Case 1:25-cv-01283-ABA Document 26 Filed 05/09/25 Page 28 of 36
the gaming devices constitute a violatio n of Maryland’s gaming laws. Md. Code Ann., St. Gov.,
§ 9-1E-03(b), § 9-1E-04(b)(6)(ii); Md. Code Ann., Crim. Law § 12-104, § 12-113.
2. The Court May Enforce the Provisions of Regulation 40.11(a)(1).
Kalshi and the District Court of Nevada contend that the CFTC must undertake a review
pursuant to Regulation 40.11(c) in order for an event contract to be prohibited. See Hendrick ,
2025 WL 1073495, at *4. But the CFTC need not undertake an additional review under 40.11(c)
to prohibit gaming contracts; they have already prohibited these contracts under Regulation
40.11(a). Regulation 40 .11(c) simply describes the CFTC’s ex post , case-by-case review process
for violations of Regulation 40.11(a); any argument to the contrary eviscerates Regulation
40.11(a)(1).
Notwithstanding any CFTC inaction, this Court is empowered to enforce Regulation
40.11(a)(1). Although t he decision to take an enforcement action is normally left to an agency’s
discretion, see Heckler v. Chaney , 470 U.S. 821, 828, 837-38 (1985), “ an agency's expression of
a broad or general enforcement policy based on the agency's legal interpretation is subject to
review.” Casa De Maryland v. U.S. Dep't of Homeland Sec. , 924 F.3d 684, 699 (4th Cir. 2019)
(collecting cases).
Regulation 40.11(a)(1) is more than a “broad or general enforcement policy.” As a
regulation issued through notice-and-comment rulemaking, i t is the law, and this court “[t]o the
extent necessary to decision and when presented . . . shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine the meaning or applicability of the
terms of an agency action.” Loper Bright Enterprises v. Raimondo , 603 U.S. 369, 391 (2024)
(quoting 5 U.S.C. § 7). Loper characterizes this proposition as “un remarkable, yet elemental . . .
reflected by judicial practice dating back to Marbury : that courts decide legal questions by
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