Edward Baer
Counsel
Edward Baer is counsel in Ropes & Gray’s asset management group in San Francisco. His practice focuses on advising exchange-traded funds (ETFs) and other investment companies, as well as their sponsors and their independent directors/trustees. He has deep experience in operational, governance, compliance, regulatory, capital markets and business issues related to ETFs and other investment companies and asset managers. He also has experience advising clients on investments in cryptocurrencies, including bitcoin, ether and other coins and tokens, initial coin offerings (ICOs) and simple agreements for future tokens (SAFTs), cryptocurrency fund formation and related trading, custody and valuation issues.
Prior to joining Ropes & Gray in 2016, Ed was managing director and senior counsel for the world’s largest asset manager, and also served as Chief Legal Officer for the world’s largest ETF complex. In that role, he oversaw the full range of legal and compliance matters for over 300 ETFs, including index and active 1940 Act ETFs and non-1940 Act physical metals and futures-based commodities ETFs, with assets under management of approximately $800 billion at the time. Ed and his team were responsible for all legal aspects of the operation of the ETF complex, including:
- registration of ETFs under the 1933 Act and 1940 Act;
- fund governance and board matters;
- new ETF product development, including novel products such as a 1940 Act-registered commodity index ETF, a frontier markets ETF, currency and interest rate hedged ETFs and “smart beta” ETFs;
- ETF exemptive relief and exchange listing and trading relief;
- ETF capital markets, trading and creation and redemption activities; and
- ETF distribution, marketing and index licensing.
Ed also advised on acquisitions and other strategic business matters, global valuation issues, and regulatory affairs, as well as on numerous other legal and compliance matters.
Prior to his in-house role, he held positions at two large law firms where he focused his practice on counseling clients on issues arising under the 1940 Act and advising mutual funds on organization, registration, operations, governance and regulatory matters.
Experience
Ed has extensive experience working on all aspects of the ETF industry. Some of Ed’s recent ETF representations include:
- Acting as outside counsel for the ETF Forum of the Asset Management Group of the Securities Industry and Financial Markets Association (SIFMA), a major asset management industry trade association. Working closely with staff and representatives of SIFMA member firms, Ed advises the Committee on a full range of ETF issues, including custom baskets and other issues arising under the ETF Rule, exchange listing rules and SEC trading rules. Ed has also assisted SIFMA in preparing comment letters on a variety of issues, including the ETF Rule, the proposed fund of funds, exemptive application, valuation, and ETF exchange listing rules. In addition, Ed has assisted SIFMA in engaging with the SEC on 1934 Act ETF listing and trading issues, participated in a Congressional roundtable on ETF and index fund issues, and prepared comments on the Treasury Department’s 2017 Asset Management Report. Ed has also represented SIFMA AMG and the Investment Company Institute (ICI) in its engagement with the SEC staff relating to issues arising under the fund of funds rule, and in developing an industry-standard form of fund of funds investment agreement.
- Advising a leading global provider of ETFs in preparing and filing an application with the SEC requesting novel exemptive relief to build its own proprietary semi-transparent active ETF model.
- Filing exemptive applications on behalf of several ETF clients relating to custom creation and redemption baskets. The approach to governing the custom basket process incorporated in the ETF Rule is substantially similar to the approach outlined by Ropes in these exemptive applications.
- Assisting a large asset management firm in developing and launching their first ETFs, including advising on structuring, distribution, creation/redemption, capital markets and compliance issues.
- Advising a number of ETF sponsors in implementing policies and procedures for ETF basket construction, including custom basket policies.
- Assisting several ETF sponsors in developing written guidelines for executing ETF rebalances using creation and redemption baskets.
- Preparing a comprehensive ETF compliance policy for a large asset manager that added ETFs to its existing fund complex. In addition, Ed helped revise the compliance policies of the asset manager and its affiliated broker-dealer to highlight the unique policy impacts raised by the addition of ETFs to the fund complex.
- Advising the independent trustees of an ETF complex in connection with the acquisition the ETF sponsor and with the establishment and organization of a new ETF family.
- Assisting a sponsor in seeking to launch a novel cryptocurrency ETP.
Ed also has significant experience advising clients on cryptocurrency issues, including:
- Advising several large venture capital firms in connection with investments in simple agreements for future tokens (SAFTs).
- Advising private fund sponsors on cryptocurrency fund structuring, regulatory compliance, custody, valuation and investment issues.
- Assisting institutional investors in negotiating cryptocurrency custody agreements.
- Assisting several investment advisers in reviewing personal trading policies to account for employee investments in cryptocurrencies.
- Assisting a blockchain trade association in advocating for clear, consistent regulation of cryptocurrencies under U.S. law.
Publications
- Co-author, “Converting Mutual Funds Into ETFs,” Ropes & Gray Alert (January 6, 2021)
- Contributor, “Mutual Fund to ETF Conversions,” Ropes & Gray Podcast (January 5, 2021)
- Contributor, “Fund-of-Funds Final Rule & Its Impact on ETFs,” Ropes & Gray Podcast (December 15, 2020)
- Contributor, “SEC Updates Framework for Fund Fair Valuation Practices,” Ropes & Gray Alert (December 9, 2020)
- Contributor, “What's Happening Now: Current Developments for ETFs as the ETF Rule’s Compliance Date Approaches,” Ropes & Gray Podcast (November 11, 2020)
- Contributor, “SEC Adopts Rule 18f-4 Concerning Registered Funds’ Use of Derivatives,” Ropes & Gray Alert (November 6, 2020)
- Contributor, “Cryptocurrency Custody Considerations,” Ropes & Gray Podcast (November 11, 2020)
- Contributor, “SEC Adopts Changes for Fund of Funds Arrangements,” Ropes & Gray Alert (October 14, 2020)
- Quoted, “ETF Compliance With 6c-11 in Three…Two…One,” BoardIQ (October 6, 2020)
- Quoted, “ETF Compliance With 6c-11 in Three…Two…One,” BoardIQ (September 29, 2020)
- Co-author, “Recent ETF-Related Developments,” Ropes & Gray Alert (July 1, 2020)
- Quoted, “Will mutual funds get a second wind... as ETFs?” MarketWatch (April 18, 2020)
- Quoted, “ETFs, Liquidity Rule to Dominate 2020 CCO Agendas,” Ignites (December 27, 2019)
- Quoted, “ETFs Have Had an Explosive Decade. They Could Keep Growing, According to One Firm.,” Barron’s (December 3, 2019)
- Co-author, “Flash Analysis: Making Sense of the Non- and Semi-Transparent Active ETF Models,” Ropes & Gray Alert (November 19, 2019)
- Co-author, “2019 Final ETF Rulemaking – Summary and Analysis,” Ropes & Gray Article (October 15, 2019)
- Featured, “Converting A Traditional Open-End Fund Into An ETF,” ETF.com (October 1, 2019)
- Co-author, “Flash Analysis: The Final ETF Rule,” Ropes & Gray Alert (September 27, 2019)
- Quoted, “Will the SEC’s New ETF Rule Benefit Investors?,” Barron’s (September 26, 2019)
- Co-author, “Converting Traditional Open-End Funds into ETFs,” The Investment Lawyer (July 2019)
- Co-author, “SEC Framework for Determining Whether a Digital Asset is a Security: First Analysis,” Lexis Practice Advisor (July 12, 2019)
- Quoted, “Non-transparent ETF wins final SEC nod; some see rapid shift for compliance in funds, trading,” Reuters (May 21, 2019)
- Quoted, “American Century first out of gate with Precidian ActiveShares plans,” Fund Action (May 21, 2019)
- Co-author, “Converting Traditional Open-End Funds into ETFs,” Ropes & Gray Alert (May 8, 2019)
- Co-author, “SEC Publishes Framework for Investment Contract Analysis of Digital Assets and Issues First No-Action Letter for a Token Sale,” Ropes & Gray Alert (April 30, 2019)
- Quoted, “Signs of potential change as SEC fund-of-funds proposal draws firestorm of criticism,” Compliance Reporter (March 28, 2019)
- Co-author, “What to Know About SEC Fund-of-Funds Proposal,” BoardIQ (February 26, 2019)
- Quoted, “Market Turbulence Spurs Demand for Fledgling Active ETFs,” The Wall Street Journal (February 8, 2019)
- Co-author, “Potential Changes to Fund of Funds Arrangements,” Harvard Law School Forum on Corporate Governance and Financial Regulation (February 1, 2019)
- Quoted, “With SEC proposal, affiliated funds of funds face a choice,” Compliance Reporter (January 11, 2019)
- Quoted, “SEC Draft Fund-of-Funds Rule Favors ETFs, Throws Wrench in Liquidity Programs,” Ignites (January 8, 2019)
- Co-author, “SEC Proposes Changes for Fund of Funds Arrangements,” Ropes & Gray Alert (January 3, 2019)
- Quoted, “New ETF Rules Will Expand What Funds Can Own,” Barron’s (December 21, 2018)
- Quoted, “SEC Paves Simpler Path for Fund-of-Funds Products,” Ignites (December 20, 2018)
- Quoted, “SEC proposes new fund of funds rule, eliminating exemptive orders,” Compliance Reporter (December 19, 2018)
- Quoted, “In ETF boom's wake, SEC targets new and small funds for exams,” Compliance Reporter (December 12, 2018)
- Quoted, “Fund Industry Splits on Plan to Drop Intraday ETF Valuations,” Compliance Reporter (October 26, 2018)
- Quoted, “Proposed ETF Disclosure Changes Could Cost Small Shops Big,” Ignites (September 20, 2018)
- Author, “INSIGHT: The SEC’s Proposed ETF Rule Creates Fintech Opportunities,” Bloomberg BNA’s Banking Daily (September 18, 2018)
- Quoted, “ETF Directors More Likely to Serve on Multiple Boards,” BoardIQ (August 14, 2018)
- Quoted, “Custom baskets could help re-align ETF market,” International Financial Law Review (July 19, 2018)
- Co-author, “2018 Proposed ETF Rulemaking – Summary and Analysis,” Ropes & Gray Alert (July 10, 2018)
- Co-author, “Proposed ETF Rule Seeks to Level the Playing Field for ETF Sponsors and Simplify the Process of Launching and Operating ETFs,” Ropes & Gray Alert (July 3, 2018)
- Quoted, “SEC Moves to Streamline Exchange-Traded Fund Launches,” The Wall Street Journal (June 28, 2018)
- Quoted, “American Century readies non-transparent active growth ETF,” Fund Action (June 19, 2018)
- Quoted, “Crypto fund obstacles linger after SEC security status clarification,” Compliance Reporter (June 19, 2018)
- Co-author, “SEC Director Hinman’s Remarks Confirm that Ether and Bitcoin Are Not Securities,” Ropes & Gray Alert (June 18, 2018)
- Quoted, “SEC Targets Fall for ETF Rule Proposal,” Ignites (March 29, 2018)
- Quoted, “A Federal Court Just Ruled That the CFTC Can Regulate Crypto — But the Agency Isn't Alone,” The New York Law Journal (March 8, 2018)
- Quoted, “US judge rules virtual currencies are commodities,” HFMCompliance (March 7, 2018)
- Quoted, “CFTC can regulate cryptocurrencies as commodities, court rules,” Pensions & Investments (March 7, 2018)
- Quoted, “Virtual currencies to be regulated as commodities,” The Fintech Times (March 6, 2018)
- Quoted, “Bitcoin Falls After U.S. Judge Rules Cryptocurrencies a Commodity,” Investing.com (March 7, 2018)
- Author, “Opinion: Three Tips for Directors New to ETF Oversight,” BoardIQ (February 13, 2018)
- Quoted, “EU Weighs ICO Risk-Reward To Ease Capital Markets Pain,” Law360 (September 15, 2017)
- Quoted, “SEC Report Sheds Light On Blockchain Token Status,” International Financial Law Review (August 22, 2017)
- Quoted, “A Plot Twist in the ETF Growth Story,” Bloomberg Briefs: ETFs (February 14, 2017)
- Quoted, “Inside ETFs: Non-Transparent ETFs Likely Under Trump,” Fund Action (January 26, 2017)
- Co-author, “SEC Streamlines Actively Managed ETF Listings,” Compliance Reporter (August 29, 2016)
- Quoted, “SEC setting its sights on ETFs in 2016,” Pensions & Investments (February 11, 2016)
- Quoted, “Ropes & Gray adds funds lawyer from BlackRock in San Francisco” IFLR1000 (January 23, 2016)
- Quoted, “iShares CLO Joins Ropes & Gray,” Compliance Reporter (January 22, 2016)
Presentations
- Speaker, “Fund of Funds Rulemaking,” SIFMA AMG/ICI Update (December 18, 2020)
- Speaker, “Final SEC Fair Valuation Rulemaking,” SIFMA AMG Webinar (December 16, 2020)
- Speaker, “Final Fund of Funds Rulemaking,” SIFMA AMG Webinar (October 21, 2020)
- Speaker, “ETF Regulation Unpacked,” SIFMA Asset Management Group Operations Member Meeting, New York, NY (November 13, 2019)
- Panelist, “ETF Regulatory Update,” Institutional Investor Legal Forum Fall Roundtable, Washington, DC (October 24, 2019)
- Moderator, “SEC Update: Fund of Funds Rule, ETFs,” Institutional Investor Legal Forum (July 12, 2019)
- Speaker, “Examining the Impact of Regulatory Developments on ETFs and the ETF Capital Markets,” ETF Global Markets Roundtable (May 21, 2019)
- Speaker, “Basics of Mutual Funds and Other Registered Investment Companies 2019: Current Trends and Developments Related to Funds,” PLI Conference (May 6, 2019)
- Panelist, “So, You Want to Launch an ETF?” Inside ETFs Conference, Hollywood, FL (February 10, 2019)
- Panelist, “Leveling the Playing Field for ETFs: Impact of the SEC’s Proposed Rule,” Institutional Investor Legal Forum Fall Roundtable, Washington, DC (October 30, 2018)
- Speaker, “Cryptocurrencies: Key Regulatory and Enforcement Issues,” Ropes & Gray Webinar (July 23, 2018)
- Panelist, “ETFs: Leveling the Playing Field,” Institutional Investor Legal Forum, Los Angeles, CA (July 18, 2018)
- Speaker, “Basics of Mutual Funds and Other Registered Investment Companies 2018,” Practising Law Institute, New York, NY (May 14, 2018)
- Panelist, “Playing in the Blockchain and Cryptocurrency Sandbox: Impact on Your Business, Valuation, Custody and Operational Demands,” MFA West 2018, Santa Barbara, CA (May 7, 2018)
- Panelist, “How to Launch (& Grow) an ETF in 2018: 3 Approaches to a Common Problem – Unanswered Questions," Inside ETFs Webinar (February 7, 2018)
- Panelist, "How to Launch (& Grow) an ETF in 2018: 3 Approaches to a Common Problem," Inside ETFs Conference, Hollywood, FL (January 21, 2018)
- Moderator, “ETF Trading in US and EU Markets: Apples and Pears?” 2017 ICI Global Capital Markets Conference, London, UK (December 5, 2017)
- Speaker, “Blockchain and Cryptocurrency Update,” PECFOA Member Meeting on Blockchain/Cryptocurrencies, San Francisco & Palo Alto, CA (November 2017)
- Panelist, “New ETF Product Approvals and Bringing New ETFs to Market,” 2017 ETF Trading and Market Structure Conference, New York, NY (June 7, 2017)
- Speaker, “Basics of Mutual Funds and Other Registered Investment Companies 2017,” Practising Law Institute, New York, NY (April 20, 2017)
- Panelist: “A Crash Course in Active ETFs: Why They Might Save Your Clients in 2017,” Inside ETFs Conference, Hollywood, FL (January 25, 2017)
- Panelist: “Lay of the Land: Building a Best Practices Roadmap for 2016 and Beyond,” Houlihan Lokey’s Valuation Best Practices for Fund Financial Executives, San Francisco, CA (June 15, 2016)
- Moderator: “What is in Your Bond Fund’s Portfolio? How Changes in the Fixed Income Markets Have Impacted Bond Fund Investments,” University of Maryland Center for Financial Policy/Mutual Fund Directors Forum Conference on Changing Markets: Challenges For Fixed Income Funds Conference, Washington, DC (April 20, 2016)
- Panelist: “Basics of Mutual Funds and Other Registered Investment Companies,” Practising Law Institute, New York, NY (2012-2016)
Education
- JD, Rutgers School of Law at Newark, 1994
- BA, New York University, 1990
Admissions / Qualifications
Qualifications
- California, 2017
- District of Columbia, 1996
- New York, 1995
Awards
- Legal 500 (2020)
- The New York Law Journal Innovation Award (2020) (Firm award)