Investment Management Industry News Summary - Setember 2001

Investment Management Industry News Summary - Setember 2001

Publications

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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

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SEC issues fee rate advisory

September 30, 2001 12:54 PM

The 2001 fiscal year for the SEC ended on September 30, 2001. The fee for filings made pursuant to Section 6(b) of the Securities Act of 1933 is dependent on the enactment of an appropriation for the SEC for the new fiscal year. As of October 3, 2001, no such appropriation has been made. The SEC has issued a statement that pursuant to a continuing resolution, filing fees will remain at the current rate of $250 per $1,000,000 until October 16, 2001.

SEC announces latest administrative proceedings against investment advisers and investment companies

September 28, 2001 1:00 PM

On September 27 and 28, 2001, the SEC announced the results of its latest administrative proceedings instituted and settled against various investment advisers and investment companies concerning the violations summarized below:

Advertising. The SEC instituted administrative proceedings against an investment advisory firm and its principal for alleged misrepresentation of the firm's performance history to current and prospective clients. In particular, the SEC alleges that the firm and its principal overstated the number of clients and the amount of client assets under management. SEC File No. 3-10594. In a related proceeding, the SEC settled administrative proceedings against another investment advisory firm for providing its clients with the first firm's allegedly fraudulent performance information. In the settled action, the SEC found that the second investment adviser willfully violated Section 206(2) of the Investment Advisers Act of 1940 (the "Advisers Act") by providing reports that it should have known were inaccurate. SEC File No. 3-10595.

Personal trading. The SEC announced that it instituted and settled proceedings against a part owner and advisory representative of an investment advisory firm for failing to submit personal trading reports as required by the firm's internal operating procedures. The SEC found that from January 1997 through September 1998, the representative engaged in personal securities transactions without disclosing them to the firm's compliance officer. Instead, the representative submitted personal trading reports that contained fictitious transactions. When questioned during a routine field examination by the SEC's inspection staff, the representative voluntarily submitted to the staff corrected personal trading reports detailing the representative's actual personal securities transactions. The SEC imposed a cease and desist order preventing the representative from causing future violations of certain books and records provisions of the Advisers Act. SEC File No. 3-10598.

Fraud, failure to supervise. The SEC instituted administrative proceedings against an investment adviser and a subadviser for their failure to reasonably supervise the portfolio manager to an investment company and an offshore fund (collectively, the "Funds"). Each of the Funds invested predominantly in high yield securities. The portfolio manager for the Funds, a former employee of the subadviser, purchased securities underwritten by a broker-dealer. When the securities began performing poorly, the portfolio manager, with the assistance of a principal of the broker-dealer, inflated the value of troubled securities, causing one of the Funds to materially overstate its net asset value. The SEC found that the Fund's adviser did not have policies and procedures to respond adequately to indications that the portfolio manager was overstating the value of one of the Fund's securities. The SEC found that the Funds' subadviser failed to have adequate policies and procedures designed to prevent securities violations by the portfolio manager. The SEC fined each of the adviser and the subadviser and ordered each to comply with undertakings to maintain enhanced supervisory policies and procedures. SEC File No. 3-10600. In related proceedings, the SEC barred each of the portfolio manager and principal of the broker dealer from association with various securities related entities, ordered each to cease and desist from causing any current or future violation of various provisions of the Securities Act of 1933, the Advisers Act and the Investment Company Act of 1940 and instituted civil penalties for each. SEC File Nos. 3-10601 and 3-10602 .

SEC and Commodities Futures Trading Commission (CFTC) propose joint rules regarding margin for single-stock futures: On September 27, 2001, the SEC and the CFTC announced jointly proposed rules setting margin requirements for futures contracts based on single stocks. The proposed rules would:

  • Establish minimum initial and maintenance margin levels required for customer accounts carrying a long or short security futures position. The proposed minimum margin requirement is 20% of the current market value of the position.
  • Establish time limits for the collection of margin and establish the acceptable collateral for margining a security futures transaction or position.
  • Permit self-regulatory organization rules to provide lower minimum margin levels for strategy-based offset positions involving securities futures if these levels are consistent with the requirements for comparable offset positions involving exchange-traded options.
  • Provide that Regulation T requirements, other than margin levels, apply to security futures transactions or positions between a creditor and a customer.

The SEC and CFTC also proposed rules designed to eliminate duplicative and conflicting regulations that apply to firms that are fully registered with the SEC as a broker-dealer and with the CFTC as a futures commission merchant. The proposed rule changes would govern the applicability of the customer protection, recordkeeping, reporting and bankruptcy rules to accounts that hold security futures products.

The comment period on both proposals is 30 days after publication in the Federal Register. Per the 2000 Commodity Futures Modernization Act, trading in single stock futures is scheduled to begin December 21, 2001. SEC Today, September 28, 2001.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Extends Compliance Date for Rules on Mutual Fund After-Tax Return Information

September 26, 2001 2:04 PM

The SEC has extended the compliance date for amendments to rule 482 under the 1933 Act and rule 34b-1 under the Investment Company Act of 1940 which require certain funds to include standardized after-tax returns in advertisements and other sales material, from October 1, 2001 to December 1, 2001. The rule amendments require that mutual fund advertisements and sales literature include standardized after-tax returns if the sales material either (i) includes after-tax performance information; or (ii) includes any performance information together with representations that the fund is managed to limit taxes.

The SEC stated that representatives of four major fund groups requested an extension of the October 1, 2001 compliance date. They argued that an extension was necessary to allow funds and third-party providers of performance information to request and obtain clarification from the SEC staff on a number of technical issues about the methodology for calculating after-tax returns, and to program their systems accordingly. The fund groups stated that they only recently became aware of a lack of agreement within the fund industry, as well as with the third-partyproviders, on several components of the after-tax return calculation. In addition, the fund groups argued that the October 1, 2001 compliance date would have been particularly problematic for fund supermarkets, which must rely upon third-party providers for the after-tax returns they publish for non-proprietary funds. Because the fund supermarkets' websites are in most cases deemed to be sales literature, the after-tax numbers that they post on their websites would have had to comply with the after-tax return rule by October 1, 2001.

The SEC stated that it granted the limited extension to give funds and third-party providers sufficient time to seek clarification from the SEC staff about the appropriate methodologyto be used in computing after-tax returns and to modify their systems accordingly. SEC Release No. 34-44852 (September 26, 2001)

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Requests Broad Records Search by Securities-Related Entities

September 26, 2001 12:51 PM

The Federal Bureau of Investigation has published list of people and organizations who are under investigation for the September 11th terrorist attacks. (click here to review the list). On September 23, President Bush signed an executive order freezing the United States assets of and blocking transactions with those persons and organizations on the list.

The SEC has requested that all securities-related entities, including brokers, dealers, investment advisers, investment companies and transfer agents, voluntarily check their records for any accounts or other relationships or transactions (including purchase or sale transactions or wire transfers) with any individuals or organizations on the list. The request applies to securities-related entities whether or not registered with the SEC. In addition, the SEC has requested that all U.S. securities-related entities advise their foreign subsidiaries and affiliates of the request.

Information may be sent to the SEC via email to enf-search@sec.gov (please reference "Enf-Search Request" in the subject line) or via U.S. mail to United States Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0801, Attn: Executive Order Records Search. SEC Press Release 2001-103, September 26, 2001.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC and State Regulators Launch Investment Advisory Website

September 25, 2001 2:15 PM

The SEC and the North American Securities Administrators Association (“NASAA”) announced the launch of a website that will allow investors to electronically access information about investment advisers. The Investment Adviser Public Disclosure (“IAPD”) website provides instant access to Form ADVs, the registration statement for investment advisers, filed by more than 9,000 registered investment advisers. Of the 9,000, 7,300 are SEC-registered advisers and more than 1,700 are state-registered advisers. Currently, only Part I of Form ADV is available on the website. The SEC has proposed but has not yet adopted amendments to Part II of Form ADV. (See the Industry News Summary for the weeks of 8/20 – 9/3/01 ).

Investors can get copies of the Form ADVs by calling the SEC Public Reference Room at (202) 942-8090 or their state securities regulator. SEC Press Release 2001-99 (September 25, 2001).

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Extends Temporary Relief Orders and Issues Three Exemptive Letters

September 24, 2001 1:52 PM

The SEC has extended for five business days ending September 28, 2001 the temporary relief granted by emergency orders issued the prior week. Issuers may continue to repurchase their securities without meeting the volume and timing restrictions that ordinarily would apply, and without adverse accounting consequences under pooling of interests provisions. Directors, officers and 10% shareholders may purchase shares of their companies without becoming liable for any "short-swing profits" tied to sales during the past six months pursuant to Section 16(b) of the 1934 Act. Mutual funds may continue to borrow from and lend to related parties.

The SEC also issued three exemptive letters on September 21, 2001. The first letter, issued to the NASDAQ Stock Market, Inc., changed the deadline under rule 11Ac1-5 under the 1934 Act. That rule requires market centers that trade or market systems securities to report monthly on the quality of trade executions. The first reports for NASDAQ securities, originally due in September, are now due by November 30, 2001 and will cover October trades. The second letter, issued to the Securities Industry Association, extended a deadline for reports from broker-dealers on order routing practices. Under rule 11Ac1-6 under the 1934 Act, brokers that route orders on behalf of customers must make quarterly disclosures concerning the identity of the market centers to which they route a significant percentage of their orders, as well as information concerning the nature of their relationships with such market centers. The first reports, for the quarter July through September 2001, will now be due in November 2001. The third letter, issued to the NASD Small Firm Advisory Board, granted an exemption from the disclosure requirements of rule 11Ac1-6 to small broker-dealers. Small broker-dealers that have routed on an average 500 or fewer customer orders per month during the preceding calendar quarter are exempt from quarterly reporting requirements.

The SEC has also issued an interpretative release explaining how the market closures during the week of September 11 affect the application of rule 144(e) under the Securities Act of 1933 (the “1933 Act”) and rule 10b5-1 under the 1934 Act. Rule 144 defines the circumstances under which a person will not be deemed to be engaged in a distribution, and therefore will not be deemed an underwriter under the 1933 Act. A safe harbor limits the amount of securities that may be sold to a percentage of the shares outstanding or a percentage of the average weekly trading volume of an issuer’s securities. Since the securities markets were only open for one day on the week beginning September 10, 2001, the SEC determined that that week should be excluded from the calculation of the average weekly reported volume of trading in an issuer’s securities under rule 144(e) during a four week calendar period. An additional prior week should be included instead to total four calendar weeks.

Rule 10b5-1 provides an affirmative defense for written plans that are entered into in good faith and are not part of a plan to evade the insider trading rules. Such plans may be canceled by termination of the plan itself or by cancellation of the plan transactions. If a plan which was established prior to September 11, 2001 had provided for sales to be made during the week of September 17, 2001 and that plan was cancelled, the SEC determined that the cancellation would not call into question whether the plan was entered into in good faith. Any plan established before September 11, 2001 that is terminated between September 11 and September 28, 2001, may rely on this interpretation. SEC Today, Volume 2001-184 (September 24, 2001).

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Chairman Pitt Testifies Before Senate Hearing on the Condition of the U.S. Financial Markets

September 24, 2001 1:40 PM

Speaking at a Senate Banking Committee hearing on September 20, 2001, SEC Chairman Harvey Pitt stated that he may ask Congress for an extension of the SEC’s emergency powers beyond the maximum of ten days provided in the securities laws. The SEC invoked its emergency powers under Section 12(k) of the Securities Exchange Act of 1934 (the “1934 Act”) for the first time when the nation’s stock markets resumed trading after a 4-day hiatus September 17. (See Industry News Summary for the weeks of 9/3/01 – 9/17/01).

Commissioner Pitt stated that the cornerstone of the SEC’s emergency orders was facilitating the ability of public companies to repurchase their own shares to provide greater liquidity to the market. Mr. Pitt commented that the special rule governing corporate repurchases has been working very well, noting that on the first day trading resumed more than ten times the usual amount of corporate repurchasing took place. Mr. Pitt also commented that a multi-agency task force, led by the Federal Bureau of Investigation, is investigating whether terrorists used the financial markets to gain from the September 11th attacks. He said the SEC is working with the task force and is devoting substantial resources to probe whether terrorists used short sales or put options to profit from post - September 11th downturns in airline or other stocks. BNA Securities Regulation and Law Report, Vol. 33, No. 37 (September 24, 2001.)

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

The SEC has extended the compliance date for rule amendments requiring mutual funds to include standardized after-tax returns in advertisements and other sales material in certain situations

September 24, 2001 1:26 PM

The SEC has extended the compliance date for rule amendments requiring mutual funds to include standardized after-tax returns in advertisements and other sales material in certain situations from October 1, 2001 to December 1, 2001. The release is summarized below.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

President Bush Intends to Nominate Newsome as Permanent CFTC Chairman

September 20, 2001 2:17 PM

The White House announced on September 20, 2001 that President Bush intends to nominate Acting CFTC Chairman James Newsome as the permanent head of the CFTC to serve for a term expiring in 2006. The CFTC has been without a permanent Chairman since William Rainer resigned in January. Mr. Newsome, a Republican who was appointed by President Clinton in 1998, took over as Acting Chairman upon Mr. Rainer’s departure. Mr. Newsome’s term as Commissioner and his position as Chairman will need to be approved by the Senate.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Grants Order Encouraging Company Repurchases When Markets Reopen

September 17, 2001 8:38 AM

Noting that purchases by registrants of their own securities can represent an important source of liquidity during times of market volatility, the SEC ordered the relaxation of certain rules relating to purchases by issuers and affiliates of their own securities for five business days beginning September 17, 2001. These rules include the "time of day" and volume limits of rule 10b-18 under the 1934 Act, limitations on share repurchases in connection with pooling of interests accounting and the short-swing profit recovery rules of Section 16(b) of the 1934 Act. The SEC also determined that a registrant's failure to comply with internal timing policies or "window periods" in repurchasing its securities during the five-day period will not be considered by itself as any indication of violation of the anti-fraud provisions of the federal securities laws, which otherwise remain in effect.

Rule 10b-18: Most companies structure their buyback programs to comply with the safe harbor of rule 10b-18. This rule shields a company from market manipulation claims if its repurchases comply with certain conditions regarding the number of brokers, timing, volume and price of repurchases. For five business days beginning September 17, 2001, the timing and volume requirements of 10b-18 are modified. With respect to timing, the ban on buying at opening of a session and the last half hour of a session is suspended. With respect to volume, the limitation that purchases on any given day (other than block purchases) cannot exceed 25% of the average daily trading volume during the past four calendar weeks has been modified. The new limitation is that purchases on any given day (other than block purchases) cannot exceed more than 100% of the average daily trading volume during the past four calendar weeks (beginning prior to the week of September 10). Please note that the other conditions of Rule 10b-18 -- the conditions regarding the number of brokers used and the price at which repurchases are made -- are unaffected by the emergency order and must be complied with.

Section 16(b): Section 16(b) subjects directors, certain officers and greater than 10% stockholders of public companies to liability claims for any profit from purchases and sales within less than six months of each other. Any purchases during the next five business days beginning September 17, 2001 will not be matchable with any sales in the past six months. These purchases will, however, be matchable with any nonexempt sales that occur within the next six months.

Net Capital requirements: broker-dealers need not treat the 11th, 12th, 13th and 14th of September, 2001 as business or calendar days for purposes of calculating charges or taking actions under Rules 15c3-1 and 15c3-3 under the 1934 Act arising from failed transactions or imbalances in securities accounting systems, or for the purposes of FOCUS reporting. Broker-dealers that are required to do a reserve computation for the week ending September 14, 2001 under Rule 15c3-3 will not be required to do such a computation, provided they do not withdraw money from their reserve bank account without first doing a computation.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

We in the Investment Management Group at Hale and Dorr LLP extend our thoughts and prayers to all who have been touched by the tragic events on September 11, 2001

September 14, 2001 2:25 PM

We in the Investment Management Group at Hale and Dorr LLP extend our thoughts and prayers to all who have been touched by the tragic events on September 11, 2001.

In an effort to ensure that the U.S. securities markets would operate as smoothly as possible when they re-opened, the Securities and Exchange Commission ("SEC") announced on Friday, September 14, 2001, that it had taken several emergency actions which are summarized below. For the full text of each SEC release, please cick here.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Issues Order Granting Exemptions from Certain Investment Company Act Provisions

September 14, 2001 8:26 AM

The SEC granted an order temporarily exempting mutual funds from the following requirements:


  • In-person meetings and voting of directors: For 30 calendar days beginning on September 14, 2001, a registered investment company and any investment adviser of, or principal underwriter for, such fund is exempt from the requirements imposed under sections15(c) and 32(a) of the Investment Company Act of 1940 (the "1940 Act") and rules 12b-1(b)(2) and 15a-4(b)(2)(ii) thereunder that the board of directors of the fund must vote in person to renew certain existing contracts, plans or arrangements. The relief was conditioned on the requirement that (i) the votes must be cast at a meeting in which directors may participate by any means of communication that allows all directors participating to communicate with each other simultaneous during the meeting, (ii) the action does not result in any material change to an existing contract, plan or arrangement under consideration, and (iii) the board, including a majority of the independent directors, ratifies the action taken pursuant to the exemption by a vote cast at an in-person meeting within ninety calendar days of the date that the action is taken.
  • The ability of a fund to borrow from an affiliated person: For five business days beginning Monday, September 17, 2001, a registered open-end investment company or an insurance company separate account registered as a unit investment trust is exempt from sections 12(d)(3) and 17(a) of the 1940 Act to the extent necessary to permit it to borrow money from any affiliated person that is not itself a registered investment company. This relief is conditioned on the requirement that the board of the fund, including a majority of the independent directors, reasonably determines in the exercise of its judgment that such borrowing is in the best interests of the fund and its shareholders.
  • The ability of a registered open-end investment company to borrow from entities other than banks: For five business days beginning September17, 2001, a registered open-end investment company is exempt from section18(f)(1) of the 1940 Act to the extent necessary to permit it to borrow money from an entity other than a bank. This relief is conditioned on the requirement that the board of the fund, including a majority of the independent directors, reasonably determines in the exercise of its judgment that such borrowing is in the best interest of the investment company and its shareholders.
  • Intrafund lending arrangements: For five business days beginning September 17, 2001, any registered investment company currently able to rely on a SEC order permitting an intrafund lending and borrowing facility ("Order") may make loans through the facility in an aggregate amount that does not exceed 25% of its current net assets at the time of the loan notwithstanding any lower limitation in the Order. The loan must otherwise be made in accordance with the terms and conditions of the Order.
  • The ability of a registered open-end investment company to deviate from its fundamental policy with respect to borrowing: For five business days beginning September 17, 2001, a registered open-end investment company is exempt from sections 13(a)(2) and 13(a)(3) of the 1940 Act to the extent necessary to permit it to enter into borrowing transactions that deviate from any relevant policy recited in its prospectus without prior shareholder approval. This relief is conditioned on a requirement that the board, including a majority of the independent directors, must reasonably determine in the exercise of its judgment that each such transaction is in the best interests of the fund and its shareholders and the fund promptly notifies its shareholders of the deviation.

 

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Takes Several Actions to Facilitate the Reopening of Fair and Orderly Equity Markets

September 14, 2001 8:21 AM

The SEC announced that it took several steps to facilitate the planned reopening of U.S. equity markets on Monday, September 17, 2001. The SEC used its emergency powers for the first time to ease temporarily certain regulatory restrictions in the following areas:

  • Mutual funds may borrow from and lend to related parties.
  • In order to facilitate mutual fund board meetings, the Commission has relaxed requirements for in-person meetings.
  • Public companies may repurchase their own securities in accordance with liberalized volume and timing restrictions.
  • Persons subject to Section 16(b) under the Securities Exchange Act of 1934 ("the 1934 Act") may purchase securities without becoming liable for any "short-swing profits" for sales during the past six months.
  • Public companies that repurchase their shares during the period covered by the emergency order may continue to use pooling-of-interests accounting.
  • Accounting firms may provide bookkeeping services to, and help recover records for, clients with offices in and around the World Trade Center, without violating auditor independence rules.
  • Brokerage firms may calculate net capital without considering the days the market was closed.

The SEC noted that it will monitor the situation and that the SEC and its staff will be available to respond to issues raised by the extraordinary circumstances of the prior week. SEC Press Release 2001-91 (September 14, 2001).

 

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

SEC Permits Auditors to Provide Bookkeeping Services to Audit Clients In and Around the World Trade Center

September 12, 2001 8:44 AM

The SEC issued a release stating that auditors of the financial statements of SEC registrants may provide certain bookkeeping services to those audit clients directly affected by the events of September 11, 2001. The release notes that several accounting firms and registrants have asked the Commission whether accounting firms may assist audit clients that had offices in and around the World Trade Center by participating in the recovery process to facilitate a timely, effective and efficient revitalization of their audit clients’ records and systems that were destroyed in the events of September 11, 2001 without impairing the auditor’s independence from those clients. The SEC stated that accounting firms may perform such services without impairing their independence.

Rule 2-01(c)(4)(i)(A) of Regulation S-X, which addresses auditor’s independence from their audit clients filing statements with the SEC, provides that, among other things, maintaining or preparing an audit client’s accounting records or preparing or originating source data underlying an audit client’s financial statements will impair an auditor’s independence from that client. However, subparagraph (b)(1) under the rule permits such bookkeeping services "in emergency or other unusual situations, provided the accountant does not undertake any managerial actions or make any managerial decisions." The SEC concluded that the events of September 11, 2001 meet the definition of an emergency and unusual situation for those companies that have been directly affected by the destruction of the World Trade Center and damage to surrounding buildings. The SEC noted that services under this exemption may continue until the client’s lost or destroyed records are reconstructed and its financial statements are fully operational, and the client can effect an orderly and efficient transition to management or other service providers.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Fund Activist Sues SEC for Decision Approving Manager-of-Managers Exemptive Applications

September 10, 2001 8:52 AM

In late August, Mercer Bullard, Chief Executive Officer and founder of Fund Democracy, LLC, filed a petition before the U.S. Court of Appeals for the District of Columbia asking the court to review and set aside the SEC’s decision to deny Fund Democracy’s hearing request and grant an exemptive order to Hillview Capital Management and Hillview Investment Trust II (collectively, "Hillview"). In July, the SEC denied a hearing request submitted by Fund Democracy on an application submitted by Hillview. The application was a routine "manager of managers" application, seeking relief from Section 15(a) of the1940 Act and Rule 18f-2 thereunder to permit the fund to hire new subadvisers and materially amend subadvisory agreements without shareholder approval. (See the Industry News Summary for the week of 7/2 to 7/9/01).

In the petition, Mr. Bullard argued that the SEC had abused its discretion by denying the hearing request and granting Hillview’s exemptive application. He added that Fund Democracy was prepared to provide the court with substantial evidence that directly contradicts the SEC’s findings and further that a hearing is necessary and appropriate in the public interest. Fund Action, Vol. XII, No. 36 (September 10, 2001).

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Staff Grants No-action Relief for Investment by Social Index Fund

September 4, 2001 8:48 AM

The staff of the SEC has assured the Calvert Social Index Fund (the "Fund") in response to a no-action request that it will not recommend enforcement for violations of section 12(d)(3) under the 1940Act if the Fund invests in securities issued by an affiliated person of its subadviser. The fund is a pure index fund which uses a passive management strategy to track the performance of the Calvert Social Index (the "Index") by investing in each stock in the Index in the same proportion as represented in the Index. The Index is a new broad-based index created and maintained by subsidiaries of the Fund’s sponsor. The Index measures the performance of companies that meet the social investment criteria established by the Calvert Social Research Department ("CSRD") which is a department within the Fund’s investment adviser. CSRD employs a four-step process to select companies for the Index, including reviews of the issuer’s activities with respect to the environment, labor relations, product safety, animal welfare, military weapons, community relations, human rights and indigenous peoples’ rights. The Fund’s adviser has retained a subadviser whose indirect parent company (the "Parent") is currently included in the Index.

Section 12(d)(3) generally prohibits a registered investment company from purchasing securities issued by a broker-dealer, registered investment adviser or underwriter. Section 12(d)(3) thus prohibits the Fund from purchasing the securities of the Parent because the Parent is indirectly engaged in a securities-related business through the subadviser. Rule 12d3-1 under the 1940 Act exempts purchasers of certain securities from the prohibitions of section 12(d)(3) under certain circumstances. However, Rule 12d3-1(c) explicitly excludes from the exemption provided under Rule 12d3-1 any purchase by a fund of securities issued by its investment adviser, promoter or principal underwriter, or any affiliated person thereof. Accordingly, the fund cannot rely on the exemption to purchase securities issued by the Parent because the Parent is an affiliated person of the subadviser.

The staff has previously agreed not to recommend enforcement action under section 12(d)(3) against index funds that sought to purchase securities issued by affiliated persons of the fund’s investment adviser that were directly or indirectly engaged in a securities-related business. That relief was granted on the basis that the fund’s objective was to match the investment performance of a stated index which was unaffiliated and broad-based. Unlike the prior line of no-action letters, the Fund’s investment objective is to match the investment performance of an affiliated index. The Fund and the Index may be affiliates of each other because they may be deemed to be under the common control of the Fund’s sponsor.

The Fund explained that the affiliation did not pose the conflict of interest concerns raised by section 12(d)(3) since neither the subadvisor nor any of its affiliates can cause CSRD to include the Parent in the Index when it otherwise would not have done so. The subadviser cannot add to or eliminate from the Index the companies which are selected by CSRD’s four-step process. Neither the subadvisor nor its affiliates are involved in the creation or the maintenance of the Index and have not influenced the composition of the Index. In granting no-action relief, the staff noted that the relationship between the subadvisor and the Parent had not been a factor in determining the composition of the Index and that the Index was not created for the purpose of including the Parent in it. The staff also noted that none of the Fund’s sponsor’s subsidiaries is an affiliated person of the subadvisor or any of its affiliates and neither the subadviser nor the Parent is an affiliated person of the Fund’s sponsor or its subsidiaries. Calvert Social Index Fund, SEC No-action Letter (September 4, 2001).

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

NASDR files a proposal to extend the effectiveness of NASD IM-2210-5

September 1, 2001 1:08 PM

On August 10, 2001, NASDR filed a proposal to extend the effectiveness of NASD IM-2210-5 which permits NASD members and associated persons, subject to certain conditions, to include bond fund volatility ratings in supplemental sales literature. The SEC had originally approved use of bond fund volatility ratings on an interim 18-month pilot period which expired on August 31, 2001. The SEC permitted NASDR, upon the filing of a proposal, to extend the pilot period for an additional two years until August 31, 2003. The rule filing is immediately effective.

IM-2210-5 permits the use of bond fund volatility ratings subject to the following conditions:

  • The word "risk" may not be used to describe the rating;
  • The rating must be the most recent available and be current to the most recent calendar quarter end prior to use;
  • The rating must be based exclusively on objective, quantifiable factors;
  • The entity issuing the rating must provide detailed disclosure on its rating methodology to investors through a toll-free telephone number, a web site or both; and
  • A disclosure statement containing all of the information required by the rating must accompany the rating. The statement must include such information as the name of the entity issuing the rating, the most current rating and date it was issued and a description of the rating in narrative form containing certain specified disclosures.

NASD Conduct Rule 2210(c)(3) requires members to file sales literature that includes volatility ratings at least 10 days before first use. NASD Notice to Members 01-58, September 2001.

 
 



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.

IRS CIRCULAR 230 DISCLOSURE:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.