Filing suggests SEC is exploring grounds to deny spot Ether ETFs

    15 May 2024

    Analysts have unearthed details from a March filing with the United States Securities and Exchange Commission (SEC) that suggest the regulator may consider labeling Ether a security.

    In a May 13 X post, Davis Polk and Wardwell Associate Scott Johnsson reviewed a March 4 filing from BlackRock over its application to list and trade a spot Ether exchange-traded fund on the Nasdaq. The filing delayed the deadline for the commission to decide on a spot Ether ETF from BlackRock until June but also called for public feedback on whether the investment vehicle could be filed as a commodity.

    “The obvious purpose is to potentially deny on the basis that these spot filings are improperly filed as commodity-based trust shares and do not qualify if they are holding a security,” said Johnsson.

    According to Bloomberg ETF analyst Eric Balchunas, the SEC filing was “buried 50 feet deep in a pile of legalese,” but this did not change his speculation the regulator’s odds of signing off on a spot Ether ETF were “slim to none.” The SEC must decide whether to approve or deny VanEck’s spot Ether ETF by May 23 — the first in several applications waiting in the pipeline.

    Should the SEC deny VanEck’s application, the commission could turn down spot Ether ETFs from ARK 21Shares, Hashdex, Invesco Galaxy, BlackRock and Fidelity. Grayscale withdrew its spot Ether ETF application on May 7 without explanation. VanEck CEO Jan van Eck reportedly doubted that the SEC would approve his company’s offering in May.

    Central to the SEC’s decision is whether the commission considers ETH a security or commodity. Despite many previous public statements from Chair Gary Gensler declaring ETH was not a security, reports suggest that the commission has launched a probe into Ether. Gensler will speak at the Investment Company Institute summit in Washington, D.C., on May 23.


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