Speech by SEC Staff:
Remarks before the American Law Institute -
American Bar Association
Life Insurance Company Products Conference
Keynote Address by
Paul F. Roye
Director, Division of Investment Management
U.S. Securities and Exchange Commission
American Law Institute - American Bar Association
Life Insurance Company Products Conference
October 25, 2001
The Securities and Exchange Commission, as a matter of policy, disclaims responsibility for any private publication or statement by any of its employees. The views expressed in this speech are those of the author, and do not necessarily reflect the views of the Commission or other members of the staff of the Commission.
Thank you and good morning. It is a pleasure to be here with you. Last year, as a number of you may recall, I discussed some of the dramatic changes that were taking place in the insurance products industry. What none of us could have anticipated at that time was that one year later we would be facing changes caused by the tragic events of September 11th. While in many respects we can never be fully prepared for terrible tragedies like those seen on September 11th, we learned that there is much value in preparing for emergencies, and in our world that means emergencies or events that can affect our securities markets and the operation of investment companies, including insurance company separate accounts. Through diligent planning and preparation there is much that we can do to ensure the confidence of investors in the resiliency and operational capabilities of our markets and financial institutions.
The attacks of September 11th had a profound impact on the investment management industry. No exchange opened for business on that fateful day and with the damage done to a number of financial firms located within and around the twin towers, the New York Stock Exchange remained closed for its longest period since the depression. Though these acts of terrorism may have devastated the World Trade Center, they did not destroy our capital markets. As our Chairman Harvey Pitt stated in his testimony before the House Committee on Financial Services, "[o]ur free markets are not located in any one office building or city or place. They are an amalgamation of people, ideas, and freedom. They are emblematic of our great nation." I think this point is illustrated by the actions that took place immediately after the attack. While rescue workers, the military, and every day citizens worked together searching for victims of the tragedy, the public and private sectors of the financial world were also performing important tasks, working together to restore the functioning of our securities markets. Cooperating with industry representatives, the SEC recognized that certain exemptive relief would be required not only to help companies affected by the disaster but also to facilitate the reopening of the markets as smoothly as possible.
With that in mind, I'd like to discuss some of the actions taken by the Commission in the Investment Management area in response to the September 11th incidents, some areas where issuers of variable products and underlying funds can plan and prepare for unplanned future events, and finally some regulatory issues of importance in the insurance products area. But first, as you know, I am obliged to state that the views that I express are my own and do not necessarily reflect the views of the Commission or my colleagues on the Commission's staff.
II. Emergency Exemptions in Response to September 11th
Immediately following the September 11th attacks, the Commission reached out to reassure both investors and market participants. The Commission provided market recovery updates on its website, and made it a point to have staff widely and publicly accessible to investors and market participants. Investors were directed to an e-mail address and a toll-free telephone connection pursuant to which they could make inquiries. In addition, special telephone lines were also established so market participants could directly ask questions and discuss needed relief with SEC staff.
Some of you got calls from staff members, as we sought to take stock of any damage to operational capabilities or to identify other issues and concerns. We also contacted several trade groups such as the Investment Company Institute and the Securities Industry Association, as well as National Association for Variable Annuities ("NAVA") and the American Council of Life Insurance ("ACLI"), to determine what assistance, if any, was needed to help facilitate the orderly opening of the capital markets. On the investment management side, it was determined that the SEC should provide temporary relief in two main areas, loosening the requirements for in-person board of director meetings and easing restrictions on fund borrowing to facilitate liquidity.
First, recognizing that funds and their advisers might face problems convening in-person meetings given the disruptions to the air transportation system, the Commission allowed board of director votes for registered investment companies usually required to be cast in person under the Investment Company Act, to be cast on a conference call or other means of communication that allowed the participating directors to communicate with each other during the meeting. The exemption was enacted for a period of thirty days, beginning on September 14th. So long as none of the changes voted on materially affected the existing contract, plan, or arrangement being considered and the board could ratify any decisions at an in-person meeting within 90 days of the date of the action, directors were able to rely on this exemption and conduct required board meetings, without having to meet in person.
Second, the Commission also relaxed its restrictions on registered investment company borrowing and lending, to address the potential for abnormally high redemption levels upon the reopening of the markets. In particular, four types of potential transactions were exempted:
(1) Registered mutual funds, as well as insurance company separate accounts, were allowed to borrow money from affiliated persons, notwithstanding the restrictions of sections 12(d)(3) and 17(a) of the Investment Company Act, provided that the transactions were approved by the board of directors, including a majority of non-interested directors (or the insurance company on behalf of a separate account), as being in the best interest of the registered investment company and its shareholders, and that the affiliated persons from whom the money was borrowed were not themselves registered investment companies;
(2) Registered open-end investment companies were allowed to borrow money from non-bank entities notwithstanding section 18(f)(1) of the 1940 Act, provided that their board of directors, including a majority of non-interested directors, reasonably determined that such borrowing was in the best interest of the registered investment company and its shareholders;
(3) Registered open-end investment companies were allowed to deviate from a fundamental policy with respect to borrowing without shareholder approval, notwithstanding sections 13(a)(2) and 13(a)(3) of the 1940 Act, provided that the board of directors, including a majority of non-interested directors, determined that the borrowing would be in both the fund and the shareholder's best interests and that notice of the change would be provided promptly to fund shareholders; and lastly,
(4) The Commission expanded the amounts that could be borrowed pursuant to interfund lending orders received by some fund groups. The Commission allowed funds to loan up to 25% of their net assets at the time of the loan, notwithstanding any lesser limits in their original orders.
The Commission's relief was designed to be proactive. The Commission wanted to do everything it could to help the industry avoid a possible liquidity problem. However, many mutual fund shareholders appropriately adopted a long-term view of their investments in funds, and redemptions during the first week after trading resumed, were not extraordinary. Since funds typically hold sufficient assets to meet redemptions, our sense is that few funds needed to rely on the Commission's emergency borrowing relief. I believe that this is due to the fact that when the markets reopened, all market and investor protection mechanisms were squarely in place, and consequently the markets did not give way to panic selling. As noted in the Wall Street Journal this past Monday, it has been the small investors, many of whom are invested in the market through mutual funds, who have emerged as the market's stalwarts throughout the past five weeks.
III. IMPORTANCE OF VALUATION PROCEDURES
One issue that confronted a number of funds, particularly funds with fixed income holdings, was the pricing of their holdings. Trading volumes in the bond market were relatively light when the bond market reopened on September 13th. Some bond funds resumed trading as soon as September 14th, even though they were permitted to remain closed. However, the pricing services that some funds normally used to assist them in their valuation procedures were located in downtown Manhattan. A number of funds found it necessary to use back-up pricing services and other pricing sources to value their portfolio securities and compute their net asset values.
As you know, valuation is extremely important for mutual funds because they must redeem and sell their shares at net asset value. If fund assets are incorrectly valued, separate accounts will pay too much or too little for their shares, resulting in inappropriate unit values for the separate account, and an overpayment of fund expenses that are calculated on the basis of the fund's net assets, such as the fund's investment advisory fee.
It is therefore very important for funds to have adequate controls over their pricing mechanisms. While funds often rely on third-party pricing sources to value portfolio securities, they must have systems to make certain that the prices received from third-party sources are accurate. As you know, the Investment Company Act requires funds to value their portfolio securities by using the market value of the securities when market quotations for the securities are "readily available." In addition, the Investment Company Act requires that funds utilize "fair value pricing" when there is no "readily available" market quotation for a security.
I believe the recent focus on fair value policies and the industry's reassessment of its policies in this area paid dividends during these recent tragic events. We issued a letter at the end of April to the Investment Company Institute that provides guidance on firms' obligations to appropriately price foreign securities. This letter follows up on our December 1999 letter on valuation-related issues. This new letter focuses on the need for funds to avoid dilution of long-term shareholders by those seeking arbitrage opportunities that may arise when significant events occur in foreign markets. Funds generally calculate their net asset values by using closing prices of portfolio securities on the exchange or market on which the securities principally trade. Many foreign markets, however, operate at times that do not coincide with those of the major U.S. markets. As a result, the closing prices of securities that principally trade on foreign exchanges may be as much as 12-15 hours old by the time of a fund's NAV calculations and may not reflect the current market value of those securities at that time. In particular, the closing prices of foreign securities may not reflect their market values at the time of a fund's NAV calculation if an event that will affect the value of those securities has occurred since the closing prices were established on the foreign exchange, but before the fund's NAV calculation. Dilution of the interests of a fund's long-term shareholders could occur if fund shares are overpriced and redeeming shareholders receive proceeds based on the overvalued shares. The risk of dilution increases when significant events occur because such events attract investors who are drawn by the possibility of arbitrage opportunities. Fair value pricing can protect long-term fund investors from those who seek to take advantage of funds as a result of a significant event occurring after a foreign market closes. The letter highlights a fund's obligation to monitor events that might necessitate the need to use fair value pricing to protect fund shareholders.
Before September 11th, we urged that funds promptly begin reviewing their valuation procedures. Now I believe that need is even more urgent. No fund's contingency plan could be considered complete without adequate fair valuation procedures.
IV. Need for Reassessment of Contingency Plans
I've been talking primarily about underlying fund issues, but of course, insurance companies also must be prepared for emergency scenarios. Two years ago, many of you were planning to deal with any problems that might arise in connection with the Y2K computer problem. Contingency plans were developed that addressed technical problems that might result in the inability to communicate with underlying funds, or other problems with processing purchase orders, transfer requests or surrenders. If those plans have been dormant since January 1, 2000, it is now time to dust them off and examine them in the light of September 11th, and its aftermath.
You need to be thinking about various contingencies and how you would be positioned to respond. Query - would you have operational capability if your building were damaged or shut down in an emergency scenario? Is there adequate depth to your contract owner servicing capabilities? Do your systems include effective and comprehensive offsite backup of all essential contract owner records? Do you have adequate satellite office facilities, either currently in operation or available as needed? Do your employees have the capabilities to work from home? In short, are there emergency scenarios that are not contemplated in your contingency plans? These are important questions, now more than ever, as the events of September 11th force us to rethink or think differently about the types of contingencies we need to plan for.
Some commenters have suggested that the next wave of terrorism could comprise attacks on computer systems. No matter how that plays out, I think it is important at this time for those in the investment company industry to undertake a serious review of the security of their computer systems. In many cases there may be a need for new or enhanced firewalls to protect web sites or electronic databases against viruses, electronic vandalism or worse.
The Commission is also looking at ways in which it can improve regulations and policies in response to changing circumstances. Chairman Pitt has made it clear that much of the Commission's focus in the future will be updating and modernizing the regulatory framework that we administer. The Chairman observed in his confirmation hearing that "our securities laws are, in the main, nearly seventy years old. They reflect a time, and a state of technology, that's light years away from where we are today." While the Commission has made significant strides towards modernization in the past few years, there is much left to be done, and I expect that the pace will quicken towards reconciling the Commission's regulations with the realities of how investment companies conduct their business and meet the needs of today's investors.
For example, the Commission recently amended rules regarding electronic recordkeeping by investment companies and investment advisers, expanding the ability of advisers to use electronic storage media to maintain and preserve records. The rule amendments specifically contemplate that these records would be backed up and stored separately at an easily accessible site available upon request by inspections staff. Clearly, the recent events highlight the importance of backing-up and properly storing vital records.
IV. Regulatory Issues in the Insurance Product Area
Now, I'd like to discuss some regulatory issues that relate to the insurance product area.
A. Section 11 Exchanges
Let me start with the subject of exchanges. We understand that a growing number of all new variable contract sales are attributable to contract exchanges. This is driven largely in part by new and diverse bonus programs. As you know, we have been concerned by this trend because these so-called "bonus annuities" may not be in the best interest of the contract holder. Often these annuities come with higher surrender and asset-based charges, as well as longer surrender periods, which may more than offset the bonus itself. The staff is concerned about abusive switching practices and is carefully examining the appropriateness of selected sales practices and the suitability of sales to certain contractholders.
Last year, I told you about an action brought by the Commission against the president of an investment advisory firm and broker-dealer alleging that he induced his clients to switch their variable annuity investments by providing them with unfounded false and misleading justifications for the switches. Let me just add that the staff continues in its scrutiny of sales practices and suitability in the area of variable annuity contract exchanges.
In addition, we are also keeping a close eye on the reliance of insurance companies on the "retail exception" in connection with programs to promote internal exchanges. In June of this year, we issued a letter to NAVA, the ACLI and the Insurance Marketplace Standards Association explaining our view of the exception.
As many of you are aware, section 11 generally prohibits issuers from offering to exchange contracts for other variable annuity contracts issued by the insurer or its affiliates, without compliance with Commission rules or an exemptive order. Section 11(a) exempts principal underwriters from these provisions as long as the principal underwriter in the course of its retail business makes the offer. This "retail exception" was intended to cover communications between an individual broker and his or her individual customer and does not cover offers by a principal underwriter to all holders of a class of securities. Nor does the exception apply to any exchange offer by an insurance company. In the June letter, we cited ten factors that insurers should consider when determining whether the retail exception could apply to an exchange offer. These include whether an insurer has a plan or intention to promote exchanges from existing contracts into other contracts and whether and how an insurer actively promotes exchanges by investors who are at or near the end of the surrender period. Additionally, insurers should consider any changes in the amount of compensation given to brokers who exchange contracts or the amount of compensation given to brokers for services in connection with the exchange. Insurance companies should also consider whether they have initiated any direct communications with any contract owner regarding a new contract or the availability of an exchange offer from an old contract and the nature of these communications, along with examining the way the contract is marketed.
The letter cautions that these factors are not exhaustive. There are other factors that may indicate that an offer is being made to a group or class of contractholders and should be considered in this "facts and circumstances" test. Therefore, insurers should regularly monitor their exchange activities and communications to shareholders to ensure that they are consistent with reliance on the retail exception.
Over the past few years, the SEC staff has processed a large number of applications requesting approval for the substitution of underlying funds supporting variable products. While in the past, these applications were mainly filed by insurance companies that were facing unforeseen circumstances caused by changes in the underlying fund, we are now seeing quite a few applications filed in connection with changes in the insurance company's strategic business plans. Accordingly, our analysis of these applications has evolved as well, in response to the new facts and circumstances reflected in these applications.
With the adoption of Section 26(b), now 26(c), of the Investment Company Act, Congress required SEC approval of substitutions in order to protect investors in unit investment trusts from inappropriate changes in the nature of their investment. The SEC recommended that Congress adopt Section 26(c) largely because if a UIT shareholder was dissatisfied with the new investment, their only relief would be potentially a costly redemption and/or reinvestment. Now that concern is mitigated somewhat in the context of a separate account offering many investment options with free transferability among subaccounts, but even in that case the concern is not eliminated. Therefore, we look carefully at each application to determine the overall impact the substitution will have on contract owners. Perhaps, the most immediately apparent impact arises from changes in expense levels. When a substitution results in higher overall expenses, we may condition exemptive relief on a cap at the level of the replaced fund's expense ratio for some period of time.
But be assured that we look at more than overall expense ratios. We compare, for example, the investment objectives and policies of the substitute and replaced funds, and we consider the existence and nature of any affiliation between the insurance company and the affected funds, as well as whether or not Rule 12b-1 or revenue sharing arrangements are in place. We are focusing in particular on situations where the new substitute fund has higher advisory fees or 12b-1 fees that, absent a substitution, could not be imposed without a shareholder vote - and we are in some cases requiring shareholder votes for those types of transactions.
In general, we are seeking to develop a consistent approach to our review and disposition of these applications, and to have consistent standards for the imposition of conditions, such as shareholder votes or expense caps. However, as no two applications present precisely the same facts, we have also sought to be flexible and to adapt our analysis to each application as appropriate, realizing that a rigid or mechanical analytical model will not yield appropriate results in every case.
We are actually easing the regulatory burden of section 26(c) relief in appropriate cases. In August, we granted no-action relief to an insurance company seeking to transfer monies received from the liquidation of an unaffiliated underlying fund to a money market subaccount without first obtaining a section 26(c) order. The liquidation had been approved by the underlying fund's board because of its small asset size, its perceived lack of growth potential and its concern for increasing expenses. The staff considered several factors in making this decision, including the fact that there was no affiliation between the insurance company and either fund involved in the transaction, which suggested that the transaction was not undertaken to enrich the insurance company or the funds' affiliates to the detriment of contract owners. We also considered the fact that notice had been sent to contract owners along with the opportunity for them to select alternative investments, the fact that there was a variety of investment options under the contract with free transfer privileges, and the lower expenses of the money market fund. We also felt that the default allocation to a money market fund was appropriate in this case because money market funds generally are regarded as suitable short-term cash management vehicles. Taken together, the staff determined that the facts and circumstances surrounding the allocation provided enough protection against the abuses that Section 26(c) targeted and, as a result, granted the relief.
C. Redemption Fees
The staff is aware that arbitrageurs and market-timers cause problems for funds and their long-term shareholders, and we are sympathetic to funds that try to discourage market timers from using their funds as trading vehicles. Market timers can force portfolio managers to either hold excess cash or sell holdings at inopportune times in order to meet redemptions. This can adversely impact a fund's performance, increase trading and administrative costs and harm long-term shareholders. Indeed, the tax deferred status of variable products eliminates one of the disincentives to market timing and short-term trading that otherwise exists for investors in funds, which is the realization of capital gains from the funds on a current basis.
One measure being instituted in response to market timers is the imposition of redemption fees. Studies indicate that the number of fund companies imposing such fees has increased over 80 percent since 1999. We understand that some funds underlying variable product separate accounts are taking steps to impose redemption fees for contract owners who transfer amounts among sub-accounts on a short-term basis according to market timing strategies. This phenomenon raises interesting issues because of the relationship between the underlying funds and the separate accounts that invest in the funds. Because the separate account is the actual owner of the fund shares, the fund is not in a position to impose a fee directly on a contract owner that is engaged in short-term trading among subaccounts. Indeed, the fund generally is unable to ascertain what portion of a net purchase or redemption order from a separate account comprises redemptions from contract owners of units in a subaccount that have been held for a short time. So, although a redemption fee geared to market timing is properly a fund level fee, the proceeds of which remain in the fund, the insurance company nevertheless must be able to determine the amount and enable the fund to collect the fee. Obviously, this raises logistical challenges for the fund and the insurance company in addition to the regulatory and disclosure issues that must be addressed in structuring any fee of this type in the context of variable products. We look forward to working with the industry to resolve regulatory and disclosure issues in this area.
D. Form N-4
In the area of variable products, one remarkable change of late is the ever- growing number of optional features offered as riders in variable contracts. As many of you know, item four of Form N-4 requires that a variable annuity issuer disclose in the prospectus condensed financial information for each accumulation unit class. With the increasingly large number of riders being offered, resulting in multiple pricing combinations and therefore multiple unit values, the amount of condensed financial information has increased to the point of overwhelming the other information in the prospectus. In March of this year, we issued no-action relief to an insurance company allowing it to move much of the condensed financial information to the statement of additional information under certain conditions. Among other things, we required that the prospectus include accumulation unit tables for the classes of accumulation units corresponding to the highest and lowest combination of charges available under the contract, and that a quarterly statement of information on the accumulation units held be sent to each individual contract owner. The staff believes that this method of disclosure provides adequate information to investors in a usable format, whereas strict compliance with the form had yielded a great quantity of disclosure in the prospectus, perhaps at the expense of quality and usefulness. As a general matter, we are continuing to look for other ways to improve disclosure for investors in variable annuity contracts.
E. Form N-6
I know many of you are wondering about the status of the new Form N-6 for variable life insurance products. We are currently in the process of finalizing the proposed form, and I can say with confidence that the staff will be submitting it to the Commission very shortly. With this form, our goal would be to further improve disclosures for investors in variable life insurance products.
F. Failure to Supervise Sub-Adviser
In view of the increasing use of sub-advisers in the insurance products industry, I thought I would direct your attention to administrative proceedings against a fund's investment adviser and its sub-adviser made public on September 28, 2001. The matter arose from a portfolio manager who the Commission found defrauded a mutual fund and an offshore fund, by concealing from the funds and their investment advisers that issuers of securities held by the funds were suffering financial problems. The portfolio manager inflated the value of the troubled securities and caused one of the funds to materially overstate its net asset value.
From July 1994 to April 1998, the portfolio manager caused the funds to purchase from one broker-dealer $32 million in notes through private placements. The Fund had pricing procedures that required the portfolio manager to obtain bid and asked quotes from two brokers for securities that could not be priced by a pricing service. However, with respect to the notes purchased from the broker-dealer, the portfolio manager provided the fund's accountants two fictional bid and asked price quotes, based on discussion with the broker-dealer that sold the notes and without consulting other brokers. In 1995, the broker-dealer took over from the portfolio manager the responsibility of providing prices on the notes to the fund's accountants, continuing to provide two fictional bid and asked quotes for the notes purchased from the broker-dealer. Five of the issuers, which sold a total of $15.7 million par value notes to the registered fund, had severe financial trouble from 1996 through 1998, which resulted in the issuers' defaulting on interest payments, being forced into voluntary bankruptcy and/or having all their assets taken away in foreclosure proceeds.
In 1997 and 1998, the portfolio manager and the broker-dealer principal rolled up the five troubled notes into shell companies controlled by the broker-dealer principal. In these roll-up transactions, the portfolio manager had the funds purchase from the broker-dealer $14 million in notes issued by the shell companies. The shell companies then used a portion of the proceeds to purchase from the registered funds five of the problem notes. The pricing of the five notes and the shell companies' notes failed to reflect the notes performance and the original issuer's financial condition, and consequently the value of the notes was overstated. As a result of the overpricing, the registered fund materially overstated its NAV. The funds NAV was overstated from at least August 30, 1996 through November 30, 1998, by amounts ranging from $.09 to $.20 per share.
The Commission concluded that the portfolio manager violated section 17(a) of the Securities Act, section 10(b) and Rule 10b-5 under the Securities Exchange Act, section 34(b) of the Investment Company Act, and aided and abetted violations of sections 206(1) and (2) of the Investment Advisers Act, 34(b) of the Investment Company Act and Rule 22c-1 under the Investment Company Act.
The Commission further found that the fund's adviser and sub-adviser failed to reasonably supervise the portfolio manager. The Commission has repeatedly emphasized that the duty to supervise is a critical component of the federal regulatory scheme. The Commission has sanctioned advisers that did not establish and implement procedures reasonably designed to prevent and detect and prevent violations of the federal securities laws. Moreover, the Commission has made it clear that supervisors must respond vigorously to indications of possible wrongdoing. Accordingly, supervisors must inquire into red flags and indications of irregularities and conduct adequate follow-up and review, to detect and prevent future violations of the federal securities laws.
The Commission found that the sub-adviser had not established or implemented adequate procedures regarding the purchase, monitoring and pricing of private placement securities. Significantly, the Commission also found that the primary adviser also failed reasonably to supervise the portfolio manager. The Commission emphasized that the written agreement between the adviser and the sub-adviser provided that the sub-adviser's advisory services were subject to the supervision of the primary adviser. The Commission also noted that the primary adviser had indications of irregularities regarding the problem notes, including stale prices and knowledge of proposed roll-up transactions, but did not adequately follow-up and review these irregularities. Furthermore, the primary adviser had not established or implemented procedures for such follow-up and review.
In view of the growth in the industry of using sub-advisers, I would urge careful review of this enforcement actions and emphasize that primary advisers should have adequate procedures in place to monitor and oversee the actions of sub-advisers.
G. Framework for Evaluating Cooperation in Enforcement Matters
Finally, I would call to your attention a Report of Investigation and Statement issued by the Commission explaining its decision not to take enforcement action against a company it had investigated for financial statement irregularities. In the Report, the Commission articulated a framework for evaluating cooperation in determining whether and how to charge violations of the federal securities laws. Credit for cooperative behavior may range from the extraordinary step of taking no enforcement actions at all, to bringing reduced charges, seeking lighter sanctions, or including mitigating language in documents the Commission uses to announce and resolve enforcement actions. It is hoped that by encouraging firms to address unlawful conduct swiftly and meaningfully and cooperate with the Commission, the result will be more efficient and effective enforcement of the securities laws.
The September 11th tragedy has been a wake-up call for each and every one of us. It has sent many people in America searching for a sense of stability and security. If ever there was a time when the investment management industry was needed as a stabilizing force in the marketplace, it is now. I think that, overall, the actions of variable products industry participants in the wake of September 11 was exemplary, and I applaud you for that. I think that contract owner confidence has been enhanced rather than diminished by the way the industry responded.
However, as I have indicated, I think there is much that can and should be done to enhance your readiness to face unplanned events in the future. We should learn from our recent experience. Therefore, I urge you to engage in a comprehensive review of your contingency planning and emergency procedures. I can assure you that, at the Commission, we will do the same. This is an area that calls for continuing reassessment. We stand ready to assist you however we can in this process. Thank you.