2003 mutual fund scandal

Last updated

The 2003 mutual fund scandal was the result of the discovery of illegal late trading and market timing practices on the part of certain hedge fund and mutual fund companies.

Contents

Spitzer investigation

On September 3, 2003, New York Attorney General Eliot Spitzer announced the issuance of a complaint against New Jersey hedge fund company Canary Capital Partners LLC, charging that they had engaged in "late trading" in collusion with Bank of America's Nations Funds. Bank of America is charged with permitting Canary to purchase mutual fund shares, after the markets had closed, at the closing price for that day. Spitzer's investigation was initiated after his office received a ten-minute June 2003 phone call from a Wall Street worker alerting them to an instance of the late trading problem.

Canary Capital settled the complaint for US$40 million, while neither admitting nor denying guilt in the matter. Bank of America stated that it would compensate its mutual fund shareholders for losses incurred by way of the illegal transactions.

"Late trading"

In the United States, mutual fund prices are set once daily at 4:00 p.m. Eastern time. "Late trading" occurs when traders are allowed to purchase fund shares after 4:00 p.m. at that day's closing price. Under law, most mutual fund trades received after 4:00 p.m. must be executed at the following day's closing price, but because some orders placed before 4:00 p.m. cannot be executed until after 4:00 p.m., brokers can collude with investors and submit post-4:00 p.m. trades as if they had been placed before 4:00 p.m. In 2003 several mutual fund companies and stock brokerage firms engaged in a trading practice which guaranteed profits for the stock brokerage firm’s insider managers and preferred customers.

To understand how this works, one needs to know how mutual funds shares are priced. Share values for mutual funds are not based upon bids from outside buyers. The price of a fund’s price was set in the evening based upon the value of the securities that it owned at the end of trading day, 4:00 PM Eastern Time. The law prohibited trading of mutual fund shares at any other price so the price set on Monday evening for a fund’s shares was available to anybody all day long on Tuesday until the market closed at 4:00 PM.

Pension funds and hedge funds are faced with unpredictable big inflows of cash on any given day. Their job is to put those funds to work as soon as possible.

Mutual funds were eager to take the money from these pension funds. The mutual fund’s management fees were based upon the amount of money (value of shares) held by the fund. More money held by the mutual fund meant more money at the end of the quarter for the fund’s managers. Pension managers had a legitimate problem with knowing just how much money they had to invest on any given day. There are changes from day to day as beneficiaries took withdrawals or employers made deposits.

An ostensibly harmless practice developed where mutual funds let it be known that they could be flexible about taking purchases at that morning’s price after the closing, even though that was prohibited by their rules. This was a matter of accommodating fund managers and encouraging them to trust that fund with their investment.

People were beginning to realize unanticipated uses for computer technology, in particular people realized they could track what was happening to the value of any mutual fund’s investments as quickly or even quicker than the mutual fund managers could using relatively simple spreadsheet programs. They realized that if permitted to buy after the close they could know what tomorrow’s price would be and provided they sold the shares tomorrow morning that they bought that evening would be guaranteed a profit, a profit that ordinary customers that played by the rules could not get. The trades involved small variances in price but because the buyers were purchasing millions of dollars in mutual fund shares the guaranteed profits for these insiders was significant and secure.

Such trades could be made with information about after-hours market developments in other countries, for example. Traders would buy in at the previous day's close, and sell at the next day's close for a likely profit. This practice hurt long-term buy-and-hold investors in the mutual fund, who experienced a continued drain in the fund's net asset value (or NAV).

Late trading was not a new phenomenon. Prior to 1968, most mutual funds used "backward pricing," in which the fund could be bought at the previous closing price. Thus, traders could purchase mutual funds on a day when the market was up, at the previous day's lower closing price, and then sell at the purchase date's closing price for a guaranteed profit. [1] To prevent the exploitation of backward pricing, the SEC issued Rule 22c-1, [2] requiring forward pricing of mutual fund transactions. This rule was enforced by randomly checking timestamps on orders, but intentional falsification of timestamps was difficult to catch. [3] In addition, New York's Martin Act can be interpreted to prohibit late trading as well, due to the unfair advantage the late trader gains over other traders.

"Market timing"

Spitzer and later the U.S. Securities and Exchange Commission (SEC) also charged that major mutual fund groups such as Janus, Bank One's One Group, and Strong Capital Management and others facilitated "market timing" trading for favored clients.

Market timing is an investment strategy in which an investor tries to profit from short-term market cycles by trading into and out of market sectors as they heat up and cool off. In a novel interpretation of New York's Martin Act, Spitzer contended that fund firms committed fraud when they allowed some clients to trade more frequently than allowed in their fund documents and prospectus.

In many cases, funds bar or limit frequent trading because the practice may increase the cost of administering a mutual fund borne by all shareholders in the fund. Market timers also can make managing the fund more difficult since the fund may need to keep extra cash to meet liquidity demands of selling timers, although if timers are trading opposite flows of other investors, they can moderate cash fluctuations. Those funds that did not limit frequent trading in their prospectus—as well as a small number of funds that cater specifically to market timers—were not charged.

Spitzer contended that some advisors allowed market timers in order to increase their assets under management (fund advisors are paid based on the amount of assets in the fund).

SEC investigation

The SEC is charged with the regulation of the mutual fund industry in the United States. Following the announcement of Spitzer's complaint, the SEC launched its own investigation of the matter which revealed the practice of "front running". The SEC claimed that certain mutual fund companies alerted favored customers or partners when one or more of a company's funds planned to buy or sell a large stock position. The partner was then in a position to trade shares of the stock in advance of the fund's trading. Since mutual funds tend to hold large positions in specific stocks, any large selling or buying by the fund often impacts the value of the stock, from which the partner could stand to benefit. According to the SEC, the practice of front-running may constitute insider trading.

By early November, investigations led to the resignation of the chairmen of Strong Mutual Funds and Putnam Investments, both major mutual fund companies. In the case of Strong, the chairman Richard Strong was charged with market-timing trading involving his own company's funds. In December, Invesco (market-timing) and Prudential Securities (widespread late trading) were added to the list of implicated fund companies.

Settlements and trials

Nearly all of the fund firms charged by Spitzer with allowing market timing or late trading had settled with his office and the SEC between mid-2004 and mid-2005.

One exception was J. W. Seligman, which chose in September 2005 to sue Spitzer in Federal court after their talks with Spitzer broke down. Seligman argued in its suit that Spitzer had overstepped his authority by attempting to oversee how Seligman's funds set their advisory fee and that the regulatory oversight of fees is left by Congress to the SEC. Separately, in August 2005 Spitzer lost the only trial arising from his investigations when a jury could not reach a verdict on all counts in a case brought against Theodore Sihpol, III, a broker with Bank of America who introduced Canary Capital to the bank. Though Spitzer threatened to retry Sihpol, he did not do so. In September 2005 Spitzer's office reached a plea bargain in a case brought against three executives charged with fraud for financing Canary and assisting its improper trading in mutual funds. That case against two Security Trust executives and one banker had appeared to be Spitzer's strongest, and the settlement seemed to reflect Spitzer's weakening hand in the wake of his defeat in the Sihpol case. The United States Second Circuit reversed the District Court In United States Security Commission v O`Malley on 19 May 2014 finding there was no consistent rule prohibiting Traders from engaging in market timing and therefore there was no requirement to disgorge profits made thereunder. This appeal related to a Rule 50 motion to dismiss on basis there was no credible evidence to leave to the jury as to breaching any duty of care and the Appeals Court Upheld same.

List of implicated fund companies

Timeline

Related Research Articles

A mutual fund is an investment fund that pools money from many investors to purchase securities. The term is typically used in the United States, Canada, and India, while similar structures across the globe include the SICAV in Europe, and the open-ended investment company (OEIC) in the UK.

In financial services, a broker-dealer is a natural person, company or other organization that engages in the business of trading securities for its own account or on behalf of its customers. Broker-dealers are at the heart of the securities and derivatives trading process.

<span class="mw-page-title-main">Fidelity Investments</span> American multinational financial services corporation

Fidelity Investments, commonly referred to as Fidelity, earlier as Fidelity Management & Research or FMR, is an American multinational financial services corporation based in Boston, Massachusetts. The company was established in 1946 and is one of the largest asset managers in the world with $4.3 trillion in assets under management, and, as of December 2022, their assets under administration amount to $10.3 trillion. Fidelity Investments operates a brokerage firm, manages a large family of mutual funds, provides fund distribution and investment advice, retirement services, index funds, wealth management, securities execution and clearance, asset custody, and life insurance.

An exchange-traded fund (ETF) is a type of investment fund that is also an exchange-traded product, i.e., it is traded on stock exchanges. ETFs own financial assets such as stocks, bonds, currencies, debts, futures contracts, and/or commodities such as gold bars. The list of assets that each ETF owns, as well as their weightings, is posted on the website of the issuer daily, or quarterly in the case of active non-transparent ETFs. Many ETFs provide some level of diversification compared to owning an individual stock.

Putnam Investments is an investment management firm founded in 1937 by George Putnam, who established one of the first balanced mutual funds, The George Putnam Fund of Boston.

Value Line, Inc. is an independent investment research and financial publishing firm based in New York City, New York, United States, founded in 1931 by Arnold Bernhard. Value Line is best known for publishing The Value Line Investment Survey, a stock analysis newsletter that tracks approximately 1,700 publicly traded stocks.

Front running, also known as tailgating, is the practice of entering into an equity (stock) trade, option, futures contract, derivative, or security-based swap to capitalize on advance, nonpublic knowledge of a large ("block") pending transaction that will influence the price of the underlying security. In essence, it means the practice of engaging in a personal or proprietary securities transaction in advance of a transaction in the same security for a client's account. Front running is considered a form of market manipulation in many markets. Cases typically involve individual brokers or brokerage firms trading stock in and out of undisclosed, unmonitored accounts of relatives or confederates. Institutional and individual investors may also commit a front running violation when they are privy to inside information. A front running firm either buys for its own account before filling customer buy orders that drive up the price, or sells for its own account before filling customer sell orders that drive down the price. Front running is prohibited since the front-runner profits come from nonpublic information, at the expense of its own customers, the block trade, or the public market.

<span class="mw-page-title-main">Ameriprise Financial</span> Financial services company

Ameriprise Financial, Inc. is a diversified financial services company and bank holding company incorporated in Delaware and headquartered in Minneapolis, Minnesota. It provides financial planning products and services, including wealth management, asset management, insurance, annuities, and estate planning.

<span class="mw-page-title-main">Auction rate security</span> Debt instrument with a long-term nominal maturity with a regularly reset interest rate

An auction rate security (ARS) typically refers to a debt instrument with a long-term nominal maturity for which the interest rate is regularly reset through a Dutch auction. Since February 2008, most such auctions have failed, and the auction market has been largely frozen. In late 2008, investment banks that had marketed and distributed auction rate securities agreed to repurchase most of them at par.

The Securities Fraud Deterrence and Investor Restitution Act was H.R. 2179 (2003-2004) and is a bill currently on the Union Calendar.

<span class="mw-page-title-main">Evergreen Investments</span> American investment fund

Evergreen Investments was the investment management business of Wachovia. The brand was merged into Wells Fargo Advantage Funds and subsequently phased out following Wells Fargo's acquisition of Wachovia. The brand was officially retired on July 20, 2010.

Gary Pilgrim is a retired investment manager and a founding partner of Pilgrim, Baxter, Hoyt & Greig, later known as Pilgrim Baxter & Associates. He is best known for his management of the PBHG Growth Fund, one of the most popular growth-style mutual funds of the mid- to late-1990s,and the market-timing scandal associated with that firm's downfall.

<span class="mw-page-title-main">Madoff investment scandal</span> Investment scandal discovered in 2008

The Madoff investment scandal was a major case of stock and securities fraud discovered in late 2008. In December of that year, Bernie Madoff, the former Nasdaq chairman and founder of the Wall Street firm Bernard L. Madoff Investment Securities LLC, admitted that the wealth management arm of his business was an elaborate multi-billion-dollar Ponzi scheme.

Merrill, previously branded Merrill Lynch, is an American investment management and wealth management division of Bank of America. Along with BofA Securities, the investment banking arm, both firms engage in prime brokerage and broker-dealer activities. The firm is headquartered in New York City, and once occupied the entire 34 stories of 250 Vesey Street, part of the Brookfield Place complex in Manhattan. Merrill employs over 14,000 financial advisors and manages $2.8 trillion in client assets. The company also operates Merrill Edge, a division for investment and related services, including call center counsultancy.

International Investment Group (IIG) is an American financial institution that specializes in short-term trade finance and commercial finance with a focus on emerging markets. Through its affiliate IIG Capital it provides financing to small and medium-sized merchants, traders and processors with a need for supply chain financing.

<span class="mw-page-title-main">Banc De Binary</span> Israeli financial firm


Banc De Binary was an Israeli financial firm with a history of regulatory issues on three continents. On January 9, 2017, the company announced that it would be closing due to negative press coverage and its tarnished reputation. The firm also surrendered its brokerage license with the Cyprus Securities and Exchange Commission (CySEC) removing its ability to legally trade in the European Union. Its 2014 revenues were reported as $100 million.

<span class="mw-page-title-main">Securities market participants (United States)</span>

Securities market participants in the United States include corporations and governments issuing securities, persons and corporations buying and selling a security, the broker-dealers and exchanges which facilitate such trading, banks which safe keep assets, and regulators who monitor the markets' activities. Investors buy and sell through broker-dealers and have their assets retained by either their executing broker-dealer, a custodian bank or a prime broker. These transactions take place in the environment of equity and equity options exchanges, regulated by the U.S. Securities and Exchange Commission (SEC), or derivative exchanges, regulated by the Commodity Futures Trading Commission (CFTC). For transactions involving stocks and bonds, transfer agents assure that the ownership in each transaction is properly assigned to and held on behalf of each investor.

<span class="mw-page-title-main">CI Financial</span> Largest investment management firm by assets under management in Canada

CI Financial is the largest investment management firm by assets under management in Canada. Based in Toronto, Ontario, it offers investment management and wealth management services targeted to high net worth retail investors, as well as brokerage and trading services to portfolio managers and institutional investors. It is considered one of the Big Three investment management companies in Canada, along with Mackenzie Investments and Fiera Capital.

References

  1. Klausner, Robert D. "Fiduciary Issues Arising from the Current Crisis in Mutual Fund Investments". Klausner, Kaufman, Jensen, & Levinson.
  2. Securities and Exchange Commission (1968). "Pricing of Redeemable Securities for Distribution, Redemption and Repurchase and Time-Stamping of Orders by Dealers" (PDF).
  3. Smeltzer, Karl C. (2004). Memories from early days of the Securities and Exchange Commission. Washington, DC: Securities and Exchange Commission Historical Society.
  4. "Image repair: Mutual funds still recovering 10 years after scandal". September 20, 2013.
  5. McCabe, Patrick E. (June 2009). "The Economics of the Mutual Fund Trading Scandal" (PDF). Washington, D.C.: Federal Reserve Board.
  6. Morgenson, Gretchen; Jr, Landon Thomas (September 18, 2003). "CORPORATE CONDUCT: THE OVERVIEW; CHAIRMAN QUITS STOCK EXCHANGE IN FUROR OVER PAY". The New York Times. ISSN   0362-4331 . Retrieved May 2, 2023.
  7. "Putnam Investment Management LLC: Admin. Proc. Rel. No. IA-2185 / October 28, 2003". www.sec.gov. Retrieved October 31, 2016.
  8. "Justin M. Scott and Omid Kamshad: Lit. Rel. No. 18428 / October 28, 2003". www.sec.gov. Retrieved October 31, 2016.
  9. Labaton, Stephen (December 3, 2003). "S.E.C. Proposes Strict Rule to End Late Mutual Fund Trading". The New York Times. ISSN   0362-4331 . Retrieved May 2, 2023.
  10. Labaton, Stephen (December 4, 2003). "S.E.C. Proposes Rules to End Late Trading In Mutual Funds". The New York Times. ISSN   0362-4331 . Retrieved May 2, 2023.
  11. "SunGard Creating Redemption Fee Rule Service".

Articles