Kalshi has not yet asked the Supreme Court of the United States to review the US Ninth Circuit Court’s decision in its lawsuit against Nevada officials, but a new filing in that case reveals that Kalshi is at least considering that move. Kalshi has asked the Ninth Circuit to essentially delay the effects of its ruling affirming the dissolution of the preliminary injunction against Nevada authorities.
To support that request, Kalshi points to proposed regulations governing event contract trading and rulings from other circuit courts on similar issues. However, Kalshi may face difficulty in satisfying all the conditions necessary for the relief it requests.
Kalshi expresses desire for clear runway to potential SCOTUS petition
In a way, Kalshi’s Nov. 9 filing with the Ninth Circuit in Kalshi v. Assad is like an airplane pilot requesting a clear runway. The impact of the court granting the stay would include giving Kalshi’s counsel more time to devote to preparing and filing such a petition.
Currently, Kalshi has fewer than three months to file a writ of certiorari with the Supreme Court of the United States (SCOTUS) in Assad. That assumes a SCOTUS justice does not grant an extension, naturally.
The stay would also free Kalshi from having to deal with other enforcement actions in Nevada while it prepares a hypothetical writ. The Ninth Circuit’s ruling affirms the dissolution of a preliminary injunction currently providing Kalshi such protection.
Kalshi has to convince the court on several points in order to obtain the stay. One of those points could be especially problematic for Kalshi’s counsel.
Kalshi’s case for irreparable harm could pose challenge before the Ninth Circuit
One of the conditions necessary to granting a stay of the nature that Kalshi requests is Kalshi’s establishment that the balance of harms favors issuing the stay. On that point, Kalshi’s argument rests more in the stay doing no harm to the defendants in the case than in the court not granting the stay causing harm to its business.
“The underlying district-court proceedings are already stayed,” Kalshi’s request reads. “Meanwhile, Nevada has already brought a state-court enforcement action against Kalshi and obtained an injunction barring Kalshi from offering its sports-event contracts in Nevada. Nevada PI Order, supra. Kalshi has complied with that injunction. Staying issuance of the mandate would not alter this state of affairs and therefore would not cause any harm or prejudice to Defendants.”
However, Nevada state officials have not concurred with Kalshi’s assessment that it has complied with the state court order. Nevada Gaming Control Board (NGCB) members told a state judge in August that Kalshi has not fully complied and recommended fines for the non-compliance.
The NGCB has not issued an update on Kalshi’s compliance or lack thereof since pending action from the Ninth Circuit. The dissolution of the injunction as currently scheduled could result in an updated appraisal.
When might Kalshi file SCOTUS petition?
Kalshi could be waiting for SCOTUS to deny or grant cert to both or either of the current petitions in Assad. Crypto.com and Robinhood have filed those writs.
However, Kalshi could still file its own petition before SCOTUS announces whether it will take up Crypto’s or Robinhood’s cases. That would give Kalshi the advantage of framing the question for the court exactly as it likes.
SCOTUS has no deadline for issuing a decision on either of the current writs in Assad, so time may force Kalshi’s hand as well. In the meantime, Kalshi would prefer it things stay as they are between Nevada authorities and itself.
