SEC Division of Trading and Markets no-action letter: PIMCO ETF Trust - Actively Managed ETF

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
DIVISION OF September 22, 2010 TRADING AND MAR.KETS W. John McGuire, Esq.

Morgan, Lewis & Bockius LLP

1111 PeIUlsylvania Avenue, NW

Washington, DC 20004

Re: PIMCO ETF Trust - Actively Managed ETF

File No. TP 10-66

Dear Mr. McGuire:
In your letter dated September 22, 2010, as supplemented by conversations with the staff of the Division of Trading and Markets ("Staff'), the PIMCO ETF Trust (the "Trust") requests from the Staff exemptive relief with respect to Rule 1Ob-l 7 under the Securities Exchange Act of 1934, as amended ("Exchange Act"). We have enclosed a photocopy of your letter. Each defined term in this letter has the same meaning as defined, directly or by reference, in your letter, unless we note otherwise. The Trust was organized on November 14,2008 as a Delaware statutory trust. The Trust is registered with the Securities and Exchange Commission ("Commission") under the Investment Company Act of 1940 (" 1940 Act"), as amended, as an open-end management investment company. In November 2009, the Trust listed the individual shares of five actively managed portfolios of the Trust ("New Series") on the NYSE Area, Inc. ("NYSE Area"), pursuant to conditions in the Staffs November 10,2009 PlMCO Response Letter. 1 The Trust now requests that the relief afforded to the New Series in the PIMCO Response Letter with regard to Rule 1Ob-17 under the Exchange Act be extended to the Additional Fund. Rule 1Ob-17, with certain exceptions, requires an issuer of a class ofpublicly traded securities to give notice of certain specified actions (for example, a dividend distribution, stock split, or rights offering) relating to such class of securities in accordance with Rule 10b-17(b). Rule lOb-17(c) provides an exception for redeemable securities issued by open-end investment companies and unit investment trusts registered with the Commission under the 1940 Act. With regard to the Trust, the Division of Investment Management issued an order granting an exemption from the 1940 Act to register the Trust as an open￾end management investment company. Except for the fact that the shares are redeemed in Creation Unit size aggregations, the fund is intended to function like any other open-end fund continuously offering its shares. See Letter from Josephine 1. Tao to w. John McGuire regarding PIMeO ETF Trust Actively Managed Fixed Income Exchange Traded Fund dated November 10,2009.

W. John McGuire, Esq.
Morgan, Lewis & Bockius LLP
September 22, 2010
On the basis of your representations and the facts presented, and without necessarily concurring in your analysis, particularly that the Commission has detennined to grant an exemption from the 1940 Act to register the Trust as an open-end management investment company notwithstanding the fact that it issues Shares with limited redeemability, the Commission hereby grants an exemption from the requirements of Rule 1Db-I? to the Trust with respect to transactions in the Shares.2 This exemptive relief is subject to modification or revocation if at any time the Commission or Staff detennines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act. In addition, persons relying on this exemptive relief are directed to the anti-fraud and anti-manipulation provisions of the Exchange Act, particularly Sections 9(a), lO(b), and Rule lOb-5 thereunder. Responsibility for compliance with this and other provisions of the federal or state securities laws must rest with persons relying on this exemptive relief. The Staff expresses no view with respect to other questions that the proposed transactions may raise, including, but not limited to, the adequacy of disclosure concerning, and the applicability of other federal and state laws to, the proposed transactions. Very truly yours, ~~Assistant Director Attachment , We also note that compliance with Rule IOb·17 would be impractical in light ofthe nature of the Additional Fund. This is because it is not possible for the Trust to accurately project ten days in advance what dividend, if any, would be paid on a particular record date.

Morgan. Lewis & Bockius llP Morgan Lewis
1111 Pennsylvania Avenue, NW
Washington, DC 20004
COUNSELORS AT LA.W
Tel. 202.739.3000

Fax: 202.739.3001

www.morganlewis.com

W. John McGuire

Partner

202.739.5654 wjmcguire@MorganLewis.com
September 22,2010
Josephine J. Tao, Esq.
Assistant Director
Office ofTrading Practices and Processing
Division ofTrading and Markets
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Re: Request of PIMCO ETF Trust for Relief from Rule lOb-l7 under the

Securities Exchange Act of 1934 with Respect to Additional Fund

Dear Ms. Tao:

We are writing on behalf ofPlMCO ETF Trust ("Trust"). The Trust is an open-end series management investment company organized on November 14,2008 as a Delaware statutory trust. Summary of Previously Granted Relief In November 2009, the Trust listed the individual shares offive actively-managed portfolios ofthe Trust ("New Series") on the NYSE Area, Inc. ("NYSE Area"). Prior to sueh time, the Trust requested reliefon behalfofitself, the New Series, any national securities exchange or national securities association on or through which the exchange-traded shares of the Trust would subsequently trade (each an "Exchange"), and persons or entities engaging in transactions in New Series shares, from the staff ofthe Division ofTrading and Markets ("Staff') with respect to Rules 10land 102 ofRegulation M and Rule 1Ob-I7 under the Securities Exchange Act of 1934 ("Exchange Act") in connection with secondary market transactions in New Series shares and the creation or redemption ofCreation Units ("PlMCO Request Letter',).l The Staff granted such reliefin the letter addressed to John McGuire, dated November 10, 2009 ("PIMCO Response Letter"). All terms in this letter are as defined in the PIMCO Request and PIMCO Response Letters, unless otherwise defined herein. See, the request letter from W. John McGuire dated November 10, 2009 with respect to the Trust. Washington Philadelphia New York Los Angeles San Francisco Miami Pittsburgh Princeton Chicago Minneapolis Palo Alto Dallas Houston Harrisburg I/Vine Boston London Paris Brussels Frankfurt Beijing Tokyo DB 1/65631635.3

Josephine J. Tao, Esq. Morgan Lewis
September 22,2010 . COUNSELORS AT LAW
The Additional Fund
The Trust plans to list on the New York Stock Exchange Arca (the "NYSE"),2 shares of an additional fund not named in the PIMCO Request Letter, the PIMCO Build America Bond . Strategy Fund (the "Additional Fund"). The investmenrobjective ofthe Additional Fund is maximum income, consistent with preservation of capital. The Additional Fund seeks to achieve its investment objective by investing under normal circumstances at least 80% ofits assets in taxable municipal debt securities publicly issued under the Build America Bond program. The Build America Bond program was created as part.ofthe American Recovery and Reinvestment Act of2009 (the "Act") and is expected to continue through extensions ofthe Act or through other legislation providing for the issuance oftaxable municipal secwities on which the issuer receives U.S. Government support for the interest paid. The Additional Fund invests in U.S. dollar-denominated Fixed Income Instruments that are primarily investment grade, but may invest up to 20% of its total assets in high yield securities (''junk bonds") rated B or higher by Standard & Poor's Ratings Services, or equivalently rated by Moody's Investors Service, Inc. or Fitch, Inc., or, ifunrated, determined by PIMCO to be of comparable quality. The order on the Trust's exemptive application (File No. 812-13571) seeking relief from various provisions ofthe Investment Company Act of 1940, as amended ("1940 Act") was issued by the Securities and Exchange Commission on November 10, 2009, and applied to any future series ("Future Funds") ofthe Trust or ofcertain other affiliated open-end management companies that operate as actively manage exchange-traded funds. The Additional Fund will be subject to the same conditions and representations as those made in connection with the New Series. The Additional Fund will be structured and will operate in a manner which is substantially identical in all material respects to the New Series. Therefore, the Rule 10b-17 reliefrequested in this letter is identical to that requested in the PIMCO Request Letter and granted in the PIMCQ Response Letter.3 At the time ofthe PIMCO Request Letter, the SEC staff ("Staff') had previously issued relieffrom Rule 10b-17 identical to that requested herein to actively-managed exchange-traded funds (tlETFstl ). The New Series were not able to rely on the Grail Lettel because it was specific to the fund described therein. Rule IOb-17 Rule 10b-17 requires an issuer of a class ofpublicly-traded securities to give notice of certain specified actions (e.g., dividends, stock splits, rights offerings) relating to such class of securities in accordance with Rule 10b-17(b). Paragraph (c) ofthe Rule, however, states that the Rule shall not apply to redeemable securities issued by open-end investment companies and unit investment trusts registered under the 1940 Act. Except for the fact that redemption is subject to the minimum condition oftendering 100,000 Shares, the Additional Fund is
intended A post-effective amendment to the Trust's registration statement on Fonn N-IA has become effective. Letter from Josephine J. Tao, Esq. to W. John McGuire, dated November 10,2009. Letter from Josephine Tao, Assistant Director, Division ofMarket Regulation, to Stacy L. Fuller, Esq. K&L Gates LLP (April 30, 2009). DB1i65631635.3 2

Josephine J. Tao, Esq. Morgan Lewis
September 22, 2010 COUNSELORS AT LAW to function like any other open-end fund continuously offering its shares. It is in recognition.of the foregoing that the Division ofInvestment Management issued an order permitting the Trust to issue shares with limited redeemability whil~ still treating the Trust like any other open-end investment company. In addition, compliance with Rule 10b-17 would be impractical in light ofthe nature of the Additional Fund. This is because it is not possible for the Additional Fund to accurately project ten days in advance what dividend, if any, would be paid on a particular record date. Therefore, the exemption under paragraph (c) ofRule lOb-I?, which covers open-end investment companies with fully redeemable shares, should be applicable to the Additional Fund. 5 Precedent for Request to Extend Existing Relief to Additional Fund As discussed previously with members ofyoUr staff, given that the Additional Fund will be structured and will operate in a manner which is substantially identical in all material respects to the New Series and that the form ofreliefrequested herein is identical to the previously granted relieffrom Rule lOb-I?, we are requesting that the Rule lOb-I? reliefbe extended to cover the Additional Fund by means ofsubmitting this briefrequest letter, rather than a lengthy request letter restating and amending the PIMCO Request Letter. The staffhas pennitted this. method in at least three other related contexts.6 The reliefbeing requested is analytically consistent with the Division ofMarket Regulation StaffLegal Bulletin No.9 issued on September 10,2010, which stated that, subject to certain conditions, actively managed exchange traded funds("Active ETFs"), such as the Additional Fund, could rely on the exceptions in Rules 101(c)(4) and 102(d)(4) ofRegulation M under the Exchange Act which are only available to open-end investment companies, notwithstanding the fact that shares of Active ETFs are redeemable only in Creation Units. See the letter from W. John McGuire, Esq., dated Aug. 20, 2009 to Josephine J. Tao, Esq., Assistant Director, Division ofMarket Regulation, and the response from Josephine J. Tao, Esq., dated Aug. 20,2009; the letter from W. John McGuire, Esq., dated April 24, 2008 to Josephine J. Tao, Esq., Assistant Director, Division of Market Regulation, and the response from Josephine J. Tao, Esq., dated April 24, 2008; the letter from Kathleen H. Moriarty, Esq., dated January 19,2007 to James A Brigagliano, Esq., Associate Director, Division ofMarket Regulation, and the response from James A Brigagliano, Esq., to Kathleen H. Moriarty, dated January 24, 2007. DB 1/6563 1635.3 6

Josephine J. Tao, Esq. Morgan Lewis
September 22,2010 COUNSELORS AT LAW
Conclusion
Based on the foregoing, the Additional Fund respectfully requests that the Commission and the Division ofTrading and Markets grant the relieffrom Rule 1Ob-I7 requested herein. The requested Rule 1Ob-17 reliefis identical to the relief which the Commission and the Division of Trading and Markets granted in the PIMCO Response Letter. Should you have any questions, please call me at (202) 739-5654 or Michael Berenson at (202) 739-5450. Sincerely; fj~~ W. John McGuire cc: David Bloom, Esq. Audrey Cheng, Esq. Michael Berenson, Esq. DB 1/65631635.3