More recently, Van Eck Global's Market Vectors family had to go to the SEC for exemptive relief when it launched its Market Vectors RVE Hard Assets Producer ETF (AMEX: HAP), pegged to an index created by the manager and commodities guru Jim Rogers.

WisdomTree and Van Eck officials said they would not comment on the exemptive process.

At an even larger level, the issue of affiliated versus nonaffiliated indexes is slated to change with the introduction of the SEC's fast-track rule for ETFs.

The proposed rule will require the same level of disclosure of all index funds—more than required currently—but less than required of WisdomTree. It is viewed as a middle ground, more or less, between where WisdomTree was forced to go when no active funds existed, and where the need for disclosure will be greatest in the future.

"Barclays can try to make the case that due to time constraints on this, and needing to get approval done quickly, the SEC should issue a no-action position immediately, and then BGI will adhere to whatever standard is set by the final form of the rule," said securities lawyer McGuire.

The SEC had planned to release the rule in the fourth quarter, and while industry lawyers who are working on the issue don't expect a major wall to arise in front of the proposed rule's release date, they said more pressing market issues—like the money fund problems—could delay the rule's introduction for some period of time.

Myriad Factors At Play 

A combination of market meltdown priorities and the need to weigh the more controversial aspects of the rule, relating to holdings disclosure, are all in play. The SEC received many comment letters about the disclosure part of the rule, including from the fund industry's largest trade group, The Investment Company Institute, and indexing pioneer The Vanguard Group. 

What this means for BGI is that in the immediate future, to keep in line with the closing of the Lehman deal, and to satisfy regulators, it could be held to the WisdomTree standard for its affiliated index ETFs, even if that standard becomes more strict than required by the eventual release of the SEC's ETF rule.

Stacy Fuller, a securities regulations attorney at K & L Gates, said that while most of the rule's components are fairly uncontroversial, the disclosure issue may require more work before settling on a satisfactory middle ground between the SEC and the industry.

Even more pressing right now, however, is that the lawyer who is working most directly on the ETF rule's release has also been put in charge of the money fund issue at the SEC, says Fuller.

She adds that at the least, the SEC should release part of the new rule on schedule, even if that means leaving the disclosure portion of it for a later release.

The SEC should make an exception for Barclays, due to the convergence of thorny issues, and try as hard as possible to release an exemptive order without delay, says lawyer McGuire.

"They don't want to spend time and effort on whether they should be changing standards related to indexes if the new SEC rule proposal will treat affiliated and nonaffiliated indexes in a similar way," McGuire said.

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