Kalshiex, LLC v. Assad

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KALSHIEX, LLC, No. 25-7516

Plaintiff - Appellant, D.C. No.

2:25-cv-00575-

v. APG-BNW

GEORGE ASSAD; CHANDENI K.

SENDALL, Deputy City Attorney; OPINION

NEVADA GAMING CONTROL

BOARD; JENNIFER TOGLIATTI;

ROSA SOLIS-RAINEY; BRIAN

KROLICKI; GEORGE

MARKANTONIS; ABBI SILVER;

AARON D. FORD; NEVADA

GAMING COMMISSION; MIKE

DREITZER,

Defendants - Appellees,

NEVADA RESORT ASSOCIATION,

Intervenor-Defendant -

Appellees.

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

2 KALSHIEX, LLC V. ASSAD

Argued and Submitted April 16, 2026

San Francisco, California

Filed August 28, 2026

Before: Ryan D. Nelson, Bridget S. Bade, and Kenneth K.

Lee, Circuit Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge Lee

SUMMARY *

Commodity Exchange Act

The panel affirmed in part the district court’s order

dissolving a preliminary injunction in favor of KalshiEX,

LLC, and remanded in part in Kalshi’s action against the

Nevada Gaming Control Board, which sent a cease-and-

desist letter notifying Kalshi that it was running a sports

betting platform in violation of Nevada statutes and gaming

regulations.

Kalshi sought injunctive relief, arguing that it was not a

sports betting platform, but rather a designated contract

market (“DCM”) under the Commodity Exchange Act

(“CEA”) offering legal sports event contracts. Kalshi

argued that the Commodity Futures Trading Commission

(“CFTC”) had exclusive regulatory authority over its sports

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KALSHIEX, LLC V. ASSAD 3

event contracts and, therefore, Nevada’s gaming regulations

did not apply.

The panel held that the district court did not abuse its

discretion in dissolving the preliminary injunction because

Kalshi did not show a likelihood that the CEA preempts state

gaming regulations as applied to its sports event contracts.

As amended by the Dodd-Frank Act, the CEA provides

that the CFTC has exclusive jurisdiction over “swaps,”

defined as “any agreement, contract, or transaction . . . that

provides for any purchase, sale, payment, or delivery . . . that

is dependent on the occurrence, nonoccurrence, or the extent

of the occurrence of an event or contingency associated with

a potential financial, economic, or commercial

consequence.” 7 U.S.C. § 1a(47)(A)(ii). The Dodd-Frank

amendments made it “unlawful for any person, other than an

eligible contract participant, to enter into a swap unless the

swap is entered into on, or subject to the rules of, a

[DCM].” In a Special Rule provision, Dodd-Frank also gave

the CFTC the power to determine that certain swaps are

contrary to the public interest and therefore cannot be listed

on a DCM, if the swap involves “activity that is unlawful

under any Federal or State law, terrorism, assassination, war,

gaming, or other similar activity.” 7 U.S.C. § 7a-

2(c)(5)(C)(i)-(ii) (emphasis added).

A CFTC regulation, 17 C.F.R. § 40.11(a), categorically

prohibits swaps based on an excluded commodity that

involves, relates to, or references, among other things,

gaming. A DCM can self-certify to the CFTC that any new

contract complies with the CEA and CFTC regulations, but

the CFTC may review and disallow a contract that involves

an enumerated activity.

4 KALSHIEX, LLC V. ASSAD

The panel held that it had the authority to determine what

is and is not a swap under the CEA’s definition in 7 U.S.C.

§ 1a(47)(A)(ii), and no claim under the Administrative

Procedure Act was required, because Nevada was not

attacking the CFTC’s action or inaction.

The panel concluded that the CEA likely does not

preempt Nevada’s gaming regulations as applied to Kalshi’s

sports event contracts. As to express preemption, the panel

concluded that, based on its plain wording, § 2 of the CEA

expressly preempts state regulation of swaps that are “traded

or executed” on a DCM. There was no dispute that Kalshi’s

sports event contracts were traded on a DCM. However,

under the CEA’s definition in § 1a(47)(A)(ii), the sports

event contracts were not “swaps” because they were sports

bets. In addition, the Special Rule in § 7a-2(c) did not

establish that Congress intended the CFTC to make a public

interest determination regarding swaps and event contracts

involving “gaming” because Kalshi’s self-certification and

listing of the contracts was unlawful under the Special Rule

and its associated regulation, 17 C.F.R. § 40.11.

As to conflict preemption, the panel rejected Kalshi’s

argument that it was impossible to comply with both Nevada

law and the CEA, and that Nevada law posed an obstacle to

the CEA’s purposes. The panel also rejected Kalshi’s

argument that field preemption applied.

The panel held that, in dissolving the preliminary

injunction, the district court also did not abuse its discretion

in analyzing whether Kalshi showed that it was likely to

suffer irreparable harm and that an injunction was both

equitable and in the public interest.

The panel affirmed in part the district court’s order

dissolving the preliminary injunction enjoining Nevada from

KALSHIEX, LLC V. ASSAD 5

enforcing state laws against Kalshi’s sports-related event

contracts. The panel remanded for the district court to

consider Nevada’s challenges to Kalshi’s election contracts

consistent with this opinion.

Concurring, Judge Lee wrote that he largely agreed with

the majority’s analysis of the relevant provisions of the

CEA. He wrote that one statutory provision gave him pause

because the Special Rule provision appears to give the CFTC

discretion whether to ban gaming contracts altogether, and

so the statute does not seem to categorically bar all gaming

contracts. However, this question of statutory interpretation

need not be resolved now because 17 C.F.R. § 40.11

currently bars gaming contracts.

COUNSEL

William E. Havemann (argued), Joshua B. Sterling,

Samantha K. Ilagan, and Neal K. Katyal, Milbank LLP,

Washington, D.C.; Grant R. Mainland, Davis B. Campbell,

and Andrew L. Porter, Milbank LLP, New York, New York;

Paul C. Williams and Dennis L. Kennedy, Bailey Kennedy

LLP, Las Vegas, Nevada; David Meister, Robert A.

Fumerton, Chad E. Silverman, and Judith A. Flumenbaum,

Skadden Arps Slate Meagher & Flom LLP, New York, New

York; for Plaintiffs-Appellants.

Nicole A. Saharsky (argued), Minh Nguyen-Dang, Wajdi C.

Mallat, and Matthew Bisanz, Mayer Brown LLP,

Washington, D.C.; Alexander S. Mendelson and Rory K.

Schneider, Mayer Brown LLP, New York, New York;

Preston R. Michelson, Mayer Brown LLP, Chicago, Illinois;

Abigail L. Pace and Sabrena K. Clinton, Attorneys; Devin

6 KALSHIEX, LLC V. ASSAD

A. Oliver, Deputy Attorney General; Jessica E. Whelan,

Chief Deputy Solicitor General, Litigation; Heidi P. Stern,

Solicitor General; Aaron D. Ford, Nevada Attorney General;

Office of the Nevada Attorney General, Las Vegas, Nevada;

for Defendants-Appellees.

Adam Hosmer-Henner, A.G. Burnett, Katrina Weil,

Thaddeus C. Houston, and Jane Susskind, McDonald

Carano LLP, Reno, Nevada, for Intervenor-Defendant-

Appellee.

Martin J. Minot (argued), Deputy General Counsel for

Litigation, United States Commodity Futures Trading

Commission, Washington, D.C., for Amicus Curiae United

States Commodity Futures Trading Commission.

Tyler R. Green, Conor D. Woodfin, and Olivia C. Rogers,

Consovoy McCarthy PLLC, Salt Lake City, Utah, for

Amicus Curiae Paradigm Operations LP.

Andrew L. Schlafly, Attorney at Law, Far Hills, New Jersey,

for Amici Curiae Stop Predatory Gambling, Texans Against

Gambling, and The Association of American Physicians and

Surgeons.

Joseph H. Webster, Jens W. Camp, Alexandra K. Holden,

and Elizabeth A. Bower, Hobbs Straus Dean & Walker LLP,

Washington, D.C.; Bryan Newland, Powers Pyles Sutter &

Verville PC, Washington, D.C.; Scott Crowell, Crowell Law

Office, Tribal Advocacy Group PLLC, Sedona, Arizona;

Michael Hoenig, Yuhaaviatam of San Manuel Nation,

Washington, D.C.; for Amici Curiae The Indian Gaming

Association, National Congress of American Indians, United

South and Eastern Tribes Sovereignty Protection Fund,

Arizona Indian Gaming Association, California Nations

Indian Gaming Association, Minnesota Indian Gaming

KALSHIEX, LLC V. ASSAD 7

Association, Oklahoma Indian Gaming Association,

Washington Indian Gaming Association, National Tribal

Gaming Commissioners and Regulators, Native American

Finance Officers Association, Tribal Alliance of Sovereign

Indian Nations, San Manuel Gaming and Hospitality

Authority, and 24 Federally Recognized Indian Tribes.

Todd Phillips, Atlanta, Georgia, for Amicus Curiae Todd

Phillips.

Zachary P. Keller, Deputy Solicitor General; Mathura J.

Sridharan, Solicitor General; Dave Yost, Ohio Attorney

General; Office of the Ohio Attorney General, Columbus,

Ohio; Stephen Ehrlich, Deputy Solicitor General; Jeremy M.

Feigenbaum, Solicitor General; Jennifer Davenport, New

Jersey Attorney General; Office of the New Jersey Attorney

General, Trenton, New Jersey; Steve Marshall, Alabama

Attorney General, Office of the Alabama Attorney General,

Montgomery, Alabama; Stephen J. Cox, Alaska Attorney

General, Office of the Alaska Attorney General, Anchorage,

Alaska; Raúl R. Labrador, Idaho Attorney General, Office

of the Idaho Attorney General, Boise, Idaho; Tim Griffin,

Arkansas Attorney General, Office of the Arkansas Attorney

General, Little Rock, Arkansas; Theodore E. Rokita, Indiana

Attorney General, Office of the Indiana Attorney General,

Indianapolis, Indiana; Kristin K. Mayes, Arizona Attorney

General, Office of the Arizona Attorney General, Phoenix,

Arizona; Philip J. Weiser, Colorado Attorney General,

Office of the Colorado Attorney General, Denver, Colorado;

Brian L. Schwalb, District of Columbia Attorney General,

Office of the District of Columbia Attorney General,

Washington, D.C.; Kathleen Jennings, Delaware Attorney

General, Office of the Delaware Attorney General,

Wilmington, Delaware; Kwame Raoul, Illinois Attorney

General, Office of the Illinois Attorney General, Chicago,

8 KALSHIEX, LLC V. ASSAD

Illinois; Kris W. Kobach, Kansas Attorney General, Office

of the Kansas Attorney General, Topeka, Kansas; Liz

Murrill, Louisiana Attorney General, Office of the Louisiana

Attorney General, Baton Rouge, Louisiana; Aaron M. Frey,

Maine Attorney General, Office of the Maine Attorney

General, Augusta, Maine; Anthony G. Brown, Maryland

Attorney General, Office of the Maryland Attorney General,

Baltimore, Maryland; Dana Nessel, Michigan Attorney

General, Office of the Michigan Attorney General, Lansing,

Michigan; Keith Ellison, Minnesota Attorney General,

Office of the Minnesota Attorney General, St. Paul,

Minnesota; Andrea J. Campbell, Massachusetts Attorney

General, Office of the Massachusetts Attorney General,

Boston, Massachusetts; Brenna Bird, Iowa Attorney

General; Office of the Iowa Attorney General, Des Moines,

Iowa; Rob Bonta, California Attorney General, Office of the

California Attorney General, Oakland, California; William

Tong, Connecticut Attorney General, Office of the

Connecticut Attorney General, Hartford, Connecticut; Anne

E. Lopez, Hawaii Attorney General, Office of the Attorney

General Hawaii, Honolulu, Hawaii; Lynn Fitch, Mississippi

Attorney General, Office of the Mississippi Attorney

General, Jackson, Mississippi; Raúl Torrez, New Mexico

Attorney General, Office of the New Mexico Attorney

General, Santa Fe, New Mexico; Letitia James, New York

Attorney General, Office of the New York Attorney General,

New York, New York; Dan Rayfield, Oregon Attorney

General, Office of the Oregon Attorney General, Salem,

Oregon; Peter F. Neronha, Rhode Island Attorney General,

Office of the Rhode Island Attorney General, Providence,

Rhode Island; Charity R. Clark, Vermont Attorney General,

Office of the Vermont Attorney General, Montpelier,

Vermont; Joshua L. Kaul, Wisconsin Attorney General,

KALSHIEX, LLC V. ASSAD 9

Office of the Wisconsin Attorney General, Madison,

Wisconsin; Marty Jackley, South Dakota Attorney General,

Office of the South Dakota Attorney General, Pierre, South

Dakota; Jeff Jackson, North Carolina Attorney General,

Office of the North Carolina Attorney General, Raleigh,

North Carolina; David W. Sunday Jr., Pennsylvania

Attorney General, Office of the Pennsylvania Attorney

General, Harrisburg, Pennsylvania; Alan Wilson, South

Carolina Attorney General, Office of the South Carolina

Attorney General, Columbia, South Carolina; Derek E.

Brown, Utah Attorney General, Office of the Utah Attorney

General, Salt Lake City, Utah; Gentner Drummond,

Oklahoma Attorney General, Office of the Oklahoma

Attorney General, Oklahoma City, Oklahoma; Jay Jones,

Virginia Attorney General, Office of the Virginia Attorney

General, Richmond, Virginia; Jonathan Skrmetti, Tennessee

Attorney General and Reporter, Office of the Tennessee

Attorney General, Nashville, Tennessee; Nicholas W.

Brown, Washington Attorney General, Office of the

Washington Attorney General, Olympia, Washington;

Michael T. Hilgers, Nebraska Attorney General, Office of

the Nebraska Attorney General, Lincoln, Nebraska; Keith G.

Kautz, Wyoming Attorney General, Office of the Wyoming

Attorney General, Cheyenne, Wyoming; for Amici Curiae

New Jersey, Ohio, 37 Other States, and the District of

Columbia.

Sarah A. Ferguson, and Ashley Nikkel, Parsons Behle &

Latimer, Reno, Nevada, for Amici Curiae The Nevada

Council on Problem Gambling and The Dr. Robert Hunter

International Problem Gambling Center.

Dominick V. Freda, Dennis M. Kelleher, and Stephen W.

Hall, Better Markets Inc., Washington, D.C., for Amicus

Curiae Better Markets Inc..

10 KALSHIEX, LLC V. ASSAD

Evan N. Bianchi, Spiro Harrison & Nelson LLC, New York,

New York, for Amici Curiae North American Gaming

Regulators Association and International Association of

Gaming Regulators.

Lauren D. Wigginton, Holland and Hart LLP, Las Vegas,

Nevada, for Amicus Curiae American Gaming Association.

OPINION

R. NELSON, Circuit Judge:

KalshiEX, LLC advertises itself as “the first app for legal

sports betting in all 50 states.” As the volume of activity on

Kalshi’s “sports betting” platform ballooned, the Nevada

Gaming Control Board sent a cease-and-desist letter

notifying Kalshi that it was violating Nevada statutes and

gaming regulations. Kalshi sought injunctive relief, arguing

that it is not a legal sports betting platform, but a designated

contract market under the Commodity Exchange Act (CEA)

offering legal sports event contracts. Kalshi argues that the

Commodity Futures Trading Commission (CFTC) has

exclusive regulatory authority over its sports event contracts

and, therefore, Nevada’s gaming regulations do not apply.

Because we disagree with Kalshi’s overly broad reading

of the CEA, and because CFTC regulations currently

prohibit offering contracts related to gaming on prediction

markets, we affirm the district court’s order dissolving the

injunction as to sports event contracts. We remand for the

district court to consider Kalshi’s election contracts.

KALSHIEX, LLC V. ASSAD 11

I

A

A futures contract is a “standardized agreement” to buy

or sell a “commodity” in the future for a price determined at

the contract’s inception. Merrill Lynch, Pierce, Fenner &

Smith, Inc. v. Curran, 456 U.S. 353, 358 (1982). As “the

weather and other imponderables affect[] supply and

demand,” the market price of the commodity could rise or

fall before its promised delivery. Id. at 357. In the

nineteenth and early twentieth centuries, futures markets

thus developed to allow the “purchase or sale of a futures

contract” and the ability to hedge against risks associated

with these price fluctuations in agricultural markets, such as

grain. Id. at 358. As time went on, these markets became an

“opportunity to make a profit as a result of fluctuations in the

market price” by “buying and selling ‘futures contracts.’”

Id. at 357.

Recognizing that futures contracts were “susceptible to

speculation, manipulation, and control . . . detrimental to the

producer or the consumer and the persons handling grain in

interstate commerce,” Bd. of Trade of City of Chicago v.

Olsen, 262 U.S. 1, 37 (1923), Congress passed the Grain

Futures Act of 1922. This Act authorized “the Secretary of

Agriculture to supervise trading in grain futures on

[designated] ‘contract markets,’” or DCMs. Dunn v. CFTC,

519 U.S. 465, 475 n.11 (1997). “In 1936 Congress changed

the name of the statute to the Commodity Exchange Act” or

CEA. Curran, 456 U.S. at 362.

In 1974, Congress amended the CEA “to include

nonagricultural commodities and, appropriately, replaced

regulation by the Secretary of Agriculture with regulation by

a new commission”—the Commodity Futures Trading

12 KALSHIEX, LLC V. ASSAD

Commission (CFTC). Dunn, 519 U.S. at 475 n.11. The

1974 Amendments also gave the CFTC “exclusive

jurisdiction” over certain derivatives, including “options.”

Pub. L. No. 93–463, § 201(b), 88 Stat. 1389 (1974) (codified

at 7 U.S.C. § 2). A derivative is a “financial instrument

whose value depends on or is derived from the performance

of a secondary source, such as an underlying bond, currency,

or commodity.” Derivative, BLACK’S LAW DICTIONARY

(12th ed. 2024).

In the wake of the 2008 financial crisis, Congress passed

the Dodd-Frank Wall Street Reform and Consumer

Protection Act. Pub. L. No. 111–203, 124 Stat. 1376 (2010).

It was passed to, among other things, “promote the financial

stability of the United States by improving accountability

and transparency in the financial system.” Id.

Dodd-Frank amended the CEA in three relevant ways.

First, it added “swaps” to the CFTC’s “exclusive

jurisdiction.” 7 U.S.C. § 2(a)(1)(A). It outlined an

extensive, six-part definition of “swap” as “any agreement,

contract, or transaction . . . that provides for any purchase,

sale, payment, or delivery . . . that is dependent on the

occurrence, nonoccurrence, or the extent of the occurrence

of an event or contingency associated with a potential

financial, economic, or commercial consequence.”

§ 1a(47)(A)(ii). Second, the Dodd-Frank amendments made

it “unlawful for any person, other than an eligible contract

participant, to enter into a swap unless the swap is entered

into on, or subject to the rules of, a [DCM].” § 2(e). And

third, it gave the CFTC the power to “determine” that certain

swaps are “contrary to the public interest” and therefore

cannot be listed on a DCM, if the swap involves “activity

that is unlawful under any Federal or State law, terrorism,

KALSHIEX, LLC V. ASSAD 13

assassination, war, gaming, or other similar activity. . . .”

§ 7a-2(c)(5)(C)(i)–(ii) (cleaned up) (emphasis added).

Soon after, the CFTC adopted a regulation categorically

prohibiting swaps based on “an excluded commodity,” that

“involves, relates to, or references,” among other things,

“gaming.” 17 C.F.R. § 40.11(a). Despite this prohibition,

an excluded commodity may be offered because a DCM can

self-certify to the CFTC in a “written certification” that “any

new contract” complies with the CEA and CFTC

regulations. 7 U.S.C. § 7a-2(c)(1); 17 C.F.R. §38.4(b).

Once the self-certification is filed, the DCM can begin

offering the new contract the next business day. 17 C.F.R.

§ 40.2(a)(2); 7 U.S.C. § 7a-2(c)(1)-(2). But “if a DCM

nevertheless lists a contract that involves an enumerated

activity or something similar . . . the CFTC may review it”

and disallow it. KalshiEX v. Hendrick, 817 F. Supp. 3d

1014, 1036 n.13 (D. Nev. 2025) (Hendrick II); see 7 U.S.C.

§ 7a-2(c)(5)(C); 17 C.F.R. § 40.11(c).

The CFTC has noted that “its prohibition of certain

‘gaming’ contracts is consistent with Congress’s intent to

‘prevent gambling through the futures markets’ and to

‘protect the public interest from gaming and other events

contracts.’” Provisions Common to Registered Entities, 76

Fed. Reg. 44776, 44786 (July 27, 2011).

B

Kalshi is a DCM registered with the CFTC. In January

2025, Kalshi self-certified to the CFTC, and began offering

a new kind of contract: sports event contracts. 1 On Kalshi’s

DCM, individuals can buy and sell contracts based on nearly

1

In June 2023, Kalshi began offering event contracts based on elections,

which we discuss separately. See infra, at 41 n.7.

14 KALSHIEX, LLC V. ASSAD

anything related to a sporting event, including, who will win

the Super Bowl, who will be the first pick in the NFL Draft,

and what song will open the Super Bowl halftime show.

Kalshi’s contracts also allow individuals to essentially place

prop bets—bets based on outcomes within a game, such as

over-under, score-specific spreads—and parlays (or

“combos”), where users can link their trades for a larger

payout if each leg hits. With all these offerings traded on the

DCM, Kalshi advertises itself as “the first app for legal

sports betting in all 50 states.” Over 90% of Kalshi’s trades

in 2025, representing 95% of its revenue, were sports related.

In March 2025, the Nevada Gaming Control Board (the

Board) sent Kalshi a cease-and-desist letter, demanding that

it stop offering its elections and sports event contracts. The

Board concluded that the sports event contracts were “a

system or method of wagering on sporting events and other

events,” and that Kalshi was thus “operating as an unlicensed

sports pool” in violation of Nevada’s gaming regulations,

Nev. Rev. Stat. § 463.160(1) and Nev. Rev. Stat.

§ 463.245(2). If Kalshi did not stop offering these event

contracts in Nevada, the Board warned that it would pursue

civil or criminal enforcement action.

C

Kalshi sued the Board, its members, the State of Nevada,

and the Nevada Attorney General (collectively, Nevada)

seeking a preliminary injunction to prevent Nevada from

regulating the trading of sports and election event contracts

on its DCM. KalshiEX, LLC v. Hendrick, 2025 WL

1073495, at *1 (D. Nev. Apr. 9, 2025) (Hendrick I). On an

expedited schedule, the district court granted Kalshi’s

motion for a preliminary injunction. Id. Following that

ruling, two other district courts ruled on the same issue,

KALSHIEX, LLC V. ASSAD 15

coming to opposite conclusions. KalshiEX, LLC v. Flaherty,

2025 WL 1218313, at *4–7 (D.N.J. Apr. 28, 2025), aff’d,

172 F.4th 220 (3rd Cir. 2026); KalshiEX, LLC v. Martin, 793

F. Supp. 3d 667 (D. Md. Aug. 1, 2025).

In October 2025, another CFTC registered DCM,

Crypto.com, moved for a preliminary injunction against

Nevada, based on the reasoning in Hendrick I. See N. Am.

Derivatives Exch., Inc. v. Nevada on Rel. of Nevada Gaming

Control Bd., 815 F. Supp. 3d 1169, 1175 (D. Nev. Oct. 14,

2025). It argued that its sports event contracts “are legal

under federal law and that Nevada law is preempted due to

the CFTC’s exclusive jurisdiction over transactions on

DCMs.” Id.

The district court denied Crypto’s motion for a

preliminary injunction. Id. at 1175–76. The district court

concluded that § 2 of the CEA gave the CFTC exclusive

jurisdiction over swaps “traded or executed on exchanges

that the CFTC has designated,” id. at 1180, but “Crypto’s

contracts on the outcome of live events are not ‘swaps’”

under the CEA’s definition of swap in 7 U.S.C.

§ 1a(47)(A)(ii). Id. at 1181, 1187. First, the district court

concluded that the courts have the power to determine what

is and is not a swap under the CEA. Id. at 1180–81. It then

looked to the text of § 1a(47)(A)(ii) and its context, and

reasoned that, unlike the swap definition in that subsection,

Crypto’s sports event contracts “turn on the outcome of the

live event, not on the ‘occurrence, nonoccurrence, or the

extent of the occurrence’ of a live event.” Id. at 1183–84

(emphasis added). The district court observed that “equating

an event with an outcome or result is an archaic use of the

word ‘event,’ not the ordinary meaning.” Id. at 1183. Under

the district court’s reading, whether the Super Bowl happens

is the statutorily defined “occurrence of an event,” while

16 KALSHIEX, LLC V. ASSAD

whether a certain team will win that Super Bowl is not an

“occurrence of an event,” but the outcome of an event (the

event being the Super Bowl).

The district court rejected Crypto’s broad reading of the

words in the statute because it “knows no limiting principle

because anything could be defined as an event.” Id. at 1184.

According to the court, if it accepted Crypto’s position that

“its live presentation events contracts are swaps,” then

“nearly all sports wagering” would be swept “into the

CFTC’s exclusive jurisdiction” despite the historical

regulation of gambling by states. Id. The district court

concluded that Congress gave no indication in the CEA that

it disrupted the careful state-federal balance on gaming and

preempted all state gaming laws through its definition of

swap, as doing so would be “hiding an elephant in a

mousehole.” Id. at 1185 (citing Whitman v. Am. Trucking

Ass’n, 531 U.S. 457, 468 (2001)).

After that ruling, Nevada moved to dissolve Kalshi’s

preliminary injunction. Hendrick II, 817 F. Supp. 3d

at 1021. The district court dissolved the injunction,

incorporating the same reasoning from the Crypto denial. Id.

at 1023. It concluded that Nevada was not required to

challenge the CFTC’s understanding of swap through an

Administrative Procedure Act (APA) claim before it could

begin enforcement of its state laws. Id. at 1023–26. It also

concluded that the CEA’s use of “associated with” in the

definition of swap means that events underlying swaps must

be “inherently joined or connected with a potential financial,

economic, or commercial consequence,” without looking to

“potential downstream financial consequences.” Id. at 1027.

Thus, it concluded that because “Kalshi’s event contracts are

based on outcomes of sporting events or things that happen

during a sporting event,” they were not swaps with the

KALSHIEX, LLC V. ASSAD 17

CEA’s definition. Id. at 1026. The court also concluded that

the sporting event contracts were not “contracts of sale of

commodities for future delivery” under § 2(a)(1)(A). Id. at

1034. The district court also determined that the other

preliminary injunction factors favored Nevada. Id. at 1034–

37. This timely appeal followed. 2

II

The district court had jurisdiction under 28 U.S.C.

§ 1331, as this action arises under the Supremacy Clause of

the Constitution. U.S. Const. art. VI, cl. 2. We have

jurisdiction to review the district court’s order under 28

U.S.C. § 1292(a)(1).

We review the district court’s order dissolving a

preliminary injunction for abuse of discretion. Tracer Rsch.

Corp. v. Nat’l Env’t Servs. Co., 42 F.3d 1292, 1294 (9th Cir.

1994). A district “court abuses its discretion if it commits

2

While this appeal was pending, the Third Circuit affirmed the District

of New Jersey’s order granting Kalshi’s motion for a preliminary

injunction. KalshiEX, LLC v. Flaherty, 172 F.4th 220, 224 (3d Cir.

2026). The Fourth Circuit appeal remains pending. See KalshiEX LLC

v. Martin, 793 F. Supp. 3d 667 (D. Md Aug. 1, 2025) (denying Kalshi’s

motion for a preliminary injunction), appeal docketed, No. 25-1892 (4th

Cir. Aug. 6, 2025). Several additional district court decisions have been

issued, with varied results. See, e.g., KalshiEX LLC v. Orgel, No. 3:26-

CV-00034, 2026 WL 474869 (M.D. Tenn. Feb. 19, 2026) (enjoining the

enforcement of Tennessee’s gaming law); KalshiEX LLC v. Schuler, No.

2:25-cv-01165, 2026 WL 657004 (S.D. Ohio Mar. 9, 2026) (denying

Kalshi’s motion for a preliminary injunction to bar Ohio from enforcing

its gaming laws); KalshiEX LLC v. Johnson, No. CV-26-01715, 2026

WL 1223373 (D. Ariz. May 5, 2026) (granting preliminary injunction

enjoining enforcement of Arizona’s gambling laws), appeal docketed,

No. 26-2978 (9th Cir. May 11, 2026); KalshiEX LLC v. Williams, No.

25-cv-08846, 2026 WL 2017466 (S.D.N.Y. July 13, 2026) (denying

Kalshi’s motion for a preliminary injunction).

18 KALSHIEX, LLC V. ASSAD

legal error.” NetChoice, LLC v. Bonta, 152 F.4th 1002, 1012

(9th Cir. 2025). To warrant preliminary injunctive relief,

Kalshi must show that it is “likely to succeed on the merits,

that it is likely to suffer irreparable harm in the interim, and

that an injunction is both equitable and in the public

interest.” Id.

III

The key question is whether Kalshi has shown a

likelihood that the CEA preempts Nevada’s gaming

regulations. If Kalshi makes this showing, then the district

court committed legal error, which is an abuse of discretion.

See id. We conclude that Kalshi has not shown a likelihood

that the CEA preempts state gaming regulations as applied

to its sports event contracts and that the district court did not

abuse its discretion by dissolving the injunction.

A

To begin, we have the authority to determine what is and

is not a swap under the definition in § 1a(47)(A)(ii). Kalshi

argues that, given the procedural posture of this case, we lack

authority to determine this “threshold issue.” Kalshi argues

that by sending a cease-and-desist letter, Nevada is

attempting to skirt the APA by using “a collateral proceeding

to end-run the procedural requirements governing appeals of

administrative decisions.” See Big Lagoon Rancheria v.

California, 789 F.3d 947, 953 (9th Cir. 2015) (en banc).

But this case does not resemble the kind of end-run

discussed in Big Lagoon. In that case, the court relied on

both Supreme Court and circuit precedent to conclude that

the Bureau of Indian Affairs’ final decision “to take land into

trust was a garden variety APA claim,” which California was

attempting to attack collaterally. Id. at 953–54 (cleaned up).

KALSHIEX, LLC V. ASSAD 19

Nevada is not challenging any determination by the CFTC

about Kalshi’s event contracts. See 5 U.S.C. § 706

(providing a cause of action to “set aside agency action” or

to “compel agency action”). Kalshi self-certified its sports

event contracts under § 7a-2(c)(1). Nor does Nevada allege

any violation of the CEA in its cease-and-desist letter.

Nevada is not attacking the CFTC’s action or inaction but

pursuing enforcement of its own state law about what

qualifies as a bet or wager, not what the CFTC considers a

swap.

Rather, Kalshi turned to the courts seeking injunctive

relief. Kalshi asserts that § 2 of the CEA compels an

injunction against Nevada’s enforcement of its gaming laws

against Kalshi and that the authority of the CFTC, an

administrative agency, is at issue. Kalshi’s reliance on the

CEA as a sword, rather than a shield, distinguishes this

action from an attempt by Nevada to “end-run the [APA’s]

procedural requirements.” Big Lagoon Rancheria, 789 F.3d

at 953. Kalshi’s invocation of the CEA’s definition of swap

in § 1a(47)(A)(ii) in bringing this lawsuit invites this court,

not Nevada or the CFTC, “to say what the law is.” Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Courts routinely interpret statutory language to

determine whether state law is preempted and the scope of

that preemption. See Virginia Uranium, Inc. v. Warren, 587

U.S. 761, 767 (2019) (examining “arguments about the

[Atomic Energy Act’s] preemptive effect much as [the

Court] would any other about statutory meaning, looking to

the text and context of the law in question and guided by the

traditional tools of statutory interpretation”). The “very

point of the traditional tools of statutory construction”—the

tools courts use every day—“is to resolve [such] statutory

ambiguities.” Loper Bright Enters. v. Raimondo, 603 U.S.

20 KALSHIEX, LLC V. ASSAD

369, 401 (2024). Even the CFTC, as an amicus, suggests

that we can determine what constitutes a swap under the

CEA.

B

The CEA likely does not preempt Nevada’s gaming

regulations as applied to Kalshi’s sports event contracts.

Kalshi argues that the CEA preempts Nevada’s gaming laws

through three forms of preemption: express, conflict, and

field. We address each in turn.

1

a

To start, the CEA expressly preempts state law

regulating swaps “traded or executed on” a DCM.

§ 2(a)(1)(A). “Express preemption arises when the text of a

federal statute explicitly manifests Congress’s intent to

displace state law.” Ass’n des Éleveurs de Canards et d’Oies

du Quebec v. Bonta, 33 F.4th 1107, 1114 (9th Cir. 2022)

(quotation omitted). As Kalshi notes, § 2 of the CEA

includes an express preemption provision granting the CFTC

“exclusive jurisdiction” over all “transactions involving

swaps” that are “traded or executed on a market designated”

by the CFTC. § 2(a)(1)(A).

If we were to simply apply the presumption against

preemption, as Nevada suggests, this would become a much

easier case. But “the law remains troubling and confused”

as to whether we apply a presumption against preemption to

express preemption provisions. California Rest. Ass’n v.

City of Berkeley, 89 F.4th 1094, 1108 (9th Cir. 2024)

(O’Scannlain, J., concurring). The Supreme Court’s most

recent discussion of this presumption in Commonwealth of

Puerto Rico v. Franklin California Tax-free Trust instructs,

KALSHIEX, LLC V. ASSAD 21

although in passing, that courts generally “do not invoke any

presumption against pre-emption but instead focus on the

plain wording of the clause.” 579 U.S. 115, 125 (2016).

This is the approach the majority adopted in California

Restaurant, where we looked to the statute’s “text, structure,

and context” “‘without any presumptive thumb on the scale’

for or against preemption.” 89 F.4th at 1101 (quoting R.J.

Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542,

553 n.6 (9th Cir. 2022)). Like California Restaurant, we

decline to apply any presumption against preemption and

instead “focus on the plain wording” of § 2. Id.

We conclude that, based on its plain wording, § 2

preempts state regulation of swaps that are “traded or

executed” on a DCM. This section states that “[t]he [CFTC]

shall have exclusive jurisdiction . . . with respect to . . .

transactions involving swaps.” § 2(a)(1)(A). “[T]he

purpose of the exclusive-jurisdiction provision . . . was to

separate the functions of the [CFTC] from those of the [SEC]

and other regulatory agencies.” Curran, 456 U.S. at 386.

But the statute confers “exclusive” jurisdiction on the CFTC,

which excludes all others, not just the SEC. “[T]he

description of . . . jurisdiction as ‘exclusive’ necessarily

denies jurisdiction” to other entities, which “follows from

the plain meaning of ‘exclusive.’” Mississippi v. Louisiana,

506 U.S. 73, 77–78 (1992).

Likewise, § 2(a)(1)(A)’s saving clause shows that

Congress meant it to be a preemptive provision. After the

sentence conferring “exclusive jurisdiction” on the CFTC,

§ 2(a)(1)(A) provides that “[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 Commisssion or other

regulatory authorities under the laws of the United States or

22 KALSHIEX, LLC V. ASSAD

any State.” § 2(a)(1)(A) (emphasis added). If the exclusive

jurisdiction provision was not intended to have preemptive

effect, the “[e]xcept as hereinabove provided” clause would

be superfluous. We decline to read into the statute that

interpretive difficulty. See Connell v. Lima Corp., 988

F.3d 1089, 1097 (9th Cir. 2021) (“In construing a statute we

are obliged to give effect, if possible, to every word

Congress used, without rendering words superfluous, void,

or insignificant.”). Congress can choose more explicit

language for preemption, as it did in § 16(e)(2)’s explicit

preemption of certain state gaming laws. 7 U.S.C. § 16(e)(2)

(“This chapter shall supersede and preempt the application

of any State or local law that prohibits or regulates gaming

or the operation of bucket shops”). But there are no magic

words that a statute must employ to preempt state law.

Congress need only express through the plain text that a

statute preempts state law, rather than use specific language.

Franklin, 579 U.S. at 125 (explaining that the “plain

wording” of a statute “necessarily contains the best evidence

of Congress’s pre-emptive intent”). And Congress did so in

§ 2(a)(1)(A).

b

While § 2(a)(1)(A) includes an express preemption

provision, Kalshi overplays its hand when it argues that

“state law is superseded as to [all] on-DCM transactions.”

Kalshi argues that “[b]ecause the saving[] clause clarifies

that state law is not ‘supersede[d]’ as to off-DCM

transactions, it confirms that state law is superseded as to on-

DCM transactions.” This argument fails because Congress

declined to grant exclusive jurisdiction to all on-DCM

transactions, as illustrated by “spot contracts,” which can be

traded on DCMs but are not subject to the CFTC’s exclusive

jurisdiction under § 2(a). See e.g., CFTC, Acting Chairman

KALSHIEX, LLC V. ASSAD 23

Pham Announces First-Ever Listed Spot Crypto Trading on

U.S. Regulated Exchanges (Dec. 4, 2025),

https://perma.cc/C9YZ-HJM5 (spot contracts on

cryptocurrencies).

The CEA expressly gives the CFTC “exclusive

jurisdiction” over only the enumerated transactions in

§ 2(a)(1)(A). The exclusive jurisdiction provision only

applies (1) “with respect to . . . accounts, agreements . . .,

and transactions involving swaps” and other enumerated

transactions, (2) that are “traded or executed” on a DCM.

§ 2(a)(1)(A). Here, there is no dispute Kalshi’s sports event

contracts are traded on a DCM. Thus, the dispositive issue

is whether the sports event contracts are “swaps” under the

CEA’s definition in 7 U.S.C. § 1a(47)(A)(ii). The parties

cite various legislative history to define swap. But we do not

use legislative history to “look over the heads of the crowd

and pick out [our] friends.” ANTONIN SCALIA, A MATTER

OF INTERPRETATION 36 (1997) (quoting Judge Leventhal).

We focus instead on the text. See United States v. Myers,

170 F.4th 1180, 1184 (9th Cir. 2026).

i

The CEA’s definition of swap includes six parts.

§ 1a(47)(A). Kalshi relies on § 1a(47)(A)(ii), which defines

a swap as “any agreement, contract, or transaction . . . that

provides for any purchase, sale, payment, or delivery . . . that

is dependent on the occurrence, nonoccurrence, or the extent

of the occurrence of an event or contingency associated with

a potential financial, economic, or commercial

consequence.”

We first consider the words occurrence, event, and

contingency. Kalshi relies on dictionary definitions to

support its broad reading of these words as “a thing that

24 KALSHIEX, LLC V. ASSAD

happens or takes place.” See Event, RANDOM HOUSE

WEBSTER’S POCKET AMERICAN DICTIONARY (5th ed. 2008);

see also, e.g., Event, OXFORD AMERICAN DICTIONARY AND

THESAURUS (2d ed. 2009) (“a thing that happens or takes

place”); Contingency, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2003) (“something liable to happen as

an adjunct to or result of something else.”); Event,

WEBSTER’S II NEW COLLEGE DICTIONARY (3d ed. 2005)

(“[s]omething incidental to something else”). It also relies

on definitions of an “event” as including “the outcome,

issue, or result of anything.” 3 Event, RANDOM HOUSE

WEBSTER’S UNABRIDGED DICTIONARY (2d ed. 2001); see

also, e.g., Event, WEBSTER’S II NEW COLLEGE DICTIONARY

(3d ed. 2005) (“[t]he actual outcome or final result”).

If we only consider the dictionary definitions Kalshi

cites, interpret the word “event” in isolation, and adopt its

broadest meaning, we might be persuaded by Kalshi’s

argument that “event” means generally “something that

happens,” and thus, Kalshi’s sports events contracts fit

within the meaning of swap in § 1a(47)(A)(ii). This

approach highlights the cursory plain-language appeal of

Kalshi’s interpretive argument, which the Third Circuit

majority adopted. See Flaherty, 172 F.4th at 227–28. But

here, the “isolated dictionary definitions contribute[] little to

finding the ordinary meaning of” the statutory language.

Vericool World, LLC v. Igloo Prods. Corp., 175 F.4th 1045,

1057 (9th Cir. 2026).

This is, in part, where the confusion lies because an event

could be described as an occurrence. But even conflating

these terms, we do not refer to whether the Dodgers win the

3

In its filings with the CFTC, Kalshi has described its sports event

contracts as being “based on the outcome of recurrent event.”

KALSHIEX, LLC V. ASSAD 25

World Series, or how many touchdowns Fernando Mendoza

might throw in a game, or how many points BYU Football

will win by as an “event.” That is because while the word

“event” can be defined as “occurrence,” see, e.g., Event,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.

2003), that definition may not always correspond to its

ordinary public meaning. And because the statutory

definition of swap uses both event and occurrence, these

words should have independent meaning to avoid rendering

one term superfluous. § 1a(47)(A)(ii). Yates v. United

States, 574 U.S. 528, 546 (2015) (declining to adopt a broad

definition because it was an “unbounded reading” that would

render “superfluous” other key statutory language).

Dictionaries also note that defining “event” as a synonym for

“outcome” is an archaic or rare usage. See, e.g., Event,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.

2003). Because the definitions of event and occurrence do

not resolve the issue before us, we must also consider the

statutory context. See Vericool World LLC, 175 F.4th at

1057 (“Ignoring context in textual interpretation can lead to

contorted statutory interpretations.”) (citing Bostock v.

Clayton Cnty., 590 U.S. 644, 661–62 (2020)).

“The statute’s language, structure, subject matter,

context, and history are all factors that typically help courts

determine a statute’s objectives and thereby illuminate its

text.” Zellmer v. Meta Platforms, 104 F.4th 1117, 1124 (9th

Cir. 2024) (cleaned up). That is particularly true when, as

here, competing, reasonable interpretations of the same

statutory text exist. And “a statute’s meaning does not

always turn solely on the broadest imaginable definitions of

its component words.” Epic Sys. Corp. v. Lewis, 584 U.S.

497, 523 (2018) (cleaned up). Instead, “[l]inguistic and

statutory context also matter.” Id. Statutory context matters

26 KALSHIEX, LLC V. ASSAD

for our determination of ordinary meaning “because words

are colored by their surroundings and the backdrop against

which they were enacted.” JUSTICE AMY CONEY BARRETT,

LISTENING TO THE LAW: REFLECTIONS ON THE COURT AND

CONSTITUTION 232 (2025).

The relevant backdrop includes legislation involving

gambling, which weighs against giving the words in

§ 1a(47)(A)(ii) the broadest possible reading because, as

discussed below, Kalshi’s sports event contracts have the

hallmarks of sports betting. Indeed, Kalshi advertised itself

as “the first app for legal sports betting in all 50 states.” And

sports betting is a quintessential form of gambling.

“[T]he meaning of one statute may be affected by other

Acts, particularly where Congress has spoken subsequently

and more specifically to the topic at hand.” FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). In

addition, we “must be guided to a degree by common sense

as to the manner in which Congress is likely to delegate a

policy decision of such economic and political magnitude to

an administrative agency.” Id. (citing MCI Telecomms.

Corp. v. AT&T, 512 U.S. 218, 231 (1994)). Congress has

spoken on gambling repeatedly, deliberately, and

specifically. See, e.g., the Professional and Amateur Sports

Protection Act, 28 U.S.C. §§ 3701–3704, the Indian Gaming

Regulatory Act, 25 U.S.C. §§ 2701–2721, and the Wire Act,

18 U.S.C. § 1084(a). 4

4

Kalshi argues that these laws are irrelevant because the Unlawful

Internet Gambling Enforcement Act (UIGEA), 31 U.S.C. §§ 5361–5366,

excludes DCM transactions from its definition of wager. True, courts do

“not lightly assume that Congress silently attaches different meanings to

the same term in . . . related statutes.” Azar v. Allina Health Servs., 587

U.S. 566, 574 (2019). But this presumption can yield to context, as

KALSHIEX, LLC V. ASSAD 27

It is difficult, then, to conclude that Congress intended to

upend its decades of careful regulation of gambling based on

broad definitions of the words used in a Wall Street Reform

Bill. “Congress, [the Supreme Court has] held, does not alter

the fundamental details of a regulatory scheme in vague

terms or ancillary provisions.” Whitman, 531 U.S. at 468.

To conclude otherwise would assume Congress was “hiding

an elephant in a mousehole,” something we decline to do.

Id.

The crucial context that leads us to resist the broadest

possible reading is that Kalshi has a gambling problem.

Kalshi describes and markets its sports event contracts

offered on its DCM as “legal sports betting.” Yet it argues

that sports bets and sports event contracts are different.

But this argument strains credulity. A “wager” is defined

as “[m]oney or other consideration risked on an uncertain

event; a bet or a gamble,” or otherwise as a “promise to pay

money or other consideration on the occurrence of an

uncertain event.” Wager, BLACK’S LAW DICTIONARY (12th

ed. 2024). The following hypothetical illustrates how

Kalshi’s sports event contracts fit within this definition. A

customer at Caesars Sportsbook can place a sports bet on the

Las Vegas Raiders winning a game by over 7.5 points, and

if that happens, win a higher payout than the amount

wagered. On the Kalshi app, that same customer can buy an

event contract based on the Las Vegas Raiders winning a

courts understand that “most words have different shades of meaning and

consequently may be variously construed . . . when they occur in

different statutes.” Env’t Defense v. Duke Energy Corp., 549 U.S. 561,

574 (2007) (cleaned up). Because the UIGEA definitions are not meant

to “alter[]” or “limit[]” other laws, other statutes likely deal with wagers

in the ordinary sense, not with UIGEA’s more specific, limited

definition. § 5361(b).

28 KALSHIEX, LLC V. ASSAD

game by over 7.5 points, and if that happens, receive a higher

payout than the amount wagered. In either scenario, the

customer’s actions fit the definition of a gambling contract.

See Gambling Contract, BLACK’S LAW DICTIONARY (12th

ed. 2024) (“An agreement to engage in a gamble; a contract

in which two parties wager something, esp. money, for a

chance to win a prize.”). Thus, for Kalshi to deny that its

sports event contracts are sports bets under a reasonable

person’s understanding is disingenuous. That Kalshi’s

sports event contracts are, in reality, sports bets is not just an

“I know it when I see it” issue. Hendrick II, 817 F. Supp. 3d

at 1029 (quoting Jacobellis v. State of Ohio, 378 U.S. 184,

197 (1964) (emphasis added)). Rather, everyone, including

Kalshi, knows it when they see it.

The substance of the sports event contracts offered on

Kalshi’s DCM is sports gambling, regardless of whether

Kalshi calls them swaps. Just as “[t]hat which we call a rose

by any other name would smell as sweet,” WILLIAM

SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2, placing

sports bets, even when called by another name, is still

gambling. Kalshi users can effectively place prop bets, bet

the point spread, bet a specific score, or create a several-leg

parlay. And the payout depends on the performance of a

sports team or a player.

Interpreting swap broadly to include Kalshi’s sports

event contracts is contrary to the principle of statutory

construction that “a word is known by the company it

keeps.” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575

(1995). The accompanying words in the CEA’s definition

of swap in § 1a(47)(A) include “any agreement, contract, or

transaction” that provides for the exchange of payments

“based on the value or level of . . . interest or other rates,

currencies, commodities, securities, instruments of

KALSHIEX, LLC V. ASSAD 29

indebtedness, indices, quantitative measures, or other

financial or economic interests or property of any kind . . .

and that transfers, as between the parties to the

transaction . . . the financial risk associated with a future

change in any value or level . . .” § 1a(47)(A)(iii). Kalshi’s

sports event contracts are unlike these transactions. See PGA

Tour v. Martin, 532 U.S. 661, 693–94 (2001) (Scalia, J.,

dissenting) (internal quotation marks omitted) (Statutory

words “must be read in their context and with a view to their

place in the overall statutory scheme.”). We have

recognized that a “swap” allows two parties “to exchange

(‘swap’)” cash flows on obligations such as “interest rates,

currency rates and security or commodity prices,” to hedge

risk on those obligations. Thrifty Oil Co. v. Bank of Am.

Nat’l. Tr. & Sav. Ass’n, 322 F.3d 1039, 1042–32 (9th Cir.

2003). As Nevada points out, Kalshi’s sports event contracts

do not help institutions or investors hedge against risk; they

create risk, largely for ordinary consumers, where none

previously existed.

Additionally, Kalshi’s attempts to distinguish its sports

event contracts from sportsbooks betting are unpersuasive.

Kalshi argues that “[u]nlike a traditional casino or ‘house,’

Kalshi’s DCM is not counterparty to any trade, does not set

betting odds, does not profit when its customers lose, and has

no incentives to favor itself at customers’ expense.” These

are distinctions without differences. Most importantly, none

of those distinctions have any connection to the statutory

definition of “swap.” That Caesar’s or MGM are “market

makers,” while Kalshi supposedly is not, 5 is not relevant to

5

And this is a tenuous proposition, given the existence of Kalshi

Trading, Kalshi’s affiliate that acts as a “significant player on the

exchange,” largely as a market maker. Who Are You Trading With,

30 KALSHIEX, LLC V. ASSAD

the CEA’s definition of “swap” or of the ordinary meaning

of “bet” or “wager.” The CEA’s definition of swap does not

exclude a “contract, agreement, or transaction” if the

counterparty is a casino or sportsbook. And that is even

more significant considering that the CEA excludes swap-

like agreements when there are certain specific

counterparties. § 1a(47)(B)(ix) (excluding from the

definition of swap “any agreement, contract, or transaction a

counterparty of which is a Federal Reserve Bank, the Federal

Government, or a Federal agency that is expressly backed by

the full faith and credit of the United States.”).

Moreover, Kalshi’s broad definition of swap poses

another problem—it lacks a limiting principle. Kalshi’s

broad interpretation of the definition of swap encompasses

off-DCM transactions, yet the CEA makes it unlawful to

enter into “swaps” outside of a DCM. Section 2(e) makes it

“unlawful for any person, other than an eligible contract

participant, to enter into a swap unless the swap is entered

into on, or subject to the rules of, a board of trade designated

as a contract market under section 7 of this title.” § 2(e). If

the CEA’s definition of swap is read broadly to encompass

Kalshi’s sports event contracts, as Kalshi urges, then it can

also be read to encompass other sports bets such that anyone

who places an off-DCM sports bet that fits within

§ 1a(47)(A)(ii)’s definition of a swap would be violating the

CEA.

KALSHI (Feb. 27, 2025), https://perma.cc/8QQD-8QXR. Although

Kalshi removed all reference to Kalshi Trading from the Who Are You

Trading With web page shortly after Nevada filed its brief, see Who Are

You Trading With, KALSHI (Mar. 10, 2026),

https://help.kalshi.com/en/articles/13823808-who-are-you-trading-with

[https://perma.cc/QB4Q-9E9M], we use the link Nevada provided.

KALSHIEX, LLC V. ASSAD 31

If there is not a difference under the CEA’s swap

definition between sports betting on Kalshi and sports

betting in Caesar’s Sportsbook, then every person placing a

sports bet at Caesar’s Sportsbook (or anywhere else for that

matter) is violating the CEA. While the court in Flaherty

rejected the argument that a broad definition of swap would

lead to “bingo games and pingpong matches fall[ing] under

the CFTC’s jurisdiction,” Flaherty, 172 F.4th at 228, such a

reality is not far-fetched. Kalshi offers trading on the

outcome of table tennis games. See TT Elite Series Men,

KALSHI SPORTS (Feb. 2, 2026), https://perma.cc/V84S-

3WBT. If Kalshi offers the opportunity to bet on the winner

of a table tennis game, it can only do so because it certifies

that event as a swap. And there is no distinction, in the

statutes or regulations, between these games and the

“friendly neighborhood ping pong match” the Flaherty

dissent discussed. 172 F.4th at 233 (Roth, J., dissenting).

Indeed, the majority wrote that in those scenarios, we should

simply hope that the CFTC exercises its authority to regulate

them out of the statutory definition. Id. at 228. If we can

only rely on the CFTC’s regulation to exclude them after the

fact, then Congress’s definition of swap would have to

include all bets on “bingo games” and “pingpong matches”

under the CFTC’s jurisdiction. Id. We reject that overly

broad reading.

Kalshi rejects the natural conclusion that a broad reading

of swap encompasses a wide array of sports bets, and argues

that the lack of a limiting principle is solved by the additional

language in § 1a(47)(A)(ii)’s definition of swap, which

requires that “the occurrence, nonoccurrence, or the extent

of the occurrence of an event or contingency” be “associated

with a potential financial, economic, or commercial

consequence”; or the “economic consequence” requirement.

32 KALSHIEX, LLC V. ASSAD

7 U.S.C. § 1a(47)(A)(ii). The majority in Flaherty relied on

this reasoning. Flaherty, 172 F.4th at 227–28 (concluding

that “[t]he outcome of sports event certainly can be

associated with a potential financial, economic, or

commercial consequence.”). Kalshi argues that payment

under its sports event contracts depends on the “outcome of

sporting events” which are “connected with financial

consequences” for “stakeholders[] team sponsors,

advertisers, television networks, franchises, local

communities, and more.”

The district court rejected Kalshi’s argument based on

potential financial consequences that are “extrinsic to the

parties to the contract.” Hendrick II, 817 F. Supp. 3d at

1027. It concluded that, under Kalshi’s argument, “anything

imaginable about a potential downstream financial

consequence” would satisfy the economic consequence

requirement. Id. To avoid this absurdity, the district court

concluded that “associated with” as used in § 1a(47)(A)(ii)

“means that the event or contingency must be inherently

associated with a potential financial [or economic]

consequence, not just that the event or contingency have

some potential downstream financial consequence.” Id. at

1027–28.

This interpretation is supported by the plain meaning of

“associate.” See Associate, WEBSTER’S NEW WORLD

COLLEGE DICTIONARY 86 (4th ed. 2004) (“connect” or “join

together” or to “connect in the mind”); Associate, OXFORD

ENGLISH DICTIONARY (2025), https://perma.cc/2SVL-6HSE

(“[t]o connect in idea”). Kalshi contends that, under its

theory, practically nothing “even in the abstract” is “not

going to have even a potential financial or economic

consequence.” But reading the statute so expansively as to

include any conceivable downstream economic consequence

KALSHIEX, LLC V. ASSAD 33

would render the definition of swap so broad as to be

meaningless. See United States v. Lopez, 514 U.S. 549, 565

(1995) (rejecting a “rationale [that] lacks any real limits

because, depending on the level of generality, any activity

can be looked upon as commercial”). We decline to read

Congress’s deliberately chosen words so broadly.

Additionally, we agree with the district court that,

reading “associated with” narrowly is supported by the

surrounding statutory language. Hendrick II, 817 F. Supp.

3d at 1027. As discussed, the other subparts of the definition

of “swap” refer “almost exclusively to financial measures,

indices, or instruments.” Id.; 7 U.S.C. § 1a(47)(A). While

some of the identified swaps, such as an emissions swap or

a weather swap, do not refer to a financial instrument or

measure, weather and emissions are unlike the winner of a

sports game or the number of points scored during a game,

or similar sports event contracts offered by Kalshi.

ii

Kalshi also asserts that “the Special Rule [in 7 U.S.C.

§ 7a-2(c)] is irrefutable textual proof that Congress intended

the CFTC—not 50 states—to make a public-interest

determination regarding swaps and event contracts

involving ‘gaming.’” But Kalshi’s self-certification and

listing of these contracts is unlawful under this Special Rule,

and its associated regulation, 17 C.F.R. § 40.11.

When Kalshi registered as a DCM, it certified that it

would abide by all CFTC regulations. The CEA provides

that a “registered entity may elect to list for trading or accept

for clearing any new contract . . . by providing to the

Commission . . . a written certification that the new contract

. . . complies with this chapter (including regulations under

this chapter.)” § 7a-2(c)(1).

34 KALSHIEX, LLC V. ASSAD

In a subsection titled “Prohibition,” § 40.11 provides that

“[a] registered entity shall not list for trading . . . [a]n

agreement, contract, transaction or swap based upon an

excluded commodity, as defined in Section 1a(19)(iv) of the

Act, that involves, relates to, or references . . . gaming, or an

activity that is unlawful under any State or Federal law” 6).

17 C.F.R. § 40.11(a) (emphasis added). The CFTC included

this prohibition to “prevent gambling through the futures

markets.” Provisions Common to Registered Entities, 76

Fed. Reg. 44776, 44786 (July 27, 2011) (internal quotation

marks omitted). Kalshi, joined now by the CFTC, misreads

the regulation and asserts that the Special Rule (1) allows

contracts related to gaming, terrorism, and assassination

unless the CFTC acts to remove them, and (2) that sports

event contracts do not involve gaming. We disagree because

this argument fails to properly account for § 40.11.

On the first point, the regulation is clear. “A registered

entity shall not list for trading . . . a contract, transaction, or

swap based on an excluded commodity,” that “involves,

relates to, or references terrorism, assassination, war, [or]

gaming.” 17 C.F.R. § 40.11(a) (emphasis added). And

“[t]he word ‘shall’ has traditionally been interpreted as

mandatory direction in a statute.” In re Thrift Shoe Co., Inc.,

502 F.2d 1211, 1213 (9th Cir. 1974) (citation omitted); see

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523

6

The definition of “excluded commodity,” includes “an occurrence,

extent of an occurrence, or contingency . . . that is . . . beyond the control

of the parties to the relevant contract, agreement, or transaction; and

associated with a financial, commercial, or economic consequence.” By

citing to § 7a-2(c)(5)(C)(i), which uses a similar definition to refer to

“event contracts,” including “swaps in excluded commodities,” Kalshi

seems to characterize its sports event contracts as fitting within this

definition of “excluded commodities.” See § 7a-2(c)(5)(C)(i).

KALSHIEX, LLC V. ASSAD 35

U.S. 26, 35 (1998) (referring to shall as “mandatory”).

Giving the word “shall” its traditional statutory meaning, the

regulation’s use of the phrase “shall not” prohibits Kalshi

from listing its sports event contracts on a DCM and “creates

an obligation impervious to judicial discretion.” Lexecon,

523 U.S. at 35. The CFTC’s contrary view is not entitled to

deference. See Loper Bright, 603 U.S. at 401.

The CFTC “may determine” that contracts involving

“gaming” are “contrary to the public interest.” § 7a-

2(c)(5)(C)(i), (ii). Thus, in addition to prohibiting the listing

of contracts that involve gaming, § 40.11(c) provides that

“[t]he Commission may determine” that a contract relates to

“an activity enumerated in § 40.11(a),” and subject it to a 90-

day review. § 40.11(c). Following that review, the CFTC

“shall issue an order approving or disapproving” the

contract. § 40.11(c)(2). The CFTC never invoked the 90-

day review or issued an order approving Kalshi’s sports

event contracts. CFTC Ltr. No. 25-36, Comm. Fut. L. Rep.

¶ 35563 (Sept. 30, 2025). Thus, Section 40.11(c)’s

discretionary authority was never used—and § 40.11(a)’s

prohibition on Kalshi listing for trading on its DCM sports

event contracts, that are in substance gaming contracts,

remains in effect. § 40.11(a).

Our sister circuit essentially disregarded § 40.11’s

prohibition on listing gaming-related transactions, when it

said that the CFTC “has not yet acted to review or prohibit

any sports-related event contracts.” Flaherty, 172 F.4th at

227 (emphasis added). And the Flaherty majority’s

observation about CFTC’s lack of review proves our point.

Although the CFTC has not initiated review of these specific

sports event contracts, it published § 40.11(a), which

prohibits Kalshi from listing them. The CFTC’s Notice of

Proposed Rulemaking (NPRM), which Kalshi cited as

36 KALSHIEX, LLC V. ASSAD

supplemental authority under Fed. R. App. 28(j), reaffirms

our view on the regulation as currently written. Until

§ 40.11(a) is amended in the manner described in the NPRM,

it bars Kalshi’s gaming-related contracts from being listed

on a DCM. As of now, the existing regulation controls. See

Ctr. for Food Safety v. Vilsack, 718 F.3d 829, 843 (9th

Cir. 2013) (“[P]roposed regulations have no legal effect.”).

The Special Rule did not give the CFTC any more

preemptive authority over gaming than it gave the CFTC

authority over terrorism or assassination and the other

underlying “excluded commodities.” To illustrate this,

consider the CFTC’s interpretation that “products

historically treated as insurance products” are not considered

swaps by the CFTC. Further Definition of “Swap”, 77 Fed.

Reg. 48208, 48246 (Aug. 13, 2012). Suppose Kalshi, in

violation of that understanding, self-certified a life-insurance

contract, to be paid out to the buyer contingent on the

occurrence of an “event” (someone’s death) associated with

a financial consequence (either the payout of the contract or

some other downstream consequence). If the CFTC either

failed or declined to remove this contract from Kalshi’s

DCM, as it has failed or declined to enforce § 40.11

regarding sports event contracts, we would not conclude that

all 50 states and all non-CFTC federal agencies are

prohibited from regulating these life insurance policies on

the ground that they constitute swaps traded on a DCM. And

Kalshi does not suggest as much. Kalshi’s current argument

about gambling contracts similarly fails. The CEA’s scheme

simply is not as expansive as Kalshi would like.

This prompts the question whether Kalshi’s sports event

contracts “involve[], relate[] to, or reference[] . . . gaming”

under § 40.11(a). If not, then § 40.11(a) would not ban

listing them on DCMs. We do not defer to the CFTC’s

KALSHIEX, LLC V. ASSAD 37

definition of gaming. See Loper Bright, 603 U.S. at 385. As

discussed, under any reasonable interpretation, Kalshi’s

sports event contracts relate to gaming. If these are not

“gaming” contracts, then the Special Rule has no relevance.

Before Kalshi tried to bootstrap these contracts onto the

DCM, Kalshi shared our understanding. Two years ago,

Kalshi asserted to the D.C. Circuit that “[t]he proper

interpretation is again simple, ‘gaming,’ as used in the

special rule refers to playing games or playing games for

stakes.” Brief for Appellee KalshiEX, LLC, KalshiEx LLC

v. Commodity Futures Trading Comm’n, 119 F.4th 58 (D.C.

Cir. 2024); No. 24-5205, 2024 WL 4802698, at *17, 41. In

contrast to its current position, it contended that “[a]n event

contract therefore involves ‘gaming’ if it is contingent on a

game or a game-related event—like the Kentucky Derby,

Super Bowl, or Masters golf tournament . . . .” Id. at * 17.

Kalshi reiterated that “[a]n event contract thus involves

‘gaming’ if it is contingent on a game or a game-related

event.” Id. at *41. Kalshi concluded that “[t]he classic

example is a contract on the outcome of a sporting event; as

the legislative history directly confirms, Congress did not

want sports betting to be conducted on derivatives markets.”

Id. We agree.

The change in Kalshi’s arguments reflects its new

business strategy—offering sports event contracts—and the

reality that this strategy generates substantial and significant

revenue. But this business strategy does not affect our duty

“to say what the law is.” Marbury, 5 U.S. (1 Cranch) at 177.

iii

Read purely in isolation, Kalshi’s expansive reading of

“swap” has “a colorable textual basis.” West Virginia v.

EPA, 597 U.S. 697, 722 (2022). But “extraordinary grants

38 KALSHIEX, LLC V. ASSAD

of regulatory authority are rarely accomplished through

modest words, vague terms, or subtle devices . . . Something

more than a merely plausible textual basis for the agency

action is necessary.” Id. at 723 (cleaned up).

There is no such clear congressional authorization here.

To be sure, “Congress can regulate sports gambling directly”

should it choose to do so. Murphy v. NCAA, 584 U.S. 453,

486 (2018). But Congress has not done so directly, or

indirectly through the CFTC. And “if it elects not to do so,

each State is free to act on its own.” Id. The Dodd-Frank

Wall Street Reform Act cannot be read as a direct (or

indirect) regulation of sports gambling, and the CFTC is not

a national gambling regulator. No one suggested it was until

over a decade after the law was passed. “If an agency wants

to exercise expansive regulatory authority over” a major

issue like gambling, “an ambiguous grant of statutory

authority is not enough.” United States Telecom Ass’n v.

FCC, 855 F.3d 381, 421 (D.C. Cir. 2017) (Kavanaugh, J.,

dissenting from the denial of rehearing en banc). Instead,

“Congress must clearly authorize an agency to take such a

major regulatory action.” Id.

Finally, accepting Kalshi’s argument that Congress

delegated its power to regulate gambling (a power

traditionally exercised by the States and Tribes) to the CFTC

when it passed Dodd-Frank would create a major-questions

problem. See West Virginia, 597 U.S. at 724 (explaining that

the major questions doctrine refers to the problem of

“agencies asserting highly consequential power beyond

what Congress reasonably understood to have been

granted”). This is because adopting Kalshi’s view that sports

event contracts are swaps results in a reading of the CEA that

gives the CFTC regulatory authority over sports betting—an

area that has long been regulated by the States and Tribes.

KALSHIEX, LLC V. ASSAD 39

See Ah Sin v. Wittman, 198 U.S. 500, 505–06 (1905)

(concluding that the regulation “of gambling is concededly

within the police powers of a state”); see also Artichoke

Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 737, 740

(9th Cir. 2003) (stating that the regulation of gambling, a

“vice activity,” is a “function that lies at the heart of a state’s

police power” and collecting cases upholding state laws

regulating gambling); 15 U.S.C. § 3001(a)(1) (providing

that “the States should have the primary responsibility for

determining what forms of gambling may legally take place

within their borders”); 25 U.S.C. § 2701 (Indian Gaming

Regulatory Act).

Moreover, sports gambling involves “billions of dollars”

and affects “millions of people.” See Brief of New Jersey,

Ohio, 37 Other States, and the District of Columbia as

Amicus Curiae 22 (citing King v. Burwell, 576 U.S. 473, 485

(2015)). “Americans wagered almost $150 billion on sports

in 2024.” Id. (citation omitted). And states understandably

feel protective of their longstanding regulatory authority,

given the significant impact gambling has on society. See

id. at 27, 29 (“Millions of Americans qualify as problematic

or pathological gamblers. . . . And research reflects that those

who start gambling at a young age run a higher risk of

problematic gambling.”). As a result, the stakes are high

when it comes to gambling regulation. Thus, it is

implausible that Congress intended to allow the CFTC to

engage in the national regulation of gambling based on

expansive definitions of the words “event” and “associated

with” in a Wall Street reform bill.

When read “in their context with a view to their place in

the overall statutory scheme,” the words in the definition of

swap in § 1a(47)(A)(ii) cannot bear the weight Kalshi puts

on them. See West Virginia, 597 U.S. at 721 (quoting Davis

40 KALSHIEX, LLC V. ASSAD

v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)).

Congress does not “typically use oblique or elliptical

language to empower an agency to make a radical or

fundamental change to a statutory scheme.” Id. at 723

(cleaned up). Federal and state statutory schemes regulate

gaming. We have recognized that “[g]ambling does not

involve an inherently national system of regulation, given

the states’ long-understood authority in this area.” Flynt v.

Bonta, 131 F.4th 918, 932 (9th Cir. 2025) (citing Murphy,

584 U.S. at 484). And the Supreme Court has said that “each

State is free to act” in this area. Murphy, 584 U.S. at 486.

Nevada has acted in this area and created a comprehensive

regulatory regime, over a variety of gaming methods, that is

recognized as the “gold standard in gaming regulation.”

Becky Harris & Husna Alikhan, Part I: Nevada, Over 60

Years Regulating Gambling—A Jurisdictional Overview, 23

GAMING L. REV. 645, 645–49 (2019). Regulation of

gambling has been “vitally important to the economy of the

State and the general welfare of the inhabitants” for over a

century and a half; it is known around the world as the

premiere destination for trying one’s luck in a well-regulated

environment. See Nev. Rev. Stat. Ann. § 463.0129(1)(a). In

contrast, other states have banned the practice. See Murphy,

584 U.S. at 458–61 (stating that “Americans have never been

of one mind about gambling” and discussing the evolution

of gambling in the United States).

We are “reluctant to read into ambiguous statutory text”

a “radical or fundamental change” to that longstanding

statutory scheme. West Virginia, 597 U.S. at 723 (quotations

omitted). Congress did not take a wrecking ball to all sports

gambling regulations built up over decades by federal, state,

and tribal governments when it amended the CEA to add the

definition of swap we are considering today.

KALSHIEX, LLC V. ASSAD 41

The words “event” and “associated with” in the CEA’s

swap definition can yield competing, legitimate

interpretations. See § 1a(47)(A)(ii). But because Congress

has spoken on the issue of gambling in other statutes (and

did not impliedly repeal or amend those statutes through

Dodd-Frank), there is no limiting principle to Kalshi’s broad

reading of the definition of swap and adopting that reading

would assume that, by granting the CFTC regulatory

authority over gaming nationwide, Congress “hid an

elephant in a mousehole.” Thus, we conclude that these

sports event contracts are likely not swaps under the CEA. 7

2

Kalshi also argues that its contracts are “futures or

options in ‘excluded commodities.’” Excluded commodities

include “occurrence[s]” that are “associated with a financial,

commercial, or economic consequence.” § 1a(19)(iv). First,

there is a legitimate concern that the CFTC lacks exclusive

jurisdiction over excluded commodities because they are not

listed in § 2(a)(1)(A)’s exclusive jurisdiction grant. Kalshi

argues that excluded commodities are a subset of

commodity. We agree, however, with the district court that

such a reading does “not grammatically or logically make

sense.” Hendrick II, 817 F. Supp. 3d at 1034.

Likewise, even if excluded commodities fell under the

CFTC’s exclusive jurisdiction, these contracts still would

not qualify as excluded commodities because of the

economic consequence language. Section 1a(19)(iv)(II)

requires even excluded commodities under the CEA to be

7

Because the district court did not analyze whether Kalshi’s election

contracts, which are illegal under Nevada law and a fraction of Kalshi’s

business, fit within the CEA’s definition of swap, we remand for the

district court to consider this issue in the first instance.

42 KALSHIEX, LLC V. ASSAD

“associated with a financial, commercial, or economic

consequence.” This sets an even higher standard than the

swap definition, which allows for “potential” consequences.

§ 1a(47)(A)(ii). For the reasons stated, Kalshi’s sports bets

do not clear this consequence hurdle. See supra, at Section

III.B.1.b.i. As a result, Kalshi’s excluded commodity

argument fails.

C

We also reject Kalshi’s argument that the state

regulations are preempted under “conflict preemption,”

which “arises when state law conflicts with a federal

statute.” Canards, 33 F.4th at 1114 (citations omitted). One

form of conflict preemption—impossibility preemption—

“occurs when it is impossible for a private party to comply

with both state and federal law.” Id. (citation omitted).

Kalshi argues that it is impossible to comply with

Nevada law and the CEA, and that Nevada law poses an

obstacle to the CEA’s purposes. It argues that it cannot

provide its users with “impartial access” to its markets and

services, as required by the CFTC’s Core Principles, if it bars

Nevada residents from trading in sports event contracts. See

17 C.F.R. §§ 38.150, 38.151(b). Section 38.151(b) provides

that a DCM must “provide it members” and “persons with

trading privileges . . . impartial access to its markets and

services, including [a]ccess criteria that are impartial,

transparent, and applied in a discriminatory manner.” 17

C.F.R. § 38.151.

Kalshi’s argument offers a false, all-or-nothing

proposition. Kalshi contends that if Nevada’s enforcement

action against it continues, it would no longer be able to offer

sports event contracts in Nevada and, as a result, Kalshi

would be arguably violating the CEA’s “impartial access”

KALSHIEX, LLC V. ASSAD 43

requirement. But it does not explain why not offering sports

events contracts in Nevada would run afoul of § 38.151(b).

Moreover, “regulated entities” in Nevada use “geofencing.”

Hendrick II, 817 F. Supp. 3d at 1035. Kalshi could do the

same; it just refuses to do so and instead seeks a competitive

advantage over its competitors. Additionally, the district

court considered this argument extensively and found no

evidence that Kalshi would violate the CEA and thus be

subject to adverse action from the CFTC if it complied with

Nevada gaming laws. Hendrick II, 817 F. Supp. 3d at 1034–

35 (finding no evidence that CFTC would act against

registered entities if they complied with state law and court

orders while this litigation is ongoing).

Indeed, as another district court has noted, the CEA’s

Special Rule authorizing the CFTC to disallow contracts

“involv[ing] . . . activity that is unlawful under . . . state law”

establishes that state law and the CEA can coexist. Martin,

793 F. Supp. 3d 2025) (concluding that “the statutory

Special Rule in 7 U.S.C. § 7a-2(c) itself confirms that

Congress intended for at least some state laws to operate

alongside the CEA, not to be preempted by it”). Any other

asserted differences between the CEA and state-law

requirements show only that state law can be more protective

than federal law, which does not inherently create a conflict.

See Wyeth v. Levine, 555 U.S. 555, 573 (2009). Kalshi has

not shown that complying with Nevada law would

jeopardize its DCM status with the CFTC. On this record,

we conclude that no conflict preemption arises.

D

We also reject Kalshi’s argument that field preemption

applies. “Field preemption prohibits state regulation of

conduct in a field that Congress, acting within its proper

44 KALSHIEX, LLC V. ASSAD

authority, has determined must be regulated by its exclusive

governance.” Canards, 33 F.4th at 1114 (quotation

omitted). Field preemption can apply when Congress enacts

a regulatory scheme so comprehensive that it “has left no

room for States to regulate.” Arizona v. United States, 567

U.S. 387, 400 (2012). We agree with the Third Circuit’s

conclusion in Flaherty that the CEA is a comprehensive

regulatory scheme and “preempts state law purporting to

regulate futures trading.” 172 F.4th at 229. For instance, a

state would be both field and expressly preempted from

regulating weather or interest rate swaps under

§ 1a(47)(A)(iii) and § 2(a)(1)(A).

But courts should be careful to not interpret “the scope

of the preempted field too broadly.” Sikkelee v. Precision

Airmotive Corp., 822 F.3d 680, 689 (3rd Cir. 2016). When

conducting the field preemption analysis, we must

“consider[] the target at which the state law aims in

determining whether that law is pre-empted.” Oneok, Inc. v.

Learjet, Inc., 575 U.S. 373, 385 (2015).

While the CEA preempts the field of regulating swaps

traded on a DCM, § 2(a)(1)(A), the Nevada state laws and

regulations at issue (as identified in the cease-and-desist

letter the Board sent to Kalshi) regulate “gaming” activity,”

including operating an unlicensed “sports pool” in which

“wagers” on “sporting events or other events” are accepted,

a field which the CEA has not preempted. See Nev. Rev.

Stat. §§ 463.160(1)(a), (4); 463.245(2); 465.086, 465.092.

Congress has explicitly not occupied the field of gambling,

declaring that “the States should have the primary

responsibility for determining what forms of gambling may

legally take place within their borders.” 15 U.S.C.

§ 3001(a)(1). The Flaherty majority’s holding that field

preemption applied depended on its determination that

KALSHIEX, LLC V. ASSAD 45

“Kalshi’s sports-related event contracts are swaps” under the

CEA. 172 F.4th at 229. Because we disagree on that point,

see supra, at Section III.B, we similarly disagree with the

conclusion that the CEA has preempted the field of all state

gaming regulations.

For these reasons, Kalshi has failed to show a likelihood

of success on the merits of its preemption claims.

E

To warrant preliminary relief, Kalshi must also show that

it is likely to suffer irreparable harm in the interim, and that

an injunction is both equitable and in the public interest.

NetChoice, 152 F.4th at 1012. The district court did not

abuse its discretion in analyzing these factors.

1

Kalshi argues that, absent an injunction, it will suffer

irreparable harm, including the costs of geofencing and

closing out contracts in Nevada, and the “Hobson’s choice”

of choosing to comply with state law or to risk potentially

losing its DCM status. These are not irreparable harms. The

costs of geofencing are unlikely to be too expensive for a

company of Kalshi’s size, and the other harms are either

speculative or self-inflicted. See Hendrick II, 817 F.

Supp. 3d at 1035 (noting that Kalshi “greatly expanded its

offerings” despite knowing its sports contracts implicated

state law).

Kalshi speculates that it may lose its DCM status. But it

is “difficult to credit Kalshi’s fear given its apparent

willingness to risk its DCM status by listing contracts

involving gaming (however defined) in the face of the

CFTC’s regulation that prohibits DCMs from doing so.”

Hendrick II, 817 F. Supp. 3d at 1035. Additionally, on

46 KALSHIEX, LLC V. ASSAD

September 30, 2025, the CFTC sent a letter to DCMs

regarding “sport-related event contracts” to “caution” the

DCMs that “State regulatory actions and pending and

potential litigation, including enforcement actions, should be

accounted for with appropriate contingency planning” and

other measures including “close-out policies.”

Kalshi offered its sports event contracts despite the

CFTC’s prohibition. § 40.11. “When a harm is largely self-

inflicted, that fact severely undermines a claim for equitable

relief.” Bennett v. Isagenix Int’l LLC, 118 F.4th 1120, 1129

(9th Cir. 2024). And it is unlikely that any irreparable harm

is done by what is likely a lawful state enforcement

proceeding. The district court therefore did not abuse its

discretion in concluding this factor supports Nevada.

Hendrick II, 817 F. Supp. 3d at 1034–36.

2

The district court did not abuse its discretion on the

public interest and balance of equities issue. Id. at 1035–37.

It is true that “preventing a violation of the Supremacy

Clause serves the public interest” and would tip the balance

of equities in Kalshi’s favor. United States v. California,

921 F.3d 865, 893–94 (9th Cir. 2019). But this issue, like

irreparable harm, turns on our resolution of the likelihood of

success on the merits. Because we conclude that Kalshi has

not shown it is likely to succeed on the merits, the district

court did not abuse its discretion in concluding that the

public interest and equities favor Nevada’s ability to enforce

its state law. Cf. Bush v. Gore, 531 U.S. 98, 112 (2000)

(Rehnquist, C.J., concurring) (“In most cases, comity and

respect for federalism compel us to defer to the decisions of

state courts on issues of state law.”).

KALSHIEX, LLC V. ASSAD 47

IV

We affirm in part the district court’s order dissolving the

preliminary injunction enjoining the Nevada Gaming

Control Board, the Nevada Gaming Commission, and their

members in their official capacities from enforcing state

laws against Kalshi’s sports-related event contracts. The

CEA grants the CFTC exclusive jurisdiction over

“transactions involving swaps . . . traded or executed on” a

DCM. § 2(a)(1)(A). When given its broadest reading, the

definition of “swap” in § 1a(47)(A)(ii) might cover the

sports event contracts here and thus preempt Nevada law.

But that broad reading is not the best textual reading in

context, does not square with the statutory scheme, does not

have a limiting principle, and would raise concerns under the

major-questions doctrine. Therefore, the district court did

not err in its interpretation of the definition of swap. And

because the district court did not abuse its discretion in

concluding that the equities favor Nevada, we affirm the

district court’s order. We remand for the district court to

consider Nevada’s challenges to Kalshi’s election contracts

consistent with this opinion.

AFFIRMED IN PART AND REMANDED IN PART.

48 KALSHIEX, LLC V. ASSAD

LEE, Circuit Judge, concurring.

I largely agree with Judge Nelson’s excellent textual

analysis of the relevant provisions of the Commodities and

Exchange Act. The majority opinion rightfully avoids the

Third Circuit’s more literalist approach to textualism in

KalshiEx v. Flaherty, 172 F. 4th 220 (3rd Cir. 2026), and

instead interprets the text under its ordinary meaning and

within the statutory context. See Antonin Scalia & Bryan A.

Garner, Readling Law: The Interpretation of Legal Texts 56

(2012) (“The words of a governing text are of paramount

concern, and what they convey, in their context, is what the

text means.”); id. at 69 (“Words are to be understood in their

ordinary, everyday meanings—unless the context indicates

that they bear a technical sense.”).

I thus agree with the majority opinion that the more

natural reading of “event” under the statutory definition of a

“swap” would not include the outcome of a sporting event—

even if a broad and literal definition of “event” could

encompass it. 7 U.S.C. § 1a(47)(A). Few people would

describe, say, the New York Mets’ latest loss of a game as

an “event.” Likewise, I do not think the outcome of a typical

sports game is “associated with a potential financial,

economic, or commercial consequence” as required under

the definition of a swap. Id. at § 1a(47)(A)(ii). Going back

to the Mets example, perhaps in an uber-technical sense a

Mets’ loss could have marginal economic impact as some

fans guzzle more beer to drown away their sorrows. But it

seems somewhat fanciful to say that the outcome of a single

game in a 162-game season is likely “associated” with a

“financial, economic, or commercial consequence” that one

would expect in a swap contract.

KALSHIEX, LLC V. ASSAD 49

Admittedly, reasonable people may disagree with these

interpretations. But the major questions doctrine offers

contextual clues for reading broad and abstract words so that

we interpret them under their ordinary meaning. Stated

differently, the major questions doctrine helps narrow the

potential meaning of vague statutory terms from a universe

of possible to a realm of probable when dealing with major

governmental actions. Here, “the ‘history and the breadth of

the authority that the agency has asserted,’ and the

‘economic and political significance’ of that assertion,

provide a ‘reason to hesitate before concluding that

Congress’ meant to confer such authority.” West Virginia v.

EPA, 597 U.S. 697, 700 (2022) (quoting FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000))

(internal brackets omitted). Given that sports gambling is a

multibillion-dollar industry historically regulated by states

and Indian tribes, it would seem odd to read abstract terms

such as “event” and “financial, economic, or commercial

consequence” as upending this longstanding regulatory

regime.

One statutory provision, however, gives me pause. The

Special Rule provision says that the “Commission may

determine that [certain contracts or swaps] are contrary to

the public interest if” they “involve . . . gaming.” 7 U.S.C.

§ 7a-2(c)(5)(c)(i) (emphasis added). The statute thus

appears to give the CFTC discretion whether to ban

altogether gaming contracts. Put another way, the statute

does not seem to categorically bar all gaming contracts,

despite the text and contextual clues suggesting otherwise.

So perhaps some unique sports events can be part of a swap

trade if they meet the statutory requirements.

Neither party has focused much on this provision—for

obvious reasons. Kalshi has not relied on this provision

50 KALSHIEX, LLC V. ASSAD

because CFTC, exercising its authority under the Special

Rule provision, has issued a rule banning gaming contracts.

17 C.F.R. § 40.11. Nevada has been largely quiet because

the Special Rule complicates the statutory analysis.

Ultimately, I do not think we need to resolve this thorny

statutory interpretation question right now because 17

C.F.R. § 40.11 bars gaming contracts. While CFTC has

proposed revising that regulation, it remains in the books and

controls the outcome of this appeal.