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A Bitcoin ETF might be approved as early as Thursday, according to a lawyer


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    BTC%20ETF(Kitco News) - Bitcoin’s (BTC) price has run into a wall of resistance at $35,000 as the hype surrounding the potential approval of the first spot BTC exchange-traded fund (ETF) has started to fade, but one lawyer thinks the market could be in for a surprise and has suggested that an approval could come within the next few days.

    Scott Johnsson, an attorney with Davis Polk, noted the previously unreported development in an X (formerly Twitter) post on Monday, saying, “The first closed meeting of the Commissioners since Grayscale’s appeal deadline expired and the mandate was delivered” will take place on Nov. 2.

    The “Agenda includes resolving litigation claims and admin proceedings,” Johnsson said. “There were leaks out of the closed meeting ahead of BITO launch.”

    The document shared by Johnsson provides information on the upcoming closed-door meeting to review the Sunshine Act, which will include the “institution and settlement of administrative proceedings,” and the “resolution of litigation claims.”

    “It's a date of interest, but no certainty we get any news,” Johnsson said in a follow-up post.

    The reference to the launch of BITO has to do with the ProShares Bitcoin Strategy ETF (BITO), which was the first Bitcoin futures ETF and launched on Oct. 19, 2021. BITO was the fastest ETF to reach the $1 billion milestone following its debut.

    In the days leading up to the approval of BITO, a leak from an SEC closed meeting suggested that the regulator was leaning toward approving the futures ETF for trading as it fell under mutual fund regulations, which, according to SEC Chairman Gary Gensler, offer “significant investor protections.”

    Johnsson’s tweet hints at the possibility of a similar scenario to the one in October 2021 coming out following the November 2 meeting, and the possibility of a spot BTC ETF being listed on U.S. markets before the end of 2023.

    Multiple spot BTC ETF applications have been amended in recent weeks in an effort to secure their approval, and analysts say it's only a matter of time before one is ultimately approved, which will open the floodgates for others to be listed.

    The latest firms to file amendments to their applications include Ark Invest, BlackRock, Bitwise, VanEck, and Valkyrie, according to Bloomberg Intelligence ETF analyst James Seyffart.

    The main point of focus for the amendments has to do with how the funds will initially be seeded to enable trading.

    “Similar language to the Blackrock amendment re: seeding,” said Johnsson regarding the amendments to VanEck’s application. “Perhaps not too surprising given both issuers are represented by the same lawyers at Clifford Chance. Except here, instead of seeding with cash like iShares, Vaneck suggests they'll seed with Bitcoin.”

    Analysts have suggested that the SEC’s goal in requesting the amendments is to bring all applicants under a consistent standard before approving the submitted applications en masse.

    “SEC disclosure review cadence is typically in the neighborhood of 2-4 weeks for a normal S-1,” Johnsson said. “It will be interesting to see whether we get any uploaded comments from the SEC and/or further amendments from the likes of Ark/21 and others in the next two weeks.”



    Johnsson noted that the conversation is highly speculative and personally thinks that a leak is unlikely.

    “I think I might take the under here,” he said in response to a poll asking, “Should we expect a leak ahead of an approval/disapproval order, similar to what we saw for the ETH futures ETFs decision?”

    While 57% of poll respondents said the SEC would leak vs. 24.2% who said there would be no leak, Johnsson elected to side with the minority. “Recall ETH futures ETF situation was unique in that allegedly Vol Shares forced the SEC's hand only a few months after they requested all issuers to voluntarily withdraw their apps,” he said. “SEC likely relented to avoid litigation and needed to reach out to other issuers to let them know they would now consider the apps... which let the cat out of the bag.”

    He also said he wasn’t aware of any other cases where an approval/disapproval order was leaked out ahead of time.

    “While there may be a lot of interest/people involved on this one in general through things like disclosure review, it wouldn't be too terribly difficult to silo off a few lawyers for the approval/disapproval order,” he said. “Not to say it won't leak, but [in my opinion, it’s] less likely than anticipated in this poll.”

    According to Seyffart and Bloomberg Intelligence senior ETF analyst Eric Balchunas, there is a 90% chance that the Ark 21Shares spot BTC ETF application will be approved by its final deadline of January 10, 2024.

    As for the demand for a spot BTC ETF, Balchunas noted in a social media post on Saturday that “BITO traded $1.7b last week, 2nd biggest week since its wild WEEK ONE. GBTC did $800m. That's $2.5b (top 1% among ETFs) into two less desirable methods (vs. spot) for exposure = while we think spot ETFs [are] unlikely to set records on DAY ONE, clearly there's an audience.”

    Disclaimer: The views expressed in this article are those of the author and may not reflect those of Kitco Metals Inc. The author has made every effort to ensure accuracy of information provided; however, neither Kitco Metals Inc. nor the author can guarantee such accuracy. This article is strictly for informational purposes only. It is not a solicitation to make any exchange in commodities, securities or other financial instruments. Kitco Metals Inc. and the author of this article do not accept culpability for losses and/ or damages arising from the use of this publication.

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