When is a Mutual Fund Director Independent? The Unexplored Role of Professional Relationships Under Section 2(A)(19) of the Investment Company Act

DePaul Business & Commercial Law Journal, Vol 4, 2006

34 Pages Posted: 25 Mar 2009  

Larry D. Barnett

Widener University Delaware Law School

Date Written: March 24, 2009

Abstract

An investment company that must register with the Securities and Exchange Commission is required by the Investment Company Act to have a specified percentage or number of directors who are not "interested" in the company. To be not interested (i.e., to be independent), a director of an investment company is barred by section 2(a)(19) of the Act from inter alia having had, during the last two completed fiscal years of the company, a material business relationship or a material professional relationship with specified parties. The Commission, in interpreting section 2(a)(19), has not clearly distinguished the two types of relationships and has not focused on professional relationships apart from business relationships. The article contends that this is contrary to the intent of Congress. Accordingly, the article (i) identifies both the elements of a business relationship and the elements of a professional relationship; and (ii) reviews three no-action letters in each of which the Commission staff could have found that a proposed arrangement would have created a professional relationship for an investment company director.

Keywords: mutual funds, investment companies, directors, independent directors, independence, relationships

JEL Classification: K22, K23

Suggested Citation

Barnett, Larry D., When is a Mutual Fund Director Independent? The Unexplored Role of Professional Relationships Under Section 2(A)(19) of the Investment Company Act (March 24, 2009). DePaul Business & Commercial Law Journal, Vol 4, 2006. Available at SSRN: https://ssrn.com/abstract=1367656

Larry D. Barnett (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
302-477-2134 (Phone)

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