Judge's Ruling Prompts Dani Lever to Issue Statement

Dani Lever's statement after the Ninth Circuit ruling repays close reading

On Friday, a three-judge panel in San Francisco ruled unanimously that Kalshi could not block Nevada gaming regulators from overseeing its sports event contracts. Nevada Gaming Control Board Chairman Mike Dreitzer called it a complete vindication. The American Gaming Association called it a significant win for consumer protections. Kalshi's spokeswoman Dani Lever called it, in effect, an agreement.

That last characterisation is worth pausing on. Lever's statement after the ruling did not concede the point — it reframed it. The Ninth Circuit, she said, "agreed with the Third Circuit on a fundamental point: federal law prevents states from regulating trading on a federally licensed exchange." The CFTC, she added, is working to clarify the regulations that currently prohibit sports contracts.

What Lever described as agreement between the two circuits is, on the public record, the precise seam where they split. The Third Circuit ruled in April that New Jersey could not regulate Kalshi's platform, finding its sports-event contracts are swaps and futures subject to exclusive CFTC jurisdiction. The Ninth Circuit reached the opposite conclusion on preemption as applied to sports event contracts — allowing Nevada's oversight to stand. These are not the same holding read from different angles. They are contradictory outcomes on the same legal question.

The framing serves a purpose. Kalshi needs the Supreme Court to take this case, and the path to certiorari runs through the circuit split. A company that presents its legal record as a series of nuanced partial agreements — rather than a sequence of losses in the Ninth Circuit — is a company managing the optics of a petition, not a company that has found a theory that wins in court.

The consensus read in the prediction market commentary has been that the Supreme Court's involvement is now inevitable and that Kalshi's federal preemption argument is still alive. On the first point, the consensus is probably right. On the second, the Ninth Circuit's unanimous decision — not a close call, not a dissent-heavy panel — suggests the federal preemption argument is considerably weaker than Kalshi's public positioning implies. In previous work on regulatory preemption disputes, the pattern holds: unanimous circuit rulings against a company's core theory tend to survive Supreme Court review more often than split decisions do. The court takes the case to resolve the split, not necessarily to reverse either circuit.

What the CFTC does next matters more than the litigation scoreboard. Lever pointed to a coming regulatory clarification. If the CFTC moves to explicitly permit sports event contracts before the Supreme Court grants certiorari, the legal posture changes — not because Kalshi wins in court, but because the question the courts are fighting over dissolves. That is the actual variable the litigation timeline depends on, and it is one where the public record is genuinely thin.