Grayscale Investments, LLC v. SEC, No. 22-1142 (D.C. Cir. 2023)
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The Securities and Exchange Commission recently approved the trading of two bitcoin futures funds on national exchanges but denied approval of Grayscale’s bitcoin fund. Petitioning for review of the Commission’s denial order, Grayscale maintains its proposed bitcoin exchange-traded product is materially similar to the bitcoin futures exchange-traded products and should have been approved to trade on NYSE Arca.
The DC Circuit vacated the order and granted Grayscale’s petition. The court explained that the denial of Grayscale’s proposal was arbitrary and capricious because the Commission failed to explain its different treatment of similar products. The court explained that to avoid arbitrariness and caprice, administrative adjudication must be consistent and predictable, following the basic principle that similar cases should be treated similarly. The court wrote that NYSE Arca presented substantial evidence that Grayscale is similar, across the relevant regulatory factors, to bitcoin futures ETPs. As such, the court found that the Commission failed to adequately explain why it approved the listing of two bitcoin futures ETPs but not Grayscale’s proposed bitcoin ETP. Accordingly, the court explained that in the absence of a coherent explanation, this, unlike regulatory treatment of like products, is unlawful.
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