Analysts say the best-case scenario is the SEC approves the batch of spot Bitcoin ETFs but it may also exercise its right to an appeal.
The United States Securities and Exchange Commission is facing its first deadlines to decide on seven new Bitcoin (BTC) spot exchange-traded fund applications with the latest being Sept. 4 amid its defeat to Grayscale Investments in a U.S. federal appeals court.
Investment firm Bitwise will learn if its ETF will win the SEC’s approval on Sept. 1 while BlackRock, VanEck, Fidelity, Invesco and Wisdomtree will all be awaiting the SEC’s decision for their funds by Sept. 2, according to several SEC filings.
Meanwhile, Valkyrie is set to hear back from the SEC on Sept. 4.
The U.S. Court of Appeals ruled on Aug. 29 that the SEC’s rejection of Grayscale’s application to convert its Grayscale Bitcoin Trust (GBTC) into a spot Bitcoin ETF was “arbitrary and capricious” — but it doesn’t mean the SEC must approve Grayscale’s application or others in the future, says Bloomberg ETF analyst James Seyffart.
In an Aug. 29 Bloomberg interview, Seyffart explained Grayscale’s win “definitely” increases the odds of a successful outcome for the next wave of applicants.
He isn’t sure when that day may come though, as the SEC can delay its decisions and has two more proposed deadlines for each fund before being forced to make a final decision on the 240th day post-filing.
For the awaiting applicants, the final deadlines for the SEC are al mid-March next year.
99.99999% of the world doesn’t know that the SEC has to decide on 7 BTC ETFs within the next 3 days:
the suits at our doorstep
— odin free (@odin_free) August 29, 2023
What are the SEC’s options post-Grayscale decision?
After today’s ruling in favor of Grayscale, the regulator has 90 days to file an appeal with the U.S. Supreme Court or apply for an En banc review — where a full circuit court can overturn a ruling made by a three-judge panel.
However, the SEC hasn’t made clear what its next move will be.
If the SEC doesn’t appeal the court will need to specify how its ruling is executed which could include instructing the SEC to approve Grayscale’s application, or at the very least revisit it.
Either way, Seyffart only saw two viable options for the regulator.
The first is for it to concede defeat and approve Grayscale’s conversion of its GBTC to a Bitcoin spot ETF.
Alternatively, the SEC would need to revoke the listing of Bitcoin futures ETFs entirely or deny Grayscale’s application based on a new argument, said Seyffart.
The second potential avenue is to deny on reasons not used before/yet… which i have been saying for months could have to do with Custody or settlement of #Bitcoin which is not something that futures ETFs have to worry about. SEC has made a lot of noise around custodians
— James Seyffart (@JSeyff) August 29, 2023
However, fellow Bloomberg ETF analyst Eric Balchunas considered the odds of the SEC revoking the Bitcoin futures ETFs as “highly unlikely” because of the SEC’s reported openness to Ethereum futures ETFs.
Lol, this guy turned the last paragraph of Judge Rao’s legal smackdown today into an MGMT-esque sythe banger. Really captures the mood rn, well done.. https://t.co/BBJZR5O6To
— Eric Balchunas (@EricBalchunas) August 29, 2023