2:25-cv-575-APG-BNW MOTION HEARING - ROUGH DRAFT - DO NOT CITE!!!
11 a contract to the CFTC, we're going to take a wager on the coin flip of the Superbowl, we're going to take contracts on the coin flip of the Superbowl, no one in any -- the Nevada Gaming Control Board cannot do anything about that unless the CFTC says, no, you can't? MR. HAVEMANN: I'm not sure that's quite right. I think that States have some authority under the CEA. There's a provision that dictates or details what authority States have to enforce Federal law. And there's always the APA. So if a State believes that the CFTC has made the wrong decision with respect to permitting a particular contract or designating a particular contract market under the CEA, they may have opportunities under the APA to challenge agency action as arbitrary, capricious, or not in accordance with the law, but our submission is that, again, it's the job of the CFTC under the plain text of the statute that Congress enacted to make that determination with the sort of back-end judicial review that you would always expect from a Government agency determination. THE COURT: Okay. So the Gaming Control Board decides it disagrees with the CFTC's decision on Kalshi's listing of elections or who's going to win the Texas Valero Open last week and so it can now challenge that under the APA because, as you just said, it disagrees with the CFTC's finding, so there is jurisdiction for the Gaming Control Board
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UNITED STATES DISTRICT COURT Judy K. Moore, RMR, CRR
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