Hyperliquid Brought In Elizabeth Prelogar to Argue CME Has…

The Hyperliquid Policy Center inserted itself into the fight over onshore perpetual futures on September 9, filing an amicus brief in the U.S. District Court for the District of Columbia that argues CME Group has no legal standing to challenge the CFTC’s approval of the contracts. The brief was filed by Elizabeth Prelogar, the former U.S. Solicitor General now at the law firm Cooley, in case 1:26-cv-02157, turning what had been a regulator-versus-exchange dispute into a three-sided one. The filing is a follow-up to a fight FinanceFeeds covered on September 3, when the CFTC itself moved to dismiss CME’s suit as “much ado about nothing.” What is new is the messenger and the argument. Rather than contesting whether CME is right on the law, Hyperliquid’s policy arm argues that CME has no business being in court at all, because the agency’s decision caused it no competitive injury. “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,” Prelogar wrote in the brief, adding that “if CME prevails, every product that the CFTC approves will invite litigation from incumbents who prefer the status quo,” in the group’s filing. For crypto derivatives, the stakes sit beneath the procedural language. Whether perpetual futures can be listed onshore under CFTC supervision decides where a large slice of trading volume is legally allowed to sit, on US-regulated venues or on offshore platforms. Hyperliquid runs the largest offshore perpetuals exchange and is seeking its own route to US traders, so it has a direct interest in keeping that onshore door open, a point worth stating plainly as its HYPE token trades near $80.76, up more than 200% this year.

What Hyperliquid Filed on September 9, and Who Elizabeth Prelogar Is

An amicus brief is a filing by a non-party, a “friend of the court,” offering arguments the judge may weigh without making the filer a litigant. The Hyperliquid Policy Center, an advocacy group funded by the Hyperliquid Foundation and led by crypto lawyer Jake Chervinsky, used one to line up behind the CFTC in a case it is not formally part of, and it did so with an unusually senior advocate. Elizabeth Prelogar served as U.S. Solicitor General, the government’s top courtroom lawyer before the Supreme Court, from 2021 to 2025, and now practices at Cooley. Hiring someone of that stature for an amicus signals how seriously Hyperliquid treats the outcome. The case she filed into is Chicago Mercantile Exchange Inc. v. Selig, before Judge Colleen Kollar-Kotelly in the District of Columbia, which names the CFTC and its chairman, Michael Selig, as defendants. The dispute centers on the first perpetual futures contract approved for a US-regulated exchange, and Hyperliquid’s brief targets not that approval’s substance but CME’s right to contest it.

The Standing Argument and Why “No Competitive Injury” Is the Whole Case

The brief raises what the group calls two defects in CME’s suit, and both go to whether CME can be in court rather than whether it is correct. “Our 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 Hyperliquid Policy Center said in its filing. On the first, the brief argues CME relies on the doctrine of competitor standing, which applies only where a government action intensifies competition within a fixed market so that injury follows as a matter of economic logic. The CFTC’s order did neither, the brief contends: it enlarged the market rather than dividing it, opening exchanges to participants who would not have traded dated futures, and added no new competitor because Kalshi has been a CFTC-regulated exchange since 2020. The second argument concerns the “zone of interests,” the principle that a plaintiff can sue under a statute only if its grievance falls within what that statute was meant to protect, and the brief argues CME’s commercial position sits outside what the Commodity Exchange Act covers. Taken together, the two points make the same wager: if CME suffered no cognizable injury and falls outside the statute it invokes, the merits never get reached, and the case ends on standing alone.

Investor Takeaway

What CME Sought in June, and What the CFTC Has Already Said

CME sued the CFTC on June 18 over the agency’s May 29 order approving Kalshi’s bitcoin perpetual futures as futures rather than swaps, along with a statement letting other designated contract markets list similar products. CME argued those contracts qualify as swaps under the Commodity Exchange Act and Dodd-Frank, that the CFTC reversed its longstanding position without adequate process, and that the approval ushered new entrants into its retail futures market. Chief executive Terrence Duffy has separately called perpetual futures “a disaster waiting to happen.” The CFTC’s own motion to dismiss, filed September 3, pushed back on the injury claim directly. It argued CME remains free to list the same perpetual futures itself, has said its customers are not asking for them, and saw its bitcoin and ether futures trade higher in June and August than in May when the order issued, making any harm, in the agency’s words, “entirely self-inflicted.” Hyperliquid’s brief now reinforces that standing attack from a third angle.

The October 2 Deadline and What Follows

The next dated step belongs to CME, whose opposition to the motion to dismiss is due October 2, per the court’s schedule. After that, the CFTC will file a reply, and Judge Kollar-Kotelly will decide the motion, with Hyperliquid’s amicus among the papers before her; the CFTC has also requested an oral hearing. An amicus does not bind the court, but a standing argument advanced by a former Solicitor General adds rhetorical and legal weight to the position the agency is already pressing, and it front-loads the standing question before the merits are ever briefed.

What a Ruling Does to Onshore Perps, Kalshi, and the Offshore Venues

The outcome reaches well beyond the two parties. If the suit is dismissed and the CFTC’s approach survives, onshore perpetual futures stand, Kalshi and other DCMs keep listing them, and the regulated path Hyperliquid is pursuing stays open; Kalshi has already filed to list perpetuals on a 500-stock US index and copper, pushing the product beyond crypto and toward CME’s core markets. If CME prevails and the contracts are reclassified as swaps, the onshore route narrows and the heavier swap-regulation regime applies, which would slow the migration of perpetuals volume onto US-regulated venues and leave more of it offshore. That is the structural question the standing fight sits on top of, and it explains why President Donald Trump has said the CFTC is working to bring Hyperliquid into the country legally. The classification of a single contract type is setting the boundary between the onshore and offshore derivatives markets.

Investor Takeaway