The agency's reply brief reproduces CME's monthly crypto futures volumes and puts the net change since the May order at 621,570 contracts. It also quotes CME's chief executive telling investors the exchange has not launched perpetuals because customers are not asking for them.
The Commodity Futures Trading Commission told a federal court on October 16 that CME has no right to challenge its perpetual futures policy, because the exchange cannot point to a dollar of harm and its own trading data shows crypto futures volumes higher than before the policy took effect.
The filing is the agency's reply brief supporting the motion to dismiss it entered on September 2 in Chicago Mercantile Exchange Inc. v. Selig, which is before Judge Colleen Kollar-Kotelly in the US District Court for the District of Columbia. CME's exchange subsidiary sued in June under the Administrative Procedure Act over an order and policy statement the Commission issued in May, which the reply brief describes as allowing all derivatives exchanges, CME included, to offer perpetual futures contracts on digital assets. CoinDesk reports that the agency approved the first bitcoin perpetual, from Kalshi, under that framework and said it would handle the contracts as futures case by case. Kalshi has since listed a perpetual future on a US stock index.
The dispute underneath is a classification question. A perpetual contract has no expiration date and uses periodic funding payments between longs and shorts to hold its price near the underlying asset. CME argues that the missing end date makes these contracts swaps rather than futures, which would put them under a different regulatory regime. The exchange does not say perpetuals are unlawful, only that they are labeled wrongly.
The reply does not argue the classification. It argues that CME cannot be in court at all. "Competitor standing, however, is not some kind of Article III unicorn," the agency wrote, citing D.C. Circuit authority that a party claiming competitor injury must make a concrete showing that it is likely to suffer financial injury. "Put simply, 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."
To show there is no harm, the Commission reproduced CME's own monthly exchange volume reports for May through September. Of the twelve crypto futures and micro futures products in the table, eleven traded more contracts in September than in May. Bitcoin futures went from 259,329 contracts to 267,693, micro bitcoin from 1,113,719 to 1,354,088, ether from 326,981 to 378,292 and solana from 83,515 to 101,607. Across all twelve the monthly total rose from 2,660,960 to 3,282,530, a net gain of 621,570 contracts. Four products dipped in the month immediately after the order, by 9,752 contracts between them, against 807,383 additional contracts in the other eight. The one product still below its May level is the Link contract, down 340, which the brief calls a rounding error.
The agency then used CME's July earnings call against it. Quoting the company's second-quarter introductory script, the brief records CME's chief executive saying "[w]e have the full technical and operational capabilities to launch perpetual futures" but that the exchange has not launched them because "we have not heard demand from our customers for these products," which "are in no way substitutes" for its dated futures, and that CME's "crypto futures volume is up over 7-fold in the past 3 years, despite the existence of crypto perpetuals." The brief adds that 94% of the exchange's volume in the first half of 2026 came from institutional customers. As the brief frames it: "CME cannot have it one way with the Court and another way with the investing public on earnings calls."
A second strand argues that even an injured CME would get no remedy. The exchange asks for perpetuals to be reclassified as swaps rather than removed from the market, and futures and swaps both trade on designated contract markets. "Reclassifying perpetuals from 'futures' to 'swaps' would not remove them from DCMs any more than reclassifying a movie from 'action' to 'thriller' would remove it from a streaming platform," the brief says. It adds that Kalshi has held a designated contract market license since 2020 and has been permitted to offer intermediated futures since 2025, so the Commission created no new rival.
The final section argues that CME's claim sits outside the zone of interests the Commodity Exchange Act protects. The brief distinguishes the Seventh Circuit's 1989 decision in Chicago Mercantile Exchange v. SEC on the ground that CME was then challenging a restriction on its own operations, where the May order lets CME list the same class of contracts as anyone else.
The docket records that Judge Kollar-Kotelly denied the Commission's September request for discovery into CME's standing on September 28, and that the Hyperliquid Policy Center, whose earlier comment letter argued perpetuals should be classified by economic structure, filed an amicus brief supporting the agency on September 9. Briefing on the motion closed with the October 16 reply, and the docket recorded no ruling on the motion as of October 20. TD Cowen policy analyst Jaret Seiberg wrote in an October 19 client note, as reported by CoinDesk, that CME may still have the better of both the standing question and the swaps argument, and that continued growth in perpetuals during the litigation could complicate unwinding the market if CME wins.
Nothing in the reply addresses whether perpetual futures are futures. If the court agrees that CME cannot show an injury, it will not have to decide.
