Kalshiex, LLC v. Assad

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KALSHIEX, LLC, No. 25-7516 Plaintiff - Appellant, D.C. No. 2:25-cv-00575- v. APG-BNW GEORGE ASSAD; CHANDENI K. SENDALL, Deputy City Attorney; OPINION NEVADA GAMING CONTROL BOARD; JENNIFER TOGLIATTI; ROSA SOLIS-RAINEY; BRIAN KROLICKI; GEORGE MARKANTONIS; ABBI SILVER; AARON D. FORD; NEVADA GAMING COMMISSION; MIKE DREITZER, Defendants - Appellees, NEVADA RESORT ASSOCIATION, Intervenor-Defendant - Appellees. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding 2 KALSHIEX, LLC V. ASSAD Argued and Submitted April 16, 2026 San Francisco, California Filed August 28, 2026 Before: Ryan D. Nelson, Bridget S. Bade, and Kenneth K. Lee, Circuit Judges. Opinion by Judge R. Nelson; Concurrence by Judge Lee SUMMARY * Commodity Exchange Act The panel affirmed in part the district court’s order dissolving a preliminary injunction in favor of KalshiEX, LLC, and remanded in part in Kalshi’s action against the Nevada Gaming Control Board, which sent a cease-and- desist letter notifying Kalshi that it was running a sports betting platform in violation of Nevada statutes and gaming regulations. Kalshi sought injunctive relief, arguing that it was not a sports betting platform, but rather a designated contract market (“DCM”) under the Commodity Exchange Act (“CEA”) offering legal sports event contracts. Kalshi argued that the Commodity Futures Trading Commission (“CFTC”) had exclusive regulatory authority over its sports * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  KALSHIEX, LLC V. ASSAD 3 event contracts and, therefore, Nevada’s gaming regulations did not apply. The panel held that the district court did not abuse its discretion in dissolving the preliminary injunction because Kalshi did not show a likelihood that the CEA preempts state gaming regulations as applied to its sports event contracts. As amended by the Dodd-Frank Act, the CEA provides that the CFTC has exclusive jurisdiction over “swaps,” defined as “any agreement, contract, or transaction . . . that provides for any purchase, sale, payment, or delivery . . . that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence.” 7 U.S.C. § 1a(47)(A)(ii). The Dodd-Frank amendments made it “unlawful for any person, other than an eligible contract participant, to enter into a swap unless the swap is entered into on, or subject to the rules of, a [DCM].” In a Special Rule provision, Dodd-Frank also gave the CFTC the power to determine that certain swaps are contrary to the public interest and therefore cannot be listed on a DCM, if the swap involves “activity that is unlawful under any Federal or State law, terrorism, assassination, war, gaming, or other similar activity.” 7 U.S.C. § 7a- 2(c)(5)(C)(i)-(ii) (emphasis added). A CFTC regulation, 17 C.F.R. § 40.11(a), categorically prohibits swaps based on an excluded commodity that involves, relates to, or references, among other things, gaming. A DCM can self-certify to the CFTC that any new contract complies with the CEA and CFTC regulations, but the CFTC may review and disallow a contract that involves an enumerated activity. 4 KALSHIEX, LLC V. ASSAD The panel held that it had the authority to determine what is and is not a swap under the CEA’s definition in 7 U.S.C. § 1a(47)(A)(ii), and no claim under the Administrative Procedure Act was required, because Nevada was not attacking the CFTC’s action or inaction. The panel concluded that the CEA likely does not preempt Nevada’s gaming regulations as applied to Kalshi’s sports event contracts. As to express preemption, the panel concluded that, based on its plain wording, § 2 of the CEA expressly preempts state regulation of swaps that are “traded or executed” on a DCM. There was no dispute that Kalshi’s sports event contracts were traded on a DCM. However, under the CEA’s definition in § 1a(47)(A)(ii), the sports event contracts were not “swaps” because they were sports bets. In addition, the Special Rule in § 7a-2(c) did not establish that Congress intended the CFTC to make a public interest determination regarding swaps and event contracts involving “gaming” because Kalshi’s self-certification and listing of the contracts was unlawful under the Special Rule and its associated regulation, 17 C.F.R. § 40.11. As to conflict preemption, the panel rejected Kalshi’s argument that it was impossible to comply with both Nevada law and the CEA, and that Nevada law posed an obstacle to the CEA’s purposes. The panel also rejected Kalshi’s argument that field preemption applied. The panel held that, in dissolving the preliminary injunction, the district court also did not abuse its discretion in analyzing whether Kalshi showed that it was likely to suffer irreparable harm and that an injunction was both equitable and in the public interest. The panel affirmed in part the district court’s order dissolving the preliminary injunction enjoining Nevada from  KALSHIEX, LLC V. ASSAD 5 enforcing state laws against Kalshi’s sports-related event contracts. The panel remanded for the district court to consider Nevada’s challenges to Kalshi’s election contracts consistent with this opinion. Concurring, Judge Lee wrote that he largely agreed with the majority’s analysis of the relevant provisions of the CEA. He wrote that one statutory provision gave him pause because the Special Rule provision appears to give the CFTC discretion whether to ban gaming contracts altogether, and so the statute does not seem to categorically bar all gaming contracts. However, this question of statutory interpretation need not be resolved now because 17 C.F.R. § 40.11 currently bars gaming contracts. COUNSEL William E. Havemann (argued), Joshua B. Sterling, Samantha K. Ilagan, and Neal K. Katyal, Milbank LLP, Washington, D.C.; Grant R. Mainland, Davis B. Campbell, and Andrew L. Porter, Milbank LLP, New York, New York; Paul C. Williams and Dennis L. Kennedy, Bailey Kennedy LLP, Las Vegas, Nevada; David Meister, Robert A. Fumerton, Chad E. Silverman, and Judith A. Flumenbaum, Skadden Arps Slate Meagher & Flom LLP, New York, New York; for Plaintiffs-Appellants. Nicole A. Saharsky (argued), Minh Nguyen-Dang, Wajdi C. Mallat, and Matthew Bisanz, Mayer Brown LLP, Washington, D.C.; Alexander S. Mendelson and Rory K. Schneider, Mayer Brown LLP, New York, New York; Preston R. Michelson, Mayer Brown LLP, Chicago, Illinois; Abigail L. Pace and Sabrena K. Clinton, Attorneys; Devin 6 KALSHIEX, LLC V. ASSAD A. Oliver, Deputy Attorney General; Jessica E. Whelan, Chief Deputy Solicitor General, Litigation; Heidi P. Stern, Solicitor General; Aaron D. Ford, Nevada Attorney General; Office of the Nevada Attorney General, Las Vegas, Nevada; for Defendants-Appellees. Adam Hosmer-Henner, A.G. Burnett, Katrina Weil, Thaddeus C. Houston, and Jane Susskind, McDonald Carano LLP, Reno, Nevada, for Intervenor-Defendant- Appellee. Martin J. Minot (argued), Deputy General Counsel for Litigation, United States Commodity Futures Trading Commission, Washington, D.C., for Amicus Curiae United States Commodity Futures Trading Commission. Tyler R. Green, Conor D. Woodfin, and Olivia C. Rogers, Consovoy McCarthy PLLC, Salt Lake City, Utah, for Amicus Curiae Paradigm Operations LP. Andrew L. Schlafly, Attorney at Law, Far Hills, New Jersey, for Amici Curiae Stop Predatory Gambling, Texans Against Gambling, and The Association of American Physicians and Surgeons. Joseph H. Webster, Jens W. Camp, Alexandra K. Holden, and Elizabeth A. Bower, Hobbs Straus Dean & Walker LLP, Washington, D.C.; Bryan Newland, Powers Pyles Sutter & Verville PC, Washington, D.C.; Scott Crowell, Crowell Law Office, Tribal Advocacy Group PLLC, Sedona, Arizona; Michael Hoenig, Yuhaaviatam of San Manuel Nation, Washington, D.C.; for Amici Curiae The Indian Gaming Association, National Congress of American Indians, United South and Eastern Tribes Sovereignty Protection Fund, Arizona Indian Gaming Association, California Nations Indian Gaming Association, Minnesota Indian Gaming  KALSHIEX, LLC V. ASSAD 7 Association, Oklahoma Indian Gaming Association, Washington Indian Gaming Association, National Tribal Gaming Commissioners and Regulators, Native American Finance Officers Association, Tribal Alliance of Sovereign Indian Nations, San Manuel Gaming and Hospitality Authority, and 24 Federally Recognized Indian Tribes. Todd Phillips, Atlanta, Georgia, for Amicus Curiae Todd Phillips. Zachary P. Keller, Deputy Solicitor General; Mathura J. Sridharan, Solicitor General; Dave Yost, Ohio Attorney General; Office of the Ohio Attorney General, Columbus, Ohio; Stephen Ehrlich, Deputy Solicitor General; Jeremy M. Feigenbaum, Solicitor General; Jennifer Davenport, New Jersey Attorney General; Office of the New Jersey Attorney General, Trenton, New Jersey; Steve Marshall, Alabama Attorney General, Office of the Alabama Attorney General, Montgomery, Alabama; Stephen J. Cox, Alaska Attorney General, Office of the Alaska Attorney General, Anchorage, Alaska; Raúl R. Labrador, Idaho Attorney General, Office of the Idaho Attorney General, Boise, Idaho; Tim Griffin, Arkansas Attorney General, Office of the Arkansas Attorney General, Little Rock, Arkansas; Theodore E. Rokita, Indiana Attorney General, Office of the Indiana Attorney General, Indianapolis, Indiana; Kristin K. Mayes, Arizona Attorney General, Office of the Arizona Attorney General, Phoenix, Arizona; Philip J. Weiser, Colorado Attorney General, Office of the Colorado Attorney General, Denver, Colorado; Brian L. Schwalb, District of Columbia Attorney General, Office of the District of Columbia Attorney General, Washington, D.C.; Kathleen Jennings, Delaware Attorney General, Office of the Delaware Attorney General, Wilmington, Delaware; Kwame Raoul, Illinois Attorney General, Office of the Illinois Attorney General, Chicago, 8 KALSHIEX, LLC V. ASSAD Illinois; Kris W. Kobach, Kansas Attorney General, Office of the Kansas Attorney General, Topeka, Kansas; Liz Murrill, Louisiana Attorney General, Office of the Louisiana Attorney General, Baton Rouge, Louisiana; Aaron M. Frey, Maine Attorney General, Office of the Maine Attorney General, Augusta, Maine; Anthony G. Brown, Maryland Attorney General, Office of the Maryland Attorney General, Baltimore, Maryland; Dana Nessel, Michigan Attorney General, Office of the Michigan Attorney General, Lansing, Michigan; Keith Ellison, Minnesota Attorney General, Office of the Minnesota Attorney General, St. Paul, Minnesota; Andrea J. Campbell, Massachusetts Attorney General, Office of the Massachusetts Attorney General, Boston, Massachusetts; Brenna Bird, Iowa Attorney General; Office of the Iowa Attorney General, Des Moines, Iowa; Rob Bonta, California Attorney General, Office of the California Attorney General, Oakland, California; William Tong, Connecticut Attorney General, Office of the Connecticut Attorney General, Hartford, Connecticut; Anne E. Lopez, Hawaii Attorney General, Office of the Attorney General Hawaii, Honolulu, Hawaii; Lynn Fitch, Mississippi Attorney General, Office of the Mississippi Attorney General, Jackson, Mississippi; Raúl Torrez, New Mexico Attorney General, Office of the New Mexico Attorney General, Santa Fe, New Mexico; Letitia James, New York Attorney General, Office of the New York Attorney General, New York, New York; Dan Rayfield, Oregon Attorney General, Office of the Oregon Attorney General, Salem, Oregon; Peter F. Neronha, Rhode Island Attorney General, Office of the Rhode Island Attorney General, Providence, Rhode Island; Charity R. Clark, Vermont Attorney General, Office of the Vermont Attorney General, Montpelier, Vermont; Joshua L. Kaul, Wisconsin Attorney General,  KALSHIEX, LLC V. ASSAD 9 Office of the Wisconsin Attorney General, Madison, Wisconsin; Marty Jackley, South Dakota Attorney General, Office of the South Dakota Attorney General, Pierre, South Dakota; Jeff Jackson, North Carolina Attorney General, Office of the North Carolina Attorney General, Raleigh, North Carolina; David W. Sunday Jr., Pennsylvania Attorney General, Office of the Pennsylvania Attorney General, Harrisburg, Pennsylvania; Alan Wilson, South Carolina Attorney General, Office of the South Carolina Attorney General, Columbia, South Carolina; Derek E. Brown, Utah Attorney General, Office of the Utah Attorney General, Salt Lake City, Utah; Gentner Drummond, Oklahoma Attorney General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma; Jay Jones, Virginia Attorney General, Office of the Virginia Attorney General, Richmond, Virginia; Jonathan Skrmetti, Tennessee Attorney General and Reporter, Office of the Tennessee Attorney General, Nashville, Tennessee; Nicholas W. Brown, Washington Attorney General, Office of the Washington Attorney General, Olympia, Washington; Michael T. Hilgers, Nebraska Attorney General, Office of the Nebraska Attorney General, Lincoln, Nebraska; Keith G. Kautz, Wyoming Attorney General, Office of the Wyoming Attorney General, Cheyenne, Wyoming; for Amici Curiae New Jersey, Ohio, 37 Other States, and the District of Columbia. Sarah A. Ferguson, and Ashley Nikkel, Parsons Behle & Latimer, Reno, Nevada, for Amici Curiae The Nevada Council on Problem Gambling and The Dr. Robert Hunter International Problem Gambling Center. Dominick V. Freda, Dennis M. Kelleher, and Stephen W. Hall, Better Markets Inc., Washington, D.C., for Amicus Curiae Better Markets Inc.. 10 KALSHIEX, LLC V. ASSAD Evan N. Bianchi, Spiro Harrison & Nelson LLC, New York, New York, for Amici Curiae North American Gaming Regulators Association and International Association of Gaming Regulators. Lauren D. Wigginton, Holland and Hart LLP, Las Vegas, Nevada, for Amicus Curiae American Gaming Association. OPINION R. NELSON, Circuit Judge: KalshiEX, LLC advertises itself as “the first app for legal sports betting in all 50 states.” As the volume of activity on Kalshi’s “sports betting” platform ballooned, the Nevada Gaming Control Board sent a cease-and-desist letter notifying Kalshi that it was violating Nevada statutes and gaming regulations. Kalshi sought injunctive relief, arguing that it is not a legal sports betting platform, but a designated contract market under the Commodity Exchange Act (CEA) offering legal sports event contracts. Kalshi argues that the Commodity Futures Trading Commission (CFTC) has exclusive regulatory authority over its sports event contracts and, therefore, Nevada’s gaming regulations do not apply. Because we disagree with Kalshi’s overly broad reading of the CEA, and because CFTC regulations currently prohibit offering contracts related to gaming on prediction markets, we affirm the district court’s order dissolving the injunction as to sports event contracts. We remand for the district court to consider Kalshi’s election contracts.  KALSHIEX, LLC V. ASSAD 11 I A 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. In 1974, Congress amended the CEA “to include nonagricultural commodities and, appropriately, replaced regulation by the Secretary of Agriculture with regulation by a new commission”—the Commodity Futures Trading 12 KALSHIEX, LLC V. ASSAD Commission (CFTC). Dunn, 519 U.S. at 475 n.11. The 1974 Amendments also gave the CFTC “exclusive jurisdiction” over certain derivatives, including “options.” Pub. L. No. 93–463, § 201(b), 88 Stat. 1389 (1974) (codified at 7 U.S.C. § 2). A derivative is a “financial instrument whose value depends on or is derived from the performance of a secondary source, such as an underlying bond, currency, or commodity.” Derivative, BLACK’S LAW DICTIONARY (12th ed. 2024). In the wake of the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. Pub. L. No. 111–203, 124 Stat. 1376 (2010). It was passed to, among other things, “promote the financial stability of the United States by improving accountability and transparency in the financial system.” Id. Dodd-Frank amended the CEA in three relevant ways. First, it added “swaps” to the CFTC’s “exclusive jurisdiction.” 7 U.S.C. § 2(a)(1)(A). It outlined an extensive, six-part definition of “swap” as “any agreement, contract, or transaction . . . that provides for any purchase, sale, payment, or delivery . . . that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence.” § 1a(47)(A)(ii). Second, the Dodd-Frank amendments made it “unlawful for any person, other than an eligible contract participant, to enter into a swap unless the swap is entered into on, or subject to the rules of, a [DCM].” § 2(e). And third, it gave the CFTC the power to “determine” that certain swaps are “contrary to the public interest” and therefore cannot be listed on a DCM, if the swap involves “activity that is unlawful under any Federal or State law, terrorism,  KALSHIEX, LLC V. ASSAD 13 assassination, war, gaming, or other similar activity. . . .” § 7a-2(c)(5)(C)(i)–(ii) (cleaned up) (emphasis added). 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). The CFTC has noted that “its prohibition of certain ‘gaming’ contracts is consistent with Congress’s intent to ‘prevent gambling through the futures markets’ and to ‘protect the public interest from gaming and other events contracts.’” Provisions Common to Registered Entities, 76 Fed. Reg. 44776, 44786 (July 27, 2011). B Kalshi is a DCM registered with the CFTC. In January 2025, Kalshi self-certified to the CFTC, and began offering a new kind of contract: sports event contracts. 1 On Kalshi’s DCM, individuals can buy and sell contracts based on nearly 1 In June 2023, Kalshi began offering event contracts based on elections, which we discuss separately. See infra, at 41 n.7. 14 KALSHIEX, LLC V. ASSAD 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. In March 2025, the Nevada Gaming Control Board (the Board) sent Kalshi a cease-and-desist letter, demanding that it stop offering its elections and sports event contracts. The Board concluded that the sports event contracts were “a system or method of wagering on sporting events and other events,” and that Kalshi was thus “operating as an unlicensed sports pool” in violation of Nevada’s gaming regulations, Nev. Rev. Stat. § 463.160(1) and Nev. Rev. Stat. § 463.245(2). If Kalshi did not stop offering these event contracts in Nevada, the Board warned that it would pursue civil or criminal enforcement action. C 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,  KALSHIEX, LLC V. ASSAD 15 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. The district court denied Crypto’s motion for a preliminary injunction. Id. at 1175–76. The district court concluded that § 2 of the CEA gave the CFTC exclusive jurisdiction over swaps “traded or executed on exchanges that the CFTC has designated,” id. at 1180, but “Crypto’s contracts on the outcome of live events are not ‘swaps’” under the CEA’s definition of swap in 7 U.S.C. § 1a(47)(A)(ii). Id. at 1181, 1187. First, the district court 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 16 KALSHIEX, LLC V. ASSAD 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  KALSHIEX, LLC V. ASSAD 17 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 II The district court had jurisdiction under 28 U.S.C. § 1331, as this action arises under the Supremacy Clause of the Constitution. U.S. Const. art. VI, cl. 2. We have jurisdiction to review the district court’s order under 28 U.S.C. § 1292(a)(1). We review the district court’s order dissolving a preliminary injunction for abuse of discretion. Tracer Rsch. Corp. v. Nat’l Env’t Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994). A district “court abuses its discretion if it commits 2 While this appeal was pending, the Third Circuit affirmed the District of New Jersey’s order granting Kalshi’s motion for a preliminary injunction. KalshiEX, LLC v. Flaherty, 172 F.4th 220, 224 (3d Cir. 2026). The Fourth Circuit appeal remains pending. See KalshiEX LLC v. Martin, 793 F. Supp. 3d 667 (D. Md Aug. 1, 2025) (denying Kalshi’s motion for a preliminary injunction), appeal docketed, No. 25-1892 (4th Cir. Aug. 6, 2025). Several additional district court decisions have been issued, with varied results. See, e.g., KalshiEX LLC v. Orgel, No. 3:26- CV-00034, 2026 WL 474869 (M.D. Tenn. Feb. 19, 2026) (enjoining the enforcement of Tennessee’s gaming law); KalshiEX LLC v. Schuler, No. 2:25-cv-01165, 2026 WL 657004 (S.D. Ohio Mar. 9, 2026) (denying Kalshi’s motion for a preliminary injunction to bar Ohio from enforcing its gaming laws); KalshiEX LLC v. Johnson, No. CV-26-01715, 2026 WL 1223373 (D. Ariz. May 5, 2026) (granting preliminary injunction enjoining enforcement of Arizona’s gambling laws), appeal docketed, No. 26-2978 (9th Cir. May 11, 2026); KalshiEX LLC v. Williams, No. 25-cv-08846, 2026 WL 2017466 (S.D.N.Y. July 13, 2026) (denying Kalshi’s motion for a preliminary injunction). 18 KALSHIEX, LLC V. ASSAD legal error.” NetChoice, LLC v. Bonta, 152 F.4th 1002, 1012 (9th Cir. 2025). To warrant preliminary injunctive relief, Kalshi must show that it is “likely to succeed on the merits, that it is likely to suffer irreparable harm in the interim, and that an injunction is both equitable and in the public interest.” Id. III The key question is whether Kalshi has shown a likelihood that the CEA preempts Nevada’s gaming regulations. If Kalshi makes this showing, then the district court committed legal error, which is an abuse of discretion. See id. We conclude that Kalshi has not shown a likelihood that the CEA preempts state gaming regulations as applied to its sports event contracts and that the district court did not abuse its discretion by dissolving the injunction. A 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). But this case does not resemble the kind of end-run discussed in Big Lagoon. In that case, the court relied on both Supreme Court and circuit precedent to conclude that the Bureau of Indian Affairs’ final decision “to take land into trust was a garden variety APA claim,” which California was attempting to attack collaterally. Id. at 953–54 (cleaned up).  KALSHIEX, LLC V. ASSAD 19 Nevada is not challenging any determination by the CFTC about Kalshi’s event contracts. See 5 U.S.C. § 706 (providing a cause of action to “set aside agency action” or to “compel agency action”). Kalshi self-certified its sports event contracts under § 7a-2(c)(1). Nor does Nevada allege any violation of the CEA in its cease-and-desist letter. Nevada is not attacking the CFTC’s action or inaction but pursuing enforcement of its own state law about what qualifies as a bet or wager, not what the CFTC considers a swap. 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). Courts routinely interpret statutory language to determine whether state law is preempted and the scope of that preemption. See Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (examining “arguments about the [Atomic Energy Act’s] preemptive effect much as [the Court] would any other about statutory meaning, looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation”). The “very point of the traditional tools of statutory construction”—the tools courts use every day—“is to resolve [such] statutory ambiguities.” Loper Bright Enters. v. Raimondo, 603 U.S. 20 KALSHIEX, LLC V. ASSAD 369, 401 (2024). Even the CFTC, as an amicus, suggests that we can determine what constitutes a swap under the CEA. B The CEA likely does not preempt Nevada’s gaming regulations as applied to Kalshi’s sports event contracts. Kalshi argues that the CEA preempts Nevada’s gaming laws through three forms of preemption: express, conflict, and field. We address each in turn. 1 a To start, the CEA expressly preempts state law regulating swaps “traded or executed on” a DCM. § 2(a)(1)(A). “Express preemption arises when the text of a federal statute explicitly manifests Congress’s intent to displace state law.” Ass’n des Éleveurs de Canards et d’Oies du Quebec v. Bonta, 33 F.4th 1107, 1114 (9th Cir. 2022) (quotation omitted). As Kalshi notes, § 2 of the CEA includes an express preemption provision granting the CFTC “exclusive jurisdiction” over all “transactions involving swaps” that are “traded or executed on a market designated” by the CFTC. § 2(a)(1)(A). If we were to simply apply the presumption against preemption, as Nevada suggests, this would become a much easier case. But “the law remains troubling and confused” as to whether we apply a presumption against preemption to express preemption provisions. California Rest. Ass’n v. City of Berkeley, 89 F.4th 1094, 1108 (9th Cir. 2024) (O’Scannlain, J., concurring). The Supreme Court’s most recent discussion of this presumption in Commonwealth of Puerto Rico v. Franklin California Tax-free Trust instructs,  KALSHIEX, LLC V. ASSAD 21 although in passing, that courts generally “do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause.” 579 U.S. 115, 125 (2016). This is the approach the majority adopted in California Restaurant, where we looked to the statute’s “text, structure, and context” “‘without any presumptive thumb on the scale’ for or against preemption.” 89 F.4th at 1101 (quoting R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 553 n.6 (9th Cir. 2022)). Like California Restaurant, we decline to apply any presumption against preemption and instead “focus on the plain wording” of § 2. Id. We conclude that, based on its plain wording, § 2 preempts state regulation of swaps that are “traded or executed” on a DCM. This section states that “[t]he [CFTC] shall have exclusive jurisdiction . . . with respect to . . . transactions involving swaps.” § 2(a)(1)(A). “[T]he purpose of the exclusive-jurisdiction provision . . . was to separate the functions of the [CFTC] from those of the [SEC] and other regulatory agencies.” Curran, 456 U.S. at 386. But the statute confers “exclusive” jurisdiction on the CFTC, which excludes all others, not just the SEC. “[T]he description of . . . jurisdiction as ‘exclusive’ necessarily denies jurisdiction” to other entities, which “follows from the plain meaning of ‘exclusive.’” Mississippi v. Louisiana, 506 U.S. 73, 77–78 (1992). Likewise, § 2(a)(1)(A)’s saving clause shows that Congress meant it to be a preemptive provision. After the sentence conferring “exclusive jurisdiction” on the CFTC, § 2(a)(1)(A) provides that “[e]xcept as hereinabove provided, nothing contained in this section shall . . . supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commisssion or other regulatory authorities under the laws of the United States or 22 KALSHIEX, LLC V. ASSAD any State.” § 2(a)(1)(A) (emphasis added). If the exclusive jurisdiction provision was not intended to have preemptive effect, the “[e]xcept as hereinabove provided” clause would be superfluous. We decline to read into the statute that interpretive difficulty. See Connell v. Lima Corp., 988 F.3d 1089, 1097 (9th Cir. 2021) (“In construing a statute we are obliged to give effect, if possible, to every word Congress used, without rendering words superfluous, void, or insignificant.”). Congress can choose more explicit language for preemption, as it did in § 16(e)(2)’s explicit preemption of certain state gaming laws. 7 U.S.C. § 16(e)(2) (“This chapter shall supersede and preempt the application of any State or local law that prohibits or regulates gaming or the operation of bucket shops”). But there are no magic words that a statute must employ to preempt state law. Congress need only express through the plain text that a statute preempts state law, rather than use specific language. Franklin, 579 U.S. at 125 (explaining that the “plain wording” of a statute “necessarily contains the best evidence of Congress’s pre-emptive intent”). And Congress did so in § 2(a)(1)(A). b While § 2(a)(1)(A) includes an express preemption provision, Kalshi overplays its hand when it argues that “state law is superseded as to [all] on-DCM transactions.” Kalshi argues that “[b]ecause the saving[] clause clarifies that state law is not ‘supersede[d]’ as to off-DCM transactions, it confirms that state law is superseded as to on- DCM transactions.” This argument fails because Congress declined to grant exclusive jurisdiction to all on-DCM transactions, as illustrated by “spot contracts,” which can be traded on DCMs but are not subject to the CFTC’s exclusive jurisdiction under § 2(a). See e.g., CFTC, Acting Chairman  KALSHIEX, LLC V. ASSAD 23 Pham Announces First-Ever Listed Spot Crypto Trading on U.S. Regulated Exchanges (Dec. 4, 2025), https://perma.cc/C9YZ-HJM5 (spot contracts on cryptocurrencies). The CEA expressly gives the CFTC “exclusive jurisdiction” over only the enumerated transactions in § 2(a)(1)(A). The exclusive jurisdiction provision only applies (1) “with respect to . . . accounts, agreements . . ., and transactions involving swaps” and other enumerated transactions, (2) that are “traded or executed” on a DCM. § 2(a)(1)(A). Here, there is no dispute Kalshi’s sports event 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). i The CEA’s definition of swap includes six parts. § 1a(47)(A). Kalshi relies on § 1a(47)(A)(ii), which defines a swap as “any agreement, contract, or transaction . . . that provides for any purchase, sale, payment, or delivery . . . that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence.” 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