Below are excerpts from the BATS rule change proposal which, if approved by the SEC, would allow shares of the Bitcoin Trust to be traded on the BATS exchange (https://www.sec.gov/rules/sro/batsbzx/2016/34-78262.pdf
: To be clear, the approval of this rule change is separate from the SEC approving the Trust itself (i.e., its registration statement, Form S-1). So unfortunately, even if this rule change is approved, it doesn't necessarily mean the Trust itself will be approved anytime soon or at all
These are all direct quotes shown in order, but in the interest of readability I have generally not used ellipses or otherwise indicated where clauses, sentences or sections are omitted. I have put in bold parts that I think are particularly notable:
SR-BatsBZX-2016-30 34-78262 Jul. 8, 2016 Notice of Filing of a Proposed Rule Change to BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, to List and Trade Winklevoss Bitcoin Shares Issued by the Winklevoss Bitcoin Trust
Bats BZX Exchange . . . filed with the Securities and Exchange Commission the proposed rule change. The Exchange filed a proposal to list and trade Winklevoss Bitcoin Shares (the “Shares”) issued by the Winklevoss Bitcoin Trust (the “Trust”) under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares. The text of the proposed rule change is available at the Exchange’s website at www.batstrading.com
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements. The Exchange proposes to list and trade the Shares under BZX Rule 14.11(e)(4), which governs the listing and trading of Commodity Based Trust Shares on the Exchange. The Shares will be offered by the Trust.
Digital Asset Services, LLC, formerly MathBased Asset Services, LLC, will be the sponsor of the Trust (the “Sponsor”). Gemini Trust Company, LLC will be the custodian of the Trust (the “Custodian”). The Custodian will hold the bitcoin deposited with the Custodian on behalf of the Trust in a segregated custody account. The Custodian will use its proprietary and patent-pending offline (i.e., air-gapped) Cold Storage System to store the Trust’s bitcoin. The Trust is expected to issue and redeem Shares from time to time only in one or more whole Baskets. Certain Authorized Participants are the only persons that may place orders to create or redeem Baskets. Authorized Participants or their affiliated market makers are expected to have the facility to participate directly on one or more Bitcoin Exchanges. The investment objective of the Trust is for the Shares to track the price of bitcoin, as measured by the spot price at 4:00 p.m. Eastern time on the Gemini exchange. The Shares represent units of fractional undivided beneficial interest in and ownership of the Trust and are expected to be traded under the ticker symbol “COIN” on the Exchange.
The Trust values its bitcoin as measured at 4:00 p.m. Eastern time using the Gemini Exchange Spot Price on each Business Day.
The Trust has entered into preliminary conversations with a number of potential Authorized Participants as well as market makers, each of which is an experienced participant in the ETP marketplace and is actively engaged in trading ETPs. A number of these potential Authorized Participants, currently trade bitcoin and are already registered participants that trade on the Gemini Exchange. Authorized Participants will not be required to use the Gemini Exchange to trade their bitcoin, and the Gemini Exchange is not the only venue on which Authorized Participants can purchase bitcoin for delivery to the Trust.
The Trust represents the first known ETP in the United States that seeks to track the price of a Digital Asset (a “Digital Asset ETP”). Securitized instruments have been created for other marketplaces, but have encountered limited success due to their lack of transparency and thorough regulatory oversight. Two notable examples are the Grayscale Investment Trust, which trades under the ticker GBTC on OTC Markets (formerly the “Pink Sheets”) and does not qualify as an exchange-listed product, and Bitcoin Tracker One, which trades under the ticker COINXBT on the Stockholm Stock Exchange. The Shares will be listed and trade on BZX . . . [and] will be eligible for margin accounts.
The value of the Trust’s holdings will be reported each day on the Trust’s website.
Using the precious metals exchange-traded trusts currently trading on U.S. exchanges as design paradigms, the Sponsor has structured the Trust to be a similar passive investment vehicle holding a single asset. Like the precious metals exchange traded trusts cited above, the Trust will only own and store bitcoin and will not be permitted to hold cash or any other Digital Asset. Custodian can use Signers to sign a specific message chosen by the Custodian that references a current event (i.e., to prove recency), thereby proving control of the private keys associated with the public Bitcoin addresses in which the Trust’s bitcoin are held. This allows the Custodian to evidence control of the Trust’s assets periodically during audits on-demand and without necessitating the transfer of any of the Trust’s bitcoin.
Custodian will accept, on behalf of the Trust, delivery of bitcoin from Authorized Participants into the Trust Custody Account in the creation of a Basket. In order for an Authorized Participant to redeem a Basket and receive a distribution of bitcoin from the Trust, the Custodian, upon receiving instructions from the Administrator, will sign transactions necessary to transfer bitcoin out of the Trust Custody Account and distribute to the Bitcoin address specified by the Authorized Participant. Sponsor must engage an independent audit firm to periodically audit the Custodian’s Cold Storage System protocols and internal controls (“Internal Controls Audit”), and report to the Sponsor at least annually on such matters. Additionally, the Sponsor must engage an independent audit firm to biannually verify that the Custodian can demonstrate “proof of control” of the private keys that control the Trust’s bitcoin (“Proof of Control Audit”). One Proof of Control Audit will be conducted at the end of each calendar year and the other at random. The Administrator will use the Gemini Exchange Spot Price as measured at 4:00 p.m. Eastern time (the “Evaluation Time”) to calculate the Trust’s NAV. The Administrator will calculate the Trust’s NAV by dividing the net assets of the Trust by the number of the Shares outstanding as of the close of trading on the Exchange (which includes the net number of any of the Shares created or redeemed on such Business Day).
The Trust will issue and redeem the Shares in Baskets only to certain Authorized Participants on an ongoing basis. On a creation, Baskets will be distributed to the Authorized Participants by the Trust in exchange for the delivery to the Trust of the appropriate number of bitcoin (i.e., bitcoin equal in value to the value of the Shares being purchased). On a redemption, the Trust will distribute bitcoin equal in value to the value of the Shares being redeemed to the redeeming Authorized Participant in exchange for the delivery to the Trust of one or more Baskets. On each Business Day, the value of each Basket accepted by the Administrator in a creation or redemption transaction will be the same (i.e., each Basket will consist of 50,000 Shares and the value of the Basket will be equal to the value of 50,000 Shares at their net asset value per Share on that day). Authorized Participants must be (i) registered broker-dealers or other securities market participants, such as banks and other financial institutions, which are not required to register as broker-dealers to engage in securities transactions, and (ii) DTC Participants.
The Trust’s website, which will be publicly available prior to the public offering of the Shares, will include a form of the prospectus for the Trust that may be downloaded. The website will include additional quantitative information updated on a daily basis, including, for the Trust: (i) the prior Business Day’s reported NAV, the highest quoted bid price for the Shares (the “Best Bid”) and lowest quoted offer price for the Shares (the “Best Ask”), the mid-point of the spread between the Best Bid and the Best Ask at the time of the NAV calculation(the “Best Bid/Best Ask”), the daily trading volume of the Shares, and the calculation of the premium and discount of the Best Bid/Best Ask against the NAV . . .
The Sponsor will calculate an estimated fair value of the Shares based on the most recent Gemini Exchange Spot Price (the “Intraday Indicative Value”), which will be updated and widely disseminated by one or more major market data vendors at least every fifteen (15) seconds during the Exchange’s regular trading hours. The Basket creation and redemption process is important for the Trust in providing Authorized Participants with an arbitrage mechanism through which they may keep Share trading prices in line with the NAV.
If the market price of the Shares is greater than the NAV, an Authorized Participant can purchase sufficient bitcoin to create a Basket, and then sell the new Shares on the secondary market at a profit. If the NAV is greater than the market price of the Shares, an Authorized Participant can purchase Shares on the secondary market in an amount equal to a Basket and redeem them for bitcoin, and then sell the bitcoin at a profit.
The Shares will be subject to BZX Rule 14.11(e)(4), which sets forth the initial and continued listing criteria applicable to Commodity-Based Trust Shares.
The Trust currently expects that there will be at least 100,000 Shares outstanding at the time of commencement of trading on the Exchange. The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange’s existing rules governing the trading of equity securities. BZX will allow trading in the Shares from 8:00 a.m. until 5:00 p.m. Eastern Time.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period up to 90 days (i) as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (a) by order approve or disapprove such proposed rule change; or (b) institute proceedings to determine whether the proposed rule change should be disapproved. The Commission will post all comments on the Commission’s Internet website (http://www.sec.gov/rules/sro.shtml
On January 18, 2018, the SEC
issued a letter to the Investment Company Institute and the Securities Industry and Financial Markets Association (SIFMA) explaining why the SEC could not approve a cryptocurrency-related exchange traded fund
(ETF) or mutual fund. The letter, authored by SEC Division of Investment Management director Dalia Blass, explains the SEC’s reservations and concerns about approving a crypto-related mutual fund
or ETF. The letter advised against seeking registration of funds that invest heavily in cryptocurrency-related products until the raised questions and concerns can be properly addressed.
The SEC letter comes a year after the SEC rejected a proposal by Cameron and Tyler Winklevoss, famously linked to the founding of Facebook, to create a bitcoin-tracking ETF
. Since that time the SEC has privately rejected several similar requests. Many in the industry appreciate the SEC letter as it offers specific guidance and concrete issues to be addressed as the march towards the eventual approval of a crypto-related fund continues.
Since the January 18 letter, the SEC has been reviewing and conducting proceedings on a New York Stock Exchange (NYSE)
proposal to list and trade five bitcoin-related ETFs. The proceedings are expected to go on for a few months. This blog will begin with an explanation of what exactly is an ETF and then address the SEC’s concerns related to the clearance of crypto-related ETFs. What is an ETF?
Exchange traded funds or ETFs are funds that track indexes. Historically, exchange traded funds have tracked big-board indexes such as the Nasdaq 100, S&P 500 or Dow Jones; however, as ETFs
have risen in popularity, there are now funds that track lesser-known indexes or specially created indexes to feed the ETF market. There are indexes based on market sectors, such as tech, healthcare, financial; foreign markets; market cap (micro-, small-, mid-, large-, and mega-cap); asset type (small-growth, large-growth, etc.); and commodities. The primary difference between an ETF and other index funds is that an ETF does not try to outperform the corresponding index, but rather tries to track and replicate the performance.
An ETF allows an investor the advantage of copying an index with a single stock trade, without the risk associated with a fund manager trying to outperform the market. Since the fund manager is simply copying and mirroring the particular index, the management style is referred to as “passive management.”
Passive management reduces the administrative costs from an actively managed portfolio, and that savings can be passed down to the investors. A typical private hedge fund charges 2% per annum for administrative fees. That fee is reduced to 1% for mutual or registered funds. The typical fee for an ETF is less than .20% per year. Moreover, since an ETF does not trade as actively as typical funds, it has fewer capital gain events and therefore lower taxes.
An ETF trades just like a stock, with continuous trading throughout a day. ETFs are generally margin-eligible and accordingly can be sold short. Conversely, mutual funds are generally only priced once a day after market closings and are not margin-eligible.
ETFs have become increasingly popular over the years, especially with investors that are interested in market sectors, regions or asset types. It is not surprising that investors are interested in crypto-related ETFs
and that fund creators are likewise trying to meet this investor demand. SEC Position on Crypto-related Mutual Funds and ETFs
As mentioned, On January 18, 2018, the SEC Division of Investment Management issued a letter to the Investment Company Institute and the Securities Industry and Financial Markets Association (SIFMA) explaining why the SEC
could not approve a cryptocurrency-related exchange traded fund (ETF) or similar investment product such as a mutual fund.
The SEC begins with its commitment to fostering innovation and the development of new types of investment products, ETFs being a primary example, but quickly continues with the assertion that multiple investor protection issues need to be resolved before a crypto-related fund could be offered. The primary issues are valuation, liquidity, custody, arbitrage, potential manipulation and other risks.
The concerns and questions raised by the SEC will also impact future changes to exchange listing standards by the Division of Corporation Finance, the Division of Trading and Markets and the Office of the Chief Accountant. The SEC foresees needed changes to accounting, auditing and reporting requirements for crypto-related funds and ETFs. Valuation
Mutual funds and ETFs must value their assets on each business day in order to reach a net asset value (“NAV”). NAV
is used to determine fund performance, what investors pay for mutual funds and what authorized participants pay for ETFs as well as what they receive when they redeem or sell. The SEC is concerned that a fund or ETF would not have the necessary information to value a cryptocurrency as a result of their volatility, fragmentation, lack of regulation, nascent state and current trading volume (or lack thereof) in the cryptocurrency futures markets.
The SEC has requested that the industry evaluate and provide information as to how valuations would be conducted. Furthermore, the SEC has asked how funds would develop and implement policies and procedures related to crypto-related valuations to ensure that the requirements as to fair value are met. Likewise, the SEC would need satisfaction that a fund or ETF could adequately address the accounting and valuation impacts of “forks” such as when a cryptocurrency diverges into two separate currencies with different prices.
The SEC questions the policies a fund would implement to identify and determine eligibility and acceptability for newly created cryptocurrencies. The SEC has concern as to how a fund would consider the impact of market information and manipulation in the underlying cryptocurrency markets as related to the determination of the settlement price of cryptocurrency futures. Liquidity
Investments in open-ended funds such as mutual funds and ETFs are redeemable on a daily basis and as such, the funds must maintain sufficient liquid assets to satisfy redemptions. Rule 22e-4 promulgated under the Investment Company Act of 1940 (the “1940 Act”) requires funds to implement liquidity risk management programs. Under the rule, funds must classify their investments into one of four liquidity categories and limit their investments in illiquid securities to 15% of the fund’s assets.
The SEC is concerned with the steps a fund or ETF that invests in cryptocurrencies or crypto-related products would take to ensure that it would have sufficient liquidity to meet daily redemptions. Moreover, the SEC raises questions as to how such funds would satisfy Rule 22e-4 and in particular, how could any crypto-related investment be classified as anything other than illiquid under the rule.
The SEC specifically asks how such funds would take into account the trading history, price volatility and trading volume of cryptocurrency
futures contracts, and would funds be able to conduct a meaningful market-depth analysis in light of these factors. Similarly, given the fragmentation and volatility in the cryptocurrency markets, would these funds need to assume an unusually sizable potential daily redemption amount in light of the potential for steep market declines in the value of underlying assets. Custody
The 1940 Act provides for certain requirements related to the custody of securities held by funds, including who may act as a custodian and when funds must verify holdings. The SEC questions how a fund or ETF could satisfy the custody requirements for cryptocurrency-related products. The SEC notes that there are currently no custodians providing fund custodial services for cryptocurrencies. Likewise, although currently all bitcoin future contracts are cash-settled, if physical settlement contracts develop, the SEC questions how a fund will custody the bitcoin to make delivery.
The SEC further questions how a fund will validate existence, exclusive ownership and software functionality of private cryptocurrency
keys and other ownership records. Another issue for cryptocurrencies
is cybersecurity and the threat of hacking. The SEC has concerns about how custodians can satisfy their requirements for the safekeeping of crypto assets. Arbitrage for ETFs
ETFs obtain SEC orders that enable them to operate in a specialized structure that provides for both exchange trading of their shares throughout the day at market-based prices, and “creation unit” purchases and redemptions transacted at NAV by authorized participants. In order to promote fair treatment of investors, an ETF is required to have a market price that would not deviate materially from the ETF’s NAV
. The SEC questions how an ETF could comply with the terms of an order considering the fragmentation, volatility and trading volume in the cryptocurrency marketplace.
The SEC would like funds to engage with market makers and authorized participants to understand the feasibility of the arbitrage for ETFs investing substantially in cryptocurrency and cryptocurrency-related products. The SEC also questions how trading halts or the shutdown of a cryptocurrency exchange would affect the market price or arbitrage. Potential Manipulation and Other Risks
The SEC believes that the current cryptocurrency markets
have substantially fewer investor protections than traditional securities markets. Moreover, the SEC, other federal regulators, and state regulators have found considerable fraud in the cryptocurrency marketplace. The SEC is concerned about how a fund would address fraud concerns in the underlying markets when offering investments in the fund to retail investors. Similarly, the SEC is concerned about the disclosure of, and ability for a retail investor to understand, the risks of an investment in a crypto-related fund.
Likewise, the SEC would like funds to engage in discussions with broker-dealers who may distribute the funds, as to how the broker-dealer will satisfy their suitability requirements. The SEC is also concerned with how an investment advisor will satisfy their fiduciary obligations when recommending a crypto-related fund. Further Reading on DLT/Blockchain and ICOs
For an introduction on distributed ledger technology, including a summary of FINRA’s Report on Distributed Ledger Technology and Implication of Blockchain for the Securities Industry, see HERE
For a discussion on the Section 21(a) Report on the DAO investigation, statements by the Divisions of Corporation Finance and Enforcement related to the investigative report and the SEC’s Investor Bulletin on ICOs, see HERE
For a summary of SEC Chief Accountant Wesley R. Bricker’s statements on ICOs and accounting implications, see HERE
For an update on state-distributed ledger technology and blockchain regulations, see HERE
For a summary of the SEC and NASAA statements on ICOs and updates on enforcement proceedings as of January 2018, see HERE
For a summary of the SEC and CFTC joint statements on cryptocurrencies, including The Wall Street Journal
op-ed article and information on the International Organization of Securities Commissions statement and warning on ICOs, see HERE
For a review of the CFTC role and position on cryptocurrencies, see HERE
For a summary of the SEC and CFTC testimony to the United States Senate Committee on Banking Housing and Urban Affairs hearing on “Virtual Currencies: The Oversight Role of the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission,” see HERE
To learn about SAFTs and the issues with the SAFT investment structure, see HERE
. The Author
Laura Anthony, Esq. Founding Partner Legal & Compliance, LLC Corporate, Securities and Going Public Attorneys 330 Clematis Street, Suite 217 West Palm Beach, FL 33401 Phone: 800-341-2684 – 561-514-0936 Fax: 561-514-0832 [email protected] www.LegalAndCompliance.com www.LawCast.com
The Winklevoss twins recently applied to the SEC to create a $20 million Exchange-traded Fund (ETF) backed by Bitcoin. Like their more famous project, ConnectU, this ETF might seem democratic I think the Winklevoss twins were rightly ridiculed for thinking they invented Facebook. However, they've made two prescient bets and deserve credit for those: (1) Getting Facebook stock instead of cash as part of their legal settlement; (2) Not only seeing bitcoin's future potential, but investing in it and sticking with it. The WINKLEVOSS brothers are long on Bitcoin. Trust Structure. The Trust is a common law trust, formed on , The Shares represent units of fractional undivided beneficial interest in and ownership of the Trust and are expected to be traded under the ticker symbol “[TICKER]” on the [EXCHANGE]. The legal structure for the WBT is for a trust to be created to hold bitcoins. WBT proposed to issue 10,000,000 Winklevoss Bitcoin Shares, which represented units of “fractional undivided beneficial interest in and ownership of the Trust,” with no par value (Math-Based Asset Services LLC, 2014). These shares were to be listed and traded on The Winklevoss Bitcoin Trust case This is not the first instance that Commissioner Hester dubbed the ‘Crypto mom’ has differed with the SEC's popular opinion. In 2018 she dissented the SEC’s decision to reject the proposed rule change that would allow Winklevoss Bitcoin Trust to list and trade their shares on Bats BZX Exchange, Inc.
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