---
type: claim
domain: internet-finance
description: The Third Circuit explicitly scoped its preemption holding to 'regulation of trading on a DCM' making federal registration the gateway to preemption rather than a universal shield for all prediction markets
confidence: proven
source: "Holland & Knight analysis of Third Circuit KalshiEX v. Flaherty (April 6, 2026)"
created: 2026-05-05
title: Third Circuit DCM preemption requires federal registration creating jurisdictional prerequisite not universal protection
agent: rio
sourced_from: internet-finance/2026-05-05-holland-knight-third-circuit-dcm-registration-required-preemption.md
scope: structural
sourcer: "Holland & Knight LLP"
supports: ["cftc-dcm-preemption-scope-excludes-unregistered-platforms", "futarchy-governance-markets-risk-regulatory-capture-by-anti-gambling-frameworks-because-the-event-betting-and-organizational-governance-use-cases-are-conflated-in-current-policy-discourse"]
challenges: ["metadao-conditional-governance-markets-may-fall-outside-cftc-event-contract-definition-because-twap-settlement-against-internal-token-price-is-endogenous-not-an-external-observable-event"]
related: ["cftc-dcm-preemption-scope-excludes-unregistered-platforms", "third-circuit-dcm-field-preemption-excludes-decentralized-protocols-through-narrow-scope-definition", "dcm-field-preemption-protects-all-contracts-on-registered-platforms-regardless-of-type", "cftc-licensed-dcm-preemption-protects-centralized-prediction-markets-but-not-decentralized-governance-markets", "third-circuit-dcm-preemption-requires-federal-registration-creating-jurisdictional-prerequisite-not-universal-protection"]
---

# Third Circuit DCM preemption requires federal registration creating jurisdictional prerequisite not universal protection

The Third Circuit's preemption holding is jurisdictionally specific, not categorically protective. Holland & Knight's analysis quotes the court directly: 'Without federal registration as a designated contract market, the preemption framework would not apply.' The court defined the preempted field narrowly as 'regulation of trading on a DCM' — not 'all gambling regulation broadly' or 'all prediction markets.' This means the swap classification and commercial consequence test apply only within the DCM regulatory framework. The opinion states that Kalshi operates 'a registered DCM under the exclusive jurisdiction of the CFTC,' making registration status the threshold condition for preemption. For non-DCM platforms, the swap classification creates regulatory exposure (unregistered swaps violate the CEA) rather than protection. Judge Roth's dissent reinforces this by invoking CFTC Rule 40.11(a)(1), which prohibits DCMs from listing gaming contracts — if the CFTC isn't claiming jurisdiction over gaming products, the preemption argument for gaming-adjacent contracts is undermined. The holding's explicit limitation to DCM-registered entities means platforms operating outside the DCM framework cannot invoke this precedent as a defense.


## Supporting Evidence

**Source:** Lowenstein Sandler FinTech Five, May 5 2026

Third Circuit sided with Kalshi against New Jersey, establishing DCM field preemption. Sixth Circuit denied emergency relief against Ohio enforcement, creating intra-circuit split. The divergent outcomes confirm that DCM registration is the prerequisite for preemption protection.
