SEC to Begin Reviewing 9 Rejected Bitcoin ETFs Late October

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The Securities and Exchange Commission (SEC) has set a late October deadline to begin reviewing proposed rule changes that would allow several regulated exchange operators to list bitcoin ETF products on their trading platforms.

In a series of documents published yesterday, on Oct. 4, the SEC revealed that it is set to begin reviewing bitcoin ETF applications from ProShares, Direxion, and GraniteShares, who had sought to list their funds on either NYSE Arca or CBOE BZX.

As part of that process, the SEC has amended NYSE Arca and CBOE’s applications to include clarifying information about the funds subsequently submitted to the agency by the exchange operators.

Accordingly, the SEC has set a new deadline, Oct. 26, for the public to file statements in support of, or in opposition to, the amended applications, after which it will begin the formal review process. In the interim, the current SEC orders denying the applications will remain in force.

The SEC denied these applications in August, slashing hope among many retail cryptocurrency investors that one of these funds would soon be listed on a regulated securities exchange.

Just one day later, though, the SEC announced that its commissioners would review those rulings, which had been made by agency employees. One commissioner, Hester Peirce, has been a vocal supporter of exchange-listed cryptocurrency products and has criticized the SEC for exceeding its mandate by making qualitative judgments about whether specific investments are appropriate for retail investors rather than determining whether the products in which they are wrapped meet SEC guidelines.

Subsequently, the SEC punted on another bitcoin ETF application — a physically-backed fund proposed by VanEck and SolidX — delaying ruling on that fund until at least December. However, analysts say that it is likely the SEC will not issue a formal ruling on that fund until early next year.

This week, the US Securities and Exchange Commission (SEC) has said it will review nine Bitcoin exchange-traded funds (ETFs) it disapproved on August 24.

The letter sent to NYSE Group senior counsel David De Gregorio by SEC secretary Brent Fields read:

“This letter is to notify you that, pursuant to Rule 43 I of the Commission’s Rules of Practice, 17 CFR 20 I .43 1, the Commission will review the delegated action. In accordance with Rule 431 (e), the August 22 order is stayed until the Commission orders otherwise.”

Community is Excited When They Shouldn’t Be

Jake Chervinsky, a government enforcement defense & securities litigation attorney at Kobre Kim LLP, recently explained in a statement that the revision of the ETFs was initiated by SEC commissioner Hester Peirce and that it only takes a single commissioner to order a review.

Last month, upon the disapproval of the Winklevoss Bitcoin ETF, commissioner Peirce expressed her optimism towards ETFs and said that Bitcoin ETFs are worthy enough to hit US markets.

According to Chervinsky, the ordered revision of the nine ETFs is only methodical and the outcome of the revision will lead to the same conclusion the SEC disclosed on August 24.

He said:

“Don’t get too excited, folks. Under Rule 431 of the SEC’s Rules of Practice, it only takes a single Commissioner to order a review like this. Hester Peirce deserves credit & respect for putting up a fight, but there’s no reason to think yesterday’s rejections will be reversed.

Final thought on bitcoin ETFs for the week: the SEC’s primary goal is to exercise jurisdiction over crypto markets (by any means necessary). Congress hasn’t given them regulatory authority, so they’re essentially trying to coerce ETF sponsors into surveilling the market for them.”

The nine ETFs proposed by ProShares and Direxion were disapproved due to their dependence on derivatives and the Bitcoin futures markets operated by the Chicago Board Options Exchange (Cboe) and CME Group.

The two institutions revised their ETF proposals to utilize US futures markets as the trusted price of the ETF due to the government’s disapproval of the reliance of the Winklevoss Bitcoin ETF on the price listed on US-based cryptocurrency exchange Gemini.

But, the SEC emphasized that the US Bitcoin futures market is not large and mature enough to allow institutions to launch ETFs on top of the market.

The official document released by the SEC read:

“[The ETFs have not met the requirement that a national securities exchange’s rules be designed to prevent fraudulent and manipulative acts and practices. Among other things, the Exchange has offered no record evidence to demonstrate that bitcoin futures markets are ‘markets of significant size.’”

Same Outcome

The SEC has clarified on its stance towards derivatives-based Bitcoin ETFs as it stated that the US futures markets are currently not big enough for ETFs to based their price on futures exchanges.

Whether the SEC revises their decision on the rejected Bitcoin ETFs or not, the argument of the commission on the size of the futures market is relevant and if the futures market itself does not see major improvements or growth in the short-term, derivative-based Bitcoin ETFs will not be approved.

Crypto analyst Brian Kelly has predicted that approval of a Bitcoin (BTC) exchange-traded fund (ETF) will “likeliest” and “earliest” come in February 2019, in an interview on CNBC’s Fast Money August 23.

Kelly’s forecast comes hot upon the heels of the U.S. Securities and Exchange Commission’s (SEC) rejection of nine BTC derivatives-based ETF proposals from three applicants August 22.

An ETF is a type of mutual investment fund that divides ownership of a commodity, derivative,  index, or basket of assets, into shares. The fund tracks the value of the underlying asset(s) and is traded on exchanges, with shareholders entitled to any positive returns.

ETFs are marketable securities that require oversight by government authorities, and the current and prospective regulatory status of crypto-related ETFs remains unresolved and avidly discussed.

Kelly pointed out that while the SEC has recently chosen to delay its decision on a separate and high-profile BTC ETF application from investment firm VanEck and financial services co. SolidX until this September, the regulator in fact has the option to again defer its final decision on the proposal until February at the latest. Kelly suggested the agency would be likely to choose to do so, citing four further grounds.

First, Kelly responded to the concerns voiced by the SEC in all of its BTC-related ETF rejections to date, these being the agency’s qualms over inadequate resistance to “fraudulent and manipulative acts and practices” in an insufficiently sized BTC derivatives market and the largely unregulated underlying spot market. Kelly argued that:

“[When] the SEC talked about fraud and manipulation, it wasn’t so much about preventing it, but how do they surveil it? Do they have an arrangement with other [globally or nationally regulated] exchanges [that would enable them to] surveil what’s going on?”

He then affirmed the SEC’s argument that the existing BTC futures market is “not mature enough” — remembering that BTC futures were only launched on major U.S. exchanges CBOE and CME last December. But Kelly then argued that according to statistics from CME, the futures market is fast evolving and we will likely “have a much better shot” at ETF approval by 2019:

“Here’s CME Futures open interest of large holders. [As of] April, you’re starting to see a big increase… about an 85 percent growth rate. If you extrapolate that out, by February 2019, you’re going to have a very robust market here.”

Kelly added that the Intercontinental Exchange (ICE)’s recently unveiled initiative to launch a global, regulated digital assets ecosystem would further bolster the crypto spot and derivatives markets, and likely become part of the SEC’s equation.

He concluded by taking stock of breaking news that the SEC plans to review its fresh spate of ETF rejections, as well as voices within the agency — notably SEC Commissioner Hester M. Peirce — who have officially dissented from the regulator’s prior BTC-related ETF rejections.

As Kelly noted, a bullish sign of “sentiment change” that suggests we are coming “incrementally closer” to ETF approval is that the “market didn’t sell off” on news of the most recent disapproval orders. While Bitcoin took a temporary price hit on news of the rejections August 22, the coin quickly recovered back to its week-long trading levels.

As of press time, Bitcoin is trading around $6,528, up around 1.5 percent on the day and 1 percent on the week.

On August 23, the U.S. Securities and Exchange Commission (SEC) rejected all of the pending derivative-backed Bitcoin exchange-traded funds (ETFs) filed by ProShares and Direxion.

According to Jake Chervinsky, a government enforcement defense & securities litigation attorney for Kobre Kim LLP, the SEC disapproved all seven ETFs because of the risk of market manipulation and fraud involved.

What Did ProShares and Direxion Try to do?

Last month, the U.S. SEC officially rejected the ETF proposal filed by the Winklevoss twins, citing market manipulation as a major concern. The Winklevoss twins used Gemini, a strictly regulated cryptocurrency exchange, to establish the value of Bitcoin.

But, the SEC argued that because Bitcoin markets are not inherently resistant to manipulation, relying on a single exchange to determine the value of a Bitcoin ETF, which has the potential to lead billions of dollars in new capital into the market, is of high risk.

At the time, the Winklevoss twins believed that their ETF had a solid chance of being approved by the SEC, given the involvement of Nasdaq, the world’s second-biggest stock market, in Gemini’s operations to ensure that market and trading activity remain transparent and authentic.

As a response to the SEC’s decision to reject the ETF proposal filed by the Winklevoss twins, ProShares and Direxion submitted new ETF proposals, which used the strictly regulated Cboe and CME futures market to establish the value of their ETFs.

SEC ICO Cryptocurrency
The SEC has been on a bitcoin ETF rejection spree.

While the Cboe and CME markets are regulated markets, the SEC said that the Bitcoin futures markets are not sufficiently large to allow an ETF to based its value on.

Chervinsky said:

“So why did the SEC reject all these ETFs? Basically, the decision came down to the risk of market manipulation & fraud. The SEC can only approve an ETF that is ‘designed to prevent fraudulent and manipulative acts and practices.’ In the SEC’s view, these ETFs were not.”

He further added that the SEC was not satisfied with the efforts of the two institutions to rely on the futures markets, mostly because the SEC is aware that the majority of Bitcoin trading still occurs in unregulated markets and cryptocurrency exchanges.

“The SEC wasn’t impressed, finding that the bitcoin futures markets aren’t “of significant size” as required by the Winklevoss denial. They even cited Crypto Twitter favorite Chris Giancarlo, CFTC Chairman, who characterized the volume of the futures markets as ‘quite small.’ As a result, the SEC found that CBOE & CME wouldn’t provide enough info about the ‘identity of market participants’ on unregulated spot and derivative markets ‘where a substantial majority of trading’ occurs,” Chervinsky explained.

In the long-term, as the Bitcoin futures market increase in size and other regulated financial institutions like Goldman Sachs, which already have started to clear futures on behalf of their clients, expand their businesses to create a major futures market alongside CME and Cboe, it is possible that derivatives-backed ETFs receive the approval of the SEC.

But, in the short-term, the SEC will not approve any futures market-backed ETF in the U.S. market.

Cboe and VanEck ETFs

Based on the SEC’s arguments against the Winklevoss Bitcoin ETF and ProShares ETFs, it is clear that the SEC is trying to see rigorous transaction monitoring by an ETF that is based on a regulated market of significant size.

It may be difficult to satisfy all of the demands from the SEC, but with the track record of VanEck and Cboe, the two ETFs have the highest probability of being approved to be available in U.S. markets.

The U.S. Securities and Exchange Commission (SEC) has rejected a total of nine applications to list and trade various Bitcoin (BTC) exchange-traded funds (ETFs) from three different applicants, according to a three separate orders published by the SEC today, August 22.

The disapprovals come one day ahead of the anticipated deadline, August 23, stipulated for a pair of BTC ETFs that had been submitted by ProShares in conjunction with the New York Stock Exchange (NYSE) ETF exchange NYSE Arca.

The SEC has now rejected a further seven proposed ETFs alongside the ProShares pair –– these being five further proposed ETFs from Direxion, also for listing on NYSE Arca –– and two proposals from GraniteShares, for listing on CBOE.

For all three disapprovals, the SEC has stated that:

“[T]he Commission is disapproving this proposed rule change because, as discussed below, the Exchange has not met its burden under the Exchange Act and the Commission’s Rules of Practice to demonstrate that its proposal is consistent with the requirements of the Exchange Act Section 6(b)(5), in particular the requirement that a national securities exchange’s rules be designed to prevent fraudulent and manipulative acts and practices.”

The SEC has today reinforced its qualms over inadequate “resistance to price manipulation” in an insufficiently sized BTC derivatives market. In the case of ProShares’ two ETFs –– and repeated in the two other disapproval orders –– the SEC has stated that:

“Among other things, the Exchange has offered no record evidence to demonstrate that bitcoin futures markets are ‘markets of significant size.’ That failure is critical because, as explained below, the Exchange has failed to establish that other means to prevent fraudulent and manipulative acts and practices will be sufficient, and therefore surveillance-sharing with a regulated market of significant size related to bitcoin is necessary.”

As a March 2018 registration statement from the SEC noted, “the [ProShares] Funds do not intend to hold Bitcoin Futures Contracts through expiration, but instead intend to either close or ‘roll’ their respective positions.” This had been specifically designated as a potential risk for the two ETFs in question –– in addition to the “extreme volatility and low liquidity” attributed to both Bitcoin spot and derivatives markets.

In today’s three orders, the SEC has however notably stated that:

“[The agency] emphasizes that its disapproval does not rest on an evaluation of whether bitcoin, or blockchain technology more generally, has utility or value as an innovation or an investment.”

The SEC’s fresh disapprovals echo the concerns the agency had already articulated in its initial rejection of a high-profile Bitcoin ETF application from the Winklevoss twins in March 2017:

”When the spot market is unregulated –– there must be significant, regulated derivatives markets related to the underlying asset with which the Exchange can enter into a surveillance-sharing agreement.”

This July the SEC rejected the Winklevoss’ petition following their initial application’s denial, in which the twins claim that crypto markets are “uniquely resistant to manipulation.” In their rejection of the petition, the agency said that “the record before the Commission does not support such a conclusion.”

At the beginning of August, the SEC delayed its decision over yet another Bitcoin ETF application –– this time filed by by investment firm VanEck and financial services company SolidX, for trading on CBOE. Notably, instead of proposing a Bitcoin futures-based fund, the application proposed a physically-backed model, which will raise the further question of custody.

Bitcoin is currently trading around $6,380, down about 2.2 percent on the day to press time.

The first Bitcoin exchange-traded fund (ETF) is expected to be approved by February of 2019. But, some experts have stated that ETFs may increase the volatility of the market.

How the ETF Will Impact the Market

Over the past few months, analysts have been divided on the effect of the ruling of the US Securities and Exchange Commission (SEC) regarding Bitcoin ETFs on the crypto market.

Brian Kelly, a contributor to CNBC’s Fast Money and the CEO at BKCM, previously explained that the rise in the price of Bitcoin from the lower end of $7,000 to $8,000 in early August could be attributed to the increasing hype around Bitcoin ETFs.

Last week, as the price of BTC dropped substantially against the US dollar, Kelly emphasized that the SEC’s rejection of the Winklevoss Bitcoin ETF likely had an impact on the market and that investors have overreacted to the news.

bitcoin price
Bitcoin Price | Bitfinex

Recently, in a Q&A session, well respected cryptocurrency researcher and security expert Andreas Antonopoulos disclosed his stance on Bitcoin ETFs, firmly stating that he is against the introduction of ETFs in regulated markets.

Antonopoulos said that while ETFs have the ability to open the Bitcoin market to a group of institutional investors and retail traders that have not been able to trade the dominant cryptocurrencies due to issues pertaining to regulation, they also provide a platform for large investors to manipulate the price of BTC.

He explained:

“Everybody is so excited about ETFs. What we have seen in other markets is that when an ETF becomes available, the price really increases dramatically, as suddenly that commodity becomes available to a lot more investors and these investors pile on. But, the other side of it, is that there are always these claims that the commodities markets are heavily manipulated and opening up these ETFs only increase the ability of institutional investors to manipulate the prices of commodities.”

It is possible, given that the ETF of the Chicago Board Options Exchange (CBOE) and VanEck-SolidX may lead to billions of dollars in new capital into the Bitcoin market, that the price of BTC sways by large margins on both the upside and downside during the operating hours of the US stock market, if an ETF is launched.

Unlike futures contracts, in the ETF market, investors do not necessarily have the motivation or the incentive to intentionally bring down the price of Bitcoin by manipulating its price trend. But, for instance, if a group of investors decide to utilize the ETF market to manipulate the price of BTC to record gains in the futures market, the Bitcoin market could become significantly more volatile.

ETF, Futures, and Long-Term Growth

In the long run, as more publicly tradable investment vehicles are introduced by regulated financial institutions and the liquidity of Bitcoin drastically improves, it will become difficult to manipulate the price trend of the crypto market.

However, in a period of instability, high volatility, and fast growth, publicly tradable investment vehicles could provide enough leverage to large investors that are capable of reversing market trends.

The U.S. Securities and Exchange Commission (SEC) has postponed its decision on the listing and trading of a Bitcoin exchange-traded fund (ETF) until September 30, according to an official document released by the SEC August 7.

ETFs are securities that track a basket of assets proportionately represented in the fund’s shares. They are seen by some as a potential step forward for the mass adoption of cryptocurrencies as a regulated and passive investment instrument.

The fund under consideration is powered by investment firm VanEck and financial services company SolidX, and is expected to list on the Chicago Board of Exchange (CBOE) BZX Equities Exchange. The SEC now has almost two more months to consider a proposed rule change by CBOE Global Markets Inc. that would allow the fund to list.  

Today’s notice states that the SEC has received more than 1,300 comments on the proposed rule change to list and trade shares of SolidX BTC shares issued by the VanEck SolidX Bitcoin Trust. Per the document, within 45 days of a filing of a proposed rule change, or within 90 days should the Commission deem necessary, the Commission will approve, disapprove, or extend the period of consideration. The document says:

“Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,6 designates September 30, 2018, as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change (File No. SRCboeBZX-2018-040).”

VanEck and SolidX first announced the physically-backed Bitcoin ETF on June 6. As per the SEC filing, the price of each share of the VanEck SolidX Bitcoin Trust is set to $200,000. SolidX CEO Daniel H. Gallancy told CNBC, that the high price reflects the fund’s intention to focus on institutional, rather than retail investors.

Last month, the SEC delayed its decision on investment firm Direxion’s application for a Bitcoin ETF until Sep. 21. The regulator also rejected an appeal by Bats BZX Exchange, Inc. (BZX) to list and trade shares of the Winklevoss Bitcoin Trust, originally filed in 2016.

The agency cited the largely unregulated nature of Bitcoin markets as the principal reason for refusing the application, stating, “When the spot market is unregulated — there must be significant, regulated derivatives markets related to the underlying asset with which the Exchange can enter into a surveillance-sharing agreement.”

The U.S. Securities and Exchange Commission (SEC) has rejected the application for a Bitcoin exchange-traded fund by brothers Tyler and Cameron Winklevoss. The news was broken by CNBCThursday, July 26.

The WInklevoss twins’ first application for a Bitcoin ETF was rejected by the SEC in February 2017. The stated reason, back then, was the largely unregulated nature of Bitcoin (BTC) markets. The agency said back then:

”When the spot market is unregulated–there must be significant, regulated derivatives markets related to the underlying asset with which the Exchange can enter into a surveillance-sharing agreement.”

CNBC reports that the SEC published a new “release” Thursday, July 26, saying that it does not support the Winklevoss’ claim that crypto markets are “uniquely resistant to manipulation,” rejecting the twins’ second application made in June.

Despite receiving requests for a Bitcoin ETF approval from a number of applicants, the SEC has still not accepted any of them as of press time.

Cryptocurrency analyst Ran Neuner — host of the CNBC show Crypto Trader — believes BTC prices are “about to explode,” citing bullish market buzz about the near-term possibility of an SEC-approved bitcoin ETF.

“I just bought bitcoin for my parents. It’s too obvious that it’s about to explode,” Neuner tweeted on October 7.

Neuner said the mounting expectation that the Securities and Exchange Commission could soon approve a bitcoin ETF could send prices through the roof.

Countdown To SEC Deadline

Neuner, the CEO of crypto investment firm Onchain Capital, noted that around this time last year, BTC surged on reports that a cash-settled futures contract would launch.

Neuner reasoned that SEC approval of a bitcoin ETF would be much bigger news than a futures contract, and would have a more dramatic impact on the market.

CNBC crypto trader ran neuner
Ran Neuner is bullish about bitcoin. Credit: CNBC

“Last year, around this time, BTC went from $6,691 (Nov. 11) to $20,000 (Dec. 17) in 5 weeks,” Neuner tweeted. “This on the back of the expectation and launch of a cash settlement BTC futures contract.”

He continued: “An ETF is a way bigger deal and requires actual purchase of BTC. 2 looming SEC decision deadlines ahead.”

That said, predictions by any crypto expert should be viewed cautiously. Because the industry is still young and unregulated, there are a lot of unforeseen factors that could affect prices.

Keep in mind that in February 2018, Ran Neuner predicted that BTC would top $50,000 by the end of the year. So far, it does not appear that this forecast is realistic given current market conditions.

Meanwhile, the SEC has set a November 5 deadline to review nine bitcoin ETF applications. Some market experts predict that a bitcoin ETF is likely to be approved in early-2019.

In July 2018, the SEC rejected the Winklevoss twins’ second attempt to launch an exchange-traded fund that tracks the price of bitcoin. The agency had rejected Cameron and Tyler Winklevoss’ first such application in March 2017.

While the virtual currency market slumped over the summer, several key developments could be setting the stage for a near-term rally and a longer-term market run-up.

Yale Invests In Two Crypto Funds

Yale University — whose endowment tops $29 billion — recently invested in two crypto-focused venture funds.

In doing so, Yale became the first university endowment to invest in cryptocurrencies, in a sign that institutional investors are starting to embrace digital currencies as investment vehicles.

While Yale’s allocation in crypto is reportedly small, even a 1 percent allocation would approach a staggering $290 million.

Analysts say Yale’s foray into virtual currencies will undoubtedly trigger a chain reaction that could open the floodgates for other institutional investors to start pouring money into crypto funds.

Top universities typically copy what their peers do, so if one massive endowment signals that crypto is worthwhile, others will parrot their moves.

CIO: Investment ‘Herd Mentality’ Will Take Over

In April 2018, Ari Paul — the chief investment officer of crypto investment firm BlockTower Capital — said it was “inevitable” that several super-rich universities would start investing in cryptocurrencies this year.

“I do think it’s inevitable from a few angles,” Paul said. “Even if they never believe in it as an asset class, they’re smart enough to recognize the alpha opportunity.”

Ari Paul, the former portfolio manager for the University of Chicago, said several pension funds and university endowments began researching crypto-investments as early as 2015.

“Endowments could pull the trigger at any moment,” Paul said. “They’re on the fence.”

A deal between a traditional ATM manufacturer and a cryptocurrency vending machine firm will make it possible to buy bitcoin at tens of thousands of locations in the United States using a debit card.

Bitcoin ATM firm LibertyX and regular ATM manufacturer Genmega have forged a partnership which will make it possible to purchase bitcoin using a debit card at up to 100,000 locations in the United States.

However, since Genmega caters largely to the independent ATM deployers, adding the bitcoin-buying feature at the ATMs will depend on the willingness of the operators to offer the service. After making an application all that will be required will be a software upgrade in order to allow users to purchase bitcoin from the vending machine and have it sent to their cryptocurrency wallet.

Ease of Use

The development will be a boon to new users especially since the purchasing process of bitcoin from the ATMs is not very different from withdrawing cash from a vending machine. According to LibertyX, making cryptocurrency vending machines user-friendly has been a top priority for the Bitcoin ATM firm since it was founded.

“We have been working tirelessly to make it easier to buy cryptocurrencies for the last five years and now are bringing simplicity, convenience and trust to the cryptocurrency purchasing experience,” said Chris Yim, the co-founder and CEO of LibertyX, in a statement.

Currently, the number of bitcoin ATMs in the United States is nearly 2330, which is the highest in the world, with major urban areas such as Los Angeles, Miami, Atlanta, Chicago, and New York leading in coverage with more than 100 vending machines in each city. The United States is also home to Genesis Coin Inc, the world’s leading bitcoin ATM manufacturer with a market share of more than 32%, according to Coin ATM Radar.

U.S. Dominance to Continue

Various factors have contributed to the United States being the leader with regards to Bitcoin ATM coverage and this includes the high level of cryptocurrency awareness and adoption. A recent market research report has indicated that this will continue to be the case in the foreseeable future.

“The US is expected to continue to dominate the crypto ATM market during the forecast period owing to the presence of a large number of crypto ATM hardware and software providers and favorable investment environment (without any legal barriers),” recently reported by a crypto ATM market research report released in August.

Though it remains to be seen what portion of the 100,000 Genmega ATMs will adopt the bitcoin-purchasing feature, even a small percentage would greatly increase the number of Bitcoin ATMs not just in the United States but globally. At the moment the number of Bitcoin ATMs in the world is a little over 3,800 with an average of 5.58 bitcoin ATMs being added daily.

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