jurisdiction under 28 U.S.C. § 1331. And the state-official defendants are not immune from suit under Ex parte Young . However, the Ex parte Young exception does not apply to state agencies like the SWC. See Harris v. Sec’y of State , No. 23-5833, 2024 WL 4225713, at *3 (6th Cir. May 29, 2024) (“The Ex parte Young exception does not apply to the [Tennessee Secretary of State’s Administrative Procedures Division] because it is a state agency, not a state official.” (citing Morgan , 63 F.4th at 515)), cert. denied sub nom. Harris v. Hargett , 145 S. Ct. 594 (2024). The state has not consented to suit, and Congress has not abrogated Tennessee’s sovereign immunity. Skatemore, Inc. v. Whitmer , 40 F.4th 727, 733 (6th Cir. 2022) (citing Boler v. Earley , 865 F.3d 391, 410 (6th Cir. 2017)). The SCW is therefore immune from suit in this court, and the court will dismiss it from this case. B. Likelihood of success on the merits The court finds that Kalshi is likely to succeed on the merits because sports event contracts are “swaps” and conflict preemption applies. 1. Kalshi’s sports event contracts are “swaps” The CEA grants the CFTC “exclusive jurisdiction” over swaps. 7 U.S.C. § 2(a)(1)(A). Swaps include “any contract . . . that provides for any purchase, sale, payment, or delivery . . . that is [1] dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency [2] associated with a potential financial, economic, or commercial consequence.” 7 U.S.C. § 1a(47)(A), (A)(ii). The defendants argue that Kalshi’s sports event contracts are not swaps because they are neither dependent on the occurrence or nonoccurrence of an event , nor associated with a potential financial, economic, or commercial consequence. (Doc. No. 34 at 22– 24.) Kalshi disagrees, based on the language of the statute and CFTC regulation. (Doc. No. 41 at
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Case 3:26-cv-00034 Document 48 Filed 02/19/26 Page 13 of 25 PageID #: 881
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