On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment (“HIRE”) Act. The new law includes most of the revenue-raising provisions which were originally proposed as the Foreign Account Tax Compliance Act (“FATCA”). Of relevance to offshore investment funds (and onshore funds with offshore fund investors) is a new requirement to enter into an agreement with the Internal Revenue Service undertaking to provide information about U.S. account holders or suffer 30% withholding on U.S. source payments of dividends, interest, sales proceeds and other items, beginning on January 1, 2013. The IRS will need to issue implementing regulations describing the agreement as well as the procedures to be applied by U.S. withholding agents. We will report on these regulations when they are issued. In the meantime, investment managers should monitor the situation closely and be prepared to submit comments when the regulations are proposed.

HIRE will also require U.S. individuals to report annually to the IRS foreign financial assets, including interests in offshore investment funds, if the aggregate value of such assets exceeds $50,000. This new report will be in addition to the existing Report of Foreign Bank and Financial Accounts (“FBAR”), and will be required with respect to taxable years beginning after March 18, 2010 (i.e., with tax returns for 2011 in the case of calendar year taxpayers).

For more information, please see:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2847enr.txt.pdf  

On March 19, 2010, Robert S. Khuzami, the Director of the SEC’s Division of Enforcement gave a speech to the Society of American Business Editors and Writers summarizing the developments within the division since he took over in March 2009. He noted that the division has created five specialized units including the Asset Management Unit. Hedge funds were the primary focus of his discussion of this unit. Director Khuzami noted that hedge funds present particular challenges and called out differences in liquidity, redemptions, conflict rules, pricing, disclosure, use of leverage, and short sales with regard to hedge funds as compared to mutual funds. He also stated that hedge funds have a “a lack of transparency to their trading that can be a source of concern — they trade extensively in less transparent markets, such as in credit and derivatives, utilize high-tech trading systems and techniques, and have close prime brokerage, [capital introduction] and other relationships with investment banks, who themselves are sources of a great deal of private-side information that would be highly valuable to any trading entity.”

On February 19, 2010, Andrew J. Donohue, the Director of the SEC’s Division of Investment Management spoke to the Fordham Journal of Corporate and Financial Law’s 3rd Annual Symposium on the Regulation of Investment Funds. He discussed the regulation of private funds through their advisers and the persons selling private funds to investors. He noted that there are regulatory gaps with regard to hedge funds because the operators of private funds—typically investment advisers—are able to organize their affairs in such a way as to avoid registration. Director Donohue then went on to describe how requiring registration of private fund advisers under the Investment Advisers Act of 1940 (“Advisers Act”) would provide the SEC with necessary tools to protect investors and securities markets. Registration under the Advisers Act is currently under consideration by Congress as part of a wider regulatory overhaul.

Director Donohue also discussed the broker-dealer registration requirements under the Exchange Act, generally requiring any person engaged in the business of effecting transactions in securities for the account of others to register as a broker-dealer. He also expressed concern over, and delivered a warning to, those unregistered as broker-dealers under the Exchange Act by noting that “some participants in the private fund industry may be inappropriately claiming to rely on exemptions or interpretive guidance to avoid broker-dealer registration. In so doing, these participants may be creating a de facto gap in broker-dealer regulation in addition to the legislative gap in Commission authority with respect to adviser regulation. Persons who are not currently registered as, or associated with, a broker-dealer should carefully consider whether they should be.”

Mr. Donohue provided some further color on the broker-dealer registration issue in a panel discussion, with WilmerHale Counsel Robert Bagnall and other speakers, at the IBA/ABA Private Investment Funds conference in London in March. He characterized his remarks as a “shot across the bow” – as a way of getting the attention of fund managers without having to bring an enforcement action. He explained that the staff had seen several arrangements between fund managers and finders that were not registered broker-dealers or registered representatives of such firms; those arrangements did not fit within the safe harbor of Exchange Act rule 3a4-1 or other SEC or staff guidance. He noted also that the staff would also be concerned about non-compliant arrangements with personnel of a fund manager or its affiliates, such as arrangements in which employee compensation was based on sales of interests in the fund.

For more information, please see:
http://www.sec.gov/news/speech/2010/spch031910rsk.htm  
http://www.sec.gov/news/speech/2010/spch021910ajd.htm 

On March 25, 2010, the SEC announced that the staff was evaluating the use of derivatives by mutual funds, exchange-traded funds (“ETFs”) and other investment companies. The SEC indicated that the evaluation is being conducted to determine if additional protections are necessary for those funds under the 1940 Act. The staff indicated that it has decided to defer consideration of requests for exemptive orders under the 1940 Act that would permit ETFs to make significant investments in derivatives. This deferral will impact new and pending exemptive order requests from certain actively-managed and leveraged ETFs that particularly rely on swaps and other derivative instruments to achieve their investment objectives.

The staff intends to explore whether:

• Current market practices involving derivatives are consistent with the leverage, concentration and diversification provisions of the 1940 Act;
• Funds that rely substantially upon derivatives, particularly those that seek to provide leveraged returns, are maintaining and implementing adequate risk management and other procedures in light of the nature and volume of such fund’s derivatives transactions;
• Fund boards are providing appropriate oversight of the use of derivatives by such funds;
• Existing rules sufficiently address matters such as the proper procedure for a fund’s pricing and liquidity determinations regarding its derivatives holdings;
• Existing prospectus disclosures adequately address the particular risks created by derivatives; and
• Funds’ derivative activities should be subject to special reporting requirements.

For more information, please see:
http://www.sec.gov/news/press/2010/2010-45.htm

On April 2, 2010, the SEC staff issued a no-action letter addressing the use of joint accounts through which registered funds invest, among other things, their cash collateral from securities lending programs. In 2001, the staff issued a no-action letter under Section 17(d) of the 1940 Act and Rule 17d-1 in which the party seeking relief represented that it “would invest the cash collateral deposited into the Joint Accounts in one or more of the following: (i) repurchase agreements that are ‘collateralized fully’ as defined in Rule 2a-7 under the 1940 Act; (ii) interest-bearing or discounted commercial paper, including U.S. dollar-denominated commercial paper of foreign issuers; and (iii) any other short-term money market instruments that constitute ‘Eligible Securities’ (as defined in Rule 2a-7 under the 1940 Act) (collectively, ‘Short-Term Investments’).” On February 23, 2010, the SEC adopted money market fund rule amendments that included changes to the definition of “collateralized fully” under Rule 2a-7. Prior to the amendments, “collateralized fully” referred to that term as defined in Rule 5b-3(c)(1) under the 1940 Act. After the amendments, revised Rule 2a-7(a)(5) has the same meaning as that in Rule 5b-3(c)(1), except that Rule 5b-3(c)(1)(iv)(C) and (D) do not apply. This limited money market funds to investing in repurchase agreements collateralized by cash items or government securities in order to obtain special treatment of those investments under the diversification provisions of Rule 2a-7.

The current no-action letter was issued to clarify for parties relying on the 2001 letter that the term “collateralized fully” will be understood to have the same constructive meaning as it did prior to the recent amendments. The staff confirmed that parties seeking to rely on the 2001 letter may invest the cash collateral deposited into the Joint Accounts in repurchase agreements that are “collateralized fully” as defined in Rule 5b-3(c)(1) under the 1940 Act.

For more information, please see:
http://www.sec.gov/divisions/investment/noaction/2010/ici040210.htm  

On April 7, 2010, the SEC announced administrative proceedings against an investment adviser, a broker-dealer and two employees accusing them of fraudulently overstating the value of securities backed by subprime mortgages in several of their mutual funds. The SEC order alleges that during certain periods in 2007, the daily net asset values (“NAV”) of several funds managed by the adviser and for which the broker-dealer served as principal underwriter and sole distributor, were materially inflated as a result of fraudulent conduct. Each of the funds at issue held securities backed by sub-prime mortgages, and the SEC alleges that when the market for such securities deteriorated, the portfolio manager fraudulently manipulated the NAVs of the funds. The SEC alleges that the broker-dealer fraudulently published NAVs for the funds without following procedures reasonably designed to determine that the NAVs were accurate. Among other allegations, the SEC claims that the respondents willfully violated Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 under the Exchange Act.

The Financial Industry Regulatory Authority (“FINRA”) also filed a complaint against the broker-dealer on April 7, 2010, alleging that it marketed and sold shares of its funds to investors using false and misleading sales materials. FINRA also alleges that the firm had deficient internal guidance and failed to train its brokers about the risks of the funds investments which led the brokers to make material misrepresentations to investors.

For more information, please see:
http://www.sec.gov/litigation/admin/2010/33-9116.pdf
http://www.finra.org/Newsroom/NewsReleases/2010/P121250  

On April 8, 2010, Andrew J. Donohue, the Director of the SEC’s Division of Investment Management spoke to the Practising Law Institute's Investment Management Institute 2010. Among other discussion topics, Mr. Donohue expressed concerns over the increased use of collective investment trust platforms. Growth in the use and size of collective investment trusts in recent years led to these concerns, especially with regard to use of such platforms by retirement funds. Mr. Donohue noted that collective investment trusts are exempt from registration under the 1940 Act and are largely regulated by banking agencies. Mr. Donohue stated that the Division of Investment Management is considering “whether, under certain conditions, this exemption is properly relied upon and consistent with the [1920] Act and whether it denies investors appropriate protections. For example, are banks operating merely in custodial or similar capacity while providing a place for an adviser to simply place pension plan assets of its clients?” He provided that regulatory recommendations may be offered should the Division’s analysis of the structure and operation of collective investment trust platforms warrant it.

For more information, please see:
http://www.sec.gov/news/speech/2010/spch040810ajd.htm  

On March 30, 2010, the U.S. District Court, Northern District of California granted summary judgment for investor plaintiffs in a case against a mutual fund over investments in mortgage-backed securities (“MBS”). The court held that the fund needed shareholder approval to invest more than 25% of its assets in MBS because it had a stated investment limitation against concentration in any particular industry and the SEC has defined concentration as investing 25% or more of an investment company’s net assets in an industry. The court noted that the fund initially included MBS as an industry in their SAIs when discussing concentration. After five years of doing so, the fund then changed their SAI disclosure to provide that MBS were not part of any one industry for purposes of the fund’s concentration policy.

Investors brought the case after the fund suffered losses on the MBS investments. The court held that investors were entitled to rely on the “clear-cut definition” of the limitation that was in the SAI for five years for the security of their investment. The court decided that a vote of shareholders was required in order to change the 25% limitation.

For more information, please see:
Charles Schwab Corporation Securities Litigation, No. C08-01510 WHA slip op. (N.D. Calif. 2010)
http://www.reuters.com/article/idUSN3121721420100331

On March 31, 2010, the U.S. District Court for the District of Massachusetts issued an order denying motions to dismiss sought by defendants, an investment adviser and brokerage company of a large mutual fund complex, in two cases brought by former employees under the Sarbanes-Oxley Act (“SOX”). One plaintiff made several claims of activities that the plaintiff claimed were “protected” activities under SOX. These activities included notifying the company’s general counsel of improper retention of Rule 12b-1 fees. The plaintiff claimed she was consistently retaliated against for engaging in the “protected” activities. This plaintiff filed SOX whistleblower complaints with the Occupational Safety and Health Administration (“OSHA”) of the Department of Labor on four separate dates from December of 2006 through November of 2007. The plaintiff alleged unlawful retaliation in violation of the SOX provision which makes it unlawful for certain persons and entities to penalize employees for providing information about or assisting an investigation that employees reasonably believe constitute violations of 18 U.S.C. §§ 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission (“SEC”), or any federal law relating to shareholder fraud.

The other plaintiff claimed that the “protected” activity he engaged in was notifying management of the fund company that the company distributed and filed a statement of additional information (“SAI”) in February of 2005 that did not accurately reflect portfolio manager compensation. This plaintiff’s complaint indicated several securities laws that he claimed he reasonably believed were violated in the SAI, including Section 17(a) of the Securities Act of 1933, and Sections 15(c), 34(b), and 36(b) of the 1940 Act. He contended that he was retaliated against and ultimately terminated by the company. The plaintiff filed a SOX whistleblower complaint with OSHA in September of 2005.

The defendants contended in their motion to dismiss that the plaintiffs, as employees of privately held companies, were not covered by the SOX whistleblower provision. The court determined that SOX protects employees of any related entity of a public company. The court therefore, needed to determine whether the plaintiffs fell into this category. To do so, the plaintiffs’ employer would need to be an officer, employee, contractor, subcontractor, or agent,” or rather, have a plausible claim to being one of these entities. On this point, the court found that the plaintiffs’ employers performed a wide variety of administrative and executive tasks for the funds, including making fundamental decisions as to how the funds’ assets would be invested. The court noted that if the funds, which are publicly held companies with no employees, did not have investment advisers as their agents, the only activity that could take place on the funds’ behalf would be actions taken by the board of trustees as funds have no employees. The court concluded that employees of agents, contractors, and subcontractors of public companies are protected by SOX, and investment advisers to mutual funds fall in this category of employees.

For more information, please see:
Lawson v. FMR LLC et. al. al., No. 08-10466-DPW slip op. (D. Mass Mar. 31, 2010)
Zang v. Fidelity Management & Research Company et. al., No. 08-10758-DPW slip op. (D. Mass Mar. 31, 2010)
http://www.reuters.com/article/idUSTRE62U5AY20100331  

With Jones v. Harris decided, the Supreme Court remanded another excessive fee case to the Eighth Circuit on April 5, 2010. In the Eighth Circuit case, Gallus v. Ameriprise Financial, the plaintiff argued that the adviser breached its fiduciary duty to mutual fund investors by charging an advisory fee that exceeded the advisory fee for institutional separate accounts. The plaintiff also challenged the truthfulness and completeness of the competitive fee information and alleged that the adviser had misled the independent trustees. The district court concluded that institutional separate account fees were not a valid comparison because the nature and quality of services provided to the two sets of clients were dramatically different and ultimately dismissed the action. The Eighth Circuit reversed, noting that the district court had erred “in rejecting a comparison between the fees charged to [the adviser’s] institutional clients and its mutual fund clients.” The Eighth Circuit also noted that “[u]nscrupulous behavior with respect to either can constitute a breach of fiduciary duty.” The Supreme Court vacated the Eighth Circuit’s decision and sent the case back to the lower court for “further consideration in light of Jones v. Harris.”

For more information, please see:
Gallus v. Ameriprise Financial, 561 F.3d 816 (8th Cir. 2009), cert. granted, judgment vacated and remanded, No. 09-163 (U.S. Apr. 5, 2010)
For discussion of the Eighth Circuit’s decision and the District Court’s decision, please see:
http://www.wilmerhale.com/publications/periodicals/investment_management/blog.aspx?entry=1690
http://www.wilmerhale.com/publications/periodicals/investment_management/blog.aspx?entry=599

On March 30, 2010, the Supreme Court endorsed the 25-year-old Gartenberg factors for evaluating the legal obligations of investment company boards and investment advisers in the negotiation of investment advisory agreements for funds registered under the Investment Company Act of 1940 (the “1940 Act”). The Court held that the Gartenberg formulation was correct in finding that liability under Section 36(b) requires that “an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.” Importantly, the Court emphasized that “the standard for fiduciary breach under §36(b) does not call for judicial second-guessing of informed board decisions” and that courts should not “engage in a precise calculation of fees representative of arm’s-length bargaining.” In a 2008 decision, the U.S. Court of Appeals for the Seventh Circuit had departed from Gartenberg, and concluded that an investment adviser has not violated Section 36(b) of the 1940 Act unless an adviser “pulled the wool over the eyes of the disinterested trustees or otherwise hindered their ability to negotiate a favorable price for advisory services.” In its decision, a unanimous Supreme Court rejected the Seventh Circuit’s standard, while leaving open a few important issues, including the relevance of institutional separate account fees, relevance of fees for comparable mutual funds managed by competitors and the relevance of alleged process-based failures during the negotiation of investment advisory agreements.

For more information, please see:
Jones v. Harris, No. 08-586, slip op. (U.S. Mar. 30, 2010)
http://www.wilmerhale.com/publications/whPubsDetail.aspx?publication=9459  
For discussion of the Seventh Circuit’s decision and the procedural history of the case, please see:
http://www.wilmerhale.com/publications/whPubsDetail.aspx?publication=9299  
http://www.wilmerhale.com/publications/whPubsDetail.aspx?publication=8823  
http://www.wilmerhale.com/publications/whPubsDetail.aspx?publication=8329