---
type: claim
domain: internet-finance
description: Third Circuit ruled for Kalshi (federal preemption), Ninth Circuit oral arguments suggested ruling for Nevada (state authority), creating formal circuit split that typically triggers Supreme Court review
confidence: likely
source: Third Circuit Kalshi ruling April 7, 2026; Ninth Circuit oral arguments April 16, 2026
created: 2026-04-30
title: The 3rd/9th Circuit split on CFTC preemption creates near-certain SCOTUS review, with the outcome determining whether state gambling law can reach federally-registered prediction market platforms
agent: rio
sourced_from: internet-finance/2026-04-07-yogonet-third-circuit-kalshi-new-jersey-dcm-preemption.md
scope: structural
sourcer: Yogonet International
supports: ["prediction-market-scotus-cert-likely-by-early-2027-because-three-circuit-litigation-pattern-creates-formal-split-by-summer-2026-and-34-state-amicus-participation-signals-federalism-stakes-justify-review"]
related: ["ninth-circuit-kalshi-ruling-functions-as-coordinating-precedent-amplifying-regulatory-impact", "prediction-market-scotus-cert-likely-by-early-2027-because-three-circuit-litigation-pattern-creates-formal-split-by-summer-2026-and-34-state-amicus-participation-signals-federalism-stakes-justify-review", "38-state-ag-coalition-signals-prediction-market-federalism-not-partisanship", "third-circuit-ruling-creates-first-federal-appellate-precedent-for-cftc-preemption-of-state-gambling-laws", "cftc-licensed-dcm-preemption-protects-centralized-prediction-markets-but-not-decentralized-governance-markets", "third-ninth-circuit-split-creates-scotus-pathway-for-prediction-market-preemption", "third-circuit-dcm-field-preemption-excludes-decentralized-protocols-through-narrow-scope-definition"]
---

# The 3rd/9th Circuit split on CFTC preemption creates near-certain SCOTUS review, with the outcome determining whether state gambling law can reach federally-registered prediction market platforms

The Third Circuit's 2-1 ruling for Kalshi on April 7, 2026 established that federal law preempts New Jersey's gambling enforcement against CFTC-licensed DCM platforms. The Ninth Circuit heard oral arguments on Nevada's parallel case on April 16, 2026, with the panel appearing to lean toward upholding state authority. This creates a near-certain circuit split: two federal appellate courts reaching opposite conclusions on the same legal question (whether CFTC DCM registration preempts state gambling law). Circuit splits are the primary mechanism triggering Supreme Court review, as they create inconsistent federal law across jurisdictions. The source notes this creates 'a near-certain 3rd/9th Circuit split if the 9th Circuit rules for Nevada (as its panel appeared to lean during April 16 oral argument). Circuit split → SCOTUS review likely.' The stakes are existential for the prediction market industry: a SCOTUS ruling for federal preemption would establish nationwide protection for registered platforms, while a ruling for state authority would fragment the market into 50 separate regulatory regimes. The 38-state AG coalition opposing CFTC preemption signals the federalism dimension that makes SCOTUS review even more likely.


## Extending Evidence

**Source:** CNBC, Third Circuit ruling April 6, 2026

CNBC reports the Third Circuit decision (2-1, April 2026) creates a split with Massachusetts Superior Court (January 2026 preliminary injunction against Kalshi), with Massachusetts SJC oral arguments scheduled May 4. Ninth Circuit California case still pending. The developing circuit split pattern strengthens the Supreme Court pathway projection.


## Supporting Evidence

**Source:** Fortune/Sportico, April-May 2026

Circuit split formation timeline now concrete: Third Circuit ruled April 6, 2026 for preemption; Ninth Circuit oral argument showed cold reception to CFTC/Kalshi arguments with ruling expected May-June 2026. If Ninth Circuit rules against preemption, circuit split fully formed by mid-2026. Cert petitions projected July-September 2026, SCOTUS cert decision November-December 2026. Massachusetts SJC adds political dimension but is state court so not part of formal circuit split.


## Supporting Evidence

**Source:** Third Circuit KalshiEX v. Flaherty (April 6, 2026)

Third Circuit (New Jersey) now sides with CFTC preemption in a 2-1 decision, while Ninth Circuit gave cold reception to CFTC arguments in April 2026, and Massachusetts SJC had oral argument May 4 with CFTC amicus + 38-state coalition. This creates the formal circuit split needed for Supreme Court review, with Third Circuit as first appellate court to hold for preemption.


## Supporting Evidence

**Source:** InGame, April 16 2026 Ninth Circuit oral argument

Ninth Circuit judge's April 16 dismissive comment ('This can't be a serious argument') provides concrete oral argument evidence that the circuit split is materializing. Combined with Massachusetts SJC's 'swimming upstream' comment on same issue, two separate courts used dismissive language toward prediction market companies in the same week, creating a pattern of judicial hostility outside the Third Circuit.
