SEC Adopts New ETF Rule and Related Form Amendments and Issues Exemptive Order

Sullivan & Cromwell LLP - October 7, 2019
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On September 26, 2019, the SEC unanimously adopted new rule 6c-11 and related form amendments under the Investment Company Act that are intended to modernize the regulatory framework for most ETFs.  Under the rule, ETFs that satisfy certain conditions will be permitted to operate within the scope of the Investment Company Act and participate in the market without applying for individual exemptive orders from the SEC.  The conditions in the rule are generally consistent with the conditions in existing exemptive orders.  Rule 6c-11 will replace hundreds of individualized exemptive orders and the SEC will rescind exemptive relief previously granted to ETFs that are able to rely on the rule.  In conjunction with new rule 6c-11, the SEC voted to issue an exemptive order granting a conditional exemption from section 11(d)(1) of the Securities Exchange Act and Exchange Act rules 10b-10, 15c1-5, 15c1-6 and 14e-5 for broker-dealers and certain other persons that engage in certain transactions in securities of ETFs that rely on the new rule and satisfy certain diversification requirements.