Case 1:25-cv-02152-ESK-MJS Document 15 Filed 04/18/25 Page 45 of 51 PageID: 166
be speculative; “possibility of a remote future injury” is insufficient. Acierno , 40 F.3d at 655. None of Kalshi’s alleged injuries establishes irreparable harm. Kalshi first claims as irreparable harm “the threat of civil liability and criminal prosecution” if it does not comply with the State’s cease and desist let- ter. PI Br. 22. But such a threat is generally not considered to be irreparable injury because Kalshi “can raise those claims as affirmative defenses in state court.” Sherwin-Williams Co. v. County of Delaware , 968 F.3d 264, 270 (3d Cir. 2020); see O’Shea v. Littleton , 414 U.S. 488, 502 (1974) (noting plaintiffs lacked irreparable injury because if they were prosecuted or illegally sentenced, state and federal remedies were available). And unlike in Kalshi’s cited case, Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 381 (1992), Kalshi has not proven that it faces “repetitive penalties” for “continuing or repeated violations” with no “realistic option of violating the law once and raising its federal defenses,” id. And “[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury.” See FTC v. Standard Oil Co. of Cal. , 449 U.S. 232, 244 (1980); Kugler v. Helfant , 421 U.S. 117, 124 (1975) (generally “the cost, anxiety, and inconvenience of having to defend against a single criminal prose- cution alone do not constitute ‘irreparable injury’”). Next, Kalshi claims that it will suffer various harms from having to cease accepting sports wagers in New Jersey, including “forego[ing] business” in the State, “shuttering access to these contracts for New Jersey users,” “impair[ing] existing contractual obligations amongst non-party Kalshi-users,” and “dis- tort[ing] the markets” for other users. PI Br. 22–23. But in reality, what Kalshi
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