Speeding up the process for getting exemptive relief is just one request that fund lawyers have for the Securities and Exchange Commissionin the months ahead. Because of the scandals and prolonged vacancies in key SEC jobs, so many big projects remain to be tackled. As such, there is a large number of different wants from lawyers about the most pressing regulatory issues. Washington Bureau Chief Stan Wilsonspoke to some of the leading fund practitioners about what they and their clients want to see most.
The agency should resolve the still uncertain redemption fee rule, according to Stradley Ronon Stevens & Young Partner Bruce Leto. "Clients are tearing their hair out to get it [implemented]" by the current Oct. 16 deadline, he said. It is widely expected the SEC may change the rule again before that deadline.
Revision of Form ADV, Part II is the top request of Richard Marshall, a partner at Kirkpatrick & Lockhart Nicholson Graham. "ADV dominates disclosure for the whole industry," he said, "and Part II has not been filed for six years. What a difference it would make if that were up on the Web site. There would be a great deal of useful information for the mutual fund investor."
Craig Tyle, executive v.p. and general counsel at Franklin Resources, had two wishes: long-promised guidance on the treatment of company e-mails for examination purposes and a rule to make not only mutual funds but also hedge funds disclose how they spend soft dollars.
Replacing Rule 12b-1 is at the top of Kramer Levin Naftalis & Frankel Partner Carl Frischling's list. He assigns urgency to dealing with 12b-1 because fund firms suffering outflows due to the scandals or for other reasons may be confronted by fund boards who want to scrap the 12b-1 plan. Frischling would like to see a uniform basis for shifting 12b-1 expenses from fund assets to charges levied directly on investors in the fund. Stuart Strauss, partner at Mayer Brown Rowe & Maw, and George Silfen, partner at Schulte Roth & Zabel, agreed that making exemptive relief faster should be the priority. Right now, said Strauss, a routine application of a sort the SEC staff is familiar with from previous applications takes a year. "Cut that in half," he suggested. Silfen said that for four years there has been such a backlog of applications that "exemptive relief has become almost no longer a viable legal option." He noted that some years ago the SEC proposed a manager of managers rule that would have made it unnecessary to seek exemptive relief to have a fund run by a subadvisor. "The proposal did not engender any controversy that I'm aware of," said Silfen, but it is yet to be adopted.