Case 1:25-cv-08846-AT Document 60-1 Filed 12/03/25 Page 14 of 31
Moreover, the CFTC’s “exclusive jurisdiction” is not universal; 7 U.S.C. § 2(a)(1)(A) provides a savings clause, which states, “[e]xcept as hereinabove provided, nothing contained in this section shall … supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State ….” Id. (emphasis added). The CEA neither supersedes IGRA nor limits the jurisdiction of tribes or the National Indian Gaming Commission (“NIGC”) to regulate gaming and enforce IGRA compacts on Indian lands. Rather, the CEA’s savings clause expressly reserves the authority of the NIGC and Tribal gaming authorities over gaming on Indian lands, in accordance with IGRA. See KalshiEX LLC v. Martin , 793 F.Supp.3d 667, 681 (D. Md. 2025) (“[A]lthough the savings clause in the [CEA’s] exclusive jurisdiction provision cuts both ways …, given the presumption against preemption, its ambiguity means that on balance it cuts against a finding of field preemption.”). 2. The CFTC expressly prohibits Kalshi’s sports-event contracts Kalshi’s sports bets are not swaps under the CEA’s definition, but even if they were, they are categorically prohibited by the CFTC as contrary to the public interest and are therefore invalid and outside the scope of the CFTC’s “exclusive” jurisdiction. See 17 C.F.R. agreement, or transaction; and (II) associated with a financial, commercial, or economic consequence.” Id. § 1a(19)(iv). Here, Kalshi’s sports-event contracts do not meet either definition because they are not dependent on the occurrence , nonoccurrence, or extent of the occurrence of a sports event, but rather on the outcome of the sports event. See Crypto.com , 2025 WL 2916151, at *9; Hendrick , 2025 WL 3286282, at *8. Further, as pointed out by the Nevada District Court, the event itself must be “inherently associated with potential financial, economic, or commercial consequences” and “externalities like whether people bet on the event or contingency, or whether the event’s occurrence or nonoccurrence causes downstream financial consequences, are not sufficient.” Hendrick , 2025 WL 3286282, at *7–*8. The court also held that Kalshi’s sports-event contracts are not valid swaps, in part, because swaps “do not include consumer transactions[,] . . . such as sports wagers.” Id. at *6–8.
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