Dan M. Berkovitz, Paul Grewal, Jake Chervinsky, Justin Slaughter, and I seem to be aligned on this one, based on this CoinDesk report.
"Regulation by Enforcement" might be a lawful way to run a federal agency, as Georgetown Law Professor Chris Brummer has explained. But that doesn't make it wise. "Arbitrary and capricious" is not a good look. The SEC is at its best when it proposes and adopts regulations, and issues orders, that comply with the Administrative Procedures Act, constitutional norms, and its own rules and standards. One can hope that the SEC will return to that mode. We can agree to disagree about the value of Bitcoin and other digital commodities. That's what a market is for.
"'Arbitrary and capricious' are not words that Gary Gensler should want to hear from federal courts, but that's what this unanimous panel of judges called his agency's judgment," said Pat Daugherty, a former SEC lawyer who now represents crypto clients with Foley & Lardner. "The SEC failed to explain why it could approve ETFs based on bitcoin futures but not an ETF based on bitcoin. Since like cases must be treated alike in America, the SEC lost."
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