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Gambling multi Split 2-1 against Kalshi; cert pending Last verified Oct 9, 2026

KalshiEX LLC v. state gaming regulators — sports event contracts and CEA preemption

Kalshi Preemption

Stakes

Whether the Commodity Exchange Act preempts state gambling law as applied to sports event contracts. If it does, a federally regulated exchange can offer sports wagering nationwide without a single state licence — including in states that have never legalised it. The Third Circuit said Kalshi is likely right; the Ninth said it is not. That split is the shortest path to Supreme Court review of who regulates sports betting in the United States.

Details

Plaintiffs
KalshiEX LLC
Defendants
New Jersey, Nevada, Ohio, Tennessee, Massachusetts, other state regulators
Venue
U.S. Supreme Court (No. 26-299); 3d Cir. (No. 25-1922), 9th Cir. (No. 25-7516), 6th Cir. (Nos. 26-3196, 26-5235, consolidated)
Docket number
26-299 (U.S.); 25-1922 (3d Cir.); 25-7516 (9th Cir.); 26-3196 and 26-5235, consolidated (6th Cir.)
Posture
The Third Circuit affirmed a preliminary injunction for Kalshi on April 6, 2026, holding the contracts are likely swaps and state gambling law is preempted. The Ninth Circuit ruled the other way on August 28, 2026. On September 25, 2026 a unanimous Sixth Circuit panel (Gibbons, J., with Clay and Bloomekatz, JJ.) affirmed the denial of an injunction in the Ohio case and vacated the injunction Kalshi had won in Tennessee, as reported holding that Kalshi had not shown its sports contracts are swaps and that state gambling law would not be preempted in any event. The split now stands two circuits to one against Kalshi. New Jersey petitioned the Supreme Court for review of the Third Circuit decision on September 2, 2026 (Flaherty v. KalshiEX, No. 26-299); Kalshi's response is due November 9, 2026. Amicus briefs supporting New Jersey include one from Ohio, 38 other states and the District of Columbia, and one from the NFL filed October 8. The Michigan appeals in the Sixth Circuit (Nessel, QCX and Robinhood) remain pending; Nessel was held in abeyance pending the consolidated decision. All circuit rulings are preliminary-injunction postures, not final merits judgments.

Key dates

  • Nov 9, 2026 Kalshi's response due at the Supreme Court on New Jersey's petition, Flaherty v. KalshiEX, No. 26-299
  • TBD (not yet scheduled) Supreme Court decision on whether to hear the case; the earliest conference would follow the November 9 response

Timeline

  1. Apr 6, 2026 Third Circuit affirms preliminary injunction barring New Jersey enforcement, holding the contracts are likely swaps under the CEA and preemption applies (No. 25-1922, 2-1).
  2. Jul 2, 2026 Sixth Circuit denies omnibus motions in Robinhood Derivatives LLC v. Nessel, No. 26-1542, and in QCX LLC v. Nessel, No. 26-1552, directing that both appeals proceed in the normal course and be submitted to the same panel on the same day as each other upon completion of principal briefing.
  3. Jul 31, 2026 Sixth Circuit hears consolidated oral argument on appeals from M.D. Tenn. and S.D. Ohio.
  4. Aug 24, 2026 Sixth Circuit holds briefing in Nessel v. KalshiEX, No. 26-1639, in abeyance pending resolution of the consolidated Schuler and Orgel appeals, and orders Kalshi to file a status report within 21 days of judgment in those cases. The Michigan attorney general's appeal now turns on the consolidated decision rather than proceeding independently.
  5. Aug 24, 2026 The U.S. Commodity Futures Trading Commission and Paradigm Operations LP entered amicus appearances in QCX LLC v. Nessel, No. 26-1552 — the federal regulator whose jurisdiction is the premise of Kalshi's preemption argument appearing as amicus in the Michigan track.
  6. Aug 28, 2026 Sixth Circuit order granting a motion to withdraw as counsel in the consolidated appeals, entered by Clay, Gibbons and Bloomekatz, JJ. (Nos. 26-3196, 26-5235). Most recent docket activity; no decision.
  7. Aug 28, 2026 Ninth Circuit holds Kalshi has not shown a likelihood that the CEA preempts state gaming regulation as applied to its sports event contracts, and that the district court did not abuse its discretion in dissolving the injunction (No. 25-7516).
  8. Sep 8, 2026 New Jersey's petition for certiorari, filed September 2, is docketed as Flaherty v. KalshiEX, No. 26-299; Kalshi's time to respond is later extended to November 9, 2026.
  9. Sep 8, 2026 Ohio and Tennessee each filed additional citations in the consolidated Sixth Circuit appeals (Aug. 31 and Sept. 3), and Kalshi filed a response in opposition to both on September 8. The panel — Clay, Gibbons and Bloomekatz, JJ. — has issued no decision; the appeals were argued and remain submitted. Verified against CourtListener docket 72451572 (No. 26-3196, cross-captioned 26-5235) through entry 87 on 2026-09-10. The parallel Orgel docket 72811702 is behind in RECAP and stops at August 28.
  10. Sep 25, 2026 Sixth Circuit opinion and judgment (Gibbons, J., for a unanimous panel): affirmed in the Ohio case, vacated and remanded in the Tennessee case, for publication (Nos. 26-3196, 26-5235, entry 91). As reported, the panel held Kalshi had not shown its contracts are swaps and that state gambling law is not preempted.
  11. Oct 7, 2026 Ohio, 38 other states and the District of Columbia file an amicus brief supporting New Jersey's petition, alongside briefs from gaming regulators, gaming-state legislators, a tribe and anti-gambling groups.
  12. Oct 8, 2026 The NFL files an amicus brief urging the Supreme Court to grant review in No. 26-299, describing sports event contracts as a new form of sports betting.
  13. Nov 9, 2026 Kalshi's response due at the Supreme Court on New Jersey's petition, Flaherty v. KalshiEX, No. 26-299
  1. Oct 8, 2026

    The NFL files an amicus brief urging the Supreme Court to grant review in No. 26-299, describing sports event contracts as a new form of sports betting.

    Source →
  2. Oct 7, 2026

    Ohio, 38 other states and the District of Columbia file an amicus brief supporting New Jersey's petition, alongside briefs from gaming regulators, gaming-state legislators, a tribe and anti-gambling groups.

    Source →
  3. Sep 25, 2026

    Sixth Circuit opinion and judgment (Gibbons, J., for a unanimous panel): affirmed in the Ohio case, vacated and remanded in the Tennessee case, for publication (Nos. 26-3196, 26-5235, entry 91). As reported, the panel held Kalshi had not shown its contracts are swaps and that state gambling law is not preempted.

    Source →
  4. Sep 8, 2026

    New Jersey's petition for certiorari, filed September 2, is docketed as Flaherty v. KalshiEX, No. 26-299; Kalshi's time to respond is later extended to November 9, 2026.

    Source →
  5. Sep 8, 2026

    Ohio and Tennessee each filed additional citations in the consolidated Sixth Circuit appeals (Aug. 31 and Sept. 3), and Kalshi filed a response in opposition to both on September 8. The panel — Clay, Gibbons and Bloomekatz, JJ. — has issued no decision; the appeals were argued and remain submitted. Verified against CourtListener docket 72451572 (No. 26-3196, cross-captioned 26-5235) through entry 87 on 2026-09-10. The parallel Orgel docket 72811702 is behind in RECAP and stops at August 28.

    Source →
  6. Aug 28, 2026

    Sixth Circuit order granting a motion to withdraw as counsel in the consolidated appeals, entered by Clay, Gibbons and Bloomekatz, JJ. (Nos. 26-3196, 26-5235). Most recent docket activity; no decision.

    Source →
  7. Aug 28, 2026

    Ninth Circuit holds Kalshi has not shown a likelihood that the CEA preempts state gaming regulation as applied to its sports event contracts, and that the district court did not abuse its discretion in dissolving the injunction (No. 25-7516).

    Source →
  8. Aug 24, 2026

    Sixth Circuit holds briefing in Nessel v. KalshiEX, No. 26-1639, in abeyance pending resolution of the consolidated Schuler and Orgel appeals, and orders Kalshi to file a status report within 21 days of judgment in those cases. The Michigan attorney general's appeal now turns on the consolidated decision rather than proceeding independently.

    Source →
  9. Aug 24, 2026

    The U.S. Commodity Futures Trading Commission and Paradigm Operations LP entered amicus appearances in QCX LLC v. Nessel, No. 26-1552 — the federal regulator whose jurisdiction is the premise of Kalshi's preemption argument appearing as amicus in the Michigan track.

    Source →
  10. Jul 31, 2026

    Sixth Circuit hears consolidated oral argument on appeals from M.D. Tenn. and S.D. Ohio.

    Source →
  11. Jul 2, 2026

    Sixth Circuit denies omnibus motions in Robinhood Derivatives LLC v. Nessel, No. 26-1542, and in QCX LLC v. Nessel, No. 26-1552, directing that both appeals proceed in the normal course and be submitted to the same panel on the same day as each other upon completion of principal briefing.

    Source →
  12. Apr 6, 2026

    Third Circuit affirms preliminary injunction barring New Jersey enforcement, holding the contracts are likely swaps under the CEA and preemption applies (No. 25-1922, 2-1).

    Source →

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Sources

Compiled from public filings, court records, league statements, and published reporting. Status reflects the last verified date shown on each entry and may not capture subsequent developments. Commentary and analysis, not legal advice. No attorney-client relationship is formed through this content.