By pushing through its controversial independent chairman rule in the final hours of former chairman William H. Donaldson's tenure last month, the
The
But just a few days after the court order was issued, Donaldson called an eleventh hour meeting of the commission and pushed the rule into effect by a 3-2 vote, despite strong objections from republican commissioners Cynthia A. Glassman and Paul S. Atkins. The Chamber followed suit a second time, claiming that the SEC acted without fulfilling the court's cost/benefit analysis. Arguments in that case will be heard this fall, but in the meantime the Chamber won a stay delaying the rule's enactment.
In the Aug. 18 issue of the New York Law Review,
Karmel further argues in the opinion that the court's decision that the SEC acted within its authority by crafting such a rule is "troubling," because it suggests that the regulator can intrude upon the business of an investment company "based on some notion, however fanciful, that a new rule will guard against some conflict of interest." And besides, Karmel notes, a conflict of interest is not in violation of the law.
"Mutual funds and the securities industry generally are rife with conflicts of interest because funds and other securities firms are intermediaries between parties with opposing interests," she said.
Mutual fund investors, Karmel adds, are seeking honest, competent and professional management, "not some ideologically pure corporate structure." In its zeal to pass the independent chairman rule, the SEC "made no effort to study the track record" of companies with such structures. And such a "penchant for command and control regulation of investment companies, as opposed to reliance on disclosure of fund governance structures and conflicts of interest," is likely a major factor driving mutual fund investors into hedge funds.