Grayscale moves along bitcoin ETF bid with ‘procedural milestone’

This latest filing kicks off the firm’s conversations with another SEC division as its suit against the regulator wraps up, a person familiar with the matter says

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Grayscale Investments is looking to advance its bid to launch a spot bitcoin ETF after the Securities and Exchange Commission opted not to appeal the company’s August court win. 

The crypto-focused asset manager continued its quest to convert its Grayscale Bitcoin Trust (GBTC) to an ETF — an effort the SEC blocked, and was subsequently sued for last year — with a new filing Thursday. 

The action is “more of a procedural milestone” for the firm to kick off conversations with another SEC division as the lawsuit wraps up, a person familiar with the filing told Blockworks. 

The DC Circuit Court of Appeals ruled in August that the SEC’s actions in denying this conversion, but allowing bitcoin futures ETFs to trade, was “arbitrary and capricious.” The regulator did not challenge that decision, as the firm — and industry — now await a final mandate by the court this week. 

Read more: ‘Game on’: SEC opts not to appeal Grayscale’s court win

In the meantime, Grayscale filed with the SEC Thursday to register shares of the GBTC under the Securities Act of 1933 via an S-3 form.

ETF issuers typically file a registration statement on Form S-1 for the initial public offering of equity securities registered under the act. Grayscale was eligible to use the S-3 form — a more simplified document — in part because GBTC became an SEC reporting company in January 2020, the company said in a Thursday blog post.

The filing is another step toward getting GBTC converted to an ETF — a prospect industry watchers have said they believe became more likely after the Court of Appeals’ August ruling.

Ultimately, three things must happen for the conversion to occur, Grayscale noted in the post. NYSE Arca’s 19b-4 filing — the subject of what was litigated in court — must be approved. Grayscale also needs to obtain Regulation M relief and have its S-3 form declared effective by the SEC.  

While the SEC’s division of trading and markets reviews the 19b-4 filing and grants Regulation M relief, the regulator’s division of corporation finance reviews S-1 and S-3 filings. 

“Importantly, GBTC is ready to operate as an ETF upon receipt of these regulatory approvals, and on behalf of GBTC’s investors, Grayscale looks forward to working collaboratively and expeditiously with the SEC on these matters,” the company said in the blog post. 

An SEC spokesperson did not immediately return a request for comment.


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