We secured a decision from the DC Circuit reversing the SEC’s refusal to allow listing and trading of Grayscale Bitcoin Trust

On August 29, 2023, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit granted the petition of Davis Polk’s client Grayscale Investments, LLC and vacated an order of the U.S. Securities and Exchange Commission denying approval to list and trade shares of Grayscale Bitcoin Trust as an exchange-traded product on NYSE Arca, Inc.

The Grayscale Bitcoin Trust is the world’s largest bitcoin investment fund, holding 3.4% of all outstanding bitcoin, with $12.4 billion in assets under management. 

In the opinion authored by Judge Neomi Rao and joined by Chief Judge Sri Srinivasan and Senior Judge Harry T. Edwards, the court determined that the SEC’s order was arbitrary and capricious under the Administrative Procedure Act. In doing so, the court accepted arguments that Davis Polk had developed on Grayscale’s behalf, first in comment letters submitted to the SEC in the administrative process and then in briefing to the DC Circuit on Grayscale’s petition for review of the Commission’s order.

The Davis Polk team included litigation partner Paul S. Mishkin and counsel Daniel J. Schwartz, capital markets partner Joseph A. Hall and financial institutions partner Zachary J. Zweihorn. Members of the Davis Polk team are based in the New York and Washington DC offices.