This Summary, which draws from a wide range of sources, endeavors to condense important investment management regulatory news of the preceding week into one, easily digestible source. This Summary is not intended as legal advice. Readers should not act upon information contained in this Summary without professional legal counsel. This Summary may be considered advertising under the rules of the Supreme Judicial Court of Massachusetts.
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SEC Proposed Amendments to Regulation M Regarding Short Sales
December 15, 2006 1:20 PM
The SEC proposed amendments to Regulation M intended to respond to what the SEC described as numerous cases of noncompliance with the current restrictions imposed by Rule 105 of Regulation M to protect the integrity of the pricing of securities offerings. Rule 105 currently prohibits a person from covering a short sale with securities sold in the offering, if such person sold short within five days prior to pricing or the period beginning with the filing of the registration statement and ending with pricing, whichever is shorter. Such short selling can artificially depress market prices which can lead to lower than anticipated offering prices, thus causing an issuer’s offering proceeds to be reduced.
The SEC proposed amending Rule 105 of Regulation M to make it unlawful for a person to effect a short sale during the Rule 105 restricted period and then purchase, including enter into a contract of sale for, such security in the offering. The SEC’s intent is to provide a bright line test or compliance with Rule 105. The proposed elimination of the covering component is intended to address attempts to restructure transactions in an effort to evade Rule 105.
The SEC requested comment on the proposal in general and posed several specific questions relating to Rule 105. In addition, the SEC requested comment on trading strategies involving derivatives that may produce similar effects (e.g., depress the market prices of the underlying equity security and result in lowering offering prices) in ways not covered by the current or proposed Rule 105. Comments on this proposal should be received on or before February 12, 2007.
“Short Selling in Connection with a Public Offering,” Securities Exchange Act Rel. No. 54888 (December 6, 2006), available at http://www.sec.gov/rules/proposed/2006/34-54888.pdf
Chairman Cox Discusses Interactive Data
December 15, 2006 8:38 AM
SEC Chairman Christopher Cox spoke about interactive data to the 14th International XBRL Conference on December 5, 2006. Chairman Cox said that the SEC strongly supports the goal of documenting every taxonomy that is necessary to produce financial statements for any industry using US GAAP by no later than mid-year 2007. He also said that all of the XBRL software development that the SEC creates, and that it supports, will be open source in order to help promote the flow of company data. Chairman Cox further noted that the United States is strongly committed to the establishment of a high-quality, comprehensive set of generally accepted international accounting standards in cross-border securities offerings.
In addition, Chairman Cox stated that interactive data will significantly improve audit quality. He noted that the SEC’s deputy chief accountant stated that over half of the recent public company restatements were the result of misapplying basic accounting rules. Only about 5% of restatements were due to deliberate errors, or to fraud. Chairman Cox discussed the enormous opportunity for automation to assist corporate finance staffs and auditors to avoid missing things.
Chairman Cox cited the Investment Company Institute’s efforts in writing XBRL taxonomies for mutual funds to adopt voluntarily. He said that tagging mutual fund data will enable funds to automate the “risk/return summary” provided by each fund.
Lastly, Chairman Cox announced that the SEC has launched a demonstration release of its new software for viewing and analyzing the interactive data filings that are already being submitted by a broad cross section of U.S. companies.
The Chairman’s speech entitled “The Promise of Interactive Data,” December 5, 2006, can be found at http://www.sec.gov/news/speech/2006/spch120506cc.htm. In addition, the interactive data filing demonstration can be found at http://www.sec.gov/spotlight/xbrl/xbrlwebapp.htm.
SEC Approves Final Rule and Form Amendments to Require Electronic Filing of Transfer Agent Forms
December 15, 2006 8:35 AM
The SEC approved final rule and form amendments under Section 17A of the Securities Exchange Act of 1934 to require that forms filed with respect to transfer agent registration, annual reporting, and withdrawal from registration be filed with the SEC electronically. Specifically, the SEC amended Regulation S-T, Rules 17Ac2-1, 17Ac2-2, and 17Ac3-1, and Forms TA-1, TA-2, and TA-W to require that these forms be filed electronically. The forms will be filed on the SEC’s EDGAR database in XML format and will be accessible to SEC staff and the public for search and retrieval.
The amendments will be effective January 11, 2007. Accordingly, registered transfer agents should be prepared to file their Forms TA-2 for the 2006 reporting period, which are due to be filed by March 31, 2007, and an amended Form TA-1 for those transfer agents registered with the SEC, electronically on EDGAR.
Electronic Filing of Transfer Agent Forms, Securities Exchange Act Rel. No. 54864 (December 4, 2006), can be found at http://www.sec.gov/rules/final/2006/34-54864.pdf.
SEC Enforcement Director Discusses Hedge Fund Insider Trading
December 15, 2006 8:33 AM
On December 5, 2006, Linda C. Thomsen, Director of the SEC’s Division of Enforcement, testified before a Congressional committee that insider trading by hedge funds remains a substantial concern for the Enforcement Division. Ms. Thomsen noted that investigating potential insider trading by hedge funds presents additional challenges to the normal insider trading investigation due to the high volume of trading and proprietary trading strategies used by hedge funds. She noted that the high volume of trading by hedge funds across a broad range of securities may generate any number of transactions that appear to be unusual or suspicious, but for some hedge funds these trades may be typical.
Ms. Thomsen stated that tracking a hedge fund’s trading in a specific security may also be challenging because hedge funds often use the services of multiple prime brokers to break up trades. She noted that breaking up a single larger trade into many smaller trades with multiple prime brokers often allows hedge funds to make its trading less obvious in the market and protect their proprietary trading strategies. She noted that the Division of Enforcement sees prime brokers as a source of leads regarding unlawful insider trading.
Ms. Thomsen stated that while the SEC has access to the trading records of prime brokers and receives referrals from the SROs regarding suspicious trading executed through their markets, the available documents are generally organized according to the security involved, not the identity of the trader. She stated that the SROs’ surveillance systems are set up to trigger alerts based on aggregate trading parameters regarding a particular security, and not based on the identity of the trader. A referral from an exchange usually identifies the issuer of the security involved and a list of identified traders, which may include one or more hedge funds or accounts trading on behalf of hedge funds. Ms. Thomsen noted that the SEC presently does not have an electronic system to aggregate referrals based on the identities of specific traders involved, but said that she anticipates implementing a new case tracking system by mid-2007 that will enable the SEC to compile all referrals from different exchanges and different time periods by trader.
Finally, Ms. Thomsen stated that the identification of suspicious trading and resulting referrals by the SROs is just the start of the investigatory process. She said that the SEC and the SROs gather and analyze the trading records and investigate any relationships or associations that employees of the issuer may have with known traders in order to eliminate traders who did not have access to inside information and establish links between known traders and potential sources of inside information.
Testimony of Linda Chatman Thomsen, Director, Division of Enforcement, U.S. Securities and Exchange Commission, Concerning Insider Trading before the Committee on the Judiciary, U.S. Senate, December 5, 2006, can be found at http://judiciary.senate.gov/testimony.cfm?id=2437&wit_id=5777.
Regulators Discuss Enforcement Priorities at the first MARHedge Hedge Fund Best Practices: Operations and Regulatory ComplianceConference
December 15, 2006 8:30 AM
At the ICI Securities Developments Conference held on December 4-5, 2006, Peter Bresnan, the Deputy Director of Enforcement at the SEC, discussed his views on current priorities with respect to the hedge fund industry. He stated his view that enforcement would continue to focus on five major areas: theft and misappropriation of funds; preferential treatment of hedge funds over other client accounts; valuation fraud; market manipulation through insider trading, failure to disclose positions and illegal short selling; and market timing and late trading in mutual funds. He also said that the staff will be more concerned with protecting small investors and the integrity of the markets, and that the staff is aware that the law assumes that super wealthy and sophisticated investors can protect themselves.
David Brown, Bureau Chief at the NYS Attorney General’s office, also spoke and concurred with Mr. Bresnan that there are not likely to be many prosecutions arising from allegations of manipulation by short sales followed by negative public statements, because it is almost impossible to prove intent. The two enforcement officials predicted that in 2007 prosecutors would show growing interest in investigations of abuse of side letters and side pockets, and “trade leakage.” As to the latter, Mr. Brown stated that his office has been strongly urged by tippers to look into situations where brokers allegedly call hedge funds before they trade for other clients. Mr. Bresnan said the industry could also expect the SEC to continue to get a view into industry practices through examinations of administrators and other service providers, as in the BISYS case.
Similarly, Andrew Shrimpton, Head of Hedge Fund Supervision at the UK Financial Service Authority, said the key regulatory focus in the UK would be on self-valuation and side letters, especially those containing different information and redemption rights. Examinations would continue to be organized around the FSA’s 11 principles of conduct. Finally, Mr. Shrimpton said that the FSA will examine specific cases where there has been a change in service providers, which the FSA considers a useful marker of areas of productive inquiry.
MARHedge Hedge Fund Best Practices: Operations and Regulatory ComplianceConference
SEC Proposed New Rules Targeted at Hedge Funds
December 15, 2006 8:20 AM
On December 13, 2006, the SEC voted unanimously to propose a new antifraud rule under Section 206(4) of the Investment Advisers Act of 1940 (“Advisers Act”) for the benefit of investors in hedge funds and other private investment funds, and a new, narrower category of “accredited investor” under the Securities Act of 1933 (“1933 Act”) rules for purposes of investment in such funds.
Proposed Anti-Fraud Rule
The SEC proposed a new rule under Section 206(4) of the Advisers Act to prohibit investment advisers (whether or not registered) from making false or misleading statements to investors and prospective investors in pooled investment vehicles they manage, including hedge funds. Specifically, the proposal would make it a fraudulent, deceptive, or manipulative act, practice, or course of business for an investment adviser to a pooled investment vehicle to make false or misleading statements or to otherwise defraud investors or prospective investors in that pool. Under the proposed rule, a pooled investment vehicle would include any investment company and any company that would be an investment company but for the exclusions in sections 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940.
Proposed Accredited Investor Standard
The SEC also proposed new rules under the 1933 Act to revise the criteria for natural persons to be considered “accredited investors” for purposes of investing in certain privately offered investment vehicles. Specifically, the proposals would define a new category of accredited investor that would apply to offers and sales of securities issued by hedge funds and other private investment pools to natural persons. The proposed definition would include any natural person who (a) meets either the net worth test or income test specified in Rule 501(a) or Rule 215, as applicable, and (b) owns at least $2.5 million in investments, as defined in the proposed rules. The Commissioners expressed particular concern that, due to the increase in value of investors’ homes in recent years, the net worth requirement of Rule 501 is out of date.
The SEC staff indicated that the proposed rule would not apply to investment in venture capital funds. The “investments” test is based on the Section 3(c)(7) approach, and would apply at the time of purchase. Under the proposed rule, persons who currently fall within the current definition of accredited investor but outside the new definition will not be grandfathered or exempted. The SEC also indicated that the test would be updated every five years to account for inflation. Certain Commissioners and staff also mentioned the possibility of further revising the definition of accredited investor as it relates to other types of investors or investments. However, it does not appear that further amendments will be proposed in the near term.
Comments on both proposals should be received on or before 60 days after these proposals are published in the Federal Register.
At the time of publication, the proposing release and the text of the proposed rules were not available. Please see SEC News Digest, December 6, 2006, available at http://www.sec.gov/news/digest/2006/dig120606.txt and SEC Press Release 2006-208, December 13, 2006, available at http://www.sec.gov/news/press/2006/2006-208.htm.
SEC No-Action Letter Expands Position with Certain Rule 17a-7 Transactions
December 8, 2006 9:12 AM
The SEC staff (“staff”) issued a no-action letter to Federated Municipal Funds (“Federated”) on November 20, 2006, which addressed the use of independent pricing services for certain Rule 17a-7 transactions involving municipal securities for which market quotation were not readily available. Rule 17a-7 requires, among other things, that the transactions involve securities for which market quotations are readily available; the transactions are effected at the independent current market prices of the securities; and the “current market price” for certain securities (such as municipal securities) is calculated by averaging the highest and lowest current independent bid and offer price determined on the basis of a reasonable inquiry.
The Federated no-action letter extended the staff’s prior no-action position in United Municipal Bond (pub. avail. Jan. 27, 1995) (“1995 letter”), which permitted certain affiliated funds to use prices provided by Muller Data Corporation, now operating as FT Interactive Data (“FTID”), an independent pricing service, when engaging in rule 17a-7 transactions involving certain municipal securities for which market quotations are not readily available. The Federated no-action letter permits certain affiliated funds advised by Federated that invest primarily in municipal bonds to use Standard & Poor’s Securities Evaluations, Inc. as their independent pricing service, rather than FTID, in certain rule 17a-7 transactions under substantially similar conditions as in the 1995 letter. The staff stated that the 1995 letter did not intend FTID to be the only acceptable independent pricing service used in rule 17a-7 transactions, and noted that it may be appropriate for a fund, subject to board approval, to use other independent pricing services for these purposes.
The staff also noted that funds may use another pricing methodology, the Nasdaq Official Closing Price (“NOCP”), in rule 17a-7 transactions because the staff believes that the use of NOCP prices is consistent with the policies of section 17(a) and rule 17a-7. Finally, the staff provided general guidance on best execution and the duty of loyalty in connection with rule 17a-7 transactions, and emphasized that the investment adviser should ensure that total proceeds for the selling fund and the total costs for the buying fund are the most favorable under the circumstances and determine that the transaction is in the best interests of both the selling and buying funds.
Federated Municipal Funds, SEC No-Action Letter, November 20, 2006, available at http://www.sec.gov/divisions/investment/noaction/2006/fmf112006.htm.
SEC Staff Discusses Investment Management Priorities at the ICI’s 2006 Securities Law Development Conference
December 8, 2006 9:08 AM
At the ICI Securities Developments Conference held on December 4, 2006, various SEC staff members discussed current investment management initiatives. In the keynote address, Mr. Donohue emphasized the need for fund managers to “get back to basics and embrace core fiduciary values.” He cautioned that, as the mutual fund industry continues to evolve, “no new product should be brought to market, no new service agreement should be entered into, and no new fee arrangement should be brokered without senior management representing business, legal and compliance areas, giving careful and thorough consideration to whether the new product, service or arrangement will benefit investors and whether all material management conflicts have been identified and appropriately resolved. Mr. Donohue next discussed two of the Division’s priorities: (1) mutual fund disclosure reform and interactive data, and (2) exemptive application processing.
Remarks Before ICI Securities Developments Conference held on December 4, 2006.
SEC Staff Discusses Regulatory Challenges for Investment Management Industry
December 8, 2006 8:59 AM
Andrew J. Donohue, the Director of the Division of Investment Management at the SEC (“Division”), addressed the ALI-ABA Conference on Life Insurance Company Products on November 17, 2006. Mr. Donohue discussed the following regulatory issues currently affecting the investment management industry:
Remarks Before the ALI-ABA Conference on Life Insurance Company Products, Andrew J. Donohue, Director, Division of Investment Management, U.S. Securities and Exchange Commission, November 17, 2006, available at http://www.sec.gov/news/speech/2006/spch111706ajd.htm.
NASD Staff Discusses Enforcement Topics at the Investment Company Institute’s (“ICI”) 2006 Securities Law Development Conference
December 8, 2006 8:56 AM
At the ICI Securities Developments Conference held on December 4, 2006, James Shorris, Executive Vice President of the Department of Enforcement at the NASD, discussed various NASD enforcement actions. He noted that the NASD is pursuing cases in the following areas:
Remarks Before ICI Securities Developments Conference held on December 4, 2006.
NASD Fines Broker-Dealer for Providing Improper Gifts and Excessive Entertainment
December 8, 2006 8:53 AM
On December 4, 2006, the NASD fined Jefferies & Company, Inc. (“Brokerage Firm”) $5.5 million for providing more than $1.6 million in improper gifts and entertainment to equity traders employed by an investment adviser to a mutual fund complex. According to the NASD news release, the improper gifts and entertainment exceeded $1.6 million and included lavish trips with private chartered air travel and expensive hotel accommodations, non-promotional sport-related merchandise, expensive bottles of wine, golf outings and Superbowl tickets. According to James S. Shorris, NASD Executive Vice President and Head of Enforcement, “the value of improper gifts and entertainment in this case was unprecedented.” He elaborated that the “NASD’s gift and gratuity rules were designed to prevent just the sort of conduct at issue here, which threatens the integrity of the relationship between a brokerage firm and its institutional customer. That this customer – a mutual fund manager – was itself a fiduciary only aggravates the already egregious circumstances in this case.” In addition to the $5.5 million fine against the Brokerage Firm, the NASD stated in its news release that it: (1) permanently barred the former Jefferies trader from associating with any NASD-registered firm in any capacity, (2) fined the former supervisor of the Jefferies trader $50,000, suspended him for three months from associating with any NASD-registered firm in a supervisory capacity, and prohibited him from supervising business entertainment, gifts or travel for the next two years, and (3) ordered the Brokerage Firm to retain an independent consultant to conduct a comprehensive review of the firm’s policies, procedures and training relating to gifts and entertainment, and to adopt recommended improvements.
NASD News Release, “NASD Fines Jefferies & Company $5.5 Million for Providing Improper Gifts and Excessive Entertainment to Fidelity Traders,” dated December 4, 2006. Available at: http://www.nasd.com/PressRoom/NewsReleases/2006NewsReleases/NASDW_018022.
In related actions, the SEC also issued separate orders against the Brokerage Firm and its former trader. With respect to the former trader, the SEC order found that he willfully aided and abetted and caused violations of section 17(e)(1) of the Investment Company Act of 1940 (“1940 Act”). Section 17(e)(1) prohibits an affiliated person of a registered investment company, or an affiliated of an affiliate, when acting as an agent, from accepting “compensation” from any source (other than a salary or wages from the investment company) for the purchase or sale of any property to or for the registered investment company. The SEC order stated that, the former trader caused violations of section 17(e)(1) by providing “compensation,” namely extensive travel, entertainment and gifts to the mutual fund adviser’s traders, who in turn, willfully violated section 17(e)(1) by accepting such compensation in exchange for directing the fund’s brokerage business to the Brokerage Firm. The SEC order stated that the mutual fund adviser’s employees’ receipt of travel, entertainment and gifts from the former trader constituted compensation within the scope of the prohibition of section 17(e)(1) of the 1940 Act. With respect to the Brokerage Firm, the SEC order found that the Brokerage Firm failed reasonably to supervise its former trader, with a view to preventing and detecting his aiding and abetting violations of section 17(e)(1) of the 1940 Act.
The SEC orders further found that the Brokerage Firm willfully violated, and the former trader willfully aided and abetted and caused the Brokerage Firm to violate, section 17(a)(1) of the Securities Exchange Act of 1934 (“1934 Act”) and Rule 17a-3 thereunder. Section 17(a)(1) of the 1934 Act and rule 17a-3 require every registered broker-dealer to make and keep current accurate books and records, including ledgers reflecting, among other things, all expenses. The SEC orders found that the former trader caused the Brokerage Firm to violate section 17(a)(1) and rule 17a-3 by submitting and receiving reimbursement for improper travel and expense vouchers from the Brokerage Firm, which in turn failed to make and keep accurate books and records. Similar to the NASD order, the SEC order requires the Brokerage Firm to retain an independent consultant to conduct a comprehensive review of the firm’s supervisory, compliance, and other policies and procedures relating to gifts, travel and entertainment by the firm and its employees.
SEC Press Release, “Jefferies Settles SEC Charges Involving Illegal Gifts and Entertainment,” dated December 4, 2006; “In the Matter of Jefferies & Co., Inc. and Scott Jones,” SEC Release No. 34-54861, Administrative Proceeding File No. 3-12495, December 1, 2006; “In the Matter of Kevin W. Quinn, SEC Release Nos. 34-54862 and IC-27588, Administrative Proceeding File No. 3-12496, December 1, 2006. Available at http://www.sec.gov/news/press/2006/2006-198.htm.
NASD Issues Notice to Members Providing Guidance on Gifts and Gratuities
December 8, 2006 8:46 AM
NASD rule 3060 prohibits any member or person associated with a member from giving anything of value in excess of $100 per individual per year where such payment is “in relation to the business of the recipient’s employer.” The rule is designed to protect against improprieties that may arise when members give gifts to employees of a customer. In the December 2006 Notice to Members, the NASD provided the following guidance to its members:
Personal Gifts Exclusions. The prohibitions of rule 3060 generally do not apply to personal gifts, such as a wedding gift or a congratulatory gift for the birth of a child, provided that these gifts are not “in relation to the business of the employer of the recipient.” Factors that should be considered in making this determination include whether there is any pre-existing personal or family relationship between the gift giver and recipient, and whether the registered representative paid for the gift. If a firm (rather than the registered representative) bears the cost of a gift, the NASD presumes that such gift is in relation to the business of the employer.
De Minimis and Promotional Items. Rule 3060 does not apply to gifts of de minimis value (e.g., pens, notepads or modest desk ornaments), promotional items of nominal value that display the firm’s logo (e.g., umbrellas, tote bags or shirts), or customary deal toys. In order to fall within this exclusion, the promotional item’s value generally must be substantially below the $100 limit.
Aggregation of Gifts. Firms must aggregate all gifts given by the member and each associated person of the member to a particular recipient over the course of a year in determining compliance with rule 3060. In addition, each firm must state in its procedures whether it will aggregate all gifts given by the firm and its associated persons on a calendar year, fiscal year, or rolling basis beginning with the first gift to any particular recipient.
Valuation of Gifts. Gifts should be valued at the higher of cost or market value, exclusive of tax and delivery charges. For example, if a member purchases a ticket for a sports event in the secondary market, the ticket should be valued at the higher cost to the member and not necessarily the face value.
Incidental Gifts for Business Entertainment. Gifts given during the course of business entertainment and conferences are not excluded from Rule 3060. For example, purchasing an umbrella for a recipient during a round of golf at a conference would be considered a gift.
Supervision and Recordkeeping. In order to meet the supervision and recordkeeping requirements of rule 3060, firms should have systems and procedures designed to ensure that gifts given by the firm are reported, reviewed and documented by the firm. Such procedures should include provisions reasonably designed to ensure that the person making the gift is not responsible for making the determination of whether or not such gift is exempt from rule 3060. Items of de minimis value or nominal promotional or commemorative items are not subject to rule 3060’s record-keeping requirements.
NASD Notice to Members, December 2006, available at: http://www.nasd.com/RulesRegulation/NoticestoMembers/2006NoticestoMembers/NASDW_018023
National Association of Securities Dealers, Inc. (“NASD”) and New York Stock Exchange (“NYSE”) Announce Plans to Consolidate Operations
December 8, 2006 8:42 AM
On November 28, 2006, the NASD and NYSE announced the signing of a letter of intent to consolidate their member regulation operations into a new self-regulatory organization (“SRO”). The SRO will begin operations in the second quarter of 2007 and will consist of the current 2,400-person NASD organization and approximately 470 of NYSE Regulation’s member regulation, arbitration, and related enforcement team. The SRO will be responsible for all member examination, enforcement, arbitration and mediation functions, as well as all other current NASD responsibilities, including market regulation by contract for NASDAQ, the American Stock Exchange, the International Securities Exchange and the Chicago Climate Exchange. NYSE Regulation will continue to oversee the NYSE market, through its market surveillance division, related enforcement functions, and listed company compliance. The SRO will operate out of Washington, DC, NY and 18 District and Dispute Resolution office locations around the country.
Richard G. Ketchum, CEO of NYSE Regulation, will serve as the non-executive Chairman of the organization’s Board of Governors during a three-year transition period and remain CEO of NYSE Regulation, Inc. Mary L. Shapiro, NASD Chairman and CEO, will serve as CEO of the combined organization. A 23-person Board of Governors will oversee the SRO’s activities with 11 seats held by Public Governors. The transaction will require certain amendments to the NASD by-laws, which are subject to an NASD member vote, and is subject to the execution of a definitive agreement. The plan also is subject to review and approval by the Securities and Exchange Commission (“SEC”).
NYSE Fact Sheet, “NYSE/NASD Regulatory Consolidation Overview,” dated November 28, 2006, available at http://www.nyse.com/pdfs/TransactionFactSheet.pdf. See also NASD News Release, dated November 28, 2006, available at http://www.nasd.com/RegulatoryConsolidation/index.htm.