The annual trek to sunny South Florida is once again upon the ETF industry; a time to reflect, prognosticate and network with our colleagues at the Inside ETFs Conference. It is an interesting time in the industry; change continues to be the only constant, but it feels like it is developing more rapidly these days. Recent regulatory rulings, fee announcements, consolidation, assets flowing into fixed income products, and perhaps fundamental shifts in operational strategies can all pose challenges for the industry in the coming year.

At ETF Global’s fall ETP Forum, co-founders John Jacobs and Bibb Strench participated in a panel discussion on regulatory, industry and legal issues in the ETF industry. The discussion included developments surrounding product approval process, custom baskets, nontransparent ETFs, and the SEC’s “ETF Rule.”

Since 2014, direct indexing has been thought of as a potential threat over the ETF industry, but only recently has it become more prevalent. Direct indexing has many advantages that have come to the forefront in recent years: enhancements in portfolio construction, tax harvesting and the demand for passive products. Though these are not new ideas, reduction in transaction costs and technology advancements in creating and customizing indexes have led to the cost and operational efficiencies that have produced an increased focus on these products.

All signs point to the ETF industry searching for its next pivot point. To kick us off in 2018, we saw the continued trajectory toward new equity index ETF products first led by the roll-out of blockchain ETFs. However, this year seems to signal something entirely different as there has been little to no fanfare about new ETF products entering the space. Chatter in the industry has revolved primarily around deals between small ETF issuers and the absence of, or less show of strength by, large ETF issuers. Consolidation and slowing product innovation have been the bellwether signaling the maturity of many industries. Nevertheless, that may not be the case in this industry as recent off-the-record conversations amongst industry participants have centered around new ideas that are being developed by niche players funded by private equity. As seen in February at the annual Inside ETFs conference, the ETF industry seems to have refueled from its long upward journey in 2018 and is preparing to pivot towards a new trajectory that, nonetheless, is still pointed upwards.

Since 2014, direct indexing has been thought of as a potential threat over the ETF industry, but only recently has it become more prevalent. Direct indexing has many advantages that have come to the forefront in recent years: enhancements in portfolio construction, tax harvesting and the demand for passive products. Though these are not new ideas, reduction in transaction costs and technology advancements in creating and customizing indexes have led to the cost and operational efficiencies that have produced an increased focus on these products.

Why when the markets go down or become volatile do people blame ETFs, algorithms and HFT (high-frequency trading) when the real, and perhaps less obvious, culprit is speed of information?

Maybe it is human nature to build up success stories – ETFs – only to tear them down or to attack new technologies like algos and HFT that many people are familiar with but don’t actually understand or have access to.

Preparing for the Next Generation of Actively Managed ETFs

Many believe the SEC is poised to allow for the first time the next generation of actively managed ETFs (Next Gen ETFs), which differ from traditional ETFs in that they differ in how they keep the ETF’s strategy secret, how they support the arbitrage process and potential intellectual property (IP) protection, as discussed further below. If the SEC opens the floodgates, the impact on the ETF industry and the asset management space in general will be seismic because of the pent-up demand to offer existing actively managed investment strategies in an ETF wrapper, as evidenced by the dramatic current imbalance between actively managed ETFs (approximately $45.8 billion in AUM) and index ETFs (approximately $3.36 trillion in AUM).[1] A more normal equilibrium between the actively managed and index worlds may in large part be a zero-sum game, with accelerated outflows from mutual funds to ETFs.

BOARDS NEED TO START LAYING THE GROUNDWORK FOR OVERSEEING ETF LIQUIDITY RISK MANAGEMENT PROGRAMS

Exchange-traded fund (ETF) boards soon will be knee deep in reports and presentations designed to facilitate their compliance with the SEC’s new liquidity rule. Rule 22e-4 under the Investment Company Act of 1940 will require ETFs (and mutual funds) by December 1, 2018 (June 1, 2019 for ETF complexes with less than $1 billion of assets) to have a liquidity risk management (LRM) program and imposes comprehensive new portfolio liquidity responsibilities on boards when overseeing the LRM programs....

The recent conversation from the SEC referencing the competitiveness of the ETF industry points a finger at some of the challenges the industry faces but there remains plenty of opportunity. The large firms have scale, thus access to larger concentration of AUM; however, the smaller players have the entrepreneurial spirit and the strength of innovation, which built this industry and continues to live in its DNA. Innovation will keep the upstart ETF managers in this business and give them the potential to thrive.

INTERVIEW WITH RICK REDDING OF THE INDEX INDUSTRY ASSOCIATION

From time to time, ETF BILD has the opportunity to discuss a variety of issues and topics with prominent individuals in the ETF industry. In connection therewith, we seek comments from our readership resulting in a full and thoughtful discussion around the issues and topics vital to the ETF Industry.

Recently, ETF BILD sat down to speak with Rick Redding, CEO of the Index Industry Association (IIA). We talked about the state of indexing and various regulatory and business issues. Below is a summary of the highlights from that discussion.

ETF BILD Submits Comment Letter to SEC on ETF Rule

Dear Mr. Fields:

Thank you for the opportunity to submit this letter in response to the request for comments contained in the above-captioned release (the “Proposing Release”) whereby the U.S. Securities and Exchange Commission (“Commission”) proposes Rule 6c-11 (“Rule 6c-11”) under the Investment Company Act of 1940, as amended (the “1940 Act”). Rule 6c-11 would permit certain exchange-traded funds (“ETFs”) to operate without an exemptive order, subject to the conditions contained therein.

THREE ETF INDUSTRY PIONEERS DISCUSS INNOVATION – PAST AND FUTURE

ETF BILD was formed to stimulate discussion on the business of ETFs, and recently we had the pleasure of sitting down with three of the earliest innovators in the ETF industry, including our own ETF BILD co-founder John Jacobs, to capture their insights on what inspired them in the early days of ETFs and what is driving current and future innovation in the ETF industry.

ETF BILD Co-Founders Bibb Strench, John Jacobs, Richard Keary, and Justin Meise discussed converting mutual funds to ETFs and its implication on the industry at the Thompson Hine ETF & Alts Conference in New York City on September 18, 2019.

Other conference participants included NYSE, Natixis, JMP Securities, CBOE, and FS Investments.

SEC FINDS POTENTIAL ISSUES WITH ETFS THAT TRACK CUSTOMIZED INDEXES SPONSORED BY ENTITIES NOT REGISTERED AS INVESTMENT ADVISERS

Dalia Blass, Director of the SEC’s Division of Investment Management, in a recent speech questioned whether the provider of an index used by a single ETF should be registered as an investment adviser under the Investment Advisers Act of 1940.[i] Such indexes are sometimes called “bespoke indexes” because they are built at the request and to the specifications of a single sponsor in contrast to broad-based indexes used by asset managers and investors as benchmarks. Any SEC action on this issue could dramatically impact the burgeoning self-indexing segment of the ETF industry, including by adding another regulatory hurdle for new entrants.

THE ETF BILD PROJECT PRESENTS ITS FIRST LEADERSHIP DISCUSSION SESSION

ETF VETERANS DISCUSS IMPLICATIONS OF FINRA RULE 5250

From time to time, ETF BILD has the opportunity to discuss a variety of issues and topics with prominent individuals in the ETF industry. In connection therewith, we seek comments from our readership resulting in a full and thoughtful discussion around the issues and topics vital to the ETF Industry.

Recently, ETF BILD sat down to speak with three prominent veterans in the ETF space to capture their insights on FINRA Rule 5250, Payments for Market Making, and its implications.

FIRST ITEM ON YOUR 2018 “TO DO” LIST: SEND COMMENTS TO THE SEC ABOUT THE PROPOSED NEW ETF RULE

Ten years after it tried to adopt an ETF rule, the SEC has once again announced that it will propose a rule allowing a firm to enter the ETF business without first obtaining an exemptive order. Perhaps more importantly, the new ETF rule will level the regulatory playing field for all ETF sponsors.  While all of the ETF sponsors will be playing on the same field, it will be vitally important for the industry to provide the SEC with input through comment letters, meetings with its staff and other means so that level playing field has as few regulatory puddles and loose turf as possible. The SEC staff likely will look first to those exemptive orders when drafting the rule, which contain a number of granular restrictions and conditions that should be jettisoned to produce a more flexible rule that still protects ETF investors. The ETF industry also can urge the SEC to adopt a rule that clarifies what types of exchange-traded vehicles can call themselves “ETFs.”

WHY ETFs FAIL: POST LAUNCH

The ETF BILD Project is presenting this paper to create a dialogue and place emphasis on post-launch activities for new ETFs. The industry has done a commendable job of explaining how to launch an ETF; we want to delve into the important activities that are a must for creating a successful ETF after it has been launched.