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Bailey McCann, Opalesque New York: Yesterday, the Securities and Exchange Commission (SEC) announced that it will be lifting the ban on the use of derivatives by actively-managed exchange-traded funds (ETFs). In remarks at the ALI CLE 2012 Conference, Norm Champ Director, Division of Investment Management, U.S. Securities and Exchange Commission, said that although the division is still continuing its review of of the use of derivatives by funds, it will no longer defer consideration of exemptive requests under the Investment Company Act relating to actively-managed ETFs that make use of derivatives provided any such exemptive request includes two specific representations:

"(i) that the ETF’s board periodically will review and approve the ETF’s use of derivatives and how the ETF’s investment adviser assesses and manages risk with respect to the ETF’s use of derivatives; and (ii) that the ETF’s disclosure of its use of derivatives in its offering documents and periodic reports is consistent with relevant Commission and staff guidance."

Champ also noted that, "because of concerns regarding leveraged ETFs, however, we continue not to support new exemptive relief for such ETFs."

In a client alert......................

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