Updated: SEC Takes Further Action on Bitcoin ETFs | Practical Law

Updated: SEC Takes Further Action on Bitcoin ETFs | Practical Law

A summary of recent SEC actions on bitcoin ETFs.

Updated: SEC Takes Further Action on Bitcoin ETFs

Practical Law Legal Update w-034-0120 (Approx. 5 pages)

Updated: SEC Takes Further Action on Bitcoin ETFs

by Practical Law Finance
Law stated as of 01 Jun 2022USA (National/Federal)
A summary of recent SEC actions on bitcoin ETFs.
The SEC has taken the following recent actions on bitcoin ETF applications proposed to be made under listing rule changes requested by the Cboe BZX Exchange, Inc. (BZX) and the NYSE Arca, Inc (NYSE Arca) exchanges:
  • On May 27, 2022 the SEC issued an order disapproving a proposed rule change to list and trade shares of the One River Carbon Neutral Bitcoin Trust (One River) under NYSE Arca Rule 8.201-E which governs the listing and trading of trust issued receipts on the exchange (Commodity-Based Trust Shares). The SEC previously issued a notice of designation of a longer period to determine whether to approve or disapprove a proposed rule change to list and trade shares of One River on NYSE Arca. The proposed One River rule change was originally proposed in a September 29, 2021 notice of filing with the SEC. On December 21, 2021, the SEC issued an order instituting proceedings to determine whether to approve or disapprove the proposed rule change. According to the September 29, 2021 notice of filing, the trust's investment objective was to seek to track the performance of bitcoin, as measured by the performance of the MVIS One River Carbon Neutral Bitcoin Index (MVIS index).
  • On March 18, 2022, the SEC issued a notice of designation of a longer period, from March 31, 2022 to May 15, 2022, for the SEC to determine whether to approve or disapprove a proposed rule change to list and trade shares of the WisdomTree Bitcoin Trust (WisdomTree) on BZX, under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, which governs the listing and trading of commodity-based trust shares. The proposed WisdomTree rule change was originally proposed in a January 25, 2022 notice of filing with the SEC. On February 8, 2022, the SEC published the WisdomTree notice of filing and provided that comments to the proposed rule change were open through March 31, 2022
  • On March 10, 2022, the SEC issued an order disapproving a proposed rule change to list and trade shares of the NYDIG Bitcoin ETF on NYSE Arca, under NYSE Arca Rule 8.201-E, which governs the listing and trading of commodity-based trust shares. According to order, the SEC concluded that NYSE Arca has not demonstrated that the NYDIG proposal is consistent with the requirements of the Exchange Act Section 6(b)(5) – in particular, the requirement that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. According to the July 13, 2021 notice of filing of the proposed NYDIG rule change, the NYDIG trust would only hold bitcoin.
  • On March 10, 2022, the SEC issued an order disapproving a proposed rule change to list and trade shares of the Global X Bitcoin Trust on BZX, under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, which governs the listing and trading of commodity-based trust shares. According to the order, the SEC concluded that BZX did not meet its burden under the Exchange Act and the SEC’s rules of practice to demonstrate that its proposal is consistent with the requirements of Exchange Act Section 6(b)(5) – in particular, the requirement that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. According to the August 17, 2021 notice of filing of the proposed Global X rule change, the investment objective of the Global X trust is to reflect the performance of the price of bitcoin.
  • On February 9, 2022, the SEC issued a notice of designation of a longer period for commission action on proceedings to determine whether to approve or disapprove a proposed rule change to list and trade shares of the Global X Bitcoin Trust on BZX, under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, which governs the listing and trading of commodity-based trust shares. The proposed Global X rule change was originally proposed in an August 17, 2021 notice of filing with the SEC.
  • On February 4, 2022, the SEC issued an order instituting proceedings to determine whether to approve or disapprove a proposed rule change to list and trade shares of Grayscale Bitcoin Trust (BTC) on NYSE Arca, under NYSE Arca Rule 8.201-E, which governs the listing and trading of commodity-based trust shares. The proposed Grayscale rule change was originally proposed in an October 19, 2021 notice of filing with the SEC
  • On February 3, 2022, the SEC issued an order instituting proceedings to determine whether to approve or disapprove a proposed rule change to list and trade shares of the Bitwise Bitcoin ETP Trust on NYSE Arca, under NYSE Arca Rule 8.201-E, which governs the listing and trading of commodity-based trust shares. The proposed Bitwise rule change was originally proposed in an October 14, 2021 notice of filing with the SEC.
  • On January 27, 2022, the SEC issued an order disapproving a proposed rule change to list and trade shares of the Wise Origin Bitcoin Trust on BZX, under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, which governs the listing and trading of commodity-based trust shares. According to the order the SEC concluded that BZX did not meet its burden under the Exchange Act and the SEC’s rules of practice to demonstrate that its proposal is consistent with the requirements of Exchange Act Section 6(b)(5) – in particular, the requirement that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. According to the May 25, 2021 notice of filing of the proposed Wise Origin rule change, the investment objective of the Wise Origin trust was to seek to track the performance of bitcoin, as measured by the Fidelity Bitcoin Index PR.
  • On January 25, 2022, the SEC issued a notice of designation of a longer period, from February 7, 2022 to April 8, 2022, for the SEC to determine whether to approve or disapprove a proposed rule change to list and trade shares of the Teucrium Bitcoin Futures Fund (Teucrium) on NYSE Arca, under NYSE Arca Rule 8.200-E, Commentary .02, which governs the listing and trading of trust issued receipts on the exchange. The proposed Teucrium rule change was originally proposed in an August 5, 2021 notice of filing with the SEC.
  • On January 25, 2022, the SEC issued a notice of designation of a longer period, from February 2, 2022 to April 3, 2022 for the SEC to determine whether to approve or disapprove a proposed rule change to list and trade shares of the ARK 21Shares Bitcoin ETF on BZX, under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, which governs the listing and trading of commodity-based trust shares. The proposed ARK 21Shares rule change was originally proposed in an August 2, 2021 original notice of filing with the SEC, as later amended in a December 17, 2021 notice of filing amendment.
  • On January 20, 2022, the SEC issued an order disapproving a proposed rule change to list and trade shares of the First Trust SkyBridge Bitcoin ETF Trust on NYSE Arca, under NYSE Arca Rule 8.201-E, which governs the listing and trading of commodity-based trust shares. According to order, the SEC concluded that NYSE Arca has not demonstrated that the SkyBridge proposal is consistent with the requirements of the Exchange Act Section 6(b)(5) – in particular, the requirement that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. According to the May 21, 2021 notice of filing of the proposed rule change, the SkyBridge trust was designed to reflect the value of bitcoin by purchasing and selling bitcoin in such amounts that the total value of the bitcoin held by the trust would be as close to 100% of the net assets of the trust as reasonably practicable.
  • On January 4, 2022, the SEC issued a notice of designation of a longer period for the SEC to determine whether to approve or disapprove a proposed rule change to list and trade shares of the New York Digital Investment Group's NYDIG Bitcoin ETF trust on NYSE Arca, under NYSE Arca Rule 8.201-E, which governs the listing and trading of commodity-based trust shares. According to the July 13, 2021 notice of filing of the proposed NYDIG rule change, the NYDIG trust would only hold bitcoin.
  • On December 22, 2021, the SEC issued an order disapproving a proposed rule change to list and trade shares of the Valkyrie Bitcoin Fund Trust on NYSE Arca, under NYSE Arca Rule 8.201-E, which governs the listing and trading of commodity-based trust shares. According to the May 6, 2021 notice of filing of the proposed Valkyrie rule change, the investment objective of the Valkyrie trust would be for the shares to reflect the performance of the value of bitcoin then held by the trust, as represented by the CF Bitcoin US Settlement Price index.
  • On December 22, 2021, the SEC issued an order disapproving a proposed rule change to list and trade shares of the Kryptoin Bitcoin ETF Trust on BZX, under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, which governs the listing and trading of commodity-based trust shares. According to the April 22, 2021 notice of filing of the proposed Kryptoin rule change, the investment objective of the Kryptoin trust is to provide exposure to bitcoin at a price that is reflective of the actual bitcoin market through the trust holding bitcoin and valuing its shares daily based on the reported CF Bitcoin US Settlement Price as the reference rate.
For information on prior SEC bitcoin ETF activity, see Legal Update, SEC Rejects VanEck Bitcoin ETF, Permits Valkyrie Launch.