SCHEDULE 13D
DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT
NA
1. NAME OF REPORTING PERSON
Opportunity Partners L.P.
2. CHECK THE BOX IF MEMBER OF A GROUP a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) AND 2(e) []
6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
________________________________________________________________
7. SOLE VOTING POWER
NA
8. SHARED VOTING POWER
NA
9. SOLE DISPOSITIVE POWER
NA________________________________________________________
10. SHARED DISPOSITIVE POWER
NA
11. AGGREGATE AMOUNT OWNED BY EACH REPORTING PERSON
NA (Less than 5%)
12. CHECK IF THE AGGREGATE AMOUNT EXCLUDES CERTAIN SHARES []
13. PERCENT OF CLASS REPRESENTED BY ROW 11
NA
14. TYPE OF REPORTING PERSON
IA
________________________________________________________________
Item 1. SECURITY AND ISSUER
This Schedule 13D relates to the shares of Common Stock (the
"Common Stock") of New Ireland Fund, Inc. ("IRL".) The principal
executive offices of IRL are located at PFPC Inc. 99 High Street,
27th Floor, Boston, MA 02110.
Item 2. IDENTITY AND BACKGROUND
This statement is filed on behalf of Opportunity Partners L.P.,
60 Heritage Drive, Pleasantville, NY 10570.
ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATIONS
NA
ITEM 4. PURPOSE OF TRANSACTION
On October 1, 2003 Opportunity Partners L.P. submitted a proposal
requesting that the Board of Directors take the necessary steps
to enable shareholders to realize net asset value ("NAV") for
their shares (See Exhibit 1). Management and the Board of
Directors then hired an expensive law firm in a futile attempt to
prevent shareholders from voting on our proposal. This is a waste
of IRL's assets and is not in the shareholders' best interest
because it causes a decline in NAV (by the amount of the legal
fees incurred) and does not produce any benefit for shareholders.
Our response to IRL's no action request is attached as Exhibit 2.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
a -e NA
Less than 5% ownership.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
None.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1: Shareholder Resolution
Exhibit 2. Response to managements no action request.
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: 2/12/04
By: /s/ Phillip Goldstein
Name: Phillip Goldstein
Exhibit 1.
Opportunity Partners L.P.,
60 Heritage Drive, Pleasantville, NY 10570
(914) 747-5262 // Fax: (914) 747-5258
oplp@optonline.net
Peter Hooper, Chairman
The New Ireland Fund, Inc.
C/0 PFPC Inc.
101 Federal Street
6th Floor
Boston, Massachusetts 02110
Dear Mr. Hooper:
We hereby submit the following proposal and supporting statement
pursuant to rule 14a-8 of the Securities Exchange Act of 1934 for
inclusion in management's proxy statement for the next annual
meeting of stockholders or any earlier meeting. We have
beneficially owned shares of The New Ireland Fund, Inc. (the
"Fund") valued at more than $2,000 for more than one year and we
intend to continue our ownership through the date of the next
annual meeting.
RESOLVED: The shareholders of The New Ireland Fund (the "Fund")
request the Board of Directors to promptly take the steps
necessary to open end the Fund or otherwise enable shareholders
to realize net asset value ("NAV") for their shares.
Supporting Statement
The Fund has traded at a double-digit discount to its net asset
value ("NAV") for a long time. On September 30, 2003, the
discount stood at 18.7%. That means that a shareholder wishing to
sell shares would only receive $12.43 per share. If the Fund
were open-ended, he would receive the NAV or $15.28 per share.
Since $15.28 is so much more that $12.43, open-ending the Fund
means a higher stock price for every shareholder. Yet, we would
not be surprised if management opposes it. Why? A Dow Jones
news story a few years back revealed what we think is the reason:
"It gives shareholders a way to get out at a profit, and so
threatens the company's management fees." But what manager is
going to admit that?
Instead, our manager may have to borrow a trick from Tom Sawyer.
Do you remember how Tom got his friends to whitewash Aunt Polly's
fence? He tricked them into believing that it was fun, not a
chore. Our managers and our Board may try to use a similar
strategy to confuse shareholders. Think about it this way. If
somebody offered to buy your shares at NAV today, would you like
that? Of course you would! Well, if the Fund open-ends, you can
sell your shares at NAV at any time. Our managers can't deny
that open-ending will increase the value of your shares so they
need to convince you that you are better off owning a stock worth
$12.43 than one worth $15.28. We are betting that you are not as
gullible as Tom Sawyer's friends.
If we are right and if you would like to see the Fund's discount
eliminated, we urge you to vote in favor of this proposal.
Very truly yours,
Phillip Goldstein
President
Kimball & Winthrop, Inc.
General Partner
Exhibit 2.
Opportunity Partners L.P.,
60 Heritage Drive, Pleasantville, NY 10570
(914) 747-5262 // Fax: (914) 747-5258//
oplp@optonline.net
February 9, 2004
U.S. Securities and Exchange Commission
Division of Investment Management
Office of Chief Counsel
450 Fifth Street, N.W.
Washington, D.C. 20549
The New Ireland Fund, Inc. (the "Fund") - Rule 14a-8 Proposal
Ladies and Gentlemen:
We received a copy of a tirade in the form of a letter dated
February 3, 2004 from Paul J. McElroy of Sullivan & Cromwell LLP,
counsel to the Fund to you seeking no action assurance if the
Fund excludes from its proxy materials our rule 14a-8 proposal
requesting "the Board of Directors to promptly take the steps
necessary to open end the Fund or otherwise enable shareholders
to realize net asset value ("NAV") for their shares." Mr.
McElroy contends that our supporting statement is contrary to
rule 14a-9. The Fund's request should be denied because it is
(a) untimely and (2) without merit.
Mr. McElroy's letter is a good example of the ancient lawyer's
aphorism: "If you don't have the facts, argue the law. If you
don't have the law, argue the facts. If you don't have either the
facts or the law, pound on the table." Normally, this doesn't
sway justice one bit, but it convinces the client1 that the
lawyer is doing a great job.
Even if Mr. McElroy's argument had any merit, the Fund's request
should be denied because it is untimely. Section G.5 of Division
of Corporation Finance Legal Bulletin No. 14 (July 13, 2001)
dealing with eligibility and procedural issues states: "Rather
than waiting until the deadline for submitting a no-action
request, a company should submit a no-action request as soon as
possible after it receives a proposal and determines that it will
seek a no-action response." Our proposal was submitted on
October 1, 2003. The Fund never contacted us to discuss our
proposal. Had it done so, it is possible that an agreement could
have been reached. Instead, it waited four months to submit a no
action request. As explained in Section G.6. of Legal Bulletin
No. 14, "[The Commission's staff receives] the heaviest volume of
no-action requests between December and February of each year."
Granting the Fund no action relief at this late date will only
encourage other companies to ignore Bulletin No. 14's guidance
instead of making a good faith effort to resolve their
differences with shareholder proponents.
Frankly, we were a bit taken aback by Mr. McElroy's vitriolic
attack on our routine supporting statement. He hyperventilates
for more than three pages about statements in our supporting
statement that he alleges are "false and misleading." For
example, although our entire supporting statement is only 289
words and can be read aloud in about 60 seconds, he asserts that
a quotation from a Dow Jones story "is but one example in a long
list of ways in which the Proponent attempts to blur the
distinction between the Fund and its Board of Directors, on the
one hand, and the Fund's investment advisor, on the other hand."
(emphasis added) Ironically, in the preceding sentence, Mr.
McElroy commits the same sin: "The Fund strongly believes that
this insidious suggestion impugns the character and integrity of
the Fund's investment advisor, as well as that of the Fund's
Board of Directors . . . ." Does a Fund really have opinions?
Based on his letter, parts of which border on the delusional, Mr.
McElroy is ultrasensitive to perceived offenses that other people
might never notice (on behalf of his "client" of course).
Hopefully, he did not watch Janet Jackson's halftime performance
at the Super Bowl because he might have suffered cardiac arrest.
If Mr. McElroy really wants to get upset, he might consider these
quotations:
Investment advisers typically dominate the funds they
advise. -- See SEC, Report on the Public Policy
Implications of Investment Company Growth, H.R. Rep. No.
2337, 89th Cong., 2d. Sess. 12, 127, 148 (1966) ["Public
Policy Report"] (stating that funds generally are formed
by their advisers and remain under their control, and
that advisers' influence permeates fund activities);
Wharton School of Finance and Commerce, A Study of Mutual
Funds, H.R. Rep. No. 2274, 87th Cong., 2d Sess. 463
(1962) ["Wharton Report"] (discussing the dominant
position of advisers in the control of funds and the
infrequency with which funds have a separate existence
from their advisers); see also Clarke Randall, Fiduciary
Duties of Investment Company Directors and Management
Companies Under the Investment Company Act of 1940, 31
Okla. L. Rev. 635, 636 (1978) ("The adviser's control and
influence over the fund is very nearly total."); In the
Matter of Steadman Security Corporation, Investment
Company Act Release No. 9830 [1977 Transfer Binder] Fed.
Sec. L. Rep. (CCH) 81,243, at n.81 (Jun. 29, 1977)
("[T]he investment adviser almost always controls the
fund.").2
Over the past decade or more, at too many companies, the
chief executive position has steadily increased in power
and influence. In some cases, the CEO had become more of
a monarch than a manager. Many boards have become
gradually more deferential to the opinions, judgments and
decisions of the CEO and senior management team. This
deference has been an obstacle to directors' ability to
satisfy the responsibility that the owners -- the
shareholders -- have delegated and entrusted to them.3
It also was no big secret that corporate boards rubber-
stamped management decisions, stomping shareholders in
the process.4 Abuses were left unchecked until a rash of
accounting scandals led to sweeping reforms in 2002 that
redefined the duties of directors.5
In any event, nothing in our supporting statement violates rule
14a-9. However, rather than give a point by point refutation of
Mr. McElroy's frivolous objections,6 we refer you to TSC
Industries v. Northway, Inc., 426 U.S. 438 (1976):
The general standard of materiality that we think best
comports with the policies of Rule 14a-9 is as follows: An
omitted fact is material if there is a substantial
likelihood that a reasonable shareholder would consider it
important in deciding how to vote. This standard is fully
consistent with Mills' general description of materiality as
a requirement that "the defect have a significant propensity
to affect the voting process." It does not require proof of
a substantial likelihood that disclosure of the omitted fact
would have caused the reasonable investor to change his
vote. What the standard does contemplate is a showing of a
substantial likelihood that, under all the circumstances,
the omitted fact would have assumed actual significance in
the deliberations of the reasonable shareholder. Put another
way, there must be a substantial likelihood that the
disclosure of the omitted fact would have been viewed by the
reasonable investor as having significantly altered the
"total mix" of information made available.
While Mr. McElroy is quick to defend his "client" by asserting,
"The directors of the Fund take their statutory duties very
seriously and are not controlled or influenced by the investment
advisor in the exercise of those duties," that does not make it
so. The Commission itself recently expressed concern about
whether, in light of the revelations of widespread corruption in
the mutual fund industry, fund directors are failing to fulfill
their role as independent watchdogs of the investment advisor and
has proposed rules that "are designed to enhance the independence
and effectiveness of fund boards and to improve their ability to
protect the interests of the funds and fund shareholders they
serve."7
More important, Mr. McElroy does not explain how anything we said
or omitted will materially adversely alter the "total mix" of
information that shareholders will ultimately have available to
them before they vote. When we submitted our proposal, we did
not know whether, in responding to it, the directors would be
influenced by the investment advisor - and we still don't know.
Based on our reading of many responses to similar proposals by
boards of other closed-end funds over the years, we tried to
anticipate a likely response by the Fund's board by saying: "Our
manager may have to borrow a trick from Tom Sawyer." (emphasis
added) It is premature to determine whether any statement we
made or omitted, even if false or misleading on its own, will
alter the "total mix" of information shareholders will have
because a vital element of that "total mix" is the board's
response to our proposal. However, if the board determines to
provide the shareholders with a fair and balanced discussion of
our proposal consistent with its fiduciary duty, we are willing
to dispense with our supporting statement entirely.
Finally, in light of Mr. McElroy's complaint that our 289-word
supporting statement is replete with "imagery" he calls
"provocative and inflammatory,"8 we refer you to a trademark
infringement case, Mattel, Inc. v. MCA Records, Inc., 296 F.3d
894, 908 (9th Cir. 2002) in which tempers arguably ran hotter
than even Mr. McElroy's. In dismissing a counterclaim by MCA for
defamation based on Mattel's use of the words "bank robber,"
"heist," "crime" and "theft," Circuit Judge Alex Kozinski wrote:
"In context, all these terms are nonactionable `rhetorical
hyperbole.' The parties are advised to chill." (citation
omitted) Mr. McElroy should consider advising his "client" to do
the same.
Very truly yours,
Phillip Goldstein
Portfolio Manager
cc: Paul J. McElroy
_______________________________
1 Here, the "client" seems to be the Fund's board of directors
and/or the investment advisor, not the shareholders who would be
prevented from voting on our proposal in the unlikely event that
Mr. McElroy's rhetorical table pounding is successful.
2 Release No. 34-41987, Proposed Rule on the Role of Independent
Directors of Investment Companies, October 15, 1999, Footnote No.
10 and related text
3 Remarks of SEC Chairman William H. Donaldson at the 2003
Washington Economic Policy Conference, Mar. 24, 2003
4 Maybe this was a big secret to Mr. McElroy.
5 "How Hazards For Investors Get Tolerated year After Year," By
Susan Pulliam, Susanne Craig and Randall Smith, Wall Street
Journal, February 6, 2004
6 However, we note that the fact that the board authorized
engaging Mr. McElroy's firm to prepare an attack letter before
attempting to engage us in discussion suggests a lack of good
faith that would be consistent with their fiduciary duty.
7 Release No. IC-26323, Proposed Rule on Investment Company
Governance, January 15, 2004: ("The Investment Company Act relies
heavily on fund boards of directors to manage conflicts of
interest that the fund adviser inevitably has with the fund. The
effectiveness of a fund board and the influence of its
independent directors depend on both the quality of the directors
and the governance practices they adopt. Our concern is that in
many fund groups, including some of the fund complexes that have
been the subject of our enforcement cases, the fund adviser
exerts a dominant influence over the board. Because of its
monopoly over information about the fund and its frequent ability
to control the board's agenda, the adviser is in a position to
attempt to impede directors from exercising their oversight role.
In some cases, boards may have simply abdicated their
responsibilities, or failed to ask the tough questions of
advisers; in other cases, boards may have lacked the information
or organizational structure necessary to play their proper role.
Management-dominated boards may be less likely to effectively
undertake the many important responsibilities assigned to them.
The breakdown in fund management and compliance controls
evidenced by our enforcement cases raises troubling questions
about the ability of many fund boards, as presently constituted,
to effectively oversee the management of funds.") (footnotes
omitted)
8 Mr. McElroy cites the words "trick", "tricked", "whitewash",
"confuse", and "gullible".