Case 2:25-cv-00575-APG-BNW Document 57 Filed 05/14/25 Page 7 of 25
as it is offering odds on the outcome of sporting events and not offering shares in publicly traded
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companies. There is, or at least there should be, no dispute that Kalshi’s offerings would constitute
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gaming under Nevada law and so federal preemption is Kalshi’s only remaining argument.
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Kalshi, however, has not presented the Court with the full story as to CFTC’s supposed
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preemption of state gaming laws. In 2020, the CFTC initiated a review of “RSBIX NFL futures
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contracts” that had been “self - certified by Eris Exchange, LLC.” Press Release, CFTC, CFTC
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Announces Review of RSBIX NFL Futures Contracts Proposed by Eris Exchange, LLC (Dec. 23,
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2020), https://tinyurl.com/5n8ckbta. ErisX proposed to offer futures contracts with “one based on
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the moneyline; the second on the point spread; and the third on total points for individual NFL
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games.” Id. The CFTC determined that the “RSBIX NFL futures contracts ‘may involve, relate
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to, or reference’ an activity enumerated in Regulation 40.11(a)(1), including but not limited to
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“gaming, or an activity that is unlawful under any State or Federal law.’ Accor dingly, and pursuant
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to Regulation 40.11(c)(1), the Commission has requested that ErisX refrain from listing and
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trading its proposed RSBIX NFL futures contracts during the pendency of the review period.” Id.
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Consequently, ErisX withdrew its proposal to offer these contracts. Then again, in 2025, the CFTC
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also initiated a review of “two sports contracts” proposed to be offered by Crypto.com and again
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requested that these contracts be suspended during the review. Press Release, CFTC, CFTC’s
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Review of Nadex Sports Contract Submissions (Jan. 14, 2025), https://tinyurl.com/6vm3yp6h.
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Whether the CFTC chooses to initiate a review in its discretion does not mean that the entire field
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of sports gaming is preempted. The plain language and legislative history of the relevant statutes
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and regulations — coupled with other federal laws delegating control over sports betting to the
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states — establish that there was no intent to preempt Nevada’s ability to regulate sports betting.
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Where a particular transaction does not fall within the CFTC’s exclusive jurisdiction, the
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CEA expressly preserves state law: “Except as [provided in the exclusive -jurisdiction provision],
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nothing contained in this section shall (I) supersede or limit the jurisdiction at any time conferred
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… under the laws of … any State, or (II) restrict … such other authorities from carrying out their
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duties and responsibilities in accordance with such laws.” 7 U.S.C. § 2(a)(1)(A). As courts have
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recognized, this clause “makes clear that other agencies” still “retain their jurisdiction over all
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