An appeals court ruled Monday that New Jersey could not temporarily ban prediction market provider Kalshi, giving the platform a much-needed win against an onslaught of state enforcement actions.
A Third Circuit Court of Appeals panel ruled in a 2-1 vote that the state could not bring an enforcement action against Kalshi because the company’s products are subject to the federal Commodity Exchange Act, rather than New Jersey state gambling laws.
“Kalshi began offering sports-related event contracts on its DCM exchange,” the majority ruling said. “Kalshi self-certified compliance with the applicable laws and regulations, so those event contracts were presumptively approved under federal law … To date, the CFTC has not determined that Kalshi’s sports-related event contracts are contrary to the public interest.”
The CFTC has not commenced any enforcement actions against “sports-related event contracts,” the ruling, signed by Chief Judge Michael Chagares and Circuit Judge David Porter said.
“New Jersey argues that Kalshi’s event contracts are not ‘swaps’ covered by the Act because the outcome of a sports game is not ‘joined or connected’ with a financial, economic, or commercial instrument or measure,'” the ruling went on to add. “But its proposed ‘joined or connected’ requirement raises the bar beyond what the [Commodity Exchange] Act requires.”
Circuit Judge Jane Roth, who penned a dissent, said the New Jersey state rules did not “undermine the congressional objectives” under the Commodity Exchange Act, and the actual products available on Kalshi’s platform “are sports gambling,” pointing to contracts betting on the winner of a National Football League game, the point spread in that game and combined number of points scored as examples.
States throughout the U.S. have started filing lawsuits or issuing cease-and-desist orders to prediction market providers, including Kalshi and Polymarket, alleging that their sports-related contracts violate state gambling laws. The CFTC has contended that prediction markets, or event contracts, are swaps governed by the Commodity Exchange Act, which preempts these state rules.
Different courts have issued divergent rulings. Some state courts have filed initial temporary restraining orders or preliminary injunctions in the states’ favor, while federal district courts have been more mixed.
Appeals courts have similarly been mixed. While the Third Circuit’s ruling on Monday suggests that prediction market providers will prevail on their argument that the Commodity Exchange Act preempts these state rules, the Ninth Circuit declined to block another state enforcement action from Nevada last month, clearing the way for that state to secure a temporary restraining order and preliminary injunction against Kalshi. There will be another Ninth Circuit hearing later this month with a number of companies.
CFTC Chairman Michael Selig, speaking Monday at an event hosted by Vanderbilt University and the Blockchain Association, said it was important that the federal regulator defend its “exclusive jurisdiction over these markets.” The CFTC filed an amicus curiae brief to the Ninth Circuit ahead of the hearing taking place next week.
“Our definition of commodity and statute is very broad. It includes events on sports, it includes events on politics, it includes corn and grains and all sorts of things,” he said. “It doesn’t really distinguish between if you’re offering an event contract on grains, [that] you’re regulating that differently than an event contract on sports.”
