SEC To Weigh Use Of Derivatives In ETFs

March 25, 2010

The SEC says it's time to look under the hood of proposed exchange-traded funds that may use derivatives, putting on hold some filings by firms hoping to join the red-hot ETF market.

The Securities and Exchange Commission said Thursday it’s looking into whether more protections are needed surrounding the use of derivatives, such as swaps, by mutual funds, exchange-traded funds and other investment companies in a move that’s likely to slow the launching of some ETFs.

The SEC decision affects new and existing “exemptive relief” filings that investment companies make when they are planning to launch ETFs. The commission said it would defer consideration of such filings until it completes the review. Specifically, the review will apply to actively managed and leveraged ETFs, particularly those that plan to use swaps and other derivative instruments to achieve investment objectives. But it won't affect existing ETFs or any other types of fund applications, the SEC said.

"It's appropriate to engage in a more thorough review of the use of derivatives by ETFs and mutual funds given the questions surrounding the risks associated with the derivative instruments underlying many funds," SEC Chairman Mary Schapiro said in a press release.

A number of firms have filed for exemptive relief in recent weeks. Among them, Baltimore-based Legg Mason left open the possibility of using derivatives in a filing with the SEC on Feb. 22 to launch five actively managed ETFs. In similar paperwork dated March 5, Boston-based Eaton Vance said it wouldn’t make use of instruments like swaps. J.P. Morgan, in two filings dated March 10, said it might use derivatives for a group of passive ETFs, but didn’t mention their use in another request covering a family of actively managed ETFs.

"Although the use of derivatives by funds is not a new phenomenon, we want to be sure our regulatory protections keep up with the increasing complexity of these instruments and how they are used by fund managers," said Andrew Donohue, director of the SEC's Division of Investment Management. "This is the right time to take a step back and rethink those protections."

The SEC said its inquiry would focus on a number of issues, including whether funds that rely heavily on derivatives—particularly those that seek to provide leveraged returns—maintain and implement risk management measures that reflect the nature and volume of their derivatives use.

It’s also examining whether existing prospectus disclosures adequately address the particular risks created by derivatives.

Exemptive relief filings grant the ETF firms exception to sections of the Investment Act of 1940 and are just the first step in the path to launching ETFs. It often takes at least six to 12 months from the date of the initial filing for a company’s first ETF to hit the market.


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