When Management Pushes Managed Accounts

Reposted with permission from RegisteredRep.com's Advisorland, January 1, 2008

Q: I work for a major firm, which constantly pressures us to move our clients' assets into managed wrap accounts. We're being sent subtle, — and not-so-subtle — reminders about why these programs are in our clients' best interest. My manager regularly says large positions in one stock are best liquidated and invested in the firm's managed money program over the long-term. I hate this approach; it's expensive. The performance is nothing great, and I lose a little bit of control over the client relationship. Is this pressure the same at all the majors? How do I avoid this approach without getting myself fired?

A: There's no question the street was revolutionized by the asset manager/fee-in-lieu business model as an alternative to one driven by transactions and commissions.

The rationale behind this new model makes superficial sense. First, the fee-based model annuitizes revenue for the firm and broker, and makes it less susceptible to the markets — more predictable and less dependent on turnover. Second, in theory, it eviscerates incentives for churning (i.e. trading excessively), arguably removing churning as a weapon for plaintiffs' lawyers. And third, at a time when financial products are getting more complex, it's unrealistic to expect a broker to become equally conversant with all segments of the market. By putting the rep in charge of gathering assets, which are then turned over to third-party managers with specialized expertise, a higher level of professionalism (at least in theory) may be achieved.

The fee-in-lieu model has been adopted by virtually all wirehouses, and is now part of a larger strategy to control all the customers' financial affairs from womb to tomb, wedding him or her inextricably to the firm through financial relationships. From the firm's perspective, if it manages the customer's banking, brokerage and insurance needs through fee-based relationships, it becomes more difficult and less advantageous for the customer to sever the relationship with the institution. In essence, he or she becomes the firm's customer, not the broker's. That way, if the broker were to leave the business or join the competition, the firm has a better chance to retain the business for itself.

To specifically address your question, I haven't heard of any firms doing a universal housecleaning of the “dinosaurs,” i.e. those resistant to the new business model. Instead firms are encouraging fee-business in more subtle ways: through reduced-commission payouts or higher charges, and other costs for transactionally-driven advisors and clients. The bottom line is that you should anticipate a continued effort to promote the asset gathering/fee-in-lieu model.

But the lemming-like rush to certain products, such as managed accounts, does not come without risk to the firm or the broker. Alleged instances of “reverse churning” — getting buy-and-hold customers to opt for a managed account on a fee-basis, even though they rarely (if ever) turn over the portfolio, when a commission account would likely be cheaper for this client — are growing. Regulators have opined there's no compelling reason to put buy-and-hold clients into a fee-based program, and firms have been cited for this practice.

Try to walk the line between your style and the firm's. If the customer's needs and interests are being served while creating respectable revenue for you and the firm, you're doing your job well. Not every customer is suitable for a wrap account — or even interested in establishing one. If the situation at your shop becomes intolerable, you may have to find a firm more accommodative of your business mix and practices. They do exist, although they're becoming ever rarer, especially among the wirehouses and bank-owned firms.

Fads and business practices come and go. Maybe the wrap account is a better idea; maybe it's not. Time will tell. The firm is trying to position itself to retain the business, even if you are not there to serve it.


Jonathan M. Harris
Lindquist & Vennum P.L.L.P.
Minneapolis, Minn.
(612) 371-2492
jharris@lindquist.com

Companies Agree To Penalties For Alleged Backdating

Brocade Communications Systems ($7 million) and Mercury Interactive (a whopping $28 million) reached settlements late last week with the SEC over allegations of backdating at the two companies.    

Brocade and Mercury are the first companies to pay civil penalties in the SEC’s monumental backdating investigation -- until now, the SEC had only imposed penalties against individuals. SEC Commissioners were deadlocked for almost a year over whether to impose civil penalties directly against companies. The Brocade/Mercury settlements demonstrate that the SEC is now prepared to pursue civil penalties against companies as well as individuals in backdating cases. SEC Chairman Christopher Cox explained: "This enforcement action clearly demonstrates the SEC will use all the weapons in our arsenal, including significant corporate penalties, to protect investors and combat fraudulent stock option backdating."

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Small Companies Get a Break With Sarbanes-Oxley Amendment

Yesterday the SEC unanimously approved new guidelines for small companies to comply with Section 404 of the Sarbanes-Oxley Act of 2002. The internal controls required by Section 404 are designed to address fraud and financial manipulation, but have been highly criticized for the excessive costs to small companies. The new standards loosen the requirements (and reduce the associated costs) of Section 404 by permitting companies to focus their internal controls on the areas with the greatest risk for fraud. Small companies must begin complying with the new standards by December 15, 2007.  For more information see this article in today's New York Times.

SEC Spans Globe, Uncovers Another Alleged Front-Running Scheme

Spanning the globe to uncover a constant variety of insider-trading schemes, the SEC announced Thursday that U.S. prosecutors had charged a former Credit Suisse investment banker with 25 counts of securitizes fraud for allegedly leaking tips ahead of nine acquisitions to investors who used the tips to profit illegally. The alleged culprit was based in New York. One of the alleged tippees lived in Pakistan. And the SEC received cooperation from, among other regulatory authorities, the Swiss Federal Banking Commission and the Financial Services Authority of the United Kingdom, to piece together phone and brokerage records from across the globe.

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Investors Blast SEC Regarding Proposed Rule Limiting Investments in Hedge Funds

The SEC is currently accepting comments regarding a proposed rule change that would raise the minimum level of wealth required for natural persons to invest in most hedge funds. According to the SEC, the purpose of the rule is to provide an “objective and clear standard” for determining whether a purchaser has sufficient knowledge and financial sophistication to evaluate the merits and bear the economic risk of such an investment. The SEC is concerned that too many unsophisticated investors are risking too much of their money in high-risk, unregulated hedge funds.

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SEC Opens Insider Trading Probe into Alleged Front-Running

The New York Times ran a front page story this week revealing that the SEC has begun a broad examination into whether Wall Street bank employees are providing tips about big trades to favored clients, such as hedge funds, in an effort to gain favor with those clients. 

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"Empty Voting" Catches Regulators' Attention

Reuters recently ran an article examining the practice of “empty voting.” The practice of “empty voting” entails borrowing shares prior to a record date, which then gives the borrower voting rights. Once the record date has passed, the borrower returns the shares and effectively controls a large number of votes without a continuing economic interest in the company.

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Short Sellers Continue to Push the Envelope

Mark Cuban, the co-founder of Broadcast.com and often-outspoken owner of the NBA's Dallas Mavericks, recently launched a controversial new web publication at Sharesleuth.com. The basic object of Sharesleuth.com is to conduct investigations and identify and report on "suspect companies." For the investigation and reporting, Cuban has hired a business reporter named Chris Carey, formerly with the St. Louis-Dispatch. Once identified, Sharesleuth.com says it will "shine a spotlight on questionable companies," and will "name names and show evidence, by linking to documents, photographs, and other information." The controversial part is that Sharesleuth.com has already disclosed that Cuban will make personal investments based upon the information discovered, prior to the publication of the information on the website.

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SEC Rule Requiring Registration of Hedge Fund Advisers Struck Down

A challenge to the SEC's rulemaking authority was recently successful in Goldstein v. Securities and Exchange Comm'n, No. 04-1434 (D.C. Cir. June 23, 2006). http://pacer.cadc.uscourts.gov/docs/common/opinions/200606/04-1434a.pdf.
In that case, the Federal Court of Appeals for the D.C. Circuit vacated the SEC's rule requiring most hedge fund advisers to register with the SEC under the Investment Advisors Act of 1940. The SEC's "hedge fund rule" (Rule 203(b)(3)-2) required most hedge fund advisers to register with the SEC if the funds they advise have fifteen or more shareholders, limited partners or beneficiaries. Prior to this rule, hedge fund managers were often exempt from registration under the Act's "private adviser exemption," which allows advisers with less than fifteen "clients" over the past 12 months to avoid registration, and the SEC had interpreted "client" to refer to the fund entity itself rather than individual investors. Through its hedge fund rule, however, the SEC changed from its prior position by equating "client" with "investor", thereby requiring most all hedge fund managers to register.

In vacating the rule, the Court rejected the SEC's argument that it had authority to impose any susceptible meaning on the term "client" where the term had not been defined in the Advisers Act. The court emphasized that under the Advisers Act and elsewhere, the adviser's duties run to the fund and not to the individual investors. In electing to vacate the rule, the Court determined that the SEC did not adequately explain "how the relationship between hedge fund investors and advisers justifies treating the former as clients of the latter."

The Goldstein decision demonstrates that at least the D.C. Circuit takes seriously the substantive limits on agency rule-making power. It also demonstrates the importance of industry involvement in creating a record at the rulemaking stage. The regulatory road regarding hedge funds, however, will not end here. As demonstrated by the SEC's recent testimony in Senate committee hearings on the regulation of hedge funds, there will be increased efforts to regulate hedge funds and their advisers either through new rulemaking efforts or legislation. http://banking.senate.gov/index.cfm.

SEC Scrutiny of Stock Option Practices Heats Up - Defense Claims Misdating, Not Backdating

As executives of Brocade Communications Systems appeared in court on charges of securities fraud for allegedly backdating stock option grants, Christopher Cox noted that the new stock option grant rules were one of the highlights of his first year as SEC Chairmen. Indeed, Cox noted that at least 80 companies are currently under SEC scrutiny for possible backdating of stock options. And on Thursday, the Cheesecake Factory, Inc. announced that it is one of those companies under scrutiny, while several other companies announced that they had launched internal investigations into their option grant practices.

By contrast, Molex, Inc. announced Wednesday that it had "misdated" stock options for executives going back to 1995, distinguishing this from the fraudulent backdating practice. The Molex options were reportedly issued on incorrect dates, which lead to $685,000 in overpayments to more than 10 executives. However, the company reported that: no one would profit from the incorrect dates; the company would not need to restate its earnings; and, the SEC had been advised.

SEC adopts new executive benefit disclosure policy, widens options backdating probe

The SEC unanimously adopted a new set of regulations on Wednesday that will substantially overhaul its executive benefit disclosure policy. The new regulations, which are scheduled to take effect next year, will require companies to provide additional details of executive pay and perks. For the first time, public companies will be required to furnish tables in annual filings showing the total yearly compensation for their chief executive officers, chief financial officers, and the next three highest-paid executives. The SEC's new regulations are designed to force companies to disclose the true costs to companies' bottom line of their executives' pay packages, including stock options, in plain and understandable terms.

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No Free Lunches

The SEC is investigating forty investments firms located in Florida, California, Arizona, Texas, North Carolina, and Alabama over so-called "free lunch" investment seminars that target senior citizens. Seniors who attend these seminars get a free meal and a hard sell for investments that the SEC believes may range from inappropriate to fraudulent.

The seminars are often promoted as being hosted by other seniors who may be familiar to local people and seem trustworthy. Pitchmen at the seminars promote a wide range of products, suitable and otherwise.

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Overstock.com, Short Sellers Continue Grudge Match

Late last year, Internet retailer Overstock.com, Inc., led by its controversial and often outspoken CEO Patrick Byrne, filed suit against hedge fund manager Rocker Partners and stock-research firm Gradient Analytics. Overstock alleged that Rocker Partners collaborated on disparaging reports with Gradient while Rocker was "shorting" Overstock's shares. In April, the lawsuit was put on hold as Gradient appeals a trial court's refusal to dismiss the case outright on grounds that the lawsuit violates its First Amendment rights.

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The War Against Terrorism Has A New Battlefield

The USA Patriot Act amended the Bank Secrecy Act requiring all financial institutions develop and implement anti-money laundering programs with specific requirements such as a customer identification program. For the first time, the Securities and Exchange Commission has enforced the Act's mandates sanctioning the broker-dealer Crowell Weedon & Co. for failing to document its customer identification program consistent with these record-keeping requirements. For more details check out this SEC Release.

SIA Annual Seminar, Day 2

Today's general session focused on issues that the SEC, NASD and NYSE are collaboratively addressing. Richard Ketchum, chief regulatory officer of the NYSE, stated that two major issues were improving coordination among the organizations and eliminating duplication in investigations and examinations by the SROs. Specifically, Ketchum indicated that the NYSE was working with the NASD to harmonize regulations and divide responsibility. The end result, should everything work according to plan, would be a consistent set of rules that according to Ketchum, would likely ensure greater member compliance.

Panel members reiterated the need for the SROs to eliminate duplication. In addition, panel member Lori Richards of the SEC, summarized ten areas that the SEC would be focusing on in the upcoming year:

  1. sales practices;
  2. supervision;
  3. internal controls;
  4. net capital and customer reserves;
  5. trading;
  6. fixed income;
  7. money laundering;
  8. information security; and
  9. business continuity.

Overall, the tone of today's general session was one of cautious optimism. Panel members acknowledged that member firms and the SROs have made improvements over the past year, but emphasized that there still needs to be greater attention paid to ensuring compliance with the various securities regulations.