Last week, Kalshi announced it has been working with regulators in the United States for over a year to bring gold perpetual futures to the platform.
The move could disrupt how traditional financial markets operate in the country, as it shifts 24/7 and non-expiring crypto derivatives into legacy commodities. Earlier in July, Kalshi’s chief risk officer, Udesh Jha, said the company is also considering bringing foreign exchange and energy as perpetuals. If that expansion happens, perps could become a new default wrapper for trading almost anything.
Standing in the way, however, is CME Group. The world’s largest derivatives exchange sued the Commodity Futures Trading Commission (CFTC) in June, arguing the agency broke the law when it approved Kalshi’s Bitcoin (BTC) perps as a future rather than a swap.
If the court sides with the CFTC, “the barn door will be wide open, and the whole spectrum of products will be listed, including by the CME,” John Lothian, a media executive and commodity trading veteran, said. A win for CME, on the other hand, would leave Kalshi with a starker choice to delist the products or convert them into swaps.
Swaps vs futures remains biggest question
On May 29, the CFTC approved Kalshi’s BTC perpetual contract (BTCPERP) as a futures product and issued a broader policy statement inviting other exchanges to bring their own perpetual contracts forward for review. Three weeks later, CME filed a suit, alleging the CFTC violated the Administrative Procedure Act by reversing established agency policy without adequately explaining why, and that in doing so, it let Kalshi sidestep the tougher swap-dealer rulebook.
In an interview with DeFi Rate in June, Lothian traced this back to the 1990s, when standardized versions of bespoke over-the-counter contracts first blurred the line between the two categories.
Now, Lothian highlighted that CME’s argument was never about digital assets specifically.
“It was around process and the proper classification of products, not using an improper classification to get a better competitive position for the exchange or tax advantages for clients,” Lothian said.
CFTC position potentially defensible
Braden Perry, a litigation, regulatory and government investigations attorney at Kennyhertz Perry, LLC and a former CFTC senior trial attorney, thinks CME’s administrative law argument is stronger than many may assume.
“The CFTC treated perpetuals as swaps for years in enforcement actions, then approved Kalshi’s contract as a future without explanation,” Perry said in a statement to DeFi Rate. “Ideally, there should be some acknowledgment or rationale in that change in position. That’s a potential weak spot for the CFTC.”
However, Perry also believes that the CFTC’s position is defensible, since a cash-settled contract listed on a designated contract market functions like a future in practice.
Ashley Ebersole, the co-founder and chief legal officer at tx, added that the CME v. CFTC case could define the limits of the CFTC’s authority to classify novel derivatives under the Commodity Exchange Act.
“Judge Kollar-Kotelly is deeply experienced in administrative law,” Ebersole said. “The outcome may turn on whether she concludes that Congress drew the line between futures and swaps, or instead delegated sufficient authority to the CFTC to determine where novel derivatives fit within those categories.”
Perps are no longer just a crypto product
The metals filing is Kalshi’s clearest signal yet that it does not see perpetuals as a crypto-only product. If approved, the contracts would trade nearly around the clock, matching the schedule of the underlying metals markets, five days a week, with room to extend hours depending on demand.
Alvin Kan, CCO at Bitget Wallet, argued the format’s appeal has less to do with any single asset class and more to do with what perps offer that traditional futures do not. This includes 24/7 access, strong retail appetite for leverage, and a structure, via funding payments, that keeps generating trading activity rather than expiring.
“For exchanges, perps are also a way to bring a large offshore crypto trading model into regulated US markets and compete for a younger, more active trader base.”
Kan added that markets with deep liquidity, continuous price discovery, and clean cash settlement are usually the ones that work best as perps. Metals in particular sit at a useful intersection where gold and silver carry strong retail brand recognition, while copper has become a proxy trade for artificial intelligence (AI) infrastructure and electrification demand.
“For Kalshi, metals also help prove that perps are not only a crypto product, but a broader regulated derivatives format for highly liquid traditional commodities.”
Kalshi’s gold filing & CME’s lawsuit are on separate tracks… for now
Perry highlighted that the two processes are legally distinct. CME’s suit challenges a past approval under the Administrative Procedure Act, while the gold filing moves through the CFTC’s ordinary product-review process. The CFTC is not required to pause one for the other, though Perry noted the agency will effectively be reviewing the filing knowing it could end up in litigation regardless.
“If a court vacates the bitcoin order for inadequate reasoning, the CFTC will likely redo the process as opposed to abandoning it,” Perry said. “And anything still in the pipeline, like the gold perps, would be held until that process is complete.”
Longer term, Perry sees each new contract as still getting individual review under the Commodity Exchange Act, but with regulators building on precedent the way courts do. If the CFTC’s gold approval comes with a clear analysis of the swap question the runway for silver, platinum, or FX products gets considerably shorter.
He added that this is a fight about market structure rather than definitions alone.
“Whether a perpetual is a future or swap decides who can offer competitive derivatives to the public. If the CFTC opened that door in May, and companies like Kalshi are kicking it open and now flooding it with traditional assets. CME is doing what it can to control that flood.
