Case 2:25-cv-00575-APG-BNW Document 57 Filed 05/14/25 Page 20 of 25
prohibited by Nevada state law, see NRS 463.160(1), Kalshi’s theory of CEA preemption
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obliquely repeals the Wire Act, see 18 U.S.C. § 1084(a)-(b), notwithstanding the canon against
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implied repeal, see Epic Sys. Corp. v. Lewis , 584 U.S. 497, 510 (2018). Kalshi’s theory also uses
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a minor subsection of the CEA (defining the word “swap”) to effect a massive transformation in
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the federal approach to gambling, which “respect[s] the policy choices of the people of each State
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on the controversial issue of gambling. ” Murphy v. NCAA , 584 U.S. 453, 484 (2018). This despite
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the requirement of a clear statement before “significantly alter[ing] the balance between federal
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and state power,” Sackett v. EPA , 598 U.S. 651, 679 (2023) (citation omitted).
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Finally, the relevant legislative history makes clear that sports event contracts are not
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swaps. Kalshi repeatedly relies on the legislative history of the Commodity Futures Trading
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Commission Act of 1974, Pub. L. No. 93-463, 88 Stat. 1389, which added the preemptive,
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“exclusive jurisdiction” language to Section 2(a)(1)(A) for the first time. See ECF No. 1 ¶ 33;
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ECF No. 18 at 4, 13-16; ECF No. 40 at 6- 7. But the 1974 Act did not use the term “swap”—
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Congress did not give the CFTC “exclusive jurisdiction” over transactions involving “swaps” until
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Dodd-Frank in 2010. See Dodd-Frank Wall Street Reform and Consumer Protection Act , Pub. L.
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No. 111-203, Title VII, Part II, § 722, 124 Stat. 1376, 1658-754; DTCC Data Repository (U.S.)
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LLC v. CFTC , 25 F. Supp. 3d 9, 11 (D.D.C. 2014). And there is no evidence that anyone in
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Congress understood that adding “swaps” to the CFTC’s jurisdiction would displace state or tribal
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authority over traditional forms of gambling, including sports betting. If anything, the Special
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Rule now codified at 7 U.S.C. § 7a-2(c)(5)(C)(i) proves just the opposite. See 156 Cong. Rec.
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S5902, S5906- 7 (daily ed. July 15, 2010) (the Special Rule’s author expressing explicit concern
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about event contracts being used for sports betting).
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Second , the NRA’s intervention would add necessary elements to the proceeding. See
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Arakaki , 324 F.3d at 1086. The NRA members operate throughout the nation and will discuss how
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the multi-state regulatory approach works in practice. The NRA members have daily familiarity
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with issues of federal and state law, and the NRA advocates for the interests of its many members
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who operate Nevada sportsbooks. Accordingly, it is “uniquely well - positioned,” Kalbers , 22 F.4th
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at 828, and is indeed the only party in this case to discuss the full impact of Kalshi’s theory on
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