CFTC to Judge: Toss CME's Suit Over $17.98M Kalshi Perps

$17.98 million. That's the record daily open interest across Kalshi's entire crypto perpetual futures book, set on August 12 according to Cryptopolitan, and it is the competitive threat CME Group has taken to federal court.

The CFTC's reply: much ado about nothing

Crowdfund Insider reported that the Commodity Futures Trading Commission and Chairman Michael Selig filed a motion to dismiss on September 2 in the U.S. District Court for the District of Columbia, brought under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and for failure to state a claim. The agency called the case "much ado about nothing." Judge Colleen Kollar-Kotelly is presiding, and CME's opposition is due October 2.

American Banker reported the motion runs on two tracks at once. Track one is the merits: perps are futures, not swaps. Track two is the part that could end the case before a judge ever reaches the merits, with the agency writing that CME "lacks standing" and that the complaint fails to plausibly allege CME will face more competition because of the challenged actions.

Back up to June. Reuters reported that CME sued on June 18 to void the CFTC's May 29 approval of Kalshi's bitcoin perpetual future and the policy statement issued alongside it, arguing the contracts are swaps under the 2010 Dodd-Frank reforms and that treating them as futures was arbitrary and capricious. On the same day as the Kalshi order, Reuters noted, the CFTC said it would not object to Coinbase giving U.S. investors access to its foreign perpetual futures.

Where is the injury in CME's own volume data?

This is the awkward part for Chicago. Per Crowdfund Insider, the CFTC's brief points out that CME has said its own customers aren't asking for perps, and that CME's bitcoin and ether futures volumes actually rose after the Kalshi order. The agency also argues any injury is self-inflicted, because the May order and policy statement let any designated contract market list the same product, CME included.

Do the numbers back the regulator? Mostly, yes. Crypto Briefing, citing CME's July 2 statistics release, reported second-quarter crypto average daily volume of 190,000 contracts, up 136% year over year, with record Micro Ether futures volume of 84,000 contracts a day and Micro Bitcoin futures up 93% to 65,000. Sources differ on emphasis rather than fact: CME's public case is about the legal label and the approval process, not about lost order flow, and nobody has produced a volume series showing Kalshi taking CME's crypto business. That gap is the whole ballgame on a 12(b)(1) motion.

A $17.98 million book against a 29.7 million contract machine

Scale matters here, and it cuts against CME's framing. CME Group's own investor release on September 2 put August average daily volume at 29.7 million contracts, its second-highest August ever and up 6% on last year, with 30-year Treasury bond futures alone running 791,000 contracts a day. Kalshi's whole perp complex, at its August record, was worth less in open interest than a rounding error in that machine. Cryptopolitan framed it bluntly by comparing Kalshi's book with Hyperliquid's $11.7 billion of daily open interest, which makes the U.S.-regulated version roughly 0.15% of one offshore rival.

So why fight? Because CME isn't defending this quarter's crypto revenue. It's defending a rule about product design, and that's the real CME vulnerability: if a contract with no expiry can be blessed as a future by order and policy statement, the same template can be pointed at metals, energy or rates later, and the incumbent's expiry-based franchise becomes one option among several.

Who wins if the judge tosses it

Kalshi wins the obvious way, and Coinbase wins quietly, since the CFTC's no-action stance on its offshore perps rides on the same reading of the law. Retail traders in the U.S. get margined crypto exposure inside a cleared venue instead of an offshore app, which is a genuine improvement in counterparty terms even though a forced liquidation still hurts exactly as much.

The losers are less obvious. Offshore venues lose their monopoly on the product American traders were already using, and CME loses the ability to set the tempo of derivatives innovation by being the venue that decides what a contract looks like. And if the case dies on standing rather than on the swaps question, the underlying legal issue stays unresolved, which means the next exchange to dislike a CFTC approval has to find a plaintiff with a sharper injury than "my competitor got a product I chose not to list."

For everyone else, the practical read is simpler. Perps are onshore now, they clear, and the fight is over who gets to write the rulebook.

Dates that will move this

• October 2, 2026: CME's opposition to the motion to dismiss is due, per Crowdfund Insider. Watch whether CME finally quantifies a dollar of harm. If it can't, standing is a real problem.
• Early October 2026: CME's September and third-quarter volume release. The August edition landed September 2, so expect the same cadence, and expect the crypto ADV line to be read as evidence by both sides.
• After October 2: the CFTC's reply, then a ruling from Judge Kollar-Kotelly on jurisdiction. No date is set, and a dismissal on standing would leave the futures-versus-swaps question open for the next challenger.
• Any month now: whether CME lists a perpetual of its own. It is allowed to under the same order it is suing over, and doing so would gut its own competitive-injury argument.