The SEC rejected bitcoin spot ETFs again. Now what?

As governments worldwide continue to eye the crypto industry, some digital asset managers are pushing back against regulators in an effort to provide more legal investing opportunities.

The U.S. Securities and Exchange Commission on Wednesday rejected Grayscale Investments’ application to convert its bitcoin trust (GBTC) into an exchange-traded fund (ETF). Shortly thereafter, the firm — one of the largest digital asset managers, with around $20 billion in assets under management — filed a lawsuit against the SEC.

The SEC also denied Bitwise Asset Management’s application for a spot bitcoin ETF that day.

The SEC’s decisions aren’t a first for the industry; the government agency has denied over a dozen bitcoin spot ETFs in the past year alone while approving several bitcoin future-based ETFs.

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“Spot bitcoin ETFs trade based on the price of bitcoin itself, while futures-based ETFs trade based on the price of CME’s bitcoin futures product, which in turn is tied to an index,” Ken Goodwin, director of regulatory and institutional affairs at Blockchain Intelligence Group, told TechCrunch. “Bitcoin ETFs proponents argue that the futures markets are still based on the underlying spot bitcoin price, while the SEC notes that CME’s futures market is regulated by the [Commodity Futures Trading Commission].”

The SEC allows traders to bet on the value of bitcoin through CME’s bitcoin futures contract, a U.S. dollar cash-settled contract that serves as a once-a-day reference rate of the value of bitcoin in U.S. dollars, according to global markets company CME Group.

Craig Salm, chief legal officer at Grayscale, said on a Twitter Spaces that the SEC once denied both futures and spot bitcoin ETFs, at least “treating them fairly.”

But that was in 2017.

More recently, the SEC has continued to approve both long and short exposure bitcoin futures ETFs while denying spot bitcoin ETFs from coming to the market, Michael Sonnenshein, CEO at Grayscale Investments, said to TechCrunch. “That disparate treatment is in fact one of the most important arguments underpinning our lawsuit.”

Since the defendant of the case is a regulator, it will go to an appellate court and a decision should be finalized within nine to 12 months, Sonnenshein told Reuters.

The SEC’s rejection cites concerns about market manipulation and the lack of a surveillance-sharing agreement between a “regulated market of significant size” and a regulated exchange, Goodwin said. “This echoes concerns that the regulator has expressed for years in terms of rejecting other bitcoin ETF applications.”

GBTC holds 3.5% of all bitcoin in circulation, and its shares are the largest and most liquid publicly traded crypto exchange-traded products, Ryan Selkis, founder and CEO of Messari, wrote in a report. “Grayscale products are like ETFs, but not actually ETFs,” Selkis wrote.

“It’s crystal clear the SEC is simply not going to approve a spot bitcoin ETF until they have regulatory oversight of crypto exchanges,” Nate Geraci, president of The ETF Store, said to TechCrunch. “Even with the specter of a Grayscale lawsuit — and it’s a lawsuit that appears to have at least some validity — the SEC didn’t flinch in denying these spot bitcoin ETF filings.”