A federal appeals court said yesterday that the Securities and Exchange Commission must produce a cost-benefit analysis to justify a rule that boards of mutual funds must have an independent chairman and at least 75 percent of directors who are independent.
The ruling, by the United States Court of Appeals for the District of Columbia Circuit on a lawsuit filed by the United States Chamber of Commerce, is significant because it comes at a time that the commission is in transition. The S.E.C. chairman, William H. Donaldson, is resigning at the end of the month; President Bush has named Representative Christopher Cox, a conservative Republican from California, to be Mr. Donaldson’s successor. The rule on mutual fund boards was adopted in June 2004 by a vote of 3 to 2, with Mr. Donaldson voting with the two Democratic commissioners.
It is unclear whether the commission will need to take another vote on the rule once analysis and public responses are completed.
The court rejected the Chamber of Commerce’s argument that the S.E.C. did not have the authority to impose the rule on the $8 trillion mutual fund industry. But it also found that the agency violated its own rule making by not effectively studying the costs and not responding to an alternative presented by the two dissenting Republican commissioners.
“The S.E.C. won on an important point – the court upheld the S.E.C.’s authority to issue the rule,” said Jay G. Baris, a partner with the law firm of Kramer Levin Naftalis & Frankel. “What remains to be seen is how the commission will address the new facts that they must consider in light of the fact that Chairman Donaldson is stepping down. The big question is what will the new commission do.”
Indeed, the decision underlines the matter of what changes Mr. Cox, long a supporter of business interests, may make at the commission and whether he will seek to roll back rules adopted under Mr. Donaldson.