USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 1 of 17
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
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`KALSHIEX LLC,
`Appellee/Plaintiff,
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`
`
`
`
`v.
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`No. 24-5205
`(Appeal from Case No. 1:23-cv-03257)
`
`COMMODITY FUTURES TRADING
`COMMISSION,
`
`
`Appellant/Defendant.
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`
`
`
`CFTC’S REPLY IN SUPPORT OF
`MOTION FOR STAY PENDING APPEAL
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`At issue is whether large-dollar election gambling should commence—
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`during this election season—before this Court can decide whether the Commodity
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`Exchange Act (“CEA”) authorized the Commodity Futures Trading Commission
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`(“Commission” or “CFTC”) to disallow that activity on futures exchanges.
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`KalshiEX LLC (“Kalshi”) argues it will suffer irreparable harm if it is not allowed
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`to launch election gambling right now. But Kalshi’s claims of financial loss are
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`deeply misleading and, in any event, pale compared to the harm that would flow
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`from allowing election gambling on U.S. futures markets. The CFTC respectfully
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`asks this Court to stay the district court’s September 6 and September 12, 2024
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`orders [Dkt. 47, 51] and enjoin Kalshi from offering election contracts during the
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`KALSHIEX LLC,
`Appellee/Plaintiff,
`
`
`
`
`
`v.
`
`No. 24-5205
`(Appeal from Case No. 1:23-cv-03257)
`
`COMMODITY FUTURES TRADING
`COMMISSION,
`
`
`Appellant/Defendant.
`
`
`
`
`
`CFTC’S REPLY IN SUPPORT OF
`MOTION FOR STAY PENDING APPEAL
`
`At issue is whether large-dollar election gambling should commence—
`
`during this election season—before this Court can decide whether the Commodity
`
`Exchange Act (“CEA”) authorized the Commodity Futures Trading Commission
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`(“Commission” or “CFTC”) to disallow that activity on futures exchanges.
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`KalshiEX LLC (“Kalshi”) argues it will suffer irreparable harm if it is not allowed
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`to launch election gambling right now. But Kalshi’s claims of financial loss are
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`deeply misleading and, in any event, pale compared to the harm that would flow
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`from allowing election gambling on U.S. futures markets. The CFTC respectfully
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`asks this Court to stay the district court’s September 6 and September 12, 2024
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`orders [Dkt. 47, 51] and enjoin Kalshi from offering election contracts during the
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 2 of 17
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`pendency of this appeal. This Court should have the opportunity to review the
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`district court’s missteps in allowing this election gambling to take place. Without a
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`stay, Kalshi will relaunch its betting markets, and the CFTC will have little or no
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`recourse to stop Kalshi, or other entrants, from offering a panoply of wagers on the
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`outcome of U.S. elections.
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`ARGUMENT
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`A.
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`The CFTC Has Established Likelihood of Success on the Merits.
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`The district court concluded that the CFTC had not established likelihood of
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`success because its arguments had not persuaded that court. Sept. 12 Tr. at 26:15-
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`20 (“I think I’m right and I don’t think that that factor has been satisfied.”). But
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`that is not the standard. The CFTC need only show “questions going to the merits
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`so serious, substantial, difficult and doubtful, as to make them a fair ground for
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`litigation and thus for more deliberative investigation,” Wash. Metro. Area Transit
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`Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977), which it has.
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`1. The District Court Misconstrued “Involve.”
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`Under the pertinent statute, the CFTC can prohibit an event contract from
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`listing “if the agreements, contracts, or transactions involve” one or more
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`enumerated categories. 7 U.S.C. 7a-2(c)(5)(C) (emphasis added). Nevertheless,
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`the district court held that the word “involve” “can only be referring to the
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`underlying commodity or subject of the transaction,” not the contracts or
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`2
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 3 of 17
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`transactions as a whole. [Dkt. 51 (“Op.”) at 23]. There is “fair ground for
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`litigation and thus for more deliberative investigation” on this point. Holiday
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`Tours, 559 F.2d at 844. As the CFTC argued, Kalshi’s contracts, and transactions
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`in those contracts, involve gaming because the contracts “relate closely” to gaming
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`and it is their “essential feature,” and that is what “transactions” in those contracts
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`“entail” [Dkt. 30 at 20-26; Dkt. 37 at 2-7], each of which descriptor is in the agreed
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`definition of “involve” [Op. 20]. This is similarly true of illegal activity.
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`Kalshi, not the CFTC, ignores the text of the statute. The district court held
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`“a contract or transaction ‘involves’ an enumerated activity … if the event [i.e., the
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`underlying] … relates to that activity.” [Op. 26]. But in the statute, the word
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`“involve” modifies “the agreements, contracts, or transactions,” not the underlying
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`event. 7 U.S.C. § 7a-2(c)(5)(C)(i). There is only one statutory requirement for the
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`underlying—the instrument or transaction must be “based upon” an event, id.,
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`which the CEA uses in reference to the underlying, 7 U.S.C. § 2(a)(1)(C)(ii).1
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`“Based upon” and “involve” must have different meanings, with the former
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`explicitly referring to the underlying and the latter, explicitly, to the agreement,
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`contract, or transaction more broadly.
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`1 See also 7 U.S.C. §§ 2(a)(1)(C)(i)(I), 2(a)(1)(C)(iv), 6b(e) (using “based on”).
`3
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 4 of 17
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`Kalshi has no answer to this point, and the district court simply missed it.
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`Because the district court confused the “based upon” clause with the “involve”
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`clause, the CFTC is likely to succeed on the merits.
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`Kalshi insists that the CFTC has no likelihood of success because it is
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`impossible to think of an example where transacting in a contract “amounts to” the
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`statutory categories of war, terrorism or assassination, thus a contract or transaction
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`can only involve such a category if the underlying event “involves” that category.2
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`But that makes no difference. It does not change the plain language of the statute,
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`in which “involve” modifies “the agreements, contracts, or transactions” without
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`limitation, and without linking the word “involve” to the “based upon” clause,
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`which alone establishes the requirement for the underlying. Congress deliberately
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`chose a word (“involve”) with “expansive connotations,” United States v.
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`Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003), and tied it to the “agreements,
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`contracts, or transactions” as a whole.
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`Such a sweeping term could apply to different concepts in different ways.
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`An “agreement, contract, or transaction” could involve gaming if a game were its
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`2 “Amounts to” is not even the definition the Commission relied on, other than
`passing mention in a footnote as an “example.” AR 7 n.19. The Commission
`prominently relied on definitions including “to relate to or affect,” “to relate
`closely,” to “entail,” or to “have as an essential feature or consequence.” AR 7.
`4
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 5 of 17
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`underlying. But to say that is the only way an instrument or transaction can
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`“involve” gaming violates the plain meaning of the term.
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`Kalshi cites Clark v. Martinez, 543 U.S. 371, 378 (2005), for the proposition
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`that a term must apply “without differentiation” to a set of “categories.” But in
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`Clark, the Court rejected giving “the same word[] a different”—and
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`contradictory—“meaning for each category.” Id. Here, “involve” by its plain
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`meaning can, without contradiction, embrace situations where an agreement,
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`contract, or transaction involves an enumerated activity in differing ways.3
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`2. The District Court Misconstrued “Gaming.”
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`The Commission construed “gaming” according to its ordinary, dictionary
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`definition as synonymous with “gambling,”4 and, on the facts before it, as
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`including gambling on the outcome of a contest of others. AR 10. Because
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`3 The district court also rejected the statutory term “transaction,” holding that it
`means “instrument” simply because an agreement or contract is an instrument, and
`only an instrument can be “listed.” But the district court overlooked the very next
`phrase, which says the transaction also may not be “made available for clearing.”
`A transaction can be cleared. Clearing Organization, CFTC Glossary,
`https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/CFTCGlossary/ind
`ex.htm#C (“An entity through which futures and other derivative transactions are
`cleared and settled.”), so this language is no basis to conflate “transaction” with
`“instrument.”
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` See, e.g., https://thelawdictionary.org/gaming/ (last visited Sept. 13, 2024) (“In
`general, the words ‘gaming’ and ‘gambling,’ in statutes, are similar in meaning.”).
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` 4
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`5
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 6 of 17
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`Kalshi’s contracts involve staking something of value on the outcome of elections,
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`they fall within the ordinary definition of “gaming.”
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`The district court erroneously rejected the CFTC’s definition, concluding
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`“gaming” requires a “game.” Op. 15-16. Yet the court ignored that the very
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`dictionary it cited lists “gambling” as a synonym for “gaming.”5 And the statute’s
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`legislative history indicates that Congress sought “to prevent . . . gambling through
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`futures markets” and “derivatives contracts” that “exist predominately to enable
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`gambling.” 156 Cong. Rec. S5906-07 (daily ed. July 15, 2010), 2010 WL
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`2788026.
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`The district court also erroneously concluded that the definition of “gaming”
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`as “gambling” was “unworkable” because it would subject all event contracts to
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`the Special Rule. Op. at 15-16. To the contrary, the Commission acknowledged
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`that some state law definitions of “gaming” could arguably capture all contingent
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`events, AR 8, and it eschewed those definitions, AR 10. The CFTC did not
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`implicitly adopt every alternative definition in every source it cited, any more than
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`a court adopts every alternative definition in its preferred dictionary. The district
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`court erroneously based its ruling on a definition the CFTC did not apply.
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`
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`5 http://www.merriam-
`webster.com/dictionary/gaming (defining the noun “gaming” as “the practice or
`activity of playing games for stakes: gambling”) (last visited Sept. 13, 2024).
`6
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`Finally, the district court stated it did not find the sources cited by the CFTC
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`“relevant,” and that the Commission should have relied upon other sources. Op.
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`17-18. Kalshi, more bluntly, accuses the CFTC of “gerrymandering.” Oppos. 17.
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`But the question before the Commission was whether Kalshi’s contracts, designed
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`to wager on the outcome of elections, were within the ordinary meaning of
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`“gaming.” After concluding that they were, the Commission was not required to
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`consider other sources or formulate a prospective rule of general applicability. A
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`contract that did not involve wagering on a contest of others would present
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`different considerations.6 An agency “retain[s] power to deal with … problems on
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`a case-to-case basis.” SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947). Courts
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`often do the same. See e.g., Strothers v. City of Laurel, 895 F.3d 317, 331 (4th Cir.
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`2018) (“[W]e need not test the definition’s outer limits.”); Fink v. Time Warner
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`Cable, 810 F. Supp. 2d 633, 643 (S.D.N.Y. 2011) (finding no “need[] to define the
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`outer limits of the concept, [because] the term ‘access’ should be interpreted
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`broadly enough to include Defendant's alleged conduct”); see also United States v.
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`6 The district court also mistakenly believed that “contest” is a synonym for
`“game.” Even in the Kalshi-endorsed Oxford English Dictionary, “contest”
`includes other “conflict,” “contention,” and “struggle for victory.” Contest,
`Oxford English Dictionary (not mentioning entertainment until the third alternate
`definition).
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`7
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 8 of 17
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`Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987) (noting “no issue arises concerning the
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`outer limits of the meaning of ‘danger to the community’”).
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`3. The District Court Misconstrued Unlawful Activity.
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`As to the Commission’s unlawful activity finding, again the district court
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`premised its decision on “involve,” which it held means “relates in some way,”
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`while acknowledging it only needed to do so “broadly.” [Op. 21]. In the court’s
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`mistaken view, because the Special Rule does not apply when trading a contract
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`amounts to the enumerated activity (misstating the definitions the Commission
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`applied, see supra n.2), this category was not met either. [Op. 22]. But even on
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`the district court’s terms, the contracts relate broadly to unlawful activity.
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`“Unlawful under state law” focuses on state interests. It is not about
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`whether the contracts would violate state law if they traded on a DCM—clearly the
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`CEA would preempt that law. Rather, the election contracts involve unlawful
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`activity because they undermine state interests other than gambling regulation. AR
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`13 n.28. To illustrate, many state laws ban the sale of marijuana, but those laws
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`don’t forbid trading futures contracts on its price; hence, the drug laws are not
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`preempted. However, the Commission could invoke the Special Rule to ask
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`whether trading an event contract on the price of marijuana would undermine state
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`interests in drug laws.
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`8
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 9 of 17
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`The analysis here is the same. The Commission cited 22 state statutes and
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`18 cases that forbid betting on elections. AR 11-12, n.26, 27. These laws express
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`interests in election integrity. The Commission properly determined that the
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`election contracts involved—or “relate[d] in some way (admittedly broadly)” [Op.
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`21]—to unlawful activity because the contracts undermined those state interests in
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`protecting elections. Op. 21. Stated differently, even under the district court’s
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`flawed but “broad” construction of “involve,” these contracts sufficiently relate to
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`unlawful activity.
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`Public Interest and Irreparable Injury Favor a Stay.
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`B.
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`The district court’s order has been construed by Kalshi and others as open
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`season for election gambling. Immediately after the decision, Kalshi’s website
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`boasted that more election contracts would be coming soon. Another CFTC-
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`registered platform announced a new betting market for the Harris-Trump contest.7
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`Without a stay, other DCMs will follow suit. An explosion in election gambling on
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`U.S. futures exchanges will harm the public interest.8
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`7 https://www.wsj.com/finance/election-betting-is-going-mainstream-after-major-
`brokerage-gets-on-board-595bc9a6.
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` Kalshi states inaccurately that only institutions can wager up to $100 million.
`That limit also applies to wealthy individuals. 7 U.S.C. § 1a(18)(A)(xi) (“eligible
`contract participant”).
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` 8
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`9
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 10 of 17
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`Irreparable injury is established when “harm has occurred in the past and is
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`likely to occur again.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
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`1985). Here, documented cases of market manipulation have already been realized
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`in the very markets Kalshi points to. On PredictIt,9 a fake poll showing Kid Rock
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`leading Senator Stabenow 30% to 26% moved the price of the re-election contract
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`for Senator Stabenow.10 Polymarket experienced a “spectacular manipulation”
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`attempt by a group of traders betting heavily on Vice President Harris.11 In 2012,
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`one trader bet millions on Mitt Romney, likely to make the U.S. presidential
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`election seem closer than it was.12 These examples are not mere speculation;
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`manipulation has happened and is likely to recur.
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`Unwitting participants may believe Kalshi’s contracts are less susceptible to
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`manipulation or misinformation because they are on a regulated exchange, but this
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`9 PredictIt is not a DCM; it operates pursuant to a CFTC Staff Letter,
`https://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/14-
`130.pdf.
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`10 Tyler Yeargain, Fake Polls, Real Consequences: The Rise of Fake Polls and the
`Case for Criminal Liability, 85 MO. L. REV. 129 (2020).
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`11 It only “failed” in the sense that the perpetrators lost money—the episode caused
`“sharp price movements.” https://rajivsethi.substack.com/p/a-failed-attempt-at-
`prediction-market.
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`12 https://slate.com/news-and-politics/2013/09/2012-intrade-paper-suggests-a-
`single-intrade-trader-spent-millions-to-make-it-look-like-mitt-romney-could-
`win.html.
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`10
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 11 of 17
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`should heighten concern for the public interest, not allay it.13 Kalshi argues that
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`the CFTC can simply use its enforcement authority, but such enforcement actions
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`are typically filed after financial damage is done. The CFTC cannot remediate
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`damage to election integrity after the fact.
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`The Commission is not alone in its concerns. Elected officials expressed
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`alarm during the review process. See AR 2816-17; AR 2818, Sen. Klobuchar, et
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`al.; AR 2273-76, Representatives Sarbanes and Raskin. More recently, Senator
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`Merkley called this a “nightmare” scenario and “deeply corrupting.”14
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`Kalshi suggests that a stay will deprive the public of the predictive value of
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`its contracts. However, the contracts’ predictive value is questionable considering
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`Kalshi’s admission that the contracts are susceptible to manipulation. Dkt. 36 at
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`30. There is no guarantee Kalshi’s market would be accurate. Betting markets
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`inaccurately predicted the outcome of Brexit until the vote count began.15
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`Kalshi misleadingly states its “time-limited contracts” will be “worthless” if
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`the Court issues a stay. It fails to note that the contracts extend to every future
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`13 Neither the CEA nor Kalshi’s rules prohibit non-U.S. persons trading on a DCM.
`https://kalshi-public-
`docs.s3.amazonaws.com/regulatory/rulebook/rulebook_contracts_elections.pdf.
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`14 https://www.politico.com/news/2024/09/12/election-gambling-us-00178904.
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`15 https://www.vox.com/2016/6/23/12022436/brexit-odds-of-a-british-exit-are-
`surging-on-betting-markets.
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`11
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 12 of 17
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`election cycle. See AR 26 (“[Kalshi] intends to list the contract on a biannual basis
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`(every two years).”). In any case, “economic loss does not, in and of itself,
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`constitute irreparable harm.” Wisconsin Gas, 758 F.2d at 674. “Recoverable
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`monetary loss may constitute irreparable harm only where the loss threatens the
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`very existence of the movant’s business,” which Kalshi has not established. Id.
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`Kalshi’s website has hundreds of other offerings. And, as noted, Kalshi intends to
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`offer contracts on other elections as well. If it prevails on appeal, it can list
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`election contracts into the foreseeable future and make up its losses. See id. at 675
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`(“it is as likely as not that the pipelines will recover the payments during the make-
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`up period”).
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`Kalshi argues that a stay would preclude it from recouping the millions of
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`dollars it invested in developing and marketing these contracts—a deceptive claim
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`given the contracts are to be offered perpetually. That aside, Kalshi’s sunk costs
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`are not attributable to a stay, they are attributable to Kalshi’s decision to spend big
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`on election gambling, knowing that the Commission disapproved such contracts in
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`the past.16
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`Kalshi complains that unregulated Polymarket has accrued unlawful market
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`share by engaging in prohibited trading while Kalshi waits for resolution of this
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`16 CFTC Order re NADEX,
`https://www.cftc.gov/sites/default/files/stellent/groups/public/@rulesandproducts/d
`ocuments/ifdocs/nadexorder040212.pdf.
`12
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 13 of 17
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`litigation. But the argument that trading should launch because others are already
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`doing it is sophomoric. A pharmacy does not get to dispense cocaine just because
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`it is sold on the black market. The Commission determined that election gambling
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`on U.S. futures markets is a grave threat to election integrity. AR 19-23. That
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`another platform is offering it without oversight from the CFTC is no justification
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`to allow election gambling to proliferate.
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`CONCLUSION
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`The Commission respectfully requests that its motion for a stay be granted.
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`Dated: September 14, 2024
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`Respectfully submitted,
`/s/ Anne W. Stukes
`Anne W. Stukes
` Deputy General Counsel
`
`Robert A. Schwartz
` General Counsel
`Raagnee Beri
` Senior Assistant General Counsel
`Margaret P. Aisenbrey
` Senior Assistant General Counsel
` Conor B. Daly
` Counsel
`Commodity Futures Trading
`Commission 1155 21st Street, NW
`Washington, D.C. 20581-0001
`Phone: (202) 418-5127
`astukes@cftc.gov
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`13
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 14 of 17
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`Certificate of Parties and Amici Curiae and Corporate Disclosure Statement
`Pursuant to D.C. Circuit Rule 8(a)(4), the U.S. Commodity Futures Trading
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`Commission (“CFTC”), by and through undersigned counsel, submits this
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`Certificate of Parties and Amici Curiae and Corporate Disclosure Statement.
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`Parties and Amici
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`Parties in this case are: KalshiEX, LLC (KalshiEX LLC stated in its
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`Certificate of Disclosure that “no other company holds at least 10% of the stock in
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`KalshiEX LLC”) and the CFTC (an agency of the United States government).
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`The Amici in this case are: Aristotle International, Inc. (Aristotle stated in
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`its Amicus brief that it has no parent company, and no publicly held company has a
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`10% or greater ownership interest in it.); Better Markets, Inc., (Better Markets
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`stated in its Amicus brief that it has no parent corporation and that no publicly held
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`corporation owns 10% or more of its stock); Joseph A. Grundfest; Paradigm
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`Operations LP, (Paradigm stated in its Amicus brief that it has no parent company,
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`and no publicly held company has a 10% or greater ownership interest in it); and
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`Jeremy Weinstein.
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`Rulings Under Review
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`On September 6, 2024, the District Court entered an order ruling against the
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`CFTC and in favor of KalshiEX and vacating the CFTC’s September 22, 2023
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`Order prohibiting Plaintiff from listing its congressional control contracts for
`14
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 15 of 17
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`trading. The Order stated the reasons would be stated in a forthcoming
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`memorandum opinion, which was issued September 12, 2024. The Order and
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`memorandum opinion were submitted with the CFTC’s motion.
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`On September 12, 2024, the District Court held a hearing on the CFTC’s
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`emergency motion for a stay pending the issuance of the District Court’s reasoned
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`opinion. During that hearing the District Court heard the CFTC’s oral motion for
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`stay pending appeal. The district court denied the CFTC’s motions for reasons
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`stated on the record. The transcript for that proceeding was attached to the CFTC’s
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`motion in this Court.
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`Related Cases
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`This case was not previously on review before this Court. There are no
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`other related cases currently pending in this Court or in any other court.
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`15
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 16 of 17
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`CERTIFICATE OF COMPLIANCE
`I hereby certify under Fed. R. App. P. 32(g)(1) the following:
`1. This document complies with the type-volume limit of Fed. R. App. P.
`27(d)(2)(A) because, excluding the parts of the brief exempted by Fed. R.
`App. P. 32(f), it contains 2,595 words, as counted by the word processing
`software Microsoft Word.
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`2. This document complies with the typeface requirements of Fed. R. App. P.
`32(a)(5)-(6) because it has been prepared in a proportionally spaced typeface
`using Microsoft Word, in Times New Roman 14-point type.
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`Dated: September 14, 2024
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`/s/ Anne W. Stukes
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`16
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`USCA Case #24-5205 Document #2074755 Filed: 09/14/2024 Page 17 of 17
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 14, 2024, I served the foregoing Reply on
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`counsel of record using this Court’s CM/ECF system.
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`/s/ Anne W. Stukes
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`17
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