The CFTC wants CME Group’s lawsuit thrown out. In a filing Wednesday, the agency told a federal judge that the exchange cannot point to any concrete financial harm and therefore has no standing to be in court at all.
Attorneys for CFTC Chair Michael Selig and the commission motion filed in the U.S. District Court for the District of Columbia. They called the suit “much ado about nothing.” CME, the agency argued, failed to allege a financial injury. Without one, standing collapses. Even a ruling in CME’s favor would not fix the problem the exchange claims to have, the regulator added. Exchanges could still seek to certify the contracts as swaps. They could offer long-dated futures with similar mechanics. The door stays open either way.
CME sued the CFTC in June. The trigger was the commission’s approved of perpetual futures contracts tied to the spot price of bitcoin (BTC) for prediction markets platform Kalshi, along with a no-action position for similar products on Coinbase. CME had announced its planned legal challenge on June 18.
That June complaint made two core arguments. First, Selig acted unilaterally, without a full panel of five commissioners. Second, the CFTC misclassified the products. A contract with no expiration date and no delivery date fits the Commodity Exchange Act’s definition of a swap, CME contends, not a futures contract. The wrong approval process was used.
The dismissal motion takes aim at both arguments. “CME does not argue that it could not list this same type of futures contract,” the filing states. The agency’s May order lets any CFTC-registered designated contract market list similarly structured perpetual futures on Bitcoin and other digital commodities. “Nor does CME argue that the Commission lacked authority to approve the listing of this type of contract.” Strip those away and the dispute, as the agency frames it, comes down to a label. Should the products have been called swaps?
On standing, the CFTC turned CME’s own words against it. The filing cites CME executives who said their customers had not asked for perpetual futures. The contracts, those executives acknowledged, were not substitutes for the company’s institutional hedging products. Then the agency pulled out volume figures. August trading topped May volume for Bitcoin, Micro Bitcoin, Ethereum, and Micro Ethereum futures on CME. That data, the CFTC argued, undercuts any claim of competitive injury. The court has not weighed in on that conclusion.
The standing question carries weight beyond this case. Accept the CFTC’s reasoning and legacy exchanges fighting crypto-native competitors in regulated perpetual futures face a higher bar. They would need to show specific, imminent financial harm. A disagreement over product classification would not be enough.
A CFTC spokesperson previously called the June complaint “frivolous” and accused CME of engaging in “lawfare.”
The product itself has moved fast since the May 29 approval. That order brought a contract most commonly traded on offshore crypto platforms into the regulated U.S. market. Kalshi has since filed to certify perpetual futures tied to 12 altcoins, including Ethereum, XRP, Solana, and Dogecoin. In August, it filed to list a perpetual future tracking copper prices. The CFTC has said contracts based on asset classes outside digital commodities require individual review. Both Kalshi and Polymarket had signaled plans to expand into perpetual futures back in April, before the approval landed.
As of Thursday, the motion had not been scheduled on the public docket. CFTC lawyers requested an oral hearing. The judge has not ruled. The accompanying proposed order remains unsigned.
