CHICAGO MERCANTILE EXCHANGE INC. v. SELIG — Entry #42: Memorandum in opposition to re [41] MOTION for Discovery on Facts Related to Plaintiff's Standing filed by CHICAGO MERCANTILE EXCHANGE INC

Case 1:26-cv-02157-CKK   Document 42   Filed 09/18/26    Page 1 of 12


                   IN THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


CHICAGO MERCANTILE EXCHANGE INC.,

                 Plaintiff,

                   –v.–                 Case No. 26-cv-2157

MICHAEL S. SELIG, et al.,

                Defendants.


PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR LEAVE
           TO TAKE JURISDICTIONAL DISCOVERY


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       Rather than litigate this case on the merits, Defendants try to put up another roadblock.

They take the unprecedented position that Rule 26 governs discovery in an APA case and allows

the government to discover proprietary information about a regulated party in an attempt to

disprove competitor standing. The government does not cite a single case in this Circuit—or

anywhere—that has permitted this kind of “Rule 26” discovery in an APA case.

       The consequences of this argument are nothing short of absurd. If Defendants were right—

that the “ordinary” Rule 26 standards govern discovery here—then the moment any APA

complaint is filed, the parties are free to serve Rule 26 discovery, including interrogatories,

requests for production, and deposition notices. Under this unprecedented position, government

agencies would need to answer interrogatories—and officials could be sitting for depositions—

before they even need to respond to the complaint. It is unsurprising that there is no support for

Defendants’ position.

       Courts in this Circuit are clear: Rule 26 simply does not apply in the standard fashion in

the APA context. Instead, should Defendants require discovery at the summary-judgment stage,

they can move pursuant to Rule 56(d)—the exact procedure Defendants invoked in prior briefing

before this Court. Seeking discovery now (which is not permitted regardless) is plainly premature

before this Court has reviewed the parties’ motion-to-dismiss and summary-judgment briefing.

       If all of this were not reason enough to summarily deny Defendants’ misguided motion,

their requested discovery fails even under the “ordinary” principles of Rule 26. Defendants’

position rests on misreadings of competitor-standing law and Article III injury more generally.

CME’s forthcoming opposition to Defendants’ motion to dismiss will demonstrate that each of

Defendants’ competitor-standing arguments is foreclosed by binding D.C. Circuit precedent that

Defendants ignore. Most obviously, Defendants’ contention that CME must prove “financial


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injury” has been rejected time and time again. All that CME needs to show is an increase in

competition. But even worse, Defendants seek extensive discovery into CME’s post-filing

circumstances. Yet standing is assessed at the time of the filing of the Complaint—not after.

Though CME must support its standing with facts at the summary-judgment stage, that does not

give Defendants a right to engage in an extra-record fishing expedition into events taking place

months after CME filed this lawsuit.

        For any of the above reasons, this Court should deny Defendants’ motion for leave to take

discovery.

I.      In an APA Case, Standard Rule 26 Discovery Is Not Available.

        Defendants do not cite a single case allowing, in an APA action, the “Rule 26” discovery

they seek. In particular, they have not cited any APA case allowing a government regulator to

wield Rule 26 to obtain sensitive business information from a party it regulates—all under the

guise of disproving standing. The absence of support is unsurprising for at least two reasons.

        First, it is black-letter law that “discovery is unavailable in APA cases, except in two

circumstances: (1) where the party seeking discovery makes a strong showing of bad faith or

improper behavior; or (2) in the rare case in which the record is so bare as to frustrate judicial

review.” Urb. Sustainability Directors Network v. U.S. Dep’t of Agric., No. 25-cv-1775 (BAH),

2025 WL 2374528, at *40 (D.D.C. Aug. 14, 2025) (citation modified). CME is not aware of any

APA cases where a defendant was allowed to take discovery of a plaintiff in an attempt to disprove

competitor standing. CME asked Defendants for any contrary authority, and they did not provide

any.1


1
  While a plaintiff may be entitled to jurisdictional discovery, Defendants do not claim they are
seeking jurisdictional discovery here. Instead, they purport to take “ordinary discovery” under
Rule 26 “on facts relevant to jurisdiction.” Defs.’ Mot. at 1 n.1.


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       Defendants proclaim that the restrictions on APA discovery apply only when a plaintiff

seeks discovery from an agency in an APA case. Defs.’ Mot. at 4; but see id. (contending that

“what is sauce for the goose is normally sauce for the gander”). That assertion rests on nothing but

Defendants’ say-so. For support, Defendants cite Scenic America, Inc. v. United States Department

of Transportation, 836 F.3d 42 (D.C. Cir. 2016). But that case makes the undisputed point that a

plaintiff must meet its burden to show standing at “each phase” of a litigation; i.e., that a plaintiff

must support its standing with facts at the summary-judgment stage. Id. at 48-49. It says nothing

about discovery (the word does not appear in the decision). And Defendants’ evident position that

they are entitled to take discovery of CME when it is CME’s burden to prove its standing makes

little sense. If CME moves for summary judgment without proving its standing, Defendants can

simply point out that CME has not met its burden.

       Second, while Defendants’ motion is heavy on cases concerning Rule 26 discovery, the

standards for Rule 26 discovery do not govern APA cases. The APA’s “limit on discovery …

stands in stark contrast to the Court’s broad discretion to order discovery under Federal Rule of

Civil Procedure 26 in non-APA cases.” Univ. of Cal. Student Ass’n v. McMahon, No. 25-cv-354

(RDM), 2025 WL 1906548, at *2 (D.D.C. Mar. 18, 2025); see also Off. of Foreign Assets Control

v. Voices in the Wilderness, 382 F. Supp. 2d 54, 63 (D.D.C. 2005) (“[T]he Court’s review is

appropriately limited, as is customary, to the administrative record and additional materials which

the Court has ordered the Agency to produce.”). Defendants claim that because they had to produce

the administrative record, as required by the local rules, they somehow have a right to take

discovery now. Defs.’ Mot. at 4. If that were true, surely Defendants would have caselaw support.

But they have none.


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       Defendants ask this Court to be the first to open the doors to Rule 26 discovery in APA

actions. Such a holding would wreak havoc in these types of cases. Because administrative-record

cases are exempt from initial disclosures and scheduling conferences, Defendants’ position would

necessarily mean that every APA plaintiff could, upon filing the complaint, serve deposition

notices, interrogatories, requests for production, and requests for admission upon the

government—even if only to prove standing.2 The government would then have to respond to

written discovery within 30 days—a month sooner than the government’s responsive pleading

would be due—and potentially sit for depositions before filing a responsive pleading. There is a

reason why no court has adopted the position Defendants assert here.

       In short, Defendants have not cited to a single APA case supporting their ability to take

invasive “Rule 26” discovery in an effort to disprove CME’s competitor standing. That is because

such discovery is not available. For this reason alone, this Court should deny their motion.

II.    Defendants’ Motion Is Premature and Does Not Comply with Rule 56(d).

       Just weeks ago, while the parties briefed Defendants’ attempt to withhold the

administrative record, Defendants represented to the Court that if they needed discovery to test

CME’s standing on summary judgment, “a Rule 56(d) motion may be required.” ECF 28 at 7.

Now, with no explanation, Defendants have abandoned that position and argue that they can freely

take Rule 26 discovery at any time in an APA case (which they cannot do, see supra).

       But 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 and “show[ing] by affidavit or declaration that,


2
  See Awan v. U.S. Dep’t of Just., No. 10-cv-1100 (BAH), 2011 WL 2836555, at *1 (D.D.C. July
13, 2011) (in cases exempted from initial disclosures and Rule 26(f), “there is no prohibition on
the immediate availability of discovery upon the commencement of the case”).


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for specified reasons, [they] cannot present facts essential to justify [their] opposition.” Fed. R.

Civ. P. 56(d).

       Unlike Defendants’ novel Rule 26 argument, the Rule 56(d) position is supported by

precedent. Judge Moss followed this procedure just months ago in Amica Center for Immigrant

Rights v. Executive Office for Immigration Review, No. 26-cv-696 (RDM), 2026 WL 662323

(D.D.C. Mar. 2, 2026). There, the government asserted it “might want to seek ‘jurisdictional

discovery on Plaintiffs’ assertions as to their organizational standing.’” Id. at *1. But neither the

government nor the court could identify any prior instance where the government sought such

jurisdictional discovery. Id. at *2. Rather than let the government prematurely take jurisdictional

discovery, Judge Moss directed the government to “raise that need in its opposition to the motion

for summary judgment” as required by Rule 56(d). Id.

       Judge Bates invoked the same procedure in Shelby County v. Holder under the predecessor

rule to Rule 56(d). 270 F.R.D. 16, 18 (D.D.C. 2010). To take standing-related discovery of the

plaintiff, the government had to show, under Rule 56 and in opposition to the plaintiff’s summary-

judgment motion, why it “need[ed] discovery to assess [plaintiff]’s standing.” Id. Because the

government “offered no reason to doubt the veracity” of the standing declaration offered by the

plaintiff, it failed to meet its burden to take such discovery. Id. Here, Defendants have not yet seen

the evidence that CME will put forward to demonstrate its standing and cannot articulate any basis

for why they need discovery now.3


3
  The government recently tried a similar discovery gambit in the District of Massachusetts. But
that court held that the government’s premature requests “raise[d] substantial concerns about abuse
of the discovery process.” Nat’l Parks Conservation Ass’n v. Dep’t of the Interior, No. 26-cv-
10877, ECF 73 (D. Mass. Sept. 15, 2026). The court instead held that defendants could “raise
specific evidentiary challenges in their summary judgment briefing, including by seeking relief
under Fed. R. Civ. P. 56(d),” but “[a]ny such requests under Rule 56(d) must be limited to


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       In particular, no discovery is necessary because CME will easily satisfy its evidentiary

burden to show an increase in competition. The evidence will include Defendants’ own statements

concerning the unlawful increase in competition caused by their actions. As just a flavor of such

evidence, the very day CME filed this lawsuit, a CFTC spokesperson declared: “Rather than

compete in the marketplace, the CME has decided to undertake lawfare against the agency and the

Trump administration’s pro-innovation agenda” and that “[i]ncumbents fear the future and having

to compete on a level playing field.” Ryan Knappenberger, CFTC Faces Suit over Approving

Kalshi Bid to List ‘Perpetual’ Futures Contracts, Courthouse News Serv. (June 18, 2026),

https://perma.cc/6BST-M6WP. The administrative record further shows that Kalshi repeatedly

argued to the CFTC that “[r]egulating the Perpetual Contracts as [f]utures [c]ontracts [w]ould …

[p]romote [c]ompetition.” AR99 (emphasis added); accord AR109. And even Defendants’ own

amicus announced, the day CME filed, that CME “runs about 92% of U.S. exchange-traded

derivatives” but approval of perpetual futures would mean “[m]ore competition among

exchanges.” Hyperliquid Pol’y Ctr. (@HyperliquidPC), X (June 18, 2026), https://perma.cc/8CL2-

7MS5. Those statements alone demonstrate the common-sense point—CME, as a derivatives

exchange listing futures contracts, has standing to challenge a “novel” decision classifying, as

futures, perpetual cryptocurrency derivatives with no expiration date. See AR11.

III.   Defendants’ Proposed Discovery Is Irrelevant, Not Proportional to the Needs of the
       Case, and Would Be Unduly Burdensome.

       Defendants spend much of their motion arguing under an incorrect standard. They contend

that their yet-to-be-unveiled discovery requests are relevant, proportional, and not unduly


jurisdictional facts about which Defendants have a specific, evidentiary basis for questioning their
accuracy.” Id.


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burdensome. Defs.’ Mot. at 2. But those arguments are irrelevant, because the question is whether

discovery is appropriate in the first place, not whether Defendants’ future discovery requests are

valid. See Tarquinii v. Del Toro, No. 21-cv-1567, 2023 WL 2424618, at *2 (D.D.C. Mar. 9, 2023)

(applying discovery standards “[w]here a party seeks to compel a response to a discovery request”)

(cited in Defs.’ Mot. at 2).

        But even if the Court were to review the motion under Defendants’ standard, it would still

fail. The discovery Defendants seek—which they describe as “tailored” but actually consists of

interrogatories, requests for production, and requests for admission across eight broad categories

of information including “facts, data, and analysis,” Defs.’ Mot. at 5-6—is entirely irrelevant to

CME’s standing, is disproportional on its face, and would be unduly burdensome.

        Defendants propose to take discovery into whether CME has suffered a “financial injury”

and CME’s future plans related to perpetual contracts. Id. But half of that discovery is irrelevant

because CME is not required to show financial injury to have competitor standing. The other half

is irrelevant because it concerns post-filing circumstances, when standing is assessed at the time

of the filing of the complaint. There is no basis for jurisdictional discovery where a court can “not

see what facts additional discovery could produce that would affect [its] jurisdictional analysis.”

Erwin-Simpson v. AirAsia Berhad, 985 F.3d 883, 892 (D.C. Cir. 2021).

        The vast majority of Defendants’ requests for discovery are irrelevant because they rest on

a blatant misreading of competitor-standing law, as CME will demonstrate in its forthcoming

opposition to Defendants’ motion to dismiss. Put simply, where a plaintiff shows an increase in

competition, it does not need to show financial injury. See Wash. All. of Tech. Workers v. U.S.

Dep’t of Homeland Sec., 892 F.3d 332, 341 (D.C. Cir. 2018) (“[t]he injury claimed is exposure to

increased competition … not lost jobs, per se”); Sherley v. Sebelius, 776 F. Supp. 2d 1, 12 (D.D.C.


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2011) (rejecting the argument “that plaintiffs must show not only an increase in competition but

also specific injuries caused by that increased competition in order to satisfy the injury in fact

requirement”), aff’d, 689 F.3d 776 (D.C. Cir. 2012). The administrative record confirms that the

approval of these contracts would “promote competition.” See supra. Statements from Defendants

also show that the approval of perpetual contracts will increase competition against CME. Id.

Nothing more is needed.

       In fact, each argument from Defendants’ motion to dismiss concerning competitor

standing—for example, that CME’s injury is self-inflicted or that it must show that third parties

will stop using CME’s dated futures, ECF 30-1 at 13, 17—is expressly foreclosed by D.C. Circuit

precedent that Defendants do not mention. See, e.g., Shays v. Fed. Election Comm’n, 414 F.3d 76,

89 (D.C. Cir. 2005) (rejecting argument that competitors’ injury was self-inflicted because they

could have engaged in the same challenged conduct “because being put to the choice of either

violating [the law] or suffering disadvantage … is itself a predicament the statute spares them,

[and] having to make that choice constitutes Article III injury”). Defendants’ relevancy arguments

rest on standing arguments that have been rejected time and time again in this Circuit.

       Defendants’ remaining relevancy contentions fail because Defendants seek information

concerning facts and circumstances post-dating the filing of the Complaint. For example,

Defendants repeatedly cite to statements made by CME’s CEO in an earnings call in July 2026

and CME data and trading volume from last month. Defs.’ Mot. at 5-6. Setting to the side that

Defendants misrepresent Mr. Duffy’s statements,4 standing is assessed at the time of the


4
  As CME will explain in its opposition to Defendants’ motion to dismiss, Mr. Duffy’s statements
explicitly concern institutional investors, not retail trading. The Complaint could not be clearer:
the competitive harm in this case relates to retail trading.


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complaint—not months after the fact. See, e.g., Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C.

Cir. 2012) (“[S]tanding is assessed at the time of filing.”). Events in July and August 2026 do not

concern standing. And of course, even if CME saw higher trading volume on certain products,

Defs.’ Mot. at 6 n.3, that does not show that such activity would not have been higher absent

Defendants’ unlawful actions. Defendants’ contentions, as CME will discuss in its opposition, rest

on rank speculation and counterfactuals that CME is not required to disprove to show standing.

       Because Defendants’ requests are irrelevant, they are necessarily not proportional to the

needs of this APA case and would be unduly burdensome. See, e.g., Sanchez v. Target Corp., No.

19-cv-03186 (APM), 2020 WL 13610771, at *1 (D.D.C. July 27, 2020) (irrelevancy of the

request” directly undercuts proportionality). While they claim that their requests are “tailored,” it

is telling that they have not included the actual requests.5 Defendants do not offer any limits on the

number of interrogatories, requests for production, or requests for admission they intend to serve.

There can be no mistake that serving up to 25 interrogatories, unlimited requests for production,

and unlimited requests for admission—on matters that do not require any discovery—would be

disproportional to the needs of this APA case. And requiring CME to potentially produce highly

sensitive business information—including information concerning its future business strategy—to

its regulator is unduly burdensome. That is all the more so because the administrative record

reveals that the CFTC and Kalshi—one of CME’s direct competitors—have worked together hand

in hand on the process for getting perpetual contracts approved as futures, and in the eight months

since Chair Selig’s appointment, the CFTC has filed a host of briefs in district courts and appellate

courts in support of Kalshi’s sports gambling business, including taking the unprecedented step of


5
  CME reserves all rights, including objecting to the individual requests, in the event the Court
grants any discovery.


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suing nine different states for their efforts to regulate gambling in their territory. In fact—apart

from the two agency actions challenged here—the only documents in the administrative record are

from Kalshi or its related entities.

        Defendants’ attempt to take discovery here is nothing more than a fishing expedition for

irrelevant information that does not go to testing CME’s standing. Even under Defendants’ own

misguided view of discovery in an APA case, the Court should deny Defendants’ motion.

IV.     If the Court Grants Defendants’ Motion, Then CME Is Entitled to Jurisdictional
        Discovery.

        This Court should not permit Defendants’ unprecedented detour into Rule 26. But if the

Court were inclined to allow such discovery, then CME would be entitled to discovery of

Defendants and third parties, including, but not limited to, Kalshi and its related entities.

Defendants, Kalshi, and even the CFTC’s amicus have all made direct statements about how the

Defendants’ actions in this case increase competition. Discovery into any documents and

communications concerning those entities’ analyses, assessments, or evaluations of the impact of

the Defendants’ approval of perpetual contracts on competition would be relevant (if the Court

adopted Defendants’ arguments in their motion). Such discovery would include communications

between Defendants and Kalshi and others relating to how classifying perpetuals as futures would

affect competition. It would include any analyses from Defendants, Kalshi, and others evaluating

(1) why companies, like Kalshi, have not previously listed perpetuals as swaps; (2) the benefits,

including the tax benefits, to companies like Kalshi and others of listing perpetuals as futures as

opposed to swaps; and (3) any impact on derivative exchanges like CME of Defendants’ actions.

As Defendants repeat, “what is sauce for the goose is normally sauce for the gander.”

                                         CONCLUSION

        For any of the above reasons, this Court should deny Defendants’ motion.


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Dated: September 18, 2026          Respectfully submitted,

                                   /s/ Aitan D. Goelman

                                   Aitan D. Goelman (D.C. Bar No. 446636)
                                   Ivano M. Ventresca (D.C. Bar No. 1045769)
                                   Brian J. Beaton, Jr. (D.C. Bar No. 90020963)

                                   ZUCKERMAN SPAEDER LLP
                                   2100 L Street NW, Suite 400
                                   Washington, DC 20037
                                   Tel: (202) 778-1800
                                   Fax: (202) 822-8136
                                   [email protected]
                                   [email protected]
                                   [email protected]

                                   Attorneys for Plaintiff Chicago Mercantile
                                   Exchange Inc.


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