On Wednesday, Kalshi formally requested an en banc rehearing of the Ninth Circuit Court of Appeals case versus Nevada gaming authorities that was ruled on in late August. Citing what it claims was a mischaracterization of sports event contracts as “sports betting” by the three-judge Ninth Circuit panel in its ruling, Kalshi is asking for the case to be reviewed by a larger panel of judges.
READ: Kalshi En Banc Petition to the Ninth Circuit (September 9th, 2026)
The opening section of Kalshi’s petition states that the Ninth Circuit ruling exposes the prediction platform to civil and criminal liability despite the fact that it is federally regulated by the Commodity Futures Trading Commission (CFTC).
A “rehearing is necessary because the panel’s decision creates a circuit split on an exceptionally important question of federal preemption based on internally inconsistent reasoning that conflicts with the plain text of the Commodity Exchange Act (CEA),” reads the introductory sentence of Kalshi’s petition.
“The panel held that, although Congress granted the Commodity Futures Trading Commission (CFTC) ‘exclusive jurisdiction’ over instruments traded on federally designated contract markets (DCMs) like Kalshi, states may nonetheless regulate sports-event contracts the CFTC has permitted to be traded on Kalshi. As a result, Kalshi now stands exposed to civil and criminal liability, even though it is abiding by federal law and the mandate of its exclusive federal regulator.”
Now that Kalshi has formally filed a petition for an en banc hearing, all 29 judges on the Ninth Circuit roster will have an opportunity to vote on whether to grant the prediction exchange’s request. That decision is expected to occur before the end of the calendar year.
If a majority of Ninth Circuit judges vote to grant Kalshi’s request, a new hearing would likely take place during the spring of 2027, with an 11-judge panel (all from the Ninth Circuit’s current roster) presiding over the case. Ten of those judges would be randomly chosen for the rehearing, which means that one or more of the three judges who originally handed down the unanimous ruling in favor of Nevada could form part of the en banc panel.
US Court of Appeals for the Ninth Circuit Chief Judge Mary H. Murguia would automatically appear on the 11-judge panel. However, the process outlined above will only apply if a majority of Ninth Circuit judges vote to grant Kalshi’s petition for a rehearing.
Last week, New Jersey filed a petition for certiorari with the Supreme Court regarding an April 2026 Third Circuit decision that favored Kalshi. This week, Robinhood, a co-litigant in the Ninth Circuit case versus Nevada gaming officials, filed its own petition for certiorari with SCOTUS.
Similar to New Jersey’s separate Third Circuit petition for certiorari, the Supreme Court is expected to file Robinhood’s “cert petition” on its docket in the coming days.
The “tag-team strategy” possibility was referenced earlier this week by gaming industry legal expert Daniel Wallach. The Miami Law School professor was initially clued in to Kalshi’s intent to file an en banc petition with the Ninth Circuit on Tuesday, when he noticed that the exchange had “added several additional Milbank counsel to an appeal decided 11 days ago.”
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