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Justia › US Law › Case Law › California Case Law › Cal. App. 2d › Volume 106 › People v. Landry
People v. Landry
[Crim. No. 2718. First Dist., Div. Two. Aug. 13, 1951.]
THE PEOPLE, Respondent, v. LOUIS LANDRY, Appellant.
Leslie C. Gillen for Appellant.
Edmund G. Brown, Attorney General, Clarence A. Linn and Winslow Christian, Deputy Attorneys General, for Respondent.
DOOLING, J.
The defendant, who was convicted of the possession of narcotics, appeals from the judgment and the order denying a new trial.
Defendant operated a night club in San Francisco and had his living quarters in the same building. At about 2:30 a.m. on May 25, 1950, a party of federal narcotics agents and San Francisco police officers, after knocking several times at the door and attracting the defendant's attention, forced an entrance into the building occupied by him. As the party entered defendant was descending the stairway. Hearing the noise of the water tank of a toilet refilling the officers went to the bathroom. They found a capsule floating in the toilet bowl and recovered from the trap of the toilet a paper package. Analysis showed that a sample of the water taken from the bowl was impregnated with heroin and that the capsule and paper package each contained heroin. On the trial the defendant admitted that he had had physical possession of the capsule and package and had attempted to flush them down the toilet just before the officers entered the building. His defense was that he had found them on the floor of his night club while sweeping up after closing, and suspecting the nature of their contents had decided to dispose of them through the toilet.
[1a] Several officers testified to various incriminating statements made by the defendant. Three testified that when one of the officers said, "Well, Louis, I guess we have you this time," defendant replied, "Yes, I guess you got me good." There was testimony that defendant said of a two by four timber which had been hollowed out and fitted with a spring door that it was his "working plant," that he showed some of the officers an empty can hidden in an adjoining basement which he said had been used to conceal narcotics, and a hollow place above the kitchen door which he said had been used for the same purpose; and that he also stated that he had been forced into the sale of narcotics by a big operator of whom he was afraid. Defendant denied making any of these statements.
Defendant argues that the admission of these statements [106 Cal. App. 2d 11] without proof that they were free and voluntary was error. When the first witness was asked about a conversation with defendant his counsel urged the following objection, which was overruled:
"I am going to offer the objection that no proper foundation has been laid to determine that Mr. Landry was told as to the situation at the time now with reference to the time he was under arrest. ...
"If it is by way of an alleged confession we ought to know whether the man was informed that he was under arrest, or informed of his rights."
[2] Conceding that the incriminating statements were of such a character as to be admissible only if freely and voluntarily made (People v. Nagle, 25 Cal. 2d 216, 222-223 [153 P.2d 344]) the objection actually interposed was without legal validity. In People v. Hoyt, 20 Cal. 2d 306, 314 [125 P.2d 29] the court expressly held that a confession is not rendered involuntary by the failure to advise the suspect of his right to counsel, his right to remain silent if he desires, and that his statements may be used against him. This was followed in People v. Pongetti, 72 Cal. App. 2d 749, 752 [165 P.2d 479] and People v. Triplett, 70 Cal. App. 2d 534, 539 [161 P.2d 397].
No objection of any kind was thereafter interposed to the further testimony of any witness concerning statements made by defendant. [3] While testimony of a confession or of an admission of important incriminating facts is not admissible unless freely and voluntarily made (People v. Dabb, 32 Cal. 2d 491, 495-496 [197 P.2d 1]; People v. Nagle, supra, 25 Cal.2d 216) it is for the trial judge in the first instance to determine its admissibility "and a considerable measure of discretion must be allowed that court in determining it" (People v. Mehaffey, 32 Cal. 2d 535, 548 [197 P.2d 12]). [1b] The better practice would be to lay the foundation in advance, even where there is no objection on the ground that it has not been proved that the incriminating statements were freely and voluntarily made, but the entire course of conduct of the officers during the questioning of defendant was ultimately disclosed to court and jury not only by the prosecution's witnesses but also by the defendant when he took the stand. No claim of threats or promises which would make the statements involuntary was at any time urged upon the court. There is no magic in the order of proof and from the evidence of all witnesses, including the defendant, the court would properly have concluded that the evidence of the statements was admissible [106 Cal. App. 2d 12] if the proper objection had at any stage of the proceedings been brought to its attention. Most significant is the fact that while the ultimate determination of the voluntary character of a confession or incriminating statement is for the jury to determine (People v. Gonzales, 24 Cal. 2d 870, 877 [151 P.2d 251]) defendant proposed no instruction to the court on this subject. A reading of the transcript demonstrates conclusively that no prejudicial error was committed in the admission of this evidence.
[4] On the trial defendant attempted to develop the theory that some other person through evil motive had left the narcotic drug on the floor of his club with the design of entrapping him into the appearance of its illegal possession. To this end defendant was questioned and, after objection sustained, an offer of proof was made that a creditor was attempting to get possession of his club, including a telephone conversation overheard between the creditor and his attorney and other statements and conduct of the creditor. The court, in sustaining the objection to this testimony, which from the offer of proof contained no reference to the use of narcotics, said:
"If you can get something a little bit closer to this and can tie it in, I'll permit you to put him back on the stand. But you have to show something a little closer than just the mere fact that (the creditor) said he was going to try to get his place. If you produced evidence that (the creditor) told some one to plant this package in the Club, or something like that, then maybe it would be material."
This ruling was not error. Evidence merely of a motive to make trouble for the defendant is too remote and speculative to justify its admission. People v. Mendez, 193 Cal. 39, at pp. 51-52 [223 P. 65] discusses this question at some length. The conclusion is there expressed that "mere evidence of motive in another person, or of motive coupled with threats of such other person, is inadmissible unless coupled with other evidence tending to directly connect such other person with the actual commission of the crime charged." See, also, People v. Perkins, 8 Cal. 2d 502, 514-515 [66 P.2d 631]; People v. Wagner, 21 Cal. App. 2d 92, 95 [68 P.2d 277]; People v. Gentekos, 118 Cal. App. 177, 182 [4 P.2d 964].
[5] This was followed by the offer to prove by a narcotics enforcement officer that defendant's attorney had called him on the telephone some time before the arrest to advise him that defendant had been warned of a plot to "plant" narcotics [106 Cal. App. 2d 13] in his club, and by a police officer that defendant at one time had given the officer some cigarettes which defendant told the officer he had found in his club and suspected of being marihuana. The trial court properly sustained the objections to this testimony. In People v. Perkins, supra, 8 Cal.2d at page 514 the court quoting from People v. Mendez, supra, said that it seems clear "that evidence which simply affords a possible ground of possible suspicion against another person should be inadmissible."
[6] The defense produced a witness who testified that while he was loading a truck in front of defendant's club he saw an acquaintance known as Little Jesse get out of an automobile in which he recognized defendant's creditor before spoken of as the driver, that Little Jesse came over and held a conversation with the witness in which he asked him "to do something" and then went back to the car and was driven away. The court sustained objections to questions directed to what was said in this conversation. In his brief defendant now asserts that he would have proved by this witness that Little Jesse offered the witness money to drop or place a small package in defendant's club. No offer of proof was made to the court, counsel contenting himself with the question: "Now, what was it that Little Jesse asked you to do?"
We are not called upon to decide whether it would have been error to sustain an objection if the defendant had offered to prove in the trial court that Little Jesse had offered the witness money to drop a package in defendant's club. Such an offer would have approached the trial judge's suggestion in the language quoted above: "If you produced evidence that (the creditor) told some one to plant this package in the Club, or something like that, then maybe it would be material." We are not required to speculate on what ruling the trial judge might have made had there been an offer of proof disclosing that the request to the witness was to place a package surreptitiously in defendant's place of business. [7] "The asking of questions, unless they disclose the proof expected to be adduced, is not the equivalent of an offer of proof." (People v. Danielly, 33 Cal. 2d 362, 376 [202 P.2d 18]; People v. Fredeen, 101 Cal. App. 2d 105, 108 [224 P.2d 849].)
[8] While a narcotics officer was on the stand he volunteered the statement that defendant had previously been arrested on a narcotics charge. Defendant's counsel assigned this as misconduct and asked for a mistrial. The court struck out the offending testimony and instructed the jury to disregard [106 Cal. App. 2d 14] it. The refusal to grant a mistrial was not error. Defendant's counsel himself, over the district attorney's objection that the testimony in chief had been stricken, returned to the subject on cross- examination of the witness and enlarged upon it. The insistence of defendant's counsel in pointedly going back to this testimony, after the court had stricken it out and directed the jury to disregard it, might possibly have tended to blind the jurors to the court's admonition. If so counsel cannot blame the prosecution over whose objections he persisted in belaboring the question through the medium of cross-examination.
[9] Several attacks are directed to the instructions. The court read to the jury section 11500 of the Health and Safety Code. The defendant was charged only with possession of narcotics and the jury was clearly so instructed. They cannot have been misled by the language of the section which makes it unlawful for any person "to have in his possession, conceal, transport, carry, convey, sell, furnish, administer or give away or attempt to conceal etc. ... a narcotic," since the only disputed question was whether the defendant's possession was wilful and intentional and the jury was clearly instructed that the charge against defendant was that he "did ... have in his possession a preparation of heroin" and further correctly instructed as to what constitutes possession within the meaning of the law.
[10] In an instruction based upon section 20 of the Penal Code the court included the words "or criminal negligence." This is a stock instruction from which the reference to "criminal negligence" should be omitted where it is not an issue in the particular case. (People v. Womble, 67 Cal. App. 2d 885, 889 [155 P.2d 838].) However the jury was instructed at defendant's request that in order to find defendant guilty they must find "that he knowingly had such objects in his possession," and we are not persuaded that the jury was in anywise misled by the use of the words "or criminal negligence" in a general instruction.
[11] The court gave no instruction in the language of subdivision 2 of section 2061, Code of Civil Procedure: "That they (the jury) are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds." No such instruction was requested but defendant's counsel cites People v. Bemis, 33 Cal. 2d 395 [202 P.2d 82] [106 Cal. App. 2d 15] and People v. Dail, 22 Cal. 2d 642 [140 P.2d 828], in which cases the Supreme Court held it the duty of the trial judge on his own motion to instruct the jury in proper cases on other subdivisions of this section. We are convinced that defendant suffered no prejudice by the failure to give an instruction in the exact language of subdivision 2 section 2061 since other instructions given served the same purpose. We quote from the instructions given:
"If there is a reasonable doubt as to the credibility or reliability of any witness whose testimony is necessary in order to convict the defendant, even though the testimony of such witness may be uncontradicted, such reasonable doubt is sufficient to acquit the defendant.
"You are instructed that all people charged with crime are presumed, under the law, to be innocent. It is your duty to listen to the testimony of all witnesses in the light of this presumption. When you finally retire to the jury room ... it becomes your duty to consider such evidence in the light of this presumption. This presumption is sufficient to acquit any person charged with crime unless it is overcome by evidence that satisfies your mind to a moral certainty and beyond a reasonable doubt of the guilt of the accused; and, unless you are so satisfied it is the sworn duty of you, and each of you to vote 'Not Guilty.' "
In the light of these instructions if "the declarations of any number of witnesses" for the prosecution did not "produce conviction" in the minds of the jurors they could not bring in a verdict of guilty for they were expressly instructed not to base a guilty verdict on the testimony of any witness for the prosecution "if there is a reasonable doubt as to the credibility or reliability" of such witness, and in addition to weigh the testimony of every such witness in the light of the presumption of innocence and to bring in a verdict of not guilty unless the presumption of innocence was overcome by evidence that satisfied their minds to a moral certainty and beyond a reasonable doubt.
[12, 13] The failure to give a requested instruction on accident and misfortune did not prejudice the defendant since the instructions as a whole made it clear that the defendant's possession of narcotics must be intentional to warrant a conviction; nor was it error on the part of the trial judge to fail to give an instruction on motive on his own motion. Some reasonable limit must be put on the range of instructions which a judge will be required to give sua sponte and without [106 Cal. App. 2d 16] request. If not the failure of a defendant to request instructions may become a trap for the unwary judge, who might well have given the instruction if requested but who cannot foresee the fertility of counsel's mind in producing as afterthoughts possibly relevant instructions which neither he nor the judge thought of during the trial. An instruction on motive clearly falls outside of any such reasonable limit since "proof of motive is never indispensable to a conviction." (7 Cal.Jur. 855.)
Unless we assume that an entire group of enforcement officers committed deliberate perjury the evidence abundantly supports the judgment.
The judgment and order appealed from are affirmed.
Nourse, P. J., and Goodell, J., concurred.


Manchester United will resist any bid for Paul Pogba this summer, sources have told ESPN FC.
Pogba has been more settled at Old Trafford since the departure of Jose Mourinho in December.
United explored the possibility of signing Ivan Rakitic from Barcelona as Pogba's relationship with Mourinho deteriorated but interest in the Croatia international has cooled since Mourinho's dismissal and Inter Milan lead the chase to sign Rakitic if he is allowed to leave Camp Nou at the end of the season.
Pogba, meanwhile, has played a key role under Mourinho's replacement, Ole Gunnar Solskjaer, scoring nine goals in 17 starts for the Norwegian. He has been an advocate of Solskjaer getting the job permanently and the 46-year-old could be installed by the club as early as this week.
United have already tied down Anthony Martial and Luke Shaw with new contracts while talks with Marcus Rashford -- who Barcelona are interested in signing -- are ongoing. The club are committed to keeping their core of young players together -- a group that includes Pogba.
Even in the absence of a new deal, United will be under no pressure to sell this summer with Pogba under contract until at least 2021. They also hold an option to extend the agreement by a further 12 months.
Despite his early season problems under Mourinho, Pogba is enjoying his most productive campaign since making his professional debut with 14 goals in 37 games, eclipsing his previous best of 10.
After being stripped of the vice-captaincy by Mourinho in September, the former Juventus man was handed the armband by Solskjaer for the 2-1 defeat to Wolves in the FA Cup.
ESPN FC has contacted Pogba's agent Mino Raiola for comment.


MIDLAND, Mich. - In conjunction with the Los Angeles Dodgers, the Great Lakes Loons are pleased to announce the team's preliminary roster for the 2019 season. The Opening Day roster will be finalized prior to Thursday's game against the Lake County Captains in Eastlake, Ohio.
+ Right-handed pitcher Nathan Witt (Clarkston, Michigan State) and outfielder Daniel Robinson (Detroit, Central Michigan) are both Michigan natives and attended in-state colleges.
+ Robinson, the former Chippewa, hit .332/.423/.463 with 36 RBI in 57 games for Rookie-level Ogden last year.
+ James Outman (11), Dillon Paulson (10), Niko Hulsizer (9) led Rookie-level Ogden in home runs last season; Outman's 11 home runs ranked fourth in the Pioneer League; Paulson's 61 RBI led the Pioneer League.
+ Hulsizer, who attend Morehead State, was the 2017 College Home Run Derby Champion; finished second in the NCAA in 2017 with 27 home runs; hit 44 career home runs in college.
+ Jacob Amaya, who played 27 games for the Loons in 2018, hit .311 for the season in 59 games between Ogden and Great Lakes.
+ Josiah Gray joined the Dodgers on December 10 as one of three Cincinnati Reds players involved in the Yasiel Puig traded; was previously the No. 13 prospect in the Red system according to Baseball America.
John Shoemaker returns as Loons manager for the 2019 season. "Shoe" guided the Loons through the 2011-12 seasons, as well as in 2018, and is entering his 43rd season in the Dodgers organization and 26th season as a minor league manager. Drafted by the Dodgers in the 35th round of the 1977 draft, the 62-year-old has been with the club ever since; as a player (1977-80), manager, coach and coordinator. Shoemaker was appointed the Dodgers' "Captain" of Player Development in 2015 and currently sits on 199 career wins as Loons manager.
One-time Loons reliever Luis Meza has made the transition to coaching with the Dodgers and will serve as the team's pitching coach for the 2019 season. Meza pitched for the Loons in 2013 and spent the previous three years as a pitching coach in the Dodgers summer leagues.
Justin Viele joins the Loons for the first time in his third year as a coach in the Dodgers organization. Viele previously served as the hitting coach with High-A Rancho Cucamonga (18') and Rookie-level Ogden ('17). The 28-year-old was drafted by the Baltimore Orioles in 2013 and had a two-year playing career.


text:
Armillaria limonea is a species of mushroom in the family Physalacriaceae. This plant pathogenic species is one of three Armillaria that have been identified in New Zealand (the others are A. novae-zelandiae and A. hinnulea).

See also
 List of Armillaria species

References

limonea
Fungi described in 2001
Fungi of New Zealand
Fungal tree pathogens and diseases

redpajama_set_name: RedPajamaWikipedia


Find Ronkonkoma homes for sale, Ronkonkoma real estate agents, and Ronkonkoma house values. Get access to Ronkonkoma listings, top Ronkonkoma REALTORS, new homes and foreclosures. Our free real estate services feature all Ronkonkoma and nearby towns. We also have information on mortgages, insurance, movers and other services for anyone looking to buy or sell a home in Ronkonkoma.


The Central Connecticut softball team will welcome the Quinnipiac Bobcats to CCSU Softball Field in New Britain, CT for its home-opener on Thursday. First pitch is slated for 3:00 p.m. The Blue Devils enter Thursday's contest at 6-12 on the season, last defeating Seton Hall in South Orange, NJ 6-1. The Bobcats are 8-13 and are also coming off of a victory over Saint Joseph's University 4-1 in Clearwater, FL at the USF Michele Smith Tournament.
With a win over the Nutmeg state opponent, Central Connecticut fifth-year head coach Breanne Gleason will eclipse the 100th career win milestone. Gleason currently holds a 99-92-1 (.516) record at the helm of the Blue Devils.
The match marks the 27th all-time meeting between the two schools, with QU holding a 24-12 advantage in the overall series. CCSU and Quinnipiac last met back on April 30, 2015 in Hamden, CT that resulted in a Bobcat 2-1 win.
CCSU will host a pair of non-conference doubleheaders this weekend on Saturday and Sunday. The Blue Devils will first see Manhattan on Saturday at 12:00 p.m. and 2:00 p.m. and then Iona on Sunday, also at 12:00 p.m. at 2:00 p.m.


Hello and thanks for visiting. We are updating the Dickerman Family Organization website to make it easier for future genealogists to track our current research efforts.
These pages are dedicated to past, current, and future descendants of Thomas Dickerman, our original immigrant ancestor who arrived in America in 1635 with Rev. Richard Mather of Bristol, aboard the ship James.
Please feel free to browse or add your comments below.
You may also contact the website author directly by emailing: jeff@dickerman.org.
I copy of a link to a photo of my 3great uncle Oliver A. Dickerman in his Union Army uniform. He was born in Ashley, Illinois (Washington County in about 1838). I assume he was from a different line from your line.
So we are definitely cousins with a split at Ebenezer's generation. Do you have any forward lineage details you'd like to share? You may contact me privately at jeff@dickerman.org if you prefer.
I am an archivist assistant at Michigan State University Archives and Historical Collections. I process the Civil War Letters collection and I came across a letter addressing Mary (Russell) Payne as "sister." It does not seem to be written by either Albert or Dorcas, so I just wanted to make you all aware of the letter since Mary Russell's immediate family seems rather elusive in the historical record. If you are already aware of the letter, I was hoping you could help me determine who the writer actually was.
If that does not work for some reason, simply go to MSU's Civil War Exhibit Website, click on "Collections," go to "Bamber Family Papers," then find the letter dated January 5, 1864.
I hope you find this useful. Please feel free to inform me if I have made any mistakes in the collection regarding the Dickerman Family Tree. It is a fascinating but complex genealogy.
Thanks for your note – very sorry about the late reply. Your letter was addressed to Mary (Russell) Dickerman – my great-great-great-grandmother. After her first husband died in 1850 in California (one of the 49er's), Mary moved to Gratiot County, Michigan, and married Arnold Payne – one of the early settlers in the area.
Your letter is a most welcome addition. My cousin, Russ Dickerman, has done extensive original research into the Russell family in New Hampshire. We believe the father of this family was William Russell and mother Polly (aka Mary) Dakin. According to physician records we know there were several children including Dorcas (b. Mar 1808), Diantha (b. abt 1810), Albert G.(b. abt 1812), and another child b. abt. 1822. The records are incomplete, but we believe that Mary was the eldest sibling of this family, b. 24 Apr 1806. Mary died 30 Aug 1865 in Michigan and is buried at Maple Rapids, Michigan.
Unfortunately the signature page appears to be missing from your letter. However, the upside down note at the top of page 1 appears to have been signed by a cousin Ann. Can you tell me how the Bamber Family Letter came into your collection?
Your email address that is on the page no longer works so I hope this might get through to you. I have been researching my grandmothers birth parents as we know nothing about them. Turns out Howard R. Dickerman was her fathers name and they are in the city she was born in in the 1920 census. I think he may be my great grandfather but I am still in the process of trying to get original birth records. He was a cable splicer for a telephone company in MA and it coincides with the Howard Dickerman marker you found with a date of death of April 16, 1968.
It's been a while since I checked on the site. Sorry about the delay. Fortunately we were able to correspond privately to answer your questions about your great grandfather Howard R. Dickerman.
For future reference, you can always reach me at jeff@dickerman.org or jeff.dickerman@gmail.com. Let me know if you've found any new information on your grandmother or great grandfather and we can compare notes.
Oliver A. Dickerman would be my 3great-uncle. His sister Angelica Dickerman Bird is my 2great-grandmother. She was the mother of my great-grandmother Martha Olive Bird Buck married to L. L. Buck, and one of my grandmothers was M. O. B. Buck's daughter Nellie Bird Buck Gallagher who was the mother of my mother Gertrude Gallagher Flinn. Nellie's husband was O N Gallagher, the father of my mother Gertrude.


text:
Music Industry Strikes Again! 8000 New Lawsuits Filed
Kate Holton (reuters@telecom-digest.org)
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By Kate Holton
The music industry has launched a fresh wave of 8,000 lawsuits against
alleged file-sharers around the world, escalating its drive to stamp
out online piracy and encourage the use of legal download services.
The International Federation of the Phonographic Industry (IFPI),
which represents the world's music companies, said on Tuesday the new
cases were brought in 17 countries, including the first ones ever in
Brazil, Mexico and Poland.
The trade group said more than 1 billion music tracks were illegally
downloaded last year in Brazil, the largest market in Latin America.
Record company revenue has nearly halved in Brazil since 2000, IFPI
IFPI has said some 20 billion songs were illegally downloaded
worldwide last year.
The industry has now filed about 18,000 lawsuits in the United States,
the largest market for music sales, and 13,000 in the rest of the
The legal proceedings involve both criminal and civil suits and are
aimed at "uploaders" -- people who put copyrighted songs onto Internet
file-sharing networks to offer to music fans without permission.
The IFPI said many of those targeted for legal action were parents
whose children had been illegally file-sharing. Others facing law
suits included a laboratory assistant in Finland and a German parson.
The group added that more than 2,300 people had already settled their
case for illegally file-sharing copyrighted material with an average
payout of 2,420 euros ($3,034).
John Kennedy, chairman and chief executive of IFPI, told Reuters in an
interview he was encouraged by the group's progress, although he said
the fight against online piracy would be an ongoing battle.
"It's not getting easier but we are encouraged enough by the results
to keep on going," he said via the telephone from a trip to
Brazil. "It will never go away completely."
He said the success of high-speed broadband was combining with the
threat of legal action and fears of computer viruses to encourage more
and more users to opt for legal online services.
While the cost of pursuing individual legal cases has been very
expensive, he said the music industry had benefited from its settlement
of more than $100 million in July this year with long-time antagonist
Kazaa, one of the world's best known file-sharing networks.
"It put some money back into the war chest to try to clean up the
online world," he said. "Legal offerings will only thrive and open in
different countries if there is a chance of them succeeding."
Legal downloads represent about 11 percent of total music sales, but
still do not make up for declining CD sales. Total music sales
declined 4 percent in the first half of 2006.
Kennedy said the drive to see digital sales make up for the loss in
the physical format was the "holy grail" for the music industry and
said he hoped to see it happen by 2007.
Copyright 2006 Reuters Limited.
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text:
ETFs: The surge to participate, and how
Play the video >
Read the transcript and Q&A below:
Learn what makes an ETF successful, the cost and mechanics of launching an ETF and how to market one. We'll also reveal various structures available including, passive, active and non-transparent ETFs and recent trends in strategies.
Mike Castino, SVP, Exchange Traded Products Bus. Dev., U.S. Bancorp Fund Services.
Sonja Formato, Senior Director, Distribution Consulting, Foreside
Brett Eichenberger, Partner, Cohen & Company | moderator
TRANSCRIPT AND Q&A
We have a great panel here set up that we're excited to get started on today. Before we get into that, I'll do a quick introduction of myself. Brett Eichenberger. I'm an insurance partner with Cohen & Company. Also the practice leader of a registered funds group. Cohen & Company, just to give a quick background is about a 600-person accounting firm with offices in Cleveland, Chicago, Milwaukee, Pittsburgh, Detroit, New York, and Baltimore, and work with a variety of industries and businesses.
Specifically, I'm involved in a registered funds practice where we provide audit and tax services to over 950 mutual funds, ETFs, closed-end funds, interval funds, and business development companies, which actually makes us the fifth largest auditor of registered funds in the country. And actually with respect to ETFs, which we're gonna talk about today, we're the fourth largest auditor of ETFs in the country, and actually work with more ETFs advisors than any other accounting firm.
So very excited to introduce my panelists today with me. We have Sonja Formato from Foreside, and Mike Castino from US Bank. Sonja, do you want to go ahead and introduce yourself?
Sonja Formato:
Sure. Thanks, Brett. And hello, everyone. Good afternoon. Glad to be here. So as Brett said, my name is Sonja Formato. I'm with Foreside Financial. So Foreside provides distribution compliance services to open end and closed end funds, exchange traded products, commodity pools and private placements. We pair comprehensive and customized advice with best-in-class technology to help our investment management clients continue to innovate, improve, and grow.
So from an ETF perspective, we have over 100, I would say as of May, at the end of May, we have over 180 billion in assets under distribution across 55 trusts, and 122 issuers, as well 600 funds. So my role specifically is to work with our clients and partner to kind of share best practices around distribution and the landscape, as well as to continue to build relationships with the intermediaries. Glad to be here today.
Brett Eichenberger:
Thanks, Sonja. Mike?
Mike Castino:
Thanks, Brett. And hi, Sonja. And hello, everybody. Good afternoon. Good morning. Good evening wherever you're at. Here at US Bank, we are a global custodian and administrator. Along with those two items, of course comes accounting and transfer agency. Specifically in the ETF space, I currently work as a business development officer here at US Bank helping both existing clients, and anyone who wants to utilize our services, find the right path into the ETF space. And of course that brings us, here at US Bank, quite often into contact with our friends at Cohen, our friends at Foreside, and friends at SunStar.
Thanks, Mike. So we're going to talk a lot today about launching an ETF, selecting the best wrapper for your product, and then we're gonna talk about marketing distribution with respect to ETFs. So I'm gonna kick it off actually to start with Mike. I know there's a lot of different ways to launch an ETF, whether it's going white label, going within an established multiple series trust, or launching your own trust. I guess I'm curious on, you know, kind of an overview of each one for our attendees today, and then kind of the couple the pros and cons of each of those different ways of launching an ETF.
Sure. Absolutely. So maybe I'll caveat that first by saying whether it's our team here at US Bank or an independent third party counsel, please definitely always, you know, check and verify what's the best structure for you. But at the highest level in the 1940 XI of the ETF world, you're exactly right, Brett. A trust comes into play, and it has a lot of different names. White label trust. Series trust. Shared trust. Standalone.
But basically what that means is there is a regulated investment company or a reg under the 1940 Act that's been established with a board and officers and all the proper third parties, such as a medallion distributor in the ETF space auditing tax firms, third party legal firms, that will perform all the rules necessary to make sure that you, if you become the adviser, have the ability to launch your funds, your ETFs in that trust. Now that's where the term "series" comes from, right, because every single ETF or mutual fund is a series of that trust.
So the real key to the structure is determining those roles, meaning do you want to be the adviser to those funds or to the series of the trust, or do you want to work with someone who will represent you as an adviser? That's where the term comes in "white label". That firm will actually be the adviser representing you to the trust. And a standalone trust isn't anything different, for example, as a shared trust or a white label trust. It just simply means that you went out and put all these pieces together and registered with the SEC, and you are the adviser running the whole thing yourself.
Now I'll say one other quick thing on that. We talked about the white label where someone represents you, a standalone that you built specifically for your own purposes. That third category, Brett, that you mentioned, sometimes called multiple series trust, is in reality what we might call a shared trust. It's multiple advisers bringing their own funds.
In years past, you'd bring your own relief, but we'll talk more about where that's needed, and not later, but you come in you represent yourself as an adviser and you share the trust with other advisers, therefore, making it more cost effective to you and operationally-efficient to share all of those necessary requirements to run your ETFs or your series within that shared trust.
And what you mentioned there with respect to exemptive relief, I mean let's talk a little bit about timing. Right? So I'm wanting to launch an ETF product. What's my fastest route to launch a product? What are the timeframes with respect to doing it myself, going within a series trust? And then, you know, with the ETF rule, specifically, how do I know whether I fall under the ETF rule requirements or whether I have to go and get exemptive relief 19-B4 type of process?
Right. Yeah. So if we take the 19-B4, for example, we can just kind of get that one out of the way specifically because that relates to the listing exchange and what they have been granted to list or not granted to list by the SEC. So if the product you're bringing to market doesn't fit what is generally known as generic listing standards, then the exchange on your behalf would petition the SEC through the 19-B4 before process to be able to list your shares on their exchange.
So we can kind of button that one up and put that in the realm of the listing exchanges for them to more fully develop if someone needs more info on that. But you if you go back to what is necessary for what is needed to have exemptive relief and what's not. A general rule of thumb right now in the industry, if you are fully transparent, you know, i.e. not fully nontransparent or not semitransparent, your holdings are known on a daily basis, then you fall under what's generally called the rule 6 C11 ETF oversight, which basically means no relief is needed.
You go back to that first topic and you say standalone trust, find a white label adviser, or potentially act as adviser enjoying a shared trust. The other side of that equation with all these new forms of intellectual property that are revolving around nontransparent and semi-transparent, those you will need to petition the FCC for exemptive relief. The good news there is that that field's been plowed already. You wouldn't be a Guinea pig in that area, so generally, it's almost like a template form a relief that many legal firms can do for you.
Okay. So as long as you fall under, you know, some of the traditional products that fall under the relief, the timing with respect to going white label, series trust about the same, and maybe a little bit longer if you're going on a standalone basis just because there's more, you know, because it's your first time filing and there's more things that you need to do with respect to a seed audit, and an initial registration statement, things of that nature.
Right. Absolutely. Yeah, and we just touched the surface on those. Like I said, there's plenty of good lawyers and legal teams out there that can help you really dig in.
Sure. Sonja, let's – Mike mentioned a little bit about the various structures, you know, the wrappers. We have semi-transparent. We have full transparent. We have non transparent now. ETF wrappers available. Can you talk a little bit about, you know, I run a strategy, you know, but I'm really interested in launching, say, a non-transparent ETF. Does that always make the most sense or do you really need to kind of look at the strategy that you're looking to launch, your particular portfolio, and then decide which structure from a wrapper standpoint that you're going to go into?
And Brett, that's a great question and helpful to build upon what Mike has already shared. I think, first off, you want to make sure that the marketplace is looking for whatever you're thinking of bringing to market. You know, I do continue to see, you know, launches out there. What I think initially the first considerations need to be about, do you have demand for the product, and is there need for it the marketplace because that's gonna be key long-term as you're talking through marketing and distributing that product, critical to growth scale and continue to build upon, you know, your great success.
From the structure perspective, I think you have to think of a number of different things. With the semi-transparent or non-transparent coming to market, what's been great about that is that has really allowed, you know, asset managers, mostly equity asset managers who previously didn't want to dip their toe in the water and leave a mutual fund structure to be able to launch an ETF and still protect their intellectual property, and not disclosing daily their portfolio holdings. So that's definitely been, you know, the talk of the town, and every other Ignites article that's out there, and ETFs kind of trends.
But there is still, you know, kind of great work being done on the active transparent side. So I think it's really depending on what you're bringing to market. If you're looking to shield those holdings from, you know, kind of your secret sauce from someone front running that. I mean if you look on the active side and who's had success, I mean ARKK has had great success and their fully transparent. And it's just, you know, what they're bringing to market, they feel they can share that. You know, there's been a lot of active on the fixed income side.
So I really think it comes down to taking a step back, the type of asset class you're coming to market with, what type of, kind of transparency are you comfortable disclosing, and then how are you going to get there is really putting the pieces together. If you're going to need to license one of these new models to really kind of shield that, or you're gonna be able to go fully transparent, or you're a passive fund that, you know, is the new next provider that can obviously, you know, launch a product that is not going to need to be concerned on the active side. So I think there are a lot of considerations, but that, as Mike said, just scratches the surface for that the two things going on right now.
Mike, anything to add with respect to that?
Gotcha. I mean I think that the most important point that Sonja is making is you're not gonna tell the marketplace what it wants. You just can't do that. I mean we've seen that too many times where they're gonna love us just wait. I mean how many how many funds and families have not made it because of that. And Sonja, I don't know what you think, but I find that the ETF space is very receptive to people reaching out, you know, pre-launch or pre-discovery and just asking them, whether that's a specific wire, house or regional broker dealer, or even a large RIA family. Go ask them what they want.
Absolutely, Mike. And I think that's where you really need to think about overall your kind of product, pre-launch in the planning and the product development. And who I am as an asset manager? What am I bringing to the marketplace regardless of what vehicle I'm bringing it in. And if you have great relationships with the wire houses, or an RIA, or in fact on the primary market side, you know, talking to the trading desks around what they're seeing, what are they trying to solve for? What do their clients need?
And instead of trying to just retrofit and think what you do well into the marketplace, Mike, as you just said, let's think about this together and bring a solution to market that's going to help their clients. Because then you're really going to have that initial demand that's necessary, and that ongoing demand. Because if one's needing that, there are other folks out there amongst the 300,000+ advisors that are trying to solve for the same things.
And I think that brings an interesting conversation even to build on that. I know it's not part of the question. But, you know, when you start seeing all the trends of what's happening, you know, the big things coming out of Covid and all the interesting products that there's been demand around have been the schematic that across sectors, you know, they're really dabbling in a little bit of everything. And folks are getting energized around, you know, the new ETFs have a lot of, you know, active investors that are individual investors.
They also have, you know, financial advisors were looking to help their high net worth clients with tax efficiency. But it's been really interesting to watch the trend around these schematics. And you know, every time, Mike, we're talking to clients, and you know, common clients, you're hearing cannabis or you're hearing AI. So it's a lot of interesting things going on in addition to great managers doing things in the traditional asset classes.
Yeah. I mean, I think, Brett, I think the very last thing I would say help that is I'd rather bring the right product in due time than the wrong product in a short amount of time because you know the results there.
Sonja, you brought up a great point which is almost that the ETF is becoming a technology play, and that the product is very efficient both from a trading standpoint, which we'll get into from a tax efficiency standpoint, which we'll touch on a little bit but that's you know that the marketplace has become very receptive, and the investor basis changed over time with respect to ETFs, and we're seeing a lot more, you know, retail investors in the products.
I wanna go back for a second because, Sonja, you kind of brought it up. We've developed what type of product we're going to bring to market. We have our strategy. Now we have to find capital with respect to launching the product. Right? It's a little bit different from a mutual fund in that, you know, you have to have your initial creation of the product. Mike, do you wanna talk a little bit about that environment for seeding, a) where you're gonna get your AUM from. Is it in-house captive already in your management company or you're going to go out? Let's talk a little bit about the funding of the ETF product.
Yeah, absolutely. So I think you can break it down to the basic components. Right? You hear the term "lead and seed" for example to get a fund out of the gate. You need a lead market maker after you choose your listing exchange, and then we'll need that seed capital for the exchanges requirements to get that fund off the ground. And obviously that translates into a certain amount of shares. So, traditionally, it used to be 100,000 shares at a $25.00 NAV, which most ETFs came to market.
Obviously, the math there is 2.5 million in seed capital that you would hope that your chosen lead market maker would put up. That's quite a bit of money on anybody's balance sheet to kind of tie up and hope that you would get out of it. Now the exchanges have been granted the ability to bring products to market at lower share thresholds, sometimes as low as 10,000 shares. So that requirement has gone down to obviously the lowest level, about $250,000.00 in some cases. So the burden is taken off of going out and asking for that 2.5 million from the lead market maker themselves.
Now, you would think that would make things easier, but even sometimes you'll get someone to say, "I will be the lead market maker if you find somebody to be your seed partner." To your point, Brett, you can do that internally. You can have money that you can use to put into the creation of those shares prior to launch, to have that inventory, or there are other ways that you can, let's say, compliantly and legally take somebody out of their seed shortly after launch. Again, another whole side conversation.
The second part, I'll just dabble on really quick, and then just kind of toss it back to Sonja on this one for your expertise. But, you know, you talk about that long-term AUM that's going when that's going to sustain the ETF, itself. Do you have captive AUM within your firm that you can dedicate 25 million, 50 million? Do you have a third party that says we'll put 100 million in? Are you creating a bespoke ETF for someone that says, well, put 500 million in. You got that captive in-house. But then the other side of that equation is if you don't have that, you're gonna have to go out and capture it with a well-thought-out plan.
Yeah. I think that's key there. Mike, you bring up an excellent point. Regardless of what you capture in the beginning or what you seed it with, that well-thought-out plan and kind of that approach to the market is critical for success. It needs to be in place way before you start thinking about kind of the launch. And that's gonna be important both on the primary market and on the secondary market when your sales folks are going and talking to those, you know, financial advisors.
I would say another interesting thing to bring up that Mike kind of mentioned. There's so much going on here. We've heard a lot with the first mutual to ETF conversions. You know, bring your own assets in the sense of I'm converting over a structure which, you know, I feel the – you know, gone through the whole process, and I feel it's going through in an ETF wrapper. Now that's not for everyone. And there's a lot of interest. We've talked to a lot of asset manager clients since Guinness Atkinson and Both DFA have kind of made kind of a splash this year.
That being said, it's a very lengthy process. There's a lot of considerations that go into that. This could be a webinar on its own. You know, there's strategic considerations of, you know, will my strategy fit in the wrapper? You know, can I manage it in an ETF to the governance and factors around that, as well as additional operational requirements? It's a comprehensive project that needs to be managed and ticked and tied as you walk through it.
And, you know, I think in a lot of ways, we had a lot of clients on this webinar who have mutual funds. Now mutual funds are still predominantly a large slice of the pie. They continue to grow. They're not going anywhere. I do think, you know, they're seeing a lot of their success from a lot of the 401(k) plans, where ETFs can't go. So I think there's a lot of things to think about there, but definitely another way to bring over assets that folks are starting to think through of bringing those assets over and start at a scale so that they can move forward and grow from there.
Yeah, Mike, I know you're probably having a lot of the similar conversations with respect to converting a mutual fund, or even we're having conversations with a number of folks that talk about converting, you know, SMA accounts to an ETF as well. And you know, I guess, Mike, what are some of the operational items that you're working with clients through with respect to, you know, if they have direct accounts and how you're getting those onto, you know, an intermediary and things of that nature, and some of the other items that you guys are dealing with from an operational perspective?
Yeah, so I think that if we talk about that, like let's say a private fund or a hedge fund, an ETF, or SMA to ETF, that's a little bit less of a lift obviously than a mutual fund. It's a little bit smoother. We've done that several times for clients. And, you know, obviously it's all about trying to make that event tax-free for the shareholders themselves. So there are some hurdles that you have to look into. It's not just automatic that on a 351 exchange for an example in the SMA world, you can just check that box and move everything over. So there is some preliminary steps.
But, operationally, it's easier, as you mentioned, than a mutual fund to ETF. And of course what you're talking about is there's different share classes. There's different types of shareholders. There's legacy record retention that you have to deal with even though the mutual fund sunsets and is closed. You still have a TA component. So you have to have a well-thought-out project plan. You have to look into what's the makeup of the share classes for example. Are you gonna need to collapse them? Number two, can you get to all these accounts? Let's just talk about how. Can you get to every single shareholder?
Now, again, this is regardless of whether you're going to do this by board approval alone or go out to proxy. Okay? That's a whole other debate whether or not people need that. But once you have enacted that strategy, now you have to find these people theoretically, or not find them, but have a mechanism because at night they're gonna go to sleep a shareholder in a mutual fund, and then the next day, theoretically, wake up as a shareholder in ETF.
That means you need a brokerage account because, of course, working in the primary market with mutual funds exclusively, but now bridging the gap between the primary and the secondary market because you're listed on an exchange. So little nuances like that bring up the phrase or the cliché simple but not easy. There is a pathway that we have seen, but every case cannot be treated like template. You have to take a deeper dive into each individual situation.
And I would build on that 100 percent, Mike. I think everybody needs to think about that individually. Because even though there is a template out there, it's not gonna be the same. Your shareholder base is going to be completely different. It might not be appropriate for an ETF wrapper. The other piece of it that I would highlight is to continue to keep all the service providers in the loop because the intermediaries are key there.
No, those are all are great points. So let's talk a little bit about, you know, we're talking about, you know, if you run a mutual fund and some of the nuances of launching an ETF product today. So one of the things that we're we keep mentioning is the primary market. And so what can we talk a little bit about, Mike, maybe first start with you, with respect to building relationships with the market makers and the authorized participants. Maybe talk a little bit about those two parties and then how your ETF would interact with them.
Sure. Absolutely. So I'll give you kind of structured out a little bit if you think about that just to clarify roles in terms. That authorized participant is gonna stand between the primary and the secondary market performing a function, right, for the fund, itself, as well as any type of let's call it a client that the AP might service. Now that client might be a trading desk within their own firm, or that firm has an AP desk and a trading desk, whether it's LLM or proprietary. Or that AP may have a third party, a trading firm that doesn't perform the AP function. So a firm like Foreside has the ability to contract with them so they can perform this function.
And a firm like US bank as a custodian administrator will be the ones to make sure that shares are issued and shares are redeemed in the proper fashion according to the ETF itself, according to the portfolio and portfolio manager's wishes. We could do a whole webinar, itself, the tax mitigation strategies that the SEC is not allowed in the ETF space to the benefit of everyone. But just going back to those roles, again, we'll all be working with each other, everyone from the exchange, to the lead market maker, to what you might call secondary market making desks, to their chosen authorized participants.
So it's our job in conjunction with Foreside to make sure that that conduit, that flow between the primary and the secondary market is set up just the way everyone needs it. Not just about the adviser or the fund family, but how does the AP want it to be done, and how does that client of the AP, that lead market maker or that secondary liquidity provider? Because there's risks and there's balance sheets involved here so you have to make sure that everybody has things set up the right way.
I would add on to that, to build upon what Mike has shared, I think what's critical to understand, too, when you come from the mutual fund world, you're getting agreements in place with the intermediaries, you know, to make them available on their platform. We get so many questions around: "Well, what type of –?" And we'll go into some distribution pieces with the intermediaries and secondary market.
But I think what's critical, as Mike said, the authorized participants now are really going to be the necessary individuals that you are going to be engaging in agreements with, you know, to kind of make a market in overall, you know, to kind of create and redeem the shares. So there's a whole new ecosystem of relationships that you need to build. It's more of the trading desk capital markets discussions versus a sales person talking about, you know, what your strategy is doing, and to the end investor.
But those folks are still going to want to understand. They're gonna be specialists in certain things. They might focus on, you know, more international equity, or they might work with, you know, different –. There's going to be an evaluation of those, and that's where you need to think about it, too, when Mike was talking earlier about the series trust and the standalone. If you're going in a standalone, you're starting fresh and that's where it's going to be the timeframe is going to be more, Brett, as you noted.
When you're working with a series trust with something like, you know, with US Bank, they've established authorized participant agreements in place already. So as you get in there, there's agreements in place already. And as part of that trust, you're getting, you're leveraging that. So I think that's key to say Mike, too, because you know US Bank has established so many relationships. Foreside as well.
And I think working together, you know, as all series trust do with their different service providers, they can provide those introductions. They can provide guidance around who might be best to talk to and begin those conversations, as well as help you build those relationships.
And, Sonja, I think that brings up a great point you just mentioned with respect to the kind of the specialist in the industry. One thing that, you know, traditional mutual funds generally have, you know, portfolio management in-house and trading in-house. One of the things we've seen is a trend is really outsourcing that with respect to ETFs. I guess what is the reason where you would outsource the actual portfolio management and trading of the fund. What are some of the benefits of that with respect to an ETF?
And I'm gonna punt over to Mike because I think he's better served, if you don't mind Mike to answer that one.
No. Not a problem at all. I mean, you know, there's two components to that I think I can focus on. And one brings us back to the to the trust level 1940 Act issues. Right? You're going to a board, whether it's a board you put in place, or it's a board that a white label adviser put in place, or a board that's in place share trust, and you're going to go to them with this sub adviser, and say, hey, we're working with them. We checked them out. They have the competency to make sure that this, for lack of a better term, this ETF doesn't blow up. Right?
And it's gonna follow the 1940 Act, and we're gonna be as tax efficient as possible for the benefit of the shareholders because that's what's on the mind of the board. Everything has to be run for the benefit of the shareholders. So to demonstrate that competency in things such as helping you create the main PCF and all of the other PCFs that your use on a daily basis, again, using just high level terms here. You could go into a whole other webinar about using these types of substitute baskets and pricing baskets in let's say the normal create redeem basket for the day versus the substitute ones.
So a little bit of skill in that obviously helping you with that, making make sure that you're aligned with the portfolio management strategy, your fund. But also on the other side of that, on the practical capital markets side, they've got great relationships. Right? And you're going to want to make sure that your subadvisor can help you take advantage of every single opportunity to do a custom creation or redemption to mitigate capital gains within the confines of rule 60-11 or whatever structure that you're following.
These things are not given. They're available to you, but nobody is obligated to step up on the other side in the capital markets and do this for you. Relationships matter. Skill matters. And, again, being able to have somebody that can help put that counterparty on the other side of this tax mitigation at ease in terms of risk, but they may not know you and they may not want to engage with you. But well established third party portfolio manager can help both the board feel comfortable as well as those third party capital markets folks that you wanna work with all the time.
So that would be one of the – excuse me, two of the benefits that I would cite on that. And if you don't have it out of the gate, these firms are great too. They can work with you for a couple years, or they can come side-by-side with you and be a consultant. So they're very flexible on how they might work for you – with you.
You bring up an interesting point, Mike. It goes back to really the first question I asked, which was related to series trust, white label, standalone. I know you've seen it as well, but I've seen it too, even large, you know, asset management firms have made the conscious decision to go within a series trust for some of those reasons that you just mentioned. It's not that unusual to say, you know what, this is new to me. The ETF market is new to me. I want to go alongside somebody that's gonna show me the ropes.
And then eventually maybe I want financially maybe I want to, you know, go out on my own at some point. I have that option still available. But for the first several years, first few products, this is the way I'm most comfortable doing it. I think we've seen that trend as well.
Yeah. You know, I'll be really brief with that, Brett. I mean, look, if you come into a trust, a series trust – excuse me, a shared trust with multiple advisors here at US Bank that's in place, you're not held hostage. We don't own that trust. Trusts are established, and then the board members, the independent board members are the be-all, end-all. They have all to say. They're charged with the responsibility of hiring advisers to run these funds for the benefit of the shareholders.
So even though we started a trust, and now our clients are utilizing it here at US bank, if we fell down on the job, just like anybody else, it's incumbent upon the board to replace us. So I think that's really the key to it, right, is making sure that you know that you know that this find is ultimately in the hands of the board, and all of us have that responsibility to perform our roles the correct way under the 40 Act.
Yeah, great point. Sonja, I know we want to get into marketing distribution. We're getting already some questions rolling and from the audience that we will get to, I promise everyone. But I want to get into, you know, one other piece of the puzzle that once you've kind of gone through this process, one thing that comes up is an investor wants to buy into the ETF, but they're seeing potentially some large bid ask spreads.
You know, who at the organization at the ETF that's launching the product, who would they call with respect to, you know, best execution, so to speak, of buying the product? And what are some of the conversations you had at firms that like this is our, you know, this is the type of internal person that we need to handle these types of inquiries.
And it's a great question. I think it builds upon, you know, a lot of what Mike has shared. You really need someone that understands kind of the capital markets and trading, and kind of the interface internally, helping investors to be able to implement the strategy. And I think we'll get into more of that as the marketing piece of it, or you know, kind of the investors, but with the primary market and working with the authorized participant and market makers to make sure that, you know, the volume is there. They're able to keep kind of the spreads tight.
Those are all key pieces of kind of the ETF as it trades like a security. So you need that person who's able to interface in that way. That's going to be a new role for a lot of firms because, you know, you have your portfolio manager, who's managing the strategy. You're not really thinking about, you know, kind of how that's interfacing with the primary market. So really looking at, you know, kind of having someone on point internally that can manage that relationship both with the primary market APs and market makers, as well as the investor.
Because I think that's another key as you're going forward in building out a sales team, you know, your sales folks can talk about a strategy, but an adviser may not know to implement that. So that role can be investor-oriented and education-based, as well as helping you to kind of create an efficient market in the primary side.
Okay. Well, I want to make sure we get into discussing marketing and distribution as well today. So I guess, Sonja, one of the things that I think we've seen is, you know, marketing at ETF might be a little bit of a different strategy than a typical mutual fund. Do you want to talk about, you know, kind of just your initial thoughts on putting together a marketing plan/distribution plan with respect to an ETF launch?
Sure. And I think you know we started – when Mike and I started the conversation, I think a lot of rings true is really thinking through this throughout the process. You know, putting, having an understanding that there's someone on the other side that's looking for your strategy in this wrapper. It's not build it and they will come anymore. And I think, Mike, you had it in different words but the same kind of sentiment. You really need to think about this as you're launching the product.
So that's going to be critical as you're going out and kind of engaging with the primary market as well. They want to know that you have a plan in place that you're not just launching a product that is just going to sit out there because, you know, it's gonna fail. From a marketing and distribution perspective, when you start to think about that plan and product development, you're looking kind of at yourself and where your competitive strengths are, and what you're bringing to the market.
You're looking at if investors, you know, you're hearing from RIAs that you're working with that, you know, this is a great strategy but I'd love to have this in an ETF wrapper. So you're kind of starting with all that, and then you're moving through the process to really make sure that you're setting yourself up for success, understanding, you know, what am I gonna need to build out to kind of grow this and kind of commercialized the product once it's in the secondary market. You really have to understand the intermediaries and where it's going to be available for sale. You're gonna need to understand kind of that there might be additional roles and responsibilities that will complement your traditional sales folks to help you educate the marketplace.
I think that's key to where although ETFs have been around for a while now and they've grown substantially over the past few years, there is still a lot of education and a lot of new people to the space. So really being able to kind of promote that. Another piece of it is brand is very important. So getting the name out there, having that conversational alpha with, you know, having your portfolio manager, you know, like Cathie Wood is a great example of that conversational alpha, telling the story around what you're bringing to market.
So it's all going to be part of your plan that is going to be kind of your stepping through, making sure that you're gonna have it available, and then you're going to have the people there to support it and have those conversations so that you can translate that in the secondary market into growing, you know, assets under management. I know that was kind of quick, but I think it really points out that you need to be – think through it. It's a longer term process.
And the fun stuff around marketing it and really, you know, kind of working with service providers and other people that know what they're doing, you know, such as SunStar Strategic with PR and marketing, that's all great, but you have to have that core around I really need a strategy that's going to, you know, kind of substantiate and extend the market and be successful.
Yeah. I think that's a great point. We've seen a number of ETFs, and this has been, you know, well-document in the news as well, right, the number of ETFs launched, and then they've always quoted the number of ETFs closed. And some of that has to do with potentially not having the right plan in place, and you know, not going through the entire process with respect to that. With respect to, you know, I know this is something we get a lot of questions on is what type of, you know, transparency from a data standpoint am I going to have.
You know, with a mutual fund, I know who my underlying shareholders are. I know who's buying the mutual fund. With an ETF, how am I getting that data, then how can my sales team and can I compensate my sales team if I don't know where the sales are coming from. And I know that that's a question we get a lot is our mutual fund clients say, "Well, how do I get all this information, and how do I put together, you know, a strategy to sell this ETF then?" So if I could just get thoughts on that as well.
Yeah. No, it's one that we got a lot too and it's a circular reference. Well, if I can't get the data, then who do I know is purchasing it, and then how can I, you know, compensate or motivate my sales team to be able to sell that. So data is critical, and you are going to see a very different kind of world compared to mutual funds in that transparency. Where I do think you need to think about data is there are, you know, ability through third parties to gather some of these data insights.
There are also, you know, the intermediaries themselves that are selling packages. Yes, they're very expensive. And no, I'm not saying that you need to purchase all of them. But really thinking through and understanding top of the line that you may not have that or you're not gonna have that transparency. And if you do, it's going to be very nuanced because every intermediary or service provider, there's going to be different level by office, you know, by branch. It's not going to be something easy to work with to really compensate and figure out how to work with your sales team.
So that's a component right out of the gate that you need to think about. Am I gonna be able to get some data, and then how my gonna use that data to teach folks to get out there and grow assets and meet with those investors that are looking to use it, but also how my gonna compensate and motivate them? And especially if I have a traditional mutual fund, you know, kind of staff that, hey, you know, I'd rather sell the mutual fund. I'm gonna get that transparency. It's gonna be attributable to me and it's going to be much easier.
Where do you need to think through that is I think really thinking around I might need to do a different kind of components for my sales staff. You know, is it going to be a base plus some, you know, attributable number two what they are bringing in that we can attribute to a component of the overall pool of net flows or attributable sales to other factors and metrics that, you know, advisors, you know, calling on folks and doing that regionally.
So it's going to be a lot of pieces of the puzzle to put together, and it's not a simple process. And I think you have to go into it eyes wide open that it's very important. Distribution is always one, you know, people think about, well, I'm not going to, I don't have the money to spend. Well, sometimes you're gonna have to spend money to get some of that infrastructure to be able to get that transparency. So I do think it's important to understand it's going to be difficult and that you're going to have to do things differently than you're kind of used to doing on the mutual fund side.
Mike, anything to add?
Maybe just throw something out there like, you know, Sonja to tack onto that whole thing. I mean get creative with the avenues that are nontraditional. And, you know, one example comes to mind. There there's a lot of trading firms out there that you would think as traditional market makers that also do agency execution of ETFs. So they do brokerage for large RIAs. It never hurts to be in touch with them because, anecdotally, you might hear a story about them, you know, really doing a lot of brokerage for one of your ETFs for specific RIA.
And right there, they can be the source if it's allowable, they can be the source of who that RIA is and now you've got a direct route to talk to RIA and say, "Hey, how can we better serve you?" You obviously want to keep them invested in your fund. So just look for nontraditional capital markets-based avenues like that where you might be able to glean some Intel also.
Mike, I think that is so key where you're kind of gaining that insight based on the new relationships you're building, and it shows the importance of kind of having relationships on the intermediary side as well as in the primary market because both are gonna completely impact how successful you are in the marketplace.
And then Sonja, building on that, you know one of the other questions that is always top of mind is, you know, with my mutual fund, I understand I have 12-B1 fees. I know how to use those 12-B1 fees for various platforms. But how does – you know, is an ETF on a platform? How do you get on a platform? Is there a cost associated with that?
If there's no 12-B1 plan in an ETF, then how is the platform compensated. I know it's still very different for each platform and it's still evolving, but do you have any kind of thoughts for the audience on that?
Yeah. Definitely. And I think that's, you know, definitely a critical piece of it. And we look to, you know, working with our clients to really, you know, add that value of providing some of the guidance around the platforms and points of contact. So early on, you know, where am I going to, day one list be available? And, you know, you're not gonna have to, as Brett, as you noted, you're not gonna have to go out and get those agreements per se in place but you may not be available because they're still going to be those barriers to entry.
And you know the product development teams around ETS have definitely continued to build out more robust kind of programs around how they support each ETFs on their platforms. That being said, typically when listed, the custodial and clearing platforms typically make, you know, I would say passive and active funds available. I think the new non-transparent, semitransparent wrapper is still something that I would put kind of over here in another bucket because folks are still thinking through, all right, are we gonna be able to, you know, we want to see this kind of play through, and is it performing as intended to do.
You know, are the bid ask spreads tight? You know, are the volumes there? So that's still a wait and see approach with the intermediaries. But an interesting factor there is Schwab has come out and they have been the first one to dip a toe in the water where with one of those wrappers, you are gonna have to get an agreement and you're gonna have to pay some, you know, and asset-based fee to Verbality kind of make it available. So that's a new kind of entry.
And that's where I think it's always evolving and having those conversations as you're onboarding with us and US Bank, we're happy to share those insights as well. The intermediaries, the RAAs, the individual investors on those clearing and custody platforms, those are gonna be your initial folks that you're gonna be able to get out to. You're not gonna have to, you know, do anything. As you start moving on to the IBDs for the wire houses, they definitely have full due diligence, full research coverage on the wire houses. You know, thresholds from assets under management, thresholds from, you know, overall performance track record and such.
So it turns into very similar requirements that you've seen on the mutual fund, and you're very well accustomed to, but the agreements there are not as much a factor. You know, you're not having to worry about getting that agreement or paying. You're gonna have to pay for data. You may have to look to pay for, and not as prevalent anymore either, some of the NTF programs where everything's kind of commission free.
Those kind of went and dissipated as well, but you know, Pershing still has one if you can get on their NTF. That's something that's, you know, maybe worth you know kind of shelling out some marketing dollars for. But definitely a different universe, but important to start framing out so you know, you know, the worst question we get is, well, they just launched and they want to know why did their Merrill broker can't buy it. Well, they can't because you're not available even on solicited Merrill.
So that one would have been out of the gate knowing that you're not going to be available there. Pretty important probably to you. So really kind of – there is a kind of hierarchy of where you're gonna be available in the ease of onboarding those platforms early on.
Yeah, Brett, I might add one other quick thing to your point, Sonja. You've gone through all the conversations. You've gone through all the product approval. And you're ready and you're convinced that the green light is on at your destination, and then you still get that call. But just putting your ticker in, and I wanted to buy 1,000 shares. I couldn't do it. So please, please, please make sure that that approval team is communicating to the operations team, and they actually have uploaded your ticker and they do have everything in there.
Because obviously they are two different teams performing that function, and we've seen that many times. "Hey Mike, I can't understand. My clients can't buy my ETF, and they told me I was approved." Well, just make sure those internal teams are talking to each other so your ticker is available at launch where you are approved.
Right. Because it can be very frustrating, and we completely understand as a service provider and working with you, you know, and Mike and his team, and Foreside as well, we try to, you know, kind of call out all the potholes. But there's a lot to learn as you're going through it. So make sure you're well aware of what, you know, kind of is going to be out there. Once it's listed, there are going to be differences then, you know, on the mutual fund side You know, some good ones where you don't have to get that agreement, but on the flipside, you still have to work through the due diligence requirements.
It is a long-term commitment, right, Sonja? I mean it's not gonna happen overnight. It's potentially a multiyear process.
Yes. Absolutely. But work with the investors that can enter it, and put that plan together so you can get out to those RIAs. You can get that branding or that marketing where you want to, you know, kind of connect with maybe the individual investors that recognize your great brand and want in on your kind of fanatic approach, or whatever you bringing to market. So you have to work with what you have as your target market initially, and build upon that as you kind of grow and are able to make it available to different intermediaries.
We have a number of questions that rolled in. So I have another question for the panelists, but I'm going to pair it with one of the questions that came in. And I'll start with my quick response, and then I'd be interested in Sonja's and Mike's With so many new ETFs, is there any room for competition, any more room for competition?
You know, I remember thinking that ten years ago. Oh, well, there's so many ETFs out there. There's so many index ETFs. You can't have another index ETF. From my perspective, the way that ETFs are launched now, there's almost infinite possibilities of new products that could still come to market. That's my initial thought was there is still lots of room out there, but Sonja and Mike, would love to hear your comments.
Yeah, and I mean I'll just jump in. I would agree. You need to be innovative though. I don't think we need another large cap core that, you know, kind of – you don't need a standard that there's many other things out there. You need to be innovative. You need to be thinking what the market wants. And as Mike brought up earlier, you need to be partnering with the intermediaries to understand what they're trying to solve for so that you can bring to our market things that are going to be successful.
Yeah. And I think some of the things that, you know, we've seen recently, obviously, thematic. You know, these defined outcome products that have been very popular. And obviously, you know, they are on the active side, you know, Cathie Woods, the ARKK ETFs have been very popular. We're almost seeing the thematic ETFs with respect to Betty and things of that nature it.
I bet. [Laughter]
Yeah. Exactly. And you know the ticker off the top of your head, and you know so does everybody that listens to Barstool Sports. So it's almost like, you know, some of these have become, like we mentioned earlier, almost a technology play where the, you know, the Robin Hood platform investors have really jumped on the bandwagon of those types of ETF products. Mike, do you want to comment as well?
Yeah. So I'll be quick with this part. But I remember the days of when you talk about core and satellite investing, right? And now we're talking about beta and thematics. But what still remains, and you both brought up IBET for example. Right? If this was years ago and someone would talk about the S&P, and then sprinkling it with larger allocations to the GIC sectors, you know, those were your themes. Right? I'm gonna turn this knob, turn that knob, dial this up, dial that down.
So the responsibility of the product sponsor to show the end client how this fits in their portfolio has never gone away. How it increases the volatility, where it can add alpha. Is IBET a substitute for, you know, leisure entertainment, or is it a tech play? You need to be prepared to show these people if you come with the theme, you're not just rolling the dice. You're not just stepping up to the table and hoping that over the next six months, the ETF is gonna go up by 50 percent and they're gonna get out. ETFs are great trading vehicles, but they are funds at their heart.
And you need to build this long-term case and try to shed this persona that ETFs are just for training if they're going to replace mutual funds which have traditionally been long-term investments. So even themes have a place there, but you need to be prepared to show folks where this fits into their portfolio in the long haul, not just the short term.
Yeah. And I think, Mike, that goes back to the education and the kind of investor conversations where it's not just about the theme, but how it's going to be incorporated into the overall strategy, and you know, kind of to make yourself successful. So I echo that, you know, 3,000 percent.
Yeah. And that you're bringing that product to market and you're a specialist in that particular area? You know, Sonja, this one is for you. Would you suggest marketing an ETF to the same audience as a mutual fund or does this open up new opportunities?
I think it's both. I do think, you know, if you launch an ETF, and you know, you're new to the ETF space, and you have mutual funds, you may gain, you know, some folks that are looking for the ETF wrapper. It's going to depend on the underlying kind of, you know, client account. You know, is it a taxable account? Does it qualify? So there's gonna be a lot of pieces there. You really, again, it's maybe think before you launch it, more is there demand for the wrapper in what I'm bringing to market.
And then it's going to really already tell you who is your target market. So you may gain some new individual investors who are really looking for this. You may gain some, you know, ultra-high net worth, you know, RAs that have ultra-high net worth clients are looking for that tax efficiency, and maybe they're not utilizing SMAs. You definitely have, you know, kind of the importance around understanding where it's going to be marketed, but you're going to gain new, and you make, you know, kind of stick with some of the old that are just looking for the new wrapper.
And I think that leads into this next one for you, Mike. Why would you convert a mutual fund/SMA to an ETF instead of just creating an ETF mirroring that ETFs or mutual fund/SMA?
Yeah. So I just had this conversation with the client two days ago. And the actual…let's put it this way, their path that they're gonna take is actually the latter. And some folks call it a clone fund. Fine. Let's just call it a clone of your existing mutual fund. But their point, and the point that Sonja was making too is well-taken. If you've been around for a long time, and you have a successful mutual fund, chances are demographically, there's going to be a subset of your AUM that has no interest in moving to an ETF. And if you did force them to convert, they'd either be gone, they wouldn't stay with you, they wouldn't like that.
So you really have to take a hard look at what would happen to a legacy mutual fund if you converted it all at once, or as you were mentioning here, are you going after a new investor subset, whether it's demographics or just online investors? Are you trying to get in your portfolio allocation where your each ETF can slip right, but your mutual fund can't? So if you have the wherewithal to run both at the same time and make them profitable, for me, I can't understand why someone wouldn't do it. Right? The end goal is to have a profitable fund that that's doing well for the shareholders.
And to go back to the beginning of that, Brett, really quick, those who see the value, like a DFA, for example, I guarantee you with the folks that they brought on board there to do this analysis – I shouldn't say guarantee, I have a strong belief that they felt that, yeah, our DFA clients are gonna love this. They're gonna love tax mitigation. They're gonna love the ease of trading. We're gonna make sure that these are gonna be highly liquid products. So for them, that question was answered with a high level of certainty, and they had no angst about saying goodbye mutual fund, hello ETF.
But there are absolutely those who are still in the middle. Why would you forgo those anchor clients who've been with you forever who still want a mutual fund? For goodness sakes, they are still unit investment trusts out there in the marketplace. So those were supposed to be gone years ago, too, in some people's estimations. So it's all about the [crosstalk] needs.
I would say, I mean you can see it in the marketplace, lots of large players now launching ETFs, and they have a very successful mutual fund business. That is going to continue to be successful. So it's definitely a consideration, that both wrappers are being vehicle agnostic as you out to the marketplace, is a very, you know, kind of successful strategy if you have, you know, kind of successful or you have good strategies, and you know kind of good end investors that you connect with, you know, you can be successful in that regard.
Q: Flows into ETFs have been great. What is the breakdown to passive index trackers? Or to more "unique" thematic and actively managed funds? What do you think accounts for that?
I don't track these but there are tools out there like https://www.etf.com/etfanalytics/etf-fund-flows-tool
Provided some high-level numbers from Morningstar Direct as of 6/30/2021
With regard to growth of actively managed ETFs it has been a combination of increased investor demand of the ETF wrapper because of the benefits and specific investor demands around themes they feel will benefit with the accelerated changes from Covid, such as work from home, etc. This combined with rule changes and regulatory guidance have fueled asset manager interest. (ETF rule streamlining launching with the removal of "exemptive relief" applications across certain types and SEC approval of several different technology solutions to solve for basket semi/non-transparency construction).
1H2021 assets $6.5 trillion / flows at $466 billion
Passive 6.46 billion / flows $407.5 billion
Active $263.8 billion / flows $58.5 billion
127 Active launched through 2Q21 (full year 2020 was 167 active launched)
23 new active semi-transparent in the 1H 2021 and total assets at $1.8 billion
Active ETFs by Category
Equity dominated flows with $31.2 billion
Thematic ETFs say over 18 trillion followed by LCC / Dividend Focused ETFs and ESG
Fixed income flows fell to 2nd for the first time in the last half decade / favoring high yield/senior loan / and ultra short / short
Commodities experienced a renaissance of growth at $6.6 billion led by broad commodity strategies (YTD cash flow has been double the prior 3 full years combined)
While Active is still a small slice of the total ETF assets, it seeing considerable growth.
Q: I understand this call is specific to ETFs and MFs. Would love to get your insights on closed end/interval funds/structured notes.
CEFs: still are out there but require a syndicate raise involving multiple players prior to listing. Interval CEFs: our clients still launch these when the strategy or asset class requires special focus on redemption windows vs daily redemption capabilities. Structured Notes: Advisors Asset Manament [AAM] and Halo still offer bespoke notes for advisors who have need.
I have attached a whitepaper that we authored around launching an interval fund. It also provides some insight into the backdrop of investor demand.
Q: With all of these players you've discussed involved, what kind of lead time do we need to launch an ETF?
Mike Castino: simple answer 90-120 days is realistic
Q: We are considering launching an ETF. Would you suggest marketing it to the same audience as our mutual funds, or does this open up new opportunities?
Mike Castino: my opinion is both; show current MF holders the benefits of switching to an ETF and of course go after the ETF only crowd. But I defer her to Sonja for her expertise on this topic.
Sonja Formato: I would agree with Mike but again would reiterate ensuring that there is marketplace demand for a strategy in the ETF wrapper. It is no longer build it and they will come.
Q: What's the incentive for market makers and authorised participants to collaborate?
Mike Castino: if a market maker does not have an internal AP desk, or when the do have an internal AP desk, but that desk may not be skilled in intl stocks or fixed income for example, the AP will make revenue off of that 3rd party market maker. Of course, as we noted on call, the AP is essential to the create/redeem process so cost/risk might drive a trading desk's use of a specific AP.
Are advisors able to engage with companies held in ETFs? For example, proof of ownership for the required amount and length of time is required by the SEC to file shareholder resolutions. Does the process work the same way with ETFs?
Mike Castino: we have had Advisers absolutely say they plan on engaging in shareholder advocacy regarding the shares their fund[s] own. Sonja, maybe Andrew Strnad can weigh in here regarding the limits under the 40 Act?
Sonja Formato: I checked with Andrew and he noted that Michael Barolsky at US Bank would be a better source on that question.
Q: Building on an earlier discussion point, finding a lead market maker seems to be increasingly difficult for new entrants into the ETF space. What can new ETF families do to get interest from the market makers in helping to tighten spreads when the underlying securities are liquid enough that spreads should be tighter?
LMMs are obviously look for the main opportunity to make money trading the ETF [i.e. arbitrage, exchange rebates]. If an LMM is not satisfied with the revenue from acting as LMM they will also ask to explore any other potential ways to further enhance/monetize the relationship [i.e. agency execution for equities or fixed income securities]
As the Adviser to the ETF, you can help get them more interested in tightening spreads [i.e. take on more risk] by getting out there and promoting the ETF thus driving more trading volume/AUM to the fund on a daily basis.


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News – World Times News
Home Sport Barcelona put faith in purist Setien after sacking Valverde
Barcelona put faith in purist Setien after sacking Valverde
New FC Barcelona coach Quique Setien poses for a photograph after the press conference at Camp Nou, Barcelona, Spain January 14, 2020. — Reuters pic
MADRID, Jan 14 — Quique Setien began his first session as Barcelona coach this morning just as the sacked Ernesto Valverde drove out of the training ground for the last time.
Valverde had said goodbye to the players, collected his things and left, closing the page on a brutal few days that had finally seen him sacked yesterday night.
After Barca's public pursuit of Xavi Hernandez ended in failure, they have turned to Setien, the 61-year-old who has dedicated his coaching career to a belief in exciting, possession-based football.
Barcelona confirmed Setien's appointment following a board meeting that lasted more than four hours at the Camp Nou yesterday afternoon. His contract, which runs until June 2022, appears also to be a show of faith.
Valverde is the first coach to be sacked by Barca mid-season since Louis van Gaal in 2003 and if that points to chaos, Setien inherits a team in a healthy position too.
Barcelona sit top of La Liga, albeit level on points with Real Madrid, and face a winnable tie against Napoli next month in the last 16 of the Champions League.
Off the pitch, the club came top of Deloitte's annual Football Money League table yesterday, after posting record earnings of €840.8 million (RM3.8 billion) for 2018/19.
Some of that income might have to be channelled into signing a new striker this month, with Setien taking over a squad that will be without Luis Suarez for four months due to a knee injury.
More generally, he will have to find a way to marry his purist principles with results at one of the most demanding clubs in the world. His critics have suggested style can take precedence over substance.
"Having the ball makes you a football player, not running after it," Setien said last year. He once commented he would have cut off his little finger to play under Johan Cruyff.
After Valverde's more functional approach, Barca will believe Setien's philosophy chimes better with the principles they see as part of their DNA.
"Setien is one of the most experienced coaches in Spanish football," a club statement read yesterday night. "Throughout his career he has been a proponent of possession based, attacking football that has been attractive to the fans."
His first game in charge will be at home to Granada on Sunday and a tricky first six weeks will include away games at Valencia, Real Betis and then Real Madrid at the start of March.
European failures haunt Valverde
A former player at Atletico Madrid and Racing Santander who won three caps for Spain, Setien led Betis to a sixth-place finish in 2018 and qualification for the Europa League but, despite overseeing a thrilling 4-3 victory at the Camp Nou early the following season, results tailed off.
Betis finished 10th and the club and coach parted ways, even if there was recognition for what had been achieved.
Setien had presided over the team winning twice in a row at the Santiago Bernabeu and beating Atletico. After seeing off Barcelona — Valverde's only home defeat — Sergio Busquets presented Setien with a signed shirt.
"For Quique," read the message. "With appreciation and admiration for the way you see football."
Previously, Setien had helped Lugo secure promotion to the second tier in 2012 and, in 2016, steered Las Palmas clear of relegation from La Liga. He has also coached Racing, Poli Ejido, Logrones and, for one game, Equatorial Guinea.
His primary task will be to hold off a resurgent Real Madrid in a neck-and-neck title race after Valverde managed to sustain the domestic dominance enjoyed by Barcelona over the last decade.
He won two La Liga titles, as well as the Copa del Rey in 2018, but doubts were underpinned by two disastrous exits from the Champions League due to collapses against Roma and Liverpool.
Familiar frailties were exposed this season in a series of underwhelming performances and a 3-2 defeat by Atletico Madrid in the Spanish Super Cup last Thursday, in which Barca conceded two late goals, finally persuaded the board to act. — AFP
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EMGS chairman claims trial to money laundering charge
© Malaysia News


I am starting to think that vlogging is MUCH easier than blogging. Maybe not, but it feels that way. lol! There has been a lot going on so I wanted to check in with you and share my chaos! You can watch the video below, Life with Tiffany, be sure to SUBSCRIBE to my YOUTUBE Channel while you are there!


The History Center in Tompkins County is now operating out of the Tompkins Center for History and Culture, a new heritage tourism center shared with several other non-profit organizations.
The research library, archives, and exhibition hall will not open to the public until spring 2019, but some programs are being held in the new location as found on our calendar.
More information about the new building and partner organizations can be found on the Tompkins Center for History and Culture website.
For more information, contact (607) 273-8284 or Community@TheHistoryCenter.net.