Investment is Participation

As residents of a democratic republic, we self-govern and participate in ways other than merely through the ballot box. Participation in our market economy is required to safeguard the freedoms and liberties of a just democracy. Consequnelty, I am sharing a comment I submitted today to the Securities and Exchange Commission regarding investments of a type with which we are all familiar.

Lori Gayle Nuckolls

April 26, 2020

Sent Via Email to:rule-comments@sec.gov

Vanessa A. Countryman

Office of the Secretary

Securities and Exchange Commission

100 F Street NE

Washington, DC 20549-1090

Re: File No. S7-04-20

Dear Secretary,

I write with interest in Securities and Exchange Commission (the “SEC” or the “Commission”) Release Nos. IC-33809; File No. S7-04-20, dated March 2, 2020 (the “Release”) concerning the Request for Comments on Fund Names (the “Request for Comments”) and the discussion therein of the possible amendment of the Commission’s regulation of names of registered investment companies and business development companies (hereinafter referred to as “Funds”), specifically 17 C.F.R. §270.35d-1, promulgated under section 35(d) of the Investment Company Act of 1940 (15 U.S.C. 80a-34(d)) (hereinafter referred to as “Rule 35d-1” or the “Name Rule”). The essential purpose and rationale for the Name Rule, as stated in the Commission’s release announcing its adoption dated January 17, 2001, remain unchanged. (Release No. IC-24828; File No. S7-11-97) (66 Fed. Reg. 8509-8519)(as corrected at 66 Fed. Reg.14828-29) (the “Adopting Release”). Consequently, I recommend that there is no need for significant amendment or revision. Rule 35d-1 continues to meet the Commission’s regulatory objectives in the main.

Since the Commission’s creation almost a century ago during the administration of President Franklin D. Roosevelt, the Commission has maintained a two-fold purpose: serving a perceived need for investor protection and facilitating our nation’s commerce through guidance of public and private companies. The Name Rule is a recent regulation that achieves both of these objectives. As a primary example, the United States has long recovered from the economic catastrophe of the Great Depression and the existence of unregulated markets that inspired the Commission’s creation. Both those selling securities and those investing in securities have learned to not misuse or misread, respectively, terms including the name United States, U.S. Treasury, etc., in the description of financial instruments. Thus, the proscription against doing so contained in §270.35d-1(a)(1) has long achieved its didactic purpose and it should remain as drafted.

The Commission has noted a concern regarding the Name Rule’s current requirement that any Fund whose name suggests that it “focuses its investments in a particular type of investment or investments” or in a particular industry or type of industries must adopt a policy to invest at least 80% of the value of its assets in the particular type of investment or type of industry suggested by its name “under normal circumstances.” 17 C.F.R. §270.35d-1(a)(2). If fund management decides to vary from the investment policy suggested by the fund name it must provide its shareholders with at least 60 days advance notice of a change in the policy governing its investments. 17 C.F.R. §270.35d-1(a)(2).[1] If the Fund does not comply with these requirements, the name of the Fund is considered to be “a materially deceptive and misleading name.” 17 C.F.R. §270.35d-1(a).

The Adopting Release of the Name Rule sets forth the Commission’s position as to the proper interpretation of the “80% requirement.” As stated at 66 Fed. Reg. 8516:

“Only those investment companies that have names suggesting a particular investment emphasis are required to comply with the rule. In general, to comply with the rule, an investment company with a name that suggests that the company focuses on a particular type of investment will either have to adopt a fundamental policy to invest at least 80% of its assets in the type of investment suggested by its name or adopt a policy of notifying its shareholders at least 60 days prior to any change in its 80% investment policy. The 80% investment requirement will allow an investment company to maintain up to 20% of its assets in other investments. An investment company seeking maximum flexibility with respect to its investments will be free to use a name that does not connote a particular investment emphasis.”

In the absence of comment by Funds that the 80% requirement proves too burdensome a restriction since its adoption in 2001, this percentage should be maintained. The public as well as the ordinary investor perceives in the ordinary course that the stated purpose of Rule 35d-1, that of providing the public with an accurate understanding of fund policies and objectives, requires a significant commitment to the investment objective suggested by the Fund name. The 80% requirement is one readily understood by investors and lessening it is not indicated. Investors are expected and do alter investment allocations under the theory of the 80% requirement. The leeway provided funds to depart from the 80% requirement when incurring other than ordinary market conditions is an exceedingly permissive exception to the 80% requirement, for it defers to the discretion of Fund management as governed by fiduciary duty subject to SEC review on a case-by-case basis. Lastly, while the 60 day notice to shareholders requirement places the burden upon the ordinary investor to alter investments upon a change in Fund investment policy, a longer period would undermine the purpose of providing some profitable market flexibility to Funds.

Market conditions have changed in both the increased growth and diversity of potential investments. Consequently, emerging markets and their attendant risks are numerous. There is an even greater need for the 80% requirement. It provides Commission guidance in defining the information to be provided investors as well as apprising Funds of potential liability. By maintaining the 80% requirement, the Commission discourages abstract and vague Fund names through requiring acknowledgement of a need for specificity in the marketplace. For, an investor should know and expect to be informed as strictly as possible as to the nature of the Fund’s investments and the 80% requirement achieves this end.

As the Commission suggested in the Request for Comments, market conditions pose issues of whether regulation is needed for Funds devoted to “qualitative” policy objectives, such as investments guided by environmental, social and or governmental concerns. 85 Fed. Reg. at 13224. Such lack of regulation may lead to investor confusion and the avoidance of investment. To ease investment, compliance and enforcement, the Commission could require that a Fund engaged in such qualitative objectives comply with a standard similar to that currently governing Funds whose investments are tied to certain countries or geographic areas. 17 C.F.R. §270.35d-1(a)(3). In doing so, the Commission could require that the Fund enumerate a qualitative criterion or set of criteria that are set forth in the governing documents of the entities in which it invests. The criteria would reflect the Fund’s qualitative objective or objectives and aptly be reflected in the Fund’s name. Restricting a Fund to one qualitative factor or criterion in its name might unduly restrict market activity and competition and result in a multiplicity of Funds in order to achieve several qualitative objectives. Requiring disclosure of the criteria would avoid the vagueness and abstraction of the “ESG” (environment, social or government) termed Funds.

Regulation of Funds whose name connotes global or international investments is probably not necessary. For, the ordinary investor would understand the wording used in these types of Funds. If greater specificity is needed by investors, market competition would result in more narrowly designed Funds. Requiring greater specificity in a Fund name and disclosure materials as to the type of international investments would, however, shift the primary burden of review from the investor to the Fund.

Similarly, in governing derivatives, Rule 35d-1 ably meets the Commission’s primary concern of disclosure of risk to the investor. Use of the asset-based test of market value rather than notational value to determine whether a Fund is in compliance with the 80% requirement instructs the investor without further inquiry and also guides the Fund in compliance. Marker valuation better indicates price sensitivity.

In conclusion, investors properly rely fundamentally upon Fund management and its due diligence, judgment and maintenance of fiduciary duties. The Commission, and Rule 35d-1 specifically, ably guide Funds and investors in market participation. In reviewing the Name Rule, the Commission must decide how much diligence should be borne by the ordinary investor.

I thank you greatly for the opportunity to comment before you. And, if additional information might be of assistance, I may be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

[1] If the Fund is a tax-exempt fund, such a policy is deemed a “fundamental policy” and may not be changed without a vote of fund shareholders. 17 C.F.R. §270.35d-1(a)(4).

The Hegelian Dialectic Of Capitalism And Socialism In The American Bureaucracy

Socialism may be impossible yet it is unavoidable and must occur in cycles of reform with Capitalism. In the Hegelian theory of dialectical materialism of existence, critique and synthesis in remedy and solution, Capitalism is destroyed in part periodically by Socialist reform and then reborn again. In the United States, Capitalism is structurally restrained by bureaucratic reforms based upon theories of the public interest, nationalism and the commonweal, all theories of Socialist empathy.

The U.S. Constitution creates three branches of government: the Legislature, the Executive and the Judiciary. The President, as a modern Executive, is empowered with an enormous regulatory bureaucracy which is overseen in a manner of checks and balances by the other two branches. This modern bureaucratic state has placed upon the private sector a primary motive of being that departs from the for-profit motive of Capitalism and imposes that of ensuring legal compliance. In a complex era of high technology and big industry, this Socialist leaning is unavoidable if Capitalism is to survive. And, such regulation, though democratic and Capitalistic in spirit and theory, is Socialist in result.

This dualism, the points along a continuum of Capitalism and Socialism, in the philosophy of G.W.F. Hegel, is humankind’s striving toward the absolute freedom of the species in actualization of an unknown Idea, the consummation of evolution. Regardless of one’s belief in the source or definition of the Idea, humans evolve incrementally, improving life in their community. The various elements of the community each evolve along the Hegelian dialectic from existence to critique to synthetic improvement. The many elements include: religion, science, philosophy, art, literature and education. An additional element is the economic Capitalist-Socialist continuum which evolves in dialectical form and is expressed in the governing structure of the community.

Through rational, reasoned reform of its Capitalist governing structure overtime, America has achieved its current bureaucratic state. This bureaucratic state is currently in a period of contraction, with the undoing of some Socialist theories and returning to earlier thoughts of Capitalism. Much of the current trend toward a rebirth of Capitalism is a result of new technology and the creativity it has inspired in the area of commerce. Entrepreneurs are emerging in all business sectors. Americans who enjoy new goods and services and a sense of patriotism economic creativity engenders ask for reforms in government to facilitate further business development.

The current expression in America of this phenomenon, of a demand for government and economic creativity, is not a full destructive critique of Socialist expressions in the American government and economy. Rather, it is an expression of the Janus dualism in human nature. As history indicates, humans are innately inquisitive and acquisitively self-interested. Humans as a species are also affectionate and emphatic. From the beginning of Colonial America until the current presidency, America has evolved in cycles of “boom and bust,” high surges in Capitalist creativity and profit absent imposing regulation to despairs of economic failure and the lessening burden of governmental business safe harbors and social safety nets. This is an example of the philosophical construct of dialectical materialism.

In example, the legislature acts in response to changes in popular will with developments in human history. Citizens ask for a repeal of burdensome laws in times of business prosperity and, in turn, for social measures in times of hardship. Unlike legislators, judges are bound by codes of ethics to abide the rule of law first and foremost as it embodies theories of democracy, fairness and justice. These theories should be immutable regardless of the nature of economic times, regardless of boom or bust. So, to what do we attribute judicial repeal of time honored legal precedent, especially when these changes in the law coincidentally parallel new economic events and changes in popular will?

Judges exercise independent judgment absent partisanship. Yet, in the spirit of Ludwig von Mises and great thinkers from time immemorial, judges acknowledge the essential qualities of human nature – self-interest, greed, empathy and affection. So, too, judicial opinions reflect changes in history and socio-economic developments over time which avail themselves of the Hegelian dialectic as expressed in Capitalist and Socialist theory. An essential question exists as to whether the judiciary must respond to the import of the human creativity these qualities produce and the effect of human creativity upon the community the judiciary governs?

The American public should discuss the nature of governmental reform as expressed by changes in rights and privileges incumbent within the rule of law. The primary focus is the Hegelian dialectic of the Capitalist-Socialist continuum.

Colonial America expressed the dialectical continuum with the beginning point of the existence of the individual rights possessed by Native Americans. The discoverers of the New World were encouraged by developments in the means of maritime travel to conquer the Native Americans and, in Capitalist fashion, usurp their property in a theory of survival of the fittest. Yet, the Colonials stepped away from their own usurper, the English monarchy, through many acts and demands of social welfare, namely the survival of humans as individuals, possessing equal rights of individual self-governance and self-determination in a communal environment. The history of Colonial America is one of synthesis for England imposed tariffs as a large, usurpations government providing for English citizens. Yet, the Colonial and Early Americans, themselves, engaged in a Capitalist plantation economy with Socialist theories of paternalism in the maintenance of the institution of slavery and indentured servitude. Native Americans, even today, benefit from theories of Socialism.

The American Civil War began a critique of the Capitalism of the slave economy. It began with individuals forming the Underground Railroad and the act by predominately Northern slaveholders of permitting slaves to purchase their freedom through learning gainful labor or acts of unrestricted emancipation. The Socialist critique of the then existing Capitalist American economy consummated with the act by President Lincoln of emancipation.

In response, to newfound competition of Americans of African descent, the judicial opinion of Plessey v. Ferguson was issued imposing business restraints upon Black Americans. This, too, is a dualist, synthetic critique expressing Capitalist and Socialist theories. For, it provided a Socialist business subsidy to White Americans thereby encouraging competition at the expense of Black Americans. The Socialist correction was Brown v. Board of Education. Intervening was extensive public reform in the creation of the American Bureaucratic State in the form of the New Deal.

America continues the challenge of the bureaucratic state in the modern era. Much regulation is currently challenged to permit new forms of industry. The Hegelian dialectic provides material synthesis of contradiction and paradox to form new laws from new customs and new legal developments in the private sector of contract law and business formation.

The remedies proposed for the laws currently governing bureaucracies in America are equally along extreme points in a continuum. Some purveyors of conservative legal thought seek a return to theories of non-delegation which would extensively negate the power of Congress to delegate “legislative” power in the form of rulemaking to bureaucratic agencies. More liberal points of view on the continuum would support agencies by expressing great deference to their exercise of rulemaking and adjudicative powers owing to their expertise in highly specific subjects requiring centuries of experience.

In America, we rely upon the judiciary to honor a truly just midpoint along the Hegelian dialectic of Capitalist and Socialist reform. With the U.S. Constitution in place, we will never return to an economy that is too Capitalist or evolve into one that is too Socialist.

Lori Gayle Nuckolls

How Does America Participate In An International Legal Community?

How do we reconcile our commitment to our capitalist economy with the true underpayment of attorneys in America? Capitalism possesses a theoretical basis in quality through competition. Yet, our private, corporate sector disavows its obligation to engage professional development through adequate and equal compensation. For, a great disparity exists between executive salaries and those of private sector attorneys, as to both in-house counsel and private law firms. This exists despite the fact that attorneys must attend graduate school at a younger age.

An argument posed by the corporate sector is that business persons, young and old, are paid more because they generate more business, more value added in a capitalist economy. Yet, the business sector must acknowledge that private sector attorneys are within a profession that lofts the overarching common law under which our world exists and under which corporate transactions and technological developments occur. The common law has existed from time immemorial and our modern world recognizes it in an international sphere.

A structural solution must be created that acknowledges that not only do young, private sector law firm attorneys not benefit from term-in-years employment agreements as do corporate employees. They, instead, work on an at-will basis with no employment security. Also, attorneys are governed by ethical codes imposed by law that result in the quality of thought we readily discern. This, in addition to inadequate compensation, creates anxiety and stress in a profession but for the quality of which we would not possess the talents and abilities upon which we rely.

The answer is to begin from the top with our multi-national corporations. These corporate entities employ law firms and pay far less in compensation for the legal services they receive than is acceptable. The stress and professional hardship incurred by law firm attorneys and staff must be mitigated by payment of higher legal retainers by corporations. In turn, government attorneys would also receive greater compensation. For, our society must realize that our taxes paid are necessary for life essentials. If higher taxes are required, so be it.