Case 2:25-cv-00575-APG-BNW Document 57 Filed 05/14/25 Page 13 of 25
practices, associations and activities related to the operation of licensed gaming establishments
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and the manufacture, sale or distribution of gaming devices and associated equipment.” NRS
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463.0129(1)(c). While the NGCB has similar interests in upholding the integrity of the gaming
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market, the NRA members will suffer a distinct and specific harm if patrons lose confidence in
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the integrity of their products based on operations by Kalshi.
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Third , Kalshi’s preemption argument could even result in a bizarre result that the CFTC
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has authority over some types of state sports betting, not currently traded on a CFTC exchange.
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The CEA gives the CFTC exclusive jurisdiction over “[1] accounts, agreements . . . , and
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transactions involving [2] swaps or contracts of sale of a commodity for future delivery . . . traded
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or executed on [3] a contract market designated pursuant to section 7 of this title or a swap
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execution facility pursuant to section 7b – 3 of this title or any other board of trade, exchange, or
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market.” 7 U.S.C. § 2(a)(1)(A). Moreover, the CEA correspondingly prohibits “accounts,
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agreements . . . , and transactions involving swaps or contracts of sale of a commodity for future
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delivery” unless they take place on CFTC-regulated exchanges . 7 U.S.C. § 2(e) makes it generally
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unlawful to “enter into a swap unless the swap is entered into on, or subject to the rules of, a board
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of trade designated as a contract market under section 7 of this titl e,” and 7 U.S.C. § 6d(a)(1)
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“prohibits anyone from soliciting or accepting orders for swaps or options contracts if they are not
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registered with the CFTC as a futures commission merchant.” CFTC v. Yukom Commc’ns Ltd. ,
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No. 19-cv-5416, 2021 WL 4477874, at *1 (N.D. Ill. Sept. 30, 2021). To the extent that the sports
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bets offered by Kalshi are considered to be swaps and so the CFTC has exclusive jurisdiction over
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such swaps, then this could even require other types of sports bets to be only offered on a CFTC
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exchange.
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The acceptance of Kalshi’s claim could create a potential competitive threat to many of
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the NRA’s members, could require them to wholly restructure their current sports betting
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operations, and could devalue the regulatory infrastructure that the NRA members have invested
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in . Since resolution of Kalshi’s claim “actually will affect” the NRA’s members’ value and use of
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their state gaming licenses, Arakaki v. Cayetano , 324 F.3d 1078, 1084 (9th Cir. 2003) (quotation
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