[Federal Register Volume 78, Number 100 (Thursday, May 23, 2013)]
[Notices]
[Pages 30941-30944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12268]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30524; File No. 812-13783]


Frank Russell Company, et al.; Notice of Application

May 17, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for an exemption from section 15(a) of 
the Act and rule 18f-2 under the Act, as well as from certain 
disclosure requirements.

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SUMMARY:  Summary of the Application: Applicants, including an 
actively-managed open-end exchange traded fund, request an order that 
would permit them to enter into and materially amend subadvisory 
agreements without shareholder approval and would grant relief from 
certain disclosure requirements.

Applicants: Frank Russell Company (``Russell''), Russell Investment 
Management Company (``RIMCo''), Russell Investment Company (``RIC''), 
Russell Investment Funds (``RIF''), and Russell Exchange Traded Funds 
Trust (``RET'', and together with RIC and RIF, the ``Trusts'') 
(collectively, the ``Applicants'').

DATES: Filing Dates: The application was filed on June 9, 2010, and 
amended on November 22, 2010, April 27, 2012, November 22, 2012, and 
March 15, 2013.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on June 11, 2013, and should be accompanied by proof of service on 
applicants, in the form of an affidavit or, for lawyers, a certificate 
of service. Hearing requests should state the nature of the writer's 
interest, the reason for the request, and the issues contested. Persons 
who wish to be notified of a hearing may request notification by 
writing to the Commission's Secretary.

ADDRESSES: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: 
1301 Second Avenue, 18th Floor, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Barbara T. Heussler, Senior Counsel, 
at (202) 551-6990, or Jennifer L. Sawin, Branch Chief, at (202) 551-
6821 (Division of Investment Management, Exemptive Applications 
Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site by searching for the file number, or an applicant 
using the Company name box, at http://www.sec.gov/search/search.htm or 
by calling (202) 551-8090.

Applicants' Representations

    1. RIC and RIF are organized as Massachusetts business trusts and 
are registered under the Act as open-end management investment 
companies. RIC is comprised of forty-two separate registered funds and 
RIF is comprised of ten separate registered funds, each with its own 
investment objective, policies and restrictions. RET is organized as a 
Delaware statutory trust and is registered under the Act as an open-end 
management investment company. RET is comprised of one separate 
registered fund and twelve separate funds in registration, each with 
its own investment objective, policies and restrictions.\1\
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    \1\ Applicants request relief with respect to existing or future 
series of the Trusts and any other existing or future registered 
open-end management investment company or series thereof that: (a) 
is advised by RIMCo or an entity controlling, controlled by, or 
under common control with RIMCo or its successors (each such entity, 
together with RIMCo, an ``Adviser''); (b) uses the manager-of-
managers structure described in the application (``Managers of 
Managers Structure''); and (c) complies with the terms and 
conditions of the application (the ``Funds'' and each, individually, 
a ``Fund''). Every existing registered open-end investment company 
that currently intends to rely on the requested order is named as an 
Applicant. For the purposes of the requested order, ``successor'' is 
limited to an entity or entities that result from a reorganization 
into another jurisdiction or a change in the type of business 
organization. Every existing or future entity that intends to rely 
on the order in the future will do so only in accordance with the 
terms and conditions in the application. If the name of any Fund 
contains the name of a Money Manager (as defined below), the name of 
the Fund's Adviser, or a trademark or trade name that is owned or 
publicly used to identify that Adviser, will precede the name of the 
Money Manager.
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    2. RIMCo, a corporation organized under the laws of the State of 
Washington, is registered as an investment adviser under the Investment 
Advisers Act of 1940, as amended (``Advisers Act''). RIMCo serves as 
the investment adviser of the Funds and RIMCo or another Adviser will 
serve as investment adviser to the future Funds, in each case pursuant 
to an investment advisory agreement with the Fund (each an ``Advisory 
Agreement'').\2\ The Advisory Agreements have been approved (and future 
Advisory Agreements will be approved) by the applicable board of 
trustees of a Trust (the ``Board''),\3\ including a majority of the 
trustees who are not ``interested persons,'' (as defined in section 
2(a)(19) of the Act) of the applicable Trust, the applicable Fund, 
RIMCo or other Adviser, or any Money Manager (as defined below) (the 
``Independent Trustees'') and by shareholders in the manner required by 
sections 15(a) and 15(c) of the Act and rule 18f-2 thereunder. With 
respect to new Funds offered in the future, the applicable Advisory 
Agreement will be approved by the Board and the initial shareholder of 
the Fund in the manner required by sections 15(a) and 15(c) of the Act 
and rule 18f-2 thereunder. Applicants are not seeking any exemptions 
from the provisions of the

[[Page 30942]]

Act with respect to the Advisory Agreements.
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    \2\ Other Advisers are or will be registered as investment 
advisers under the Advisers Act.
    \3\ The term ``Board'' also includes the board of trustees or 
directors of a future Fund, if different.
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    3. Under the terms of an Advisory Agreement, and subject to the 
authority of the applicable Board, RIMCo will provide or oversee the 
provision of investment advisory and portfolio management services for 
a Fund, including the development of the investment program for the 
Fund all in accordance with the investment objectives, policies and 
limitations of each such Fund. For the advisory services it provides to 
the Funds, RIMCo receives the fee specified in the Advisory Agreements 
from the Funds based on each Fund's average daily net assets. The 
Advisory Agreement will permit the Adviser to: (a) Select certain money 
managers that are not Affiliated Money Managers \4\ (each a 
``Discretionary Money Manager'') to manage all or a portion of the 
assets of the Funds pursuant to portfolio management agreements (each 
agreement with a Money Manager (as defined below) a ``Portfolio 
Management Agreement''); (b) select certain money managers that are not 
Affiliated Money Managers (each a ``Non-Discretionary Money Manager'' 
and together with the Discretionary Money Managers, the ``Money 
Managers'') to provide model portfolios to an Adviser pursuant to a 
Portfolio Management Agreement, which such Adviser would utilize in 
connection with the management of a Fund. Each Money Manager to a Fund 
is, or will be, an ``investment adviser'' as defined in section 
2(a)(20)(B) of the Act and registered as an investment adviser under 
the Advisers Act unless not subject to such registration. An Adviser 
will continuously supervise and monitor each Money Manager for 
adherence to its specific strategy. An Adviser will evaluate Money 
Managers, allocate assets to Discretionary Money Managers, implement 
the model portfolios of Non-Discretionary Money Managers, oversee the 
Money Managers, and make recommendations about the hiring, termination 
and replacement of Money Managers to the applicable Board, at all times 
subject to the authority of the applicable Board. A Fund's Adviser will 
manage the portion of the Fund's assets that the Adviser determines not 
to allocate to one or more Discretionary Money Managers, including 
implementing model portfolios of Non-Discretionary Money Managers. 
Assets not allocated to a Discretionary Money Manager may also include 
a Fund's liquidity reserves and assets which may be managed directly by 
the Adviser. The applicable Adviser will compensate each Money Manager 
out of the fees that are paid to such Adviser under the Advisory 
Agreement.
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    \4\ If an Adviser wishes to use money managers that would be 
``affiliated persons'' (as defined in Section 2(a)(3) of the Act) of 
a Trust, the Funds or of any Adviser (other than by reason of 
serving as a Subadviser to the Funds) (``Affiliated Money 
Manager''), shareholder approval of the Portfolio Management 
Agreement with any Affiliated Money Manager will be obtained. The 
requested relief will not extend to Affiliated Money Managers.
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    4. Applicants request an order to permit an Adviser, subject to the 
approval of the applicable Board, including a majority of the 
Independent Trustees, to enter into and materially amend Portfolio 
Management Agreements with Money Managers without shareholder 
approval.\5\
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    \5\ Pursuant to a prior order obtained by RIMCo, RIC, and RIF, 
RIMCo has entered into Portfolio Management Agreements with certain 
Money Managers to provide investment advisory services to the RIC 
and RIF Funds. The relief granted pursuant to the application would 
supersede the Prior Order. See In the Matter of Frank Russell 
Investment Company, et al., Investment Company Act Release No. 21108 
(June 2, 1995) (notice) and 21169 (June 28, 1995) (order) (``Prior 
Order''). Except for Portfolio Management Agreements covered by the 
Prior Order, all Portfolio Management Agreements have been approved 
by the shareholders of the applicable Fund in the manner required by 
section 15(a) of the Act and rule 18f-2 thereunder.
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    5. Applicants also request an order exempting them from certain 
disclosure requirements described below that may require the Funds to 
disclose fees paid by the Advisor to the Money Managers. An exemption 
is requested to permit the Funds to disclose (as both a dollar amount 
and as a percentage of each Fund's net assets) (i) the aggregate fees 
paid to an Adviser and any Affiliated Money Managers, and (ii) the 
aggregate fees paid to Money Managers (collectively, ``Aggregate Fee 
Disclosure''). Any Fund that employs an Affiliated Money Manager will 
provide separate disclosure of any fees paid to the Affiliated Money 
Manager.
    6. Applicants state that the requested relief is no longer novel 
insofar as the requested order seeks exemptions to include as Funds 
open-end investment companies, the shares of which will be traded on 
the national securities exchanges, as defined in section 2(a)(26) of 
the Act (``ETFs''). Applicants note that the requested relief is 
substantially identical to multimanager relief recently granted by the 
Commission to other ETFs. Applicants believe that the requested relief 
is equally appropriate for ETFs as for mutual funds, and that the 
operations of the Funds under the requested order address the concerns 
historically considered by the Commission when granting identical 
relief to mutual funds. Applicants believe that similar to shareholders 
of a mutual fund who may ``vote with their feet'' by redeeming their 
individual shares at net asset value (``NAV'') if they do not approve 
of a change in subadviser or subadvisory agreement, shareholders of a 
Fund that is an ETF will be able to sell shares in the secondary market 
at negotiated prices that usually closely track the relevant Fund's NAV 
if they do not approve of a change. Applicants state that each Fund 
that is an ETF intends to ensure that shareholders who purchase its 
shares in the secondary market receive a prospectus and all of the 
information that would have been provided with a proxy statement, 
except for the modifications discussed below, under the Modified Notice 
and Access Procedures and that Applicants' prospectus delivery 
obligation is satisfied by relying on the same mechanisms currently 
used by the Funds.

Applicants' Legal Analysis

    1. Section 15(a) of the Act provides, in relevant part, that it is 
unlawful for any person to act as an investment adviser to a registered 
investment company except pursuant to a written contract that has been 
approved by a vote of a majority of the company's outstanding voting 
securities. Rule 18f-2 under the Act provides that each series or class 
of stock in a series investment company affected by a matter must 
approve the matter if the Act requires shareholder approval.
    2. Form N-1A is the registration statement used by open-end 
investment companies. Item 19(a)(3) of Form N-1A requires disclosure of 
the method and amount of the investment adviser's compensation.
    3. Rule 20a-1 under the Act requires proxies solicited with respect 
to an investment company to comply with Schedule 14A under the 
Securities Exchange Act of 1934 (``Exchange Act''). Items 22(c)(1)(ii), 
22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A, taken together, 
require a proxy statement for a shareholder meeting at which the 
advisory contract will be voted upon to include the ``rate of 
compensation of the investment adviser,'' the ``aggregate amount of the 
investment adviser's fees,'' a description of the ``terms of the 
contract to be acted upon,'' and, if a change in the advisory fee is 
proposed, the existing and proposed fees and the difference between the 
two fees.
    4. Regulation S-X sets forth the requirements for financial 
statements required to be included as part of investment company 
registration statements and shareholder reports filed with the 
Commission. Sections 6-

[[Page 30943]]

07(2)(a), (b) and (c) of Regulation S-X require that investment 
companies include in their financial statements information about 
investment advisory fees.
    5. Section 6(c) of the Act provides that the Commission may exempt 
any person, security, or transaction or any class or classes of 
persons, securities, or transactions from any provisions of the Act, or 
from any rule thereunder, if such exemption is necessary or appropriate 
in the public interest and consistent with the protection of investors 
and the purposes fairly intended by the policy and provisions of the 
Act. Applicants state that the requested relief meets the necessary 
standards for the reasons discussed below.
    6. Applicants state that the shareholders expect the Adviser and 
the applicable Board to select the Money Managers for the Funds that 
they believe are best suited to achieve each Fund's investment 
objective. Applicants assert that, from the perspective of the 
investor, the role of the Money Managers with respect to the Funds is 
substantially equivalent to the role of a traditional individual 
portfolio manager for a fund that does not employ a manager-of-managers 
structure. In the absence of exemptive relief from Section 15(a) of the 
Act, when a new Money Manager is proposed for retention by a Fund or a 
Trust on behalf of the Fund, shareholders would be required to approve 
the Portfolio Management Agreement with that Money Manager. Similarly, 
if an existing Portfolio Management Agreement were to be amended in any 
material respect, approval by the shareholders of the Fund would be 
required. In addition, a Fund would be prohibited from continuing to 
retain an existing Money Manager whose Portfolio Management Agreement 
had been ``assigned'' as a result of a change of control of the Money 
Manager unless shareholder approval had been obtained. Applicants state 
that obtaining shareholder approval would be costly and slow, and 
potentially harmful to the Fund and its shareholders. Applicants also 
note that the Advisory Agreement is and will remain fully subject to 
the requirements of section 15(a) of the Act and rule 18f-2 under the 
Act, including the requirement for shareholder voting.\6\
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    \6\ In addition, any subadvisory agreement with any Affiliated 
Money Manager is subject to section 15(a) of the Act and rule 18f-2 
under the Act.
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    7. If a new Money Manager is hired, the Funds will inform 
shareholders of the hiring of a new Money Manager pursuant to the 
following procedures (``Modified Notice and Access Procedures''): (a) 
Within 90 days after a new Money Manager is hired for any Fund, that 
Fund will send its shareholders either a Multi-manager Notice or a 
Multi-manager Notice and Multi-manager Information Statement; \7\ and 
(b) the Fund will make the Multi-manager Information Statement 
available on the Web site identified in the Multi-manager Notice no 
later than when the Multi-manager Notice (or Multi-manager Notice and 
Multi-manager Information Statement) is first sent to shareholders, and 
will maintain it on that Web site for at least 90 days. In the 
circumstances described in the Application, a proxy solicitation to 
approve the appointment of new Money Managers provides no more 
meaningful information to shareholders than the proposed Multi-manager 
Information Statement. Moreover, as indicated above, the applicable 
Board would comply with the requirements of Sections 15(a) and 15(c) of 
the 1940 Act before entering into or amending Portfolio Management 
Agreements.
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    \7\ A ``Multi-manager Notice'' will be modeled on a Notice of 
Internet Availability as defined in rule 14a-16 under the Exchange 
Act, and specifically will, among other things: (a) Summarize the 
relevant information regarding the new Money Manager; (b) inform 
shareholders that the Multi-manager Information Statement is 
available on a Web site; (c) provide the Web site address; (d) state 
the time period during which the Multi-manager Information Statement 
will remain available on that Web site; (e) provide instructions for 
accessing and printing the Multi-manager Information Statement; and 
(f) instruct the shareholder that a paper or email copy of the 
Multi-manager Information Statement may be obtained, without charge, 
by contacting the Funds.
    A ``Multi-manager Information Statement'' will meet the 
requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 
14A under the Exchange Act for an information statement, except as 
modified by the requested order to permit Aggregate Fee Disclosure. 
Multi-manager Information Statements will be filed electronically 
with the Commission via the EDGAR system.
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    8. Applicants assert that many Money Managers use a ``posted'' rate 
schedule to set their fees. Applicants state that while Money Managers 
are willing to negotiate fees lower than those posted in the schedule, 
they are reluctant to do so where the fees are disclosed to other 
prospective and existing customers. Applicants submit that the 
requested Aggregate Fee Disclosure relief will allow an Adviser to 
negotiate more effectively with each Money Manager.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. Before a Fund may rely on the requested order, the operation of 
the Fund in the manner described in the application will be approved by 
a majority of the Fund's outstanding voting securities, as defined in 
the Act, or in the case of a Fund whose public shareholders purchase 
shares on the basis of a prospectus containing the disclosure 
contemplated by condition 2 below, by the initial shareholder(s) before 
offering shares of that Fund to the public.
    2. Each Fund relying on the requested order will disclose in its 
prospectus the existence, substance, and effect of any order granted 
pursuant to the application. Each Fund will hold itself out to the 
public as utilizing the Manager of Managers Structure. The prospectus 
will prominently disclose that the applicable Adviser has ultimate 
responsibility (subject to oversight by the applicable Board) to 
oversee the Money Managers and recommend their hiring, termination, and 
replacement.
    3. Funds will inform shareholders of the hiring of a new Money 
Manager within 90 days after the hiring of the new Money Manager 
pursuant to the Modified Notice and Access Procedures.
    4. An Adviser will not enter into a Portfolio Management Agreement 
with any Affiliated Money Manager without such agreement, including the 
compensation to be paid thereunder, being approved by the shareholders 
of the applicable Fund.
    5. At all times, at least a majority of each Board will be 
Independent Trustees, and the nomination of new or additional 
Independent Trustees will be placed within the discretion of the then-
existing Independent Trustees.
    6. Whenever a money manager change is proposed for a Fund with an 
Affiliated Money Manager, the applicable Board, including a majority of 
the Independent Trustees, will make a separate finding, reflected in 
the applicable Board minutes, that such change is in the best interests 
of the Fund and its shareholders, and does not involve a conflict of 
interest from which the applicable Adviser or the Affiliated Money 
Manager derives an inappropriate advantage.
    7. Independent legal counsel, as defined in rule 0-1(a)(6) under 
the Act, will be engaged to represent the Independent Trustees. The 
selection of such counsel will be within the discretion of the then 
existing Independent Trustees.
    8. Each Adviser will provide the Board, no less frequently than 
quarterly, with information about the profitability of such Adviser on 
a per-Fund basis. The information will reflect the impact on 
profitability of the hiring or termination of any money manager during 
the applicable quarter.

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    9. Whenever a money manager is hired or terminated, the applicable 
Adviser will provide the applicable Board with information showing the 
expected impact on the profitability of such Adviser.
    10. Each Adviser will provide general management services to each 
Fund, including overall supervisory responsibility for the general 
management and investment of each Fund's assets, and, subject to review 
and approval of the Board, will: (a) Set each Fund's overall investment 
strategies; (b) evaluate, select and recommend Money Managers to manage 
all or a part of each Fund's assets and/or provide model portfolios for 
the Funds; (c) in the case of Discretionary Money Managers, allocate 
and, when appropriate, reallocate each Fund's assets among one or more 
Money Managers; (d) monitor and evaluate the performance of Money 
Managers; and (e) implement procedures reasonably designed to ensure 
that the Money Managers comply with each Fund's investment objective, 
policies and restrictions.
    11. No trustee or officer of a Trust or the Funds, or director, 
manager or officer of an Adviser, will own, directly or indirectly 
(other than through a pooled investment vehicle that is not controlled 
by such person), any interest in a Money Manager, except for (a) 
ownership of interests in such Adviser or any entity that controls, is 
controlled by, or is under common control with such Adviser, or (b) 
ownership of less than 1% of the outstanding securities of any class of 
equity or debt of any publicly traded company that is either a Money 
Manager or an entity that controls, is controlled by or is under common 
control with a Money Manager.
    12. Each Fund will disclose in its registration statement the 
Aggregate Fee Disclosure.
    13. In the event the Commission adopts a rule under the Act 
providing substantially similar relief to that in the order requested 
in the application, the requested order will expire on the effective 
date of that rule.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-12268 Filed 5-22-13; 8:45 am]
BILLING CODE 8011-01-P