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Targeting Mutual Funds
In last month's article, we pointed out that successful enforcement efforts against investment banks have emboldened state and federal authorities to target mutual funds – a fact that has been borne out in the national press over the past few weeks. More precisely, the funds' investment advisers are the targets. We believe regulators' inquiries will most likely examine two general categories, fund administration and marketing. Last month's article discussed fund administration; the following concentrates on trade allocations, and advertising and marketing.
Trade Allocations
Trade allocation issues arise when funds conduct bunched trades. For example, an adviser might conduct trades that benefit more than one fund and intentionally delay apportioning the shares. This delay allows the adviser to allocate trades to favored funds based upon subsequent market movements (this scheme is commonly called “cherry picking”). A fund may also manipulate the pricing of bunched trades by allocating the shares without using the average price paid, thereby allotting a more favorable price to favored funds. Compliance advisers should educate fund managers to these risks, and ensure that fund managers have a truthful, ethical, coherent explanation for their trade allocations that is consistent with the documents. Managers should have this explanation in mind before they allocate trades, not grasp for one after the fact, once the subpoena has arrived.
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