CFTC Tells Court CME Lacks Standing to Challenge Perpetual Futures Approval

The Commodity Futures Trading Commission (CFTC) urged a federal court to dismiss CME Group’s lawsuit challenging the agency’s authorization of perpetual futures contracts on digital assets.

The filing, submitted in the US District Court for the District of Columbia, contends that the exchange operator has failed to establish the legal standing required to proceed with its claims.

Perpetual futures differ from conventional dated contracts in that they lack a fixed expiration date.

Instead, a funding-rate mechanism periodically adjusts payments between long and short position holders to keep the contract price aligned with the underlying spot market.

On May 29, 2026, the CFTC issued an order approving Kalshi’s bitcoin perpetual product as a futures contract and issued an accompanying policy statement indicating that similar instruments referencing other digital commodities with sufficiently deep and continuous spot markets could generally be listed under the futures framework by any registered designated contract market.

CME filed suit in June, asserting that contracts with these structural features—no fixed expiration, reliance on funding payments, and no delivery obligation—meet the statutory definition of swaps under the Commodity Exchange Act rather than futures.

The exchange further argued that the approval process was deficient and that the resulting products would compete directly with its own futures offerings.

The CFTC’s reply brief concentrates on standing.

Under Article III, a plaintiff must demonstrate a concrete, particularized, and actual or imminent injury that is fairly traceable to the challenged action and likely to be redressed by a favorable ruling.

The agency maintains that CME has not met this burden.

Public volume reports show that trading activity in CME’s digital asset futures products is substantially higher now than it was before the May order.

Company executives have separately stated in investor communications that the exchange possesses the technical capability to list perpetual products but has elected not to do so because customer demand has not materialized.

Those statements, the brief argues, undercut any claim of imminent financial harm.

The CFTC further contends that CME has not plausibly alleged an actual or imminent increase in competition capable of producing injury.

Because the challenged order and policy statement explicitly allow every designated contract market—including CME—to list the same type of perpetual futures, the agency says the exchange is not placed at a competitive disadvantage relative to others.

Any choice to refrain from offering the products is commercial rather than regulatory.

Even if an injury were assumed, the brief argues that the relief CME seeks would not redress it.

A judicial determination that the contracts must be classified as swaps would not prevent other exchanges from offering economically similar instruments under that alternative label or through long-dated futures that approximate the same economics.

The CFTC also maintains that CME’s interest in limiting new product categories falls outside the zone of interests protected by the Commodity Exchange Act, which directs the agency to promote responsible innovation and fair competition.

The case, Chicago Mercantile Exchange Inc. v. Selig, remains pending before Judge Colleen Kollar-Kotelly. A decision on the motion to dismiss will determine whether the court reaches the underlying question of how perpetual contracts should be classified under existing law. Until that ruling, the current futures classification continues to govern listings on US regulated platforms.