Exchange Traded Funds

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 a major exchange-traded fund (ETF) sponsor on the development and launch of various complex ETFs, such as commodities-based ETFs, and other innovative financial products that combine elements of mutual funds, commodity pools and ETFs.

Sutherland represents a series of energy, metal and agricultural ETFs.
Sutherland represented a series of exchange-traded commodity funds in connection with initial and follow-on public offerings having an aggregate value in excess of $90 billion. Our representation also included periodic reporting requirements under the Securities Act of 1933, the Securities Exchange Act of 1934 and complying with registration/position limits and on disclosure and other requirements promulgated by the CFTC, exchanges, FINRA and 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 their operations including structure, governance, initial public offerings and follow-on offerings, as well as compliance with requirements of the SEC, CFTC, NFA and the NYSE Arca, including those imposed as a result of the Dodd-Frank Act.

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§  “Diversity at Sutherland Asbill & Brennan LLP” to “Diversity at Eversheds Sutherland (US) LLP”

§  “Diversity” section:

o   The firm’s emphasis on diversity is reflected in numerous ways throughout the firm, such as the manner in which we recruit lawyers and other employees, our work-life policies and our professional service efforts. We have been recognized for our achievements in diversity.  More importantly, we understand the significant role a diverse community plays in the firm's growth and development.

§  “Our Awards and Recognitions” section:

o   Eversheds Sutherland (US) LLP continues to be recognized for its efforts to promote diversity in the workplace and in the legal profession. In 2016 we were named a “Best Place to Work for LGBT Equality,” having earned a perfect 100 score on the Human Rights Campaign’s Corporate Equality Index, and we also were ranked a Top 100 Firm for Minority Attorneys by Law360. In addition, the firm was awarded the Gold Standard Certification for the fifth consecutive year by the Women in Law Empowerment Forum.

§  “Our Commitment” section:

o   Eversheds Sutherland (US) LLP is committed to promoting diversity within the firm and in the legal profession.  We believe that diverse skills, knowledge and viewpoints make us a stronger, more productive law firm.  We hire and promote qualified lawyers and other professionals regardless of race, color, national origin, religion, disability, gender, gender identity or sexual orientation.  We understand that diversity enhances our value to clients by allowing us to staff our client teams with professionals who possess broad experiences and a spectrum of perspectives.

o   Eversheds Sutherland (US) LLP has a cross-office Diversity Committee with responsibility for supporting and enhancing our firm culture.  Our committee has helped coordinate and lead a number of efforts to advance diversity within our firm and the community. Affinity groups at the firm serve as support networks for attorneys of color; women lawyers; and gay, lesbian, bisexual and transgender attorneys.

o   We are committed to working with our clients as they pursue the common goal of a professional workplace where opportunity is available to all.

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