The SEC got spanked over Bitcoin ETFs. Now what?

The crypto world is still reveling after Grayscale’s unanimous court victory over the SEC this week. The decision, which saw an appeals court conclude that the SEC’s refusal to grant Grayscale a Bitcoin ETF was arbitrary and unfounded, has resulted in a modest jump in crypto prices and no shortage of memes dunking on the SEC’s embattled chairman, Gary Gensler.

Everyone agrees the ruling was a much needed piece of good news for the crypto industry—but what happens next is anyone’s guess. For starters, the SEC has a 45-day window to appeal the decision to a larger panel of judges on the same D.C. court or to file an appeal directly to the Supreme Court. In this week’s ruling, however, the three judges who issued the decision—including the Obama-appointed chief justice—issued such a sound spanking of the SEC’s reasoning that the agency has no obvious grounds for appeal.

This means the SEC can either find another pretext to delay approving Bitcoin ETFs or simply fold its cards, take the loss, and save what’s left of its capital for a different fight. As the Wall Street Journal noted in a withering editorial on the Grayscale decision, Gensler has already overplayed his hand:

“Mr. Gensler is holding Bitcoin spot ETPs hostage in his crypto-market power grab. Until crypto exchanges register with the SEC, he won’t authorize spot Bitcoin ETPs. Arbitrary regulation and regulatory overreaches are recurring themes of the Gensler SEC and the Biden administration. Is he trying to match Lina Khan’s losing record at the Federal Trade Commission?”

Given that an appeal is unlikely, the biggest wild card now is when and how the SEC approves the first Bitcoin ETF, which is widely expected to result in billions in new capital flowing into the crypto market. While Grayscale has been the face of the long-running legal fight, it is hardly the only one seeking to launch an ETF. Other firms petitioning the SEC to launch one include familiar names Fidelity and BlackRock.

In the case of BlackRock, the first deadline for the SEC to respond to the company’s ETF application is this Saturday—though a person familiar with the process says the company is expecting the agency will say it needs more time to examine the paperwork. The SEC already did this with another application, filed by crypto firm ARK, earlier this month. The upshot is that the crypto world must resign itself once again to the waiting game, and accept that the long-awaited capital infusion from an ETF approval will only come late this year—or in 2024.

Jeff John Roberts
jeff.roberts@fortune.com
@jeffjohnroberts

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