The Commodity Futures Trading Commission is using CME’s own trading numbers and earnings-call remarks to argue that the exchange operator has no standing to challenge the agency’s approval of perpetual futures for U.S. exchanges.
In a reply brief filed on Oct. 16 in the U.S. District Court for the District of Columbia, CFTC lawyers said CME has not alleged any concrete financial injury from the products, which the regulator cleared in May. “Competitor standing, however, is not some kind of Article III unicorn,” the brief said. The filing supports the agency’s pending motion to dismiss, and the court has not ruled on it.
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Crypto Futures Volume Up Since May
The brief includes a table drawn from 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 over that period and Micro Ether gained 176,496. Link futures were the only product below their May level, down 340 contracts.
Based on that data, the CFTC wrote that “cryptocurrency perpetual futures have had no adverse impact on its crypto-futures suite.”
According to the filing, CME has called the volume figures the agency cited incomplete, writing in its opposition brief that it “at best paints an incomplete picture, and at worst is intentionally misleading.” CME has also argued that there is “increased competition for retail business,” as the brief characterizes its position.
The CEO’s Earnings Call
The CFTC leaned heavily on remarks from CME’s CEO in the company’s July 22 second-quarter earnings script. He said in that script, as quoted in the brief, that CME has “the full technical and operational capabilities to launch perpetual futures” but has “not heard demand from our customers” for them. He also said that “[t]hrough the first half of 2026, 94% of our volume originated from institutional customers.”
“CME cannot have it one way with the Court and another way with the investing public on earnings calls,” the agency’s lawyers wrote. In the CFTC’s view, CME’s choice not to list perps for lack of demand undercuts its claim that they pose an imminent competitive threat.
The brief also argued that reclassifying perps as swaps, the relief CME is seeking, would not push them off the market, since designated contract markets can list both. It noted that Kalshi has been a licensed exchange of that kind since 2020.
CME sued the CFTC and Chairman Michael Selig in June, arguing that perps are swaps under the Commodity Exchange Act. The agency asked the court to dismiss the case in September. Separately, CFTC staff on Oct. 5 issued no-action relief letting exchanges convert perpetual-style security index futures into true perpetuals.
Related Listen: DEX in the City: Why the Supreme Court’s FTC Ruling Could Rewire Crypto Regulation
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