Even before Fundgate took the industry by storm, critics were calling into question the use of 12b-1 fees. And now regulatory action appears imminent.

Since the summer, the number of closed funds charging investors 12b-1 fees has increased, according to data recently released by Standard & Poor's. As of Dec. 8, S&P listed 605 funds out of a database of 15,000 domestic mutual funds as being closed to new investments. Of those, more than 25%, or 153 funds with a total of 274 share classes, charge an average 12b-1 fee of 0.64%. Ninety-four of those charge 1% of the fund's net assets, the maximum allowed by the SEC.

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