What happens if SEC doesn’t appeal Grayscale spot Bitcoin ETF ruling?

The SEC must appeal Grayscale’s win in a D.C. Appeals Court on Oct. 13, or it will have to approve — or try to delay — the firm’s Bitcoin ETF bid.

The United States Securities and Exchange Commission will soon reach its deadline to appeal the court decision that ruled in favor of Grayscale Investments, forcing the regulator to review the fund manager’s application for a spot Bitcoin (BTC) fund.

While many observers don’t believe the securities regulator will attempt to appeal the court’s decision, analysts say there could still be ways for the SEC to delay approval of Grayscale’s spot Bitcoin ETF conversion.

On Oct. 13, the SEC must either appeal the D.C. Circuit Court of Appeals decision to the U.S. Supreme Court, request the Appeals Court revisit its ruling, or follow the court’s August order and review Grayscale’s bid to change its Grayscale Bitcoin Trust (GBTC) into a spot Bitcoin ETF.

In an Oct. 12 post responding to an X user’s question, Bloomberg ETF analyst Eric Balchunas said an appeal was unlikely, though there could still be other hurdles.

“We think [an] appeal is a longshot […] But there’s always a chance of something else happening.”

Meanwhile, in a separate post, fellow Bloomberg ETF analyst James Seyffart said that an SEC attempt to deny on new grounds was unlikely and a “very difficult needle to thread,” but it could “find ways to keep delaying.”

Not officially. SEC could attempt to deny on new grounds but as @EricBalchunas, myself, @NYCStein, @SGJohnsson, @NateGeraci and many others have said. It would be a very difficult needle to thread and we view as unlikely. They can find ways to keep delaying though IMO.

— James Seyffart (@JSeyff) October 12, 2023

A September note from law firm Ropes & Gray warned the GBTC application could be sent back for review to the SEC, giving the regulator another chance to reject it on a different basis.

“In this scenario, the new denial could itself then be subject to another appeal by GBTC to the D.C. Circuit,” wrote the firm.

Another delay scenario, according to Ropes & Gray, would be if the New York Stock Exchange has to make a new filing to list GBTC — then it is possible the SEC could take up to eight months to reach a decision on the ETF.

Related: House committee chairman threatens SEC chair with subpoena, but not over crypto

Currently, at least seven spot Bitcoin ETF applications are before the regulator for approval.

Despite all being filed with the regulator earlier in 2023, all have faced delays and pushback from the SEC, leaving the final approval deadlines for most around March 2024 or later.

However, most eyes are on Grayscale’s spot Bitcoin ETF conversion application because, if the SEC approves it, the regulator could struggle to find reasons to knock back other applications.

The likelihood of an approved spot Bitcoin ETF this year is 75%, according to Bloomberg analysts who updated the odds after Grayscale’s court win. The odds jump to a 95% likelihood of approval by the end of 2024.

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