October 18, 2002
Mr. Jonathan G. Katz
Re: Proposed Rule: Custody of Funds or Securities of Clients by Investment Advisers; File No. S7-28-02
Dear Mr. Katz:
We respectfully submit this letter on behalf of our client, Credit Suisse Asset Management, LLC, following discussions with the staff (the "Staff") of the Securities and Exchange Commission (the "Commission") regarding our comment letter1in response to the Commission's request for comment on the proposed amendment of Rule 206(4)-2 (the "Rule") under the Investment Advisers Act of 1940, as amended, relating to custody of funds or securities of clients by investment advisers.2 Specifically, the Staff has asked us to suggest a specific extended time period for delivery of financial statements following the end of a Fund of Fund's3fiscal year in order to be able to take advantage of the exception from the Rule's requirements in sub-section 2(b).4
We continue to believe that a Fund of Funds should only be required to deliver such financial statements as soon as reasonably practicable.5 A Fund of Funds' financial statements are necessarily dependent on the timing of the financial statements received from the underlying Investment Funds in which it invests. A Fund of Funds must receive audited financial statements from all of its underlying Investment Funds in order to prepare its own financial statements for distribution to investors. The timing of this delivery is largely within the control of the underlying Investment Funds.
However, if the Commission believes that a more definite time period is needed, we agree with the suggestion made by Seward & Kissel6 that the financial statement delivery requirement be revised so that it commences on the date that the auditors have signed a Fund of Fund's audit report rather than on the date of the Fund of Fund's fiscal year end. We believe that this revision would help to place investment advisers to Funds of Funds on a more equal footing with other investment advisers with respect to eligibility for the exception from the Rule's requirements. Alternatively, although we do not think this is the best approach, if the Commission believes that a definite time period beginning at fiscal year end is necessary, a Fund of Funds should have at least 180 days to deliver financial statements following its fiscal year end. This would allow the investment advisers to the underlying Investment Funds 90 days to prepare their audited financial statements and an additional 90 day period for Fund of Funds investment advisers to prepare and deliver their financial statements.
We hope that the Commission will find this letter helpful, and we would be pleased to further discuss these matters with members of the Staff at their convenience. Please feel free to contact Hillel Bennett at 212.806.6014 or Janna Manes at 212.806.6141 if the Staff would like to discuss any of these points in further detail.