SEC Division of Corporation Finance no-action letter: First Trust Exchange-Traded Fund III

Attorneys at Law · Focused on Finance
Suzanne Russell
Partner
111 West Monroe Street
Chicago, Illinois 60603-4080
T 312.845.3446
F 312-516-1446 russell@chapman.com
Securities Exchange Act of 1934
Rule 14e-5
February 5, 2020
Mr. Ted Yu, Chief
Mr. Perry Hindin, Special Counsel
Office of Mergers and Acquisitions
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N .E.
Washington, DC 20549
Re: Request for Exemptive Relief from Rule 14e-5, promulgated under the Securities Exchange Act of 1934, for an Actively Managed Exchange-Traded Fund Dear Mr. Yu and Mr. Hindin:
We are writing as counsel to the First Trust Exchange-Traded Fund III (the "Trust"), which was organized as a Massachusetts business trust on January 9, 2008 and is registered with the Securities and Exchange Commission (the "Commission") as an open-end management investment company. The Trust requests exemptive relief under the Securities Exchange Act of 1934 (the "Exchange Act") on behalf of itself, the market participants discussed below, and the following fund: First Trust Merger Arbitrage ETF (the "Fund"). The Fund is a series of the Trust that intends to operate as an exchange-traded fund (an "ETF"). Shares of the Fund ( "Shares") are expected to be listed on NYSE Arca, Inc. On an ongoing basis, the Trust, with respect to the Fund, will issue and redeem Shares in aggregations of 50,000 Shares (referred to as "Creation Units"). As described below, consistent with other ETFs, transactions in Creation Units for the Fund will occur between the Trust and persons, referred to as "Authorized Participants," who create and redeem Shares in Creation Units pursuant to contractual arrangements pertaining to the Trust and the Fund. Additionally, as indicated below, Authorized Participants may engage in secondary market transactions in Shares. Authorized Participants are typically broker-dealers and, as discussed below, may act as dealer-managers of tender offers. The Trust, on behalf of itself, the Fund and Authorized Charlotte Chicago New York Salt Lake City San Francisco Washington, DC Vivaldi 4815-4720-3757 v4.docx 4306361

Participants that act as dealer-managers of tender offers, as applicable, requests that the Commission grant exemptive relief from Rule 14e-5 under the Exchange Act in connection with transactions that involve "subject securities" and "related securities" (as defined in Rule 14e-5(c)(6) and (7)) that are included in a "Creation Basket" or a "Redemption Basket," as described and discussed below. Without such relief, in situations where an Authorized Participant is also a dealer-manager of a tender offer, and therefore a covered person," as defined in Rule 14e-5(c)(3)ii), subject to the Rule, the Rule's restrictions could impede the ability of the Fund to operate as intended and as disclosed in publicly filed documents, which could be detrimental to investors.I The Commission staff ( "Staff') has previously issued relief substantially similar to that requested herein to both index-based ETFs? and actively managed ETFs? that are listed and traded on a national securities exchange and satisfy certain conditions. In particular, the Staff has previously granted relief with respect to Rule 14e-5 to several other actively managed ETFs in the First Trust fund complex.4 Similar to the ETFs in the Prior First Trust Letters, the Fund's Consistent with the applicable precedent (see notes 2 and 3), the Trust is the party that is requesting relief from the Commission. Although there is no guarantee of future results, the Trust believes that the "in-kind" purchase and redemption features of ETFs help facilitate the close correspondence between an ETF's net asset value ( "NAV") and market price to the benefit of the ETF and its shareholders. The Trust and its series, the Fund, therefore have a strong interest in, and are beneficiaries of, the requested relief as it helps ensure that market participants are able to effect creations and redemptions, thereby permitting the Fund to operate as intended. The Trust further believes that the arbitrage activity described below is facilitated when more market participants are able to participate in the purchase and redemption of Creation Units. Additionally, the Trust is seeking relief on behalf of itself and the Fund in the event that the Trust and/or the Fund is deemed to be a "covered person" under Rule 14e-5(c)(3)(iv), as discussed in Part III below. See Letter from James A. Brigagliano to Stuart M. Strauss, Esq. regarding Class Relief for Exchange Traded Index Funds, dated October 24, 2006. Relief was granted for the Commission by the Division of Market Regulation (now the Division of Trading and Markets) pursuant to delegated authority. See, e.g., Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (December 4, 2019); Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (August 20, 2019); Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (August 23, 2017); Letter from Ted Yu, Chief, Office of Mergers
and Acquisitions, to Suzanne M. Russell, Esq. (April 11, 2017); Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (October 6, 2016); Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (September 6, 2016); Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (April 27, 2016); Letter from Michele M. Anderson, Associate Director (Legal), to Suzanne M. Russell, Esq. (November 12, 2015); Letter from Michele M. Anderson, Associate Director (Legal), to Suzanne M. Russell, Esq. (November 4, 2015); and Letter from Michele M. Anderson, Chief, Office of Mergers and Acquisitions, to Suzanne M. Russell, Esq. (December 18, 2014) (collectively, the "Prior First Trust Letters"). The Staff has also issued relief with respect to Rule 14e-5 to various other actively managed ETFs. See, e.g., Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Adam T. Teufel, Esq. (May 23, 2019) (FQF Trust); Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Allison M. Fumai, Esq. (January 31, 2019) (ARK ETF Trust); and Letter from Ted Yu, Chief, Office of Mergers and Acquisitions, to Jack P. Drogin, Esq. (February 6, 2018) (Wisdom Tree Trust) (collectively, the "Other Rule 14e-5 Relief"). 4 See Prior First Trust Letters, supra note 3.

portfolio will be fully transparent and permit arbitrage activity. The relief requested by the Trust is substantially similar to the relief granted in the Prior First Trust Letters and the Other Rule 14e-5 Relief; therefore, the Trust does not believe that the relief requested raises any significant new regulatory issues. The Trust notes that on September 26,2019, the Commission announced the adoption of Rule 6c-11 (the ETF Rule") under the Investment Company Act of 1940, as amended (the "1940 Act"). 5 The ETF Rule, which became effective on December 23, 2019, generally permits ETFs that satisfy certain conditions to operate without first obtaining an exemptive order from the Commission under the 1940 Act. In the Adopting Release, the Commission stated that "[i]n order to harmonize the regulation of most ETFs," it was rescinding, one year after the effective date of the ETF Rule, portions of prior exemptive orders that grant relief related to the formation and operation of an ETF ( "Individual 1940 Act ETF Relief').6 As indicated in the Adopting Release, the one-year period for termination of Individual 1940 Act ETF Relief is intended to provide sufficient time for ETFs to bring their operations into conformity with the requirements of the ETF Rule.7 For example, the ETF Rule requires, among other things: (a) the adoption and implementation of written policies and procedures that govern the construction and acceptance of "Creation Baskets" and "Redemption Baskets" (as defined below); (b) website disclosure of specified information regarding an ETF and its portfolio holdings; and (c) the maintenance of certain records regarding Creation Baskets and Redemption Baskets exchanged with Authorized Participants. In light of the transition process, initially, the Trust will rely on its Individual 1940 Act ETF Relief (the "First Trust 1940 Act ETF Relief")9 with respect to the Fund and will not rely on the ETF Rule until later in 2020.{0 In connection with the ETF Rule, the Commission issued an order granting exemptive relief to ETFs operating in reliance on the ETF Rule from the requirements of Section ll(d)(l) of the Exchange Act and Rules 10b-10, 15c1-5, 15c1-6 and 14e-5 under the Exchange Act, subject to certain conditions (the "Conditional Order")) 1 The Conditional Order also became Release Nos. 33-10695; 1C-33646 (September 25, 2019), 84 FR 57162 (October 24, 2019) (the "Adopting Release"). See Adopting Release, supra note 5, at 84 FR 57166. See Adopting Release, supra note 5, at 84 FR 57198. See 1940 Act Rule 6c-11(c) and (d); and Adopting Release, supra note 5, at 57213-57217 (discussing, in general, certain differences between the requirements of the ETF Rule and those of Individual 1940 Act ETF Relief). Release No. 1C-28468 (October 27, 2008). The First Trust fund complex includes more than 140 ETFs that currently rely on applicable Individual 1940 Act ETF Relief. 11 Order Granting a Conditional Exemption from Exchange Act Section l l(d)(l) and
Exchange Act Rules 10b-10, 15c1-5, 15c1-6, and 14e-5 for Certain Exchange Traded Funds, Release No. 34-87110 (September 25,2019), 84 FR 57089 (October 24,2019).

effective on December 23, 2019. However, because the Trust, with respect to the Fund, will not yet operate in reliance on the ETF Rule at the time it launches, it will not be entitled to rely on the Conditional Order at such time.12 Once the Trust begins to rely on the ETF Rule with respect to the Fund, the relief from Rule 14e-5 provided by the Conditional Order will also be available with respect to the Fund.3 This letter is divided into four parts. Part I describes the Fund; Part II describes transactions in the Shares; Part III contains the legal analysis under Rule 14e-5; and Part IV sets forth the request for exemptive relief.
I. THE FUND
The Fund was organized on December 9, 2019 and intends to launch on or about February 5, 2020. The Fund's investment objective is to seek to provide investors with capital appreciation. Under normal market conditions, the Fund intends to seek to achieve its investment objective by establishing long and short positions in the equity securities of companies that are involved in a publicly-announced significant corporate event, such as a merger or acquisition. The Fund's investment sub-adviser will generally seek to take advantage of the return opportunity presented by the natural deal spread that emerges after the announcement of a merger or acquisition by purchasing the stock of the company being acquired (the "target company"), while shorting the stock of the company acquiring the target company's stock (the "acquiring company"). The profit which may be realized is the "spread," or difference in price between the trading price of the target company's stock following the announcement of the corporate event and the contractual price to be paid for the target company stock in the future when the transaction closes. A broker-dealer registered under the Exchange Act acts as the distributor and principal underwriter (the 'Distributor") of the Creation Units of Shares of the Fund. The Trust has appointed entities to provide administrative, custodial, transfer agency, fund accounting and dividend disbursing functions for the Fund. The entity providing custodial services is hereafter the "Custodian" and the entity serving as transfer agent for the Fund is hereafter the "Transfer Agent." 12 As noted in the Conditional Order, the Staff will continue to consider requests with respect to relevant Exchange Act provisions in connection with newly formed ETFs that do not rely on the ETF Rule or otherwise do not satisfy the conditions of the Conditional Order. See Conditional Order, supra note 11, at 84 FR 57090, n. 13. 13 In order for the Trust to rely on the Conditional Order with respect to the Fund, it would be subject to the applicable conditions of the Conditional Order rather than the representations included in this letter.

II. TRANSACTIONS IN SHARES
The Fund will issue and redeem!+ Shares on a continuous basis at NAV only in Creation Units comprised of 50,000 Shares. Shares will be listed on a U.S. national securities exchange as defined in Section 2a)(26) of the 1940 Act (an "Exchange") and trade in the secondary market in the same manner as other equity securities. The trading market on an Exchange affords investors the opportunity to assume and liquidate positions in Shares at their discretion, permitting them to take advantage of prices at any time during the trading day. This combination of intra-day liquidity with the Creation Unit purchase and redemption features is generally expected to create potential arbitrage opportunities.15 In turn, as arbitrageurs (including Authorized Participants) purchase and redeem Creation Units in response to such opportunities, it is anticipated that they will enhance the liquidity of the secondary market, which may help mitigate pricing inefficiencies and reduce the likelihood that Shares will trade at a material premium or discount in relation to their NA V. In contrast to a typical mutual fund," the Fund will not sell or redeem individual Shares. Rather, like other ETFs, it will sell and redeem its Shares in Creation Units.l6 Transactions in Creation Units typically take place between the Trust and Authorized Participants, in the ordinary course of business. Authorized Participants include broker-dealers who have entered into contractual arrangements agreed to by the Distributor and the Transfer Agent setting forth the terms under which Authorized Participants can purchase and redeem Shares in Creation Unit sized aggregations ( "AP Agreements"). Creation Units may be issued and redeemed in exchange for an in-kind portfolio of instruments and/or cash in lieu of such instruments. The Custodian, through the National Securities Clearing Corporation, makes available prior to the opening of business on the applicable Exchange on each business day, the list of securities that 14 Redeemability of Creation Units is attributable to the fact that the Trust is an open-end management investment company. The term "open-end company" is defined in Section 5(a)(l) of the 1940 Act as a management company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the 1940 Act defines a "redeemable security" as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net assets, or the cash equivalent. Creation Units are redeemable at NA V. Shares, however, are not individually redeemable. The Trust, like other ETFs, may currently rely on exemptive relief obtained from the Commission permitting it, among other things, to register as an open-end management investment company notwithstanding that Shares are redeemable only in Creation Unit sizes. The relief addresses the
possible question that has arisen as to whether the definitional requirements of a "redeemable security" or an "open-end company" under the 1940 Act have been met. See First Trust 1940 Act ETF Relief. (The Trust notes that ETFs relying on the ETF Rule are considered to issue a "redeemable security" within the meaning of Section 2(a)(32) of the 1940 Act. See I 940 Act Rule 6c-11 (b )(1 ); and Adopting Release, supra note 5, at 84 FR 57171-57172.) Arbitrageurs are expected to stand ready to take advantage of any slight premium or discount in the market price of Shares on the applicable Exchange versus the cost of depositing securities and creating a Creation Unit to be broken down into individual Shares. Terms and provisions governing sales and redemptions of Shares by the Fund are set forth in the applicable prospectus and statement of additional information; the application for the First Trust 1940 Act ETF Relief; and the Trust's Declaration of Trust.

Authorized Participants must deliver to purchase a Creation Unit ( "Creation Basket") and the list of securities that they will receive if they redeem a Creation Unit ( "Redemption Basket"). In accordance with the applicable AP Agreements, Authorized Participants create and redeem Creation Units under various scenarios. For example, in connection with creation transactions, an Authorized Participant might purchase the relevant securities in the Creation Basket, transfer the securities to the Trust in exchange for the Creation Unit, and convey the Creation Unit to the investor. Conversely, in connection with redemption transactions, an Authorized Participant might receive a Creation Unit from an investor, convey the Creation Unit and receive the securities in the Redemption Basket from the Trust.
III. LEGAL ANALYSIS UNDER RULE 14e-5
Rule 14e-5 was originally promulgated as Rule lOb-13 under the Exchange Act to safeguard the interests of persons who sell their securities in response to a tender offer. 17 Rule 14e-5 prohibits a "covered person" from directly or indirectly purchasing or arranging to purchase any equity securities that are the subject of a tender offer ( "subject securities") or any securities immediately convertible into, exchangeable for, or exercisable for subject securities ( "related securities") except as part of such tender offer. The term "covered person" includes, among others, a dealer-manager of a tender offer. The fact that most Authorized Participants are broker-dealers implicates Rule 14e-5 because the term "covered person" includes a dealer-manager of a tender offer. The term "covered person" also includes any person acting, directly or indirectly, in concert with other covered persons in connection with any purchase or arrangement to purchase any subject securities or any related securities. Therefore, the Trust also is seeking relief in the event it or the Fund may be deemed to be a "covered person" by virtue of the AP Agreements pertaining to the Trust and the Fund. In order to address situations in which an Authorized Participant acts as a dealer-manager of a tender offer, and a subject security or a related security is part of a group of securities that is received by the Fund when it issues a Creation Unit or part of a group of securities that the Fund distributes when it redeems a Creation Unit (i.e., part of a Creation Basket or a Redemption Basket), the Trust respectfully requests that the Commission grant an exemption from Rule 14e-5 as it applies to such Authorized Participants. The exemption would permit any such Authorized Participant to execute transactions that include, or are deemed to include, purchases of, or arrangements to purchase, subject securities or related securities, but that are not effected for the purposes of facilitating a tender offer and that are conducted in the ordinary course of business (in each case, from the time of the public announcement of the tender offer until the tender offer expires). For purposes of this relief, an Authorized Participant's ordinary course of business includes: (1) redeeming Shares of the Fund in Creation Unit size aggregations for a Redemption 17 Exchange Act Rel. No. 8712 (October 8, 1969) (the "1969 Adopting Release"). In this regard, the 1969 Adopting Release noted that [w]hen securities are purchased for a consideration greater than that of the tender offer price, this operates to the disadvantage of the security holders who have already deposited their securities and who are unable to withdraw them in order to obtain the advantage of possible resulting higher market prices."

Basket that may include a subject security or a related security; and (2) engaging in secondary market transactions in Shares. With respect to redemptions, the Trust notes that the acquisition of individual securities held by the Fund by means of redemptions of Shares would be impractical and extremely inefficient in view of the relatively small number of shares of any one security included in a Redemption Basket and the requirement that a minimum number of Shares (i.e., a Creation Unit) be redeemed. Redemptions of and secondary market transactions in Shares under the circumstances described would not appear to result in the abuses at which Rule 14e-5 is directed. In addition to the above request for relief, the Trust also is requesting exemptive relief in connection with purchases of Creation Units of Shares by an Authorized Participant acting as a dealer-manager of a tender offer. In this regard, in connection with purchasing Creation Units pursuant to the terms of its AP Agreement, an Authorized Participant may seek to purchase in the secondary market securities comprising a Creation Basket that includes, with respect to a tender offer for which it acts as a dealer-manager, subject securities or related securities. The Trust acknowledges that Rule 14e-5(b)(5) provides an exception to its prohibition for purchases or arrangements to purchase a basket of securities containing a subject security or a related security if: (i) the purchase or arrangement is made in the ordinary course of business and not to facilitate the tender offer; (ii) the basket contains 20 or more securities; and (iii) covered securities and related securities do not comprise more than 5% of the value of the basket (the "Basket Exception"). As indicated by the Commission in the release replacing former Rule 10b-13 with Rule 14e-5 ,18 transactions in baskets in accordance with the Basket Exception provide little opportunity for a covered person to facilitate an offer 19 or for a security holder to exact a premium from the offeror. Given that the purchases and redemptions of Creation Units of ETFs in general typically involve baskets of securities, Authorized Participants acting as dealer-managers of tender offers for relevant securities may, in certain cases, be able to rely on the Basket Exception in purchasing Creation Units of Shares. From time to time, however, a change in the composition of the portfolio securities of the Fund may result in a change in the basket that has been established for purposes of purchasing its Creation Units. As a consequence, the basket could contain less than 20 securities and/or covered securities and related securities could comprise more than 5% of the value of the basket. For example, a liquidation of the issuer of one of the securities or a merger involving the acquisition of the issuer of one of the securities could cause the number of securities in the basket to fall below 20 and/or could cause covered securities and related securities
to comprise more than 5% of the value of the basket. Additionally, as a result of fluctuations in the market value of the securities held in the basket, covered securities and related securities could, at times, comprise more than See Exchange Act Release No. 42055 (October 22, 1999) (the "1999 Release"). As discussed in the 1999 Release, "facilitation of an offer" includes purchases intended to bid up the market price of the covered or related security, and includes buying a basket to strip out the covered security in an effort to get the offeror the number of shares it is seeking. In this regard, the Trust believes that it would be inefficient to facilitate a tender offer in a particular security by means of purchasing all of the securities in a Creation Basket.

5% of the value of the basket. This composition would result in the unavailability of the Basket Exception for an Authorized Participant acting as a dealer-manager of a tender offer for the applicable securities and, in particular, may preclude an Authorized Participant from being able to rely on the Basket Exception. In order to address situations (including but not limited to the foregoing examples) where the basket contains less than 20 securities and/or covered securities and related securities comprise more than 5% of the value of the basket, the Trust respectfully requests that the Commission provide an exemption under Rule 14e-5 if an Authorized Participant acting as a dealer-manager of a tender offer purchases or arranges to purchase subject securities or related securities in the secondary market for the purpose of transferring such securities to purchase one or more Creation Units of Shares, if such purchases are not effected for the purpose of facilitating such tender offer and are made in the ordinary course of business. Relief would be necessary in order to permit such Authorized Participants to effect purchases of subject and related securities under such circumstances given that the Basket Exception would not be available. This extension of the Basket Exception would accommodate a potential factual circumstance associated with the operation of ETFs and would be consistent with the rationale underlying the adoption of the Basket Exception. The Trust notes, in particular, that purchases would not be effected for the purpose of facilitating a tender offer.20 The Trust understands that, except as permitted by the relief from Rule 14e-5 requested herein, any Authorized Participant acting as a dealer-manager is required to comply with the requirements of Rule 14e-5.
IV. REQUEST FOR EXEMPTIVE RELIEF
Based on the foregoing, the Trust, on behalf of itself, the Fund and Authorized Participants that act as dealer-managers of tender offers, respectfully requests that the Commission grant the exemptive relief from Rule 14e-5 under the Exchange Act requested herein in connection with purchases of, and arrangements to purchase, subject securities and related securities outside of a tender offer. As more fully discussed above, the Trust is requesting that the Commission grant exemptions from Rule 14e-5 to permit any Authorized Participant acting as a dealer-manager of a tender offer, under the circumstances described herein, (1) to execute transactions that include, or are deemed to include, purchases of, or arrangements to purchase, subject securities or related securities in connection with (a) redeeming Shares of the Fund in Creation Unit size aggregations and (b) engaging in secondary market transactions in Shares and (2) to purchase or arrange to purchase subject securities and related securities in the secondary market for the purpose of transferring such securities to purchase Creation Units. As a related matter, the Trust is requesting that, in light of the relevance of the activities contemplated by the AP Agreements described above to the Trust and the Fund, the Trust and the Fund be permitted to rely on any exemptive relief that is granted. The Trust believes that granting the requested exemptions is consistent with precedent and will not result in the abuses that Rule 14e-5 was designed to address, and that it will facilitate the 20 See supra note 19.

ability of Authorized Participants to engage in transactions in Creation Units, thereby permitting the Fund to operate as intended to the benefit of its shareholders. Thank you for your consideration of this request. Should you have any questions or require additional information, please call the undersigned at (312) 845-3446. Very truly yours, CHAPMAN AND CUTLER LLP

Response of the Office of Mergers and Acquisitions Division of Corporation Finance

Re: First Trust Exchange-Traded Fund III Request for Exemptive Relief from Exchange Act Rule 14e-5

Resources

Incoming Letter