Competitive Enterprise Institute Financial Services Expert Comments on Bitcoin ETF Ruling: The SEC Should Heed the Words of the Court

Yesterday, Grayscale received a solid legal victory in its attempt to offer a Bitcoin ETF. A federal court deemed the Securities and Exchange Commission’s decision to block the launch of the exchange-traded product as “capricious”.

Grayscale is currently reviewing its options and the SEC has yet to issue any statement on the defeat.

CI received a comment from John Berlau, a Director of Finance Policy and Senior Fellow at the Competitive Enterprise Institute (CEI) who said the SEC should listen to the courts decision and stop blocking Bitcoin ETFs. Berlau said:

“Today’s ruling – in which the majority of the judges were appointed by Democratic presidents –could open the door for many firms to offer similar cryptocurrency funds to ordinary investors. The SEC’s majority should heed the words of the court as well as those of Commissioner Hester Peirce – who dissented from and critiqued the SEC’s denial of ETF and other exchange-traded products for the cryptocurrency market.”

Berlau noted that as early as 2018, Commissioner Peirce described the SEC’s denial of a crypto ETF as “an aversion to innovation” and something that may compel innovators to shift their efforts to more supportive jurisdictions.

“She criticized the SEC for making value judgments about the overall riskiness of the Bitcoin market rather than focusing on whether the ETF itself provided adequate disclosure, pointing out the SEC’s statutory mandate involves disclosure and not the merits of particular investments. And she pointed out the irony that the SEC’s rejection of crypto ETFs ‘unintentionally undermines investor protection,’ as it ‘precludes investors from accessing bitcoin through an exchange-listed avenue that offers predictability, transparency, and ease of entry and exit,” explained Berlau.

Berlau believes that trading on a major US exchange is safer for investors and relieves custody concerns.

“If crypto ETFs had been approved when Peirce called for them to be in 2018, many investors could have avoided purchasing cryptocurrency through trading venues – most notably FTX — that collapsed due to mismanagement and alleged fraud,” Berlau stated. “The SEC needs to move prudently but quickly to give the option of crypto ETFs to investors who desire to purchase them.”


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