Baillie Gifford has asked the SEC to let one fund sell both mutual fund shares and ETF shares, and the order issues automatically unless somebody objects by 24 August
The order has not been granted yet, and it does not need anybody to grant it.
That is the operative sentence in a notice the Securities and Exchange Commission filed for public inspection on Friday: an order granting the requested relief will be issued unless the Commission orders a hearing. Hearing requests are due by 5:30 p.m. Eastern on 24 August. Absent one, the application clears.
What Baillie Gifford Funds, Baillie Gifford ETF Trust and Baillie Gifford Overseas Limited applied for on 2 July is permission to run a single registered open-end fund carrying two very different kinds of share at once. One class would trade on an exchange and operate as an ETF. One or more other classes would not trade at all, and would work as ordinary mutual fund shares. The notice calls the result a Multi-Class ETF Fund.
The two pieces of relief
The application asks for the relief in two named parts, and the split is informative.
The first is what the notice calls ETF Operational Relief, being what any fund needs to run standard exchange-traded operations consistent with Rule 6c-11. The second is ETF Class Relief, being what a fund additionally needs in order to hang that exchange-traded class off a fund that also has non-traded classes. The second part is the unusual one.
The sections being set aside
The list of statutory provisions tells you where the friction is.
The application seeks exemptions from sections 2(a)(32), 5(a)(1), 18(f)(1), 18(i), 22(d) and 22(e) of the Investment Company Act, from rule 22c-1, and, under sections 6(c) and 17(b), from sections 17(a)(1) and 17(a)(2). Those cover capital structure, equal voting rights across shares, the requirement to sell at a price based on current net asset value, and transactions with affiliated persons. Each is a rule that a conventional mutual fund satisfies without effort and an exchange-traded class does not.
What the notice does not say
It names no fund and no fee. It gives no launch date and no asset figure.
It also does not carry the conditions that will attach to any order, which is the part that will matter most. For those, and for the applicants' representations and legal analysis, the notice points to the application itself, filed on 2 July and available on EDGAR under the same file number.