B. Irreparable Harm “[T]o show irreparable harm a plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Ramsay v. Nat’l Bd. of Med. Exam’rs , 968 F.3d 251, 262 (3d Cir. 2020) (alteration in original) (quoting Acierno v. New Castle Cnty. , 40 F.3d 645, 653 (3d Cir. 1994)). Such harm must be likely absent injunctive relief. Id. Kalshi submits that the Division’s threatened enforcement is likely to cause it irreparable harm if its motion is not granted. (Kalshi Mot. pp. 22 – 24.) If Kalshi does not comply with the Division, it faces credible threat of civil and criminal liability. ( Id. p. 22.) One of Kalshi’s partners has already chosen not to move forward with listing Kalshi event contracts in New Jersey due to a similar cease-and-desist letter it received from New Jersey authorities. (ECF No. 2 – 1 (Sottile Decl.) p. 14.) If it chooses to comply with the Division, Kalshi would forego business within New Jersey without the potential of recouping financial losses if it prevails. (Kalshi Mot. p. 22.) Kalshi does not currently have the need or means to geolocate users and doing so would cost Kalshi an estimated tens of millions of dollars annually, again with no guarantee of recoupment. ( Id. pp. 22, 23; Sottile Decl. pp. 6, 7.) No matter what it does, Kalshi claims that it will face reputational harms associated with either being perceived as violating New Jersey law or ending its business in New Jersey and undermining user confidence. (Kalshi Mot. pp. 23, 24.) Defendants respond that potential liability does not constitute irreparable harm because Kalshi’s claims may be raised as affirmative defenses. (Defs.’ Opp’n Br. p. 45.) Further, economic injuries are insufficient and Kalshi can continue with all but a small portion of its sports-related event contracts so long as it obtains New Jersey licensure and complies with the Sports Wagering Act. ( Id. pp. 45 – 47.)
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