Case 1:25-cv-01283-ABA Document 26 Filed 05/09/25 Page 23 of 36
are other sub- clauses that define a swap as an “option” that hinges on “1 or more interest or other
rates, currencies, commodities, securities, instruments of indebtedness, indices, quantitative
measures, or other financial or economic interests or property of any kind” or an exchange of “1
or more payments based on the value or level of 1 or more interest or other rates, currencies,
commodities, securities, instruments of indebtedness, indices, quantitative measures, or other
financial or economic interests or property of any kind.” 7 U.S.C. § 1a(47)(A)(i), (iii).
Kalshi contends that its gaming devices fit the definition of 7 U.S.C. § 1a(47)(A)(ii). ECF
2 at 6. But under noscitur a sociis , it follows that “event or contingency associated with a potential
fina ncial, economic, or commercial consequence,” as used in sub -clause (ii), refers to the company
it keeps in sub-clauses (i) and (iii) – consequences that directly affect “rates, currencies,
commodities, securities, instruments of indebtedness, indices, [or] quantitative measures. ” The
outcome of a sporting event does not satisfy this requirement.
iv.
Canon Against Superfluity.
Even if noscitur a sociis is ignored, calling Kalshi’s gaming devices “swaps” would violate
the canon against superfluity. Under this canon, courts are “obliged to give effect, if possible, to
every word Congress used.” United States v. Weiss , 52 F.4th 546, 552 (3d Cir. 2022) (quotation
omitted). However, if “event or contingency associated with a potential financial, economic, or
commercial consequence” were so broad as to cover events with attenuated financial, economic,
or commercial connections, then all the other sub- clauses defining “swap” would be superfluous.
For example, a contract that hinges on “currencies” or “commodities” under clause (i), is also
associated with “financial, economic, or commercial consequences” under clause (ii) . If one
considers Kalshi’s sports gaming contracts “swaps,” the remainder of the definition is rendered
superfluous.
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