Financial Services Quarterly Report - Second Quarter 2019: SEC Grants Exemptive Relief to Operate Non-Fully Transparent Active ETFs

Dechert LLP

Dechert LLP

The U.S. Securities and Exchange Commission on May 20, 2019 issued the first exemptive order permitting the operation of actively managed exchange-traded funds that do not disclose their full holdings on a daily basis (Precidian Order).1 The issuance of the Precidian Order is a significant development for active managers that may be interested in launching ETFs but have been deterred by the requirement to make their holdings available to the market each day.

This article: provides background regarding ETFs and exemptive relief issued by the SEC to date; summarizes the alternatives to daily holdings disclosure contemplated by the Precidian Order and other recent proposals; describes certain other features of the Precidian Order that differ from current ETF exemptive relief; and outlines certain additional steps in the ETF launch process.


ETFs are pooled investment vehicles with characteristics of both open-end investment companies (or mutual funds) and closed-end funds. Specifically, shares of an ETF trade on a national securities exchange at market prices rather than NAV, but can also be purchased and redeemed directly at NAV in “creation unit” aggregations by large financial institutions referred to as “authorized participants.”2 Shares of an ETF are not, however, individually redeemable. Given this structure, ETFs do not satisfy certain requirements of the Investment Company Act of 1940, and as a result currently require exemptive relief in order to operate as such.3

One key feature of the ETF structure is the “arbitrage mechanism” that generally allows shares of an ETF to trade at prices at or close to NAV. For example, where an ETF’s shares are trading at a discount, an authorized participant can purchase the shares necessary to form a creation unit and redeem those shares directly from the ETF, receiving the higher NAV and realizing a profit. The reverse occurs where an ETF is trading at a premium (i.e., the authorized participant purchases a creation unit directly from the ETF at NAV and sells the shares at the higher market price). In either case, the authorized participant’s transaction activity tends to move the market price of shares closer to NAV.

Historically, exemptive orders to operate actively managed ETFs (Active ETFs) have required daily holdings disclosure in order to facilitate this arbitrage mechanism.4 However, such daily disclosure can present challenges, including concerns about third parties replicating an Active ETF’s investment strategy and/or trading ahead of the ETF. Accordingly, over the past decade several applicants have filed requests for exemptive relief to operate Active ETFs that do not disclose their full holdings daily. In evaluating these requests, the SEC and its staff have focused on, among other things, the alternative to daily holdings disclosure proposed by applicants and whether that alternative arbitrage mechanism could facilitate effective arbitrage.5

The Precidian Order and Other Proposed Alternatives to Daily Holdings Disclosure

The alternatives proposed by applicants to date generally fall into two broad categories: (i) disclosure of a verified intraday indicative value (VIIV) with creations and redemptions through a confidential account (Precidian Model); or (ii) disclosure of a basket of securities or other instruments designed to perform similarly to the ETF’s portfolio (Tracking Portfolio Models).

  • Precidian Model.6 Under the Precidian Model, an ETF will disseminate its VIIV to the market every second throughout the trading day in order to provide information about the value of the ETF’s shares. The VIIV will differ from intraday indicative values for existing ETFs, in that the VIIV will be disclosed more frequently (every second rather than every 15 seconds) and the ETF and its investment adviser will be responsible for the calculation. The ETF will employ both a primary and secondary calculation engine to provide two independent calculations, as well as a pricing verification agent to compare these calculations in real time. In addition, an ETF will be required to adopt policies and procedures governing VIIV calculation and dissemination.

    An ETF operating under the Precidian Model will generally issue and redeem shares in exchange for a basket of securities that corresponds pro rata to the ETF’s portfolio holdings (creation basket). Authorized participants will effect creations and redemptions through a confidential brokerage account with an appointed agent/representative (AP Representative). The AP Representative, but not the authorized participant, will be given the names and quantities of instruments that constitute a creation basket each day. Authorized participants will instruct the AP Representative to buy or sell positions in the portfolio instruments to permit creations or redemptions, as applicable.
  • Tracking Portfolio Models.7 The Tracking Portfolio Models vary from application to application,8 but in general contemplate disclosure of a basket of securities (or an index) that is expected to perform similarly to the ETF’s portfolio, and that could therefore be used by market participants to value and hedge their positions in ETF shares. The degree of expected overlap between a tracking portfolio and the ETF’s portfolio varies by application, as does the amount of information to be disclosed to the market regarding the relationship between the tracking portfolio and actual portfolio (e.g., tracking error, overlap). In general, the tracking portfolio will also constitute the ETF’s creation basket on a given day.

As noted above, the Precidian Order is the only order granted to date permitting operation of Active ETFs that do not disclose their full holdings daily. Other applications remain pending, with recent filing activity for many of the applications.9

Other Features of the Precidian Order

In addition to the arbitrage mechanism described above, there are certain other notable differences between the terms and conditions of the Precidian Order and the exemptive relief for existing Active ETFs. These include the following:10

  • Limitations on Investments. An Active ETF operating in reliance on the Precidian Order may invest only in certain securities that trade on a U.S. exchange contemporaneously with the ETF’s shares, which the Precidian Notice indicates will “further facilitate arbitrage and address” concerns about reliance on dissemination of intraday value as an arbitrage mechanism. The types of U.S. exchange-listed securities in which an ETF may invest include, for example: common stocks; American depositary receipts; shares of other ETFs; and futures (provided the ETF would be permitted to invest directly in the reference asset). In addition, an ETF may not: hold short positions; borrow for investment purposes; or purchase a security that is an illiquid investment (as defined in Rule 22e-4(a)(8) under the 1940 Act) at the time of investment.
  • Board Oversight. The Precidian Order imposes specific obligations on the Active ETF’s investment adviser and board of directors/trustees relating to oversight of the arbitrage mechanism. To the extent that predetermined premium/discount or bid/ask spread thresholds are exceeded, the adviser must promptly call a meeting of the board to consider the continuing viability of the ETF and appropriate remedial measures.
  • Disclosure. An Active ETF operating in reliance on the Precidian Order must provide certain disclosures to investors about the differences between the ETF and traditional ETFs. These disclosures include, for example, a specified legend to be included in a prominent location on the outside cover page of the ETF’s prospectus, on the ETF’s website and in its marketing materials. The legend will highlight that the ETF “is different from traditional ETFs” and that the lack of daily holdings disclosure could “create additional risks,” including increased trading costs and larger premiums and discounts.
  • Compliance with Regulation Fair Disclosure. Although ETFs are not subject to Regulation Fair Disclosure, an Active ETF operating in reliance on the Precidian Order is required to comply with Regulation Fair Disclosure as if it applied to the ETF.

Additional Pre-Launch Steps

While the Precidian Order provides exemptive relief under the 1940 Act, there are additional regulatory steps required before launch of an Active ETF relying on that order.

First, an Active ETF will need to go through the exchange listing process. Because Active ETFs operating under the Precidian Model are not currently contemplated by the rules of the relevant exchanges, this will require an exchange rule change pursuant to Rule 19b-4 under the Securities Exchange Act of 1934. The Rule 19b-4 process generally takes several months, and the staff of the SEC’s Division of Trading and Markets may impose further limitations on an ETF’s investments as part of this process. This process is underway with respect to certain Active ETFs.11

Second, given that the ETF structure is not contemplated by the Exchange Act, ETFs generally seek relief from certain Exchange Act sections and rules.12 Although this relief is largely provided in a series of “class” letters, the class relief in general contemplates daily disclosure of portfolio holdings. Accordingly, Active ETFs relying on the Precidian Order will likely require separate relief.13


As a result of the issuance of the Precidian Order, the ETF industry is now significantly closer to seeing an Active ETF that does not disclose its full holdings daily come to market. This will continue to be an area for active managers to watch as further developments occur.


1) See Precidian ETFs Trust, et al., SEC Rel. No. IC-33477 (May 20, 2019). The SEC had previously issued relief with respect to “exchange-traded managed funds,” which are hybrids of ETFs and mutual funds that do not disclose their full holdings daily and trade on an exchange at prices based on net asset value (NAV). See Eaton Vance Management, et al., SEC Rel. No. IC-31333 (Nov. 6, 2014).

2) The size of a creation unit varies by ETF but is often 25,000 shares or more. In addition, many ETFs transact with authorized participants on an in-kind basis, such that authorized participants deliver and receive a basket of securities and other instruments when purchasing and redeeming shares, respectively.

3) In June 2018, the SEC proposed Rule 6c-11, which would allow most ETFs to operate without first obtaining 1940 Act exemptive relief. See Exchange-Traded Funds, SEC Rel. No. IC-33140 (June 28, 2018) (Rule 6c-11 Proposing Release). The rule has not been adopted to date, and as proposed would require full disclosure of holdings on a daily basis. Accordingly, it would not cover operation of ETFs such as those that are the subject of this article.

4) See Rule 6c-11 Proposing Release (“One mechanism that facilitates the arbitrage mechanism is daily portfolio transparency. Portfolio transparency provides authorized participants and other market participants with an important tool to facilitate valuing the ETF’s portfolio on an intraday basis, which, in turn, would enable them to assess whether arbitrage opportunities exist. It also provides information necessary to hedge the ETF’s portfolio.”). Exemptive orders relating to ETFs that seek to track indices generally do not require daily holdings disclosure, except for certain ETFs (e.g., an ETF that seeks to track an index for which its investment adviser is the index provider).

5) See Precidian ETFs Trust, et al., SEC Rel. No. IC-31300 (Oct. 21, 2014) (indicating an intent to deny an earlier iteration of the approach proposed by Precidian Funds LLC (Precidian) on the basis that the “[a]pplicants ha[d] not provided an adequate substitute for portfolio transparency such that the proposed ETFs would consistently trade at or close to NAV”).

6) See Precidian ETFs Trust, et al., SEC Rel. No. IC-33440 (Apr. 8, 2019) (Precidian Notice).

7) See, e.g., In the Matter of Blue Tractor ETF Trust, et al. (File No. 812-14625) (last amended June 20, 2019); In the Matter of T. Rowe Price Associates, Inc., et al. (File No. 812-14214) (last amended June 13, 2019); In the Matter of Fidelity Beach Street Trust, et al. (File No. 812-14364) (last amended June 7, 2019); and In the Matter of Natixis Advisors, L.P., et al. (File No. 812-14870) (last amended May 1, 2019). See also In the Matter of Eaton Vance Exchange-Traded Fund Trust (File No. 812-15003) (filed Feb. 20, 2019) (proposing an approach that would combine disclosure of an ETF's "NAV Reference Portfolio” with the ability of arbitrageurs to enter into special-purpose total return swap transactions with the ETF).

8) This article does not discuss all such applications that have been filed, the terms of which may vary significantly from one another.

9) In addition to the Tracking Portfolio Models filings, certain applicants that have entered into license agreements with Precidian have filed “short-form” applications that incorporate by reference the terms and conditions of the Precidian Order.

10) See Precidian Notice. Note that many of the pending applications contain similar terms and conditions.

11) The SEC has issued a notice of a proposed rule change filed by Cboe BZX Exchange, Inc. to adopt Rule 14.11(k), which would provide the general listing framework (e.g., trading hours, trading halts, suspension/delisting) for ETFs using the Precidian Model. This rule would still require a separate rule change filing for any ETF to be listed pursuant to the rule. See Notice of Filing of a Proposed Rule Change to Adopt BZX Rule 14.11(k) to Permit the Listing and Trading of Managed Portfolio Shares, SEC Rel. No. 34-86157 (June 19, 2019). The SEC also has issued a notice of Cboe’s proposed rule change to list and trade shares of two ETFs under proposed Rule 14.11(k). See Notice of Filing of a Proposed Rule Change to List and Trade Shares of the American Century Focused Dynamic Growth ETF and American Century Focused Large Cap Value ETF Under Currently Proposed Rule 14.11(k), SEC Rel. No. 34-86155 (June 19, 2019).

12) These include Section 11(d)(1), Rule 11d1-2, Rule 10b-10, Rules 15c1-5 and 15c1-6, Rules 101 and 102 of Regulation M, Rule 10b-17, and Rule 14e-5.

13) Several Active ETFs that would rely on the Precidian Order have already obtained relief under Rule 14e-5. See Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to W. John McGuire, Esq. (May 22, 2019).

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