USCA Case #24-5205 Document #2078007 Filed: 10/02/2024 Page 1 of 6
`
`
`
`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.
`
`
`
`
`
`APPELLANT CFTC’S MOTION FOR EXPEDITED SCHEDULE
`Pursuant to Federal Rules of Appellate Procedure 2 and 27, and this Court’s
`
`Rule 27, appellant Commodity Futures Trading Commission (“CFTC” or
`
`“Commission”) requests that this Court enter an expedited schedule for briefing,
`
`argument, and consideration of the issues on appeal. In support of this motion, the
`
`CFTC states as follows:
`
`The CFTC is appealing the district court’s order granting the appellee
`
`KalshiEx LLC’s (“Kalshi”) motion for summary judgment and denying the
`
`CFTC’s motion for summary judgment. The underlying dispute in this case relates
`
`to a Commission order that determined that certain election event contracts
`
`“involve” “gaming” and “activity unlawful under … State law,” and prohibited
`
`
`
`USCA Case #24-5205 Document #2078007 Filed: 10/02/2024 Page 2 of 6
`
`their listing and trading as contrary to public interest, pursuant to 7 U.S.C. § 7a-2.
`
`The contracts entail betting on the outcome of U.S. Congressional and Senate
`
`elections. Kalshi’s lawsuit challenged the Commission’s statutory interpretations
`
`and public interest determination under the Administrative Procedure Act, 5 U.S.C.
`
`§ 706(2)(A), (C).
`
`On September 12, 2024, the CFTC filed with this Court an Emergency
`
`Motion for Stay Pending Appeal and Immediate Interim Relief (“Motion for
`
`Stay”), seeking to stay the district court’s judgment so that trading in the election
`
`contracts would not commence during the pendency of the appeal. On October 2,
`
`2024, this Court denied the CFTC’s motion without prejudice.
`
`When this Court disposes of a motion for stay pending appeal, it may
`
`expedite the case to minimize the possible harm to the parties or the public. D.C.
`
`CIRCUIT HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES 34 (2021). This
`
`Court may also expedite cases in which the public generally, or in which persons
`
`not before the Court, have an unusual interest in prompt disposition. Id.
`
`The public’s interest lies with prompt disposition of this appeal. As the
`
`Commission indicated in its Motion for Stay, the election contracts are susceptible
`
`to market manipulation. The Commission reasonably expects that the contracts
`
`pose a risk to election integrity or perceptions of election integrity, which would
`
`put the CFTC in the position of investigating such activities in election markets,
`
`
`
`2
`
`
`
`USCA Case #24-5205 Document #2078007 Filed: 10/02/2024 Page 3 of 6
`
`well outside of its traditional areas of responsibility. In addition, the Commission
`
`received hundreds of public comments expressing deep concern that election
`
`gambling impacts the integrity of United States elections, thus substantiating the
`
`Commission’s fear that large-scale betting on elections will undermine public
`
`confidence in our democratic system. Finally, the Commission has proposed a
`
`regulation on event contracts that may be substantially impacted by this Court’s
`
`decision on the merits.*
`
`This Court has recognized that this case presents a “question on the merits
`
`[that] is close and difficult.” Oct. 2, 2024 Opinion at 8. Prompt consideration by
`
`this Court will provide clarity to the parties, other market participants, and the
`
`public on the legality of election gambling on federally regulated exchanges.
`
`For these reasons, the CFTC respectfully requests that the Court consider
`
`this appeal on an expedited schedule and enter the following briefing schedule:
`
`Brief for Appellant CFTC and Joint Appendix due: October 16, 2024
`
`Brief for Appellee Kalshi due: November 6, 2024
`
`Reply Brief for Appellant CFTC due: November 22, 2024
`
`Oral Argument: Week of December 2, 2024
`
`
`* CFTC Issues Proposal on Event Contracts, CFTC (May 10, 2024),
`https://www.cftc.gov/PressRoom/PressReleases/8907-24.
`3
`
`
`
`
`
`USCA Case #24-5205 Document #2078007 Filed: 10/02/2024 Page 4 of 6
`
`On October 2, 2024, counsel for the CFTC contacted counsel for Kalshi to
`
`ascertain whether Kalshi will agree to the proposed expedited schedule. Kalshi’s
`
`counsel indicated that Kalshi will oppose this motion.
`
`CONCLUSION
`
`For the foregoing reasons, the CFTC respectfully requests that the Court
`
`grant the Commission’s Motion for Expedited Schedule.
`
`
`Dated: October 2, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Respectfully submitted,
`/s/ Raagnee Beri
`Raagnee Beri
` Senior Assistant General Counsel
`
`Robert A. Schwartz
` General Counsel
`Anne W. Stukes
` Deputy 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) 418-5986
`rberi@cftc.gov
`
`4
`
`
`
`USCA Case #24-5205 Document #2078007 Filed: 10/02/2024 Page 5 of 6
`
`
`
`
`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 581 words, as counted by the word processing
`software Microsoft Word.
`
`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.
`
`
`
`Dated: October 2, 2024
`
`
`
`
`
`/s/ Raagnee Beri
`
`
`
`
`
`5
`
`
`
`USCA Case #24-5205 Document #2078007 Filed: 10/02/2024 Page 6 of 6
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 2, 2024, I served the foregoing Motion for
`
`Expedited Schedule on counsel of record using this Court’s CM/ECF system.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Raagnee Beri
`
`6
`
`
`
`
`
`
`
