[Federal Register Volume 85, Number 124 (Friday, June 26, 2020)]
[Notices]
[Pages 38461-38467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13764]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-89110; File No. SR-NASDAQ-2020-032]
Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Adopt Nasdaq Rule 5750 To List and Trade Proxy Portfolio Shares
June 22, 2020.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on June 11, 2020, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to adopt Nasdaq Rule 5750 to permit the
listing and trading of Proxy Portfolio Shares, which are securities
issued by an actively managed open-end management investment company.
The text of the proposed rule change is available on the Exchange's
website at http://nasdaq.cchwallstreet.com, at the principal office of
the Exchange, and at the Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to add new Nasdaq Rule 5750 for the purpose
of permitting the listing and trading, or trading pursuant to unlisted
trading privileges, of Proxy Portfolio Shares, which are securities
issued by an actively managed open-end management investment
company.\3\ This proposed rule change to add new Nasdaq Rule 5750 is
substantially similar to the recently approved rule change by Cboe BZX
Exchange, Inc. (``Cboe BZX'') to adopt rule 14.11(m).\4\
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\3\ The basis of this proposal are several applications for
exemptive relief that were filed with the Commission and for which
public notice was issued on November 14, 2019 and subsequent order
granting certain exemptive relief to, among others, Fidelity
Management & Research Company and FMR Co., Inc., Fidelity Beach
Street Trust, and Fidelity Distributors Corporation (File No. 812-
14364), issued on December 10, 2019 (the ``Application,''
``Notice,'' and ``Order,'' respectively, and, collectively, the
``Exemptive Order''). See Investment Company Act Release Nos. 33683
and 33712. The Order specifically notes that ``granting the
requested exemptions is appropriate in and consistent with the
public interest and consistent with the protection of investors and
the purposes fairly intended by the policy and provisions of the
Act. It is further found that the terms of the proposed
transactions, including the consideration to be paid or received,
are reasonable and fair and do not involve overreaching on the part
of any person concerned, and that the proposed transactions are
consistent with the policy of each registered investment company
concerned and with the general purposes of the Act.'' The Exchange
notes that it also referred to the application for exemptive relief
orders (collectively, with the Application, the ``Proxy
Applications'') and notices thereof (collectively, with the Notice,
the ``Proxy Notices'') for T. Rowe Price Associates, Inc. and T.
Rowe Price Equity Series, Inc. (File No. 812-14214 and Investment
Company Act Release Nos. 33685 and 33713), Natixis ETF Trust II, et
al. (File No. 812-14870 and Investment Company Act Release Nos.
33684 and 33711), Blue Tractor ETF Trust and Blue Tractor Group, LLC
(File No. 812-14625 and Investment Company Act Release Nos. 33682
and 33710), and Gabelli ETFs Trust, et al. (File No. 812-15036 and
Investment Company Act Release Nos. 33681 and 33708). While there
are certain differences between the applications, the Exchange
believes that each would qualify as Proxy Portfolio Shares under
proposed Nasdaq Rule 5750.
\4\ See Securities Exchange Act Release No. 88887 (May 15,
2020), 85 FR 30990 (May 21, 2020) (SR-CboeBZX-2019-107) (Notice of
Filing of Amendment No. 5 and Order Granting Accelerated Approval of
a Proposed Rule Change, as Modified by Amendment No. 5, to Adopt
Rule 14.11(m), Tracking Fund Shares, and to List and Trade Shares of
the Fidelity Blue Chip Value ETF, Fidelity Blue Chip Growth ETF, and
Fidelity New Millennium ETF).
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Proposed Rule 5750
Proposed Nasdaq Rule 5750(c)(1) provides that the term ``Proxy
Portfolio Share'' means a security that: (i) Represents an interest in
an investment company registered under the Investment Company Act of
1940 (``Investment Company'') organized as an open-end management
investment company, that invests in a portfolio of securities selected
by the Investment Company's investment adviser consistent with the
Investment Company's investment objectives and policies; (ii) is issued
in a specified aggregate minimum number in return for a deposit of
specified Proxy Basket securities and/or a cash amount with a value
equal to the next determined net asset value; (iii) when aggregated in
the same specified minimum number, may be redeemed at a holder's
request, which holder will be paid specified Proxy Basket securities
and/or a cash amount with a value equal to the next determined net
asset value; and (iv) the portfolio holdings for which are disclosed
within at least 60 days following the end of every fiscal quarter.
Proposed Nasdaq Rule 5750(a) provides that the Exchange will
consider for trading, whether by listing or pursuant to unlisted
trading privileges, Proxy Portfolio Shares that meet the criteria of
Nasdaq Rule 5750.
Proposed Nasdaq Rule 5750(b) provides that Nasdaq Rule 5750 is
applicable only to Proxy Portfolio Shares and that, except to the
extent inconsistent with this Rule, or unless the context otherwise
requires, the rules and procedures of the Exchange's Board shall be
applicable to the trading on the Exchange of such securities. Proposed
Nasdaq Rule 5750(b) provides further that Proxy Portfolio Shares are
included within the definition of ``security'' or ``securities'' as
such terms are used in the Rules of the Exchange.
Proposed Nasdaq Rule 5750(b)(1)-(3) provides that the Exchange will
file
[[Page 38462]]
separate proposals under Section 19(b) of the Act before the listing
and trading of a series of Proxy Portfolio Shares; that transactions in
Proxy Portfolio Shares will occur throughout the Exchange's trading
hours.; and the minimum price variation for quoting and entry of orders
in Proxy Portfolio Shares is $0.01.
Proposed Nasdaq Rule 5750(b)(4) provides that the Exchange will
implement and maintain written surveillance procedures for Proxy
Portfolio Shares. As part of these surveillance procedures, the
Investment Company's investment adviser will upon request by the
Exchange or FINRA, on behalf of the Exchange, make available to the
Exchange or FINRA, the daily Fund Portfolio of each series of Proxy
Portfolio Shares.
Proposed Nasdaq Rule 5750(b)(5) provides that if the investment
adviser to the Investment Company issuing Proxy Portfolio Shares is
registered as a broker-dealer or is affiliated with a broker-dealer,
such investment adviser will erect and maintain a ``fire wall'' between
the investment adviser and personnel of the broker-dealer or broker-
dealer affiliate, as applicable, with respect to access to information
concerning the composition of and/or changes to the Fund Portfolio and/
or the Proxy Basket. Any person related to the investment adviser or
Investment Company who makes decisions pertaining to the Investment
Company's Fund Portfolio and/or the Proxy Basket or has access to
nonpublic information regarding the Fund Portfolio and/or the Proxy
Basket or changes thereto must be subject to procedures designed to
prevent the use and dissemination of material nonpublic information
regarding the Fund Portfolio and/or the Proxy Basket or changes
thereto.
Proposed Nasdaq Rule 5750(b)(6) provides that any person or entity,
including a custodian, Reporting Authority, distributor, or
administrator, who has access to nonpublic information regarding the
Fund Portfolio or the Proxy Basket or changes thereto, must be subject
to procedures designed to prevent the use and dissemination of material
nonpublic information regarding the applicable Fund Portfolio or the
Proxy Basket or changes thereto. Moreover, if any such person or entity
is registered as a broker-dealer or affiliated with a broker-dealer,
such person or entity will erect and maintain a ``fire wall'' between
the person or entity and the broker-dealer with respect to access to
information concerning the composition and/or changes to such Fund
Portfolio or Proxy Basket.
Proposed Nasdaq Rule 5750(c)(2) provides that the term ``Fund
Portfolio'' means the identities and quantities of the securities and
other assets held by the Investment Company that will form the basis
for the Investment Company's calculation of net asset value at the end
of the business day.
Proposed Nasdaq Rule 5750(c)(3) provides that the term ``Reporting
Authority'' in respect of a particular series of Proxy Portfolio Shares
means the Exchange, an institution, or a reporting service designated
by the Exchange or by the exchange that lists a particular series of
Proxy Portfolio Shares (if the Exchange is trading such series pursuant
to unlisted trading privileges) as the official source for calculating
and reporting information relating to such series, including, but not
limited to, the Proxy Basket; the Fund Portfolio; the amount of any
cash distribution to holders of Proxy Portfolio Shares, net asset
value, or other information relating to the issuance, redemption or
trading of Proxy Portfolio Shares. A series of Proxy Portfolio Shares
may have more than one Reporting Authority, each having different
functions.
Proposed Nasdaq Rule 5750(c)(4) provides that the term ``Normal
Market Conditions'' includes, but is not limited to, the absence of
trading halts in the applicable financial markets generally;
operational issues (e.g., systems failure) causing dissemination of
inaccurate market information; or force majeure type events such as
natural or manmade disaster, act of God, armed conflict, act of
terrorism, riot or labor disruption or any similar intervening
circumstance.
Proposed Nasdaq Rule 5750(c)(5) provides that the term ``Proxy
Basket'' means the identities and quantities of the securities and
other assets included in a basket that is designed to closely track the
daily performance of the Fund Portfolio, as provided in the exemptive
relief under the Investment Company Act of 1940 (the ``1940 Act'')
applicable to a series of Proxy Portfolio Shares. The website for each
series of Proxy Portfolio Shares shall disclose the following
information regarding the Proxy Basket as required under this Rule
5750, to the extent applicable: (i) Ticker symbol; (ii) CUSIP or other
identifier; (iii) Description of holding; (iv) Quantity of each
security or other asset held; and (v) Percentage weight of the holding
in the portfolio.
Proposed Nasdaq Rule 5750(d)(1) provides the initial listing
criteria for a series of Proxy Portfolio Shares, which include the
following: (A) Each series of Proxy Portfolio Shares will be listed and
traded on the Exchange subject to application of the following initial
listing criteria: (i) For each series, the Exchange will establish a
minimum number of Proxy Portfolio Shares required to be outstanding at
the time of commencement of trading on the Exchange; (ii) the Exchange
will obtain a representation from the issuer of each series of Proxy
Portfolio Shares that the net asset value per share for the series will
be calculated daily and that each of the following will be made
available to all market participants at the same time when disclosed:
The net asset value, the Proxy Basket, and the Fund Portfolio; and
(iii) all Proxy Portfolio Shares shall have a stated investment
objective, which shall be adhered to under Normal Market Conditions.
Proposed Nasdaq Rule 5750(d)(2) provides that each series of Proxy
Portfolio Shares will be listed and traded on the Exchange subject to
application of the following continued listing criteria: (i) The Proxy
Basket will be publicly disseminated at least once daily and will be
made available to all market participants at the same time; (ii) the
Fund Portfolio will at a minimum be publicly disclosed within at least
60 days following the end of every fiscal quarter and will be made
available to all market participants at the same time; (iii) upon
termination of an Investment Company, the Exchange requires that Proxy
Portfolio Shares issued in connection with such entity be removed from
listing on the Exchange; and (iv) voting rights shall be as set forth
in the applicable Investment Company prospectus or Statement of
Additional Information (``SAI'').
Additionally, proposed Nasdaq Rule 5750(d)(2)(C) provides that the
Exchange will consider the suspension of trading in and will commence
delisting proceedings for a series of Proxy Portfolio Shares pursuant
to Nasdaq Rule 5800 under any of the following circumstances: (a) If,
following the initial twelve-month period after commencement of trading
on the Exchange of a series of Proxy Portfolio Shares, there are fewer
than 50 beneficial holders of the series of Proxy Portfolio Shares; (b)
if either the Proxy Basket or Fund Portfolio is not made available to
all market participants at the same time; (c) if the Investment Company
issuing the Proxy Portfolio Shares has failed to file any filings
required by the Commission or if the Exchange is aware that the
Investment Company is not in compliance with the conditions of any
exemptive order or no-action relief granted by the Commission or the
Commission Staff under the 1940 Act to the Investment Company with
respect to the series of
[[Page 38463]]
Proxy Portfolio Shares; (d) if any of the requirements set forth in
this rule are not continuously maintained; (e) if any of the applicable
Continued Listing Representations for the issue of Proxy Portfolio
Shares are not continuously met; or (f) if such other event shall occur
or condition exists which, in the opinion of the Exchange, makes
further dealings on the Exchange inadvisable.
Proposed Nasdaq Rule 5750(d)(2)(D) provides that (a) the Exchange
may consider all relevant factors in exercising its discretion to halt
trading in a series of Proxy Portfolio Shares. Trading may be halted
because of market conditions or for reasons that, in the view of the
Exchange, make trading in the series of Proxy Portfolio Shares
inadvisable. These may include: (i) The extent to which trading is not
occurring in the securities and/or the financial instruments composing
the Proxy Basket or Fund Portfolio; or (ii) whether other unusual
conditions or circumstances detrimental to the maintenance of a fair
and orderly market are present; and (b) if the Exchange becomes aware
that one of the following is not being made available to all market
participants at the same time: The net asset value, the Proxy Basket,
or the Fund Portfolio with respect to a series of Proxy Portfolio
Shares, then the Exchange will halt trading in such series until such
time as the net asset value, the Proxy Basket, or the Fund Portfolio is
available to all market participants, as applicable; and (c) if the
Exchange becomes aware that one of the following is not being made
available to all market participants at the same time: The net asset
value, the Proxy Basket, or the Fund Portfolio with respect to a series
of Proxy Portfolio Shares, then the Exchange will halt trading in such
series until such time as the net asset value, the Proxy Basket, or the
Fund Portfolio is available to all market participants, as applicable.
Proposed Nasdaq Rule 5750(e) provides that neither the Exchange,
the Reporting Authority, when the Exchange is acting in the capacity of
a Reporting Authority, nor any agent of the Exchange shall have any
liability for damages, claims, losses or expenses caused by any errors,
omissions, or delays in calculating or disseminating any current
portfolio value; the current value of the portfolio of securities
required to be deposited to the open-end management investment company
in connection with issuance of Proxy Portfolio Shares; the amount of
any dividend equivalent payment or cash distribution to holders of
Proxy Portfolio Shares; net asset value; or other information relating
to the purchase, redemption, or trading of Proxy Portfolio Shares,
resulting from any negligent act or omission by the Exchange, the
Reporting Authority when the Exchange is acting in the capacity of a
Reporting Authority, or any agent of the Exchange, or any act,
condition, or cause beyond the reasonable control of the Exchange, its
agent, or the Reporting Authority, when the Exchange is acting in the
capacity of a Reporting Authority, including, but not limited to, an
act of God; fire; flood; extraordinary weather conditions; war;
insurrection; riot; strike; accident; action of government;
communications or power failure; equipment or software malfunction; or
any error, omission, or delay in the reports of transactions in one or
more underlying securities.
Policy Discussion--Proposed Nasdaq Rule 5750
The purpose of the structure of Proxy Portfolio Shares is to
provide investors with the traditional benefits of ETFs \5\ while
protecting funds from the potential for front running or free riding of
portfolio transactions, which could adversely impact the performance of
a fund. While each series of Proxy Portfolio Shares will be actively
managed and, to that extent, similar to Managed Fund Shares (as defined
in Nasdaq Rule 5735), Proxy Portfolio Shares differ from Managed Fund
Shares in one key way.\6\ A series of Proxy Portfolio Shares will
disclose the Proxy Basket on a daily basis, which, as described above,
is designed to closely track the performance of the holdings of the
Investment Company, instead of the actual holdings of the Investment
Company, as provided by a series of Managed Fund Shares.\7\
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\5\ For purposes of this filing, the term ETF will include only
Exchange Traded Fund Shares as defined in Nasdaq Rule 5704,
Portfolio Depositary Receipts as defined in Nasdaq Rule 5705(a),
Index Fund Shares as defined in Nasdaq Rule 5705(b), and Managed
Fund Shares as defined in Nasdaq Rule 5735, along with the
equivalent products defined in the rules of other national
securities exchanges.
\6\ The Exchange notes that there is an additional difference
between proposed Nasdaq Rule 5750 and Nasdaq Rule 5735: Proposed
Nasdaq Rule 5750 would require a rule filing under Section 19(b)
prior to listing any product on the Exchange, meaning that no series
of Proxy Portfolio Shares could be listed on the Exchange pursuant
to Rule 19b-4(e) and there are no proposed rules comparable to the
quantitative portfolio holdings standards from Nasdaq Rule 5735.
\7\ Proposed Nasdaq Rule 5750(d)(2)(C) will, however, require
each series of Proxy Portfolio Shares to at a minimum disclose the
entirety of its portfolio holdings within at least 60 days following
the end of every fiscal quarter in accordance with normal disclosure
requirements otherwise applicable to open-end investment companies
registered under the 1940 Act.
Form N-PORT requires reporting of a fund's complete portfolio
holdings on a position-by-position basis on a quarterly basis within
60 days after fiscal quarter end. Investors can obtain a fund's SAI,
its Shareholder Reports, its Form N-CSR, filed twice a year, and its
Form N-CEN, filed annually. A fund's SAI and Shareholder Reports are
available free upon request from the Investment Company, and those
documents and the Form N-PORT, Form N-CSR, and Form N-CEN may be
viewed on-screen or downloaded from the Commission's website at
www.sec.gov.
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For the arbitrage mechanism for any ETF to function effectively,
authorized participants, arbitrageurs, and other market participants
(collectively, ``Market Makers'') need sufficient information to
accurately value shares of a fund to transact in both the primary and
secondary market. The Proxy Basket is to be designed to closely track
the daily performance of the Fund Portfolio.
Given the correlation between the Proxy Basket and the Fund
Portfolio,\8\ the Exchange believes that the Proxy Basket would serve
as a pricing signal to identify arbitrage opportunities when its value
and the secondary market price of the shares of a series of Proxy
Portfolio Shares diverge. If shares began trading at a discount to the
Proxy Basket, an authorized participant could purchase the shares in
secondary market transactions and, after accumulating enough shares to
comprise a creation unit,\9\ redeem them in exchange for a redemption
basket reflecting the Net Asset Value (``NAV'') per share of the Fund
Portfolio. The purchases of shares would reduce the supply of shares in
the market, and thus tend to drive up the shares' market price closer
to the fund's NAV. Alternatively, if shares are trading at a premium,
the transactions in the arbitrage process are reversed. Market Makers
also can engage in arbitrage without using the creation or redemption
processes. For example, if a
[[Page 38464]]
fund is trading at a premium to the Proxy Basket, Market Makers may
sell shares short and take a long position in the Proxy Basket
securities, wait for the trading prices to move toward parity, and then
close out the positions in both the shares and the securities, to
realize a profit from the relative movement of their trading prices.
Similarly, a Market Maker could buy shares and take a short position in
the Proxy Basket securities in an attempt to profit when shares are
trading at a discount to the Proxy Basket.
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\8\ As provided in the Proxy Notices, funds and their respective
advisers will take remedial actions as necessary if the funds do not
function as anticipated. For the first three years after a launch, a
fund will establish certain thresholds for its level of tracking
error, premiums/discounts, and spreads, so that, upon the fund's
crossing a threshold, the adviser will promptly call a meeting of
the fund's board of directors and will present the board or
committee with recommendations for appropriate remedial measures.
The board would then consider the continuing viability of the fund,
whether shareholders are being harmed, and what, if any, action
would be appropriate. Specifically, the Proxy Applications and Proxy
Notices provide that such a meeting would occur: (1) If the tracking
error exceeds 1%; or (2) if, for 30 or more days in any quarter or
15 days in a row (a) the absolute difference between either the
market closing price or bid/ask price, on one hand, and NAV, on the
other, exceeds 2%, or (b) the bid/ask spread exceeds 2%.
\9\ Proxy Portfolio Shares will be purchased or redeemed only in
large aggregations, or ``creation units,'' and the Proxy Basket will
constitute the names and quantities of instruments for both
purchases and redemptions of Creation Units.
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Overall, the Exchange believes that the arbitrage process would
operate similarly to the arbitrage process in place today for existing
ETFs that use in-kind baskets for creations and redemptions that do not
reflect the ETF's complete holdings but nonetheless produce performance
that is highly correlated to the performance of the ETF's actual
portfolio. The Exchange has observed highly efficient trading of ETFs
that invest in markets where security values are not fully known at the
time of ETF trading, and where a perfect hedge is not possible, such as
international equity and fixed-income ETFs. While the ability to value
and hedge many of these existing ETFs in the market may be limited,
such ETFs have generally maintained an effective arbitrage mechanism
and traded efficiently.
As provided in the Notice, the Commission believes that an
arbitrage mechanism based largely on the combination of a daily
disclosed Proxy Basket and at a minimum quarterly disclosure of the
Fund Portfolio can work in an efficient manner to maintain a fund's
secondary market prices close to its NAV.\10\ Consistent with the
Commission's view, the Exchange believes that because the arbitrage
mechanism for Proxy Portfolio Shares will be sufficient to keep
secondary market prices in line with NAV.
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\10\ See Investment Company Act Release No. 33683 (November 14,
2019), 84 FR 64140 (November 20, 2019) at 64144. The Commission also
notes that as long as arbitrage continues to keep the Fund's
secondary market price and NAV close, and does so efficiently so
that spreads remain narrow, that investors would benefit from the
opportunity to invest in active strategies through a vehicle that
offers the traditional benefits of ETFs. See Id., at 64145.
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The Exchange notes that a significant amount of information about
each fund and its Fund Portfolio will be publicly available at all
times. Each series will disclose the Proxy Basket, which is designed to
closely track the daily performance of the Fund Portfolio, on a daily
basis. Each series of Proxy Portfolio Shares will at a minimum publicly
disclose the entirety of its portfolio holdings, including the name,
identifier, market value and weight of each security and instrument in
the portfolio within at least 60 days following the end of every fiscal
quarter in a manner consistent with normal disclosure requirements
otherwise applicable to open-end investment companies registered under
the 1940 Act. The website will include additional quantitative
information updated on a daily basis, including, on a per share basis
for each fund, the prior business day's NAV and the closing price or
bid/ask price at the time of calculation of such NAV, and a calculation
of the premium or discount of the closing price or bid/ask price
against such NAV. The website will also disclose the percentage weight
overlap between the holdings of the Proxy Basket compared to the fund
holdings for the prior business day and any information regarding the
bid/ask spread for each fund as may be required for other ETFs under
Rule 6c-11 under the 1940 Act, as amended. The website and information
will be publicly available at no charge.
While not providing daily disclosure of the Fund Portfolio could
open the door to potential information leakage and misuse of material
nonpublic information, the Exchange believes that proposed Nasdaq Rule
5750(b)(5) and (6) provide sufficient safeguards to prevent such
leakage and misuse of information. The Exchange believes that these
proposed rules are designed to prevent fraudulent and manipulative acts
and practices related to the listing and trading of Proxy Portfolio
Shares because they provide meaningful requirements about both the data
that will be made publicly available about the Shares as well as the
information that will only be available to certain parties and the
controls on such information. Specifically, the Exchange believes that
the requirements related to information protection enumerated under
Nasdaq Rule 5750(b)(6) will act as a strong safeguard against any
misuse and improper dissemination of information related to a Fund
Portfolio, the Proxy Basket, or changes thereto. The requirement that
any person or entity, including a custodian, Reporting Authority,
distributor, or administrator, who has access to nonpublic information
regarding the Fund Portfolio or the Proxy Basket or changes thereto,
must be subject to procedures designed to prevent the use and
dissemination of material nonpublic information regarding the
applicable Fund Portfolio or the Proxy Basket or changes thereto will
act to prevent any individual or entity from sharing such information
externally. Additionally, the requirement that any such person or
entity that is registered as a broker-dealer or affiliated with a
broker-dealer will erect and maintain a ``fire wall'' between the
person or entity and the broker-dealer with respect to access to
information concerning the composition and/or changes to such Fund
Portfolio or Proxy Basket will act to make sure that no entity will be
able to misuse the data for their own purposes. As such, the Exchange
believes that this proposal is designed to prevent fraudulent and
manipulative acts and practices.
Surveillance
The Exchange believes that its surveillance procedures are adequate
to properly monitor the trading of Proxy Portfolio Shares on the
Exchange during all trading sessions and to deter and detect violations
of Exchange rules and the applicable federal securities laws. Trading
of Proxy Portfolio Shares through the Exchange will be subject to the
Exchange's surveillance procedures for derivative products. The
Exchange will require the issuer of each series of Proxy Portfolio
Shares listed on the Exchange to represent to the Exchange that it will
advise the Exchange of any failure by a Fund to comply with the
continued listing requirements, and, pursuant to its obligations under
Section 19(g)(1) of the Act, the Exchange will surveil for compliance
with the continued listing requirements. If a Fund is not in compliance
with the applicable listing requirements, the Exchange will commence
delisting procedures under Nasdaq Rule 5800. In addition, the Exchange
also has a general policy prohibiting the distribution of material,
nonpublic information by its employees.
As noted in proposed Nasdaq Rule 5750(b)(4), the Investment
Company's investment adviser will upon request make available to the
Exchange and/or FINRA, on behalf of the Exchange, the daily Fund
Portfolio of each series of Proxy Portfolio Shares. The Exchange
believes that this is appropriate because it will provide the Exchange
or FINRA, on behalf of the Exchange, with access to the daily Fund
Portfolio of any series of Proxy Portfolio Shares upon request on an as
needed basis. The Exchange believes that the ability to access the
information on an as needed basis will provide it with sufficient
information to perform the necessary regulatory functions associated
with listing and trading series of Proxy Portfolio Shares on the
Exchange, including the ability to monitor compliance with the initial
and continued listing requirements as well
[[Page 38465]]
as the ability to surveil for manipulation of the shares.
Trading Halts
As described above, proposed Nasdaq Rule 5750(d)(2)(D) provides
that (a) the Exchange may consider all relevant factors in exercising
its discretion to halt trading in a series of Proxy Portfolio Shares.
Trading may be halted because of market conditions or for reasons that,
in the view of the Exchange, make trading in the series of Proxy
Portfolio Shares inadvisable. These may include: (i) The extent to
which trading is not occurring in the securities and/or the financial
instruments composing the Proxy Basket or Fund Portfolio; or (ii)
whether other unusual conditions or circumstances detrimental to the
maintenance of a fair and orderly market are present; and (b) if the
Exchange becomes aware that one of the following is not being made
available to all market participants at the same time: The net asset
value, the Proxy Basket, or the Fund Portfolio with respect to a series
of Proxy Portfolio Shares, then the Exchange will halt trading in such
series until such time as the net asset value, the Proxy Basket, or the
Fund Portfolio is available to all market participants, as applicable.
Availability of Information
As noted above, Form N-PORT requires reporting of a fund's complete
portfolio holdings on a position-by-position basis on a quarterly basis
within 60 days after fiscal quarter end. Investors can obtain a fund's
SAI, its Shareholder Reports, its Form N-CSR, filed twice a year, and
its Form N-CEN, filed annually. A fund's SAI and Shareholder Reports
are available free upon request from the Investment Company, and those
documents and the Form N-PORT, Form N-CSR, and Form N-CEN may be viewed
on-screen or downloaded from the Commission's website at www.sec.gov.
The Exchange also notes that the Proxy Applications provide that an
issuer will comply with Regulation Fair Disclosure, which prohibits
selective disclosure of any material nonpublic information, which
otherwise do not apply to issuers of Proxy Portfolio Shares.
Information regarding market price and trading volume of the shares
will be continually available on a real-time basis throughout the day
on brokers' computer screens and other electronic services. Information
regarding the previous day's closing price and trading volume
information for the shares will be published daily in the financial
section of newspapers. Quotation and last sale information for the
shares will be available via the Consolidated Tape Association
(``CTA'') high-speed line.
Trading Rules
The Exchange deems Proxy Portfolio Shares to be equity securities,
thus rendering trading in the shares subject to the Exchange's existing
rules governing the trading of equity securities.\11\ As provided in
proposed Nasdaq Rule 5750(b)(3), the minimum price variation for
quoting and entry of orders in securities traded on the Exchange is
$0.01. The Exchange has appropriate rules to facilitate trading in
Proxy Portfolio Shares during all trading sessions.
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\11\ With respect to trading in Proxy Portfolio Shares, all of
the Exchange member obligations relating to product description and
prospectus delivery requirements will continue to apply in
accordance with Exchange rules and federal securities laws, and the
Exchange will continue to monitor its members for compliance with
such requirements.
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2. Statutory Basis
The Exchange believes that the proposal is consistent with Section
6(b) of the Act \12\ in general and Section 6(b)(5) of the Act \13\ in
particular in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest.
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\12\ 15 U.S.C. 78f.
\13\ 15 U.S.C. 78f(b)(5).
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The Exchange believes that proposed Nasdaq Rule 5750 is designed to
prevent fraudulent and manipulative acts and practices in that the
proposed rules relating to listing and trading of Proxy Portfolio
Shares provide specific initial and continued listing criteria required
to be met by such securities. Proposed Nasdaq Rule 5750(d)(1) provides
the initial listing criteria for a series of Proxy Portfolio Shares,
which include the following: (A) Each series of Proxy Portfolio Shares
will be listed and traded on the Exchange subject to application of the
following initial listing criteria: (i) For each series, the Exchange
will establish a minimum number of Proxy Portfolio Shares required to
be outstanding at the time of commencement of trading on the Exchange;
(ii) the Exchange will obtain a representation from the issuer of each
series of Proxy Portfolio Shares that the net asset value per share for
the series will be calculated daily and that each of the following will
be made available to all market participants at the same time when
disclosed: The net asset value, the Proxy Basket, and the Fund
Portfolio.
Proposed Nasdaq Rule 5750(d)(2) provides that each series of Proxy
Portfolio Shares will be listed and traded on the Exchange subject to
application of the following continued listing criteria: (i) The Proxy
Basket will be disseminated at least once daily and will be made
available to all market participants at the same time; (ii) the Fund
Portfolio will at a minimum be publicly disclosed within at least 60
days following the end of every fiscal quarter and will be made
available to all market participants at the same time; (iii) upon
termination of an Investment Company, the Exchange requires that Proxy
Portfolio Shares issued in connection with such entity be removed from
listing on the Exchange; and (iv) voting rights shall be as set forth
in the applicable Investment Company prospectus or SAI.
Additionally, proposed Nasdaq Rule 5750(d)(2)(C) provides that the
Exchange will consider the suspension of trading in and will commence
delisting proceedings for a series of Proxy Portfolio Shares pursuant
to Nasdaq Rule 5800 under any of the following circumstances: (a) If,
following the initial twelve-month period after commencement of trading
on the Exchange of a series of Proxy Portfolio Shares, there are fewer
than 50 beneficial holders of the series of Proxy Portfolio Shares; (b)
if either the Proxy Basket or Fund Portfolio is not made available to
all market participants at the same time; (c) if the Investment Company
issuing the Proxy Portfolio Shares has failed to file any filings
required by the Commission or if the Exchange is aware that the
Investment Company is not in compliance with the conditions of any
exemptive order or no-action relief granted by the Commission to the
Investment Company with respect to the series of Proxy Portfolio
Shares; (d) if any of the requirements set forth in this rule are not
continuously maintained; (e) if any of the applicable Continued Listing
Representations for the issue of Proxy Portfolio Shares are not
continuously met; or (f) if such other event shall occur or condition
exists which, in the opinion of the Exchange, makes further dealings on
the Exchange inadvisable.
Proposed Nasdaq Rule 5750(d)(2)(D) provides that (a) the Exchange
may consider all relevant factors in exercising its discretion to halt
trading in a series of Proxy Portfolio Shares. Trading may be halted
because of market conditions or for reasons that, in the view of the
Exchange, make trading in the series of Proxy Portfolio Shares
inadvisable. These may include: (i) The extent to which trading is not
occurring
[[Page 38466]]
in the securities and/or the financial instruments composing the Proxy
Basket or Fund Portfolio; or (ii) whether other unusual conditions or
circumstances detrimental to the maintenance of a fair and orderly
market are present; and (b) if the Exchange becomes aware that one of
the following is not being made available to all market participants at
the same time: The net asset value, the Proxy Basket, or the Fund
Portfolio with respect to a series of Proxy Portfolio Shares, then the
Exchange will halt trading in such series until such time as the net
asset value, the Proxy Basket, or the Fund Portfolio is available to
all market participants, as applicable
While not providing daily disclosure of the Fund Portfolio could
open the door to potential information leakage and misuse of material
non-public information, the Exchange believes that proposed Nasdaq Rule
5750(b)(5) and (6) provide sufficient safeguards to prevent such
leakage and misuse of information. The Exchange believes that these
proposed rules are designed to prevent fraudulent and manipulative acts
and practices related to the listing and trading of Proxy Portfolio
Shares because they provide meaningful requirements about both the data
that will be made publicly available about the shares as well as the
information that will only be available to certain parties and the
controls on such information. Specifically, the Exchange believes that
the requirements related to information protection enumerated under
proposed Nasdaq Rule 5750(b)(6) will act as a strong safeguard against
any misuse and improper dissemination of information related to a Fund
Portfolio, the Proxy Basket, or changes thereto. The requirement that
any person or entity, including a custodian, Reporting Authority,
distributor, or administrator, who has access to nonpublic information
regarding the Fund Portfolio or the Proxy Basket or changes thereto,
must be subject to procedures designed to prevent the use and
dissemination of material nonpublic information regarding the
applicable Fund Portfolio or the Proxy Basket or changes thereto will
act to prevent any individual or entity from sharing such information
externally. Additionally, the requirement that any such person or
entity that is registered as a broker-dealer or affiliated with a
broker-dealer will erect and maintain a ``fire wall'' between the
person or entity and the broker-dealer with respect to access to
information concerning the composition and/or changes to such Fund
Portfolio or Proxy Basket will act to make sure that no entity will be
able to misuse the data for their own purposes. As such, the Exchange
believes that this proposal is designed to prevent fraudulent and
manipulative acts and practices.
The Exchange believes that these proposed rules are designed to
prevent fraudulent and manipulative acts and practices related to the
listing and trading of Proxy Portfolio Shares because they provide
meaningful requirements about both the data that will be made publicly
available about the shares (the Proxy Basket) as well as the
information that will only be available to certain parties and the
controls on such information. Specifically, the Exchange believes that
the requirements related to firewalls and information protection will
act as a strong safeguard against any misuse and improper dissemination
of information related to the securities included in or changes made to
the Fund Portfolio and/or the Proxy Basket. As such, the Exchange
believes that this proposal is designed to prevent fraudulent and
manipulative acts and practices.
The Exchange notes that a significant amount of information about
each fund and its Fund Portfolio will be publicly available at all
times. Each series will disclose the Proxy Basket, which is designed to
closely track the daily performance of the Fund Portfolio, on a daily
basis. Each series of Proxy Portfolio Shares will at a minimum publicly
disclose the entirety of its portfolio holdings, including the name,
identifier, market value and weight of each security and instrument in
the portfolio within at least 60 days following the end of every fiscal
quarter in a manner consistent with normal disclosure requirements
otherwise applicable to open-end investment companies registered under
the 1940 Act. The website will include additional quantitative
information updated on a daily basis, including, on a per share basis
for each fund, the prior business day's NAV and the closing price or
bid/ask price at the time of calculation of such NAV, and a calculation
of the premium or discount of the closing price or bid/ask price
against such NAV. The website will also disclose the percentage weight
overlap between the holdings of the Proxy Basket compared to the fund
holdings for the prior business day and any information regarding the
bid/ask spread for each fund as may be required for other ETFs under
Rule 6c-11 under the 1940 Act, as amended. The website and information
will be publicly available at no charge.
The Exchange believes that its surveillance procedures are adequate
to properly monitor the trading of Proxy Portfolio Shares on the
Exchange during all trading sessions and to deter and detect violations
of Exchange rules and the applicable federal securities laws. Trading
of Proxy Portfolio Shares through the Exchange will be subject to the
Exchange's surveillance procedures for derivative products. Pursuant to
its obligations under Section 19(g)(1) of the Act, the Exchange will
surveil for compliance with the continued listing requirements. If a
Fund is not in compliance with the applicable listing requirements, the
Exchange will commence delisting procedures under Nasdaq Rule 5800. In
addition, the Exchange also has a general policy prohibiting the
distribution of material, nonpublic information by its employees.
As noted in proposed Nasdaq Rule 5750(b)(4), the Investment
Company's investment adviser will upon request make available to the
Exchange and/or FINRA, on behalf of the Exchange, the daily portfolio
holdings of each series of Proxy Portfolio Shares. The Exchange
believes that this is appropriate because it will provide the Exchange
or FINRA, on behalf of the Exchange, with access to the daily Fund
Portfolio of any series of Proxy Portfolio Shares upon request on an as
needed basis. The Exchange believes that the ability to access the
information on an as needed basis will provide it with sufficient
information to perform the necessary regulatory functions associated
with listing and trading series of Proxy Portfolio Shares on the
Exchange, including the ability to monitor compliance with the initial
and continued listing requirements as well as the ability to surveil
for manipulation of the shares.
As noted above, Form N-PORT requires reporting of a fund's complete
portfolio holdings on a position-by-position basis on a quarterly basis
within 60 days after fiscal quarter end. Investors can obtain a fund's
SAI, its Shareholder Reports, its Form N-CSR, filed twice a year, and
its Form N-CEN, filed annually. A fund's SAI and Shareholder Reports
are available free upon request from the Investment Company, and those
documents and the Form N-PORT, Form N-CSR, and Form N-CEN may be viewed
on-screen or downloaded from the Commission's website at www.sec.gov.
The Exchange also notes that the Proxy Applications provide that an
issuer will comply with Regulation Fair Disclosure, which prohibits
selective disclosure of any material nonpublic information, which
otherwise do not apply to issuers of Proxy Portfolio Shares.
Information regarding market price and trading volume of the shares
will be
[[Page 38467]]
continually available on a real-time basis throughout the day on
brokers' computer screens and other electronic services. Information
regarding the previous day's closing price and trading volume
information for the shares will be published daily in the financial
section of newspapers. Quotation and last sale information for the
shares will be available via the CTA high-speed line. The Exchange
deems Proxy Portfolio Shares to be equity securities, thus rendering
trading in the shares subject to the Exchange's existing rules
governing the trading of equity securities. As provided in proposed
Nasdaq Rule 5750(b)(3), the minimum price variation for quoting and
entry of orders in securities traded on the Exchange is $0.01.
For the above reasons, the Exchange believes that the proposed rule
change is consistent with the requirements of Section 6(b)(5) of the
Act.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purpose of the Act. The Exchange notes that the
proposed rule change, rather will facilitate the listing and trading of
new types of actively-managed exchange-traded products that will
enhance competition among both market participants and listing venues,
to the benefit of investors and the marketplace.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the proposed rule change does not: (i) Significantly affect
the protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative for 30
days from the date on which it was filed, or such shorter time as the
Commission may designate, it has become effective pursuant to Section
19(b)(3)(A) of the Act \14\ and Rule 19b-4(f)(6) thereunder.\15\
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\14\ 15 U.S.C. 78s(b)(3)(A).
\15\ 17 CFR 240.19b-4(f)(6). In addition, Rule19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NASDAQ-2020-032 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2020-032. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NASDAQ-2020-032 and should be submitted
on or before July 17, 2020.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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\16\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-13764 Filed 6-25-20; 8:45 am]
BILLING CODE 8011-01-P