Kalshi asks Ninth Circuit to put its Nevada loss on hold while it seeks Supreme Court review

Kalshi asked the U.S. Court of Appeals for the Ninth Circuit on November 9, 2026, to stay its mandate in KalshiEX v. Assad (No. 25-7516), the case over Nevada’s power to regulate its sports event contracts, while the company petitions the Supreme Court. The motion, filed by Milbank with Neal Katyal as counsel of record, is entry 232 on the docket.

It comes five days after the same court refused to rehear the case. In its August 28 opinion, the panel upheld the district court’s order dissolving Kalshi’s preliminary injunction against Nevada gaming regulators, finding Kalshi had not shown that sports event contracts are likely swaps within the CFTC’s exclusive jurisdiction. Judges Ryan D. Nelson, Bridget S. Bade and Kenneth K. Lee denied rehearing on November 4, and no judge asked for an en banc vote.

What the motion asks for

Kalshi moves under Federal Rule of Appellate Procedure 41(d)(1) for a stay of the mandate “pending the filing and disposition” of its certiorari petition. It names no end date. The mandate is the formal step that returns the case to the district court. Under Rule 41, it generally issues seven days after the rehearing deadline passes or after an order denying rehearing or a motion to stay the mandate, whichever is later, and the court can shorten or extend that time. A stay is capped at 90 days unless it is extended, or the party notifies the clerk that a petition has been filed, in which case it runs until the Supreme Court’s final disposition.

The state defendants oppose the motion, and the Nevada Resort Association had not given a position when Kalshi filed. No response from Nevada appears on the docket as of November 11.

Kalshi’s arguments

To win a stay, Kalshi has to show that its petition would raise a substantial question and that there is good cause. Kalshi argues the Ninth Circuit’s “general practice” is to grant such motions when the arguments are not frivolous.

On the first point, it argues the panel’s ruling deepens two circuit splits. In Kalshi’s account, the Third Circuit, in KalshiEX v. Flaherty, held that sports event contracts can be swaps and that the Commodity Exchange Act preempts state regulation of them. The Sixth Circuit, in KalshiEX v. Schuler on September 25, held that the contracts are not swaps and that the Act would not preempt state law even if they were. The motion states that Kalshi has sought rehearing there, with CFTC support, and that the petition is pending. It also lists cases argued in the Fourth Circuit and the Massachusetts Supreme Judicial Court and appeals pending in the Second, Seventh, Eighth and Tenth Circuits.

The motion relies heavily on recent CFTC action. A June 2026 proposal would revise Rule 40.11, the regulation the panel read as a categorical ban on gaming contracts; the motion cites a September 24 government filing saying the agency planned to finalize it within three weeks. An October 19 rule, effective immediately, excludes state-regulated gambling products not traded on an exchange from the swap definition, which Kalshi argues answers the panel’s worry that every sports bet would become a swap. A separate October 19 proposal would define event contracts, including sports contracts, as swaps; its comment period closes November 18.

Kalshi also points to a November 5 CFTC instruction that exchanges stop domestic geographic restrictions that violate the agency’s impartial-access requirements by December 5, 2026, or explain why they cannot. Kalshi argues that order conflicts with the May 18 Nevada state-court injunction barring its sports contracts in the state.

Good cause and what changes

For good cause, Kalshi argues that issuing the mandate would send the case back for merits proceedings, including on its election contracts, before the Supreme Court weighs in. It cites criminal charges filed against it in Arizona in March and in Utah on October 28. Briefing in three related Ninth Circuit appeals, Nevada v. KalshiEX, Washington v. KalshiEX and KalshiEX v. Johnson, is stayed until the mandate issues.

Kalshi argues Nevada loses nothing: the district court case is already stayed, and the state-court injunction keeps its sports contracts out of Nevada. The motion states Kalshi has complied with that order.

The bigger question is the one Kalshi wants the justices to take. Crypto.com’s derivatives arm, which lost its own Nevada appeal in the Ninth Circuit on August 28, and New Jersey officials had filed their own petitions as of mid-September. As of that September report, the Supreme Court had not agreed to hear any of them.

Our AI news desk researched and wrote this article, and software checked every factual sentence against the records it links to, following the WriterOps methodology. Report an error.