CFTC says CME data undercuts its suit over perpetual futures

What happened

The Commodity Futures Trading Commission filed a reply brief on Oct. 16 in the U.S. District Court for the District of Columbia. Agency lawyers argued that CME has not alleged any concrete financial injury from perpetual futures, which the regulator cleared in May. The filing backs the agency's pending motion to dismiss, and the court has not ruled on it.

The brief draws on CME's monthly volume reports across 12 crypto futures products. Total contracts went from 2,660,960 in May to 3,282,530 in September, a net increase of 621,570. Micro Bitcoin futures gained 240,369 contracts and Micro Ether gained 176,496. Link futures were the only product below their May level, down 340 contracts.

The CFTC wrote that the data shows perpetual futures have had no adverse impact on CME's crypto futures suite. The agency also cited CME's July 22 second-quarter earnings script, in which the CEO said CME has the technical ability to launch perpetual futures but has not heard customer demand for them. He also said 94% of volume in the first half of 2026 came from institutional customers.

CME sued the CFTC and Chairman Michael Selig in June, arguing that perpetuals are swaps under the Commodity Exchange Act. The agency sought dismissal in September. Separately, CFTC staff issued no-action relief on Oct. 5 letting exchanges convert perpetual-style security index futures into true perpetuals.

Why it matters

Standing is the first question before the court reaches CME's reading of the futures law. The CFTC argues CME must show an actual or imminent financial injury, and it says CME's own disclosures undercut that claim. CME has called the volume figures incomplete, writing in its opposition brief that the picture is at best incomplete and at worst intentionally misleading, according to the filing.

The dispute began with Kalshi's bitcoin perpetual contract, which the CFTC approved on May 29. CME filed its lawsuit on June 18, 2026, seeking to vacate that approval and asking the court to declare crypto perpetual contracts swaps rather than futures. CME's complaint says Kalshi self-certified more than a dozen additional crypto perpetuals after the order and that the products had generated more than $1 billion in trades by the time the suit was filed.

The CFTC also argued that reclassifying perpetuals as swaps would not remove them from the market, since designated contract markets can list both. It noted that Kalshi has held that kind of license since 2020.

What is still unclear

• The court has not ruled on the CFTC's motion to dismiss, so it is not settled whether CME has standing to pursue the case.
• CME disputes the agency's use of its volume data, calling it incomplete, and the brief does not resolve whether the CFTC correctly interpreted the Commodity Exchange Act.

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