The Investment Company Act of 1940: 77 Years Later

On this day in 1940, President Roosevelt signed the Investment Company Act of 1940.  Previously, both houses of congress had approved the ’40 Act unanimously. The ’40 Act, is the primary source of regulations for the multi-trillion dollar investment industry. The ’40 act defined and regulated investment companies, and provides investors with protections against conflicts of interest, misappropriation of funds, excessive fees, and undisclosed risks.

As he signed the bill, President Roosevelt declared:

We have come a long way since the bleak days of 1929…. I have great hopes that the act which I have signed today will enable the investment trust industry to fulfill its basic purpose as a vehicle to diversify the small investors risk.

What is a ’40 Act Fund?

The investment companies that the 1940 Act protections apply to are known as 1940 Act Funds, or ’40 Act Funds Broadly speaking, there are three types of  ’40 Act Funds: Closed End Funds, Open End Funds, and Unit Investment Trusts. Open end funds and closed end funds are the most common type of

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How Interval Funds Operate

A key defining feature of an interval fund is that they are regulated under the 1940 Act.  This provides critical protections for investors.  DLA Piper released a handbook discussing the 1940 Act and related statues and regulations that apply to and otherwise bear on the interval fund operations. The information covers the key regulatory framework for 40 Act Funds, as well as the impact of recent regulatory changes.
According to DLA Piper:

 ….an interval fund can be a suitable vehicle in which to run “alternative” strategies – i.e., strategies that are designed to produce returns that are not highly correlated to the broader stock and bond markets. Interval funds also mesh well with certain noteworthy regulatory initiatives – for example, FINRA’s new customer statement rule (RN 15-02), and the Department of Labor’s fiduciary rule and accompanying BIC exemption – making them attractive vehicles for use by independent broker dealers and other financial advisors that must operate within the complex regulatory environment.

Additionally, Griffin Capital, which operates the Institutional Access Credit Fund, and the Institutional Access Real Estate Fund…

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Why aren’t there more publicly traded interval funds?

Most publicly traded interval funds do not trade on an exchange. Many people in the industry speak of interval funds as if they are always non-traded. However it is possible for an interval fund to be publicly traded. Currently, of the ~40 active or and recently launched interval funds, the Blackrock Enhanced Government Fund (EGF) is the only one that is publicly traded. Or put differently, of the >500 publicly traded closed end funds, EGF is the only one that is structured as an interval fund. It offers to repurchase 5-25% of its shares annually, and charges a repurchase fee of 2%. Since it is an interval fund, the repurchase plan can be suspended only with shareholder approval.

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The Interval Fund Rule: Charting New Territory

Interval funds may seem like a new concept, but they were originally created as a result of a SEC recommendations in its landmark 1992 study : “Protecting Investors: A Half Century of Investment Company Regulation.”  This study concluded that the rigid delineation between “open end” funds, providing daily liquidity, and “closed end funds” , which do not offer daily liquidity, limited the ability of sponsors to offer innovative investment products to investors:

The Division has  concluded it would be appropriate to provide the opportunity for investment  companies to chart new territory between the two extremes of the open-end and  closed-end forms, consistent with investor protection. >

As a result of this recommendation, the Rule 23c-3 under the 1940 Act, known as interval fund rule was adopted in 1993.   Under the interval fund rule, closed end interval funds are required to offer to repurchase between 5% and 25% of shares at NAV at predetermined intervals(quarterly, semi-annually, or annually). The Fund is required to provide advanced notice to shareholders between 21 and 42 days in advance of repurchase offer .  Interval Funds also file N-23c-3 with the SEC within 3 days of sending shareholder notification of a tender offer. 

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Comparing BDCs and Interval Funds

With Financial Times coverage of closed end interval funds, and the recent growth in credit focused closed end funds, its a good time to compare the business development company structure to the closed end fund structure(including interval funds). Both provide investors with protections under the 1940 Act, and BDCs are also technically a type of closed end fund, but BDCs have several key differences in terms of fees, regulatory and filing requirements, and investment restrictions. These differences are important for investors, asset managers, and those involved in fund distribution.

Here are interactive tables comparing BDCs and Closed End Interval Fund:

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Using a Little-Known Type of Fund for Private-Company Exposure

The Wall Street Journal had an article a while back discussing a type of situation where a financial adviser found interval funds to be a great fit for a client. The interval fund used here is SharesPost 100 Fund (PRIVX), but a similar process would likely apply for many different funds.

According to the adviser in the article:
“What’s interesting to me about closed-end interval funds is that clients get access to these [private] companies, but they have the transparency and regulatory benefits of the mutual-fund structure,”

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Top 5 Interval Fund Whitepapers

Interval Fund Tracker keeps tabs on the best industry research covering interval funds.  See the   Research section for additional resources and ongoing updates.

Here are the Top 5 Interval Fund Whitepapers in the industry today.

Launching Innovative Strategies With Continuously Offered Closed-End Funds – DST kasina

Best balanced review of the benefits and challenges of interval funds and other continuously offered closed-end funds.  It also puts interval in their proper context in the broader fund universe.  This is a must read for any Sponsor that is considering launching a fund, or any BD/RIA that plans to offer interval funds.  A few key quotes:

Finally, with much of the negative press associated with non-traded REITS, and an unwillingness among many advisors to invest in business development companies (BDCs), an interval or tender offer closed-end fund structure might be a better option for managers seeking to introduce new and less-liquid real estate or energy investment strategies…

…Sponsors of interval funds need to ensure their national account, sales, marketing and product teams are working symbiotically to educate and engage advisors at the right time during their decision-making process. This includes both in-person and digital engagement. Naturally, some broker/dealer platforms are more receptive than others. Several asset managers have found a receptive home for their interval funds among small- to mid-size broker/dealers. In those cases, the firm’s National Accounts team diligently identified the fund needs of the platform, and worked closely with the platform gatekeepers to position the fund. In addition, they selected several members of their internal/external sales team to actively support platform advisors…

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What is an interval fund?

Interval funds typically operate as a fund of funds, offering investors exposure to a diversified portfolio of alternative investments through one vehicle. Many major alternative investment managers, REIT and BDC sponsors have registered interval funds in recent months. A variety of regulatory and market pressures are driving the growth of interval funds, but lack of data makes it difficult for investors to evaluate choices. The purpose of Interval Fund Tracker is to increase transparency of the interval fund universe.

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