Key Takeaways
- • The CFTC argued in an Oct. 16 reply brief in the U.S. District Court for the District of Columbia that CME's own data shows perpetual futures have had "no adverse impact" on its crypto futures suite.
- • CME's total crypto futures volume across 12 products rose from 2,660,960 contracts in May to 3,282,530 in September 2026, a net increase of 621,570 contracts, according to the filing.
- • The CFTC cited CME CEO remarks from the July 22 second-quarter earnings script that CME has not heard customer demand for perpetuals, and that 94% of first-half 2026 volume came from institutional customers.
- • The agency contends CME lacks standing because it has not alleged concrete financial injury, and that reclassifying perps as swaps would not remove them from the market since designated contract markets can list both.
- • The court has not yet ruled on the CFTC's pending motion to dismiss CME's June lawsuit against the agency and Chairman Michael Selig.
Summary
The Commodity Futures Trading Commission has urged a federal court to dismiss CME Group's challenge to the agency's approval of perpetual futures for U.S. exchanges, arguing in a reply brief filed Oct. 16 in the U.S. District Court for the District of Columbia that CME has not shown any concrete financial injury from the products, which the regulator cleared in May. As reported by Unchained, the brief states that "competitor standing, however, is not some kind of Article III unicorn." The court has not ruled on the motion, which the agency filed in September.
The CFTC built its argument largely on CME's own figures. The brief draws on CME's monthly volume reports across 12 crypto futures products, showing total contracts rising from 2,660,960 in May to 3,282,530 in September, a net gain of 621,570. Micro Bitcoin futures added 240,369 contracts and Micro Ether added 176,496 over the period, while Link futures were the only product below its May level, down 340 contracts. On that basis, the agency wrote that "cryptocurrency perpetual futures have had no adverse impact on its crypto-futures suite." CME has disputed the data as incomplete, stating in its opposition brief that it "at best paints an incomplete picture, and at worst is intentionally misleading," and has argued that the market shows "increased competition for retail business."
The filing also relies heavily on remarks from CME CEO in the company's July 22 second-quarter earnings script. According to the brief, the CEO said CME has "the full technical and operational capabilities to launch perpetual futures" but has "not heard demand from our customers" for them, and that "[t]hrough the first half of 2026, 94% of our volume originated from institutional customers." The CFTC's lawyers wrote that "CME cannot have it one way with the Court and another way with the investing public on earnings calls," arguing that CME's decision not to list perps for lack of demand undercuts its claim of an imminent competitive threat.
On the remedy CME seeks, the CFTC argues that reclassifying perpetuals as swaps would not push them off the market, since designated contract markets can list both instruments. The brief notes that Kalshi has been a licensed exchange of that kind since 2020. CME sued the CFTC and Chairman Michael Selig in June, contending that perpetual futures are swaps under the Commodity Exchange Act. Separately, CFTC staff issued no-action relief on Oct. 5 allowing exchanges to convert perpetual-style security index futures into true perpetuals.
The CFTC built its argument largely on CME's own figures. The brief draws on CME's monthly volume reports across 12 crypto futures products, showing total contracts rising from 2,660,960 in May to 3,282,530 in September, a net gain of 621,570. Micro Bitcoin futures added 240,369 contracts and Micro Ether added 176,496 over the period, while Link futures were the only product below its May level, down 340 contracts. On that basis, the agency wrote that "cryptocurrency perpetual futures have had no adverse impact on its crypto-futures suite." CME has disputed the data as incomplete, stating in its opposition brief that it "at best paints an incomplete picture, and at worst is intentionally misleading," and has argued that the market shows "increased competition for retail business."
The filing also relies heavily on remarks from CME CEO in the company's July 22 second-quarter earnings script. According to the brief, the CEO said CME has "the full technical and operational capabilities to launch perpetual futures" but has "not heard demand from our customers" for them, and that "[t]hrough the first half of 2026, 94% of our volume originated from institutional customers." The CFTC's lawyers wrote that "CME cannot have it one way with the Court and another way with the investing public on earnings calls," arguing that CME's decision not to list perps for lack of demand undercuts its claim of an imminent competitive threat.
On the remedy CME seeks, the CFTC argues that reclassifying perpetuals as swaps would not push them off the market, since designated contract markets can list both instruments. The brief notes that Kalshi has been a licensed exchange of that kind since 2020. CME sued the CFTC and Chairman Michael Selig in June, contending that perpetual futures are swaps under the Commodity Exchange Act. Separately, CFTC staff issued no-action relief on Oct. 5 allowing exchanges to convert perpetual-style security index futures into true perpetuals.
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