One is the SPA MarketGrader 40 ETF (AMEX: SFV). Its underlying index rebalances quarterly based on fundamental factors. MarketGrader's analysts break down a company's financial picture into four different areas - growth, value, profitability and cash flow. They come up with ratings, which consider metrics such as: EPS growth, earnings surprises, net income, book value, price-cash flow, sales, operating margins, return on equity, annual cash growth and return on invested capital.

"We calculate the rating for every company every day. But it takes a significant price change or earnings report to effect fundamental grades," said Carlos Diez, president of MarketGrader.com Corp., SFV's index provider.

During its latest rebalancing in May, SFV's main sector changes came within Industrials (which doubled) and Tech (up to the maximum 30% weighting). Its index's turnover rate also jumped to 72.5%, up from its historical average of around 50%.

With such a concentrated portfolio of 40 stocks, SFV has set some requirements. It's required to have a 25% minimum position in large-caps and a 25% maximum position in small-caps. That tends to make it look somewhat like a mid-cap growth fund. But with such a broad mandate and an equal-weighted portfolio, that's not an exact comparison either. And its aim is to beat the S&P 500 index.

By most any view, SFV is cleaning up. Consider that in the past three months through Friday while SFV was down 1.8%, the passive Vanguard Mid-Cap Growth ETF (AMEX: VOT) had lost 8%-plus. Even compared with the Rydex S&P Equal Weight ETF (AMEX: RSP), which has lost more than 10% in that same period, the MarketGrader 40's recent performance looks strong.

Other MarketGrader ETFs using similar methods with less-concentrated portfolios have been seeing similar outperformance over broad market passive indexes lately.

Similar Trend

And McRedmond says he's seen the same general trend with ETFs sponsored by PowerShares using Intellidex benchmarks developed by the American Stock Exchange. The quantitatively driven indexes have far greater turnover than traditional market-cap-weighted indexes and use different fundamental factors to overweight and underweight sectors and stocks. The stated objective is to beat the market.

Still, a notable laggard exists. That's the third new 'legally' active ETF, the PowerShares Active AlphaQ (NYSEArca: PQY). Its portfolio is also run by AER Advisors and uses a quantitatively based system to select 50 of the most attractive names from the NASDAQ 100 index.

In the past three months, PQY has dropped 10.6% through Aug. 1. By contrast, the passive PowerShares QQQ (NasdaqGM: QQQQ) was down 7.84% in that period.

"We're still searching for the right mix with that portfolio," said AER's O'Leary. "So we're turning over the maximum of three stocks per week because we're getting a lot of blowups. For example, recently we eliminated eBay."

That has been a plus, since eBay's down more than 25% this year. But the fund also has passed on QQQ's top holding, Apple. "It doesn't pass our screens because its PE [price-earnings ratio] is too high," O'Leary said.

Whether he can turn around its fortunes quickly or not, some observers say they remain unconvinced that active ETFs of any sort will prove to be long-term winners.

"Active managers on average can't outperform in the mutual fund world over time, and that's likely to turn out to be the same case with ETFs," said Michael Krause, president of AltaVista Independent Research. "Three months isn't really enough time to tell anyone much at all."

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