šŸ“£ Fidelity Ark Invest and Grayscale have so far adjusted proposals to omit plans of staking the fundsā€™ ETH holdings #ETHETFS

šŸ”¹As the industry tries to make sense of the evolving bullish signals around possible spot ether ETF approvals, thereā€™s no shame in needing a quick refresher.

šŸ”øThe Securities and Exchange Commission is expected to rule on such products by Thursday. With me so far?

šŸ”¹Amended filings indicate that prospective ether ETF issuers would not stake the ETH they hold ā€” a fund feature that segment observers long predicted the SEC to oppose.

ā™¦ļøThe SEC has declined to comment

šŸ”øAnalysts expect the SEC to decide on so-called 19b-4s ā€” proposed rule changes filed by exchanges on behalf of the issuers ā€” before weighing in on S-1 registration statements for each of the planned funds. There could be a delay between the two actions, both of which are needed for the products to hit the market.

ā™¦ļøGetting up to speed on accelerated movement

šŸ”¹Various industry watchers had voiced pessimism of SEC spot ether ETF approval until yesterday, when Bloomberg analysts upped their odds of SEC approval from 25% to 75%.

šŸ”øTo be fair, Coinbase research analyst David Han had said last week he thought the market might be ā€œunderestimating the timing and oddsā€ of US ETH fund approvals.

šŸ”¹One person familiar with the matter indeed told Blockworks on Monday: ā€œConversations are progressing.ā€

ā™¦ļøSpot ether ETF decision week just got a bit more interesting

šŸ”øIndeed, the SEC reportedly asked the exchanges which spot ether ETFs would list to update their 19b-4 documents. SEC staff told the exchanges Monday that it was leaning toward approving the products, Barronā€™s reported, citing ā€œpeople familiar with the matter.ā€

šŸ”¹Jon Ammons, a partner in Reed Smithā€™s on-chain crypto a#nd digital asset group, told Blockworks that the SEC has sometimes asked for 11th-hour modifications if a particular issue comes up late in the process.

šŸ”øā€œBut I would say it is rare for them to sit on a known issue and then ask for changes at the last minute,ā€ he added.

šŸ”¹The SECā€™s possible change of heart could be linked to recent political developments just months ahead of the presidential election. With former president Donald Trump essentially pledged to be a pro-crypto president, Democrats are likely feeling additional pressure to potentially pivot their stance on the issue, Galaxy CEO Mike Novogratz said last week.

ā™¦ļøBitcoin may stay in a ā€˜consolidation phaseā€™ until US election: Novogratz

šŸ”øTwelve Democratic senators joined Republicans last week to pass a resolution to overturn the SECā€™s Staff Accounting Bulletin (SAB) 121.

šŸ”¹Rashan Colbert, head of policy at dYdX Trading, said he expects the House to continue that momentum by passing the Financial Innovation and Technology for the 21st Century Act with a bipartisan majority this week.

ā™¦ļøAnd then thereā€™s this about-face from the SEC.

šŸ”øā€œThose whoā€™ve been deeply involved in crypto policy, who attempt to think about them from first principles, realize that these are not fundamentally partisan issues,ā€ Colbert told Blockworks. ā€œSome are attempting to make them so, but theyā€™re not.ā€

ā™¦ļøIssuers remove staking-related language

šŸ”¹Fidelity Investments amended the registration statement, or S-1, for its Fidelity Ethereum Fund Tuesday morning.

šŸ”øThe filing signaled the firm intends to not stake the ether it holds. Staking ether is the process of depositing ETH to help secure the Ethereum blockchain ā€” and earning yield on that ETH for doing so.

šŸ”¹Fidelityā€™s adjustment came after Ark Invest and 21Shares, which previously proposed for their planned fund to stake the fundā€™s ETH, also took out such language in a May 10 filing.

šŸ”øOh yeah, and NYSE Arca filed a 19b-4 on Tuesday on behalf of Grayscale for its Ethereum Mini Trust.

šŸ”¹ā€œNeither the trust, nor the sponsor, nor the custodian, nor any other person associated with the trust will, directly or indirectly, engage in action where any portion of the trustā€™s ether becomes subject to Ethereum proof-of-stake validation or is used to earn additional ether or generate income or other earnings,ā€ the document states.

šŸ”øMore similar 19b-4 and S-1 amendments are expected ahead of the SECā€™s ruling.

šŸ”¹Sumit Roy, a senior analyst at ETF.com, told Blockworks in March that it would be hard to imagine the SEC allowing potential ether ETFs to stake their holdings.

šŸ”øā€œStaking is a feature that makes ether and other proof-of-stake cryptocurrencies more like securities, which the SEC wonā€™t look favorably upon,ā€ Roy noted at the time.

ā™¦ļøSo what does this mean?

šŸ”¹Coinbaseā€™s Han sought to explain the possible reason for the SECā€™s previous lack of engagement with prospective ether ETF issuers in a Monday X post.

šŸ”øWhile staking would have made ether ETFs different than the already-approved bitcoin ETFs, he noted many details ā€” like custodian responsibilities, net asset value calculation and benchmark rates, for example ā€” are similar to those for the BTC funds.

šŸ”¹ā€œIf thereā€™s no staking, itā€™s not clear to me why spot ETH ETFs would be mechanically different from spot BTC ETFs,ā€ Han added. ā€œHence, the relative silence on S-1 communication isnā€™t particularly surprising to me, since itā€™s not clear what would need updating.ā€

šŸ”ø21Shares co-founder made a similar argument in a March interview with Blockworks co-founder Jason Yanowitz ā€” pointing out the similarities between the approved bitcoin products and the ether ETF proposals.

šŸ”¹ā€œTheyā€™re the same structure, the same custodians, the same disclosures,ā€ Snyder said at the time. ā€œItā€™s very internally consistent. That means thereā€™s less to look at.ā€

ā™¦ļø21Shares president ā€˜less bearishā€™ than Cathie Wood on ether ETF approval

šŸ”øStill, the SEC could deny the spot ether ETF applications, particularly given the regulatorā€™s historical hesitation to clearly label ETH as a security or a commodity.

šŸ”¹ā€œThe SEC could therefore say that ETH ETPs should not be Commodity-Based Trust Shares,ā€ Ammons said. ā€œBut this would likely ignite the jurisdictional tug-of-war between the SEC and CFTC over the classification of ether.ā€

šŸ”øSEC Chair Gary Gensler said in a Jan. 10 statement ā€” the day the agency approved US spot bitcoin ETFs ā€” that the decision was ā€œcabined to ETPs holding one non-security commodity, bitcoin.ā€

šŸ”¹Jake Chervinsky, chief legal officer at crypto fund Variant, noted that the SEC approving spot ether ETFs would likely mean they are admitting unstaked ETH is not a security.

šŸ”øā€œThat would be a major policy move from a commission that has consistently refused to acknowledge any asset other than BTC as a non-security commodity,ā€ he wrote on X. ā€œHave we earned it?ā€

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