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SEC Divided on Securities Law Exemptions
SEC Commissioner Hester Peirce in October published an explanation of her dissent from an SEC enforcement action concerning certain collective investment vehicles established by a banking institution. The SEC alleged, among other things, that collective investment trusts (CITs) in which a large number of pension plans invested were not “maintained by” the bank.
CITs have been gaining in popularity for many years, in large measure because of exemptions that the Securities Act of 1933 and the Investment Company Act of 1940 afford to such entities. Those exemptions, however, are contingent upon the CIT being “maintained by a bank.” For decades it has been generally understood that, although this requirement does not preclude a bank from retaining the services of an investment adviser in connection with a CIT’s investments, the bank must exercise a substantial degree of responsibility for investment decisions.