Practice Areas & Industries: Sutherland Asbill & Brennan LLP

 





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Practice/Industry Group Overview

Exchange-traded product sponsors entering uncharted legal territory engage Sutherland attorneys to help chart the course to maximum profit potential.

Significant changes to financial services regulation have allowed for the increased development and growth of exchange-traded funds (ETFs). The same goes for related products, such as exchange-traded notes (ETNs) as well as physical and financial commodities-based exchange-traded vehicles (ETVs). Every day seems to present new offerings and structures. Sutherland guides exchange-traded product sponsors through complex and uncharted legal territory to find creative solutions that help clients bring novel products to market in an efficient and timely manner, while also maximizing profit potential.

Our highly-regarded practice advises clients in developing, launching and operating ETFs, ENTs and ETVs. Our clients include a commodity pool operator who developed and operates one of the first exchange-traded commodity pools investing primarily in energy-based futures contracts and swaps. We advised other clients on the development of ETFs to invest in cleared and uncleared credit default swaps, on leveraged and inverse leveraged commodity ETVs, as well as commodity-index ETVs, and on ETFs that invest in U.S. Treasury securities and foreign currencies. Each of these clients is, in its own way, breaking new ground and each requires innovative legal solutions to newly uncovered issues.

Not only do our clients benefit from the knowledge and strength of our ETF team, they can also draw on the relevant experience of our other practices. Sutherland attorneys are leaders in the field of federal securities law, are on top of the latest developments in the rapidly expanding derivatives arena, grasp the implications of intellectual property law on ETFs, and the effects of federal and state taxes for ETF and related financial products.

Why Sutherland
Full-spectrum ETF experience. Sutherland's attorneys advise clients on legal matters pertaining to the formation, registration, operation, distribution and restructuring of ETFs and other exchange-traded products.

Dodd-Frank focus. Sutherland lawyers are well-versed with the new requirements’ impact on collective investment entities and derivatives users under the Dodd-Frank Act. We closely monitor the rules, both proposed and final, the CFTC, SEC and other regulations under the Act.

Product launches and investment management. We counsel our clients on structuring and launching a new investment product as well as aiding them in effective management of existing ETFs. This includes compliance, industry and regulatory developments, distributions, derivatives and tax issues.

Board counsel. We serve as independent counsel to the independent directors or trustees of several mutual fund and BDC groups offering guidance about a variety of issues confronting directors or trustees.

Regulatory defense. Our team regularly represents clients confronted with investigations, enforcement actions and disciplinary proceedings brought by the CFTC, SEC and bank regulators. Our experience includes high-profile cases as well as more repetitive regulatory matters.

Intellectual property. In the financial sector, our intellectual property attorneys work closely with our Corporate Practice Group in preparing patent applications for ETF/ETV products and trading tools that currently exist in the marketplace.

Taxes and ETFs. Sutherland has a nationally recognized tax practice with attorneys who advise on virtually every area of federal, state and local taxes. We are leaders in balancing business objectives with the constraints of tax laws to find solutions that meet clients’ goals.

Nuts and Bolts
We represent the whole spectrum of participants in the investment management industry:

  • ETFs, ETNs, ETVs and other exchange-traded products
  • Mutual funds
  • Hedge funds
  • Private equity funds
  • Business development companies (BDCs)
  • Securitization vehicles
  • Separate accounts
  • 529 plans
  • Pension plans
  • Commodity pool operators
  • Commodity trading advisors
  • Investment advisers
  • Broker-dealers
  • Plan administrators
  • Transfer agents
  • Real estate funds

We provide full coverage of investment management industry issues:

  • Design and organization of investment vehicles and their sponsors
  • Counseling on securities law, tax law and other matters
  • Counseling boards of directors
  • Disclosure documents and regulatory filings
  • Defense of regulatory inquiries, investigations and enforcement actions
  • Organization and regulation of distribution systems
  • Design, production and evaluation (audit) of compliance systems
  • Mergers and acquisitions

We maintain close contact with the all relevant regulators:

  • Commodity Futures Trading Commission (CFTC)
  • Financial Industry Regulatory Authority (FINRA)
  • Industry associations
  • Internal Revenue Service (IRS)
  • Securities and Exchange Commission (SEC)
  • State securities, tax and insurance regulators

Sutherland is a member of the key organizations affecting the derivatives markets including:

  • International Swaps and Derivatives Association, Inc. (ISDA) and its key committees
  • Futures Industry Association (FIA)
  • Managed Funds Association (MFA)
  • Emerging Markets Trade Association (EMTA)
  • Loan & Syndicated Trading Association (LSTA)
  • Securities Industry & Financial Markets Association (SIFMA)
  • American Bar Association’s Committee on Derivatives and Futures Law of the Business Law Section

Take Action
As the growth in exchange-traded funds, notes and vehicles continues, it’s vital that sponsors have access to highly sophisticated legal thinking about ETFs. Sutherland attorneys are positioned on the cutting edge of developments in this segment of the investment world.

Selected Experience
Sutherland represents major ETF sponsor in launch of innovative financial products.
Sutherland advised an ETF sponsor on the development and launch of complex ETFs and innovative financial products.

Sutherland represents USCF's energy and metals ETFs.
Sutherland represented a series of exchange-traded commodity funds sponsored by United States Commodity Funds LLC in connection with initial and follow-on public offerings having an aggregate value in excess of $90 billion. Our representation also included fulfilling periodic SEC and CFTC federal reporting requirements and complying with disclosure requirements promulgated by the National Futures Association.

Sutherland counsels exchange-traded commodity pools.
Sutherland counsels exchange-traded commodity pools and commodity pool operators (CPOs) on all aspects of operations.


 
 
Articles Authored by Lawyers at this office:

The Division of Investment Management Clarifies Certain Positions Regarding the Applicability of Rules 3-09 and 4-08(g) of Regulation S-X to BDCs
Steven B. Boehm,Cynthia M. Krus,John J. Mahon,Harry S. Pangas, October 25, 2013
The U.S. Securities and Exchange Commission (“SEC”) Division of Investment Management recently published written guidance (see link below) on rules that require that certain financial information be included pertaining to unconsolidated subsidiaries to portfolio companies of business...

Payment Processors as CFPB "Chokepoints"
Keith J. Barnett,B. Knox Dobbins,Robert J. Pile,Marc A. Rawls,Lewis S. Wiener, October 11, 2013
This is how senior officials at the Consumer Financial Protection Bureau (CFPB or the Bureau) referred to payment processor Meracord, LLC and its owner and CEO upon the October 3, 2013 announcement of a consent judgment imposing a $1.376 million joint and several civil money penalty. The penalty,...

CFTC Issues No-Action Relief and Interpretive Guidance Related to SEFs
James M. Cain,Jacob Dweck,Daphne G. Frydman,Catherine M. Krupka,David T. McIndoe, October 03, 2013
As the date for compliance with swap execution facility (SEF) registration requirements approached, the Commodity Futures Trading Commission (the CFTC or Commission) issued a number of no-action letters and interpretive guidance regarding the obligations of market participants, intermediaries,...

The SEC Issues Formal Guidance Involving Financial Information Requirements for Certain Portfolio Companies of BDCs
Steven B. Boehm,Cynthia M. Krus,John J. Mahon,Harry S. Pangas, October 03, 2013
The U.S. Securities and Exchange Commission (SEC) Division of Investment Management recently published formal guidance (see link below) applying rules that require the inclusion of certain financial information on unconsolidated subsidiaries to portfolio companies of business development companies...

Acquisitions of Insurers by Private Equity Firms Under Heightened Regulatory Scrutiny
, September 20, 2013
In recent months, the New York Department of Financial Services (the DFS) has raised concerns over the perceived trend of private equity firms and other investment companies acquiring insurance companies, particularly those that write fixed and indexed annuity contracts.