USCA Case #24-5205 Document #2074495 Filed: 09/12/2024 Page 1 of 2
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`51 LOUISIANA AVENUE, N.W. • WASHINGTON, DC 20001.2113
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`TELEPHONE: +1.202.879.3939 • JO NESDAY .CO M
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`Direct Number: +1.202.879.7658
`yroth@jonesday.com
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`September 12, 2024
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`CM/ECF
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`Mark Langer
`Clerk of Court
`U.S. Court of Appeals for the D.C. Circuit
`333 Constitution Ave., NW
`Washington, DC 20001
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`Re: KalshiEx LLC v. Commodity Futures Trading Commission (No. 24-5205)
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`Dear Mr. Langer:
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`In response to the emergency motion filed this afternoon by Appellant Commodity Futures
`Trading Commission (CFTC), Appellee KalshiEx LLC (Kalshi) respectfully opposes the entry of
`an administrative stay. After full briefing and oral argument, Judge Cobb issued a thorough
`opinion holding that the CFTC “exceeded its statutory authority” when it blocked Kalshi from
`issuing event contracts that turn on control of Congress (Congressional Control Contracts). See
`D.Ct. Op. 2. After a brief administrative stay to allow for full consideration of the Commission’s
`request for a stay pending appeal, Judge Cobb declined to issue one—finding on the record at a
`hearing that the stay factors “weigh strongly” in Kalshi’s favor. Tr. 27:25. In particular, Judge
`Cobb correctly found that (i) the CFTC is unlikely to succeed on the merits; (ii) Kalshi would
`suffer substantial harm from a stay; and (iii) the CFTC had failed to show that a stay was needed
`to prevent irreparable harm or protect the public interest. See Tr. 25:12–28:6.
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`Kalshi will promptly oppose the CFTC’s renewed stay motion on the merits in this Court.
`But in the meantime, no administrative stay is necessary or appropriate. Judge Cobb’s decision
`on the merits was clearly correct because the statute empowers the CFTC to block event contracts
`only if they involve (as relevant here) “gaming” or “unlawful activity.” D.Ct. Op. 14. As Judge
`Cobb observed, elections are neither. Her assessment of the remaining stay factors was correct,
`too. “There is generally no public interest in the perpetuation of unlawful agency action.” League
`of Women Voters v. Newby, 838 F. 3d 1, 12 (D.C. Cir. 2016). And the CFTC’s assertions that
`these contracts will somehow harm democracy are unsubstantiated and baseless—particularly
`given that hundreds of millions of dollars are currently trading on (unregulated) election prediction
`markets right now. See, e.g., https://www.predictit.org/; https://polymarket.com/. Meanwhile,
`with the election just weeks away, Kalshi will suffer serious and irreparable harm from any further
`delay. There are thus no grounds for even a brief administrative stay—much less a stay pending
`appeal. See generally D.Ct. Dkt. 49 (Kalshi’s Opposition to CFTC’s Stay Motion).
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`AMSTERDAM • ATLANTA • BEIJING • BOSTON • BRISBANE • BRUSSELS • CHICAGO • CLEVELAND • COLUMBUS • DALLAS
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`DETROIT • DUBAI • DÜSSELDORF • FRANKFURT • HONG KONG • HOUSTON •
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`IRVINE • LONDON • LOS ANGELES • MADRID
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`MELBOURNE • MEXICO CITY • MIAMI • MILAN • MINNEAPOLIS • MUNICH • NEW YORK • PARIS • PERTH • PITTSBURGH
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`SAN DIEGO • SAN FRANCISCO • SÃO PAULO • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHINGTON
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`USCA Case #24-5205 Document #2074495 Filed: 09/12/2024 Page 2 of 2
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`September 12, 2024
`Page 2
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`If this Court is nevertheless inclined to enter an administrative stay pending consideration
`of the CFTC’s motion for a stay pending appeal, such a stay should be as brief as possible, to
`minimize the serious harms that will flow from staying the District Court’s ruling, pausing trading
`on contracts that have already been listed,1 and allowing the CFTC’s unlawful order to remain in
`effect. “An administrative stay should last no longer than necessary to make an intelligent decision
`on the motion for a stay pending appeal.” United States v. Texas, 144 S. Ct. 797, 799 (2024) (op.
`of Barrett, J.). Kalshi is prepared to respond to the CFTC’s motion within 24 hours, if not sooner,
`which should allow a motions panel of this Court to rule by Monday, September 16, or as soon as
`possible thereafter.
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`Respectfully submitted,
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`/s/ Yaakov M. Roth
`Yaakov M. Roth
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`Counsel for Appellee
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`1 As the Commission and the District Court both recognized, see Tr. 33:5–34:3, Judge Cobb’s
`denial of the Commission’s stay motions this morning authorized Kalshi to list the Congressional
`Contracts. They were indeed listed in the early afternoon, and are now actively trading.
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