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.
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.