi, the CEA’s “exclusive jurisdiction”
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