The U.S. Commodity Futures Trading Commission (CFTC) has urged a federal judge to dismiss CME Group’s lawsuit challenging the agency’s approval of crypto perpetual futures, arguing that the exchange has failed to show any actual injury.
In a motion filed Wednesday, the CFTC characterized the case as “much ado about nothing” and said CME does not have constitutional standing because it has not identified a concrete financial loss tied to the regulator’s decision.
The agency also stressed that its order does not give any particular exchange exclusive rights to list the products. CME, along with other registered designated contract markets, remains free to offer perpetual contracts that meet the relevant requirements.
The CFTC pointed to CME’s own comments that its customers have not requested perpetual futures. On that basis, the regulator said any competitive disadvantage resulting from CME’s decision not to launch such products stems from the exchange’s own business choice.
The agency further argued that a favorable ruling for CME would not eliminate competing perpetual contracts. Kalshi and other designated contract markets could continue offering similar products as swaps, meaning a change in classification would not necessarily resolve CME’s concerns about competition.
The CFTC also maintained that seeking protection from competitors is not an interest that falls within the protections provided by the Commodity Exchange Act.
CME’s Dispute With the CFTC
CME filed the lawsuit in June after the CFTC approved Kalshi’s BTCPERP product as a futures contract. The cash-settled instrument tracks bitcoin’s spot price, operates continuously and has no fixed expiration date. Funding payments between long and short traders are designed to keep the contract aligned with the underlying spot market.
The CFTC’s May 29 order also covers comparable perpetual contracts based on other digital commodities, provided they have deep, active and continuously operating spot markets. Perpetual products involving other asset classes continue to face case-by-case consideration under a separate policy statement.
CME argues that contracts without expiration dates or delivery obligations, which instead use funding payments between traders, should be treated as swaps under U.S. law rather than futures.
The exchange has also accused the CFTC of failing to adequately explain why it departed from previous enforcement cases where similar crypto perpetual contracts were classified as swaps.
Court Case Moves Forward
U.S. District Judge Colleen Kollar-Kotelly rejected the CFTC’s request last week to delay production of the administrative record until the court rules on its dismissal motion.
The judge said the record could contain information relevant to CME’s claim that the CFTC’s decision has created competitive harm. She instructed the parties to submit a joint proposal for the briefing schedule by September 4.
