Investment Company Institute Publishes FAQ on SEC No-Action Letter Regarding Auditor Independence. On September 23, the Investment Company Institute (ICI) published a memorandum (ICI Memo) responding to questions frequently asked by its mutual fund members about the no-action letter (Letter) dated June 20, 2016 from the SEC’s Division of Investment Management regarding violations of auditor independence requirements under Rule 2-01(c)(1)(ii)(A) of Regulation S-X (Loan Rule). The Letter provides temporary no-action relief for funds using the services of independent auditors that have certain lending relationships with institutions (Lenders) having record or beneficial ownership of more than 10% of any entity within the “investment company complex” of which the funds are a part. Although the ICI Memo does not purport to address all open questions and does not necessarily represent the views of the SEC or its staff, the ICI Memo is instructive in that the ICI previously shared a copy of the ICI Memo with the SEC staff and “had a number of calls focused on the [Letter] since it was issued in June with ICI members and staff of the Division of Investment Management.”
In general, the ICI Memo expresses the ICI’s views on the manner in which a fund may continue to rely on the Letter under certain circumstances. If a Lender has a record or beneficial ownership of more than 10% of a fund’s shares and has discretionary voting authority over such shares, the fund may rely on the Letter “until a matter, such as the election of board members or the appointment of an independent auditor, which could influence the objectivity and impartiality of the independent auditor, is put before its shareholders for approval.” In this circumstance, a fund may continue to rely on the Letter if the Lender has taken steps to sufficiently limit its discretion to vote its shares, such as through “mirror voting” or voting in accordance with the recommendations of an independent, third-party proxy voting advisory firm.
In addition, the ICI Memo addresses the steps a fund should take in connection with holding a shareholder meeting on a matter that could influence the objectivity and impartiality of the independent auditor. In particular, the fund “must conduct a reasonable inquiry to determine the impact of the Loan [Rule] on the fund,” which would include identifying Lenders with more than 10% ownership (beneficial or record) of the fund’s shares and whether these Lenders could exercise discretionary voting authority over such shares. In conducting this reasonable inquiry, it is reasonable for the fund to mail “negative consent” letters to certain identified shareholders informing them that the fund will assume that an entity’s record or beneficial ownership levels are not greater than 10% and/or that the entity will not exercise discretionary voting authority, unless the fund receives a written response indicating otherwise. Moreover, an intermediary that holds fund shares in “street name” should be deemed to have discretionary voting authority if they are allowed to vote uninstructed proxies for customers who beneficially own the shares. The ICI Memo also provides guidance on the frequency with which funds within the same “investment company complex” should test for compliance with the terms of the Letter. Other developments from the past week are discussed below.
Regulatory Developments
IRS Proposes Regulations Reversing Prior Position on the Treatment of Subpart F and PFIC Inclusions for Purposes of the RIC Income Test
On September 27, the Internal Revenue Service (IRS) and Treasury Department released proposed regulations under Section 851 of the Internal Revenue Code (the Code) that, if finalized, would prospectively invalidate dozens of private letter rulings treating subpart F and PFIC inclusions as RIC qualifying income without regard to whether the offshore corporation makes a distribution to the RIC out of its earnings and profits (e&p) attributable to such inclusions during the taxable year. The regulations, if finalized, would clarify that subpart F and passive foreign investment company (PFIC) inclusions are neither “dividends” nor other qualifying income for RICs in the absence of such a distribution. The preamble to the proposed regulations, along with a companion Revenue Procedure 2016-50, also formalize the IRS's current "no rule" policy regarding all RIC qualification issues arising from a RIC’s investment in certain financial instruments. RICs, and certain other taxpayers (including, for example, publicly traded partnerships, “PTPs”) using blocker structures or otherwise investing in controlled foreign corporations (CFCs) or PFICs that do not currently satisfy the distribution requirement in the proposed regulations should consider implementing a distribution policy for any such CFCs or PFICs. RICs and other taxpayers relying on the treatment of a financial instrument or position as a 1940 Act security should consider revisiting their analysis of such instruments and positions in light of the IRS’s statements in support of its broad no rule policy.
FINRA Reviews Unit Investment Trust Rollovers
FINRA recently made public a targeted examination letter announcing its inquiry into unit investment trust (UIT) rollovers. A UIT is a type of investment company registered under the 1940 Act that generally has minimal management and uses a “buy and hold” strategy over a fixed period of time. At the end of its term, the UIT’s sponsor may offer investors the option to roll over their interests to a new UIT. FINRA appears particularly interested in Early Rollovers, which it defines as the sale of a UIT 100 days or more prior to the portfolio ending date: the targeted examination letter requests disclosure of the top 25 registered representatives generating the highest Early Rollover revenue and having the highest number of Early Rollovers. Though FINRA conducts its investigations on a non-public basis, this is the latest in a series of targeted form examination letters that it has made public.
ISE Proposed Rule Change to Prohibit Disruptive Quoting and Trading Activity
The International Securities Exchange (the Exchange) recently proposed two new rules in a filing to the SEC in an effort to “prohibit disruptive quoting and trading activity,” such as layering and spoofing, on the Exchange. Rule 1616 would allow the Exchange to “initiate an expedited suspension proceeding” without waiting an extended period for investigation and enforcement proceedings to play out. The Rule 1616 hearing would be based on alleged violations of proposed Rule 403, which would “more specifically define and prohibit disruptive quoting and trading activity on the Exchange.” Rule 1616 would allow the Exchange to instantly block a Member from continuing its disruptive trading and quoting behavior on the Exchange, as well as requiring a Member to stop providing access to the Exchange to a client of the Member who is taking part in disruptive activities. Rule 1616 provides for an expedited hearing and would allow the hearing panel to keep the cease and desist aspect of the order effective while an appeal by the Member is pending. Rule 403 would prohibit activities that are commonly called layering and spoofing, but would provide more detail, and thus more guidance, about the disruptive quoting and trading activities that fall within the prohibition. Rule 403 would also apply to Members acting in concert to disrupt the market, and would eliminate an intent requirement for this kind of disruptive behavior. Rule 403 would apply to trading in options as well as equity securities. Comments on the proposal are due 21 days after publication in the Federal Register.
Fed Seeks Public Comments on New Physical Commodities Rule
On September 23, the Federal Reserve Board (the Board) solicited public comments on a proposed rule to strengthen requirements on financial holding companies’ physical commodity activities (such as extraction, storage and transportation of commodities). The proposal aims to reduce the environmental, legal, reputational and financial risks that such physical commodity activities pose to financial holding companies. The proposed rule would: (1) require firms to hold additional capital in connection with activities involving commodities for which existing laws would impose liability if the commodity were released into the environment; (2) tighten the quantitative limit on the amount of physical commodity trading activity firms may conduct; (3) rescind authorizations that allow firms to engage in physical commodity activities involving power plants; (4) remove copper from the list of precious metals that all bank holding companies are permitted to own and store; and (5) establish new public reporting requirements on the nature and extent of firms' physical commodity holdings and activities. Currently only a limited number of financial holding companies supervised by the Board engage in physical commodity activities and investments. Comments are due on December 22, 2016.
Court Stays FinCEN Final Rule Against FBME Bank Ltd.
On September 20, the U.S. District Court for the District of Columbia issued a stay on the Financial Crimes Enforcement Network’s (FinCEN) final rule against Tanzania-based FBME Bank Ltd. (FBME). As reported in the March 30 edition of the Roundup, in the final rule, FinCEN had used its authority under Section 311 of the USA PATRIOT Act to prohibit U.S. financial institutions from opening or maintaining a correspondent account for, or on behalf of, FBME. Without vacating the final rule, the Court remanded the final rule to FinCEN but stayed its implementation in order to avoid potentially irreparable harm to FBME. The stay will remain in place until FinCEN “furnishes adequate responses to FBME’s significant comments” regarding the final rule.
Client Alert: How the DOL’s Impartial Conduct Standard Affects Exemptions Used by Financial Services Companies
In conjunction with its issuance in April 2016 of a new regulation redefining the concept of “investment advice” for purposes of fiduciary status under ERISA and Section 4975 of the Code, the Department of Labor amended a number of existing prohibited transaction class exemptions that are frequently used by financial services companies in conducting certain aspects of their business. In particular, the amended exemptions include Prohibited Transaction Exemption (PTE) 86-128 relating to agency transactions involving an affiliated broker-dealer, PTE 77-4 relating to investments in affiliated mutual funds, Parts III and IV of PTE 75-1 relating to certain underwritten offerings and market-making transactions, PTE 84-24 relating to certain purchases of insurance or annuity contracts or mutual fund shares, PTE 80-83 relating to the use of proceeds of a securities issuance to repay indebtedness to a fiduciary or its affiliate and PTE 83-1 relating to certain sales of certificates of interest in a mortgage pool. Like the investment advice regulation, these amendments have an “applicability date” of April 10, 2017. For more information, view the client alert from Goodwin’s Financial Industry and ERISA & Executive Compensation practices.
Enforcement & Litigation
CFPB Files Action Against Credit Repair Company, Seeking Injunction and Penalties
On September 23, the Consumer Financial Protection Bureau (CFPB) announced that it filed suit against a credit repair company in the U.S. District Court for the Central District of California, for alleged violations of the Consumer Financial Protection Act (CFPA), and the Telemarketing and Consumer Fraud and Abuse Prevention Act and its implementing regulation, the Telemarketing Sales Rule. According to the complaint, the company operated an “ongoing, unlawful credit repair business” that charged consumers unlawful advance fees and misrepresented the costs and benefits of its services. For more information, view the Enforcement Watch blog post.
FTC Secures $1.8M in Restitution From Debt Relief Scammers
On September 22, the Federal Trade Commission (FTC) announced that the U.S. District Court for the Central District of California issued a permanent injunction prohibiting five defendants involved in mortgage relief scams from mortgage loan modification and debt relief business. The FTC brought a lawsuit against the five defendants in July 2014, following a joint federal-state enforcement effort known as “Operation Mis-Modification.” The FTC alleged that the defendants falsely claimed that they could lower consumers’ mortgage payments and interest rates or prevent foreclosure. Defendants also falsely claimed to be affiliated with government agencies or the consumers’ existing lenders or servicers. The FTC also alleged that they charged illegal advance fees. For more information, view the Enforcement Watch blog post.
Former Debt Collection Company VP Ordered to Pay Penalty and Stop Deceptive Debt Collection Practices
On September 21, the Department of Justice (DOJ) announced that the U.S. District Court for the Eastern District of Texas entered a stipulated order for a permanent injunction and civil penalty judgment against the vice president of a debt collector. Following an investigation of the debt collector by the Federal Trade Commission, on January 21, 2015, the United States filed a complaint against the debt collector, its president, and its former vice president, alleging that collectors called consumers claiming to be attorneys or judicial employees. For more information, view the Enforcement Watch blog post.
