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IMHO:Between the Devil and the Deep Blue Sea

Regulatory crossfire could have unintended consequences

Regulatory crossfire could have unintended consequences

Like many of you, I have been surprised at the breadth—and apparent depth—of the reach of the mutual fund trading scandal. Oh sure, you can find some who swear they saw it coming but, for the very most part, they are Cassandras who make their living predicting either financial doom or thievery. Sadly these days there remains much to worry over.

Several months ago in this space, I said we deserved better from those entrusted with our retirement investments. If anything, the intervening months have only cemented that sentiment in my mind. Yet, despite the near-weekly revelations of some new act of real or alleged malfeasance, I am finding little comfort from the investigations.

Take, for example, the Securities and Exchange Commission, the regulatory body that ostensibly keeps an eye on mutual fund practices, but seems instead to have been asleep at the switch. How else to account for how so many for so long engaged in so many of these practices? The alternative view—that they were knowing, and complicit in their acquiescence—is too horrifying to contemplate for long. Then, finally roused from its slumbers, the SEC imposes dollar fines that pale in comparison with the profits alleged, while the culprits admit to nothing, but promise never to do "it" again.

As if that weren't bad enough, the proposed "solution" to the systemic problem—handcrafted by the Investment Company Institute, a mutual fund trade group—essentially treats the fund complexes as if they were Caesar's wife, rather than part of the conspiracy. Not that the problems exist at all funds, or that the problems at all funds are of the same ilk, but the most heinous acts appear to have been well within the funds' ability to control and/or stop—had they been so inclined. The problem is, they weren't.

However ill-crafted and late those reactions may be, consider the prosecutorial connect-the-dots game being played by New York Attorney General Eliot Spitzer. Having found evidence of late trading and market timing, Spitzer, who is unabashedly public in his political ambitions, tracks the source of the problem to the fund directors. Whether they knew or not, they should have known, the argument goes—and I, for one, am not unwilling to go that far. However, Spitzer now seems to be saying that, once that door is opened, every facet of the mutual fund's operation under the board's auspices is fair game for inquiry.

This logic may well lead to a reduction in mutual fund fees, which many would applaud, but it is an ill-gotten "gain," IMHO. It also now seems that Mr. Spitzer would have fund company boards actively entertain the notion of hiring some firm other than the firm that sponsors the fund to manage the money. That approach isn't inconsistent with how those boards are supposed to think, mind you. Nor is it different from how many fund families (notably the Vanguard Group) currently operate. It seems, however, alien to how most investors probably expect the funds to be managed. More significantly, I'm not sure how Mr. Spitzer's market timing investigation has opened the door so wide that he is able to impose, through threat of prosecution, these types of changes.

Ultimately, what concerns me most about the current state of affairs is not what Mr. Spitzer, or his AG brethren, are pursuing, or whether the SEC finally will rise to the occasion. No, what troubles me most is watching the two engage in what can perhaps best be described (in polite company) as a "hissing" contest, quibbling over who can impose the most appropriate sanctions.

No matter how well-intentioned, it's an arms race that we'll all wind up paying for in the end.  

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Nevin Adams
editors@plansponsor.com

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