CDC IXIS Asset Management Advisers, L.P.
CDC IXIS Asset Management Services, Inc.
399 Boylston Street
Boston, Massachusetts 02116
VIA E-Mail: firstname.lastname@example.org
Jonathan G. Katz, Secretary
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549-0609
Re: File No. S7-33-02
Certification of Management Investment Company Shareholder Reports and Designation of Certified Shareholder Reports as Exchange Act Periodic Reporting Forms
Release Nos. 34-46441, IC-25723
Dear Mr. Katz:
This letter is submitted on behalf of CDC IXIS Asset Management Advisers, L.P. ("CDC IXIS Advisers"), a registered investment adviser for the CDC Nvest Funds, and CDC IXIS Asset Management Services, Inc. ("CDC IXIS Services"), the administrator of the CDC Nvest Funds. CDC IXIS Advisers and CDC IXIS Services are affiliated with CDC IXIS Asset Management North America, L.P., which has assets under management of $130 billion as of June 30, 2002 and is part of CDC IXIS Asset Management, a global investment management firm with assets under management of $310 billion as of June 30, 2002. These comments are submitted in response to the recent proposal further implementing the certification requirements of Section 302 of the Sarbanes-Oxley Act of 2002 for investment companies1.
We are familiar with the comment letter submitted by the Investment Company Institute and, in general, we agree with the Institute's views and support the comments made in its letter. However, we are submitting this letter in order to emphasize our opposition to the unparalleled burden the proposal would place on investment companies than that placed by Congress on corporate issuers of securities. Additionally, we object to the disparate treatment of investment companies under the proposal as compared to corporate issuers.
The certification requirements of Sarbanes-Oxley should apply only to the new Form N-CSR and should not apply to Form N-SAR.
As proposed, the rules would require investment companies to file certified shareholder reports with the Securities and Exchange Commission ("SEC") on new Form N-CSR and would designate these reports as reports that are required under Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "1934 Act"). We support this aspect of the proposal because we believe that this new Form N-CSR will implement the Congressional intent of Section 302 of the Sarbanes-Oxley Act by requiring certification of financial statements and other financial information in shareholder reports. We strongly support the elimination of the Form N-SAR certification requirements concurrent with the implementation of Form N-CSR inasmuch as Form N-SAR is of limited usefulness to investment company investors. In fact, Form N-SAR is not delivered to investment company investors nor is it relied upon in evaluating the financial condition or results of a fund. We strongly believe that the certification requirements of Sarbanes-Oxley must only apply to the Form N-CSR.
The scope of the certification requirements of Sarbanes-Oxley should apply only to the financial statements and other financial information contained in the new Form N-CSR.
We support the Institute's view that the certification requirement implemented by Form N-CSR should not be extended beyond financial statements and other financial information in the shareholder report to encompass, for example, Management's Discussion of Fund Performance ("MDFP") and other non-financial information contained in the report. MDFP is similar in some aspects to an operating company's Management's Discussion and Analysis ("MD&A"), yet it is importantly and distinctly different in that the MDFP focuses on the factors impacting the historical performance of the fund during the relevant period and is not relevant to, or predictive of, future fund performance results while the MD&A enables an investor to assess the firm's current financial condition and results of operation, providing a framework for evaluating the firm's intrinsic value. We strongly believe the certification requirements of Sarbanes-Oxley must only apply to financial statements and other financial information contained in shareholder reports.
The disclosure controls and procedures requirements of Sarbanes-Oxley should not extend to filings made under the Securities Act of 1933 and the Investment Company Act of 1940.
The SEC's proposal would require investment companies to maintain and regularly evaluate the effectiveness of disclosure controls and procedures for filings under the 1934 Act, the Securities Act of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940 Act"). While we support the need for effective disclosure controls and procedures to ensure the adequacy of management's certification, the extension of this requirement to filings under the 1933 Act and the 1940 Act dramatically expands the scope of the Sarbanes-Oxley Act as it is applied to investment companies. This proposed expansion of scope places significant additional burdens on investment companies while investment companies already comply with a more complex and rigorous regulatory framework as compared to operating companies. Additionally, the proposal cites no evident abuse or shortfall in the regulatory framework for investment companies as the motivation for this expansion and therefore, we believe the expansion is unwarranted and inappropriate. In our view, the intent of Sarbanes-Oxley was to correct perceived abuses in operating companies not investment companies; it is misdirected to place a greater burden on investment companies when the perceived problem lies with operating companies. We strongly believe that the disclosure controls and procedures requirements must not be extended to filings made under the 1933 Act and 1940 Act.
The compliance date should be ninety days after the final rules are published in the Federal Register and a reconsideration of the burden of the final rules on investment companies is necessary.
We represent a relatively small fund family, 27 funds with less than $5 billion in assets under management. Yet the proposal would cause a tremendous increase in effort at our organization to design, implement and evaluate controls and procedures to support the certifications. We employ multiple advisers to manage the CDC Nvest Funds, which increases the complexity for us to support officer certifications. Nonetheless, we believe that the SEC's estimate of five hours to comply with the certification requirement for shareholder reports is a tremendous understatement. While it may be an approximation of the effort required for each senior officer certification, the estimate does not appear to consider the efforts required to design and implement appropriate disclosure controls to meet the requirements in the first instance or the time required on an ongoing basis to evaluate and maintain the controls and procedures. We have both formal and informal controls and processes in place to prepare the requisite regulatory filings, including Form N-SAR, shareholder reports, registration statement amendments and supplements. However in order to meet the new certification requirements we believe a more robust and documented framework would be appropriate. Our organization has devoted considerable time to compliance with the initial Sarbanes-Oxley requirements relative to Form N-SAR and, while we support supplanting certification of Form N-SAR with certification of Form N-CSR, considerable additional time will be required to ensure our readiness.
We are familiar with the rule proposal and used our best efforts to derive estimates of the incremental time required to design, implement, maintain and regularly evaluate appropriate controls to address the potential scope of the new requirements; however, the ultimate time that will be required is uncertain. We have established a disclosure committee and estimate that the design and implementation effort for Form N-SAR certification will total more than 1,500 hours in personnel time. We estimate approximately 1,000 additional hours are necessary to design and implement N-CSR certification. Evaluation of the controls at all fund service providers is expected to require approximately 1,500 hours per year relative to Forms N-SAR and N-CSR in addition to the time currently required to prepare and file the Form N-SAR and the shareholder reports. Additionally, while we have controls and processes in place to handle collection and disclosure of information pursuant to our obligations under the 1933 Act and 1940 Act, extending the certification requirements to our filings under those Acts would necessitate significant additional staff resources, estimated at 1,200 hours, to design and implement disclosure controls and procedures to meet the new requirements and an additional 1,200 hours per year for evaluation.
We believe the SEC has failed to consider adequately the unique burden the proposal imposes on investment companies. It is important to note that an operating company subject to the certification requirements would generally certify four reports annually. However, if the proposal is adopted as written each fund in our complex would be required to certify more than 8 filings, resulting in an annual total of more than 216 filings requiring certification in our complex alone.2 The certifying officers are consistent for all funds in the complex and generally the same personnel would be required to be involved in ensuring compliance with disclosure and certification requirements for each filed report. Thus, the proposal places an inordinate burden on our resources for no apparent benefit.
Using the information outlined above, we wish to summarize the total estimated time this proposal would require of our small fund complex. The information shown is incremental time in addition to the efforts currently required to prepare and file regulatory documents:
- Establishing the compliance program for certification of N-SARs, N-CSRs and 1933 Act and 1940 Act filings would require approximately 3,700 staff hours;
- Maintaining the program and evaluating its effectiveness would require an additional 2,700 staff hours each year; and
- Certifying the filings done each year at our complex is estimated to require more than 1,080 hours using the SEC's estimate of five hours to certify each filing (which we believe to be vastly understated).
We want to point out that the ongoing annual certification effort (maintaining and evaluating the program and certifying the requisite filings) in our small complex alone equates to nearly 95 weeks of incremental staff time each year.
We appreciate the Commission's efforts in balancing regulatory, shareholder and industry interests and thank you for the opportunity to comment on this proposal. As discussed above, we support the views of the Investment Company Institute on the proposal, including the Institute's recommendation for the compliance date for implementing the certification requirements.
/s/ John E. Pelletier
John E. Pelletier
Senior Vice President/General Counsel, CDC IXIS Asset Management Advisers, L.P.
Executive Vice President/General Counsel, CDC IXIS Asset Management Services, Inc.
|1|| SEC Release Nos. 34-46441, IC-25723 (August 30, 2002); 67 Fed. Reg. 57298 (September 9, 2002) (the "Proposing Release")
|2|| For each fund in our complex we would be required to file two N-SARs, two N-CSRs and one registration statement amendment filed under the 1933 Act and the 1940 Act. Additionally we routinely issue multiple supplements during the year updating material information in the registration statement. We actively manage the sub-advisers of our fund complex and employ multiple sub-advisers on several funds. Accordingly, we often experience a significant number of changes that require prospectus and/or SAI supplements. For purposes of our estimate, we projected three supplements annually per fund.