CFTC says CME's own volumes sink its suit over crypto perpetuals

CME, the Chicago futures exchange, is suing its own regulator to force crypto perpetual futures into a stricter rulebook, and the regulator's answer, filed Friday, is that the exchange's own trading numbers show it has not been hurt. With the motion to dismiss now fully briefed, the judge in CME v. Selig can decide whether CME even gets to argue the merits.

A perpetual future is a derivative with no expiry date that uses a periodic "funding rate mechanism, rather than a fixed expiration date, to maintain relative price parity with the underlying asset's spot price," as the Commodity Futures Trading Commission described it in its policy statement [4].

What CME is challenging

On May 29 the CFTC approved Kalshi's application to list a bitcoin perpetual as a futures contract and adopted a policy statement on listing perpetual contracts [2][4]. According to the CFTC's brief, the order says "Kalshi and other DCMs [can] list for trading" perpetual futures based on digital commodities, so CME could list them too [2]. DCMs, or designated contract markets, are the CFTC's term for regulated futures exchanges. CME, in the CFTC's account, does not dispute the agency's authority to approve the contracts; "it claims that the Commission should have labeled them as 'swaps' rather than 'futures'" [2].

The label matters because the two rulebooks differ. Citing paragraphs 107 and 110 of CME's complaint, the CFTC's motion describes "perpetual swaps" that would require a trader "to post five days of margin," against "perpetual futures" that "require a trader to post one day of margin," and different tax treatment for each [2]. CME's complaint, at paragraph 10 as quoted by the CFTC, says the products will "directly compete with CME's existing offerings in the market for retail investors" [2]. And CME's opposition, as quoted by the CFTC, cites Kalshi's own statement that "the regulatory framework governing swaps would make its perpetuals uncompetitive"; the CFTC says Kalshi made that remark about different products, perpetual-style futures and retail leveraged spot trades [1].

The CFTC's volume argument

The CFTC's reply says CME has to show a financial injury and cannot: "when a plaintiff cannot identify a dollar of harm, much less explain how the requested relief would remedy that non-existent harm, its case does not belong in a federal court" [1]. Its main exhibit is CME's own monthly volume reports for 12 crypto futures products. The brief totals them at 2,660,960 contracts in May 2026 and 3,282,530 in September, a net gain of 621,570 [1]. By Le Coin's arithmetic, that is a rise of about 23% (621,570 divided by 2,660,960 is 23.4%). The brief concedes four products dipped in June and that one, Link, is still 340 contracts below May [1].

The brief also quotes CME's chief executive, from the company's second-quarter earnings script, saying the exchange has "the full technical and operational capabilities to launch perpetual futures" but has "not heard demand from our customers for these products," and that "94% of our volume originated from institutional customers" in the first half of 2026 [1].

The case for CME

CME's reply to the data, as the CFTC quotes it, is that the data "at best paints an incomplete picture, and at worst is intentionally misleading" [1]. CME argues it "is not required to demonstrate a 'financial injury'" and that "[i]ncreased competition is the injury" [1]. It also argues that standing is judged at the time of the complaint, which predates most of the volume data [1]. In Le Coin's view, rising volumes in a growing market do not by themselves show what CME's volumes would have been without the new contracts; that is the counterfactual question, and CME says it will "discuss this data further" at summary judgment [1].

What happens next

The dates below come from the court's scheduling order [3].

The perpetual model is also spreading beyond crypto: on Oct. 5 CFTC staff gave exchanges no-action relief to convert "perpetual style" stock index futures into true perpetuals, with conditions [5].

What is not yet known

The court has not ruled on the motion to dismiss. CME's opposition and complaint were not available to Le Coin in full, so CME's arguments here come through the CFTC's quotations. Whether any other exchange has listed crypto perpetuals since May is not stated in these filings.

What to watch

Watch for a ruling on the motion to dismiss, which could come before the Nov. 20 summary-judgment date, and whether CME files anything showing lost retail business, which the CFTC's brief says it will demand at that stage [1].

Sources

1. CME v. Selig, No. 1:26-cv-02157-CKK (D.D.C.), ECF 46, Defendants' Reply Brief in Support of Motion to Dismiss, filed Oct. 16, 2026, https://storage.courtlistener.com/recap/gov.uscourts.dcd.293632/gov.uscourts.dcd.293632.46.0.pdf, accessed 2026-10-19, 1:23 p.m. ET.
2. CME v. Selig, ECF 30-1, Memorandum in Support of Defendants' Motion to Dismiss, filed Sept. 2, 2026, https://storage.courtlistener.com/recap/gov.uscourts.dcd.293632/gov.uscourts.dcd.293632.30.1.pdf, accessed 2026-10-19, 1:23 p.m. ET.
3. CME v. Selig, ECF 33, Order setting briefing schedule, https://storage.courtlistener.com/recap/gov.uscourts.dcd.293632/gov.uscourts.dcd.293632.33.0.pdf, accessed 2026-10-19, 1:23 p.m. ET.
4. CFTC, "Policy Statement Concerning the Listing of Perpetual Contracts," 91 FR 33160 (June 3, 2026), https://www.govinfo.gov/content/pkg/FR-2026-06-03/pdf/2026-11020.pdf, accessed 2026-10-19, 1:23 p.m. ET.
5. CFTC Release No. 9308-26, Oct. 5, 2026, https://www.cftc.gov/PressRoom/PressReleases/9308-26, accessed 2026-10-19, 1:23 p.m. ET.

Holding the Corner.

Not financial advice.