Case 1:25-cv-01283-ABA Document 26 Filed 05/09/25 Page 29 of 36
applying their own judgment.” Id. Accordingly, this Court is free to determine whether Kalshi’s
gaming devices are prohibited from being offered on its DCM.
3. Self-Certifying Listing an Otherwise Prohibited Contract on a DCM Does Not Foreclose Judicial Review of the Listing.
Taking advantage of the self-certification process, Kalshi certified to the CTFC earlier this
year that its gaming devi ces “complie[d] with the [CEA] and [CFTC] regulations” despite the
gaming devices involving “gaming” and being illegal under Maryland and federal law, including
Regulation 40.11(a)(1). Supra at §I.A(2)(b)(i). Because the CFTC did not act within a 10-day
period pursuant 7 USC § 7(a)-2(c)(2), Kalshi argues that the CTFC “has already authorized
Kalshi’s event contracts by declining to restrict them after Kalshi self - certified them.” ECF 2 at
18. This assertion is false. The CFTC’s failure to act during the initial 10 -day period does not
imply CFTC approval of the contracts or foreclose future CFTC review:
[A]ll the CEA and the Commission rules provide is that the Commission could block an unlawful rule change — but not that it must. Moreover, the brief ten-day review period Congress supplied in the CEA further supports the conclusion that Congress did not intend to impose a duty on the Commission to do a searching review of every rule or rule amendment that passes through the self-certification process.
DTCC Data Repository (U.S.) LLC, supra, 25 F. Supp. 3d at18; see also Sprint Nextel Corp. v.
FCC, 508 F.3d 1129, 1132 (D.C.Cir.2007); Amador Cnty. v. Salazar, 640 F.3d 373, 382
(D.C.Cir.2011). Thus, t he CFTC’s inaction in response to Kalshi’s self -certification does not
constitute the type of final agency action that would pre-empt Maryland law.
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