Hyperliquid's policy arm asks the court to end CME's perpetuals suit

What happened

Hyperliquid Policy Center filed a brief as amicus curiae on 9 September 2026 in Chicago Mercantile Exchange Inc. v. Selig, the suit in which CME is challenging the Commodity Futures Trading Commission's approval of perpetual futures. Counsel of record is Elizabeth B. Prelogar of Cooley LLP, who was Solicitor General of the United States from 2021 to 2025, with Elias S. Kim and Claire Groden. The brief runs to 37 pages as filed, certifies compliance with the 25-page limit, and states that it was authored by counsel for the amicus and not by counsel for any party. Judge Colleen Kollar-Kotelly granted leave the same day by minute order and directed the clerk to enter the brief on the docket; the motion had been unopposed. The organisation describes itself as 'an independent research and advocacy organization dedicated to advancing a clear, regulated path for Americans to access onchain markets, including those available on the Hyperliquid blockchain'. Its own account of the filing, published the same day, says the brief 'highlights two defects in CME's lawsuit: CME has no injury that gives it standing, and CME's interest in blocking innovation in the futures markets falls outside the interests the Commodity Exchange Act protects'. The introduction is blunter: 'This suit is an attempt by the Chicago Mercantile Exchange (CME) to halt innovation in the U.S. futures markets', and 'CME is well within its rights to sit this one out. But it has no right to ask this Court to make the same choice for every other U.S. exchange.' The passage the reports have picked up reads: 'Once a titan of innovation, CME now advances a novel theory of standing under which an incumbent exchange is injured whenever its regulator permits a new product that it chooses not to offer. If CME prevails, every product that the CFTC approves will invite litigation from incumbents who prefer the status quo, and the pace of progress in the U.S. futures markets will slow to a crawl.' Most of the brief is an account of what a perpetual is and where it comes from. It sets out the mechanism plainly: dated futures converge on the spot price because expiry creates an arbitrage, while a perpetual converges through a funding rate, 'a small periodic payment between participants that have taken long positions and participants that have taken short positions', which runs 'between the long and short sides of the market collectively, not between the parties to any particular trade' and which, 'because the payments grow with the gap', works 'like a rubber band, pulling harder the more the prices diverge'. It walks a NYMEX West Texas Intermediate contract of 1,000 barrels through margin, daily marking and offset, then the WTI perpetual on Hyperliquid, which corresponds to a single barrel and at 10x leverage can be opened on $8 of collateral against an $80 price, with the funding rate enforced every hour. It traces the history from 1830s grain forwards through the 1870s introduction of fungible terms and a clearing system, quoting Board of Trade of the City of Chicago v. Christie Grain & Stock Co. for the finding that 'not less than three quarters of the transactions in the grain pit' involved 'no physical handing over of any grain', and it credits CME with bringing the first currency futures, cash-settled contracts and electronic futures platform to the United States. On demand it says that 'Last year, the notional value of perpetuals traded in global markets was nearly $90 trillion', that markets on Hyperliquid alone accounted for nearly $3 trillion of notional volume in 2025, and that 'due to regulatory uncertainty, not one of those contracts traded on a U.S.-regulated exchange accessible to Americans'. The legal argument has two limbs. On standing, the brief accepts that competitor standing supplies the link between increased competition and tangible injury as a matter of economic logic, but says the doctrine presumes a fixed market in which 'one direct competitor's gain of market share is another's loss', and that the CFTC's order instead 'alters the market itself, growing the potential market participant base for all DCMs, including CME and Kalshi'. It offers the example of a payments processor that must hold bitcoin continuously because it accepts bitcoin from customers and pays merchants in dollars, for which rolling a dated contract every month is the wrong instrument, and it notes that 'nowhere in CME's complaint does it disclaim that the exchange intends to list perpetuals too'. On the zone of interests it argues that the swap definition at 7 U.S.C. 1a(47) does not operate by limiting competition or restricting entry, that Congress enacted the Dodd-Frank swap regime to bring transparency to an opaque over-the-counter market and thereby improved price competition, and that CME's stated interest in forcing perpetuals 'off the marketplace as futures' is 'at cross-purposes' with that design. The conclusion asks the court to dismiss for lack of standing or, in the alternative, for failure to state a claim. The docket carries one further document this desk read: an order of 8 September setting the briefing schedule, under which the defendants move by 11 September for leave to seek discovery from CME on standing, CME opposes the motion to dismiss by 2 October, discovery closes on 13 November if permitted, cross-motions for summary judgment are due on 20 November, and 'Amicus briefs, if any, will be filed' on 4 December.

Why it matters

The doctrinal question here is narrow and the consequence is not. Competitor standing exists because economics usually supplies the injury: if a regulator lets a new firm into a market of fixed size, the incumbents are almost certainly worse off, and a court need not take evidence to believe it. The brief's move is to say that the presumption runs on the fixed-size assumption and nothing else, and that an order which brings an entirely new population of traders inside the regulatory perimeter is the opposite case. If that is right, the CFTC can approve products without inviting suit from whichever incumbent declines to offer them, and the argument generalises immediately: the brief says so, naming 'onchain markets that trade, clear, and settle on public blockchains' as the next thing the agency is trying to bring onshore and the next thing an incumbent could sue to stop. If it is wrong, then every product approval becomes litigable by the largest exchange in the market, which is a veto in all but name. That is the whole of the stake, and it is why a research organisation attached to an offshore venue has retained a former Solicitor General to argue it. The second thing worth noticing is what the brief chooses to spend its pages on. Two thirds of it is a plain-language account of the funding rate, margin, convergence and the history of contract standardisation, addressed to a judge who has no reason to know any of it. That is a bet that the case turns on whether the court understands a perpetual as a futures contract with a different convergence mechanism or as something new and unclassified, because CME's claim is precisely that these instruments are swaps and must be regulated as such. Describing the funding rate as a rubber band and the perpetual as the same contract with the expiry removed is an argument about classification dressed as an explanation. Third, the empirical claim is the load-bearing one and it is checkable. The brief rests market expansion on its own research report of 21 August, which uses the closure of benchmark futures at weekends as a natural experiment and finds no statistically significant harm to the incumbent markets. The median off-hours onchain oil perpetual trade of about $1,300, against a median benchmark WTI trade roughly a hundred times larger, is the strongest single piece of evidence that this is new demand rather than diverted demand, because a trade of that size cannot be an institution rolling a hedge. It is also, self-evidently, research commissioned by an interested party, which is the reason to read the report rather than the brief. And the timing says something on its own. The court's schedule, set the day before, puts amicus briefs on 4 December, after summary judgment cross-motions. Filing in September against a motion to dismiss argued in October means the argument lands while the standing question is live rather than after it, and the court allowed it.

What is not settled

Nothing about the merits is settled and the brief does not pretend otherwise: leave to file is not agreement, and the court has expressed no view on either limb. Whether a court can decline competitor standing on the ground that an agency action grew the market is untested in the District of Columbia Circuit, and the brief concedes as much, saying the circuit 'has never confronted such a case' and arguing only that the same result 'logically should follow'. Whether the market actually grew is an empirical claim resting on one report by the amicus itself, and the $90 trillion figure for offshore perpetual volume is sourced to a Forbes article rather than to an exchange or a regulator. The CFTC has separately asked to take discovery from CME on its own standing, with a motion due on 11 September, so the factual basis of the injury may yet be examined rather than presumed, and nothing in the record says what CME's evidence of injury would be. Neither the brief nor the court addresses what happens to the policy statement on non-digital-asset perpetuals, under which a venue must seek approval before listing one, and which is the part of the CFTC's action with the most direct bearing on the oil contracts the brief uses as its example. Hyperliquid Policy Center's relationship to the Hyperliquid protocol and to its funders is described only as independence and a shared subject; the corporate disclosure statement says it has no parent, subsidiaries or affiliates and that no company owns 10 per cent of its stock, which is a statement about equity rather than about funding. And the schedule itself leaves a question the docket cannot answer: amicus briefs are set for 4 December, this one arrived on 9 September, and whether others follow on the earlier or the later date will show whether the court's calendar or the motion practice is governing.