The SEC's Division of Investment Management recently issued a
no-action letter on the presentation of performance information for series
formed by spin-off from a different investment company. Janus Advisers
Series, SEC No-Action Letter (Aug. 28, 2000). In order to increase the
types of investors who could invest, Janus Aspen Series plans to spin off
the Retirement Shares classes of ten different funds into a new series
investment company, Janus Adviser Series. Although technically a new
investment company, the new funds will be substantially the same as the old
funds, except for the elimination of restrictions on potential investors.
The new funds sought to use the performance history of the old Retirement
Classes as their own. Normally a fund's standardized performance
information may include performance only for periods after the effective
date of the fund's registration statement.
The SEC staff agreed that it would not recommend enforcement action
if the new funds include standardized performance information in each fund's
registration statement, advertisements or sales literature, or includes
required Form N-1A performance information in its prospectus that includes
performance information of the old funds prior to the date the new funds'
registration statement becomes effective. The staff stated that this
position is limited solely to the spin-off of an entire class of an existing
registered fund and does not address the use of performance information by a
fund that is formed by carving out a portion of a predecessor class.
I have put the Janus Advisers Series letter on the eGroups web site
in Word 97 format, and it may be accessed at
John M. Baker <JBaker@...
Stradley, Ronon, Stevens & Young, LLP
1220 19th Street, N.W., Suite 700, Washington, DC 20036
(202) 822-9611 Fax (202) 822-0140
FundLaw Listowner Http://www.egroups.com/group/fundlaw