The U.S. Commodity Futures Trading Commission (CFTC) has asked a federal judge to dismiss CME Group’s challenge to the regulator’s approval of crypto perpetual futures, arguing that the exchange has not demonstrated a concrete injury.

In a motion filed Wednesday, the CFTC described CME’s case as “much ado about nothing” and argued that the exchange lacks constitutional standing because it has not identified a specific financial loss caused by the agency’s decision.

The regulator said its approval does not give exclusive market access to any single exchange. CME and other registered designated contract markets are permitted to list similarly structured perpetual products under the order.

The CFTC also cited CME’s public statements that its customers have not requested perpetual futures. The agency argued that if CME is disadvantaged because it has chosen not to offer the contracts, that consequence results from its own business decision rather than regulatory action.

The regulator further maintained that even if CME wins the case, competing perpetual contracts would remain available. Kalshi and other designated contract markets could continue offering comparable instruments as swaps, meaning a different regulatory classification would not necessarily remove the competitive pressure cited by CME.

The CFTC also argued that CME’s desire to avoid competition does not represent an interest protected by the Commodity Exchange Act.

Why CME Challenged the Approval

CME filed its lawsuit in June after the CFTC approved Kalshi’s BTCPERP product as a futures contract. The cash-settled instrument is designed to track bitcoin’s spot price, trades continuously and does not have an expiration date. Funding payments between long and short positions help keep the contract’s price aligned with the spot market.

The CFTC’s May 29 order also extends to similarly structured perpetual contracts tied to other digital commodities that have deep, active and continuously operating spot markets. Perpetual products based on other asset classes remain subject to individual regulatory assessments under a separate policy statement.

CME argues that contracts without expiration dates or delivery requirements, where funding payments are exchanged between traders, should legally be considered swaps rather than futures.

The exchange has also accused the CFTC of failing to explain its departure from earlier enforcement actions in which crypto perpetual products were treated as swaps.

Judge Keeps Administrative Record in Play

U.S. District Judge Colleen Kollar-Kotelly rejected the CFTC’s request last week to withhold the administrative record until the court decides on the dismissal motion.

The judge said the record could contain material supporting CME’s allegations of competitive harm. She directed both sides to submit a joint proposal outlining the briefing schedule by September 4.