text:
Compensation Practices for Retail Sales of Mutual Funds SUSAN S. KRAWCZYK SUSAN S. KRAWCZYK uring 2003, compensation practices sales compensation practices primarily as it is a partner at Sutherland, Asbill & Brennan LLP in Washington, DC. firstname.lastname@example.com D for the retail sale of mutual funds came under fire. To a considerable extent, revelations at the end of 2002 about failures in the processing of mutual fund breakpoints triggered a more in-depth affects a broker-dealer selling mutual funds in the retail market ("selling firm") and its sales representatives.6 Compensation arrangements for other broker-dealers who may be involved, such as those serving as principal underwriters investigation into mutual fund marketing and or distributors for funds or third party whole- compensation practice by securities regulators, salers, or for funds distributed on a direct mar- Congress, and the states.1 By year end, several keting basis (sometimes referred to as "no-load"), enforcement actions had been announced,2 and are discussed only peripherally. proposals for reform of certain compensation Compensation practices for retail mutual practices had been announced or published by fund sales have evolved through the years, the SEC3 and NASD,4 and introduced in along with the development of the "multi- Congress.5 As we begin 2004, mutual fund dis- class" structure now commonly employed by tributors and sellers face considerable uncer- many mutual funds.7 Prior to the 1980s, com- tainty over the continued permissibility of pensation arrangements for fund sales were compensation practices and arrangements uti- funded primarily by front-end sales charges lized in the past. This article discusses the reg- on mutual fund purchases, with the selling ulatory framework for these practices and firm receiving a dealer concession or real- arrangements, briefly noting recent enforce- lowance derived from the front-end sales ment actions and reform initiatives announced charge.8 By the late 1990s, compensation through February 2004. arrangements for mutual fund sales generally entailed a "package" of different compensa- OVERVIEW OF tion items, including a dealer concession, COMPENSATION PRACTICES ongoing payments made under a Rule 12b-1 plan9 or other servicing plan, and so-called Compensation arrangements in the con- "revenue sharing" arrangements pursuant to text of retail sales of mutual funds involve three which fund service providers, such as invest- types of arrangements: those between fund ment advisers, distributors, and other fund ser- complexes and the firms selling the funds (the vice agents, paid additional amounts to a selling "selling firms"), those between firms and their firm out of their own revenues. The package own sales personnel, and those between fund also may have included cash contributions and complexes and sales personnel of their selling other cash and non-cash assistance to the selling firms. This article focuses on the regulation of firm for its internal marketing and educational SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 27 programs. In addition, selling firms may have been paid advisers and transfer agents, all of which are required to bonus amounts and ongoing payments, calculated as a be registered with the SEC.13 The SEC and NASD share percentage of assets that remained invested in the share- jurisdiction over firms involved in the distribution of fund holder accounts opened as a result of the selling firm's shares as principal underwriters or wholesalers, and in the efforts. In some cases, the additional payments may have retail sale of fund shares, as selling firms. Such firms are been tied to a fund complex's designation as a "preferred required to be registered as broker-dealers with the SEC fund" under a "preferred partner program" maintained by and, as such, must comply with the disclosure and record- the selling firm, and as such have been referred to collo- keeping rules adopted or enforced by the SEC for regis- quially as "shelf-space payments."10 Also, some funds and tered broker-dealers. They also must be admitted as fund service providers may have funded their additional member firms of the NASD, and as member firms must payments through commissions on fund portfolio trades comply with the NASD's conduct and sales practice rules. directed to selling firms by the executing firm, a practice sometimes referred to as "step-outs."11 USE OF NON-CASH COMPENSATION IN Compensation arrangements for sales representatives CONNECTION WITH MUTUAL FUND SALES also have evolved through the years. In recent years, many selling firms have offered cash and non-cash incentives to The use of non-cash compensation in connection their sales representatives to encourage fund sales and have with mutual fund sales is strictly regulated by the NASD's provided or made available training and education oppor- non-cash compensation rules ("non-cash rules"), included tunities. Some selling firms have adopted compensation in its conduct rules governing member activity in invest- "grids" that effectively provide compensation incentives ment company securities.14 The non-cash rules address the for sales representatives to market "preferred partner" funds use of non-cash compensation in arrangements between over those funds not on the preferred list by allowing a mutual fund distributors and selling firms, as well as between higher portion (i.e., "payout ratio") of the "gross dealer selling firms and their sales representatives.15 In addition, concession" received by the firm for partnered funds than the non-cash rules also address the receipt of non-cash for non-partnered funds. In addition, sales representatives compensation by sales representatives from "offerors." at selling firms maintaining preferred partner programs Who Is an Offeror? For purposes of the non-cash often could expect to receive marketing support from pre- rules, an "offeror" includes an investment company, adviser ferred fund wholesalers, which support could be in the to an investment company, fund administrator, underwriter, form of financial and other assistance with client meetings and any affiliated person of such entities.16 Thus, non-cash and promotional mailings. Further, under some "preferred items provided by a fund adviser, underwriter, or its affil- partner" programs, the preferred funds or their service iated transfer agent would be subject to the non-cash rules. providers may have absorbed the "ticket charges" the sales Limits on Non-Cash Compensation. The non-cash representatives otherwise would be required to pay to rules prohibit a member from receiving any non-cash com- submit purchase orders for shares of preferred funds.12 pensation from an offeror, except as explicitly permitted by The following sections discuss the regulatory frame- the rules. The non-cash rules permit a selling firm to receive work for three key compensation practices: 1) the use of payments or reimbursements from an offeror for the selling non-cash compensation in connection with mutual fund firm's expenses in connection with provision of training sales; 2) marketing and compensation arrangements pro- and education by the selling firm to its sales representatives, viding enhanced compensation to a selling firm as well so long as certain conditions are met.17 In addition, a selling as to its sales representatives for the promotion of certain firm can receive contributions from an offeror to a non-cash fund securities over others, such as preferred funds over incentive program provided by the selling firm for its sales non-preferred funds, proprietary funds over non-propri- representatives so long as the selling firm's program com- etary funds, and Class B shares over Class A shares; and plies with applicable conditions for non-cash incentive pro- 3) the use of commissions for mutual fund portfolio trades grams and the offeror does not participate in the organization as an additional source of selling compensation for selling of the program.18 The non-cash rules prohibit sales repre- firms (a practice sometimes referred to as "directed bro- sentatives from receiving non-cash items from their selling kerage"). Responsibility for the regulatory framework is firms or offerors in connection with the sale or distribution shared by the SEC and the NASD. The SEC has exclu- of mutual funds except as explicitly permitted by the rules.19 sive jurisdiction over mutual funds and their investment As discussed below, these exceptions allow them to receive 28 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 or benefit from certain small items, occasional meals and tives for those persons involved in point-of-sale activities. entertainment, and certain training and education meet- This focus led some to question whether the rules were ings, whether sponsored by their selling firms or offerors. intended to be limited to such persons.28 In a notice issued However, non-cash items received as incentive awards can in 1999 shortly after the effective date of the non-cash be provided only under programs organized by their firm rules, the NASD confirmed that the non-cash rules apply and must meet certain strict conditions. to officers and managers of member firms if they receive, What Is Non-Cash Compensation? The non-cash directly or indirectly, compensation in connection with rules define the term as any form of compensation received the sale and distribution of mutual funds, even though in connection with the sale and distribution of mutual they may not be involved in "point-of-sale" activities. In funds that is not cash compensation, including but not other words, the non-cash rules are not limited to those limited to merchandise, gifts and prizes, travel expenses, registered persons functioning as "sales representatives," meals, and lodging.20 Informally, NASD staff has indi- and apply to all persons associated with a member firm. cated that a cash payment "earmarked" for a particular Applying the same reasoning, the NASD also affirmed expense, such as travel expenses, should be treated as non- that the non-cash rules apply to firms providing whole- cash compensation. Also, an arrangement offering a choice saling services.29 between cash and a non-cash item would be treated as Items Outside the Rules. In interpretive guidance, non-cash even if a registered person elects to receive cash the NASD has clarified that certain non-cash items are not in lieu of the non-cash item. subject to the non-cash rules' proscriptions or conditions. Development of Non-Cash Rules. The current non- For example, the NASD has explained that, if the non- cash rules were adopted in 1998 and became effective cash compensation is in the form of a promotional item, January 1, 1999, after a more than 10-year effort to develop i.e., merchandise sporting the offeror's logo, and has a rules on par with those added to other NASD rules.21 nominal value, such as a polo shirt or golf balls, the item The current non-cash rules replaced similar rules that had would not be subject to the non-cash compensation pro- been in place since the early 1980s and continue many of visions, presumably because the item would not be con- the policy concerns articulated at other times.22 In justi- sidered to be in connection with the sale or distribution fying the approach and structure of the non-cash rules as of investment company securities.30 Also, the NASD has adopted in 1998, the NASD explained that its objective indicated that gifts of a personal nature, such as a wed- was to eliminate "point-of-sale" incentives that can create ding gift, would not be subject to the rules.31 The NASD conflicts of interest.23 also has explained that the provision of business develop- The current non-cash rules are substantially iden- ment and education enhancement items by an offeror to tical to non-cash compensation provisions contained in sales representatives would be permitted, so long as the NASD rules governing the sale of variable contracts,24 provision of the items is not preconditioned on the direct participation programs,25 and corporate financings,26 achievement of a sales target.32 In addition, the NASD reflecting a policy determination that non-cash compen- has explained that an offeror could reimburse a sales rep- sation given in connection with public offerings should resentative for the costs of a "prospecting trip" so long as be regulated on the same basis.27 the payment is made through the member and the record- What Triggers the Rules? The threshold consider- keeping requirements of the non-cash rules are satisfied.33 ation is whether the non-cash compensation is in con- This guidance appears to be perceived by some firms as nection with the sale or distribution of mutual funds. The allowing offerors and their representatives to attend, pay NASD has not provided much guidance for determining for, or reimburse the costs of "client appreciation" din- whether compensation is "in connection with the sale or ners with customers of sales representatives at selling firms. distribution" of a security. However, as a matter of prac- Exceptions for Permissible Non-Cash Compensation. tice, there apparently is a presumption that non-cash com- The non-cash rules effectively permit a member or asso- pensation provided by an offeror is "in connection with" ciated person to receive non-cash compensation in cir- the sale and distribution if the only relationship or point cumstances specified in four "exceptions." The exceptions, of contact between the offeror and the recipient relates discussed below, differentiate between incentive and non- to mutual fund sale and distribution. incentive based compensation. Who Is Subject to the Rules? The rulemaking his- Non-Incentive Small Gifts, Meals, and Entertainment. tory for the non-cash rules has focused primarily on incen- The exceptions allow associated persons to receive small SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 29 gifts (up to an annual amount per person set by the NASD) may not be conditioned on achieving a sales target, the occasional meals or entertainment from their member NASD has explained that a member can designate invi- firms as well as offerors provided certain substantive con- tees to "recognize past performance or encourage future ditions are satisfied. Whether given by the member firm performance."38 The NASD has not further clarified the or an offeror, the item may not be preconditioned on extent to which an offeror could use past sales produc- achievement of a sales target, and in the case of meals and tion as a criterion for selecting attendees without causing entertainment, they may not be so frequent or extensive the selection to be preconditioned upon achievement of as to raise any question of propriety.34 The NASD has a sales target. explained that holiday parties sponsored by an offeror Location of a training and education meeting also ordinarily would be treated as entertainment or gifts and can raise interpretive issues. The training and education therefore would need to comply with the "entertain- exception explains that an appropriate location is "an ment" exception of the non-cash rules.35 office of the offeror or the member, or a facility located Non-Incentive Training and Education Meetings. The in the vicinity of such office, or a regional location with non-cash compensation exceptions allow associated per- respect to regional meetings."39 The NASD has explained sons to receive compensation in the form of meals, lodging, that regional locations may be used where "attendees are and transportation in connection with attending training from a number of offices in a region of the country."40 and education meetings, provided that certain conditions Where multiple offerors contribute to a meeting, pre- are met. In particular: 1) the associated persons must obtain sumably any one of their offices could serve as a quali- their member firm's approval prior to attending the fying local area for a meeting. meeting; 2) in granting approval, the member firm may Finally, through interpretive guidance, the NASD not precondition attendance on the achievement of a sales has set content and conduct standards for training and edu- target or any other incentives pursuant to an permissible cation meetings qualifying for the exception. In particular, non-cash compensation arrangement; 3) the location must the NASD has indicated that it interprets the exception as be appropriate for the purpose of the meeting; 4) the pay- applying to an event that is "first and foremost intended to ment or reimbursement of expenses by an offeror must provide training or education to an associated person," and not be applied to the expenses of any guest of an associ- as such should "occupy substantially all of the work day."41 ated person attending the meeting; and 5) payment or Thus, while payment or reimbursement for any associated reimbursement by the offeror may not be preconditioned meals, lodging, and transportation would be permissible, by the offeror on the achievement of a sales target or any the exception would not allow for payment or reimburse- permitted non-cash compensation arrangement. On its ment for entertainment, such as golf outings or tours, held face, the rule would appear to prohibit an offeror from in conjunction with a training or education meeting.42 In reimbursing attendees directly for their travel expenses. In a letter sent to member firms, the NASD clarified that interpretive guidance, the NASD general counsel's office offerors may organize golf outings, tours, or other forms has clarified that an offeror can directly reimburse atten- of entertainment in conjunction with a training or educa- dees for their personal travel expenses so long as the record- tion meeting, but the offeror may not pay for or reimburse keeping conditions of the rule are met.36 Significantly, not the costs of these events.43 all of the conditions apply to a training and education Incentive Non-Cash Compensation Programs. The non- meeting sponsored by a member firm for its own associ- cash exceptions allow an associated person to receive com- ated persons. For example, the NASD has explained that pensation under an incentive non-cash compensation a member firm could reimburse its associated persons for arrangement only if the arrangement is sponsored by the expenses of guests attending a training and education his/her member firm (or an affiliate), the non-cash com- meeting but that an offeror could not.37 pensation is based on the total sales production of associ- The basis for selecting attendees for a training and ated persons with respect to all fund securities distributed education meeting is a critical condition. Basing the selec- by the member, and credit given for each sale is equally tion on mutual fund sales production requirements will weighted.44 In other words, the manner in which credit disqualify the event as a training and education event, is given for each sale cannot result in more credit given even if the content, location, and conduct of the meeting to a proprietary fund sale than a non-proprietary fund otherwise satisfy the conditions for the training and edu- sale. During the rulemaking history for the non-cash rules, cation exception. However, while attendance at a meeting the NASD articulated a concern with compensation 30 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 incentives operating at point-of-sale. In the NASD's view, the compensation, the amount of cash, the nature and, if the total production and equal weighting requirements known, the value of non-cash compensation received. The would serve to limit the impact of non-cash sales incen- non-cash rules do not specify any particular supervision or tives at point-of-sale.45 The NASD has indicated a little compliance requirements, such as mandating principal flexibility with the total production requirement to the review and approval of non-cash compensation arrange- extent that a deviation from the requirement still would ments. The SEC's recordkeeping rules for broker-dealers be consistent with the policies and purpose of the rule and also require that registered broker-dealers maintain com- would serve some other compliance objective. For pensation records for associated persons.52 These records example, the NASD has not objected to a program under are required to include a description of any non-monetary which no production credit would be given for sales compensation received by associated persons. The SEC has resulting from exchanges of one variable contract for clarified that non-monetary items of "little value" do not another.46 need to be recorded under these requirements.53 The NASD has indicated that a non-cash compen- Recent Enforcement Actions. During 2003, the sation arrangement could combine mutual fund produc- NASD took administrative action against two member tion with variable insurance contract production.47 firms for failure to comply with rules governing the use (Variable contracts are subject to similar non-cash rules.)48 of non-cash compensation. One action concerned enter- Further, the NASD has indicated that member firms can tainment provided in connection with a training and edu- combine various product lines subject to the non-cash cation meeting for a real estate investment trust ("REIT").54 rules with other products and transactions in an incentive Although the action did not involve mutual funds, the program, so long as the elements of the program appli- action concerned other provisions of NASD rules iden- cable to those securities subject to non-cash rules meet tical to the non-cash rules and, for that reason, is instruc- the total production and equal weighting requirements. tive for mutual fund non-cash arrangements. In that action, For example, the NASD has confirmed that a broker- the NASD claimed that the training and educational meet- dealer could include fixed insurance products, which are ings hosted by the REIT sponsor failed to comply with not subject to NASD regulation, in an incentive program the relevant conditions because the sponsor provided enter- and the NASD's total production and equal weighting tainment in conjunction with the meeting, paid for requirements would not apply to the fixed insurance prod- expenses associated with the guests of sales representatives ucts.49 However, separate contests for proprietary vari- attending the meeting, and provided less than 13 hours of able contracts sponsored by an affiliate of a member firm, training over a three-day period.55 The other action con- such as an insurer would not be permissible, nor would cerned internal non-cash sales contests sponsored for sales separate contests for IRA, Roth IRA, and non-IRA prod- representatives of a selling firm for sales of certain mutual ucts.50 On the other hand, a non-cash compensation funds and variable contracts.56 In that action, the NASD arrangement could be limited to a specific division of a asserted that the selling firm's incentive programs awarding firm, such as the institutional sales division, so long as the non-cash items did not satisfy the incentive exception of arrangement was based on the entire universe of products the non-cash rules because sales production amounts used that the division was authorized to sell and otherwise to determine awards were not based on total fund and complied with the non-cash rules.51 variable contract sales. The NASD also asserted that the There are no explicit restrictions or limits on the selling firm did not maintain supervisory and compliance types or dollar value of non-cash compensation awarded policies, procedures, and surveillance programs to prevent under a permissible non-cash incentive compensation and detect violations of the non-cash rules.57 arrangement. Thus the same rules apply whether the non- cash compensation is an all-expense-paid trip to a resort ENHANCED COMPENSATION ARRANGEMENTS or a valuable piece of merchandise. Recordkeeping and Supervision Requirements. The As noted above, mutual fund compensation practices non-cash rules require a member firm to maintain records have entailed enhanced compensation for the promotion of all compensation (cash and non-cash compensation) of certain fund securities over others, such as preferred received by the member firm or its associated persons from partner funds over non-preferred partner funds, propri- offerors. These records are required to include the names etary funds over non-proprietary funds, and Class B shares of the offerors, the names of the associated persons receiving over Class A shares. Recent scrutiny has focused on dis- SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 31 closure requirements for enhanced compensation arrange- prospectus that must be given to all purchasers, a state- ments. The following paragraphs discuss disclosure con- ment of additional information ("SAI") that must be made siderations in connection with 1) preferred partner available to purchasers upon request, and supplemental programs, 2) differential compensation arrangements for information included in "Part C" of the registration state- sales representatives, and 3) B share sales. The common ment that is available from the SEC. The form requires theme with all three practices is the management of con- disclosure about sales compensation in all three parts. As flicts of interest created by differentials in compensation. a practical matter, NASD rules also impose prospectus disclosure requirements in the case of cash compensation Payments for Preferred Partner Programs arrangements. These requirements arise from NASD rule provisions prohibiting a member firm from receiving any Disclosure Requirements and Practices. It has long cash compensation from an offeror (such as a fund or fund been recognized that the antifraud provisions of the fed- distributor) unless the compensation is described in the eral securities laws call for disclosure to customers of com- prospectus.66 The same rule provisions also prohibit a pensation received by broker-dealers in effecting member firm from participating in "special cash com- transactions for their accounts.58 Indeed, the SEC rule pensation" arrangements, not made available on the same (the "confirmation rule") mandating the delivery by a basis to all member firms distributing the fund shares, broker-dealer of a transaction disclosure document—more unless the name of the member receiving the special com- commonly known as a confirmation—is codified as Rule pensation and the details of the arrangements are disclosed 10b-10 under Section 10(b) of the 1934 Act, that act's in the prospectus.67 The NASD has indicated that this antifraud provision.59 The confirmation rule requires dis- disclosure can appear in a fund's SAI rather than in the closure to a broker-dealer's customers of, among other prospectus.68 Taking into account the disclosure require- things, compensation received or earned by the broker- ments set forth in Form N-1A and inferred from NASD dealer in connection with effecting a transaction.60 This rules, the compensation disclosure requirements can be disclosure requirement applies to remuneration received summarized as follows: from third parties as well as from customers.61 In the SEC's view, third party remuneration "presents a potential for • Sales Load Disclosure. The form requires disclosure abuse since there is a prima facie problem in representing in the fund's prospectus of sales loads, including fairly the rights of parties having conflicting interests."62 deferred sales loads, applied to purchases of a fund's In adopting the confirmation rule, the SEC reserved shares.69 Information is required to be presented in authority to exempt a broker-dealer from the confirmation the fee table, as well as in a separate table showing rule with regard to specific transactions or classes of trans- sales loads only. The form also requires the prospectus actions for which the broker-dealer provided alternative to explain how the sales loads are calculated and procedures to effect the purposes of the rule.63 Pursuant when they are imposed.70 The prospectus also must to this authority, the SEC staff in 1979 issued a letter (the disclose any arrangements resulting in breakpoints "1979 letter") to the Investment Company Institute, a trade in, or elimination of, sales loads, such as letters of association for the investment company industry, giving intent, accumulation plans, dividend reinvestment no-action assurance for the use of confirmations for mutual plans, withdrawal plans, exchange privileges, fund transactions that omitted information about remu- employee benefit plans and redemption reinvest- neration received by the selling firm provided that the ment plans.71 prospectus for the mutual funds contained disclosure of sales charges, breakpoints, and maximum dealer discounts.64 • Distribution and Service Fee Disclosure. The form In granting the relief, the staff relied on a 1977 SEC release requires the prospectus to include the amount of which had explicitly acknowledged that, if information distribution and/or service (12b-1) fees in the fee about the source and amount of third-party remuneration table.72 The fee table also must include under an was disclosed in a prospectus, then the confirmation for appropriate caption or subcaption of "other expenses," the transaction did not have to repeat the information.65 the amount of any distribution or similar expenses The registration statement form currently used to deducted from fund assets other than pursuant to a register shares of mutual funds is Form N-1A. This form Rule 12b-1 plan. The form also requires the contemplates three parts to the registration statement: a prospectus to provide narrative information about 32 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 any Rule 12b-1 plan adopted by the fund, including As noted above, this disclosure can appear in the disclosure that the fund has adopted a plan allowing prospectus or SAI. the fund to pay distribution fees for the sale and dis- tribution of its shares and that, because these fees • Underwriting Commissions. The form requires dis- are paid out of fund assets on an ongoing basis, over closure in a fund's SAI of the aggregate dollar amount time these fees will increase the cost of an investment of underwriting commissions paid and the amount and may cost more than paying other types of retained by the principal underwriter for each of charges.73 If the 12b-1 plan covers service fees, as the preceding three fiscal years.82 It also requires defined in NASD rules, the disclosure can be revised information in the SAI concerning net underwriting accordingly.74 The form also requires disclosure in discounts and commissions received during the pre- the SAI concerning the 12b-1 plan, noting its mate- ceding fiscal year, presented in a table.83 rial aspects and any agreements relating to the imple- mentation of the plan. This disclosure is to provide • Compensation on Redemptions and Repurchases. The a list of the principal types of activities for which pay- form requires disclosure in Part C of the fund's reg- ments are or will be made, including the dollar istration statement of compensation on redemptions amount and the manner in which amounts paid by and repurchases, brokerage commissions, and other the fund under the plan during the prior fiscal year compensation received by each principal underwriter were spent on advertising, printing, and mailing of who is not an affiliated person of the fund, or an affil- prospectuses to persons other than current share- iate of an affiliated person of the fund during the holders; compensation to underwriters; compensa- preceding fiscal year.84 tion to broker-dealers; compensation to sales personnel; and interest, carrying, or other financing • Brokerage Commissions. The form requires disclosure charges.75 This disclosure must also indicate whether in a fund's SAI if a fund will consider the receipt of the plan reimburses the distributor only for expenses products or services other than brokerage or research incurred or compensates the distributor regardless of services in selecting brokers.85 The form requires its expenses.76 It also must disclose the amount of any disclosure in Part C of a fund's registration state- unreimbursed expenses incurred under the plan in ment of brokerage commissions and other com- a prior year and carried over to future years, in dol- pensation received by each principal underwriter lars and as a percentage of fund net assets of the last who is not an affiliated person of the fund, or an day of the preceding year.77 The form requires dis- affiliate of an affiliated person of the fund during closure of the anticipated benefits to the fund that the preceding fiscal year.86 may result from the plan.78 Finally, the form requires additional disclosure if the fund participates in any • Other Compensation. The form requires disclosure joint distribution activities or if interested persons in the SAI of any other payments made during the or directors of the fund have an financial interest in preceding year to underwriters and dealers, showing the operation of the plan or related agreements.79 for each, the name and address, the amount paid, the basis for determining the amount, the circumstances • Dealer Reallowance. The form requires disclosure in surrounding the payments, and the consideration a fund's SAI of the portion of the front-end sales received by the fund.87 load reallowed to dealers ("dealer reallowance") as a percentage of the offering price of the fund's shares.80 Although there appear to be no documented studies of confirmation practices, anecdotal information suggests • Special Cash Compensation Arrangements. NASD rules that most selling firms have relied on prospectus and SAI effectively require disclosure of any special cash com- disclosure to satisfy their confirmation rule disclosure obli- pensation arrangement that is not made available on gations with regard to the compensation they receive for the same terms to all members who distribute the mutual fund sales. In other words, confirmations for their mutual fund's securities. This disclosure must provide mutual fund sales appear not to have disclosed compen- the name of the member participating in the special sation received by selling firms, whether with regard to cash arrangement and the details of the arrangement.81 dealer concessions or other fees or compensation received. SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 33 Reliance on prospectus disclosure to satisfy the con- marketing advantages provided through the programs."96 firmation rule's compensation disclosure obligations has The SEC asserted that these omissions constituted viola- come under scrutiny more than once. In 1994, the director tions not only of the confirmation rule, but also of Sec- of the SEC division responsible for broker-dealer regula- tion 17(a)(2) of the 1933 Act, which prohibits any person tion sent a letter to the Investment Company Institute from obtaining money or property by means of an untrue stating the division's view that commissions for invest- statement of a material fact or any omission to state a mate- ment company transactions should be disclosed on con- rial fact necessary in order to make the statements made, firmations and announcing its intent to withdraw the in light of the circumstances under which they were made, 1979 letter.88 The SEC staff, however, took no further not misleading.97 As part of the settlement, the selling firm action to withdraw the letter, and later explained that the agreed to an undertaking to provide customers purchasing staff was persuaded by the investment company industry mutual funds a disclosure statement concerning compen- at the time that prospectus disclosure provided more accu- sation received by the firm and its sales representatives in rate information.89 connection with the sale of mutual fund securities under In 1997, several class-action lawsuits were filed against its preferred partner program.98 a number of broker-dealers, alleging that the defendant Recent Rulemaking Initiatives. In September 2003, broker-dealers committed securities fraud by failing to dis- the NASD requested comment on a proposal to require close 1) their receipt of 12b-1 fees from money market point-of-sale disclosure by selling firms of revenue sharing funds in which they invested their customers' money, 2) arrangements, in which a mutual fund adviser or offeror their receipt of revenue sharing payments from the funds' agrees to pay cash compensation not otherwise disclosed investment advisers, and 3) the conflicts of interest engen- in the prospectus fee table, such as "shelf-space" payments.99 dered thereby.90 At issue was the sufficiency of the In January 2004, the SEC proposed the adoption of two prospectus and SAI disclosure of compensation received new rules under the 1934 Act that would mandate a point- by the broker-dealers. When the lower court dismissed of-sale compensation disclosure document, as well as a the actions, the plaintiffs appealed to the circuit court, new confirmation document, for mutual fund sales.100 The which requested the SEC to submit an amicus brief. The SEC's proposed rules would require broker-dealers to pro- SEC complied with the court's request, submitting a brief vide certain specified disclosures to customers at "point generally endorsing the practice of relying on prospectus of sale" on a form document titled a "Schedule 15D." The disclosure.91 The court deferred to the SEC's analysis, particular disclosures would differ depending on whether ruling in 2000 that no confirmation rule violation oc- the particular fund security being offered at point of sale curred.92 Nonetheless, the court expressed some skepticism offered a front-end load or back-end load. In general, the "that the disclosures in the prospectuses and [statements schedule would show the sales load, expressed as a dollar of additional information], i.e., general statements that amount in relation to the proposed investment amount payments were made by the funds and their advisers to or, if not known, a hypothetical $10,000 investment; the broker-dealers for their assistance, would actually alert an portion of the load to be received by the selling firm; an investor that his broker-dealer received such payments." 93 estimate of any asset-based distribution or services fees to In an apparent reversal of position, the SEC took be received by the selling firm from the fund during the enforcement action in late 2003 against a selling firm, first year; and an indication of whether the selling firm claiming that customary fund prospectus and SAI disclo- receives revenue sharing payments or portfolio brokerage sure was insufficient to satisfy the selling firm's obligations commissions, and whether it pays higher compensation to disclose the compensation it received from its "preferred (i.e., differential compensation) to its sales representatives partner" funds.94 In the SEC's view, the fund prospectuses for proprietary securities or for securities with a back-end and SAIs, while containing some disclosures concerning load.101 The companion confirmation document under payments to their selling firms, did not adequately disclose the SEC's proposed rules would provide similar informa- this particular selling firm's preferred partner program as tion, as well as numerical estimates for revenue sharing such, nor did they provide "sufficient facts about the pro- and portfolio brokerage commission payments. In addition, grams for investors to appreciate the dimension of the con- the confirmation document would be required to show flicts of interest inherent in them."95 The SEC cited the what each payment represents as a percentage of the invest- omission of information about the extra payments made ment, along with the industry norms (such as range and "for enhanced sales and marketing [and] . . . the various medium) for such compensation.102 34 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 Differential Compensation for proprietary and non-proprietary products within for Sales Representatives the same product family and for principal and agency transactions; As discussed above, a practice some selling firms • Paying for client assets in an account, regardless of employ is paying their sales representatives higher cash account activity; compensation for sales of proprietary and "partnered • "No contest" policies and/or permitting contests funds." This practice is sometimes referred to as "differ- based only on broad measures; ential compensation." Differential cash compensation is not • Paying only regular and not enhanced commissions prohibited currently under applicable rules and regula- to transferring registered persons; tions, but it has been identified as a practice that creates • Deferring a portion of registered person compen- conflicts of interest triggering considerations under sation for several years, and linkage of payment to antifraud standards and supervisory requirements.103 a clean compliance record; Tully Committee and Tully Report. Current views on • Using stock option or stock purchase plans in overall differential compensation can be traced back to a report compensation programs; issued in April 1995 (the "Tully Report"), by a committee • Eliminating of up-front bonuses; formed by Arthur Levitt, then Chairman of the SEC, and • Paying up-front bonuses in the form of forgivable headed by Daniel Tully, then chairman of the board of Mer- loans over a period of five years; and rill Lynch (hence, the name, the "Tully Committee").104 • Linking registered person compensation to customer The Tully Committee was given three mandates: 1) to review satisfaction.107 industry compensation practices for sales representatives and branch managers; 2) to identify actual and perceived con- The Tully Report also expressed the view that flicts of interest for both sales representatives and managers; investor knowledge of compensation practices "may lead and 3) to identify the "best practices" used in the industry to better decision-making by clients."108 to eliminate, reduce, or mitigate these conflicts. Among Regulator Response to the Tully Report. The SEC did other things, the Tully Committee was directed to consider not take immediate action to adopt any of the "best prac- contests and incentives that stimulate sales of particular or pro- tices" recommended by the report, relying instead upon prietary products or undisclosed bonuses for sales represen- public pressure to encourage firms to adopt the practices tatives who change firms. Chairman Levitt announced the voluntarily. In finalizing its non-cash rules, discussed above, formation of the Tully Committee shortly after the issuance the NASD incorporated the Tully Report's recommen- of the Rogue Broker Report.105 dation to prohibit differential compensation in the criteria The Tully Report primarily focused on the com- for incentive non-cash compensation programs.109 How- mission-based compensation system, which the com- ever, while the NASD has sought comment on a number mittee criticized as one that "inevitably leads to conflicts of proposals, discussed below, that would implement the of interest among the parties involved."106 However the report's recommendations for differential cash compensa- report recognized that the system was "too deeply rooted tion, the NASD too has not yet adopted any rules regu- to accommodate radical alteration in the near-term." lating differential cash compensation.110 Nonetheless, it Instead, the report advocated adopting practices that best appears that the Tully Committee's list of practices that align the interests of the investor, the firm, and the reg- do not "align" the interests of investor, firm, and registered istered person. Using this principle as its benchmark, the person generally are viewed by securities regulators as committee applied it to a number of industry compen- practices calling for enhanced scrutiny under a selling firm's sation practices, including commission versus fee-based supervisory and compliance program. For example, during compensation models, sales contests, differential com- a call-in "online suitability workshop" in 2001,111 two pensation, undisclosed bonuses, and higher commission NASD assistant general counsels made the following obser- payouts paid to transferring registered persons. The report vation in a question-and-answer dialogue: identified what the Tully Committee viewed as "best practices" with regard to compensation arrangements that [Question:] [F]rom a practical standpoint, is a rec- would prevent or minimize "conflicts of interest." In par- ommended transaction viewed differently if the ticular, the report offered the following: broker had extra incentive to recommend the secu- • Paying identical commissions to registered persons rity in question? SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 35 [Answer:] . . . A broker, for instance, may earn Even though the NASD abandoned the rule change higher-than-usual commissions, gifts, or prizes for prohibiting incentive cash differential compensation in selling securities that the firm is promoting or in 1996, it continued to focus on the issues created by dif- which the firm has a large inventory. These types ferential arrangements. In August 1997, the NASD again of incentives are not prohibited by the NASD's requested comment on various compensation practices, rules, but as a practical matter they are often scru- including differential compensation practices.114 In partic- tinized because they compromise the suitability ular, it requested comment on the best means of regulating rule's essential requirement that the broker match such practices. In this regard, the NASD outlined several the customer's investment needs with the most different approaches, ranging from mandatory disclosure appropriate investment product. In short, these of all cash compensation arrangements, substantive require- types of incentives raise red flags for regulators. ments such as limiting or prohibiting payments of differ- ential compensation, or a policy recognition that arrangements This dialogue suggests that, under current sales prac- creating conflicts of interest are "fundamentally a sales- tice rules for member firms, selling firms should ensure practice issue."115 With regard to differential compensation, that they have in place appropriate supervisory controls the NASD suggested an approach of prohibiting differen- and mechanisms to ensure that compensation incentives tial compensation for sales representatives with regard to dif- do not result in inappropriate securities transactions. ferent share classes in the same fund.116 NASD Proposals to Regulate Incentive and Differ- Two years later, in October 1999, the NASD ential Compensation. After the issuance of the Tully solicited comment on a rule proposal that would have Report, the NASD initiated a number of efforts to imple- prohibited the payment of differential cash compensation ment the report's recommendations relating to differen- as between proprietary and non-proprietary mutual funds, tial compensation, particularly in regard to mutual funds "single security sales contests," and accelerated payouts.117 and variable contracts. In the mutual fund context, the In proposing the rule, the NASD cited the Tully Report's term "differential compensation" has been used primarily conclusions that differential compensation arrangements to refer to the practice of offering sales representatives a "can create conflicts of interest by encouraging represen- higher percentage of a selling firm's gross dealer conces- tatives to recommend proprietary products to maximize sion ("GDC") for the sale of proprietary funds than for their commissions, rather than to best meet their cus- the sale of the same dollar amount of comparable non- tomers' needs." The NASD also specifically requested proprietary funds.112 The first attempt by the NASD to comment on whether it should adopt a rule requiring regulate differential compensation appeared in an SEC oral or written disclosure of the difference in compensa- release in July 1996, publishing for public comment an tion as an alternative to prohibiting the practice. In this NASD proposed rule change that would have prohibited regard, the NASD observed that: cash incentive compensation arrangements for investment company securities and variable contract sales unless they [such an] approach would be consistent with the complied with total production and equal weighting NASD's long-standing practice of not substantively requirements. 113 This rule change was part of the NASD regulating internal compensation arrangements of non-cash compensation rulemaking initiative resulting in member firms and their registered representatives the non-cash rules discussed above. This proposal did not and instead permitting investors to evaluate whether directly prohibit differential compensation per se, but would a registered representative's particular product rec- have prohibited the use of differential compensation in ommendation was influenced by such arrangements. the context of cash incentive arrangements. The rule filing was never approved by the SEC: the SEC received many The notice solicited comment on the mechanisms critical comment letters on the published rule filing, par- for giving, and documenting the giving, of such disclo- ticularly in regard to the cash incentive compensation sure. No further action was taken by the NASD in provisions, and requested the NASD to reconsider the response to industry comments on this notice. rule filing in light of the comments received. The final ver- Recent Proposals. As noted above, in 2003, the sion of the non-cash rules adopted by the NASD in 1998 NASD requested comment on a proposal to require point- limited the prohibition on differential compensation to of-sale disclosure by selling firms in connection with non-cash incentive compensation arrangements. mutual fund sales.118 Among other things, the NASD's 36 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 proposed point-of-sale disclosure document required by an investment company for personal service and/or information about differential cash compensation pay- the maintenance of shareholder accounts.127 NASD rules ments, pursuant to which registered persons receive higher impose a 25 basis point cap on service fees; any asset- payouts for the sale of certain investment company prod- based fees in excess of 25 basis points for service must be ucts, such as the member's proprietary funds. In this regard, treated as a sales charge.128 NASD rule limits on sales the NASD explained that the disclosure should cover charges envision a reduction in sales charges for rights of arrangements in which a registered person would not accumulation and quantity discounts ("breakpoints") in have to pay a ticket charge for a proprietary fund trans- the case of shares offered without an asset-based sales action, but would be required to do so for a nonpropri- charge.129 NASD rule limits on sales charges for invest- etary fund transaction. Also as noted above, in January ment company shares with asset-based sales charges do 2004, the SEC proposed its own version of a point-of- not envision any reduction in sales charges for rights of sale disclosure document, along with a new confirmation accumulation or quantity discounts.130 rule for mutual fund transactions that would require dis- Since typically only those shares labeled "Class A" closure of sales representative differential compensation have been offered without an asset-based sales charge, break- arrangements, among other things.119 point discounts historically have been offered only with "A" shares. Class shares typically labeled Class "B" or Class Compensation for B Share Sales "C" ordinarily bear an asset-based sales charge that does not subject them to NASD sales charge limits imposing a break- When first introduced, mutual funds had a simple point or other volume discounts on their sales charges. pricing structure for sales compensation: sales compen- Because of this difference, over time, sales expenses asso- sation was financed through a front-end sales charge ciated with large purchases of Class B shares can be expected deducted from purchase payments before investment in to be higher than those associated with the same purchase the fund. During the 1980s the mutual fund industry of Class A shares.131 More importantly, the sales commis- developed alternate ways of pricing sales charges and sions received by selling firms and shared with sales repre- financing sales compensation. For example, the fund sentatives are likely to be higher on a commensurate scale. industry introduced the practice of deferring the deduc- Thus, compensation for Class B shares presents essentially tion of a sales charge until redemption of the shares the same issue as the preferred payment and differential ("deferred" or "back-end" charge), rather than at the compensation arrangements discussed above. front-end.120 The industry also made use of 12b-1 plans, Regulator Concern and Enforcement Actions. During allowed since the adoption of Rule 12b-1 in 1980, for the the early 2000s, the securities regulators expressed con- financing of sales compensation through the deduction cern about the higher cumulative sales charge expenses of asset-based charges.121 Other innovations included the associated with large purchases of B shares compared to hub-and-spoke structure and multi-class structure, both the reduced front-end sales charge applicable to the same of which effectively allowed funds to offer different pur- size purchase of A shares, due to the effect of breakpoints.132 chase options to investors.122 Both the SEC and NASD have published investor bro- In the late 1980s, the NASD took steps to address chures, and the SEC installed an interactive tool on its web- compensation arrangements that had evolved in con- site to assist investors in calculating mutual fund costs.133 junction with the proliferation of mutual fund purchase Both regulators have brought a number of enforcement options.123 In 1992, the NASD amended its rules to estab- actions in recent years against selling firms and their sales lish new limits, which remain in effect today, for the dif- representatives, alleging violations of various rules in con- ferent sales charge structures that had been introduced.124 nection with sales of Class B shares. SEC actions generally The sales charge limits differentiate among three types of have been based on violations of Rule 10b-5,134 whereas investment company charge structures: investment com- NASD actions generally have been based on its suitability panies without an "asset-based sales charge," investment rule.135 In 2003, the SEC announced the settlement of an companies with an "asset-based sales charge," and funds enforcement action against a selling firm relating to the of funds.125 For purposes of these limits, NASD rules selling firm's sales of Class B shares. In that action, the SEC define the term "asset-based sales charge" as a sales charge claimed that the differential in sales compensation between deducted from the net assets of a fund, not including a ser- B shares and A shares in the case of large purchases, resulting vice fee.126 "Service fee" in turn is defined as a payment from the absence of breakpoints on B shares, created a con- SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 37 flict of interest that should have been disclosed to avoid a shares. The rule also prohibited members acting as prin- violation of Section 17(a)(2) of the 1933 Act.136 cipal underwriters from participating or influencing the Recent SEC Rulemaking Initiatives and Industry fund in considering sales of fund shares as a qualifying or Developments. The SEC has published several proposals to disqualifying factor in the selection of a firm to execute address disclosure issues associated with Class B shares. In a transaction for the fund's portfolio.145 The Anti-Recip- December 2003, the SEC proposed amendments to the rocal Rule was adopted at the behest of the SEC, which Form N-1A registration statement to require enhanced dis- had requested the NASD to direct its members to dis- closure of breakpoint opportunities.137 The proposed amend- continue the use of reciprocal portfolio brokerage for the ments would require a mutual fund prospectus to include sale of fund shares.146 disclosure concerning any arrangements resulting in break- In 1980, reflecting a seismic change in SEC views, points in sales charges and to provide a brief summary of the SEC adopted Rule 12b-1 under the 1940 Act.147 Rule shareholder eligibility requirements.138 The SEC's proposed 12b-1, for the first time, permitted a mutual fund to bear point-of-sale and confirmation disclosure documents for expenses associated with the distribution of its shares, pro- mutual funds, discussed above, would include disclosure vided that the rule's conditions were met. Rule 12b-1 and information about Class B shares and the potentially contemplates the adoption of a plan by the fund's board higher sales costs associated with their purchase.139 Press of directors for the financing of any activity primarily reports in January 2004 suggested that several fund com- intended to result in the sale of shares issued by the com- plexes had taken steps to reduce their ceilings on share- pany.148 Rule 12b-1 thus provided a vehicle for the per- holder investments in Class B shares to $100,000.140 Finally, missible use of fund assets, such as portfolio trade the SEC's proposed ban on directed brokerage arrange- commissions, to finance distribution expenses. ments, discussed below, also appears to call for reconsider- The shift in SEC views called into question the ation of the NASD sales charge limits, a call which if NASD's Anti-Reciprocal Rule. The NASD then com- pursued, could have significant consequences for the pricing menced an undertaking to revise its Anti-Reciprocal Rule and design of Class B shares.141 to accommodate distribution practices permitted under Rule 12b-1.149 In 1981, the Anti-Reciprocal Rule's pro- DIRECTED BROKERAGE ARRANGEMENTS hibitions were relaxed in the case of funds following a disclosed policy of considering sales of their shares as a The third compensation practice mentioned above factor in the selection of broker-dealers to execute port- is "directed brokerage," i.e., the use of brokerage com- folio transactions, subject to best execution.150 In approving missions on fund portfolio trades as a form of sales com- this rule change, the SEC referenced Rule 12b-1 which pensation. Through the years, one of the more controversial had been adopted in 1980, noting that, since Rule 12b-1 compensation practices for mutual fund sales has been the allowed funds to bear expenses associated with the dis- allocation of mutual fund portfolio brokerage commis- tribution of their shares, it then is "not inappropriate for sions to selling firms. Under these allocation arrange- [funds] to seek to promote the sale of their shares through ments, a selling firm may receive additional compensation the placement of brokerage without the incurring of any through the commissions received for executing portfolio additional expense."151 trade orders placed by the funds with the selling firm, or Since the 1981 amendments, the Anti-Reciprocal from a portion of the commission on the execution of Rule has prohibited member firms from engaging in a the order by another broker-dealer firm instructed by the number of identified practices, including: fund portfolio manager to "step out" a portion of the commission to the designated selling firm.142 While • favoring or disfavoring the sale or distribution of directed brokerage arrangements raise issues under a investment company shares on the basis of brokerage number of regulatory provisions, the following paragraphs commissions; focus on the NASD's "Anti-Reciprocal Rule."143 • demanding, requiring, or soliciting a promise for In 1973, the NASD adopted the so-called "Anti- brokerage commissions as a condition to the sale or Reciprocal Rule," originally as an interpretation.144 As distribution of investment company shares; first adopted, the Anti-Reciprocal Rule prohibited • offering or promising another member brokerage member firms from seeking orders for the execution of commissions from any source as a condition to the fund portfolio trades on the basis of their sales of fund sale or distribution of shares of an investment company; 38 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 • requesting or arranging for the direction to a member Reciprocal Rule, emphasizing that the 1981 rule change firm of a specific amount or percentage of broker- was not intended to result in an extensive alteration in age commissions conditioned upon that member's the regulatory framework. The guidance emphasized that sales or promise of sales of an investment company's the rule continued to prohibit a number of practices, securities; whether or not disclosed, such as conditioning the sale of • circulating any information regarding the amount or fund shares on the payment of brokerage commissions; level of brokerage commissions received by the directing a specific amount or percentage of brokerage member firm from any investment company or cov- commissions on the basis of sales or promises of sales of ered account to anyone other than management fund shares; or allowing registered representatives, branch personnel who are required to have access to the managers, or other sales personnel to share in fund bro- information in the overall management of the firm's kerage commissions on the basis of sales of fund shares.154 business; The guidance also offered several examples of practices • sponsoring a campaign or sales effort financed by prohibited by the Anti-Reciprocal Rule, such as a request, brokerage commissions.152 offer, or agreement for the placement of portfolio trades to finance part or all of a selling firm's sales contest or for In addition, with regard to arrangements that a selling the fund to be placed on a selling firm's preferred list.155 firm may offer its sales personnel and branch managers, the From time to time after 1984, brokerage allocation Anti-Reciprocal Rule prohibits a member firm from: practices have sparked scrutiny.156 For example, questions have arisen concerning the treatment of brokerage alloca- • providing any incentive or additional compensation tion practices under Section 17(e)(1) of the 1940 Act.157 In for the sale of shares of specific investment compa- early 2003, reports surfaced of an SEC initiative to issue guid- nies based on the amount of brokerage commissions ance clarifying that, for any arrangement involving the direc- received or expected from any source, including invest- tion of a portion of a fund's portfolio trade commissions to ment company or covered accounts; a non-executing firm as compensation for its sales of fund • identifying specific investment companies to sales shares, such arrangement had to be conducted under a Rule personnel as "recommended," selected," or "pre- 12b-1 plan.158 However, industry practices appeared rela- ferred," on the basis of brokerage commissions; tively unchanged until an NASD administrative action against • sharing with them brokerage commissions from a selling firm in November 2003 for violation of the Anti- investment company portfolio transactions; and Reciprocal Rule. That action focused on the firm's practice • using investment company sales as a factor in nego- of accepting a portion of brokerage commissions earned by tiating the price of, or amount of brokerage com- an affiliate on trades placed for a fund as a means of satisfying missions to be paid on, a portfolio transaction for an a promise by the fund's service providers to make additional investment company, whether the transaction is exe- cash payments to the selling firm for distribution.159 The cuted in the over-the-counter market or elsewhere.153 consent in settlement of the action indicated that the NASD viewed the firm's practices as a violation of the Anti-Recip- Importantly, the rule clarifies that its prohibitions rocal Rule's prohibitions on favoring the sale of an investment are not intended to prohibit the execution of portfolio company's securities on the basis of brokerage commissions, transactions by member firms who sell the investment arranging for the direction of a specific amount of brokerage company's securities, or from selling shares of an invest- commissions conditioned upon the firm's sale of investment ment company that follows a disclosed policy of consid- company securities, and providing incentives to sales per- ering investment company sales as a factor in the selection sonnel for the sale of investment company securities based of broker-dealers to execute portfolio transactions, sub- on brokerage commissions received.160 ject to best execution, or from compensating sales per- Proposed Ban on Directed Brokerage Arrangements. sonnel and managers based on total sales of investment The NASD's administrative action in 2003 appeared to company securities attributable to such persons, provided have a chilling effect on the industry. In December 2003, that the compensation is not designed to favor or disfavor the Investment Company Institute petitioned the SEC to sales of shares of particular investment companies on a adopt rules prohibiting directed brokerage arrangements.161 basis prohibited by the Anti-Reciprocal Rule. Press reports started to surface that fund complexes had In 1984, the NASD issued guidance on the Anti- decided to discontinue directed brokerage arrangements.162 SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 39 As this article was being finalized, press reports suggested fund portfolio transactions in exchange for the promotion that additional regulatory investigations were underway. of fund shares. [FN 167] The rule filing also proposed to In February 2004, the SEC issued a release proposing an eliminate the exception, added in 1981, that permits a amendment to Rule 12b-1 that would have the effect of member to sell shares of a fund following a disclosed policy prohibiting funds from using brokerage commissions to of considering fund sales as a factor for the selection of pay for distribution. In particular, the proposed amend- broker-dealers to execute portfolio transactions.167 ment would prohibit "step-out" and similar arrange- ments.163 The release refers back to the adoption of Rule CONCLUSION 12b-1 in 1980 and related amendment to the Anti-Recip- rocal Rule, noting that the changes approved at the time In addition to the rulemaking reforms discussed were "based on a view that merely factoring sales efforts above, several bills were introduced in Congress during into the selection of brokers, consistent with the invest- 2003 and 2004 relating to mutual fund sales, most of ment adviser's fiduciary duties to the fund, was essentially which included provisions that would prohibit or regu- benign." The release then observes that: late revenue sharing, shelf-space payments, and directed brokerage arrangements. At the time this article was final- [The SEC's] review of current practices . . . sug- ized, it was too soon to predict the likely structure and gests that many arrangements that direct brokerage scope of the final reforms. Nonetheless, it appears likely to reward selling brokers for distribution consti- that compensation arrangements, regulatory requirements, tute more than mere allocation of brokerage, and and disclosure practices for mutual fund sales will change are not consistent with our 1981 rationale for in the near future. approving the exception to the NASD's Anti- Reciprocal Rule. The use of multiple broker- ENDNOTES dealers for execution, step-outs, and other arrangements . . . explicitly [quantifies] the value The author gratefully acknowledges the assistance of Alex of the distribution component of fund brokerage Nagy in the preparation of this article. 1 commission and belie the notion that fund advisers See NASD Notice to Members 02-85, NASD Requires Immediate Member Firm Action Regarding Mutual Fund Purchases and are merely 'considering' the selling efforts of the Breakpoint Schedules (December 2002), reporting that recent exam- broker(s) involved.164 inations had uncovered instances in which investors were not charged correct sales loads. The notice directed member firms to The release points out the various conflicts created conduct an immediate review of the adequacy of their policies by the practice, observing that the SEC believes "that the and procedures to ensure that they were designed and imple- way brokerage has been used to pay for distribution involves mented so that investors were charged the correct sales loads on unmanageable conflicts of interest that may harm funds mutual fund transactions. This notice led to an industry-wide and fund shareholders."165 In order to ensure that the ban review of breakpoint compliance practices, as well as Congres- sional hearings on the matter. The Securities and Exchange Com- is enforced, the SEC's proposal also would require funds mission (the "SEC"), NASD, Inc. ("NASD"), and New York that use a selling firm to execute portfolio trades to adopt, Stock Exchange ("NYSE") submitted a joint report to Congress and the fund's board (including independent directors) to in March 2003. See SEC, NASD, NYSE Release Findings of Break- approve, policies and procedures reasonably designed to point Examination Sweep; Broker-Dealers To Review Transactions, prevent the persons who select executing firms from taking SEC Press Release, March 11, 2003, available on links at into account their distribution efforts and to prevent the http://www.sec.gov/news/press/2003-31.htm. By the summer fund, its adviser, or its principal underwriter from entering of 2003, states had announced investigations into mutual fund into any agreement under which the fund is expected to marketing and compensation practices. See, e.g., Galvin, Spitzer direct brokerage commissions for distribution.166 Announce Joint Inquiry Into Sale of Mutual Funds by Morgan Stanley (July 14, 2003) (press release available on links at http://www.state. Finally, in February 2004, the NASD submitted a ma.us/sec/sct/sctms/msidx.htm). rule filing to the SEC, proposing an amendment to its Anti- 2 See, e.g., NASD Fines Morgan Stanley $2 Million for Pro- Reciprocal Rule to prohibit a member firm from selling hibited Mutual Fund Sales Contests, NASD News Release, fund shares if the member knows or has reason to know September 16, 2003, available on links at http://www.nasdr. that the fund or certain of its affiliates have entered into an com/news/pr2003/release_03_039.html; NASD Charges Morgan arrangement or understanding, written or oral, to direct Stanley with Giving Preferential Treatment to Certain Mutual Funds 40 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 in Exchange for Brokerage Commission Payments, November 17, 14 See NASD Conduct Rule 2830. 2003, NASD News Release, available on links at http:// 15 The non-cash rules also address the use of cash com- www.nasdr.com/news/pr2003/release_03_051.html; and SEC pensation. See paragraph (l) (1) and (l)(4) of NASD Conduct Charges Morgan Stanley with Inadequate Disclosure in Mutual Fund Rule 2830. Sales, SEC Press Releases, November 17, 2003, available on 16 See paragraph (b)(1)(E) of NASD Conduct Rule 2830. links at http://www.sec.gov/news/press/2003-159.htm. The definition references the definition of "affiliated person" 3 The term "SEC" refers to the Securities and Exchange provided by Section 2(a)(3) of the 1940 Act. Commission. 17 See paragraph (l)(5)(C) of NASD Conduct Rule 2830. 4 The term "NASD" refers to NASD, Inc., a self-regu- 18 See paragraph (l)(5)(E) of NASD Conduct Rule 2830. latory organization for broker-dealers registered with the SEC 19 See paragraph (l) of NASD Conduct Rule 2830. under the Securities Exchange Act of 1934, as amended (the 20 See paragraph (b)(1)(D) of NASD Conduct Rule 2830. "1934 Act"). 21 Effective January 1, 1989, provisions similar to the non- 5 See, e.g., S. 1822, the Mutual Fund Transparency Act cash rules were added to the NASD's Corporate Financing of 2003 (108th Cong. 2003); S. 2059, the Mutual Fund Reform Rule, currently codified as NASD Conduct Rule 2710, and also Act of 2004 (108th Cong. 2004); S. 1971, the Mutual Fund the NASD's Direct Participation Program Rule, currently cod- Investor Confidence Restoration Act of 2003 (108th Cong. ified as NASD Conduct Rule 2810. See NASD Notice to 2003); and H.R. 2420, the Mutual Funds Integrity and Fee Members 88-88, Amendment to Section 34 of the NASD Rules Transparency Act (108th Cong. 2003). of Fair Practice re: Prohibition on Non-Cash Sales Incentives in Public 6 In this article, the term "sales representative" is used to Offerings Effective January 1, 1989 (1988). The NASD's first refer to an individual associated with a registered broker-dealer request for comment on rules that evolved into the non-cash admitted as an NASD member firm and registered with NASD rules for mutual fund sales appeared in NASD Notice to Mem- as a representative or principal of that NASD member firm. bers 88-17, Request for Comments on Proposed Amendments to 7 Rule 18f-3 under the Investment Company Act of 1940 NASD Rules of Fair Practice to Prohibit Non-Cash Compensation (the "1940 Act") sets forth conditions for a multi-class structure. in Connection With Sales of Investment Company and Variable Con- 8 Payments to selling firms are generally funded through tract Products (March 1988). the "sales load" deducted from gross payments in the case of 22 See NASD Notice to Members 81-8 (March 10, 1981), front-end loads. If the shares sold are subject to a back-end load announcing the implementation of new rules governing the dis- or a spread load, the payments generally are made by the fund tribution of investment company securities. The rules so adopted distributor or other service provider, and are funded over time included provisions permitting non-cash compensation only if through asset-based charges deducted from fund assets. disclosed in the fund prospectus and only if a selling firm has an 9 As a general matter, the 1940 Act prohibits a mutual fund option to receive a cash equivalent. These new rules also included from bearing the expenses of distributing and marketing its shares the codification of the NASD's "special deals" rule and revisions to the public. Rule 12b-1, adopted under the 1940 Act in 1980, to its "anti-reciprocal" rule discussed later in this article. permits a mutual fund to pay for such expenses under a plan that 23 See NASD Notice to Members 98-75, SEC Approves is adopted by the fund's board of directors in accordance with spec- Rule Change Relating to Non-Cash Compensation for Mutual Funds ified review and approval requirements and meets the substan- and Variable Products (Sept. 1998). tive conditions of the rule. See also discussion at n. 123 below. 24 See NASD Conduct Rule 2820(g). 10 Practices involving shelf-space payments are discussed in 25 See NASD Conduct Rule 2810. an SEC release proposing a new confirmation rule for mutual 26 See NASD Conduct Rule 2710. Non-cash rules were fund transactions. See Proposed Rule: Confirmation Requirements added to NASD Conduct Rules 2710 and 2810 effective Jan- and Point of Sale Disclosure Requirements for Transactions in Certain uary 1, 1989. In conjunction with finalizing those rules, the Mutual Funds and Other Securities, and Other Confirmation Require- NASD commenced an initiative to adopt non-cash rules for ment Amendments, and Amendments to the Registration Form for mutual funds and variable contracts, an initiative that was con- Mutual Funds, Exchange Act Release No. 34-49148 ("2004 Con- cluded with the adoption of the non-cash rules in 1998. See firmation Proposal"). NASD Notice to Members 98-75, supra n. 23. The non-cash 11 See SEC Inspection Report on the Soft Dollar Prac- rules included in NASD Conduct Rules 2820 and 2830 were tices of Broker-Dealers, Investment Advisers and Mutual Funds, slightly different from those in 2710 and 2810. In 2003, the September 22, 1998, text accompanying nn. 77-78, for a dis- NASD amended the non-cash compensation provisions in 2710 cussion of step-out practices and related regulatory issues. and 2810 to harmonize them with 2820 and 2830. 12 See Tom Lauricella, "Fee Bitten: American Express 27 See Self-Regulatory Organizations; Notice of Filing and Targets Outsider," Wall Street Journal, June 7, 2002. Immediate Effectiveness of Proposed Rule Change by the National 13 Registration requirements for mutual funds are set forth Association of Securities Dealers, Inc. to Amend Its Restrictions on Non- in the 1940 Act; adviser registration requirements are set forth Cash Compensation in Connection with Corporate Financing and in the Investment Advisers Act of 1940; and transfer agent reg- Direct Participation Programs, Exchange Act Release No. 34- istration requirements are set forth in the 1934 Act. 47697 (April 18, 2003), approving amendments to non-cash SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 41 provisions in NASD Conduct Rules 2710 and 2810. Release, October 13, 2003, (available at http://www.nasdr.com 28 See, e.g., NASD Interpretive Letters, Name not Public, /news/pr2003/release_03_042.html). The sanctions entailed a Response Dated November 18, 1999, indexed under NASD fine of $150,000. 55 Conduct Rule 2830, concerning the application of the rule to Id. 56 a non-cash compensation program for wholesalers. See NASD Fines Morgan Stanley $2 Million for Prohibited 29 See NASD Notice to Members 99-55, Questions and Mutual Fund Sales Contests, NASD News Release (September Answers Relating to Non-Cash Compensation Rules (July 1999), 16, 2003), available on links at http://www.nasdr.com/news/ Questions 10-12. pr2003/release_03_039.html, and In re Morgan Stanley Dean 30 See id., Question 17. Witter Inc., Letter of Acceptance, Waiver and Consent No. 31 See id., Question 16. C10030077, at 6 (Sept. 16, 2003) ("AWC Letter"). 32 57 See id., Question 14. Id. The AWC Letter also entailed a sanction and fine 33 See id., Question 15. Recordkeeping requirements are against a senior officer of the selling firm. 58 discussed below. In 1977, the SEC adopted a confirmation rule for broker- 34 See, e.g., clauses (5)(A) and (5)(B) of paragraph (l) of dealers, applicable to virtually all securities transactions, that NASD Conduct Rule 2830. The maximum dollar value for any requires disclosure of broker-dealer compensation. Securities small gifts is the amount fixed by the NASD Board of Gover- Confirmations, Exchange Act Release No. 9753 (May 5, 1977) nors from time to time. At the time this article was finalized, (adopting Rule 10b-10). 59 the maximum amount so fixed was $100. The term "1934 Act" refers to the Securities Exchange 35 See Question 13 in Notice to Members 99-55, supra n. 29. Act of 1934, as amended. 36 60 See NASD Interpretive Letter, Submitted by American See paragraph (a)(2) of Rule 10b-10 under the 1934 Act. 61 Funds Distributors, response dated September 9, 1999, indexed Depending on the nature of the contractual relation- under NASD Conduct Rule 2830. Recordkeeping conditions ships among the selling firm, the fund, the fund's distributor, and are discussed below. the customer, the dealer concession or reallowance may func- 37 See Question 9 in NASD Notice to Members 99-55, tionally be deemed to be a markup or third-party remuneration. 62 supra n. 29. See Securities Confirmations, Exchange Act Release No. 38 See NASD Notice to Members 98-75, supra n. 23. 34-13508 (May 5, 1977). 39 63 See, e.g., paragraph (l )(4)(C)(iii) of NASD Conduct See Rule 10b-10(e) under the 1934 Act. 64 Rule 2830. See Investment Company Institute, SEC No-Action Letter 40 See NASD Notice to Members 98-75, supra n. 23. (pub. avail. April 18, 1979). 41 65 See "Non-Cash Compensation—Training or Educa- See Brief of the Securities and Exchange Commission as tion Meetings," NASD Regulatory & Compliance Alert, Amicus Curiae, Press v. Quick & Reilly, 218 F.3d 121 (2d Cir. Summer 2000, at 13. 2000), at 10 (citing the Rule 10b-10 Adopting Release at n. 58) 42 Id. ("Quick & Reilly Amicus Brief"). Rule 10b-10 permits a broker- 43 See NASD Interpretive Letter, Name not Public dealer to merely state whether such remuneration has or will be (response dated March 7, 2001), indexed under NASD Rules received and the fact that the source and amount of such remu- 2820 and 2830. neration will be furnished upon written request of the customer. 44 See paragraph (l)(5)(D) of NASD Conduct Rule 2830. However, this alternative is available only if the broker-dealer 45 See NASD Notice to Members 98-75, supra n. 23. is not participating in a distribution in the case of a purchase of 46 See NASD Interpretive Letter, Submitted by Michael a security, or not participating in a tender offer, in the case of a L. Kerley, MML Investors Services, Inc., response dated April sale of a security. See Rule 10b-10(a)(2)(i)(D) under the 1934 Act. 3, 2000, indexed under NASD Rule 2820. Thus, this alternative is not available for securities transactions 47 See Notice to Members 99-55, supra n. 29, Question 1. effected in the context of a securities offering. 48 66 See paragraph (g) of NASD Conduct Rule 2820. See NASD Conduct Rule 2830(l)(4). 49 67 See Notice to Members 99-55, supra n. 29, Question 3. Id. 50 68 See Notice to Members 99-55, supra n. 29, Question 6. See Question 18 in NASD Notice to Members 99-55, 51 See Notice to Members 99-55, supra n. 29, Question 22. Questions and Answers Relating to Non-Cash Compensation Rules 52 See Rule 17a-3(a)(19) under the 1934 Act. (July 1999). The rule does not require prospectus disclosure of 53 See Books and Records Requirements for Brokers and Dealers arrangements between principal underwriters of the same secu- Under the Securities Exchange Act of 1934, Exchange Act Release rity or between the principal underwriter of a security and the No. 34-44992 (Oct. 26, 2001), announcing the adoption of sponsor of a unit investment trust which utilizes the security as amendments to the SEC's broker-dealer recordkeeping rules, its underlying investment. See NASD Conduct Rule 2830(l)(4). 69 including those adding the requirements for the retention of See Items 3 and 8 of Form N-1A. 70 records relating to associated person compensation. See Item 8 of Form N-1A. 54 71 See NASD Sanctions Wells Investment Securities and its Id. 72 President for Non-Cash Compensation Rule Violations, News See Item 3 of Form N-1A. 42 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 73 No. 8339 (Nov. 17, 2003), at ¶43. The settlement also imposed See Item 8 of Form N-1A. 74 other undertakings, including an undertaking to distribute $50 Id. Services fees are discussed below under "Compen- sation for B Share Sales." million to customers who purchased fund shares during a spec- 75 ified period. See Item 15(g)(1) of Form N-1A. 76 99 See Item 15(g)(2) of Form N-1A. See NASD Notice to Members 03-54, Compensation for 77 the Sale of Investment Company Securities (September 2003). See Item 15(g)(3) of Form N-1A. 78 100 See Item 15(g)(6) of Form N-1A. See Proposed Rule: Confirmation Requirements and Point 79 of Sale Disclosure Requirements for Transactions in Certain Mutual See Items 15(g)(4) and 15(g)(5) of Form N-1A. 80 Funds and Other Securities, and Other Confirmation Requirement See Item 15(f) of Form N-1A. 81 Amendments, and Amendments to the Registration Form for Mutual Id. The current version of this requirement, codified in NASD Rule 2830(l )(4), became effective January 1, 1999. Funds, Exchange Act Release No. 34-49148 (the "2004 Con- Prior versions of NASD Rule 2830 also prohibited participa- firmation Proposal"). The Release is available at http://www. tion in a "special deal" without prospectus disclosure. See NASD sec.gov/rules/proposed/33-8358.htm. The Release is published Notice to Members 81-8, supra n. 22. in the Federal Register at 69 Fed. Reg. 6438 (Feb. 10, 2004). 82 101 See Item 20 of Form N-1A. See Proposed Rule 15c2-3, as set forth in the 2004 83 Confirmation Proposal, supra. Id. 84 102 See Item 27 of Form N-1A. See Proposed Rule 15c2-2, as set forth in the 2004 85 Confirmation Proposal, supra n. 100. See Item 16(c) of Form N-1A. 86 103 See Item 27 of Form N-1A. See, e.g., Robert T. Greene, "Differential Commis- 87 sions as a Material Fact," 34 Emory L. Journal 507 (1985), for See Item 20 of Form N-1A. 88 a discussion of differential commission practices in place during See Investment Company Institute, SEC No-Action Letter (pub. avail. Mar. 16, 1994). the 1960s and 1970s; see also SEC v. Hasho, 784 F.Supp. 1059, 89 1109-10 (S.D.N.Y. 1992), in which a district court ruled that See Quick & Reilly Amicus Brief at 23. 90 sales representatives had violated the antifraud provisions of Sec- See Strougo v. Bear Stearns & Co., 1997 U.S. Dist. LEXIS 11665; Fed. Sec. L. Rep. (CCH) ¶ 99,532 (S.D.N.Y. 1997). tions 17(a) of the 1933 Act and 10(b) of the 1934 Act for, among 91 other things, misstating to customers that they would not earn See Quick & Reilly Amicus Brief. 92 any commissions and failing to disclose the amount of com- See Donald Press v. Quick & Reilly, Inc., 218 F.3d 121 (2d. Cir. 2000) ("Quick & Reilly"). The appellate decision con- missions earned. But see In re Michael Flanagan, et al., SEC Adm. solidated two unpublished decisions in cases that were separately Proc. File No. 3-9784 (Jan. 31, 2000) (judicial decisions do not brought by the plaintiffs. See Press v. Quick & Reilly, Inc. (S.D.N.Y. recognize a legal obligation for brokers or advisers to disclose Aug. 11, 1997); Strougo v. Bear Stearns (S.D.N.Y. Aug. 11, 1997). comparative non-excessive compensation or "conflicts" to clients 93 and customers in the absence of special circumstances.) Quick & Reilly at 129 (emphasis added). 94 104 See In re Morgan Stanley DW Inc., Securities Act Release See Report of the Committee on Compensation Prac- No. 8339 (Nov. 17, 2003). tices, [1995 Decisions Binder] Fed. Sec. L. Rep. (CCH) ¶ 85,614 95 (Apr. 10, 1995). Id. at ¶ 25. 96 105 Id. See "The Large Firm Project: A Review of Hiring, 97 Retention and Supervisory Practices," CCH Fed. Sec. L. Rep. Of some historical interest, the enforcement action that launched the so-called "shingle theory" discussed below, also [1993-1995 Decision] ¶ 85,348 (May 1994). The Large Firm was based in part on Section 17(a)(2) of the 1933 Act. This theory Project was undertaken in part in response to scandals in the first was articulated in an administrative proceeding in 1939, In brokerage industry reported widely in the press during the early re Duker & Duker, Exchange Act Release No. 34-2350, 1939 1990s. See, e.g., a series of articles published by the Los Angeles WL 1332, 6 SEC 386 (Dec. 19, 1939), and was later endorsed Times in 1992 based on an investigation of sales practices of by an appellate court in the case of Hughes v. SEC. See Charles sales representatives at brokerage firms with household names. Hughes & Co. Inc. v. Securities and Exchange Commission, 139 F.2d See Scott J. Paltrow, Investors at Risk: The dark side of the bro- 434 (2d. Cir. 1943), cert. den., 321 U.S. 786 (1944). Both cases kerage business," a five-part series published in the Los Angeles concerned excessive markups by the two firms. At issue was Times over the course of July 2, 1992 through July 5, 1992. 106 whether the broker-dealer's failure to disclose that its securities See Report of the Committee on Compensation Practices, transactions were overpriced violated the antifraud provisions of supra n.104. 107 the 1933 Act and 1934 Act. Although neither decision explic- Id. 108 itly used the "shingle" analogy, these decisions are cited for the Id. 109 proposition that a broker-dealer, by hanging out its shingle, See discussion above under "Use of Non-Cash Com- impliedly represents that it will deal fairly with the public. See pensation in Connection with Mutual Fund Sales." 110 generally, L. Loss, Securities Regulation, vol. VIII, ch. 9 at 3772- As discussed above, use of differential compensation 98 (3rd ed. 1991). See also NASD Conduct Rule IM-2310-2. in the context of non-cash compensation for mutual fund sales 98 is prohibited under NASD Conduct Rule 2830(l). See In re Morgan Stanley DW Inc., Securities Act Release SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 43 111 124 A transcript of this workshop held June 20, 2001 is avail- Since 1975, NASD rules have prohibited its members able at http://www.nasdr.com/2660_memreg.htm#transcripts. from offering mutual funds (as well as certain other investment 112 The term "differential compensation" generally is not companies, such as unit investment trusts and certain closed- used to refer to situations in which the dollar amount of a sales end investment companies) if the aggregate amount of sales representative's compensation actually paid for the sale of shares charges described in the prospectus is "excessive." See NASD in one fund may differ from the dollar amount paid for another Notice to Members 75-68 (Nov. 19, 1975). This prohibition, similar fund, simply because of differences in the GDC for the which was modified in 1992, as discussed below, is currently cod- two funds. Nor does the term refer to the situation in which ified as paragraph (d) of NASD Conduct Rule 2830. 125 a selling firm may receive a higher GDC from one product See NASD Notice to Members 93-12, Questions and provider than another. Answers About New NASD Rules Governing Investment Company 113 See Self-Regulatory Organizations; Notice of Filing of Proposed Sales Charges – Article III, Sections 26(b) and (d) of the Rules of Fair Rule Change by National Association of Securities Dealers, Inc. Relating Practice (February 1993). 126 to the Regulation of Cash and Non-Cash Compensation In Connec- See NASD Conduct Rule 2830(b)(8)(A). 127 tion With the Sale of Investment Company Securities and Variable Con- See NASD Conduct Rule 2830(b)(9). Although the tracts, Exchange Act Release No. 34-37374 (June 26, 1996). NASD rule does not explicitly reference Rule 12b-1, as a prac- 114 See NASD Notice to Members 97-50, NASD Regu- tical matter, fees characterized as "service fees" under the NASD lation Requests Comment on Regulation of Payment and Receipt of rule are authorized under a 12b-1 plan. 128 Cash Compensation Incentives; Comment Period Expires October See NASD Conduct Rule 2830(d)(4). 129 15, 1997 (August 1997). See NASD Conduct Rule 2830(d)(1). 115 130 Id. See NASD Conduct Rule 2830(d)(2). 116 131 Id. See "Mutual Fund Share Classes: Uses and Abuses," 117 See NASD Notice to Members 99-81, NASD Regu- supra n. 122. 132 lation Requests Comment on Sales Representative Compensation See, e.g., Suitability Issues for Multi-Class Mutual Funds, Rules (October 1999). NASD Regulatory & Compliance Alert, Summer 2000, at 14. 118 133 See NASD Notice to Members 03-54, Compensation for See http://www.sec.gov/investor/tools/mfcc/mfcc- the Sale of Investment Company Securities (September 2003). int.htm and http://www.nasd.com/Investor/Tools/Calculators/ 119 See 2004 Confirmation Proposal, supra n. 100. FundCalc/expense_analyzers.asp. 120 134 Rule 6c-10 under the 1940 Act provides the necessary See, e.g., In re Michael Flanagan, Ronald Kindschi and exemptions from various 1940 Act and rule provisions for a Spectrum Administration, Inc., SEC Adm. Proc. File No. 3- mutual fund to offer its shares subject to a contingent deferred 9784 (January 31, 2000), involving mutual fund switching. 135 sales charge. Prior to the adoption of the rule in 1995, a mutual See, e.g., News Release, NASD's NAC Fines and Suspends fund seeking to utilize a deferred sales charge structure had to Broker and Orders Restitution for Unsuitable Sales of Over $2.1 Million obtain exemptive relief from the SEC. See Investment Com- of Class B Mutual Fund Shares, September 10, 2002, available at pany Act Release No. 20916 (Feb. 23, 1995). http://www.nasdr.com/news/pr2002/release_02_042.html; News 121 See Investment Company Act Release No. 11414, Release, NASD Regulation Censures and Fines Stifel, Nicolaus & October 28, 1980. Company, and Two Individuals for the Unsuitable Sale of Class B Mutual 122 For a discussion of the development of the multi-class Fund Shares, April 18, 2001, available at http://www.nasdr.com/ structure, see J. Julie Jason, Mutual Fund Share Classes: Uses and news/pr2001/ne_section01_026.html. See also News Release, Abuses, Practising Law Institute, PLI Order No. B0-01A6 NASD Files Enforcement Actions Involving Unsuitable Sales of Mutual (August 2002). Funds, August 13, 2003, available at http://www.nasdr.com/ 123 The NASD is authorized under Section 22(a) and (b) news/pr2003/release_03_034.html. The NASD suitability rule is of the 1940 Act to adopt rules to regulate the amount of sales codified as NASD Rule 2310. 136 charges on mutual funds distributed by its member firms. As dis- See In re Morgan Stanley DW Inc., Securities Act Release cussed below, in 1980, the SEC adopted Rule 12b-1, which No. 8339 (Nov. 17, 2003). The settlement required the selling allowed mutual funds to adopt plans providing for financing of firm to offer customers who had purchased Class B shares in the distribution of fund shares with fund assets. Rule 12b-1 amounts of $100,000 or more the option of converting their proved to be a popular rule; by 1988, over 52% of funds then shares into Class A shares on a basis as though they had pur- in existence had adopted a 12b-1plan. See Investment Company chased Class A shares originally. 137 Act Release No. 16431 (June 13, 1988). In 1988, the SEC pro- See Securities Act Release No. 33-8347, Disclosure of posed amendments to Rule 12b-1 to address certain practices that Breakpoints by Mutual Funds (December 17, 2003). 138 had developed over the intervening years, including the use of These proposals would affect Items 7, 8, and 18 of 12b-1 plans to exceed the limitation on maximum sales charges Form N-1A. 139 in NASD rules. Id., text accompanying nn. 57-58. When the See 2004 Confirmation Proposal, supra n. 100. 140 NASD stepped forward to amend its rules to take into account See Fund Firms Shrinking B-Share Sales Maximums, 12b-1 plans, the SEC dropped its 12b-1 amendment proposal. Ignites, Jan. 22, 2004. 44 COMPENSATION PRACTICES FOR RETAIL SALES OF MUTUAL FUNDS SPRING 2004 141 157 See Proposed Rule: Prohibition on the Use of Brokerage This section makes it unlawful for any affiliated person Commissions to Finance Distribution, Investment Company Act, of a mutual fund (or any affiliated person of such person), acting Release No. 26356 (February 24, 2004). as agent, to accept any compensation from any source for the pur- 142 Id. chase or sale of any property to or from the fund. The SEC has 143 A discussion of the issues for fund advisers and executing broadly construed the term "compensation" to mean "any eco- broker-dealers under best execution standards is beyond the scope nomic benefit paid directly or indirectly to an adviser." Stein Roe of this article. For a discussion of best execution duties, see gen- Farnham, Inc., Inv. Co. Act Rel. No. 17316 (Jan. 22, 1990). The erally Lemke, Lins, Regulation of Investment Advisers (2003 ed.). SEC also construes the "purchase or sale of any property" to 144 See NASD Notice to Members 73-42 (May 1973). include the purchase or sale of fund shares. Thus, in the context 145 It is worth noting that the rule was developed and of brokerage allocation arrangements the SEC has concluded that: adopted at a time when commission rates for trades on the New Section 17(e)(1) of the 1940 Act makes it unlawful for York Stock Exchange were still fixed. Fixed commission rates an affiliated person of a fund (such as its adviser) to were viewed as a factor contributing to reciprocal practices, and accept from any source compensation (other than reg- were examined in studies of the securities markets during the ular wages) for the purchase and sale of fund shares. 1960s. See, e.g., "Special Report: Statement of the Securities The receipt by a fund's adviser of any direct or indi- and Exchange Commission on the Future Structure of the Secu- rect economic benefit as a result of brokerage/service rities Markets," February 2, 1972, citing reports issued by the arrangements would almost certainly violate section SEC in 1963 and 1966 on the same matter. 17(e)(1), unless the benefit received fell within the 146 See NASD Notice to Members 73-42, supra n. 144. safe harbor provided by Section 28(e) of the 1934 Act. The SEC request followed on the heels of the release of its Release IC-21221. 158 "Special Report: Statement of the Securities and Exchange See "Commissions Earmarked for Distribution to be Commission on the Future Structure of the Securities Mar- Covered Under Fund 12b-1 Plans," IA Week, March 10, 2003. 159 kets," February 2, 1972. See NASD Charges Morgan Stanley with Giving Prefer- 147 See Investment Company Act Release No. IC-11414 ential Treatment to Certain Mutual Funds in Exchange for Brokerage (October 28, 1980). In 1976, the SEC commenced a review of Commission Payments, November 17, 2003, NASD News arrangements entailing the use of fund assets for the purpose of Release, available on links at http://www.nasdr.com/news/ financing the distribution of fund shares. See Bearing of Distribu- pr2003/release_03_051.html. 160 tion Expenses by Mutual Funds, Investment Company Act Release See AWC Letter, supra, n. 56. 161 No. IC-9915 (Aug. 31, 1977). As discussed in note 145 above, See Letter from the Investment Company Institute to the SEC had conducted several studies of this issue during the the SEC dated December 16, 2003, available on the Investment 1960s and early 1970s, each time resulting in a policy decision Company Institute's website: http://www.ici.org/statements/ to enforce the 1940 Act prohibition on use of fund assets to cmltr/index.html. 162 finance distribution expenses. While the SEC held hearings in See, e.g., "Putnam Ends Directed Brokerage Practices," 1976 on the matter, it was another three years until the SEC pro- Ignites, Nov. 26, 2003. 163 posed the adoption of a rule that would permit such a use. See See Proposed Rule: Prohibitions on the Use of Brokerage Investment Company Act Release No. IC-10862 (Sept. 7, 1979). Commissions to Finance Distribution, Investment Company Act 148 See Rule 12b-1(b). Release No. 26356 (Feb. 24, 2004). 149 164 See NASD Notice to Members 80-7 (Mar. 6, 1980). Id., text accompanying n. 35. 150 165 See NASD Notice to Members 84-40, Compensation Id., text accompanying n. 38. 166 With Respect to Mutual Fund Shares (July 26, 1984). See id., text accompanying nn. 55- 58, and proposed 151 See National Association of Securities Dealers, Inc., new paragraph (h) of Rule 12b-1. 167 Exchange Act Release No. 34-17599 (Mar. 4, 1981). As noted See File No. SR-NASD-2004-027 (filed Feb. 10, above, the registration statement form for mutual funds has 2004), available on links at http://www.nasdr.com/pdf- required funds to disclose in their SAIs whether they will con- text/rf04_27.pdf. sider factors other than brokerage or research services in selecting brokers for the execution of portfolio trades. 152 See paragraphs (1) and (2) of NASD Conduct Rule To order reprints of this article, please contact Ajani Malik at 2830(k). firstname.lastname@example.com or 212-224-3205. 153 See paragraph (6)(B) of NASD Conduct Rule 2830(k). 154 See NASD Notice to Members 84-40 (July 26, 1984). 155 Id. Reprinted with permission from the Spring 2004 issue of The 156 See, e.g., Phillips, Richard M., et al., "The Use of Fund Journal of Investment Compliance. Copyright 2004 by Institutional Brokerage to Subsidize Sales," 1993 Mutual Funds and Invest- Investor Journals, Inc. All rights reserved. For more information ment Management Conference (March 8–11, 1993), discussing call (212) 224-3066. Visit our website at www.iijournals.com. implications raised under Section 17(e) of the 1940 Act. SPRING 2004 THE JOURNAL OF INVESTMENT COMPLIANCE 45
Pages to are hidden for
"Compensation Practices for Retail Sales of Mutual Funds.pdf"Please download to view full document