SEC Issues Preliminary Denial Notices for Two Nontransparent Actively Managed ETF Applications

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1 November 2014 Practice Group: Investment Management SEC Issues Preliminary Denial Notices for Two U.S. Investment Management Alert By Stacy L. Fuller, Mark D. Perlow, and Timothy A. Bekkers Summary In 2008, the Securities and Exchange Commission ( SEC or Commission ) approved the first actively managed exchange-traded funds ( ETFs ). 1 The exemptive orders for those ETFs and all active ETF exemptive orders since have required daily portfolio transparency. 2 On October 21, 2014, the Commission issued notices ( Notices ) on exemptive applications filed by two separate sets of applicants (the Applicants ) seeking relief from the Investment Company Act of 1940, as amended ( 1940 Act ), to launch nontransparent active exchange-traded funds ( NTA ETFs ). 3 In the Notices, the Commission states that it has preliminarily determined to deny the requested exemptions. This Alert describes the NTA ETFs proposed by the Applicants, summarizes the Notices, and analyzes significant aspects of the Notices. The Proposed NTA ETFs As noted above, to date, active ETFs have provided daily portfolio transparency meaning daily disclosure, prior to the opening of trading in their shares, of the ETF s portfolio holdings that will be included in the calculation of net asset value ( NAV ) that trading day. 4 The NTA ETFs proposed by the Applicants would not provide daily portfolio transparency; rather, they would generally only provide the same disclosures as existing mutual funds do, with one exception -- the publication of their intraday indicative value ( IIV ) every 15 seconds during the trading day. The IIV is an estimated per-share value of an ETF s portfolio, and all ETFs currently provide for the calculation and publication of their IIV every 15 seconds during the trading day. The calculation uses the last-available market quotation of the ETF s portfolio holdings. The Applicants argued that the IIV could substitute for the daily portfolio transparency currently provided by active ETFs. Their argument was based on the premise that, over time, market makers would discern the relationship between an NTA ETF s IIV and market movements, as well as the relationship between the IIV and various financial instruments. Thus, after a few days, the IIV would provide market makers with enough information about the NTA ETF portfolio to deconstruct the portfolio, construct an appropriate hedging vehicle, and conduct arbitrage transactions in the NTA ETFs shares. The availability of an appropriate hedging vehicle for an ETF s shares is important to market makers because it allows them to hedge their exposure to the ETF, which allows them to make a tighter market in the ETF s shares. To conduct redemptions in kind, (as ETFs typically do,) without disclosing the NTA ETFs portfolios, and thereby preserve the tax efficiencies of the ETF structure, the Applicants proposed to employ a blind trust for each investor transacting directly with an NTA ETF.

2 The blind trust would receive securities in kind in connection with redemptions, then liquidate them and pay cash to the investor. By using the blind trust, the NTA ETF could make in-kind distributions of securities without disclosing its portfolio and without recognizing capital gains under relevant tax laws. 5 Each of the Applicants also proposed a fail-safe mechanism, which had not previously been proposed for usage by an ETF and which was designed to ensure that individual investors could redeem the NTA ETFs shares at NAV, similar to the redemption rights of mutual fund shareholders. In particular, one set of Applicants proposed to honor all retail shareholder redemptions on a daily basis, 6 while the other proposed to honor all shareholder redemptions for 15 days after shares traded at a discount of 5% or more for 10 consecutive trading days. Both sets of Applicants proposed to impose redemptions fees of up to 2% on such redemptions to protect shareholders against potentially dilutive transaction costs incurred by the funds in connection with them. The Applicants also acknowledged that investors would likely pay brokerage commissions in addition to such redemption fees. The SEC Notices In the Notices, the SEC said, the Commission preliminarily believes that the specific features proposed by the Applicants that would cause the proposed ETFs to operate without transparency fall far short of providing a suitable alternative to the arbitrage activity in ETF shares that is crucial to helping keep the market price of current ETF shares at or close to the NAV per share of the ETF. Accordingly, the Commission preliminarily concluded that the exemptive relief requested should be denied. In reaching this conclusion, the Commission focused on what it described as deficiencies in the IIV as a primary pricing signal for potential arbitrage transactions. 7 More specifically, the Commission stated that IIVs are calculated by third parties subject only to standards of commercial reasonableness and susceptible to frequent errors. 8 The Commission also stated that NTA ETFs themselves take no responsibility for their IIVs, since an IIV is not a real-time NAV. As such, the Commission said, IIVs are not subject to meaningful standards and are potentially arbitrary and inconsistent, making it difficult for arbitrageurs to discern the relationship between them, on the one hand, and market movements and changes in the value of financial instruments, on the other hand, as necessary to construct a hedging vehicle and conduct arbitrage. Further, the Commission stated, because IIVs are based on the last traded price of the NTA ETF s portfolio holdings and the price of such holdings can fluctuate dramatically within 15 seconds (the intervals at which the proposed IIV would be disseminated), IIVs reflect stale data, which can lead to poor executions and thereby discourage arbitrage transactions. 9 These problems would be exacerbated, the Commission said, in the case of illiquid and foreign securities, which may be fair valued by the NTA ETF for purposes of calculating NAV but not fair valued for the IIV, and in the case of stressed (or volatile) markets. Further, the Commission observed that, in meetings with its staff, market makers had expressed some skepticism that the IIV could work as an arbitrage signal for active strategies that require frequent portfolio turnover; yet the Applicants proposed active strategies that would normally have significant portfolio turnover. The Commission also found each Applicant s fail-safe mechanism potentially deficient in light of what the Commission described as the significant redemption fees and brokerage commissions attendant to redemptions. Further, the Commission stated: even if Applicants were able to address the Commission s concerns about the [fail-safe mechanism], this would 2

3 not address the Commission s more fundamental concerns about Applicants proposal. In short, the Commission stated, the fail-safe mechanism does not cure the inherently flawed structure of the proposed ETFs here. Analysis The Notices are noteworthy as public statements of the Commission s preliminar[y] intent to deny the requested exemptions. Typically, if the SEC staff intends not to support (or the Commission intends to deny) an exemptive application, the SEC staff calls the applicant and suggests that the application be withdrawn. The applicant then typically withdraws the application. Here, it appears that the Commission sought to use the Notices to make a public statement about the policies that will guide its consideration of exemptive applications for NTA ETFs, and such policies appear to be based on the foundational principle that all fund shareholders be treated equitably when buying and selling their fund shares. According to the Commission, this principle derives from section 22(d) of the 1940 Act and rule 22c-1 thereunder. Section 22(d) generally requires open-ended funds to sell their shares only at the price set forth in their prospectus, and rule 22c-1, among other things, requires such funds to employ forward pricing. The Commission stated that, in granting [ETF] exemptions to date, the Commission has required that a mechanism exist to ensure that ETF shares would trade at a price that is at or close to the NAV. In short, the Commission suggested that shareholders will not be deemed to be treated equitably in an ETF structure unless all shareholders can buy and sell shares at approximately the same price. The Commission s elevation of this principle explains the Notices focus on the proposed NTA ETFs IIV. Although all existing ETFs are required to provide for the calculation and publication of an IIV, the Notices articulate a critique of the IIV as the primary signal for an arbitrage opportunity. In doing so, the Commission noted that, in practice, arbitrageurs do not use the IIV for that purpose. Rather, the Commission stated, they primarily use the disclosed ETF portfolio to signal an arbitrage opportunity, and as there would be no disclosed portfolio here or other disclosures that the SEC believes would keep the market price and NAV close, the proposal fell short of what is necessary to obtain the requested exemptions. The Notices should not be read overbroadly, however, as they do not appear to signal that the Commission will decline to approve all NTA ETFs. Indeed, other NTA ETF proposals currently before the Commission propose different arbitrage mechanisms, and the Commission has not ruled out considering those on a case-by-case basis. Additional insight into the Commission s views on NTA ETF structures may come in connection with those rulings and may still be provided in connection with the Notices, if either of the Applicants requests a hearing on its Notice. 10 Any hearing request must be received by the Commission by November 17, Absent such a request, the SEC will issue orders denying the applications. As of the time of this Alert s publication, no hearing request had been publicly filed. 3

4 Authors: Stacy L. Fuller Mark D. Perlow Timothy A. Bekkers Anchorage Austin Beijing Berlin Boston Brisbane Brussels Charleston Charlotte Chicago Dallas Doha Dubai Fort Worth Frankfurt Harrisburg Hong Kong Houston London Los Angeles Melbourne Miami Milan Moscow Newark New York Orange County Palo Alto Paris Perth Pittsburgh Portland Raleigh Research Triangle Park San Francisco São Paulo Seattle Seoul Shanghai Singapore Spokane Sydney Taipei Tokyo Warsaw Washington, D.C. Wilmington K&L Gates comprises more than 2,000 lawyers globally who practice in fully integrated offices located on five continents. The firm represents leading multinational corporations, growth and middle-market companies, capital markets participants and entrepreneurs in every major industry group as well as public sector entities, educational institutions, philanthropic organizations and individuals. For more information about K&L Gates or its locations, practices and registrations, visit This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer K&L Gates LLP. All Rights Reserved. 1 E.g., PowerShares Capital Management LLC, et al., Investment Company Act Release Nos (Feb. 1, 2008) (notice) and (Feb. 27, 2008) (order). 2 See, e.g., Grail Advisors, LLC, et al., Investment Company Act Release Nos (Dec. 23, 2008) (notice) and (Jan. 16, 2009) (order) at condition 8 ( On each Business Day, before the commencement of trading in Shares on the Fund s Listing Exchange, the Fund will disclose on its Website the identities and quantities of the Portfolio Securities held by the Fund that will form the basis for the Fund s calculation of NAV at the end of the Business Day ); and Calamos Advisors LLC, et al., Investment Company Act Release Nos (July 24, 2013) (notice) and (Aug. 20, 2013) (order) at condition A.4. 3 Precidian ETFs Trust, et al., Investment Company Act Release No (Oct. 21, 2014) and Spruce ETF Trust, et al., Investment Company Act Release No (Oct. 21, 2014). In a closely related development, the SEC also rejected the rule change proposed by the NYSE Arca, Inc., under Rule 19b-4 of the Securities Exchange Act of 1934, as amended, to list the NTA ETFs proposed by Precidian. 4 Due to fund accounting practices, all trades executed through and including the prior trading day must be included in the disclosure. 5 Applicants proposed for the NTA ETFs to sell creation units of shares for cash as in-kind creations (unlike inkind redemptions) provide no tax benefits. 6 Precidian defined a retail investor as a beneficial owner that is an individual, trust exclusively for the benefit of an individual or group of related family members, or a tax deferred retirement plan directed by an individual. 7 In support of its conclusion, the Commission cited various sources, including many books and articles and comment letters that the Commission received in connection with the Actively Managed ETF Concept Release, Investment Company Act Release No (Nov. 8, 2011), including comment letters submitted by Applicants themselves, which called into question the value of the IIV. 8 The Commission noted that an IIV that is sufficiently accurate and precise may present a different set of problems, as it may enable third parties to reverse engineer the [ETF] portfolio. 4

5 9 The Commission noted that disseminating IIVs more frequently could present a different set of problems, as it may enable third parties to reverse engineer the [ETF] portfolio. 10 The Commission is likely to regard only the Applicants as having standing to request a hearing on their respective Notices. See, e.g., Vanguard Index Funds, et al., Investment Company Act Release Nos (July 12, 2000) (notice) and (Dec. 12, 2000) (order). 5