Washington Court Doubled Down On Its Kalshi Ruling
What did and didn’t change in the Court's Amended Preliminary Injunction
On August 12, the King County Superior Court issued an Amended and Updated Order granting Washington’s motion for a preliminary injunction against Kalshi. The Attorney General released a press statement the next day.
Most coverage understandably focused on the practical consequences: Geofencing requirements, implementation deadlines and the expanded injunction governing Kalshi’s operations in the state. But a comparison of the amended order with the court’s original July 20 opinion (and the associated press release) tells a different story.
After receiving post-decision briefing–including supplemental authorities, a motion to stay pending appeal, and additional submissions concerning implementation of the injunction–the court left virtually all of its legal analysis intact. The injunction changed dramatically. The opinion did not.
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That distinction matters.
The July order concluded that Washington was likely to succeed on its claims and rejected Kalshi’s argument that the Commodity Exchange Act preempts enforcement of the state’s gambling laws. It also found that compliance with Washington law would not place Kalshi in conflict with federal law.
The August order came after additional briefing following the July ruling. By then, the court had before it Kalshi’s motion to stay pending appeal, supplemental authorities from both sides, and the parties’ joint submission regarding the form of the injunction.
Yet the court’s legal analysis remains, for all practical purposes, unchanged.
Instead, the amended order focuses on implementation. It replaces the placeholder language in the July order with detailed provisions governing geofencing, compliance deadlines, reporting obligations, marketing restrictions and other operational requirements.
That is an important procedural development. It is not a new legal opinion.
But reaffirming an opinion is not the same as making it unassailable. Although the amended order leaves the court’s legal analysis largely unchanged, several aspects of its preemption analysis warrant closer examination.
Three issues, in particular, stand out:
The court’s understanding of the Commodity Exchange Act’s exclusive-jurisdiction provision raises foundational questions about what Congress meant when it sought to consolidate federal regulation of commodity futures trading.
The opinion places considerable weight on the Act’s savings clause, but its treatment of that provision raises broader questions about how savings clauses function in a preemption analysis.
The court also defines the relevant field as one of “gambling” rather than “games”–a distinction that may appear subtle, but one that sits at the heart of the Commodity Exchange Act’s regulation of event contracts.
The remainder of this article examines each issue in turn. It also introduces a new visual framework, developed for my upcoming book, Predictable, for thinking about the boundaries of the federal futures field.
