ETF Practice

Our lawyers have extensive experience advising clients on exchange-traded fund (ETF) formation and the development of new products. We counsel a variety of financial firms on entering the ETF business, including those creating their own ETF trusts, those launching ETFs using third-party platforms and those becoming sub-advisers to ETFs offered by existing fund complexes. We guide ETF sponsors through complex and evolving legal issues and help facilitate the efficient and timely launch of their ETFs. Once a new fund is launched, we advise on a broad range of issues including regulatory filings and compliance and board matters. We have developed close relationships with leading ETF service providers necessary to operate an ETF, including administrators, Authorized Participants (APs), custodian banks, exchanges, index providers and market makers. Our experience with these service providers helps ensure a coordinated and effective approach to the legal and other services necessary to offer ETFs. We also work with boards of directors on all aspects of establishing and overseeing ETFs.

ETF Reg Insights

SEC Poised to Permit ActiveShares ETF: First Non-Transparent Actively Managed ETF
ETF Reg Insights
April 11, 2019

Preparing for the Next Generation of Actively Managed ETFs
ETF Reg Insights
January 29, 2019

SEC’s Proposed ETF Rule Removes Some Conditions Compared to Prior Exemptive Orders, But Adds Others
ETF Update
August 1, 2018

Proposed ETF Rule Comes with Widely Expected Conditions and Some Notable Twists
ETF Update
July 09, 2018

SEC to Consider ETF Rule Proposal at June 28, 2018 Open Meeting
ETF Update
June 22, 2018

ETF Organization

In addition to providing the legal counsel necessary to organize an ETF, we assist clients with planning and structuring their businesses. We help them evaluate their options and provide guidance on the business decision to create a stand-alone ETF trust or offer an ETF on a third-party platform. We have extensive experience drafting and negotiating the full range of documents for new ETFs including prospectuses, exemptive and 19b-4 applications, initial board materials and vendor agreements. We advise financial firms on navigating “first-of-its-kind” ETFs through the approval process at the SEC, other regulatory agencies and the exchanges. In counseling our ETF clients on new products, we collaborate with other Thompson Hine attorneys who focus on securities market, taxation, intellectual property and licensing issues. We also reach out to key industry participants, including market makers and authorized participants, who help vet the product and trading issues relating to the purchase and sale of ETF shares.

Ongoing Counseling

After the launch of an ETF, we provide an array of compliance and regulatory support services to our investment management clients. We advise on reporting, disclosure obligations, trading and brokerage practices, valuation matters, anti-money-laundering rules, Regulation S-P (privacy policies), proxy voting, distribution practices, advertising limitations, website compliance, and relevant tax and ERISA matters.

Investment Management Group

Our ETF practice is part of the firm’s Investment Management group, which services all types of investment funds (both registered and unregistered) and the investment advisers, banks, brokerage firms and other financial institutions that offer these funds and other products. Our deep understanding of the investment strategies related to different types of investment vehicles enables us to provide clients with comprehensive guidance on how to adapt strategies to an ETF and the product’s numerous regulatory restrictions and limits.