Are perps swaps? A quick look at that CME suit: State of Crypto

CME Group filed a lawsuit against the Commodity Futures Trading Commission alleging it should not have approved Kalshi's perpetual futures contracts the way it did and asking a court to vacate the approval and self-certified products.

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CME Group sued the CFTC on Thursday , alleging the agency did not properly consider prediction market provider Kalshi's application to list perpetual futures contracts before granting the application. The suit came a day after outgoing CEO Terry Duffy announced it would file over the approval granted at the end of May.

It is — not to put too fine a point on it — somewhat unusual for a company as established as CME to sue its primary regulator. Perpetual futures, otherwise known as perps, are relatively new and the crypto industry is a major part of these contracts. CME's lawsuit is alleging procedural issues, saying how the CFTC went about its approval of Kalshi's perps violated Dodd-Frank and risk harming the company.

CME is arguing that perps are harmful to its long-dated futures products. The lawsuit alleges that the CFTC did not consider the ramifications of approving perps, and that these products are actually "swaps" as defined by the Dodd-Frank Act, and not "futures."

Each term carries implications for how the products themselves are to be regulated and what the requirements are for the companies issuing them are. CME CEO Terrence Duffy, who recently announced he's stepping down next year, told CNBC last week that the distinction mandates different rules for participants.

"The CFTC did not engage in its own analysis of whether its approval of Kalshi’s Bitcoin perpetual as a future is consistent with law," CME's lawsuit said. "The CFTC did not even mention the relevant Dodd-Frank provision defining 'swap.' Indeed, the word 'swap' appears nowhere in the Order."

The CFTC instead just "rubberstamped Kalshi's application," the lawsuit claimed.

What's interesting is that the actual landscape of companies securing designated contract market (DCM) approvals and moving into perps is growing quite rapidly. On the same day the CFTC granted Kalshi's application , it sent a no-action letter to Coinbase, seemingly opening the door for that exchange to list perps as well — albeit through an offshore intermediary.

Perps are a novel product though, one that is not necessarily considered in the actual Dodd-Frank Act that CME points to through its lawsuit.

In an email, former Starkware General Counsel Katherine Kirkpatrick Bos said, "Future is not defined anywhere, whereas swap was defined by Dodd-Frank. The CFTC has the discretion to categorize novel products that have the characteristics of a future as opposed to swap. CME is making the argument that 'future delivery' means that the lack of expiry is determinative."

She said on X (formerly Twitter) that there is "no clear precedent" on a "future delivery" being a requirement for a future.

If you’ve got thoughts or questions on what I should discuss next week or any other feedback you’d like to share, feel free to email me at nik@coindesk.com or find me on Bluesky @nikhileshde.bsky.social .

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See ya’ll next week!

In May, combined exchange volumes fell 3.45% to $4.41T; the lowest since September 2024. RWA perpetual futures volumes rose 10.4% against the trend, hitting a new all-time high.

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