Case 2:25-cv-00575-APG-BNW Document 57 Filed 05/14/25 Page 18 of 25
policy, see ECF No. 34 at 15-17, and the Tenth Amendment, see ECF No. 50 at 19-20. These
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arguments do not apply to the NRA members and do not protect the competitive interests of the
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NRA members or the gaming industry in Nevada.
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There have been additional arguments and issues that have not yet been fully briefed. For
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example, Kalshi represented that “the CFTC earlier this year permitted Kalshi to offer sports-event
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contracts.” ECF No. 18 at 2. But binding regulations specifically prohibit CFTC -registered
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entities — like Kalshi —from offering event contracts that “involve[], relate[] to, or
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reference[] . . . gaming,” 17 C.F.R. § 40.11(a), and allow the CFTC to conduct a review of such
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contracts, see id. § 40.11(c). As Kalshi recently argued, contracts that reference “gaming” include
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sports bets and sports event contracts, like the ones at issue here. See Brief of Appellee at 17,
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KalshiEX LLC v. CFTC , No. 24-5205 (D.C. Cir. Nov. 15, 2024), 2024 WL 4802698 (contracts
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contingent on game or game-related events like the Kentucky Derby, Super Bowl, or Masters).
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Kalshi has recently argued in its Opposition to the State Defendants’ Motion to Dismiss that the
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“[d]ebate over the Special Rule likewise clearly contemplates that the ‘CFTC [will] have the
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power’ to approve contracts involving ‘gaming.’” ECF No. 55 at 20 (citing Cong. Rec. S5906 -07
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(daily ed. July 15, 2010) (statements of Senator Dianne Feinstein and Senator Blanche Lincoln)).
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This representation is staggeringly misleading. The legislative history confirms the intent to
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“enable the CFTC to prohibit the trading of derivative contracts based on sporting events” as
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confirmed by a Commissioner of the CFTC. Public Statements & Remarks, CFTC, Statement of
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Commissioner Dan M. Berkovitz Related to Review of ErisX Certification of NFL Futures
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Contracts (April 7, 2021), https://tinyurl.com/3nsf8tzh.
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Mrs. Feinstein: . . . Will the CFTC have the power to determine that a contract is a
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gaming contract if the predominant use of the contract is speculative as
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opposed to hedging or economic use?
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Mrs. Lincoln: That is our intent. The Commission needs the power to, and should,
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prevent derivatives contracts that are contrary to the public interest
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because they exist predominantly to enable gambling through supposed
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event contracts. It would be quite easy to construct an “event contract”
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