On Wednesday, September 2, 2026, the US Commodity Futures Trading Commission (CFTC) filed a motion in the US District Court for the District of Columbia, seeking the dismissal of CME Group’s lawsuit challenging the agency’s approval of cryptocurrency perpetual futures. The CFTC characterized CME’s legal challenge as “much ado about nothing,” asserting that the exchange has failed to demonstrate any tangible financial harm.
The dispute originated from a CFTC order on May 29, 2026, which greenlit Kalshi’s Bitcoin perpetual futures contract, known as BTCPERP. This contract is designed to be cash-settled, continuously track Bitcoin (BTC) prices, have no expiration date, and utilize a funding rate mechanism to maintain alignment with the spot market price. The CFTC’s order indicated that its analytical framework also extended to similar contracts based on other digital commodities with robust and continuous spot markets.
CME initiated its lawsuit on June 18, 2026, contending that contracts lacking expiration or delivery dates, and involving periodic payments between traders, should be legally classified as swaps rather than futures. CME also accused the CFTC of circumventing established rulemaking procedures and de crypto perpetuals as swaps
The CFTC’s motion to dismiss refutes these assertions
The CFTC’s motion to dismiss refutes these assertions on several fronts. The agency stated that its May 29 order applies to all registered designated contract markets (DCMs), a category that includes CME. Consequently, the CFTC argued that CME has the capability to list these same perpetual futures contracts itself, thereby eliminating any grounds for competitive injury that would warrant judicial intervention. Furthermore, the CFTC highlighted CME’s public statements indicating a lack of client demand for perpetual futures products, suggesting that any perceived competitive disadvantage stems from CME’s own commercial strategies.
To bolster its argument, the CFTC pointed to trading volume data from CME. The agency noted that Bitcoin and Ether futures volumes on CME in June and August 2026 surpassed those in May 2026, the month the approval order was issued. These figures, according to the CFTC, contradict CME’s claim of a damaged market position.
The CFTC further contended that even if a court were to reclassify the contracts as swaps, competition would persist. Other DCMs, like Kalshi, could simply offer the same products under the new classification. The agency asserted that the regulatory and tax distinctions between futures and swaps are not significant enough to alter the competitive landscape.
The CFTC argued that CME’s lawsuit undermines
Moreover, the CFTC argued that CME’s lawsuit undermines the fundamental objectives of the Commodity Exchange Act, which aims to foster market integrity, fair competition, and responsible innovation among exchanges. The agency posited that employing the Act to obstruct a competitor’s market entry misconstrues its intended purpose. The CFTC has formally requested an oral hearing on its dismissal motion.
Earlier, US District Judge Colleen Kollar-Kotelly had denied the CFTC’s request to be excused from filing the administrative record with its motion, ruling that it might contain pertinent evidence regarding CME’s alleged injury.
Judge Kollar-Kotelly has directed both parties to submit a joint briefing schedule by September 4, 2026. CME’s response to the dismissal motion is anticipated by October 2, 2026.
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