The US Commodity Futures Trading Commission (CFTC) has asked a federal judge to throw out CME Group’s challenge to the agency’s approval of cryptocurrency perpetual futures, arguing that the world’s largest derivatives exchange has not shown a legally cognizable injury.
In a motion filed September 2, 2026, in the U.S. District Court for the District of Columbia, the CFTC and Chairman Michael S. Selig urged dismissal of Chicago Mercantile Exchange Inc. v. Selig.
The agency described the case as “much ado about nothing,” saying CME’s claims of competitive harm lack standing and substance.
The filing was made under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and for failure to state a claim. Judge Colleen Kollar-Kotelly is presiding.
CME’s opposition is due October 2.
The dispute began on May 29, when the CFTC approved KalshiEX LLC’s cash-settled bitcoin perpetual futures contract, BTCPERP, and issued a policy statement indicating that other designated contract markets could list similar products as futures.
Perpetual contracts have no expiration date.
Periodic funding payments keep their price aligned with a spot index.
Kalshi launched bitcoin perps in early June and later added other crypto contracts.
Reports put first-day volume above $100 million, with notional activity crossing $1 billion within about a week.
CME sued on June 18. It argued that perpetual contracts are swaps under the Commodity Exchange Act and Dodd-Frank, not futures, because they lack a set delivery date.
The exchange said the CFTC approved Kalshi’s product one day after submission, without public comment or a formal rulemaking, and departed from earlier enforcement cases that treated similar instruments as swaps.
CME sought to vacate the May 29 order and policy statement and to obtain a declaration that crypto perpetuals must be regulated as swaps. It claimed “textbook competitive injury” from a rival DCM offering products aimed at the same retail customers.
The CFTC’s brief counters that CME does not claim it is barred from listing the same contracts, nor that the Commission lacked authority to approve this type of product.
The agency says CME’s real objection is labeling: the exchange wants the contracts called swaps rather than futures.
“Perpetual futures are futures,” the Commission wrote, adding that CME is wrong on the merits.
On standing, the CFTC cited the Supreme Court’s TransUnion decision and asked, in effect, what concrete harm CME suffers.
The agency noted that CME has said its own customers are not requesting perps and that CME’s bitcoin and ether futures volumes rose after the Kalshi order.
Any injury, the brief argues, is self-inflicted because CME can list identical products as a designated contract market.
Even if a court reclassified the contracts as swaps, Kalshi and other venues could still offer them under that label, so a judgment would not redress the alleged competitive harm.
The CFTC also said CME is outside the Commodity Exchange Act’s zone of interests, which is meant to support national futures markets, consumer protection, and innovation—not to shield an incumbent from a competitor’s product design.
The classification fight is more than semantic.
Futures and swaps differ in listing procedures, customer eligibility, reporting, and tax treatment.
How the court treats no-expiry, funding-rate crypto contracts could shape whether other US exchanges continue listing similar products under the May 29 framework. The motion does not end the case. CME has not yet filed its response, and no ruling has been issued.