Investment Management JANUARY 2004

Transcription

1 Ivestmet Maagemet JANUARY 2004 SEC Proposals Address Late Tradig, Market Timig, Fair Value Pricig, ad Disclosure of Portfolio Holdigs I respose to allegatios of widespread abuses i the fud idustry, the Securities ad Exchage Commissio ( SEC ) recetly proposed regulatory ad disclosure reforms iteded to prevet such abuses from recurrig i the future. The proposed reforms are iteded to address late tradig of fud shares, market timig, fair value pricig ad selective disclosure of fud portfolio holdigs. As a practical matter, the proposed regulatory reforms addressig late tradig would effectively require ivestors who buy or sell fud shares through itermediaries to place their orders well before 4:00 p.m. i order to receive the curret day s price a sigificat departure from curret requiremets. The proposed disclosure reforms would ecessitate heighteed fud compliace practices, ad fud board oversight resposibilities, to support the detailed level of disclosure. Commets o the proposals must be received by the SEC o or before February 6, Each of the proposals is discussed i more detail below. PROPOSED AMENDMENTS TO FORWARD PRICING RULE TO ADDRESS LATE TRADING ISSUES The SEC proposed amedmets to rule 22c-1 uder the Ivestmet Compay Act of 1940 ( 1940 Act ) to address late tradig issues. I its proposig release, the SEC defied late tradig as the illegal practice of permittig a purchase or redemptio order received after the 4:00 p.m. pricig time to receive the share price calculated as of 4:00 p.m. that day. The proposed chage would require a hard 4:00 p.m. cutoff, such that a order to purchase or redeem fud shares qualifies for the curret day s price oly if received by the fud, its desigated trasfer aget or a registered clearig agecy 1 by the pricig time established by the fud for calculatig its et asset value ( NAV ), typically 4:00 p.m. Easter time. The proposed rule amedmet is a sigificat departure from the curret rule ad SEC iterpretatios, which allow a ivestor to receive the curret day s price for orders submitted before the pricig time to ay of the fud, its pricipal uderwriter or a third party itermediary, such as a retiremet pla admiistrator or broker-dealer, eve though the itermediary submits the order to the fud well after the pricig time. Uder the proposals, orders submitted to fud itermediaries would o loger be cosidered orders received by the fud, eve if those itermediaries are agets of the fud. Oly those orders received directly by the fud or through its desigated trasfer aget or a registered clearig agecy would be cosidered received by the fud for purposes of determiig receipt by the pricig time. The proposed amedmets to rule 22c-1 would permit, but ot require, a fud to desigate a trasfer aget to receive orders to purchase or redeem shares. Fuds would be required to idetify desigated trasfer agets i their registratio statemets ad iclude a provisio i cotracts with trasfer agets 1 Curretly, the oly registered clearig agecy is the Natioal Securities Clearig Corporatio ( NSCC ), which operates the automated cetral processig system called Fud/SERV. Kirkpatrick & Lockhart LLP

2 requirig the trasfer agets to receive order iformatio ad to maitai a record of the date ad time they received the order iformatio. To prevet orders from beig rescided after calculatio of the daily NAV, each order, as defied by the proposal, 2 would be deemed irrevocable as of the ext pricig time after receipt by the fud. Costs, Beefits ad Alterative Approaches I the proposig release, the SEC explaied that curret rules, allowig fud itermediaries to process trades after the pricig time, ad recordkeepig rules requirig broker-dealers to time-stamp fud orders, have prove iadequate to prevet late tradig. The SEC idicated that some broker-dealers successfully cocealed late tradig activities from examiatio staff while other itermediaries are ot subject to SEC regulatio ad examiatio, thereby makig it impossible to detect late tradig through those itermediaries. The SEC ackowledged that the proposed rule likely would require ivestors to submit purchase ad redemptio orders to fud itermediaries as much as several hours prior to the pricig time i order to receive the curret day s price, so as to provide the fud itermediary with sufficiet processig time. This problem may be especially acute for fud itermediaries o the West Coast who would have to receive orders from ivestors much earlier i the day i order to sed the orders to the fud prior to the pricig time. The SEC oted that 401(k) pla admiistrators may be at the greatest disadvatage, as may have idicated that they would be uable to process o a same-day basis, ad is seekig commet o these issues. A alterative approach to the hard 4:00 p.m. cutoff suggested by the SEC could be to require fud itermediaries to adopt protectios desiged to prevet late tradig i order to be eligible to submit orders to a fud after the pricig time. Accordig to the proposig release, these protectios could iclude: Electroic or physical time-stampig of orders i a maer that caot be altered or discarded oce the order is etered ito the tradig system; Aual certificatio that the itermediary has policies ad procedures i place desiged to prevet late trades, ad that o late trades were submitted to the fud or its desigated trasfer aget durig the period; ad Submissio by the itermediary to a aual audit of its cotrols coducted by a idepedet public accoutat who would submit a report to the fud s chief compliace officer. The SEC has requested commet as to whether these protectios would be appropriate ad whether there are other protectios that would be ecessary to prevet late tradig of fud shares. The SEC is also seekig commet o proposed exceptios to the hard 4:00 p.m. cut-off, described below. Emergecy Exceptios The proposed amedmets cotai a arrow exceptio permittig curret-day pricig i cases of emergecy, such as power failures or hurricaes, but ot iteral operatioal difficulties. First, a exceptio would apply where a dealer or the dealer s aget is uable to trasmit the orders to the fud s desigated trasfer aget or clearig agecy, but oly if the chief executive officer of the dealer certifies to the fud (1) the ature, existece, ad duratio of the emergecy ad (2) that the dealer received the orders before the fud s pricig time. Secod, a exceptio would apply where the fud s desigated trasfer aget or a registered clearig agecy is uable to receive the orders by the fud s pricig time, provided that the chief executive officer of the desigated trasfer aget or clearig agecy provides writte or telephoic otice of the emergecy to the fud. 2 Uder the proposed amedmets, order would mea a directio to purchase or redeem a specific umber of fud shares or a idetermiate umber of fud shares of a specific value. The proposed defiitio of order would preserve the ability of fuds to offer seamless exchage trasactios by further clarifyig that a order icludes a directio to purchase redeemable securities of the fud usig proceeds of a cotemporaeous order to redeem a specific umber of shares of aother fud. Kirkpatrick & Lockhart LLP 2

3 Exceptio for Coduit Fuds The proposed amedmets cotai a additioal arrow exceptio for specified coduit fuds, such as master-feeder fuds ad isurace compay separate accouts, that ivest all of their assets i a uderlyig fud ad are therefore required to calculate their NAV o the basis of the uderlyig fud s NAV. The exceptio would permit a coduit fud to submit its orders based o the NAV established by the uderlyig fud o the same day, thereby allowig ivestors who submit orders to the coduit fud prior to the pricig time to receive the curret day s price of the uderlyig fud. PROPOSED AMENDMENTS TO REGISTRATION STATEMENT DISCLOSURES REGARDING MARKET TIMING, FAIR VALUE PRICING AND DISCLOSURE OF PORTFOLIO HOLDINGS The SEC proposed amedmets to curret disclosure requiremets that apply to registered ivestmet compaies ad isurace compay separate accouts issuig variable auity ad variable life isurace cotracts. The proposed amedmets would require ehaced disclosure of policies ad procedures regardig market timig, 3 fair value pricig ad selective disclosure of fud portfolio holdigs. A summary of the proposed requiremets is set forth below. Market Timig The SEC proposed ew ad ehaced prospectus disclosure requiremets of risks, policies ad procedures related to frequet purchases ad redemptios of fud shares. The proposals would require a fud to: (1) describe the risks, if ay, that frequet purchases ad redemptios of fud shares may preset for other shareholders; (2) state whether the fud s board has adopted policies ad procedures with respect to frequet purchases ad redemptios of fud shares ad, if ot, the basis upo which the board determied that such policies ad procedures are uecessary; ad (3) describe ay policies ad procedures iteded to deter, or ay arragemets to permit, frequet purchases ad redemptios of fud shares. The proposed amedmets would require similar prospectus disclosure for isurace compay separate accouts offerig variable isurace cotracts, with respect to frequet trasfers amog sub-accouts. 4 The proposals would require all risk disclosure to be specific to each fud, takig ito accout its ivestmet objectives, policies ad strategies. The proposig release suggests that this disclosure may iclude such risks as dilutio i the value of fud shares held by log-term shareholders, iterferece with efficiet maagemet of the fud s portfolio, ad icreased brokerage ad admiistrative costs. Descriptios of policies ad procedures would be required to iclude: (1) whether or ot the fud discourages or accommodates frequet purchases ad redemptios of fud shares; (2) ay policies iteded to detect such activity, icludig through fud itermediaries; ad (3) policies or procedures iteded to deter frequet purchases ad redemptios of fud shares, such as a redemptio fee or miimum holdig period. Fuds also would be required to describe i their prospectuses ay arragemets to permit frequet tradig, icludig the idetity of the parties to the arragemet ad ay compesatio or other cosideratio received by the fud, its ivestmet adviser or ay other party pursuat to such arragemet. The cosideratio required to be disclosed would iclude ay agreemet to maitai sticky assets, i.e., assets i the fud or i other fuds maaged by the ivestmet adviser or a affiliated perso of the adviser. The proposig release makes clear that disclosure of these arragemets would ot reder lawful a arragemet that otherwise violates the atifraud provisios of the federal securities laws or the fiduciary duties of fuds or their advisers. 3 The proposig release states that market timig may take may forms, but for purposes of the proposed amedmets, the term refers to arbitrage activity ivolvig the frequet buyig ad sellig of mutual fud shares i order to take advatage of the fact that there may be a lag betwee a chage i the value of a mutual fud s portfolio securities ad the reflectio of that chage i the fud s share price. 4 The requiremets for isurace compay separate accouts would differ i some respects due to the differet structure of these issuers. For example, the proposed amedmets would require isurace compay separate accouts to disclose the risks of, ad policies ad procedures with respect to, frequet trasfers of cotract value amog the registrat s sub-accouts, each of which ivests i a particular uderlyig mutual fud. I additio, the proposed amedmets would require disclosure as to whether the separate accout or its depositor (as opposed to its board of directors) has policies ad procedures with respect to frequet trasfers of cotract value amog sub-accouts. Kirkpatrick & Lockhart LLP 3

4 A major cocer arisig from the proposed disclosure is whether it will provide a roadmap for market timers to avoid detectio uder the fud s policies to the detrimet of log-term shareholders. Fair Value Pricig The SEC proposed requirig all fuds (other tha moey market fuds) to iclude prospectus disclosure regardig (1) the circumstaces uder which the fud will use fair value pricig ad (2) the effects of usig fair value pricig. The proposals require the disclosure to be fud specific. For example, the SEC idicated that fuds that ivest i securities traded o overseas markets would be expected to have a fuller discussio of the evets that would cause the fud to fair value its securities ad the effect of usig fair value pricig (such as miimizig time zoe arbitrage) tha would a fud that ivests i large-cap domestic securities. The proposals would establish a fud s obligatio to fair value price whe market quotatios for portfolio securities are ot readily available, icludig whe they are ot reliable. This proposal would require fuds to review their fair value pricig procedures ad actively moitor their portfolios to esure that fair value pricig is applied whe circumstaces warrat, cosistet with their procedures ad prospectus disclosure. The proposig release states that fuds that fair value price their portfolio securities effectively ca reduce or elimiate the arbitrage opportuities available to market timers. The SEC has requested commet o whether there are cases where disclosure of the circumstaces uder which a mutual fud will use fair value pricig ad the effect o the fud of usig fair value pricig may assist ivestors who ited to egage i market timig strategies. Disclosure of Portfolio Holdigs The SEC proposed disclosure amedmets to require a fud to: (1) describe i its statemet of additioal iformatio ( SAI ) ay policies ad procedures with respect to the disclosure of fud portfolio securities to ay perso; (2) describe i its SAI ay ogoig arragemets to disclose iformatio about the fud s securities to ay perso ad ay cosideratio received by the fud or its ivestmet adviser i exchage for such disclosure; ad (3) state i its prospectus that these descriptios are available i the fud s SAI, ad, if applicable, o the fud s website. The SAI also must disclose the maer i which the board exercises oversight of disclosure of the fud s portfolio securities. I the proposig release, the SEC emphasized that disclosure of a fud s portfolio securities must be cosistet with the atifraud provisios of the federal securities laws ad with a fud s or adviser s fiduciary duty to shareholders to prevet the misuse of material o-public iformatio; disclosure provided pursuat to the proposed amedmets would ot make lawful coduct that is otherwise ulawful. The proposig release emphasizes that divulgig portfolio holdigs to selected third parties is permissible oly whe a fud has a legitimate busiess purpose for doig so ad the recipiets are subject to a duty of cofidetiality. Legitimate busiess purposes idetified i the proposig release iclude, for example, disclosure for due diligece purposes whe a adviser is beig acquired or disclosure to a ratig agecy for use i establishig a fud s ratig. This article does ot address all of the issues raised by the proposed regulatory ad disclosure reforms. If you wat more iformatio o the proposals, please cotact your K&L relatioship attorey or oe of the authors of this article, Diae E. Ambler, Lori Scheider or Ndeisarya Meekis. DIANE E. AMBLER dambler@kl.com LORI L. SCHNEIDER lscheider@kl.com NDENISARYA MEEKINS meekis@kl.com Kirkpatrick & Lockhart LLP 4

5 Kirkpatrick & Lockhart LLP maitais oe of the leadig ivestmet maagemet practices i the Uited States, with more tha 60 lawyers devotig all or a substatial portio of their practice to this area ad its related specialties. The America Lawyer Corporate Scorecard, published i April 2003, lists K&L as a primary legal cousel to the ivestmet compaies, board members or advisory firms for 15 of the 25 largest mutual fud complexes. No law firm was metioed more frequetly i the Scorecard. We represet mutual fuds, closed-ed fuds, isurace compaies, broker-dealers, ivestmet advisers, retiremet plas, baks ad trust compaies, hedge fuds, offshore fuds ad other fiacial istitutios. We also regularly represet mutual fud distributors, idepedet directors of ivestmet compaies ad service providers to the ivestmet maagemet idustry. I additio, we frequetly serve as outside cousel to idustry associatios o a variety of projects, icludig legislative ad policy matters. We work with cliets i coectio with the full rage of ivestmet compay idustry products ad activities, icludig all types of ope-ed ad closed-ed ivestmet compaies, fuds of hedge fuds, variable isurace products, private ad offshore ivestmet fuds ad uit ivestmet trusts. Our practice ivolves all aspects of the ivestmet compay busiess. We ivite you to cotact oe of the members of the practice, listed below, for additioal assistace. You may also visit our website at for more iformatio, or sed geeral iquiries via to ivestmetmaagemet@kl.com. BOSTON Michael S. Caccese mcaccese@kl.com Philip J. Fia pfia@kl.com Mark P. Goshko mgoshko@kl.com Thomas Hickey III thickey@kl.com Nicholas S. Hodge hodge@kl.com LOS ANGELES William P. Wade wwade@kl.com NEW YORK Philip L. Kirstei pkirstei@kl.com Beth R. Kramer bkramer@kl.com Richard D. Marshall rmarshall@kl.com Robert M. McLaughli rmclaughli@kl.com Lore Schechter lschechter@kl.com SAN FRANCISCO Eillee M. Clavere eclavere@kl.com Joatha D. Joseph jjoseph@kl.com David Mishel dmishel@kl.com Mark D. Perlow mperlow@kl.com Richard M. Phillips rphillips@kl.com WASHINGTON Clifford J. Alexader calexader@kl.com Diae E. Ambler dambler@kl.com Catherie S. Bardsley cbardsley@kl.com Arthur J. Brow abrow@kl.com Arthur C. Delibert adelibert@kl.com Robert C. Hacker rhacker@kl.com Bejami J. Haski bhaski@kl.com Kathy Kresch Igber kigber@kl.com Rebecca H. Laird rlaird@kl.com Thomas M. Leahey tleahey@kl.com Cary J. Meer cmeer@kl.com R. Charles Miller cmiller@kl.com Dea E. Miller dmiller@kl.com R. Darrell Mouts dmouts@kl.com C. Dirk Peterso dpeterso@kl.com David Pickle dpickle@kl.com Ala C. Porter aporter@kl.com Theodore L. Press tpress@kl.com Robert H. Roseblum rroseblum@kl.com William A. Schmidt william.schmidt@kl.com Ly A. Schweifurth lschweifurth@kl.com Doald W. Smith dsmith@kl.com Marti D. Teckler mteckler@kl.com Robert A. Wittie rwittie@kl.com Robert J. Zutz rzutz@kl.com Kirkpatrick & Lockhart LLP Challege us. BOSTON... DALLAS HARRISBURG LOS ANGELES MIAMI NEWARK NEW YORK PITTSBURGH SAN FRANCISCO WASHINGTON This publicatio/ewsletter is for iformatioal purposes ad does ot cotai or covey legal advice. The iformatio herei should ot be used or relied upo i regard to ay particular facts or circumstaces without first cosultig a lawyer KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED.