Case: 25-7504, 01/16/2026, DktEntry: 38.1, Page 40 of 47
(footnote omitted). Indeed, the CFTC “does not believe that it has the statutory mandate nor specialized experience appropriate to oversee [gambling], or that Congress intended for the Commission to exercise its jurisdiction . . . in this manner.” Id. 11 Put simply, a reading of the CEA that produces these results has little to recommend it. C. The clear-statement rule and presumption against im- plied repeal foreclose Kalshi’s interpretation. While text and context clearly refute Kalshi’s interpretation, two well-established presumptions put the question beyond doubt. 11 Evidently recognizing the implausibility of a reading that would turn the CFTC into a national gaming commission, Kalshi has suggested elsewhere that its sports wagers may be traded on a CFTC-registered exchange, but other such wagers need not be. See Kalshi Mem. of Law at 24-25, Commonwealth v. KalshiEX, LLC , No. 2584CV02525-BLS1 (Mass. Super. Nov. 18, 2025) (Doc. 41). To draw this distinction, Kalshi relies on a 2012 rule that notes that “many types of consumer and com- mercial arrangements that historically have not been considered swaps” are not within the Dodd-Frank Act’s definition of swaps. Further Defi- nition of “Swap,” “Security-Based Swap,” and “Security-Based Swap Agreement , ” 77 Fed. Reg. 48,208, 48,246-48,247 (Aug. 13, 2012). This rule, Kalshi suggests, shows that sports wagers, which have not histori- cally been considered swaps, need not be traded on a CFTC-registered exchange in all cases. But even a cursory inspection of Kalshi’s at- tempted distinction reveals that it undercuts Kalshi’s theory entirely, as it confirms that sports wagers are not swaps .
32
Made with FlippingBook - Online catalogs