The Weekly Take: The Parallel Track Is Now the Main Track

In the week after the CLARITY Act was priced at 6 percent, three agency-enabled market-structure initiatives moved to fill the gap. Each one is a live test of how durable regulation without new legislation turns out to be.

The week after the CLARITY Act was priced at roughly 6 percent, three agency-enabled market-structure initiatives moved. One faces a serious judicial challenge — a federal judge has already found the plaintiff likely to succeed on the merits. Another is launching on 23 November after 67 corporate issuers opted out. The third has regulatory approval but still needs a SPAC transaction to finance its commercial build-out. The agencies are building around the legislative vacuum. Whether they can hold what they build is a different question.

Jason Jones, Editor in Chief · 13 November 2026 · 12 min read

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On 6 November this column argued that the CLARITY Act’s prospects had fallen to roughly 6 percent on Kalshi and that the regulatory work already underway at the SEC, CFTC and OCC would matter more over the next twelve months than the legislation Congress had failed to advance.² On 18 September the piece before that identified the parallel track — Regulation Crypto Assets and the agencies’ own timelines — as decoupled from the Senate’s.¹

Seven days later, that argument has a much more concrete form. A federal judge has found the plaintiff likely to succeed in a challenge to the CFTC’s single-stock perpetual-futures approvals. OKXICE is preparing to launch its tokenized-securities venue despite 67 issuer opt-outs. And tZERO has secured dual CFTC registration but still needs a SPAC transaction to finance its commercial build-out. Three different tests — of agency legal authority, of commercial participation, of financial execution. Regulatory permission, corporate adoption and judicial durability are three different things, and each of this week’s initiatives puts one of them under live stress at the same time.

The numbers

A federal judge has already said the plaintiff is likely to win. On 2 November Capital Markets Alliance Association — a trade group whose members include Cboe and Citadel Securities interests — initiated an action in the U.S. District Court for the Southern District of New York, challenging the CFTC’s approvals of single-stock perpetual futures. The complaint was docketed on 3 November. That same day, Judge Valerie Caproni denied the plaintiff’s request for a temporary restraining order for lack of irreparable harm, but found that the plaintiff was likely to succeed on the merits of its claim that the CFTC had exceeded its statutory authority, that the balance of equities favored the plaintiff, and that the public interest favored relief. On 11 November the SEC filed in support of the CFTC. Coinbase, Kalshi, Payward (parent of Kraken), DRW Holdings, Jump Trading and Paradigm separately filed amicus briefs backing the CFTC.³

67 corporate issuers opted out. Ahead of OKXICE’s 23 November launch under the SEC’s innovation exemption, 67 corporate issuers had opted out of having their securities included in the venue, according to a filing reported by The Block on 11 November. The opt-outs are venue-specific decisions, not blanket rejections of tokenization as a mechanism. The Block identifies Meta, Home Depot, Netflix, Tesla and Costco among the opt-outs; the full roster of 67 has not been publicly compiled. The venue launches with roughly 70 tokenized-asset listings and 59 Direxion ETF products, operating 24 hours a day, seven days a week. The 67 opt-outs and the 70-plus expected listings are not necessarily the same universe: some issuers have opted out, while others have agreed to participate.⁴

$350 million pre-money equity valuation; approximately $231 million in trust; up to $25 million in earn-out milestones. On 2 November 2026 tZERO announced a SPAC merger agreement with FG Imperii Acquisition Corp. at a $350 million pre-money equity valuation that includes up to $25 million contingent on specified milestones, with approximately $231 million in FG Imperii’s trust account available before expenses and subject to shareholder redemptions. Closing is expected in early 2027. On 11 November tZERO announced its subsidiary had received CFTC designation as a Designated Contract Market, completing a process that began with its Derivatives Clearing Organization registration on 16 October and the DCM designation itself on 10 November; the completed dual registration also satisfied the first earn-out milestone under the proposed merger agreement. The two registrations give the company the regulatory infrastructure permissions to operate an exchange and clear derivatives contracts; product development, commercial launch and operational scale-up remain outstanding.⁵

49–50 on 15 September; 5.5 percent (rounded to roughly 6 percent) on 4 November. The last Senate cloture vote on the Digital Asset Market Clarity Act — the recorded position after Senator Thom Tillis’s procedural vote switch to preserve his motion for reconsideration — and the Kalshi market’s post-election probability of the bill becoming law before 1 January 2027, as marked the day after the election. Both numbers continue to be the reference frame for everything the agencies and the private venues are building around.²

The perpetual-futures contest: the SEC and CFTC on the same side, but the court is not

On 18 September KalshiEX, Coinbase Derivatives and Bitnomial submitted applications to the CFTC to list single-stock perpetual futures as “security futures” on CFTC-registered exchanges. On 2 November the CFTC deemed those applications approved under Regulation 40.3, which allows exchange-filed product certifications to take effect automatically after a statutory review period. On 3 November CFTC Chairman Michael Selig publicly announced that the contracts could begin trading on CFTC-registered exchanges. “Security futures” is a joint CFTC-SEC regulatory category created by the Commodity Futures Modernization Act of 2000; how the two agencies divide practical authority within it has been disputed in practice for years.³

On 2 November, Capital Markets Alliance Association — a trade group whose members include Cboe and Citadel Securities interests — filed suit in the U.S. District Court for the Southern District of New York, challenging the CFTC’s approvals of single-stock perpetual futures for trading on CFTC-regulated platforms. The complaint and the plaintiff’s emergency-relief motion were filed on 2 November; the case docketed on 3 November. The plaintiffs are the incumbent equity-derivatives infrastructure. Their argument, in substance, is that single-stock perpetual futures do not satisfy the statutory definition of a “security future” because they do not provide for the future delivery of a single security, and that the CFTC therefore exceeded its statutory authority in approving them for trading.³

On 3 November, Judge Valerie Caproni issued an order on the plaintiff’s request for a temporary restraining order. The judge denied the TRO on the ground that the plaintiff had not demonstrated irreparable harm. On the other three factors the court addressed, its findings ran the other way. The court found that the plaintiff was likely to succeed on the merits of its argument that the CFTC had exceeded its statutory authority, that the balance of equities favored the plaintiff, and that the public interest favored relief. Three of the four factors governing emergency injunctive relief came out for the plaintiff; the fourth — irreparable harm — did not. The court’s reasoning on the merits went directly to the classification question: single-stock perpetual contracts do not appear to satisfy the statutory definition of a security future because they do not provide for the future delivery of a single security. The court distinguished that category from swaps, which it said appear to cover the products at issue and are subject to SEC rather than CFTC regulation. The denial of emergency relief should not be read as judicial validation of the CFTC’s position. The immediate trading pathway remained open; the court’s preliminary assessment of the statutory question was unfavorable to the CFTC.³

On 11 November the SEC filed a statement in the case supporting the CFTC’s position. Coinbase, Kalshi, Payward (the parent of Kraken), DRW Holdings, Jump Trading and Paradigm separately filed amicus briefs backing the CFTC. The agency alignment is itself newsworthy: the two agencies CLARITY was going to statutorily divide are now on the same side of a court case defending the CFTC’s claim to a specific product category. But the agency alignment does not change the court’s preliminary assessment of the statutory question. If the court rules for the plaintiff on the merits, the ruling would undermine the CFTC’s security-futures basis for approving the products and strengthen the case that they fall within the SEC’s jurisdiction as swaps. The precise regulatory consequences would depend on the court’s final classification and any subsequent agency or appellate action — and the SEC’s own filing supporting the CFTC becomes a position the agency will have to reconcile with that outcome.

OKXICE and the SEC’s innovation exemption, 67 opt-outs in

On 23 November, OKXICE — the joint venture between Intercontinental Exchange, the owner of the New York Stock Exchange, and crypto exchange OKX — plans to launch a tokenized-securities venue under the SEC’s innovation exemption. The SEC established the framework in a 17 September order under Section 36(a)(1) of the Securities Exchange Act, granting temporary, conditional relief from specified exchange and dealer registration requirements for qualifying tokenized-securities venues and liquidity providers. The order also gives issuers an opportunity to object to the inclusion of their securities in certain circumstances — the mechanism through which the 67 opt-outs were filed.⁴

The venue will list roughly 70 tokenized asset products, including 59 Direxion ETF products, and will operate 24 hours a day, seven days a week. 67 corporate issuers had opted out of having their securities included in the venue. The Block identifies Meta, Home Depot, Netflix, Tesla and Costco among the opt-outs; a complete public roster of the 67 was not available as of posting. The 67 opt-outs and the 70-plus expected listings are not necessarily the same universe: some issuers have opted out, while other issuers have agreed to participate.⁴

The opt-outs are not a referendum on tokenization as a mechanism. They are venue-specific decisions about a particular treatment of a particular security under a particular exemption. The analytical point is narrower and more consequential: an agency exemption framework can create a functioning venue without creating issuer participation or legitimacy. Issuers cannot opt out of the securities laws the way they can opt out of an exemption framework they do not have to use. That is the difference between agency flexibility and statutory discipline. OKXICE is not the first venue to launch under the exemption, but it is the largest and most visible to date. The 23 November launch will be a major commercial test of the exemption framework, measuring whether a tokenized-securities venue can attract meaningful participation under a regime that lets issuers decline.

tZERO: a regulated crypto derivatives exchange ties itself to a SPAC

On 2 November, tZERO disclosed an agreement to merge with FG Imperii Acquisition Corp., a special-purpose acquisition company, at a $350 million pre-money equity valuation. SEC filings on the transaction describe approximately $231 million in FG Imperii’s trust account as potentially available to the combined company before transaction expenses and subject to shareholder redemptions, with closing expected in early 2027 subject to shareholder approvals and other customary conditions. The combined entity is targeting a listing on the New York Stock Exchange. tZERO was founded as a subsidiary of Overstock in the mid-2010s and was an early U.S. operator of tokenized securities trading; its chief legal officer, Alan Konevsky, was the “structural shift toward regulated digital asset markets is already underway” voice this column quoted after the 15 September Senate cloture vote.⁵

On 11 November tZERO announced that its subsidiary had received CFTC designation as a Designated Contract Market, completing a process that began with its Derivatives Clearing Organization registration on 16 October and the DCM designation itself on 10 November. The dual registration also satisfied the first earn-out milestone under the proposed FG Imperii merger agreement, connecting the regulatory achievement directly to the transaction’s contingent valuation structure. The approvals give tZERO the regulatory infrastructure to develop a derivatives exchange and clearing business alongside its established tokenized-securities operations. They do not, by themselves, approve any particular crypto-derivatives product or mean that contracts are already trading. Product development, commercial launch and operational scale-up remain outstanding.⁵

The analytical question for tZERO is whether the proposed SPAC transaction delivers enough capital, after redemptions and expenses, to turn CFTC-granted regulatory permissions into operating infrastructure. The CFTC registrations give tZERO a current regulatory foundation. Whether that foundation becomes a functioning exchange depends on the capital actually available to the combined company after closing, which in turn depends on redemption dynamics the proxy statement will clarify.

What the three events show together

Regulatory permission, commercial adoption and legal durability are three different things. tZERO has regulatory permissions but needs commercial execution. OKXICE has a launch pathway but faces issuer opt-outs. The CFTC has the SEC’s public support in a case whose district court has already found the plaintiff likely to succeed on the merits. None of the three events required a vote on the CLARITY Act. All three run through existing federal agency authority. And each one is being tested by a form of resistance — judicial, corporate, or financial — that a statute might have preempted or settled. Agency infrastructure under test in three dimensions at the same time is not what a working market structure looks like. It is what the market structure looks like when the statute is at 6 percent.

What this does not show

This does not show that the CLARITY Act is relevant to every item on this list. The CFTC’s “security futures” jurisdiction predates the CLARITY debate by more than two decades. The SEC’s innovation exemption is a discretionary agency tool whose legal basis is independent of the CLARITY framework. The CLARITY Act, had it passed, would not have automatically resolved the specific perpetual-futures jurisdictional question or the specific scope of the innovation exemption. What CLARITY would have done is reduce the number of specific disputes that have to be resolved product by product and venue by venue. It is that reduction — the compression of litigated edge cases into a settled statutory framework — that the agency-enabled approach cannot replicate.

This does not show that the agency-enabled approach will fail. The SEC and CFTC are both operating within their long-standing statutory authority. Agency rules and designations survive routinely. tZERO’s SPAC merger may close on schedule and produce a functioning exchange. OKXICE may launch on 23 November and attract trading volume even without the current round of corporate opt-outs re-engaging. The perpetual-futures case may be resolved in the CFTC’s favor at a higher court despite the district court’s preliminary read. What this piece reports is that three agency-enabled venues are simultaneously in the window where each one’s durability will be tested, not that the test outcomes are already visible.

This does not show that the 67 opt-outs close the question of tokenized equity. Corporate issuers have refused tokenized-equity vehicles before. The opt-outs register a corporate-governance judgment about participating in a specific venue under a specific framework, not a judgment about tokenization as a technology or securities law. Other venues under other frameworks may attract issuers who declined OKXICE. The 67 opt-outs are a data point about one venue and one exemption, not about the broader question.

This does not show what the Supreme Court or any appellate panel will do. The Capital Markets Alliance Association v. CFTC case is at the district-court stage. The 3 November order was a TRO denial, not a merits ruling, and the court’s characterization of the plaintiff’s likelihood of success is a preliminary assessment rather than a final judgment. Even a merits ruling at the district court would be subject to appellate review. The authoritative reading of what the CFTC can classify as “security futures” will come from courts further up the chain, not from the first judge to touch the question.

None of this is legal advice.

What would change our mind

The Capital Markets Alliance Association v. CFTC court rules on the merits before the end of Q1 2027. A merits ruling from the district court — for either side — will convert the “judicial fragility” of the CFTC’s perpetual-futures approvals from a preliminary assessment into a testable outcome. If the court sides with the CFTC and the ruling survives initial appeal, “security futures” jurisdiction for single-stock perpetual products is settled. If the court rules for the plaintiff on the merits, the ruling would undermine the CFTC’s security-futures basis for approving the products and strengthen the case that they fall within the SEC’s jurisdiction as swaps; the precise regulatory consequences would depend on the court’s final classification and any subsequent agency or appellate action.

A material number of the OKXICE opt-outs reverse their position within six months of launch. The commercial argument for issuer participation in a tokenized-securities venue depends on observable trading volume, liquidity and secondary-market demand. If OKXICE delivers measurable activity through the first half of 2027 and a reasonable share of the current 67 opt-outs re-engage, the SEC’s innovation exemption gains supporting evidence as a durable framework. If the opt-out roster holds through mid-2027, the exemption’s commercial legitimacy gets harder to argue.

The tZERO SPAC closes on schedule and the exchange begins listing contracts within twelve months of closing. SPAC transactions announce at a $350 million pre-money valuation with approximately $231 million in trust and complete at a wide range of outcomes depending on redemptions, expenses and negotiated adjustments. If the FG Imperii merger closes, tZERO lists on NYSE, and the derivatives exchange built on its CFTC DCM/DCO registrations starts operating during 2027, the “regulated crypto derivatives” leg of the parallel track is operational. If the merger stalls, is renegotiated at a lower valuation, or closes with redemptions high enough to limit the build-out capital, the DCM/DCO registrations remain valid regulatory credentials but the operational timeline for the exchange extends.

The 120th Congress introduces a market structure bill that moves out of committee before mid-2027. The 6 November piece priced the CLARITY Act at 6 percent. That price measures the specific CLARITY text. A different bill — the Democratic alternative discussed in that piece, or a bipartisan compromise — on a different timetable could reset the statutory question. If any such bill reaches a committee vote before the end of the second quarter of 2027, the agency-only period has an endpoint. If no such bill moves, the agency-only period is the operational reality for the rest of this Congress.

Where this leaves us

Between 2 and 11 November, the agency-enabled alternative to CLARITY became tangible: the CFTC’s deemed approvals of single-stock perpetual futures took effect on 2 November and were publicly announced by Chairman Selig on 3 November; Judge Caproni found the plaintiff likely to succeed on the merits in the challenge to those approvals, with three of the four factors governing emergency injunctive relief coming out for the plaintiff; the SEC joined the CFTC’s defense; and tZERO completed its dual exchange-and-clearinghouse registration while triggering the first earn-out milestone in its proposed SPAC merger. On 23 November, OKXICE will add the commercial test, launching under the SEC’s 17 September innovation exemption with 67 issuer opt-outs already on record.

The 6 percent CLARITY probability remains the reference point. What happens next will be determined less by congressional announcements than by the courts, the corporate issuers and the capital available to build the new infrastructure.

Congress wrote the vote. The agencies wrote the week. The courts, the issuers and the SPAC calendar will write the next quarter.

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Sources

All figures pulled 12 November 2026 and stated as of that date. Court filings are as reported by contemporaneous outlets; the public docket in Capital Markets Alliance Association v. CFTC (U.S. District Court for the Southern District of New York) is the controlling record for anything in the litigation, including Judge Valerie Caproni’s 3 November order on the plaintiff’s temporary restraining order application. CFTC and SEC filings are as reported; agency releases and docket entries are the primary sources. The tZERO SPAC transaction is described as announced; final merger terms will be set in the definitive proxy statement, and the $350 million pre-money equity valuation and approximately $231 million trust figure are pre-redemption and subject to the customary SPAC transaction dynamics.

1. CoinageReport, The Weekly Take: The House Passed CLARITY 294–134 in July 2025. The Senate Rejected It 49–50 on 15 September 2026. Everything Between Those Two Numbers Is the Story., 18 September 2026. The 49–50 Senate cloture vote; the parallel-track observation on Regulation Crypto Assets and CFTC rulemaking; the Alan Konevsky quote on “the structural shift toward regulated digital asset markets is already underway.” ↩
2. CoinageReport, The Weekly Take: The CLARITY Act, Priced to Fail at Six Percent, 6 November 2026. Kalshi 5.5 percent snapshot on 4 November 2026 for the pre-1-January-2027 contract; the agency-only timeline after the election; the OCC final rule and the SEC’s innovation exemption as parallel-track items; the Democratic alternative discussions. ↩ ↩
3. Capital Markets Alliance Association v. Commodity Futures Trading Commission, U.S. District Court for the Southern District of New York, action initiated 2 November 2026 and complaint docketed 3 November 2026. Underlying regulatory sequence: 18 September 2026, KalshiEX, Coinbase Derivatives and Bitnomial submitted applications to list single-stock perpetual futures as “security futures” under CFTC Regulation 40.3; 2 November 2026, the CFTC deemed those applications approved under the Regulation 40.3 self-certification process; 3 November 2026, CFTC Chairman Michael Selig publicly announced that the contracts could begin trading on CFTC-registered exchanges. Judge Valerie Caproni’s 3 November 2026 order on the plaintiff’s temporary restraining order application: TRO denied for lack of irreparable harm; court found the plaintiff likely to succeed on the merits of its claim that the CFTC had exceeded its statutory authority, that the balance of equities favored the plaintiff, and that the public interest favored relief; reasoning distinguishing “security futures” (requiring future delivery of a single security) from “swaps” (which the court said appear to cover the products at issue and are subject to SEC rather than CFTC regulation). The Block, SEC enters fight over who regulates perpetual derivatives on stocks in the US, 11 November 2026 (SEC filing supporting the CFTC); The Block, Coinbase, Kalshi and Payward backs CFTC in lawsuit over single-stock perp futures, 10 November 2026 (amicus group: Coinbase, Kalshi, Payward, DRW Holdings, Jump Trading and Paradigm); The Block, CFTC approves individual stock perpetual futures trading in US for the first time, 3 November 2026 (Selig announcement); Reuters via Lufkin Daily News, Cboe, Citadel Securities-backed group sues US regulator over single-stock perpetual futures, 2–3 November 2026 (plaintiff identification). “Security futures” statutory category: Commodity Futures Modernization Act of 2000. The SDNY docket is the primary citation for all court-filing specifics. ↩ ↩ ↩ ↩
4. SEC order dated 17 September 2026 under Section 36(a)(1) of the Securities Exchange Act of 1934 granting temporary, conditional relief from specified exchange and dealer registration requirements for qualifying tokenized-securities venues and liquidity providers; the order also contains the mechanism under which issuers may object to the inclusion of their securities in certain circumstances. SEC Commissioner Hester Peirce’s related statements on the innovation exemption framework include the 17 September 2026 “Slumber Number” statement and the 23 September 2026 SIFMA Digital Assets Conference remarks. The Block, OKXICE sets Nov. 23 launch for tokenized securities venue under SEC innovation exemption, 11 November 2026 (launch date, exemption framework, and named opt-outs including Meta, Home Depot, Netflix, Tesla and Costco; 5 November 2026 opt-out filing reporting the 67 count); Bitcoin Magazine, ICE And OKX Set Nov. 23 Tokenized Stock Launch After 67 Companies Opt Out, 11 November 2026; Decrypt, OKX-ICE Tokenized Stock Venue Sets Launch, Turning to Crypto Companies After Big Tech Opts Out, 11 November 2026; Markets Media, OKXICE TSV to List 70+ Digital Assets, November 2026 (asset count and 59 Direxion ETF products). OKXICE is not the first venue to launch under the SEC’s innovation exemption framework; it is the largest and most visible to date. A complete public roster of the 67 opt-outs was not available as of posting, and the universe of opt-outs is not necessarily the same universe as the roughly 70 expected initial listings. ↩ ↩ ↩
5. CoinDesk, Tokenization firm tZERO plans to go public in $350 million SPAC deal, 2 November 2026 (announcement of merger with FG Imperii Acquisition Corp., $350 million pre-money equity valuation including up to $25 million in earn-out milestones, NYSE listing target); tZERO and FG Imperii joint SEC filings on the transaction, 2 November 2026 (approximately $231 million in FG Imperii trust account before expenses, subject to shareholder redemptions; closing expected in early 2027 subject to shareholder approvals and other customary conditions); tZERO corporate announcement and CFTC release materials, 11 November 2026 (DCM designation completing dual registration; the DCO registration had been effective since 16 October 2026 and the DCM designation itself took effect on 10 November 2026, with the completed dual-registration milestone announced on 11 November and satisfying the first earn-out milestone under the proposed merger agreement); KuCoin news flash, CFTC Approves tZERO as DCM, Completes DCO Win for Regulated Crypto Derivatives, 11 November 2026; Markets Media, CFTC Approves tZERO to Operate Derivatives Exchange, 11 November 2026. The CFTC release and the tZERO/FG Imperii filings are the primary sources for the designation particulars, their operational implications, and the earn-out mechanics. ↩ ↩ ↩

Nothing in this column is legal advice or investment advice. CoinageReport does not accept vendor sponsorship. Comments are closed sitewide; corrections to corrections@coinagereport.com.