The cryptocurrency and asset management industries have closely observed this case for years, as they strive to persuade the SEC to approve a spot bitcoin ETF. They argue that such approval would provide investors with exposure to Bitcoin, the largest cryptocurrency worldwide, without the need for direct ownership. Despite this, the SEC remains concerned about the potential vulnerability to manipulation in spot bitcoin ETFs.
Here’s what you need to know:
Unraveling the Grayscale saga: a closer look
Last year, a striking blow was dealt to Grayscale as the SEC denied their application to transform the spot Grayscale Bitcoin Trust (GBTC.PK) into an ETF, captivating the eyes of investors on the prestigious New York Stock Exchange’s Arca market.
In a twist of events, the SEC has granted approval to bitcoin futures ETFs, offering a compelling opportunity to track bitcoin agreements with predetermined prices. Despite proposing the implementation of similar market manipulation safeguards, Grayscale and Arca did not meet the SEC’s stringent criteria.
Grayscale, along with prominent asset managers including Cathie Wood’s ARK, Fidelity, and Invesco (IVZ.N), found themselves amidst a wave of disappointment, as the SEC rejected their spot bitcoin ETF applications, citing concerns for safeguarding investors. Outshining the rest, Grayscale took legal action against the SEC, resulting in the case being escalated directly to the appeals court due to the defendant’s regulatory role.
What is Grayscale’s argument?
Grayscale made a strong case in the argument that surveillance measures for bitcoin futures ETF should also cover Grayscale’s spot ETF, as both rely primarily on bitcoin’s underlying price, presenting a fascinating debate with the SEC.
In line with this, bitcoin futures ETF offers a platform that tracks bitcoin futures trading on the Chicago Mercantile Exchange (CME), the leading product venue for this market, with the SEC reporting “surveillance of futures market conditions and price movements in real-time and continuous basis, enabling efficient detection and prevention of manipulations and price distortions.”
The lead counsel for Grayscale, Donald Verrilli Jr., passionately stated in court that a spot bitcoin ETF would “enhance investor protection” due to the CME market monitoring of the market. At present, Americans invest primarily in Bitcoin via unfamiliar or unregulated platforms, posing a significant risk.
However, the SEC contests that Grayscale does not have sufficient evidence to back the claim that the CME futures surveillance protocol would effectively detect market manipulation in spot markets.
What did the court say?
The esteemed panel of judges in the court unanimously acknowledged Grayscale’s compelling argument, highlighting how their proposed bitcoin ETF shares a striking resemblance to the approved bitcoin futures ETFs. This similarity stems from the fact that the underlying assets – bitcoin and bitcoin futures – boast an intricate correlation. Moreover, the panel acknowledged that the surveillance sharing agreements with the CME are undeniably “identical” and offer an equal likelihood of detecting any fraudulent or manipulative activities within the Bitcoin market.
Bearing this crucial evidence in mind, the court delivered a resounding ruling, deeming the SEC’s rejection of Grayscale’s filing as “arbitrary and capricious.” The SEC’s failure to provide a valid explanation as to why Grayscale’s ownership of bitcoins, rather than bitcoin futures, would impede the CME’s ability to detect fraud, was a critical factor in their decision. The court recognized that this absence of reasoning undermined the SEC’s stance and upheld Grayscale’s position as a result.
What happens now?
With a 45-day window to lodge an appeal, the fate of the ruling hangs on a delicate thread, ready to be embraced either by the illustrious U.S. Supreme Court or an en banc panel review. While the outcome eagerly awaits, the question looms: Will the SEC seize this opportunity? Curiously, the regulator remained silent, declining to provide immediate comment on Tuesday.
Should Grayscale emerge triumphant, unchallenged by the SEC’s potential appeal, the court would carve out a path for its momentous decision to be set in motion. Such directions may include compelling the SEC to approve the long-awaited application, or even prompting a revisitation of Grayscale’s proposal. However, it’s important to acknowledge that the SEC still holds the power to reject the proposal on other grounds, thus prolonging the ardent struggle.
The Implications of a Grayscale Victory on Other Applications
Leading asset managers, including BlackRock and Fidelity, filed for spot bitcoin ETFs on Nasdaq and CBOE Global Markets this year. Other firms, such as WisdomTree, VanEck, Bitwise, and Invesco, have followed suit, with many proposing to work closely with Coinbase to regulate trading in the volatile bitcoin market. While the SEC has acknowledged these applications, the decision timeline could span 240 days.
The recent verdict sheds little light on the fate of these applications, and approval of a Bitcoin ETF is not guaranteed. However, the ruling may influence the SEC’s stance on these proposals in the coming months.