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IMHO:Wrong-Headed

We have a right to expect better

We have a right to expect better

I'm (almost) sorry to say that my initial reaction to New York Attorney General Eliot Spitzer's allegations that a hedge fund (Canary Capital Partners LLC) had been involved in financial misdeeds was rather blasé. It is perhaps an occupational hazard that one becomes immune to that sort of thing—but, believe me, a hedge fund cheating investors out of money is not exactly unheard of these days, certainly at the retail level.

No, the really nasty crimes generally require elements of complicity and conspiracy and, as I pored through the Spitzer complaint, it was shockingly apparent that this case had plenty of both. Moreover, in this case, unfortunately, it may have implications for the retirement business as well, since both mutual funds (the participant investment vehicle of choice) and at least one custodian have found their way into the headlines as a result of their alleged roles in the transactions.

What is most troubling to me is not that the hedge fund in question tried to "market time" to take advantage of the market's inefficiencies. Many try to and, while the practice isn't technically illegal, most mutual funds claim that they frown on it, and reserve the right to impose extra fees, or even reject such trades, if suspected.

Nor am I ultimately as concerned about the fact that some of these trades were processed after the 4 p.m. cut-off. I would, however, make a clear distinction between trades processed after the cut-off—which the vast majority of 401(k) retirement plans do, and do so legally—and trades illegally placed after the cut-off. Canary may well have done the latter, since at least one company allegedly placed a trading terminal in Canary's offices that would reportedly allow them to do just that.

No, what distresses me most is the apparent breadth of awareness—and encouragement—of the practices within at least one of the mutual fund complexes. Goodness knows, we've seen situations where one or two senior financial executives "cooked the books," circumstances where it appeared that auditing and reporting were (perhaps criminally) sloppy, even instances where auditors seem to have worked "aggressively" with their client to circumvent the boundaries of accepted standards.

However, the Spitzer allegations, if true, suggest a level of greed and complicity the likes of which we haven't seen in some time—perhaps not since the robber barons of the last century. As portrayed in the complaint, these are senior executives in large, reputable financial firms who sanctioned the clear and repeated violations of their own trading policies, written policies established for the protection of the investors who placed their faith—and their savings—with those firms. Their profits, and the profits of those who took advantage of the system, came from the pockets of those who abide by the rules.

These executives deliberately chose to violate their own policies, no doubt comforting themselves with the notion that their actions were "not technically illegal."

Perhaps not, but they were wrong—and we deserve better.

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Nevin Adams
editors@plansponsor.com

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