KalshiEX LLC v. Flaherty (cert. sought sub nom. Flaherty v. KalshiEX, LLC)

Overview

The leading pro-platform precedent. In April 2026 the Third Circuit affirmed 2-1, Judge Roth dissenting, a preliminary injunction barring New Jersey from enforcing its sports-gambling laws against Kalshi, holding the contracts likely preempted “swaps” (172 F.4th 220).

New Jersey petitioned for certiorari on September 2, 2026 — one day before a deadline Justice Alito had already extended twice — captioned Flaherty and Davenport v. KalshiEX, LLC, with Solicitor General Jeremy M. Feigenbaum as counsel of record. Note the caption change: New Jersey Attorney General Jennifer Davenport joins as a second petitioner. The question presented is whether the 2010 Dodd-Frank Act “preempted States from regulating sports bets that occur within their jurisdictions if those bets are offered on markets registered with the Commodity Futures Trading Commission.”

The timing is not accidental. The petition leads on the Ninth Circuit’s Assad decision, handed down five days earlier, and argues the two circuits are now in a direct, acknowledged, and irreconcilable split — New Jersey’s characterisation, and a maximal one: the Ninth Circuit in fact agreed with the Third that the Commodity Exchange Act preempts state regulation of futures trading, and diverged on whether sports contracts are covered instruments at all. The petition also states that Kalshi, other platforms and the CFTC have drawn at least 20 states into litigation.

A filed petition is not a grant. Most petitions are denied, and none of this disturbs the injunction, which remains in force in New Jersey.

Changes

Logged September 22, 2026

• ScheduleSeptember 22, 2026

  New Jersey’s petition, docketed September 8 as No. 26-299, will not reach conference before November: the Court extended Kalshi’s response to November 9, 2026. The first amicus brief, from the National Council of Legislators from Gaming States, was submitted the same day.

  Supreme Court docket No. 26-299

Timeline

What's next: Docketed September 8, 2026 as No. 26-299. The Court extended Kalshi’s response to November 9, 2026, so the petition cannot reach conference before then. The first amicus brief, from the National Council of Legislators from Gaming States, was submitted September 22. Robinhood (No. 26-338) and Crypto.com (No. 26-344) have filed their own petitions from the Ninth Circuit. Nothing is granted — the overwhelming majority of petitions are denied.

Parties