CHICAGO MERCANTILE EXCHANGE INC. v. SELIG — Entry #43: REPLY to opposition to motion re [41] Motion for Discovery on Facts Related to Plaintiff's Standing filed by COMMODITY FUTURES TRADING COMMISSION, MICHAEL S

Case 1:26-cv-02157-CKK         Document 43   Filed 09/23/26   Page 1 of 7


                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

CHICAGO MERCANTILE EXCHANGE
INC.,

                                   Plaintiff,

                            v.                          Case No. 1:26-cv-02157-CKK

MICHAEL S. SELIG, in his official capacity as
Chairman of the Commodity Futures Trading
Commission; COMMODITY FUTURES
TRADING COMMISSION,

                                   Defendants.


DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR LEAVE TO CONDUCT
   LIMITED DISCOVERY ON FACTS RELATING TO CME’S ALLEGED
                COMPETITIVE INJURY STANDING


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       CME believes it is “absurd” for there to be discovery over whether it is injured and can

invoke the Court’s subject-matter jurisdiction. Opp. 1. But CME admits that discovery could prove

necessary after it moves for summary judgment, Opp. 4–5, and it even previews its own desire to

obtain discovery from nonparty Kalshi and an amicus curiae, Opp. 10. The Court should reject

this vacillation and grant leave for Defendants to conduct limited discovery related to standing.

       At the outset, CME is wrong that the sky will fall if the government can obtain discovery

about a plaintiff’s standing in an APA case. Opp. 1. CME simply misunderstands the law on

discovery in APA suits. There is generally no discovery in APA suits because the court’s merits

review is based only on the administrative record that was before the defendant agency when it

made the challenged decision. American Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C.

Cir. 2001). But it does not follow, as CME would have it, that discovery is categorically barred as

to non-merits issues like standing. See, e.g., Texas v. Biden, No. 2:21-cv-067, 2021 WL 4552547,

at *2 (N.D. Tex. July 19, 2021) (the rule that judicial review in APA suits is limited to the

administrative record “does not apply to non-merit issues such as standing” … “because courts

consider it ‘not in order to supplement the administrative record on the merits, but rather to

determine [their own] jurisdiction’”). Indeed, “[c]ourts routinely rely on extra-[administrative]

record evidence to support standing in APA cases.” Id.; see, e.g., Monsanto Co. v. Geertson Seed

Farms, 561 U.S. 139, 153–54 (2010) (citing declarations in addressing standing in APA case);

Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 507 (D.C. Cir. 2010) (same).

       Accordingly, courts in this District and others have permitted discovery on the plaintiff’s

standing in APA cases. See, e.g., Texas v. DHS, 756 F. Supp. 3d 310, 331–32 (E.D. Tex. 2024)

(court allowed federal agency to conduct expedited discovery on standing in APA case); Public

Citizen, Inc. v. Trump, 435 F. Supp. 3d 144, 145 (D.D.C. 2019) (Moss, J.) (court allowed discovery


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on standing between government’s motion to dismiss being denied and plaintiffs’ second motion

for summary judgment); Texas v. DHS, No. 6:23-cv-00007, 2023 WL 2842760, at *2 (S.D. Tex.

Apr. 7, 2023) (allowing “extra-record discovery related to standing” by all parties because “[i]n

APA cases, courts routinely rely on extra-record evidence on the issue of whether the plaintiff has

the requisite standing”). Discovery on standing may be unusual in APA cases, but CME has

brought an unusual lawsuit. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (“[W]hen

however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly

unlawful regulation (or lack of regulation) of someone else, much more is needed.”).

       The consequences of allowing discovery into CME’s standing are hardly revolutionary.

For one, as the foregoing demonstrates, this Court would not be “the first to open the doors to Rule

26 discovery in APA actions.” Opp. 4. And CME’s wild conjecture that “government agencies

would need to answer interrogatories” or “sit[] for depositions” “before they even need to respond

to the complaint” is simply not true. Opp. 1. Again, taking discovery from the plaintiff about non-

merits issues does not undermine the black-letter principle that merits discovery from the

government in APA cases is limited to the administrative record. And if a plaintiff believed it

needed discovery from the government to substantiate its standing in an APA case, it would need

to obtain leave from the Court first—just as Defendants are seeking here.

       Next, CME claims that Defendants can only obtain discovery on standing by filing a Rule

56(d) motion. This argument comes as a surprise. When negotiating a briefing schedule, the parties

agreed that Defendants would seek the Court’s leave to conduct discovery precisely to avoid resort

to Rule 56(d) motions practice, which could further delay proceedings. See Dkt. No. 41 at 1 n.1

(“[W]hen negotiating a proposed schedule, Defendants agreed to move for leave to serve discovery

on CME in order to facilitate the efficient resolution of the case and to avoid downstream discovery


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disputes or Fed. R. Civ. P. 56(d) motions.”); Dkt. No. 28 at 7 (warning that “a Rule 56(d) motion”

could “further convolut[e] the proceedings”). And the parties’ schedule builds in several months

before the deadline for summary-judgment motions so that any discovery could occur now rather

than later. Dkt. No. 33. CME’s proposal—to kick the discovery can until after it has moved for

summary judgment—thus invites the inefficiencies that this motion and the entire briefing

schedule were designed to avoid. And it is particularly ironic given CME’s past protestations

against “piecemeal motions practice” that would “frustrate the efficient resolution of this entire

case.” Dkt. No. 27 at 2. That said, to the extent that the Court believes that Rule 56(d) is the proper

vehicle for obtaining discovery on standing, Defendants reserve all rights to file a Rule 56(d)

motion. See Opp. 4 (“Defendants were right the first time. Assuming Defendants could, in theory,

make a showing that they need jurisdictional discovery, they would need to follow Rule 56(d) by

moving in opposition to CME’s summary-judgment motion….”).

       The handful of cases denying standing-related discovery to the government are not to the

contrary. In all these cases, the courts held that the government had not identified any particular

need for discovery as to the plaintiff’s standing. Amica Ctr. for Immigrant Rts. v. Executive Off.

for Immigr. Rev., No. 26-cv-696 (RDM), 2026 WL 662323, at *2 (D.D.C. Mar. 2, 2026) (holding

that the government had not “even attempt[ed] to identify a possible dispute that discovery might

help resolve”); Shelby Cnty. v. Holder, 270 F.R.D. 16, 18 (D.D.C. 2010) (Bates, J.) (“The

government has not shown that it needs discovery to assess Shelby County’s standing.”); National

Parks Conservation Ass’n v. Department of the Interior, No. 26-cv-10877, ECF 73 (D. Mass. Sept.

15, 2026) (holding that government’s discovery requests were overbroad). This case could not be

more opposite. As laid out in Defendants’ motion to dismiss, CME’s own publicly available data

and statements raise substantial doubt that it has suffered any kind of injury in fact, and there is no


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factual basis to show that a judgment in CME’s favor would remedy its alleged injury. Dkt. No.

30-1 at 11–21. CME disagrees, but that disagreement is precisely why discovery is essential: to

allow the airing of facts that confirm or deny whether there is any justiciable controversy.

       The parties agree on one thing: the Court can grant leave to conduct discovery without pre-

evaluating the relevance and proportionality of Defendants’ discovery requests. Opp. 7. CME

nonetheless previews its inevitable relevance and proportionality objections, which are unavailing.

Opp. 7–8. Defendants’ requests about CME’s “financial injury” are plainly relevant to competitor

standing—indeed, it is CME’s burden to prove precisely that. PSSI Glob. Servs., L.L.C. v. FCC,

983 F.3d 1, 11 (D.C. Cir. 2020) (“[A] party asserting competitor standing must ‘make a concrete

showing that it is in fact likely to suffer financial injury as a result of the challenged action.’”).

Defendants are willing to disavow discovery on CME’s financial injury if CME is willing to

concede that it has suffered no such injury, but if it seeks to create a factual dispute on that point,

then discovery is plainly relevant and proportional. CME also claims that “facts and

circumstances” that “post-dat[e] the filing of the Complaint” are not relevant because “standing is

assessed at the time of the complaint—not months after the fact.” Opp. 8–9. But if the facts show

that CME was not injured in the aftermath of the challenged agency conduct, it necessarily did not

face an “actual or imminent” competitive harm when it filed suit. Air Excursions LLC v. Yellen,

66 F.4th 272, 279 (D.C. Cir. 2023).

       Any discovery would also be limited and proportional. Defendants would seek information

related to CME’s injury through August 2026, just a couple of months after the complaint was

filed. Nor would Defendants make “unlimited” requests. Opp. 9. Defendants anticipate serving

only about 20 interrogatories, 20 requests for production, and 15 requests for admission. These

narrow requests are proportional to the needs of the case and would not unduly burden CME.


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       In a final, lone paragraph, CME claims that if Defendants can seek discovery about CME’s

standing, that necessarily means that CME can seek discovery from Defendants and non-parties.

Opp. 10. This tit-for-tat threat is not backed by any actual need for discovery. NBC-USA Hous.,

Inc. Twenty-Six v. Donovan, 741 F. Supp. 2d 55, 60 (D.D.C. 2010) (Kollar-Kotelly, J.) (“Where

there is no showing of how jurisdictional discovery would help plaintiff discover anything new, it

is inappropriate to subject defendants to the burden and expense of discovery.” (citation

modified)). CME has not previously asked for discovery and insists that it “will easily satisfy its

evidentiary burden to show an increase in competition.” Opp. 6. It also has the administrative

record, which contains “communications between Defendants and Kalshi” regarding perpetual

futures. Opp. 10. So CME’s post-hoc discovery demand lacks any legitimate basis.

                                         CONCLUSION

       CME freely admits that “Defendants have not yet seen the evidence that CME will put

forward to demonstrate its standing.” Opp. 5. Instead of providing that and other relevant

information in the two months prior to summary-judgment motions, CME seeks to drag out the

process and ultimately delay the resolution of this case. Defendants seek to avoid wasting time and

ask for leave to serve narrowly tailored discovery requests on standing so that the parties can file

complete cross-motions for summary judgment and opposition briefs within the already-set time

limits. The Court should allow Defendants to conduct limited discovery related to CME’s standing.


 Dated: September 23, 2026                           Respectfully Submitted,

                                                     /s/ M. Jordan Minot
                                                     M. Jordan Minot (DC Bar No. 1722554)


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Case 1:26-cv-02157-CKK   Document 43      Filed 09/23/26      Page 7 of 7


                                   TYLER S. BADGLEY
                                   General Counsel
                                   M. JORDAN MINOT
                                   Deputy General Counsel
                                   ANDREW WEISBERG
                                   Senior Assistant General Counsel
                                   HENRY J. DICKMAN
                                   Senior Assistant General Counsel
                                   ANNE W. STUKES
                                   Senior Assistant General Counsel
                                   CARLIN METZGER
                                   Senior Assistant General Counsel
                                   MARGARET P. AISENBREY
                                   Senior Assistant General Counsel

                                   U.S. Commodity Futures Trading Commission
                                   Three Lafayette Centre
                                   1155 21st Street, NW
                                   Washington, DC 20581
                                   Tel: (202) 209-1087
                                   Fax: (202) 418-5567
                                   [email protected]
                                   [email protected]
                                   [email protected]
                                   [email protected]
                                   [email protected]
                                   [email protected]
                                   [email protected]

                                   Attorneys for Defendants


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