Kalshi Files for Ninth Circuit En Banc Hearing While Robinhood Requests Cert Petition with SCOTUS

• Prediction market operators Kalshi and Robinhood are both hoping for fresh eyes on recent legal defeats
• Kalshi has requested an en banc hearing in the Ninth Circuit after the court ruled against the company in late August
• Robinhood is requesting a cert petition with SCOTUS to seek an appeal of the Ninth Circuit’s decision, which also included the company

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Both Robinhood and Kalshi are hoping to get fresh eyes on a recent legal decision that puts their prediction market sports event contracts at risk in certain states.

The two prediction market companies filed for further hearings of the U.S. Court of Appeals for the Ninth Circuit’s recent ruling to affirm District Judge Andrew Gordon’s April 2025 decision to dissolve an approved Kalshi injunction and allow the Nevada Gaming Control Board to uphold its state gambling laws against sports event contracts.

Robinhood filed a writ of certiorari with the U.S. Supreme Court (SCOTUS) to review the court’s decision, while Kalshi requested an en banc hearing with the Ninth Circuit to do the same.

Two-Pronged Attack

Both Robinhood and Kalshi are requesting further evaluations of the Ninth Circuit decision, but through two different means. Kalshi’s en banc hearing request with the Ninth Circuit differs from the court’s initial ruling, which only included three of the court’s judges. The three-judge panel voted 3-0 to affirm Judge Gordon’s decision, noting that it disagreed with Kalshi’s overly broad reading of the Commodity Exchange Act (CEA) and ruled that its sports event contracts are likely sports bets.

“Because we disagree with Kalshi’s overly broad reading of the CEA, and because CFTC regulations currently prohibit offering contracts related to gaming on prediction markets, we affirm the district court’s order dissolving the injunction as to sports event contracts. We remand for the district court to consider Kalshi’s election contracts,” Judge Ryan D. Nelson wrote in his decision.

Kalshi asserts the court’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 CEA.”

The U.S. Third Circuit ruled in Kalshi’s favor this past April, noting that New Jersey’s gambling laws were indeed preempted by the CEA.

“Kalshi is requesting the Ninth Circuit to consider the appeal en banc. This is necessary because the CFTC rule that the three-judge panel largely based its decision on has been repealed and is being replaced. Once that happens, material parts of the panel’s decision will be moot. In light of the incoming new rule, we look forward to continuing the proceedings in the Ninth,” a Kalshi spokesperson told Sports Betting Dime.

If approved, an en banc hearing will include all of the judges in the U.S. Court of Appeals for the Ninth Circuit, instead of just three. Kalshi asserts the Ninth Circuit’s initial decision “rejected well-reasoned decisions in favor of its erroneous interpretation of the CEA and the CFTC’s soon-to-be-replaced regulation.”

“It is no mystery where the panel went wrong. The decision repeatedly asserts that sports-event contracts are no different than sports bets, and that Congress could not have intended for the CEA to preempt the states’ power over sports betting—regardless of what the plain text may say. But that ignores the fundamental difference between state-regulated sports gambling—where the house (or bookie) sets the odds and wins when the bettor loses—and trades involving sports-events contracts on a DCM—where the market sets the value of the trades and the federally regulated DCM neither sets the odds nor wins when traders lose. The former, including their modern incarnations, remain fully subject to state regulation. But Congress placed the latter squarely within the exclusive regulatory oversight of the CFTC,” Kalshi counsel wrote in its motion.

Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, noted on X that en banc hearings are rarely granted. In FY 2025, only 1.5% of en banc requests in the Ninth Circuit were granted.

The Ninth Circuit grants rehearing en banc in only a tiny fraction of cases. In FY 2025, the CA9 received 730 petitions for en banc review, and called for a vote on only 30, granting just 11. In other words, a 1.5% success rate with no guarantee the result changes on rehearing. https://t.co/tg9ZDjdPYe pic.twitter.com/RszV3g8xOe

— Daniel Wallach (@WALLACHLEGAL) September 10, 2026

Wallach also correctly predicted that Robinhood would join in the legal proceedings and submit a writ of certiorari to the U.S. Supreme Court to review the Ninth Circuit’s decision.

Robinhood Goes SCOTUS Route

The Ninth Circuit’s decision combined both Robinhood and Crypto.com’s sports event contract cases into its Kalshi ruling. This decision allowed Robinhood to appeal the court’s ruling, which it did by submitting a writ of certiorari to SCOTUS.

While the writ of certiorari requests SCOTUS review the Ninth Circuit’s decision, the nation’s highest court does not have to accept the writ and hear the case.

BREAKING: Robinhood has filed a cert petition with the U.S. Supreme Court seeking review of the Ninth Circuit decision on sports prediction markets. Follows right on the heels of Kalshi’s petition for rehearing en banc, a likely tag-team strategy that I outlined yesterday. https://t.co/VgobSg2Hmd

— Daniel Wallach (@WALLACHLEGAL) September 9, 2026

It’s a similar tact as one also recently taken by New Jersey and its Attorney General Jennifer Davenport, who filed a writ of certiorari with the U.S. Supreme Court to request the court evaluate the question of whether or not states can regulate sports event contracts through their own gambling laws.

This came after the Third Circuit ruled in favor of Kalshi and prohibited New Jersey from enforcing its gambling laws against the company’s sports event contracts.

“Companies like Kalshi claim to offer legal sports betting in all 50 States, but they refuse to follow the gambling laws of any State,” Attorney General Davenport said in a press release. “These companies have no right to offer their sports bets without following state law, which is why dozens of States across the ideological spectrum have opposed them. States have long adopted careful laws to regulate gambling, including to prevent compulsive gambling, gambling by minors, and insider trading on sports games. We’re calling on the Supreme Court to resolve this issue and recognize that Congress did not silently make the sports-betting industry immune from state law.”

Davenport’s filed writ of certiorari presents the following question to SCOTUS:

Whether the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act preempted States from regulating sports bets that occur within their jurisdictions if those bets are offered on markets registered with the Commodity Futures Trading Commission.

The question has been the basis of just about every piece of litigation filed by state gaming regulators and prediction market operators since last year.