Risk & Compliance

SEC Deals Another Setback for Bitcoin ETF

Backers of the first-ever bitcoin-related ETF have not been able to assuage SEC concerns over bitcoin fraud and price manipulation.
Matthew HellerJuly 30, 2018

The U.S. Securities and Exchange Commission has rejected another effort by entrepreneurs Cameron and Tyler Winklevoss to list a bitcoin-related exchange-traded fund, citing concerns that the price of bitcoin is susceptible to manipulation.

The Winklesvoss twins had proposed an SEC rule change that would make their proposed ETF the first investment product of its kind to be listed. The fund would track the price of bitcoin on the Winklevoss’ Gemini bitcoin-trading platform and be listed on the CBOE’s BATS BZX exchange.

But in a 3-1 decision, the commission last week said the proposed rule change was not “consistent with the requirements of the Exchange Act Section 6(b)(5), in particular the requirement that [SEC] rules be designed to prevent fraudulent and manipulative acts and practices.”

The decision, which affirmed an earlier SEC staff ruling, rejected the Winklevoss’ arguments that bitcoin and bitcoin markets are inherently resistant to manipulation and that “traditional means” of identifying and deterring fraud and manipulation would be sufficient to comply with the Exchange Act.

“BZX has not demonstrated that the structure of the spot market for bitcoin is uniquely resistant to manipulation,” the SEC said.

The Winklevosses have been seeking for several years to list an investment product tied to bitcoin that would increase liquidity and attract retail investors. They filed in June 2016 to switch the listing of their ETF, the Winklevoss Bitcoin Trust, to BATS from Nasdaq.

In its appeal of the SEC staff decision, BATS stressed that the “geographically diverse and continuous nature of bitcoin trading makes it difficult and prohibitively costly to manipulate the price of bitcoin” and that therefore the bitcoin market “generally is less susceptible to manipulation than the equity, fixed income, and commodity futures markets.”

“Investors are better served by products traded on a regulated securities market and protected by robust securities laws and we will continue to work with the SEC and ETF issuers to construct a fully regulated product,” Chris Concannon, chief operating officer of CBOE Global Markets, said in response to the SEC’s latest rebuff.