What changed

A futures contract is a “standardized agreement” to buy or sell a “commodity” in the future for a price determined at the contract’s inception. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 358 (1982). As “the weather and other imponderables affect[] supply and demand,” the market price of the commodity could rise or fall before its promised delivery. Id. at 357. In the nineteenth and early twentieth centuries, futures markets thus developed to allow the “purchase or sale of a futures contract” and the ability to hedge against risks associated with these price fluctuations in agricultural markets, such as grain. Id. at 358. As time went on, these markets became an “opportunity to make a profit as a result of fluctuations in the market price” by “buying and selling ‘futures contracts.’” Id. at 357.

Recognizing that futures contracts were “susceptible to speculation, manipulation, and control . . . detrimental to the producer or the consumer and the persons handling grain in interstate commerce,” Bd. of Trade of City of Chicago v. Olsen, 262 U.S. 1, 37 (1923), Congress passed the Grain Futures Act of 1922. This Act authorized “the Secretary of Agriculture to supervise trading in grain futures on [designated] ‘contract markets,’” or DCMs. Dunn v. CFTC, 519 U.S. 465, 475 n.11 (1997). “In 1936 Congress changed the name of the statute to the Commodity Exchange Act” or CEA. Curran, 456 U.S. at 362.

Soon after, the CFTC adopted a regulation categorically prohibiting swaps based on “an excluded commodity,” that “involves, relates to, or references,” among other things, “gaming.” 17 C.F.R. § 40.11(a). Despite this prohibition, an excluded commodity may be offered because a DCM can self-certify to the CFTC in a “written certification” that “any new contract” complies with the CEA and CFTC regulations. 7 U.S.C. § 7a-2(c)(1); 17 C.F.R. §38.4(b). Once the self-certification is filed, the DCM can begin offering the new contract the next business day. 17 C.F.R. § 40.2(a)(2); 7 U.S.C. § 7a-2(c)(1)-(2). But “if a DCM nevertheless lists a contract that involves an enumerated activity or something similar . . . the CFTC may review it” and disallow it. KalshiEX v. Hendrick, 817 F. Supp. 3d 1014, 1036 n.13 (D. Nev. 2025) (Hendrick II); see 7 U.S.C. § 7a-2(c)(5)(C); 17 C.F.R. § 40.11(c).

1 In June 2023, Kalshi began offering event contracts based on elections, which we discuss separately. See infra, at 41 n.7.

anything related to a sporting event, including, who will win the Super Bowl, who will be the first pick in the NFL Draft, and what song will open the Super Bowl halftime show. Kalshi’s contracts also allow individuals to essentially place prop bets—bets based on outcomes within a game, such as over-under, score-specific spreads—and parlays (or “combos”), where users can link their trades for a larger payout if each leg hits. With all these offerings traded on the DCM, Kalshi advertises itself as “the first app for legal sports betting in all 50 states.” Over 90% of Kalshi’s trades in 2025, representing 95% of its revenue, were sports related.

Kalshi sued the Board, its members, the State of Nevada, and the Nevada Attorney General (collectively, Nevada) seeking a preliminary injunction to prevent Nevada from regulating the trading of sports and election event contracts on its DCM. KalshiEX, LLC v. Hendrick, 2025 WL 1073495, at *1 (D. Nev. Apr. 9, 2025) (Hendrick I). On an expedited schedule, the district court granted Kalshi’s motion for a preliminary injunction. Id. Following that ruling, two other district courts ruled on the same issue, coming to opposite conclusions. KalshiEX, LLC v. Flaherty, 2025 WL 1218313, at *4–7 (D.N.J. Apr. 28, 2025), aff’d, 172 F.4th 220 (3rd Cir. 2026); KalshiEX, LLC v. Martin, 793 F. Supp. 3d 667 (D. Md. Aug. 1, 2025).

In October 2025, another CFTC registered DCM, Crypto.com, moved for a preliminary injunction against Nevada, based on the reasoning in Hendrick I. See N. Am. Derivatives Exch., Inc. v. Nevada on Rel. of Nevada Gaming Control Bd., 815 F. Supp. 3d 1169, 1175 (D. Nev. Oct. 14, 2025). It argued that its sports event contracts “are legal under federal law and that Nevada law is preempted due to the CFTC’s exclusive jurisdiction over transactions on DCMs.” Id.

concluded that the courts have the power to determine what is and is not a swap under the CEA. Id. at 1180–81. It then looked to the text of § 1a(47)(A)(ii) and its context, and reasoned that, unlike the swap definition in that subsection, Crypto’s sports event contracts “turn on the outcome of the live event, not on the ‘occurrence, nonoccurrence, or the extent of the occurrence’ of a live event.” Id. at 1183–84 (emphasis added). The district court observed that “equating an event with an outcome or result is an archaic use of the word ‘event,’ not the ordinary meaning.” Id. at 1183. Under the district court’s reading, whether the Super Bowl happens is the statutorily defined “occurrence of an event,” while whether a certain team will win that Super Bowl is not an “occurrence of an event,” but the outcome of an event (the event being the Super Bowl).

The district court rejected Crypto’s broad reading of the words in the statute because it “knows no limiting principle because anything could be defined as an event.” Id. at 1184. According to the court, if it accepted Crypto’s position that “its live presentation events contracts are swaps,” then “nearly all sports wagering” would be swept “into the CFTC’s exclusive jurisdiction” despite the historical regulation of gambling by states. Id. The district court concluded that Congress gave no indication in the CEA that it disrupted the careful state-federal balance on gaming and preempted all state gaming laws through its definition of swap, as doing so would be “hiding an elephant in a mousehole.” Id. at 1185 (citing Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001)).

After that ruling, Nevada moved to dissolve Kalshi’s preliminary injunction. Hendrick II, 817 F. Supp. 3d at 1021. The district court dissolved the injunction, incorporating the same reasoning from the Crypto denial. Id. at 1023. It concluded that Nevada was not required to challenge the CFTC’s understanding of swap through an Administrative Procedure Act (APA) claim before it could begin enforcement of its state laws. Id. at 1023–26. It also concluded that the CEA’s use of “associated with” in the definition of swap means that events underlying swaps must be “inherently joined or connected with a potential financial, economic, or commercial consequence,” without looking to “potential downstream financial consequences.” Id. at 1027. Thus, it concluded that because “Kalshi’s event contracts are based on outcomes of sporting events or things that happen during a sporting event,” they were not swaps with the

CEA’s definition. Id. at 1026. The court also concluded that the sporting event contracts were not “contracts of sale of commodities for future delivery” under § 2(a)(1)(A). Id. at 1034. The district court also determined that the other preliminary injunction factors favored Nevada. Id. at 1034– 37. This timely appeal followed.2

To begin, we have the authority to determine what is and is not a swap under the definition in § 1a(47)(A)(ii). Kalshi argues that, given the procedural posture of this case, we lack authority to determine this “threshold issue.” Kalshi argues that by sending a cease-and-desist letter, Nevada is attempting to skirt the APA by using “a collateral proceeding to end-run the procedural requirements governing appeals of administrative decisions.” See Big Lagoon Rancheria v. California, 789 F.3d 947, 953 (9th Cir. 2015) (en banc).

Rather, Kalshi turned to the courts seeking injunctive relief. Kalshi asserts that § 2 of the CEA compels an injunction against Nevada’s enforcement of its gaming laws against Kalshi and that the authority of the CFTC, an administrative agency, is at issue. Kalshi’s reliance on the CEA as a sword, rather than a shield, distinguishes this action from an attempt by Nevada to “end-run the [APA’s] procedural requirements.” Big Lagoon Rancheria, 789 F.3d at 953. Kalshi’s invocation of the CEA’s definition of swap in § 1a(47)(A)(ii) in bringing this lawsuit invites this court, not Nevada or the CFTC, “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

contracts are traded on a DCM. Thus, the dispositive issue is whether the sports event contracts are “swaps” under the CEA’s definition in 7 U.S.C. § 1a(47)(A)(ii). The parties cite various legislative history to define swap. But we do not use legislative history to “look over the heads of the crowd and pick out [our] friends.” ANTONIN SCALIA, A MATTER OF INTERPRETATION 36 (1997) (quoting Judge Leventhal). We focus instead on the text. See United States v. Myers, 170 F.4th 1180, 1184 (9th Cir. 2026).

We first consider the words occurrence, event, and contingency. Kalshi relies on dictionary definitions to support its broad reading of these words as “a thing that happens or takes place.” See Event, RANDOM HOUSE WEBSTER’S POCKET AMERICAN DICTIONARY (5th ed. 2008); see also, e.g., Event, OXFORD AMERICAN DICTIONARY AND THESAURUS (2d ed. 2009) (“a thing that happens or takes place”); Contingency, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003) (“something liable to happen as an adjunct to or result of something else.”); Event, WEBSTER’S II NEW COLLEGE DICTIONARY (3d ed. 2005) (“[s]omething incidental to something else”). It also relies on definitions of an “event” as including “the outcome, issue, or result of anything.” 3 Event, RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY (2d ed. 2001); see also, e.g., Event, WEBSTER’S II NEW COLLEGE DICTIONARY (3d ed. 2005) (“[t]he actual outcome or final result”).

If we only consider the dictionary definitions Kalshi cites, interpret the word “event” in isolation, and adopt its broadest meaning, we might be persuaded by Kalshi’s argument that “event” means generally “something that happens,” and thus, Kalshi’s sports events contracts fit within the meaning of swap in § 1a(47)(A)(ii). This approach highlights the cursory plain-language appeal of Kalshi’s interpretive argument, which the Third Circuit majority adopted. See Flaherty, 172 F.4th at 227–28. But here, the “isolated dictionary definitions contribute[] little to finding the ordinary meaning of” the statutory language. Vericool World, LLC v. Igloo Prods. Corp., 175 F.4th 1045, 1057 (9th Cir. 2026).

World Series, or how many touchdowns Fernando Mendoza might throw in a game, or how many points BYU Football will win by as an “event.” That is because while the word “event” can be defined as “occurrence,” see, e.g., Event, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003), that definition may not always correspond to its ordinary public meaning. And because the statutory definition of swap uses both event and occurrence, these words should have independent meaning to avoid rendering one term superfluous. § 1a(47)(A)(ii). Yates v. United States, 574 U.S. 528, 546 (2015) (declining to adopt a broad definition because it was an “unbounded reading” that would render “superfluous” other key statutory language). Dictionaries also note that defining “event” as a synonym for “outcome” is an archaic or rare usage. See, e.g., Event, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). Because the definitions of event and occurrence do not resolve the issue before us, we must also consider the statutory context. See Vericool World LLC, 175 F.4th at 1057 (“Ignoring context in textual interpretation can lead to contorted statutory interpretations.”) (citing Bostock v. Clayton Cnty., 590 U.S. 644, 661–62 (2020)).

“The statute’s language, structure, subject matter, context, and history are all factors that typically help courts determine a statute’s objectives and thereby illuminate its text.” Zellmer v. Meta Platforms, 104 F.4th 1117, 1124 (9th Cir. 2024) (cleaned up). That is particularly true when, as here, competing, reasonable interpretations of the same statutory text exist. And “a statute’s meaning does not always turn solely on the broadest imaginable definitions of its component words.” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018) (cleaned up). Instead, “[l]inguistic and statutory context also matter.” Id. Statutory context matters for our determination of ordinary meaning “because words are colored by their surroundings and the backdrop against which they were enacted.” JUSTICE AMY CONEY BARRETT, LISTENING TO THE LAW: REFLECTIONS ON THE COURT AND CONSTITUTION 232 (2025).

“[T]he meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). In addition, we “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” Id. (citing MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994)). Congress has spoken on gambling repeatedly, deliberately, and specifically. See, e.g., the Professional and Amateur Sports Protection Act, 28 U.S.C. §§ 3701–3704, the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721, and the Wire Act, 18 U.S.C. § 1084(a).4

But this argument strains credulity. A “wager” is defined as “[m]oney or other consideration risked on an uncertain event; a bet or a gamble,” or otherwise as a “promise to pay money or other consideration on the occurrence of an uncertain event.” Wager, BLACK’S LAW DICTIONARY (12th ed. 2024). The following hypothetical illustrates how Kalshi’s sports event contracts fit within this definition. A customer at Caesars Sportsbook can place a sports bet on the Las Vegas Raiders winning a game by over 7.5 points, and if that happens, win a higher payout than the amount wagered. On the Kalshi app, that same customer can buy an event contract based on the Las Vegas Raiders winning a courts understand that “most words have different shades of meaning and consequently may be variously construed . . . when they occur in different statutes.” Env’t Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (cleaned up). Because the UIGEA definitions are not meant to “alter[]” or “limit[]” other laws, other statutes likely deal with wagers in the ordinary sense, not with UIGEA’s more specific, limited definition. § 5361(b).

game by over 7.5 points, and if that happens, receive a higher payout than the amount wagered. In either scenario, the customer’s actions fit the definition of a gambling contract. See Gambling Contract, BLACK’S LAW DICTIONARY (12th ed. 2024) (“An agreement to engage in a gamble; a contract in which two parties wager something, esp. money, for a chance to win a prize.”). Thus, for Kalshi to deny that its sports event contracts are sports bets under a reasonable person’s understanding is disingenuous. That Kalshi’s sports event contracts are, in reality, sports bets is not just an “I know it when I see it” issue. Hendrick II, 817 F. Supp. 3d at 1029 (quoting Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (emphasis added)). Rather, everyone, including Kalshi, knows it when they see it.

The substance of the sports event contracts offered on Kalshi’s DCM is sports gambling, regardless of whether Kalshi calls them swaps. Just as “[t]hat which we call a rose by any other name would smell as sweet,” WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2, placing sports bets, even when called by another name, is still gambling. Kalshi users can effectively place prop bets, bet the point spread, bet a specific score, or create a several-leg parlay. And the payout depends on the performance of a sports team or a player.

KALSHI (Feb. 27, 2025), https://perma.cc/8QQD-8QXR. Although Kalshi removed all reference to Kalshi Trading from the Who Are You Trading With web page shortly after Nevada filed its brief, see Who Are You Trading With, KALSHI (Mar. 10, 2026), https://help.kalshi.com/en/articles/13823808-who-are-you-trading-with [https://perma.cc/QB4Q-9E9M], we use the link Nevada provided.

7 U.S.C. § 1a(47)(A)(ii). The majority in Flaherty relied on this reasoning. Flaherty, 172 F.4th at 227–28 (concluding that “[t]he outcome of sports event certainly can be associated with a potential financial, economic, or commercial consequence.”). Kalshi argues that payment under its sports event contracts depends on the “outcome of sporting events” which are “connected with financial consequences” for “stakeholders[] team sponsors, advertisers, television networks, franchises, local communities, and more.”

Our sister circuit essentially disregarded § 40.11’s prohibition on listing gaming-related transactions, when it said that the CFTC “has not yet acted to review or prohibit any sports-related event contracts.” Flaherty, 172 F.4th at 227 (emphasis added). And the Flaherty majority’s observation about CFTC’s lack of review proves our point. Although the CFTC has not initiated review of these specific sports event contracts, it published § 40.11(a), which prohibits Kalshi from listing them. The CFTC’s Notice of Proposed Rulemaking (NPRM), which Kalshi cited as supplemental authority under Fed. R. App. 28(j), reaffirms our view on the regulation as currently written. Until § 40.11(a) is amended in the manner described in the NPRM, it bars Kalshi’s gaming-related contracts from being listed on a DCM. As of now, the existing regulation controls. See Ctr. for Food Safety v. Vilsack, 718 F.3d 829, 843 (9th Cir. 2013) (“[P]roposed regulations have no legal effect.”).

The Special Rule did not give the CFTC any more preemptive authority over gaming than it gave the CFTC authority over terrorism or assassination and the other underlying “excluded commodities.” To illustrate this, consider the CFTC’s interpretation that “products historically treated as insurance products” are not considered swaps by the CFTC. Further Definition of “Swap”, 77 Fed. Reg. 48208, 48246 (Aug. 13, 2012). Suppose Kalshi, in violation of that understanding, self-certified a life-insurance contract, to be paid out to the buyer contingent on the occurrence of an “event” (someone’s death) associated with a financial consequence (either the payout of the contract or some other downstream consequence). If the CFTC either failed or declined to remove this contract from Kalshi’s DCM, as it has failed or declined to enforce § 40.11 regarding sports event contracts, we would not conclude that all 50 states and all non-CFTC federal agencies are prohibited from regulating these life insurance policies on the ground that they constitute swaps traded on a DCM. And Kalshi does not suggest as much. Kalshi’s current argument about gambling contracts similarly fails. The CEA’s scheme simply is not as expansive as Kalshi would like.

This prompts the question whether Kalshi’s sports event contracts “involve[], relate[] to, or reference[] . . . gaming” under § 40.11(a). If not, then § 40.11(a) would not ban listing them on DCMs. We do not defer to the CFTC’s definition of gaming. See Loper Bright, 603 U.S. at 385. As discussed, under any reasonable interpretation, Kalshi’s sports event contracts relate to gaming. If these are not “gaming” contracts, then the Special Rule has no relevance.

There is no such clear congressional authorization here. To be sure, “Congress can regulate sports gambling directly” should it choose to do so. Murphy v. NCAA, 584 U.S. 453, 486 (2018). But Congress has not done so directly, or indirectly through the CFTC. And “if it elects not to do so, each State is free to act on its own.” Id. The Dodd-Frank Wall Street Reform Act cannot be read as a direct (or indirect) regulation of sports gambling, and the CFTC is not a national gambling regulator. No one suggested it was until over a decade after the law was passed. “If an agency wants to exercise expansive regulatory authority over” a major issue like gambling, “an ambiguous grant of statutory authority is not enough.” United States Telecom Ass’n v. FCC, 855 F.3d 381, 421 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from the denial of rehearing en banc). Instead, “Congress must clearly authorize an agency to take such a major regulatory action.” Id.

See Ah Sin v. Wittman, 198 U.S. 500, 505–06 (1905) (concluding that the regulation “of gambling is concededly within the police powers of a state”); see also Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 737, 740 (9th Cir. 2003) (stating that the regulation of gambling, a “vice activity,” is a “function that lies at the heart of a state’s police power” and collecting cases upholding state laws regulating gambling); 15 U.S.C. § 3001(a)(1) (providing that “the States should have the primary responsibility for determining what forms of gambling may legally take place within their borders”); 25 U.S.C. § 2701 (Indian Gaming Regulatory Act).

When read “in their context with a view to their place in the overall statutory scheme,” the words in the definition of swap in § 1a(47)(A)(ii) cannot bear the weight Kalshi puts on them. See West Virginia, 597 U.S. at 721 (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). Congress does not “typically use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme.” Id. at 723 (cleaned up). Federal and state statutory schemes regulate gaming. We have recognized that “[g]ambling does not involve an inherently national system of regulation, given the states’ long-understood authority in this area.” Flynt v. Bonta, 131 F.4th 918, 932 (9th Cir. 2025) (citing Murphy, 584 U.S. at 484). And the Supreme Court has said that “each State is free to act” in this area. Murphy, 584 U.S. at 486. Nevada has acted in this area and created a comprehensive regulatory regime, over a variety of gaming methods, that is recognized as the “gold standard in gaming regulation.” Becky Harris & Husna Alikhan, Part I: Nevada, Over 60 Years Regulating Gambling—A Jurisdictional Overview, 23 GAMING L. REV. 645, 645–49 (2019). Regulation of gambling has been “vitally important to the economy of the State and the general welfare of the inhabitants” for over a century and a half; it is known around the world as the premiere destination for trying one’s luck in a well-regulated environment. See Nev. Rev. Stat. Ann. § 463.0129(1)(a). In contrast, other states have banned the practice. See Murphy, 584 U.S. at 458–61 (stating that “Americans have never been of one mind about gambling” and discussing the evolution of gambling in the United States).

preemption applied depended on its determination that “Kalshi’s sports-related event contracts are swaps” under the CEA. 172 F.4th at 229. Because we disagree on that point, see supra, at Section III.B, we similarly disagree with the conclusion that the CEA has preempted the field of all state gaming regulations.

Kalshi argues that, absent an injunction, it will suffer irreparable harm, including the costs of geofencing and closing out contracts in Nevada, and the “Hobson’s choice” of choosing to comply with state law or to risk potentially losing its DCM status. These are not irreparable harms. The costs of geofencing are unlikely to be too expensive for a company of Kalshi’s size, and the other harms are either speculative or self-inflicted. See Hendrick II, 817 F. Supp. 3d at 1035 (noting that Kalshi “greatly expanded its offerings” despite knowing its sports contracts implicated state law).

Kalshi offered its sports event contracts despite the CFTC’s prohibition. § 40.11. “When a harm is largely selfinflicted, that fact severely undermines a claim for equitable relief.” Bennett v. Isagenix Int’l LLC, 118 F.4th 1120, 1129 (9th Cir. 2024). And it is unlikely that any irreparable harm is done by what is likely a lawful state enforcement proceeding. The district court therefore did not abuse its discretion in concluding this factor supports Nevada. Hendrick II, 817 F. Supp. 3d at 1034–36.