Shareholders Want Cash for Fund's Name
April 19, 1999
A money management firm and the shareholders of one of the firm's tiny, low-ranking closed-end funds are in the midst of an unusual struggle over who has the right to use the fund's name.
CEF Advisers of New York wants shareholders of its Bull & Bear U.S. Government Securities Fund to authorize the elimination of "Bull & Bear" from the fund's name. CEF last month cancelled the fund's license to use the name and says the fund now has no legal right to continue carrying the "Bull & Bear" title.
The adviser and the fund's directors are asking shareholders to approve a change in the fund's charter which would drop Bull & Bear and name the fund the Bexil U.S. Government Securities Fund, according to a preliminary proxy statement the fund filed with the SEC on April 9. Shareholders decisively defeated a similar proposal in December.
George Karpus, an investment advisor in Pittsford, New York, said last week his firm will wage a proxy fight to stop the name change. CEF's parent corporation, the Bull & Bear Group, received $6 million in the sale of the Bull & Bear name and the group's discount broker/dealer subsidiary to Royal Bank of Canada in a deal that closed March 31.
Karpus said the fund should receive $500,000 of the sale proceeds. The payment represents compensation for giving up the fund name and reimbursement for expenses the fund has paid over time to support marketing the Bull & Bear name, plus registration fees and other costs associated with changing the name, Karpus said.
"We should get something for this," Karpus said. "They're stealing the name."
Closed-end funds normally pay no marketing expenses. Bull & Bear Government Securities, however, was open-end and included a Rule 12b-1 marketing fee until Oct., 1996, according to SEC filings. It is unclear how much the fund spent on advertising.
Executives at the Bull & Bear Group, which said in a December press release that it planned to change its name as a result of the sale, and Royal Bank of Canada did not return calls seeking comment.
In almost all cases, it is the advisory firm which owns the right to a fund name, said Pamela Wilson, an attorney at Hale & Dorr in Boston. Advisers usually license use of the name to funds at no cost and reserve the right to revoke the license at the adviser's discretion. In most cases, the adviser bears virtually all of the expenses of building up a fund's name, Wilson said.
"If you want to advertise and create a brand name, that's usually on the adviser's nickel," Wilson said.
The dispute at Bull & Bear is over a fund whose performance has lagged its peers. Bull & Bear Government Securities ranked last among 16 closed-end government bond funds for performance over the past three and five year periods, according to Lipper, the fund tracking firm. Bull & Bear's one-year rank through March 31 was 11th out of 16 funds. The fund had approximately $10.5 million in assets as of Feb. 28, according to Lipper.
Karpus last year led an unsuccessful effort to fire CEF because of its poor performance. He plans to try again at the fund's as yet unscheduled meeting on the vote to change Bull & Bear's name. Karpus's firm has also petitioned the SEC to liquidate the fund on other grounds.
On Dec. 18, shareholders voted against a management proposal to change the name of Bull & Bear to the Bexil Corp. by 289,144 to 183,014. Although the proposal was defeated, the fund began doing business as Bexil Corp., a move Karpus said circumvented the shareholder vote.
Now, having sold the Bull & Bear name, the Bull & Bear Group could be in the position of having to sue the fund, Wilson said. Sellers normally promise to use their best efforts to insure that the name they sell is removed from all of the seller's property. Such a commitment could require filing suit to enforce the license agreement between CEF and the fund, Wilson said.
The situation is "very awkward," Wilson said.
Peter Worden, president and CEO of Bull & Bear Securities - the discount broker/dealer which the Royal Bank of Canada purchased - said the issue of the name change of the Bull & Bear U.S. Government Securities Fund should be resolved by shareholders and the fund adviser.
He declined to comment on whether Bull & Bear Securities would demand that the adviser sue the fund over use of the Bull & Bear name.
As of April 1, the Bull & Bear Group changed its name to Winmill & Co., according to an SEC filing the company made last week.