CME Group filed its opposition on October 2 in federal court in Washington, pushing back against the CFTC’s September 2 motion to dismiss the exchange’s lawsuit over crypto perpetual futures, according to market coverage. The dispute now moves into a reply expected around October 16, with Judge Colleen Kollar-Kotelly presiding in the US District Court for the District of Columbia.
The case began in June when CME sued the CFTC after the regulator approved Kalshi’s BTCPERP, a cash-settled Bitcoin perpetual futures contract. CME argues the contract is a swap, not a futures product, because it has no expiration date and no delivery obligation, relying instead on periodic funding payments between long and short positions. That classification matters because swaps and futures sit under different parts of US derivatives law and carry different obligations.
Perpetual futures are a core retail product in crypto trading on offshore venues, where they have run for years. In the United States their legal status was unclear until May 2026, when the CFTC issued an order approving Kalshi’s contract and stating that other designated contract markets could list similar products as futures.
The regulator’s dismissal argument
The CFTC moved to dismiss in September on two grounds. First, CME lacks standing. It has not shown a concrete injury, and in material cited to the court, its own leadership has said customers never asked for the product. Chairman and CEO Terrence Duffy said on the July earnings call that perpetual futures “do not appeal to our core customers” and that CME has “full technical and operational capabilities” to launch them if demand appears.
Second, even if a competitive injury existed, it would be self-inflicted. The order lets CME list perpetual futures itself, and CME’s own monthly volume figures show Bitcoin and Ether futures higher in June and August than in May, the month the order was issued. The regulator also argues that reclassifying the contracts as swaps would not remove anything from the market, since Kalshi and other exchanges could list them as swaps instead. In the dismissal memo, the agency said reclassification is the remedy that matters and that CME’s objection is, at its core, a labeling dispute.
The memo opened bluntly. “This lawsuit is much ado about nothing,” the CFTC wrote. Its core argument is that Congress wrote the Commodity Exchange Act to encourage fair competition among trading venues, and a suit aimed at keeping a rival product off the market runs against that purpose.
CME’s October 2 filing contests both points. The details of that opposition have been reported secondhand, with policy commentators noting that the filing leaned on arguments the exchange had already made in earlier briefs and did not fully address the standing and redressability challenges the regulator raised.
What CME wants and what is next
The exchange is asking the court to vacate the May 29 order and the policy statement that followed, and to declare that crypto perpetuals must be regulated as swaps. If the court agrees, Kalshi’s product nomination would be void and the entire futures classification would be undone, putting the US perpetual market back where it was before May, in legal limbo.
Whether the case is decided on the motion to dismiss or proceeds to summary judgment is the near-term question. The parties proposed cross-motions for summary judgment on November 20, with amicus briefs due December 4. A ruling to dismiss would end the case at the trial-court level, though an appeal would follow. A denial pushes the fight into the merits, where courts would have to decide what a perpetual contract actually is under the Commodity Exchange Act and Dodd-Frank.
Amicus activity has grown. The Hyperliquid Policy Center filed a brief arguing CME lacks standing to block perpetual futures, and commentators have pointed out that CME’s opposition did not address every argument in that brief, which may shape how the court frames its analysis.
Perpetual futures are the most-traded crypto derivative globally by volume, mostly on venues the CFTC does not directly oversee. Bringing them into a regulated US framework has been one of the crypto industry’s main regulatory asks this year, and regulators have moved in that direction. In June, CFTC staff issued a no-action letter letting Bitnomial and Coinbase Derivatives remove expiration dates from their perpetual-style contracts, and in October staff extended similar relief to contracts tied to broad stock indexes.
The classification question cuts through all of it. If perpetuals are futures, they live on designated contract markets with direct CFTC oversight. If they are swaps, they fall back into a category that historically carried heavier regulatory overhead, which is one reason the industry pushed for the futures reading in the first place. CME’s suit would reverse that outcome if it succeeded.
The reply from the CFTC is due October 16, and oral arguments may follow. Whatever the judge decides on standing will set the tone for what comes next, because a dismissal on that ground avoids the classification question entirely and leaves the May order in place.
For traders and exchanges, the practical impact depends on timing. Kalshi’s contract, Coinbase’s regulated perpetual-style products, and the staff relief that lets exchanges remove expiry dates are all live while the case proceeds. Nothing has been paused. The legal risk sits alongside operating markets, as it often does in American derivatives regulation.