(“[E]ven if Kalshi’s sports contracts involve ‘gaming,’ that would not subject Kalshi to state gaming laws. Rather, it would subject Kalshi to the special rule that allows the CFTC to conduct a public interest review.”). Finally, I am persuaded that Kalshi’s sports-related event contracts fall within the CFTC’s exclusive jurisdiction and am unconvinced by defendants’ arguments to the contrary. Defendants argue that sporting events are without potential financial, economic, or commercial consequence. On the record before me, I disagree. See Aron & Jones, supra , at 79 – 80 (noting the use of similar language in defining a swap and event contract under the CEA and stating that sports bets may meet the requirement of a potential financial, commercial, or economic consequence). Kalshi references a few recent examples of the economic impact of sporting events in television, advertising, and local communities. (Kalshi Reply Br. pp. 8, 9.) The special rule for event contracts states that no agreement, contract, or transaction determined by the CFTC to be contrary to the public interest may be made available on a registered market. See 7 U.S.C. § 7a – 2(c)(5)(C)(ii). Therefore, at this stage, Kalshi’s sports-related event contracts evidence—by their very existence—the CFTC’s exercise of its discretion and implicit decision to permit them. See Vandenbergh, et al. , supra , at 1994 (noting that the CFTC has jurisdiction over event contracts and that the Dodd-Frank Act provided it with the authority to determine whether an event contract may be approved for trading via the special rule). “[T]o the extent that swaps, futures, or options are traded on [designated contract markets], state law would appear to be preempted by the CFTC’s exclusive jurisdiction.” Aron & Jones, supra , at 64. Because I conclude that Kalshi has demonstrated a reasonable chance of prevailing — which in this case means proving that at the very least field preemption applies — I do not consider whether conflict preemption may also apply. I move on then to the irreparable harm prong.
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