Our Take
Blackrock’s decision to file an application for a spot-based Bitcoin ETF comes at an curious time. The Securities and Exchange Commission (SEC), which must approve any such application, has embarked on an aggressive campaign against cryptocurrency companies in the United States. Concurrently, and this list is not exhaustive, the SEC is embroiled in litigation against: Coinbase, the biggest US-based exchange and the only one that is publicly listed in the US; Grayscale, the largest crypto asset manager; Binance, the world’s largest crypto exchange; and Ripple Labs, issuer of one of the world’s oldest altcoins. And the agency just recently extracted settlements from Kraken and Bittrex. And, of course, more than 20 bitcoin ETF applications have ultimately been unsuccessful.
The big question among observers this week has been, why now? After years of denials and an American crypto industry embroiled in regulatory disputes across the spectrum, why make your first filing now? Actually, with concerns about the integrity of underlying spot BTC markets as the primary concern cited by the SEC in its prior rejections, perhaps Blackrock sees now as a particularly auspicious time to file. The SEC’s actions against Coinbase and Binance can be seen to provide a certain clarity to underlying spot markets, and the announced launch this week of EDX, the disaggregated crypto exchange backed by Citadel, Fidelity Schwab, and Virtu Financial, could be just the type of underlying spot market that the SEC needs in order to approve an ETF. And if you look across the gamut of the SEC’s enforcement actions, one name is conspicuously omitted from scrutiny: Bitcoin. Bitcoin is the only asset that SEC Chair Gary Gensler has explicitly stated is not a security – at least while he has been Chair of the SEC… prior to becoming Chair Mr. Gensler did say that neither Ethereum, Litecoin, nor Bitcoin Cash were not securities. (Incidentally, Bitcoin and these 3 assets are apparently the 4 that will be tradeable day one on EDX).
And perhaps sentiment at the SEC has changed. Castle Island Ventures general partner Matt Walsh mused that perhaps a third commissioner has evolved on the Bitcoin ETF question, suggesting that perhaps Caroline Crenshaw could become a decisive “yes” vote after previously voting against. Indeed, as Figment’s Josh Deems noted to me, Crenshaw ended a late-2021 speech with an optimistic tone, saying “In my research, it sometimes seems like the only constant in the digital asset universe may be change. As a firm believer that innovation can yield great benefits for individuals and economies, I’m thinking about where change is occurring, what that means for the SEC, and how we can respond. For example, just a few years ago, a significant majority of bitcoin transactions occurred on exchanges operating in jurisdictions that are not party to our legal treaties, and where we have very little visibility.[29] As China recently banned digital asset exchanges operating within its borders, I went back to look at how that has impacted where bitcoin transactions now occur. Today six of the top 11 centralized bitcoin exchanges by volume are in the U.S., and two others are in Financial Action Task Force (“FATF”) member countries.[30] These exchanges may be less subject to manipulative trading, and could have more reliable anti-money laundering programs.”
Beyond the “why now” question, some on Twitter have voiced opposition to Blackrock’s entrance, suggesting that regulators were pushing down the existing crypto industry (disruptors) while making a pathway for the traditional financial services industry (incumbents). Our own President & CIO Chris Ferraro addressed this issue during a Yahoo! Finance interview, when he was asked “a lot of crypto purists, some of the social commentary I saw online described this institutional push as the wolf entering the hen house. Do you think that’s fair? Chris described it aptly as a “natural evolution,” saying that “innovation always tends to be messy and fast and then have to reset itself. We’ve seen that through technology cycles over and over again. The market has made huge strides in terms of technological advancement… but in the background all along, traditional financial institutions… have had dedicated teams building and are now at the point where… they are stepping into the market.”
A few misconceptions to clear up from social media. While this filing does create a trust, not an “exchange traded fund,” it is functionally equivalent to an “ETF” because it trades on an exchange and allows for constant creations and redemptions – it is functionally no different than GLD, the wildly successful SPDR Gold Shares (GLD) trust. And a lot of complaints and conspiracies were floated regarding the “fork-choice” language included in Blackrock’s S-1 filing, specifically that “with respect to any fork, airdrop, or similar event, the Sponsor shall, in its sole discretion, determine what action the Trust shall take. In the event of a fork, the Sponsor will, as permitted by the terms of the Trust Agreement, determine which network it believes is generally accepted as the Bitcoin network and should therefore be considered the appropriate network, and the associated asset as bitcoin, for the Trust’s purpose.” Some alleged that this language suggested a nefarious aim on Blackrock’s behalf, specifically that firm would promote a Bitcoin fork that suited Blackrock’s political aims, such as on ESG, an investment narrative that Blackrock is famous for innovating. The reality, though, is this “fork choice” language is pretty boilerplate – standard in almost all custody agreements, for example.
Blackrock’s team has been working diligently on digital assets for a while, but it’s clear that they viewed this moment as ripe to make their first Bitcoin ETF filing, which is interesting. Theoretically, the soonest Blackrock’s ETF could be approved is August 13, 45 days after registration. This all puts a lot on the SEC’s plate, particularly with some of the older lawsuits supposedly approaching conclusions (Ripple & Grayscale). However this summer goes, it’s clear that the institutional Bitcoin game is on.
-Alex Thorn
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