REED SMITH LLP INVESTMENT ADVISER NEWS QUARTERLY UPDATE

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1 4th Quarter 2004 REED SMITH LLP INVESTMENT ADVISER NEWS QUARTERLY UPDATE The Investment Adviser News features regulatory and other news items of interest to the investment management industry and investment advisers. The items are summarized and, where possible, contain links to more information about the item. OCTOBER 2004 DATE TOPIC SUMMARY MSRB PROPOSES TO CREATE THE REAL-TIME TRANSACTION PRICE SERVICE FOR MUNIS The Municipal Securities Rulemaking Board ( MSRB ) filed with the Securities and Exchange Commission ( SEC ) a proposal to create the Real-Time Transaction Price Service ( Real-Time Service ) and establish a $5,000 annual subscription fee /RTRSFee.htm (copy of notice) The Real-Time Service will disseminate municipal securities transaction prices in real-time as part of the MSRB s Real-Time Transaction Reporting System ( RTRS ). The proposal will become effective upon approval by the SEC, and is expected to become operative in January 2005 as part of the RTRS. As background, on August 31, 2004, the SEC approved the MSRB s proposal for implementation of a real-time transaction reporting and price dissemination system, which will require dealers to submit their transaction reports within 15 minutes of time of trade. The system will automatically check the reports for errors, ensure that they are valid trade reports, format the reports, and make them available for immediate electronic transmittal to each subscriber SEC ADOPTS RULE REQUIRING HEDGE FUND ADVISERS TO REGISTER (copy of press release announcing the new rule) In a 3-2 vote, the Commissioners of the SEC adopted new Rule 203(b)(3)-2 under the Investment Advisers Act of 1940 ( Advisers Act ), which will require hedge fund advisers to register with the SEC by February 1, Hedge fund advisers will no longer be able to rely on an exemption from adviser registration designed for advisers providing advice only to 15 or fewer clients. Registration under the new rule is intended to assist the SEC with: o collecting information about the operations of hedge fund advisers; o conducting examinations of hedge fund advisers; o requiring all hedge fund advisers to adopt basic compliance controls to prevent violation of the federal securities laws; o improving disclosures made to prospective and current hedge fund investors; and o preventing felons or individuals with other serious disciplinary records from managing hedge funds.

2 NASD PROPOSES BAN ON USE OF FUND BROKERAGE COMMISSIONS FOR DISTRIBUTION (copy of release) C%20Update% pdf The SEC issued a Notice seeking public comment on a proposal by the NASD to amend NASD Conduct Rule 2830(k), which governs members execution of investment company portfolio transactions. The NASD proposed to eliminate a current provision of this rule that allows a member to sell shares of a fund that has a disclosed policy of considering sales of fund shares as a factor in selecting brokers to execute fund portfolio transactions, and to add a new provision to the rule to effectively prohibit this type of directed brokerage. This NASD rule proposal corresponds with the SEC s recent amendment of Rule 12b-1 (under the Investment Company Act of 1940 ( 1940 Act )) to prohibit open-end management investment companies from paying for the distribution of their shares with brokerage commissions. The compliance date for the amendment to Rule 12b-1 was December 13, The SEC must approve the change before the NASD proposal can become final. SEC comments on the proposal were due by November 30, COMPLIANCE DATE FOR CODE OF ETHICS RULE EXTENDED TO FEBRUARY 1, 2005 On October 29, 2004, the Investment Company Institute ( ICI ) issued a memorandum to its members stating that the SEC has extended the compliance date of Rule 204A-1 under the Advisers Act, which requires each registered investment adviser to adopt a code of ethics. As a result of the ICI communicating to the SEC the difficulties investment advisers were experiencing in complying with the January 7 th compliance date, the compliance date has been extended from January 7, 2005 to February 1, NOVEMBER REGULATION B IMPLEMENTATION POSTPONED (copy of the press release announcing the postponement) The SEC extended until March 31, 2005, the compliance dates for banks with respect to certain broker registration requirements contained in the Gramm-Leach- Bliley Act ( GLBA ). Banks have indicated that they will need time to implement systems to ensure compliance with the new statutory requirements regarding the definition of broker. The GLBA repealed a full exception that had allowed banks to engage in securities activities without registering as a broker or dealer and replaced the full exception with new functional exceptions. The new functional exceptions were to become effective May 12, On May 11, 2001, the SEC adopted interim rules that, among other things, gave banks time to come into full compliance with the more narrowly tailored exceptions from brokerdealer registration. To further accommodate the banking industry's continuing compliance concerns, the SEC delayed the effective date of the bank broker rules through a series of orders that ultimately extended the temporary exemption from the definition of broker to Nov. 12, The SEC has since extended the exemption from the definition of broker until March 31, 2005, pending its consideration of comments received on its Regulation B proposal. This will give the Commission time to fully consider comments received on Regulation B and to take any final action on the proposal as necessary, including consideration of any modification necessary to the proposed compliance date. -2-

3 SEC APPROVES NEW NASD CEO CERTIFICATION AND CCO DESIGNATION REQUIREMENTS materials. rules_regs/documents/notice_to_me mbers/nasdw_ pdf (copy of the rule language and interpretive material) C%20Update% pdf The NASD issued Notice to Members to announce the SEC s approval of new NASD Rule 3013 and accompanying interpretive The new rule requires members to: 1) designate a chief compliance officer ( CCO ); and 2) have the chief executive officer (or equivalent officer) ( CEO ) certify annually that the member has in place processes to establish, maintain, review, test, and modify written compliance policies and written supervisory procedures reasonably designed to achieve compliance with applicable NASD rules, MSRB rules, and federal securities laws and regulations. Members were required to designate and identify to NASD on Schedule A of Form BD a principal to serve as CCO by December 1, The CEO certification must be executed within one year of December 1, 2004 and annually thereafter. The new NASD requirements were adopted without change from the version that was published for comment in July SEC ISSUES CONCEPT RELEASE TO OVERHAUL DISCLOSURE RULES UNDER THE 1933 ACT htm (copy of the proposing release) SEC STAFF EASES BURDEN FOR CLOSED-END FUNDS UNDER COMPLIANCE RULE ent/noaction/ici htm (copy of the no-action letter) The SEC proposed rules that will modify and advance significantly the registration, communications, and offering processes under the Securities Act of The proposals, if adopted, would eliminate unnecessary and outmoded restrictions on offerings. In addition, the proposals would provide more timely investment information to investors without mandating delays in the offering process that the SEC believes would be inconsistent with the needs of issuers for timely access to capital. The proposals also would continue the SEC's long-term efforts toward integrating disclosure and processes under the Securities Act and the Securities Exchange Act of 1934 ( 1934 Act ). The proposals would accomplish these goals by addressing communications related to registered securities offerings, delivery of information to investors, and procedural restrictions in the offering and capital formation processes. Rule 38a-1 under the 1940 Act, or the compliance programs rule, requires a board of directors of a registered investment company, including a closed-end fund, to review and approve the compliance policies and procedures of each service provider, including each principal underwriter of the fund. In a no-action letter addressed to the ICI, the SEC staff stated that it would not recommend enforcement action against a closed-end fund if its board of directors does not review and approve a principal underwriter s compliance policies and procedures if that principal underwriter does not undertake regularly to serve or act as a principal underwriter for the fund. In its request for relief, the ICI asserted that application of Rule 38a-1 to a principal underwriter of closed-end fund is unnecessary because a principal underwriter and a closed-end fund do not have an ongoing relationship. -3-

4 The SEC staff agreed and, in reaching its conclusion, the staff observed that in all other instances the rule requires an investment company to oversee the compliance of service providers that provide ongoing services to the investment company, including: advisers, administrators, transfer agents, and, with respect to an open-end fund, the principal underwriter The Use of Negative Response Letters to Change the Broker-Dealer of Record on a Mutual Fund or Variable Insurance Product Account Held Directly at the Issuer dcservice=ss_get_page&ssdocn ame=nasdw_012109&sssourceno deld=6 (copy of interpretive letter) rules_regs/documents/notice_to_me mbers/nasdw_ pdf (copy of Notice to Members 04-72) C%20Update% pdf According to the National Association of Securities Dealers ( NASD ) Interpretive Letter issued November 8, 2004, a member firm that is currently the broker of record for a mutual fund or variable insurance product account held directly at the issuer may, under certain circumstances, use negative response letters to change the broker of record to another broker-dealer under certain circumstances. The NASD has been considering the use of negative consents in this context for several years, and has issued several notices and interpretive letters in this regard. In September 2002, the NASD issued a Notice to Members (02-57) concerning the use of negative response letters for the bulk transfer of customer accounts. The Staff expressed its view that a customer should affirmatively consent to the transfer of his or her account to another firm because, when a firm initiates the transfer of a customer s account via a negative response letter, there is no assurance that the customer has had sufficient time or information with which to decide whether to object to the transfer. Furthermore, transfers of customer accounts by a member using negative response letters may, under certain circumstances, conflict with a member s obligation to observe high standards of commercial honor and equitable principles of trade under NASD Rule The Staff responded to inquiries regarding the potential application of Notice to Members (02-57) to changes in the broker of record by issuing Notice to Members (04-72) on October 5, 2004, which reaffirmed that the guidance provided in Notice to Members (02-57) regarding permissible use of negative response letters did not apply to changes in brokers of record for mutual fund and variable insurance product accounts where the account is held directly with the issuer. The NASD then modified its guidance on this question in an October 20, 2004 interpretive letter, recognizing the appropriateness of the use of negative response letters to change the broker of record in directly held mutual fund and variable insurance product accounts in situations involving the acquisition or merger of a member firm where the acquiring or surviving entity is the legal successor-in-interest to the member firm. However, based on membership questions, the NASD staff determined that additional guidance was necessary. The November 8 letter sets out the NASD staff s current view that the use of negative response letters to make changes to a customer s account (including changing the broker of record ) should be used only when a compelling reason exists that overrides potential risks to investors. -4-

5 The letter gives examples of circumstances under which a member may use negative response letters to change the broker of record on directly held mutual fund and variable insurance product accounts that will become effectively abandoned because the member currently named as the broker of record does not intend to service those accounts on a going forward basis. The staff also stated its expectation that a member relying on this guidance must provide account holders with adequate time and information to decide whether to object to the transfer, and reminded members to provide the information and disclosures outlined in Notice to Members (02-57) REPORT OF THE MUTUAL FUND TASK FORCE SOFT DOLLARS AND PORTFOLIO TRANSACTION COSTS rules_regs/documents/rules_regs/nas dw_ pdf (copy of report) C%20Update% pdf The NASD Mutual Fund Task Force ( Task Force ) issued a report on Soft Dollars and Portfolio Transaction Costs ( Report ) which sets forth the Task Force s observations and recommendations concerning soft dollar services and portfolio transaction costs. The NASD formed the Task Force in May 2004 to consider ways to improve the transparency of mutual fund portfolio transaction costs and distribution arrangements. The Task Force has recommended that the SEC: o narrow its interpretation of the scope of research services for purposes of the safe harbor set forth in Section 28(e) under the Securities Exchange Act of 1934; o require enhanced disclosure to fund Boards and shareholders about portfolio transaction costs and soft dollar products and services received; o mandate enhanced disclosure in fund prospectuses; o consider soft dollar issues raised by other managed advisory accounts; and o apply disclosure requirements to all types of Commissions (or commission equivalents ). DECEMBER SEC POSTS RELEASE REQUIRING HEDGE FUND ADVISERS TO REGISTER pdf (copy of the release adopting the rule) C%20Update% pdf The SEC posted the release adopting Rule 206(4)-2, which requires hedge fund investment advisers to register with the SEC by February 1, 2006 under certain circumstances. Rule 203(b)(3)-2 requires investment advisers to count each owner of a private fund towards the threshold of fourteen clients for purposes of determining the availability of the private adviser exemption of Section 203(b)(3) of the Advisers Act. As a result, an adviser to a private fund, which is defined in Rule 203(b)(3)-1, can no longer rely on the private adviser exemption of the adviser, during the course of the preceding twelve months, if it has advised private funds that had more than fourteen investors. -5-

6 SEC ADOPTS REQUIREMENTS FOR PROPER DISPOSAL OF CONSUMER REPORT INFORMATION (copy of release) C%20Update% pdf The SEC added a new provision (sometimes referred to as the disposal rule ) to Regulation S-P Privacy of Consumer Financial Information to require every SEC-registered broker-dealer, investment company, investment adviser and transfer agent ( covered entities ) that maintains or otherwise possesses consumer report information for a business purpose to properly dispose of the information by taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal. The SEC also amended existing provisions of Regulation S-P that relate to the safeguarding of customer information (which requirements are sometimes referred to as the safeguard rule ) to specifically require that the policies and procedures required under the safeguard rule be in writing. The compliance date is July 1, However, covered entities have until July 1, 2006 to bring existing contracts with service providers for services involving the disposal or destruction of consumer report information into compliance with the new requirements PCAOB TO TAKE A GREATER ROLE IN SETTING AUDITOR INDEPENDENCE STANDARDS Events/News/ asp (copy of press release) The Public Company Accounting Oversight Board ( PCAOB ) proposed certain ethics and independence rules to promote the ethics and independence of registered public accounting firms that audit and review financial statements of U.S. public companies, including investment companies. The proposed rules: o treat a public accounting firm as not independent if the firm, or an affiliate of the firm, provides any service or product to an audit client for a contingent fee or a commission, or receives from an audit client, directly or indirectly, a contingent fee or commission; o treat a public accounting firm as not independent if the firm, or affiliate of the firm, provides assistance in planning, or provides tax advice on, certain types of potentially abusive tax transactions to an audit client or provides any tax services to certain senior officers of an audit client; o require public accounting firms to provide certain information to the audit committee of an audit client in connection with seeking pre-approval to provide non-prohibited tax services to the audit client; and o require public accounting firms to be independent of their audit clients throughout the audit and professional engagement period. Most accounting firms already are subject to similar auditor independent rules, including Rule 2-01 of Regulation S-X of the Securities Act of

7 COMMITTEE FORMED TO EXAMINE IMPACT OF SARBANES-OXLEY ACT ON SMALLER PUBLIC COMPANIES The SEC established an advisory committee to assist it in examining the impact of the Sarbanes-Oxley Act and other aspects of the federal securities laws on smaller public companies. The advisory committee will be known as the Securities and Exchange Commission Advisory Committee on Smaller Public Companies. (copy of the press release announcing the formation of the committee) SEC PROPOSES NEW TRADING RULES RELATED TO MARKET INFORMATION pdf (copy of the rule release) The committee will focus on: o frameworks for internal control over financial reporting applicable to smaller public companies, methods for management s assessment of such internal control, and standards for auditing such internal control; o corporate disclosure and reporting requirements and federally-imposed corporate governance requirements for smaller public companies, including differing regulatory requirements based on market capitalization, other measurements of size or market characteristics; o accounting standards and financial reporting requirements applicable to smaller public companies; and o the process, requirements and exemptions relating to offerings of securities by smaller companies, particularly public offerings. The committee will consider whether the costs imposed by the current securities regulatory system for smaller public companies are proportionate to the benefits, identifying methods of minimizing costs and maximizing benefits, and facilitating capital formation by smaller companies. The Chairman also stated the SEC expects the committee to provide recommendations as to where and how the SEC should draw lines to scale regulatory treatment for companies based on size. The SEC reproposed rules under Regulation NMS governing the dissemination of market information. The rules are designed to improve the regulatory structure of the U.S. equity markets. The SEC proposed the following four sets of rules: Trade-Through Rule. This rule would require trading centers to establish, maintain, and enforce written policies and procedures reasonably designed to prevent the execution of trades at prices inferior to protected quotations displayed by other trading centers, subject to an applicable exception. To be protected, a quotation must be immediately and automatically accessible. Access Rule. This rule would require fair and non-discriminatory access to quotations, establish a limit on access fees to harmonize the pricing of quotations across different trading centers, and require each national securities exchange and national securities association to adopt and enforce rules that prohibit their members from engaging in a pattern or practice of displaying quotations that lock or cross automated quotations. Sub-Penny Rule. This rule would prohibit market participants from accepting, ranking, or displaying orders, quotations, or indications of interest in a pricing increment smaller than a penny, except for orders, quotations, or indications of interest that are priced at less than $1.00 per share. Market Data Rules. These rules would update the requirements for consolidating, distributing, and displaying market information, as well as amendments to the joint industry plans for disseminating market information that would modify the formulas for allocating plan revenues and broaden participation in plan governance. -7-

8 CFTC AMENDS LARGE TRADING POSITION RULES s/lr18984.htm (copy of the release adopting the rule) The CFTC amended its large trader reporting rules, which require futures commission merchants, clearing members, foreign brokers, and traders to report certain position and identifying information to the CFTC when the positions of traders equal or exceed CFTC set contract reporting levels. The final rules, among other things, raise contract reporting levels NASD ADOPTS BAN ON USE OF FUND BROKERAGE COMMISSIONS FOR DISTRIBUTION (copy of release) es_regs/documents/notice_to_memb ers/nasdw_ pdf (copy of Notice to Members 05-04) C%20Update% pdf IDC ISSUES STATEMENT OF POLICY CONCERNING SOFT DOLLARS IDC Soft Dlrs Policy pdf... (PDF file of IDC submission to the SEC) C%20Update% pdf The SEC issued a Release approving a proposal by the NASD to amend NASD Conduct Rule 2830(k), which governs members execution of investment company portfolio transactions. The NASD is eliminating a current provision of this Rule that allows a member to sell shares of a fund that has a disclosed policy of considering sales of fund shares as a factor in selecting brokers to execute fund portfolio transactions, and is adding a new provision to the rule to effectively prohibit this type of directed brokerage activity. On January 14, 2005, the NASD posted Notice to Members (05-04), announcing the SEC approval of the changes. Notice to Members (05-04) includes the final text of the amendments to Rule 2830(k), and states that the rule changes become effective February 14, The NASD's action corresponds with the SEC s recent amendment of Rule 12b-1 under the 1940 Act to prohibit open-end management investment companies from paying for share distribution with brokerage commissions. The deadline for compliance with amended Rule 12b-1 was December 13, The Independent Directors Council ( IDC ), which is associated with the ICI, sent its newly issued Statement of Policy Concerning Soft Dollars to the SEC. In summary, the IDC is urging the SEC to: o narrow the scope of the safe harbor for research set out in section 28(e) of the 1934 Act; o impose greater disclosure requirements concerning the payment of soft dollars; and o require the unbundling of research and execution costs. The IDC notes that the recommendation for increased disclosure in the November 11, 2004 Report of the NASD Task Force on Soft Dollars and Portfolio Transaction Costs is too limited; rather, IDC favors increased disclosure with respect to proprietary as well as third party research. -8-

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