Case 1:25-cv-01283-ABA Document 26 Filed 05/09/25 Page 33 of 36
teams would advance in the NCAA Tournament or “who w [ould] win the U.S. Open Golf
Tournament.” ECF 2 at 8.
Kalshi previously argued in court that its gaming devices were exactly the type of gaming
contracts that the CTFC was referring to when it promulgated Regulation 40.11(a)(1), (2) pursuant
to the Special Rule. On January 25, 2024, Kalshi filed its motion for summary judgement in the
matter KalshiEX LLC v. Commodity Futures Trading Commission , 2024 WL 397419 (D.D.C.)
arguing that the Special Rule’s “‘ gaming ’ category reaches contracts contingent on games --for
example, whether someone will win the Powerball lottery by a certain date, or whether a certain
team will win the Super Bowl. ” Motion for Summary Judgment at 24, KalshiEX LLC , 2024 WL
397419 (emphasis original). On appeal to the D.C. Circuit Court, Kalshi continued this argument
stating that “[a]n event contract therefore involves ‘gaming’ if it is contingent on a game or a
game-related event – like the Kentucky Derby, Super Bowl, or Masters golf tournament, all of
which were mentioned in the provision's only legislative history.” Brief of Appellee at 17,
KalshiEX LLC v. CFTC, supra, 2024 WL 4802698.
Regulation 40 .11(a)(1)’s language is clear and unambiguous: contracts involving gaming
“shall not” be listed on a registered exchange. At the time it self-certified its gaming devices,
Kalshi was aware of the existence of Regulation 40.11(a)(1) and, more importantly, was aware
that Regulation 40.11(a)(1) was the CTFC’s implementation of the Special Rule. ECF 2 at 7 (“ see
also 40.11(a)(1)- (2) (implementing the Special Rule”)). Despite this awareness, Kalshi has not
quoted the language of Regulation 40.11(a)(1) to this Court or in any of its filings in the Nevada
or New Jersey courts. Instead, Kalshi disingenuously argues that the Special Rule requires a public
interest review of event contracts involving gaming, completely ignoring the plain language of
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