Investment Management
FEBRUARY 2004
SEC Proposes Investment Company Governance
Requirements and Investment Adviser Codes of Ethics
In the latest in a series of proposals responding to
allegations of late trading, market timing and
selective portfolio disclosure in the fund industry,
the Securities and Exchange Commission has
proposed new rules and rule amendments under the
Investment Company Act of 1940 and Investment
Advisers Act of 1940. The proposed reforms would
require registered investment companies to
implement more stringent corporate governance
practices and registered investment advisers to adopt
codes of ethics governing the personal securities
transactions of their supervised persons.1 The
proposals are intended to enhance the independence
and effectiveness of investment company boards and
promote compliance with fiduciary obligations by
investment advisers and their personnel. The
proposals are discussed in greater detail below.
Comments on the investment company proposal
must be received by March 10, 2004, while comments
on the investment adviser code of ethics proposal
must be received by March 15, 2004.
INVESTMENT COMPANY GOVERNANCE
In 2001, the SEC adopted rule amendments to
improve investment company governance standards
and the effectiveness of independent directors.2 The
amendments, which apply to funds relying on any
one of ten commonly-used exemptive rules under the
Investment Company Act (“Exemptive Rules”),3
require that fund boards have a majority of
independent directors, that independent directors
select and nominate candidates to serve as
independent directors and that independent
directors, when they retain legal counsel, hire
counsel that is independent of fund management.
The SEC believes that recent enforcement actions
reflect a breakdown in management controls and
suggest a need to revisit fund governance practices.
The proposed amendments under the Investment
Company Act would require funds relying on the
Exemptive Rules to implement certain additional fund
governance standards pursuant to which
(1) independent directors would be required to
constitute at least 75 percent of each fund board;
1 Investment Company Governance, Investment Company Act Release No. 26323 (Jan. 15, 2004); Investment Adviser
Codes of Ethics, Investment Advisers Act Release No. 2209 (Jan. 20, 2004).
2 Role of Independent Directors of Investment Companies, Investment Company Act Release No. 24816 (Jan. 2, 2001).
3 The Exemptive Rules include Rule 10f-3 (permitting funds to purchase securities in a primary offering when an affiliated
broker-dealer is a member of the underwriting syndicate); Rule 12b-1 (permitting use of fund assets to pay distribution
expenses); Rule 15a-4(b)(2) (permitting board-approved interim advisory contracts where the adviser or a controlling
person receives a benefit in connection with the assignment of the prior contract); Rule 17a-7 (permitting securities
transactions between a fund and another client of the fund’s adviser); Rule 17a-8 (permitting mergers between certain
affiliated funds); Rule 17d-1(d)(7) (permitting funds and their affiliates to purchase joint liability insurance policies); Rule
17e-1 (specifying conditions under which funds may pay commissions to affiliated brokers in connection with the sale of
securities on an exchange); Rule 17g-1 (permitting funds to maintain joint insured bonds); Rule 18f-3 (permitting funds to
issue multiple classes of voting shares); and Rule 23c-3 (permitting the operation of interval funds by enabling closed-end
funds to repurchase their shares from investors).
Kirkpatrick & Lockhart LLP
(2) the chair of a fund board would be required to be
an independent director; (3) fund boards would be
required to assess their own effectiveness at least
once a year; (4) independent directors would be
required to meet in separate sessions at least once a
quarter; and (5) funds would be required to authorize
independent directors to hire their own staff.
Further, under a proposed amendment to Rule 31a-2
under the Investment Company Act, funds would be
required to retain copies of all written materials that
directors consider in approving advisory contracts
under Section 15 of the Investment Company Act.
Board Composition
Under the proposed amendments, funds relying on
any of the Exemptive Rules would have to maintain a
board of directors that is at least 75 percent
independent. This is a significant departure from
both the Investment Company Act, which requires
only that 40 percent of a fund’s board be
independent, and the SEC’s 2001 amendments to the
Exemptive Rules, which require that a majority of the
board be independent. The SEC noted that, when it
considered a supermajority requirement in adopting
amendments to the Exemptive Rules in 2001,
commenters remarked that such a requirement would
help to improve the effectiveness of independent
directors when dealing with fund management and
help to ensure that independent directors maintain
control of the board in the event of the absence of
other independent directors.
The SEC requested comment on whether the 75
percent requirement should be higher or lower or
whether it should be phrased in terms other than a
fraction or percentage. The SEC also requested
comment on the appropriate period of time required
to implement the new rule, if adopted. More
particularly, the SEC inquired whether 18 months
would be a sufficient amount of time for fund boards
to conform to the proposed requirement.
Independent Chair
The proposed amendments also would require that
the chair of the fund board be an independent
director. The SEC noted that it is commonplace for
the chief executive officer of the fund adviser to
serve as the chair of the fund board. The SEC
believes that such an arrangement enables the
adviser to control the board’s agenda and to have a
substantial influence on the boardroom’s culture.
The proposed amendments are intended to prevent
the fund adviser from dominating the fund board.
The SEC indicated that the board would be better
equipped to negotiate with the fund adviser over
advisory and other fees if the board were not also led
by the executive of the adviser with whom it is
negotiating. More generally, the SEC stated that
having a boardroom culture conducive to decisionmaking in the best interests of shareholders may be
more likely to prevail when the fund chair does not
have conflicts of interest inherent in his or her role as
an executive of the fund adviser.
The SEC requested comment on the proposed
requirement and specifically requested comment from
members of fund boards currently chaired by
independent directors as to whether an independent
chair actually would weaken fund governance
because he or she could not effectively lead the
board through a discussion of a detailed and complex
agenda. The SEC also requested comment on
whether alternative structures would serve the same
or similar purpose such as appointment of a “lead
director” who would chair separate meetings of the
independent directors and act as the spokesperson
for the independent directors. In addition, the SEC
inquired whether mandating an independent chair
would be necessary if it adopts the supermajority
requirement discussed above.
Annual Self-Assessment
The proposed amendments would require fund
directors to evaluate the board and its committees at
least once a year. The proposal would allow directors
to determine how to proceed with the evaluation,
with two exceptions. First, fund directors would be
required to assess the efficiency of the board’s
committee composition. Second, the directors would
be required to consider whether they are overseeing
too many funds.
The first of the two requirements is designed to
enable a critical assessment of the board’s existing
committees, such that the board is able to determine
whether to create, consolidate or revise those
committees or create new ones. The second
requirement is intended to ensure that directors are
able to oversee adequately each fund for which they
are responsible, and are not accountable for
supervising too many funds.
Kirkpatrick & Lockhart LLP
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The SEC requested comment on whether to require
fund boards to make written reports of their annual
self-assessments. It also asked for comment on
whether it should restrict the number of fund boards
on which a director serves or require boards to adopt
policies regarding the number of other fund boards
on which directors may serve.
Separate Sessions
Under the proposed amendments, independent
directors would be required to meet at least quarterly
in a private session at which no interested persons
are present. The SEC stated that such a session
would allow the independent directors to have open
discussions about the fund’s management. The SEC
also indicated that the requirement would contribute
to the independent directors’ collegiality and
cohesiveness. The SEC asked for comment on
whether separate sessions should be held more or
less frequently than quarterly.
Independent Director Staff
The proposed amendments also would require any
fund relying on an Exemptive Rule to authorize its
independent directors to hire employees to assist
them in fulfilling their fiduciary duties. The SEC
believes that independent directors may require the
assistance of experts who can help them to better
understand mutual fund best practices.
The SEC requested comment on whether
independent directors should be required to hire
their own staff. The SEC also asked for comment on
whether independent directors should be required to
hire independent legal counsel. Presently,
independent directors are not required to retain their
own counsel; however, if they do retain counsel, that
counsel must be independent of management.
Amendments to Recordkeeping Rule
Lastly, the SEC’s proposal would amend Rule 31a-2
under the Investment Company Act—the fund
recordkeeping rule—to require a fund to maintain
copies of the materials upon which its board relied in
approving an advisory contract under Section 15 of
the Investment Company Act. The fund would be
required to preserve the materials for a period of not
less than six years, the first two years in an easily
accessible place.
Section 15 currently requires fund directors to
approve the fund’s advisory contract after the first
two years, and every year thereafter, but requires
them first to obtain from the adviser the information
reasonably necessary to evaluate the contract. The
information request is intended to enable fund
directors to obtain the materials they need to fulfill
their fiduciary duties.
INVESTMENT ADVISER CODE OF ETHICS
The SEC also proposed for comment new Rule 204A-1
and related rule amendments under the Investment
Advisers Act, which would require investment
advisers to adopt codes of ethics.4 Among other
things, each adviser’s code of ethics would be
required to: (1) set forth standards of conduct
expected of advisory personnel; (2) safeguard
material nonpublic information about the adviser’s
securities recommendations and client securities
holdings and transactions; and (3) require the
adviser’s access persons to report their personal
securities transactions, including transactions in
affiliated mutual funds.
Standards of Conduct and Compliance
with Laws
The proposed rule would require that each adviser’s
code of ethics set forth a standard of business
conduct that the adviser requires of its supervised
persons.5 The standard, at a minimum, would have
to reflect the fiduciary obligations of the adviser and
its supervised persons and require compliance with
the federal securities laws.
Protection of Material Nonpublic Information
Under the proposed rule, an adviser’s code of ethics
must include provisions reasonably designed to
prevent access by persons without a “need to know”
to material nonpublic information about the adviser’s
securities recommendations and client securities
4 At the present time, an adviser is required to have a code of ethics only if it serves as adviser to a registered investment
company. See Rule 17j-1 under the Investment Company Act.
5 “Supervised persons” are any partner, officer, director (or other person occupying a similar status or performing similar
functions) or employee of the adviser or any other person who provides investment advice on behalf of the adviser and is
subject to the supervision and control of the adviser. See Section 202(a)(25) of the Investment Advisers Act.
Kirkpatrick & Lockhart LLP
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holdings and transactions. The proposed rule would
not prohibit the adviser from providing necessary
information to persons providing services to the
adviser or client accounts (e.g., brokers, custodians,
accountants and fund transfer agents).
may acquire information about client securities
transactions in the course of their duties (e.g., brokerdealers, custodians and accountants) would not be
subject to the proposed rule’s reporting
requirements.
Personal Trading Procedures
Personal Securities Trading
Under the proposed rule, the adviser’s code of ethics
also would have to require personal trading reports
from “access persons” of the adviser. The SEC’s
proposed requirements for reporting of personal
securities transactions by advisory personnel are
modeled largely on the requirements of Rule 17j-1
under the Investment Company Act.
Definition of Access Person
The proposed rule defines “access person” as any
supervised person of the adviser who: (1) has access
to material nonpublic information regarding clients’
purchases or sales of securities or the portfolio
holdings of an affiliated fund; (2) is involved in
making securities recommendations to clients; or
(3) has access to such recommendations that are
nonpublic. The proposed rule further provides that,
if providing investment advice is the primary
business of the adviser, all of its directors, officers
and partners are presumed to be access persons.
The SEC noted that the proposed rule’s definition of
“access person” is broader than that term’s definition
under Rule 17j-1 because it includes individuals who
obtain information about the existing portfolio
holdings of investment companies advised by the
adviser. It requested comment on whether Rule 17j-1’s
definition of “access person” should be amended to
conform with the proposed rule’s definition to cover
these individuals. In addition, the SEC requested
comment on whether supervised persons of an
adviser who have information about the securities
holdings of non-fund clients also should be included
as access persons.
The SEC acknowledged that, in some organizations,
access persons would include client service
representatives who communicate investment advice
to clients as well as administrative, technical and
clerical personnel if their functions or duties make
them privy to material nonpublic information.
However, access persons would not include
individuals who are not supervised persons of the
adviser. Thus, employees of other organizations that
With the exception of prior approval of certain
investments discussed below, the proposed rule does
not require advisers’ codes of ethics to contain any
specific provisions limiting access persons’ personal
trading activities. The SEC noted, however, that
many firms that already have adopted codes of ethics
commonly include many provisions in their codes
that it regards as “best practices.” It advised all
advisers to consider those provisions in crafting
their own procedures regarding employees’ personal
securities trading. The provisions include:
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Prior written approval of all personal securities
transactions;
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Maintenance of “restricted lists” of issuers of
securities that the advisory firm is analyzing or
recommending for client transactions and
prohibitions on personal trading in securities of
those issuers;
n
“Blackout periods” when client securities trades
are being placed or recommendations are being
made and prohibitions on personal trading during
those periods;
n
Reminders that investment opportunities must be
offered first to clients before the adviser or its
employees may act on them and procedures to
implement this principle;
n
Prohibitions or restrictions on “short-swing”
trading and market timing;
n
Requirements to trade only through certain
brokers or limitations on the number of brokerage
accounts permitted; and
n
Requirements to provide the adviser with
duplicate trade confirmations and account
statements.
The SEC requested comment on whether the rule
should require that any of the above “best practice”
procedures regarding personal securities trading be
in advisers’ codes of ethics.
Kirkpatrick & Lockhart LLP
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Reportable Securities and Beneficial
Ownership
Because several types of securities appear to present
little opportunity for improper trading by access
persons, the proposed rule would exclude from the
rule’s reporting requirements (1) money market
instruments; (2) direct obligations of the United
States government; and (3) shares of money market
funds, unless the money market fund is managed by
the adviser or an affiliate. The SEC requested
comment on whether it should exempt other types of
mutual funds (e.g., index funds) or investments in
variable annuity contracts from the rule’s reporting
requirements.
For purposes of the proposed rule’s reporting
requirements, access persons would be required to
report holdings and transactions in securities in
which they have beneficial ownership. As with Rule
17j-1, beneficial ownership is to be interpreted in the
same manner as for purposes of Rule 16a-1(a)(2)
under the Securities Exchange Act of 1934 in
determining whether a person has beneficial
ownership of a security for purposes of Section 16 of
that Act.
Reporting of Investment Company Shares
In order to close a regulatory gap under the
Investment Company Act, the proposed rule would
require access persons of an adviser to report their
holdings and transactions in shares of investment
companies managed by the adviser or an affiliate.
Section 17(j) of the Investment Company Act
authorizes the SEC to adopt rules preventing fraud or
deceptive practices in connection with the purchase
or sale of “any security held or to be acquired” by an
investment company. As a result, Rule 17j-1 does not
require access persons of investment companies to
report personal securities trades in the mutual funds
they manage. Moreover, the SEC noted that,
although the exclusion of mutual funds reflects an
assumption that trading in mutual fund shares poses
little risk of abuse, recent enforcement actions
against fund managers who allegedly engaged in
market timing of their funds indicate that the
assumption was false. Thus, its proposal requires all
advisers’ codes of ethics to call for reporting of
holdings and transactions in affiliated mutual funds.
The SEC requested comment on whether the
proposed rule should require reporting of
transactions and holdings in all mutual fund shares,
rather than only affiliated funds.
Initial and Annual Holdings Reports
and Periodic Transactions Reports
Similar to the reports required under Rule 17j-1, the
proposed rule would require a complete report of
each access person’s securities holdings. Holdings
reports would be required at the time the person
becomes an access person and at least once a year
thereafter.
The proposed rule would require quarterly reports of
all personal securities transactions by access
persons, which would be due no later than 10 days
after the close of the calendar quarter. In the event
an access person had no personal securities
transactions during the quarter, the report would
have to contain a statement to that effect.
Transactions effected pursuant to an automatic
investment plan would not have to be reported,
unless a participant in such a plan effects a
transaction that overrides the pre-set schedule or
allocations of the plan. The SEC requested comment
on whether there are other types of transactions that
should be exempt from quarterly transaction reports.
Duplicate Broker Confirms and Statements
The proposed rule would not require access persons
to submit transaction reports that would duplicate
information contained in trade confirmations or
account statements that the adviser maintains in its
records. A duplicate trade confirmation or account
statement would be required to be received by the
adviser within 10 days after the end of the quarter in
which the transaction takes place.
Initial Public Offerings and Private Placements
Similar to the provisions of Rule 17j-1, proposed Rule
204A-1 would require that each adviser’s code of
ethics require access persons to obtain pre-approval
of investments in initial public offerings (“IPOs”) and
private placements. The SEC acknowledged that
many advisers currently have codes of ethics that
prohibit their employees from participating in these
investments for their own accounts and requested
comment on whether the proposed rule should
contain such a prohibition.
Kirkpatrick & Lockhart LLP
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Reporting of Violations
Under the proposed rule, the code of ethics would
have to require prompt reporting of any violations of
the code’s provisions to the adviser’s chief
compliance officer or another person designated in
the code. A report may be made by the violator or
any other person within the firm with knowledge of
the violation.
Acknowledgement of Receipt of Code of Ethics
Under the proposed rule, the code of ethics would
have to require the adviser to provide supervised
persons with a copy of the code and any
amendments. The proposed rule also would require
supervised persons to acknowledge, in writing, their
receipt of those documents.
The SEC noted that advisers’ codes of ethics often
contain procedures for the firm to educate employees
about the code and to advise employees periodically
of changes made to the code. The SEC requested
comment on whether the proposed rule should
mandate that advisers’ codes of ethics contain such
procedures.
In addition, the SEC noted that advisers’ codes of
ethics often require employees to certify that they
have read and understood the code of ethics and
require annual recertification that the employee has
re-read, understands and has complied with the code.
The SEC requested comment on whether the
proposed rule should expressly impose these
requirements.
Other Provisions
The SEC noted that advisers that have adopted
codes of ethics often have a variety of additional
provisions designed to guard against impropriety
and to enforce the codes’ provisions. These
provisions include: (1) limitations on acceptance of
gifts; (2) limitations on the circumstances under
which an access person may serve as a director of a
publicly traded company; (3) detailed identification
of who is considered an access person within the
organization; (4) procedures for the firm and its
compliance personnel to review periodically the code
of ethics as well as to review reports made pursuant
to it; and (5) discussion of penalties for violating the
code of ethics. The SEC requested comment on
whether the proposed rule should require any of
these provisions.
Adviser Review and Enforcement
The proposed rule would require that advisers
maintain and enforce the provisions of their codes of
ethics by reviewing access persons’ securities
holdings and transaction reports. In the proposing
release, the SEC stated that it expects that
responsibility for enforcing the adviser’s code of
ethics will lie substantially with the firm’s chief
compliance officer, to whom personal trading reports
must be submitted.
Related Amendments to Rule 204-2
and Form ADV
The SEC also proposed related amendments to Rule
204-2—the adviser recordkeeping rule—and Form
ADV under the Investment Advisers Act. The
proposed amendments to Rule 204-2 would reflect the
codes of ethics that advisers would adopt under
proposed Rule 204A-1 and eliminate details that the
proposed rule would make unnecessary. The SEC
stated that the amendments would make it easier for
advisers to understand and meet their recordkeeping
obligations. Under the rule amendment, advisers
would have to keep copies of their codes of ethics
and their supervised persons’ written
acknowledgments of receipt of the code. They would
have to keep a record of (1) the names of their access
persons; (2) their access persons’ holdings and
transaction reports; (3) decisions to approve access
persons’ investments in IPOs and private
placements; (4) violations of the code; and
(5) actions taken as a result of any violations.
The SEC proposed to require that records of access
persons’ personal securities reports (and duplicate
brokerage confirmations or account statements in lieu
of those reports) be maintained electronically in an
accessible computer database. It noted that, in all
but the smallest advisory firms, it may be impractical
for the adviser or SEC examiners to review paper
trading reports for patterns that may indicate abuse.
The SEC requested comment on whether the
recordkeeping rule should require advisers to keep
records of any code of ethics waivers or exemptions
granted to an access person and whether its proposal
that records be kept electronically would be
burdensome and should be modified for smaller firms.
Kirkpatrick & Lockhart LLP
6
The proposed amendments to Part II of Form ADV
would require advisers to describe their codes of
ethics to clients and, upon request, to furnish clients
with a copy of the code of ethics.
Amendments to Rule 17j-1 under the
Investment Company Act
The SEC noted that approximately 19 percent of
registered advisers manage registered investment
companies and thus are subject to Rule 17j-1. To
avoid subjecting those advisers to conflicting
responsibilities under that rule and under the SEC’s
proposal, the SEC proposed to amend Rule 17j-1.
Currently, under Rule 17j-1, access persons need not
make a quarterly transaction report under that rule if
“all of” the information in the report would duplicate
information required to be recorded under the
Investment Advisers Act. Because the reports
proposed to be required under the Investment
Advisers Act are not identical to those that Rule 17j-1
requires, the SEC proposed to revise Rule 17j-1 to
provide that no report would be required under that
rule “to the extent that” the report would duplicate
information required under the Investment Advisers
Act recordkeeping requirements.
ALAN C. PORTER
202.778.9186
aporter@kl.com
MARTICHA L. CARY
202.778.9209
mcary@kl.com
NICOLE A. BAKER
202.778.9018
nbaker@kl.com
Kirkpatrick & Lockhart LLP
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Kirkpatrick & Lockhart LLP maintains one of the leading investment management practices in the United States,
with more than 60 lawyers devoting all or a substantial portion of their practice to this area and its related
specialties. The American Lawyer Corporate Scorecard, published in April 2003, lists K&L as a primary legal
counsel to the investment companies, board members or advisory firms for 15 of the 25 largest mutual fund
complexes. No law firm was mentioned more frequently in the Scorecard.
We represent mutual funds, closed-end funds, insurance companies, broker-dealers, investment advisers, retirement
plans, banks and trust companies, hedge funds, offshore funds and other financial institutions. We also regularly
represent mutual fund distributors, independent directors of investment companies and service providers to the
investment management industry. In addition, we frequently serve as outside counsel to industry associations on a
variety of projects, including legislative and policy matters.
We work with clients in connection with the full range of investment company industry products and activities,
including all types of open-end and closed-end investment companies, funds of hedge funds, variable insurance
products, private and offshore investment funds and unit investment trusts. Our practice involves all aspects of
the investment company business.
We invite you to contact one of the members of the practice, listed below, for additional assistance. You may also
visit our website at www.kl.com for more information, or send general inquiries via email to
investmentmanagement@kl.com.
BOSTON
Michael S. Caccese
Philip J. Fina
Mark P. Goshko
Thomas Hickey III
Nicholas S. Hodge
617.261.3133
617.261.3156
617.261.3163
617.261.3208
617.261.3210
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nhodge@kl.com
LOS ANGELES
William P. Wade
310.552.5071
wwade@kl.com
NEW YORK
Philip L. Kirstein
Beth R. Kramer
Richard D. Marshall
Robert M. McLaughlin
Keith W. Miller
Loren Schechter
212.536.483
212.536.4024
212.536.3941
212.536.3924
212.536.4045
212.536.4008
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SAN FRANCISCO
Eilleen M. Clavere
Jonathan D. Joseph
David Mishel
Mark D. Perlow
Richard M. Phillips
415.249.1047
415.249.1012
415.249.1015
415.249.1070
415.249.1010
eclavere@kl.com
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WASHINGTON
Clifford J. Alexander
Diane E. Ambler
Catherine S. Bardsley
Arthur J. Brown
Arthur C. Delibert
Robert C. Hacker
Benjamin J. Haskin
Kathy Kresch Ingber
Rebecca H. Laird
Thomas M. Leahey
Cary J. Meer
R. Charles Miller
Dean E. Miller
R. Darrell Mounts
C. Dirk Peterson
David Pickle
Alan C. Porter
Theodore L. Press
Robert H. Rosenblum
William A. Schmidt
Lynn A. Schweinfurth
Donald W. Smith
Martin D. Teckler
Robert A. Wittie
Robert J. Zutz
202.778.9068
202.778.9886
202.778.9289
202.778.9046
202.778.9042
202.778.9016
202.778.9369
202.778.9015
202.778.9038
202.778.9082
202.778.9107
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202.778.9298
202.778.9324
202.778.9887
202.778.9186
202.778.9025
202.778.9464
202.778.9373
202.778.9876
202.778.9079
202.778.9890
202.778.9066
202.778.9059
calexander@kl.com
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abrown@kl.com
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This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein
should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
© 2004 KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED.