Case 1:25-cv-02152-ESK-MJS Document 15 Filed 04/18/25 Page 32 of 51 PageID: 153
strong evidence that Congress did not intend to regulate so comprehensively as to exclude all state law. See Freightliner Corp. v. Myrick , 514 U.S. 280, 288 (1995); Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 517 (1992) (“Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters be- yond that reach are not pre-empted.”); Am. Apparel & Footwear Ass'n, Inc. v. Ba- den , 107 F.4th 934, 943 (9th Cir. 2024) (same). Had Congress intended to preempt all state gambling laws—which have long existed within States’ historic police powers—it certainly could have done so. See In re Volkswagen “Clean Die- sel” Mktg., Sales Pracs., & Prods. Liab. Litig. , 959 F.3d 1201, 1220 (9th Cir. 2020) (“Congress’s ‘certain awareness of the prevalence of state’ law, coupled with its ‘silence on the issue,’ ‘is powerful evidence that Congress did not intend’ to preempt [those state] laws.” (quoting Wyeth , 555 U.S. at 575)). The absence of such an express-preemption provision is telling. 4 All these provisions prove that Congress did not legislate “so comprehen- sively” that “it left no room for supplementary state legislation.” Kansas , 589 U.S. at 208. No doubt, there is a federal regulatory framework governing the procedural requirements for event contacts to be listed on CFTC-designated 4 Kalshi relies on the CEA’s preservation of concurrent state jurisdiction over entities that are “required to be registered or designated” with the CFTC but “fail or refuse” to do so, 7 U.S.C. § 16(e)(1)(C), to highlight the absence of such preservation for contracts traded on CFTC-approved exchanges. PI Br. 14. That argument is misplaced. Kalshi’s claim to CEA jurisdiction is based on its char- acterization of event contracts as “swaps.” Compl. ¶ 20; PI Br. 6. But the con- current-jurisdiction provision does not apply to swaps. See 7 U.S.C. § 2(d) (not- ing that, aside from specific provisions not including § 16(e)(1)(C), the CEA does not apply to swaps). So this provision is irrelevant to Kalshi’s event contracts.
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