The Commodity Futures Trading Commission has asked a federal judge to throw out CME Group’s lawsuit over crypto perpetual futures, calling the case “much ado about nothing” and arguing the derivatives giant has no legal standing because it cannot show it lost a dollar.
The motion, filed September 3 in the US District Court for the District of Columbia by lawyers for CFTC Chair Michael Selig and the commission, makes two arguments. First, CME has not alleged a concrete financial injury from the regulator’s May 29 order approving Kalshi’s bitcoin perpetual futures contract. Second, the order lets any registered US exchange list the same products, CME included. If CME is losing customers to perpetuals, the agency says, it is because CME chose not to list them.
The dispute in brief
CME sued the CFTC on June 18 after the regulator approved Kalshi’s BTCPERP contract and issued guidance allowing other designated contract markets to list similar products. The cash-settled contract tracks bitcoin’s spot price, trades around the clock and never expires. Traders pay a funding rate that keeps its price near spot, the same mechanism used on offshore crypto venues for years.
CME’s core claim is definitional. Contracts with no expiration date and no delivery obligation, which exchange funding payments between long and short positions, meet the legal definition of swaps under the Commodity Exchange Act and Dodd-Frank, not futures. The commission approved them as futures anyway, CME argues, bypassing the stricter rules that apply to swaps and letting new entrants compete for CME’s retail futures business without meeting the same requirements.
| Point | CME’s position | CFTC’s response |
|---|---|---|
| Classification | Perpetuals are swaps under the Commodity Exchange Act | They can be listed as futures by any registered exchange |
| Standing | New competitors are taking retail customers | No concrete financial loss alleged, so no standing |
| Process | Selig acted without a full five-commissioner panel | Not addressed in the standing motion |
| Remedy | Reclassify the contracts as swaps | Reclassification would not remove the products |
Why the CFTC thinks the case fails
The agency’s brief leans on CME’s own numbers. Bitcoin and ether futures volumes at CME were higher in June and August than in May, the month the order was issued. Whatever competitive injury CME claims, the filing says, it is “entirely self-inflicted and based on CME’s refusal to list perpetual futures for trading.” CME has also said publicly that its customers have not asked for the product.
The stronger structural point is about remedies. Even if the court agreed that perpetuals are swaps, Kalshi and other designated contract markets could simply relist them under that label. A win for CME would not clear the competition from the field, so it would not fix the alleged injury. The CFTC also argued that CME’s effort to shield itself from competition sits outside what the Commodity Exchange Act was written to protect, which the agency described as self-regulation, market integrity and fair competition among exchanges.
“CME has not alleged, and cannot plausibly allege, that it suffered a financial injury from the CFTC’s authorization of perpetual futures contracts. CME therefore lacks standing.”
That line comes from the September 3 motion, per Cointelegraph. A CFTC spokesperson had already called the June complaint “frivolous” and characterized CME’s litigation as “lawfare.”
What is actually at stake
Beneath the procedural sparring sits a real market fight. Perpetual futures are the dominant crypto derivative globally, with volumes that dwarf dated futures, but until this year they existed almost entirely offshore. The May 29 order brought the product into the regulated US market through prediction market platforms and, via a no-action position, Coinbase. Kalshi got the first approval. Coinbase and others followed.
CME, the incumbent that built its business on dated bitcoin and ether futures, now faces retail-focused platforms offering the product traders actually prefer, without expiry dates and with leverage. The lawsuit is its attempt to slow that down through the courts. The CFTC’s answer is blunt: nothing stops you from doing the same thing.
The classification question matters beyond this case. Swaps face different reporting, clearing and margin rules than futures. If courts eventually side with CME on the definitional point, the whole US perpetuals market could need restructuring. That is the argument with real consequence. The competitive-injury argument, which the motion targets, is the weaker one.
The market context behind the fight
Perpetual futures have been the engine of global crypto trading for years, accounting for the majority of volume on offshore venues like Binance and Bybit. American traders largely could not touch them legally, which pushed activity to platforms outside US jurisdiction. The May 29 order changed that by giving domestic exchanges a compliant path. Kalshi moved first, listing its BTCPERP contract in June. Coinbase, operating under a no-action position, prepared similar products for its US customer base.
For CME the concern is straightforward. The exchange built the regulated bitcoin futures market starting in December 2017 and charges institutional-grade fees for dated contracts with fixed expiries. Perpetuals appeal to a different, larger audience: retail traders who want continuous exposure without rolling positions. If that volume migrates to Kalshi and Coinbase, CME loses the growth segment of the market even if its institutional base holds.
CME’s legal theory also carries a tax and reporting angle. Swaps and futures face different treatment under US rules, and a market reclassified as swaps would fall under Dodd-Frank swap provisions rather than futures rules. That is why the classification dispute is not merely academic, even if the standing argument gets decided first.
What happens next
CME’s opposition to the motion is due October 2, per The Block. The CFTC has requested an oral hearing, which had not been scheduled as of the filing week. Whatever the district court decides, an appeal is likely given the stakes for both sides.
In the meantime the products keep trading. Kalshi’s bitcoin perp has been live since June, and Coinbase’s single-stock and crypto perpetuals await further regulatory steps. The CFTC has also floated public input on AI compute futures, a sign the agency under Selig intends to keep approving novel contracts quickly. CME’s bet is that a court will force it to slow down. The regulator’s bet is that competition, not litigation, will decide who wins those customers.