Edward Baer is counsel in Ropes & Gray’s investment management practice 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.
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 a major asset management industry trade association on ETF issues, including in connection with commenting on the SEC’s proposed ETF rule, engaging with the SEC on 1934 Act issues for ETFs, participating in a Congressional roundtable on ETF issues, and commenting on the Treasury Department’s 2017 Asset Management Report.
- Filing exemptive applications on behalf of several ETF clients relating to custom creation and redemption baskets. The approach to governing the custom basket process set forth in the SEC’s proposed ETF Rule is substantially similar to the approach outlined by Ropes in these exemptive applications.
- Advising several established asset managers in implementing best practices for ETF basket construction.
- Assisting an ETF sponsor 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 a large venture capital firm in connection with investments in simple agreements for future tokens (SAFTs).
- Advising private fund sponsors on cryptocurrency fund structuring, custody, valuation and investment issues.
- Assisting clients in negotiating cryptocurrency custody agreements.
- Assisting several investment advisers in reviewing personal trading policies to account for employee investments in cryptocurrencies.
- 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)
- 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)