USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 1 of 14
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`ORAL ARGUMENT NOT YET SCHEDULED
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`No. 24-5205
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`In the United States Court of Appeals
`for the District of Columbia Circuit
`__________
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`KALSHIEX LLC,
`PLAINTIFF-APPELLEE,
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`v.
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`COMMODITY FUTURES TRADING COMMISSION,
`DEFENDANTS-APPELLANT.
`__________
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`APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA,
`NO. 23-cv-03257, HON. JIA M. COBB, PRESIDING
`__________
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`BRIEF FOR AMICUS CURIAE JEREMY D. WEINSTEIN
`IN SUPPORT OF APPELLEE AND AFFIRMANCE
`__________
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`CHRISTOPHER E. MILLS
`Spero Law LLC
`557 East Bay Street #22251
`Charleston, SC 29413
`(843) 606-0640
`cmills@spero.law
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`
`Counsel for Amicus Curiae
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`

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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 2 of 14
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`CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES
` Parties
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`(A)
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`All parties, intervenors, and amici appearing before the district court and in
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`this Court are listed in the Opening Brief for Appellant.
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`(B) Rulings Under Review
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`Reference to the ruling at issue appears in the Opening Brief for Appellant.
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`(C) Related Cases
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`Related cases are listed in Appellant’s opening brief. This case has not previ-
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`ously been before this Court, except for a motions panel’s resolution of the Appel-
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`lant’s motion for a stay pending appeal in this case, No. 24-5205.
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`/s/ Christopher Mills
`CHRISTOPHER MILLS
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 3 of 14
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`REPRESENTATION OF CONSENT FROM ALL PARTIES AND
`CERTIFICATE STATING WHY A SEPARATE BRIEF IS NECESSARY
`In accordance with FRAP 29(a)(2) and D.C. Circuit Rule 29(b), undersigned
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`counsel certifies that all parties have consented to the filing of this brief.
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`Pursuant to D.C. Circuit Rule 29(d), undersigned counsel further certifies that
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`this separate brief is necessary. Amicus knows of no other amicus curiae focusing
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`on the issues discussed here.
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`ii
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 4 of 14
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`TABLE OF CONTENTS
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`Page
`Certificate of Parties, Rulings, and Related Cases ..................................................... i
`Representation Of Consent From All Parties And Certificate Stating Why A
`Separate Brief Is Necessary ...................................................................................... ii
`Table of Authorities .................................................................................................. iv
`Interest of Amicus Curiae and Summary ................................................................... 1
`Argument.................................................................................................................... 2
`Conclusion ................................................................................................................. 6
`Certificate of Compliance
`Certificate of Service
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`iii
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 5 of 14
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`TABLE OF AUTHORITIES
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`Page(s)
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`Black’s Law Dictionary (12th ed. 2024) ................................................................... 6
`CFTC, Event Contracts, Notice of Proposed Rulemaking, 89 Fed. Reg. 48968 (Jun.
`10, 2024) ........................................................................................................ 2, 3, 4
`Foretek, Kalshi Says Elections Aren’t Games In Voting Wager Hearing, Law360
`(May 30, 2024) ...................................................................................................5, 6
`Jeremy D. Weinstein, Football Gambling Futures Contracts: Can the CFTC
`Measure Up to the Keystone Cops?, 41 Futures & Derivatives Law Report
`(Jul./Aug. 2021), https://bit.ly/3qJrBZ4 ................................................................. 4
`Hearing Tr., Kalshi v. CFTC, No. 1:23-cv-03257-JMC (May 30, 2024)…….…….5
`The Federalist No. 53 (Madison) ............................................................................... 5
`Wessel & Weissenberg, The Role Of Dictionaries In Last Term’s High Court
`Decisions, Law360 (Jul. 12, 2019) ......................................................................... 3
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`iv
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 6 of 14
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`INTEREST OF AMICUS CURIAE AND SUMMARY
`Amicus Jeremy D. Weinstein is a private energy commodities law transac-
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`tional and regulatory attorney. Amicus has long been interested in seeking transpar-
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`ency for the law regarding commodities, especially when it comes to the opaque
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`rulemaking often engaged in by the Commodity Futures Trading Commission
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`(CFTC), so that energy companies can enjoy the benefits of being able to comply
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`with tractable law and regulation. Amicus has contributed scholarship on issues in
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`commodity law regulation, including by writing articles and submitting comments
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`in federal and state rulemakings. Amicus also submitted a brief in the district court
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`proceeding.
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`No party’s counsel authored this brief in whole or in part. No party or party’s
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`counsel contributed money to fund the preparation or submission of this brief. No
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`person—other than the amicus curiae and his counsel—contributed money to fund
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`the preparation or submission of this brief.
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`This brief presents the lack of foundation for the CFTC’s position on what it
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`calls the “plain meaning” of the statute.
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 7 of 14
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`ARGUMENT
`The CFTC’s arguments about the “plain meaning” of § 5c(c)(5)(C) of the
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`Commodity Exchange Act are foundationally flawed. In 2010, Congress added
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`§ 5c(c)(5)(C) to the Commodity Exchange Act and empowered the CFTC to prohibit
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`futures contracts that “involve … gaming.” But, according to the CFTC, contracts
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`that “involve … gaming” do not include contracts that “involve” “games”:
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`[I]t is difficult to conceive of a contract whose underlying event, itself,
`is “gaming.” If “involve” were to refer only to a contract’s underlying
`[event], contracts based on sporting events such as horse races and foot-
`ball games would not qualify, because sports typically are not under-
`stood to be “gaming”—they are understood to be “games.” In effect, if
`“involve” were to refer only to a contract’s underlying [event], the
`scope of certain prongs of CEA section 5c(c)(5)(C) could effectively be
`limited to a null set of event contracts, which could not have been Con-
`gress’s intent.1
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`Based on this false assumption that the word “gaming” couldn’t possibly
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`mean “games,” because “games” is a “null set,” the CFTC argued that Congress
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`must have authorized the CFTC to prohibit any conceivable synonym for “gaming”:
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`The Commission proposes to define “gaming” in new § 40.11(b)(1) as
`“the staking or risking by any person of something of value upon: (i)
`the outcome of a contest of others; (ii) the outcome of a game involving
`skill or chance; (iii) the performance of one or more competitors in one
`or more contests or games; or (iv) any other occurrence or non-occur-
`rence in connection with one or more contests or games.”2
`…
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`1 CFTC, Event Contracts, Notice of Proposed Rulemaking, 89 Fed. Reg. 48968,
`48974 n.61 (Jun. 10, 2024).
`2 Id. at 48974.
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`2
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`

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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 8 of 14
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`[T]he Commission proposes to set forth in new § 40.11(b)(2) a non-
`exclusive list of examples of activities that constitute “gaming,” as pro-
`posed to be defined … The Commission emphasizes that the list of ex-
`amples provided in proposed § 40.11(b)(2) is non-exclusive. To the ex-
`tent that other activity falls within the definition of “gaming” set forth
`at proposed § 40.11(b)(1), such activity would also constitute “gam-
`ing.”3
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`From there, the CFTC argued that anything within an internet dictionary’s
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`“ordinary meaning” of any of the synonyms of gaming falls within the statutory pro-
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`hibition:
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`The Commission considers the term “contest” to have its ordinary
`meaning, and to encompass a “competition.” See, e.g., MERRIAM-
`WEBSTER.COM, available at https://www.merriam-webster.com/dic-
`tionary/contest (defining the noun “contest” as: “1) a struggle for supe-
`riority or victory: competition; 2) a competition in which each contest-
`ant performs without direct contact with or interference from competi-
`tors”).4
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`Then, the CFTC goes on to argue that the “examples” of synonyms also in-
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`cludes possible metaphors that use any of the synonyms.5 This allowed the CFTC to
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`label elections as “games,” because they are sometimes described as “political con-
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`tests”:
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`Proposed § 40.11(b)(2) states that “gaming” includes, but is not limited
`to, the staking or risking by any person of something of value upon: (i)
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`
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`3 Id. at 48975.
`4 Id. at 48974–75 n.65. Courts citing dictionaries typically cite actual dictionaries
`rather than internet sites. See, e.g., Wessel & Weissenberg, The Role Of Dictionaries
`In Last Term’s High Court Decisions, Law360 (Jul. 12, 2019).
`5 See 89 Fed. Reg. at 48975.
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`3
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`

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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 9 of 14
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`the outcome of a political contest, including an election or elec-
`tions ….6
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`Stringing together each of these leaps of logic reveals just how convoluted the
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`CFTC’s reasoning is. According to the agency, congressional authorization allowing
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`it to prohibit event contracts involving “gaming” could not possibly be limited to
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`games, since “games” is a “null set.” Thus, the argument goes, the CFTC must have
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`authorization to prohibit event contracts for anything that is potentially synonymous
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`with “gaming.” And because “contest” is one synonym for gaming, and people
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`sometimes say “political contest” as a metaphor for an election, the CFTC can sup-
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`posedly prohibit futures contracts on elections under the theory that they “in-
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`volve … gaming.”
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`Problem is, that’s not what Congress said. Congress gave the CFTC power to
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`prohibit contracts that “involve … gaming.” The ordinary understanding of “gam-
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`ing” in this context includes sporting events and other low-stakes competitions. Fu-
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`tures contracts on football games, for instance, are clearly prohibited by
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`§ 5c(c)(5)(C), though the CFTC and its Commissioners seemed confused when pre-
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`sented with this question a few years ago.7 Given that the plain meaning of “gaming”
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`6 Id. The use of the word “including” might imply that the CFTC believes that there
`is a superset of “political contests” of which “elections” are only a subset.
`7 Jeremy D. Weinstein, Football Gambling Futures Contracts: Can the CFTC Meas-
`ure Up to the Keystone Cops?, 41 Futures & Derivatives Law Report (Jul./Aug.
`2021), https://bit.ly/3qJrBZ4.
`
`4
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`

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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 10 of 14
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`is clear, there was no reason for the CFTC to adopt an atextually broad reading of
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`the term. By including metaphors and synonyms within its definition of “gaming,”
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`the CFTC seeks to expand its authority beyond what the text of the statute can bear.
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`In common parlance, elections are not “games.” In fact, given their high
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`stakes, they are in large part the opposite of what people ordinarily refer to as a
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`“game.” Elections are the mechanism by which democratic republics decide who
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`will wield the power yielded by the citizenry to the government. Free elections are
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`foundational to any free society. See, e.g., The Federalist No. 53 (Madison).
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`In the district court, the CFTC could not identify outer boundaries for “game.”
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`In the May 30, 2024, district court oral argument, the following exchange occurred:
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`THE COURT: Besides elections, in your view, is there a contest of oth-
`ers that doesn’t involve a game as plaintiff would define what game
`means?
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`MS. STUKES [counsel for the CFTC]: I actually thought the horse race
`wasn’t a game. But there are contests, Academy Awards, award types
`of things that doesn’t seem like a game, just seems like a contest.8
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`The CFTC’s expansive vision of “gaming” essentially allows it to regulate
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`betting on contests, competitions that have winners and losers, of any kind.9 When
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`8 Hearing Tr. 55, Kalshi v. CFTC, No. 1:23-cv-03257-JMC (May 30, 2024).
`9 See Foretek, Kalshi Says Elections Aren’t Games In Voting Wager Hearing,
`Law360 (May 30, 2024) (“But when Judge Cobb pressed Stukes on what else the
`agency’s definition of ‘gaming’ might prohibit for futures betting aside from games
`and sports in the traditional sense, Stukes hesitated before pointing to the outcome
`of an awards show like the Grammys. On rebuttal, Jones Day’s Yaakov Roth pointed
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`5
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`

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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 11 of 14
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`pressed on this at a hearing below, the agency admitted this much.10 But this ignores
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`fundamental differences between different contests. Though almost all games are
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`contests, not all contests can be considered games.
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`Games are “contest[s], for amusement or for a prize.” Black’s Law Dictionary
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`(12th ed. 2024). Ask any random set of Americans to list their favorite games, and
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`you will get similar responses that reflect this common understanding: football, soc-
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`cer, tennis, basketball, or perhaps chess or Mario Kart. Political elections do not fall
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`within this same category. Elections are contests, but they are not games. They are
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`not undertaken for amusement or entertainment. Rather, democratic countries hold
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`elections for the very significant purpose of establishing their government. Thus,
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`elections are excluded from any ordinary understanding of the term “game.”
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`The Court should affirm.
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`CONCLUSION
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`out that, actually, Kalshi offers contracts on awards show outcomes, and has done
`so for ‘a long time.’ ‘They’ve never subjected those to review,’ he told Judge Cobb.
`‘I think that really underscores the…outcome-driven aspect of this. It’s not statutory
`interpretation.’”).
`10 Id.
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`6
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 12 of 14
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`Respectfully submitted,
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`
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`/s/ Christopher Mills
`CHRISTOPHER E. MILLS
`Spero Law LLC
`557 East Bay Street #22251
`Charleston, SC 29413
`(843) 606-0640
`cmills@spero.law
`
`Counsel for Amicus Curiae
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`NOVEMBER 22, 2024
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`7
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 13 of 14
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`CERTIFICATE OF COMPLIANCE
`This brief complies with the type-volume limitation provided by D.C. Cir. R.
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`1.
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`24(a)(5) because it contains 1,411 words, excluding the parts of the brief ex-
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`empted by Fed. R. App. P. 32(f) and D.C. Cir. R. 32(e)(1).
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`2.
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`This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
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`and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been
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`prepared in a proportionally spaced typeface using Microsoft Office Word
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`365 in 14-point Times New Roman.
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`NOVEMBER 22, 2024
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`/s/ Christopher Mills
`CHRISTOPHER MILLS
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`USCA Case #24-5205 Document #2086139 Filed: 11/22/2024 Page 14 of 14
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`CERTIFICATE OF SERVICE
`I certify that on this day the foregoing was served electronically on all parties
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`via CM/ECF.
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`NOVEMBER 22, 2024
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`/s/ Christopher Mills
`CHRISTOPHER MILLS
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