At first blush, the numbers are indeed impressive.
According to government figures as of Feb. 28, the Securities and Exchange Commission has brought 25 enforcement actions related to the market timing and late trading scandal and obtained settlements totaling $2 billion. For its part, as of the end of February, the NASD has brought 12 actions related to trading abuses against broker-dealers and levied fines and restitution of more than $6 million.
But in this day, where million-dollar market timing, late trading and shelf space fines are levied like penalty minutes in a hockey game, what exactly is in a number? For the shareholders who were duped, the answer seems to be very little; and for the firm themselves, quite a lot.
"If you pay a fine to the SEC or whoever, that money doesn't do shareholders any good at all," said Tom Westle, a senior partner at the law firm of Blank Rome in New York and a 25-year veteran of the securities industry. "That's just a penalty for having been caught, or supposedly having been caught."
In perhaps the most publicized case of investor restitution, Boston-based Putnam Investments has agreed to repay investors subject to market timing and short-term trading in its funds $108.5 million. According to John Hill, chairman of the trustees of Putnam Investments, $25 million of that money has already been set aside under Putnam's settlements with the SEC and the Massachusetts Securities Division and another $45 million has been sent to the SEC for distribution to shareholders. Distribution of the $108.5 million is scheduled for completion by the end of the summer.
Hill admitted, however, that the sums due individual investors - Putnam sought an Ivy League business professor to calculate the numbers-will pale in comparison to the fines it must pay regulators.
"Although the total amount paid by Putnam under the settlements is substantial, actual losses incurred by individual shareholders are small," Hill wrote in a letter to shareholders last month. "Losses were generally concentrated in international funds, and shareholders in the vast majority of the funds incurred no or only minimal losses."
Hill retiterated in a recent telephone interview that, according to research okayed by the SEC, many investors are owed "just pennies" and they won't be getting a check in the mail. Instead, that money will go back into the funds.
"There are some investors that had larger amounts invested and they'll get a bigger check, but mostly these are very small amounts because the market timing was limited to five funds," he said, adding that the cost of cutting and mailing a check -"$6 or $7"- is much higher than most of the restitution amounts.
Putnam's Board of Trustees will meet this week for a final review of all restitution amounts. He expects a restitution cut-off of somewhere between $5 and $10.
Adam Bold, an advisor and founder of The Mutual Fund Store in Overland Park, Kan., thinks every investor impacted by the scandal is due a check on principle alone, and he said he doesn't need a college professor to calculate the amount.
Bold, who manages $1.1 billion in assets and has been advising clients to sell stakes in any fund that has been rung up for shady activity, said regulators should just determine which trades were done illegally and take all profits generated on those trade dates, plus the amount of money those investments generated in fees, and distribute it as restitution. He's steadfastly against sending a dime of it back into the fund.
"People who own the fund today get the money, and the people who owned it at the time of the illegal activity get nothing. The bottom line is that, whatever the amount is, they're entitled to it," he said.
As an advisor and host of a syndicated radio talk show on mutual funds, Bold said he's learned of other scandal-related phenomenon that have impacted the everyday investor and are much harder to quantify than fines or restitution amounts.
"There's a lot of situations, mostly in bond funds, where there was an abdication of fiduciary responsibility by the broker who sold the fund," Bold said.
In other words, poor performance and bad publicity are keeping brokers from conducting frank discussions with their clients.
"They're afraid to call the client. They're not talking at all," he said.
Or perhaps worst yet, Bold offered, there are brokers who lost their jobs during the scandal or the bear market and their client has been passed on to another office, where the new broker is now hesitant to call on the investor.
"There's a whole universe of abandoned investors out there," he said.
And finally, there are investors who are waiting for the smoke to clear, Bold said. In other words, they're keeping their money in scandal-tainted funds with hopes that they'll be able to recoup their losses from the scandal and the bear market sometime down the road. But investors might be surprised to see who's managing their money these days, he said, citing the shake-up at Denver-based Janus Capital, which is rebounding from a $225 million settlement with the SEC and massive subsequent outflows.
"The question is, with what you have left, is it really in the best place," Bold asked. "If you look at Janus, their problems are compounded by the fact that the people responsible for their days when they were a great fund family and a great performer, people like Tom Marsico and Helen Young Hayes and others, aren't there anymore. People think that when the market comes back their money will come back and that's just not the case, because you have other people making the decisions."
Nancy Van Sant, a director at the Miami law firm of Sacher Zelman Van Sant Paul Beiley Hartman Rolnick & Waldman, argues that figuring restitution isn't as easy as adding up profits associated with improper trading.
"The amount that some wrongdoer might have benefited is not necessarily equivalent to the amount that an investor or an investment vehicle in a particular fund may have lost. They're calculated differently," said Van Sant, a former investigation and enforcement chief in the SEC's southeast region office.
That's what makes the fair fund provisions that were set up at the after the passage of the Sarbannes-Oxley Act so crucial, she said. That allows for equitable and timely distribution of restitution to investors. Officials at the SEC could not estimate how much it has reimbursed investors, although it was reported in late March that it's authorized about $4.5 billion in restitution and distributed about $60 million. High-ranking individuals at the regulator have said that making sure the right amounts get to the right people could "take some time."
Westle also contends that it is impossible to calculate restitution and interprets the fines as a symbolic gesture. He considers fee reductions, like the $165 million cut instituted last month at the Nations and Columbia funds after its parent company, Charlotte, N.C.-based Bank of America, reached its record $675 million settlement with state and federal regulators, a more tangible form of restitution.
"That's a clear savings for the client who elects to stay in the fund. And it's easy for them to figure out. If you go from 1.5% to 1.0% for the next few years, you know you've got a major savings, as long as you keep your assets there," he said.
There are other areas, beyond regulatory fines and restitution, where the fund industry is still paying for its transgressions. Westle cites Alliance Capital, a $539 billion fund group whose leadership ranks were dramatically trimmed after its merger with fund manager Sanford Bernstein. New York-based Alliance Capital reached a $600 million settlement with federal and state regulators two years ago and has instituted a 20% fee cut. More recently, three of its former executives agreed to fines and suspensions.
"They cleaned house," Westle said. "If you look at the money management level, almost every person was replaced with someone from Sanford Bernstein. So you could say it had an even high cost, it cost people their professional lives."
Then there's the former Strong Financial, which settled with regulators for $80 million and agreed to lower its fees by $35 million for charges of improper trading. The firm's founder, Richard Strong, was hit with an additional $60 million and barred from the industry, but Westle speculates that its fund family may have been hit hardest in the marketplace as it bled some $8 billion during the scandal. The funds were up for sale for some time before San Francisco-based Wells Fargo got its more than $30 billion in assets for a reported $500 million up front and $200 million in future installments.
"Therefore, they really hit Mr. Strong in the pocketbook," he said.
And while Putnam's fines and restitution are significant amounts, Hill observed that the bad press didn't do the firm any favors, either.
"There were redemptions, or what we call consequential damages, that occurred after it broke in the press that there had been market timing at Putnam. Those were costly, $45.6 million," he said.
And once all of these factors are added up, Van Sant said, it's the investor that gets hit again.
"Right now, there is a lot of controversy at the Commission over whether these firms should even be paying these fines. I mean, the investor is taking it on the chin twice," she said. "Are you really helping the investor when the firm has to pay a huge civil penalty to the Department of Treasury. That's a key public debate."
http://www.mmexecutive.com
