Expanding Market-Timing Scandal Reaches Variable Annuities, Snares Merrill

NEW YORK (HedgeWorld.com)--There's a new parade of settlements winding through mutual fund town, and the participants, while new, have a familiar look about them.

On Tuesday, Merrill Lynch, Pierce, Fenner & Smith Inc. became the latest firm to settle charges that it allowed a market timing of mutual fund shares by hedge fund clients, including some via variable annuities. In separate agreements with New York Stock Exchange regulators and the State of New Jersey Attorney General's Office, Merrill Lynch agreed to pay a total of US$13.5 million in fines and undertake a review and strengthening of its procedures for stamping out market timing. The firm did not admit to or deny the allegations, which were originally brought by the New Jersey Bureau of Securities.

Merrill Lynch will pay US$10 million to the State of New Jersey to settle allegations against three employees of a Merrill office in Fort Lee, and US$3.5 million to the State of Connecticut to satisfy a pending settlement there. Merrill also agreed to review its procedures for creating and retaining documents related to placing trade orders with outside firms on behalf of Merrill clients, and to make sure those procedures are in line with exchange rules and federal securities laws, according to a news release from the NYSE. And the firm will reform its supervisory procedures to ensure that the alleged trading abuses don't happen again.

Merrill's troubles began in January 2002, when it hired three financial advisers to work in its Fort Lee office. The three advisers--Christopher Chung, Kevin Brunnock and William Savino--brought with them a hedge fund client, Millennium Partners LP, New York, that used market timing to generate returns. Millennium Partners has a history of mutual fund trading abuse. In October 2003, Millennium trader Steven B. Markovitz agreed to a lifetime ban from the securities industry for late trading, or placing mutual fund trade orders after the 4 p.m. ET market close but at pre-4 p.m. prices, thus gaining the advantage of trading on post-close news.

The market timing linked to Merrill involved rapid trading of mutual fund shares in order to profit from short-term price movements. Market timing is not illegal, but regulators have argued it negatively affects ordinary mutual fund shareholders by depressing returns and passing on to those shareholders the costs of the rapid trades.

According to investigations by the NYSE and the New Jersey attorney general, the three Merrill advisers continued to place market-timing trades on behalf of Millennium Partners even after they were warned that such trades violated Merrill Lynch's policies. New Jersey officials alleged that rather than suspend the Millennium trading, the three Merrill advisers took steps to conceal it, by using non-Merrill Lynch accounts to conduct the trading.

When the mutual funds got wise to the trading, the Merrill Lynch advisers simply opened new accounts, or moved on to other funds, or began using mutual fund sub-accounts of variable annuities offered by insurance companies, New Jersey officials alleged. Merrill Lynch kept no documentation of the trades it placed through the outside entities. As part of the settlement, the firm agreed to keep such records in the future.

Merrill Lynch officials warned the three advisers in February and May of 2002 that the market timing violated Merrill policies. Nevertheless, they continued to place market-timing trades for Millennium in mutual funds and in mutual funds held as sub-accounts of variable annuity and corporate-owned life insurance contracts purchased on behalf of Millennium employees, according to New Jersey state officials.

Merrill ultimately fired the three advisers in October 2003, but not before the trio had placed nearly 12,500 trades for Millennium in at least 521 mutual funds and 63 mutual fund sub-accounts of some 40 variable annuities. In total, Millennium earned an estimated US$60 million on those trades. Peter Asteltine, spokesman for the New Jersey attorney general's office, said that the state's investigation is ongoing.

Last June, the NASD announced its first fines in connection with variable annuity market timing. In August, New York State Attorney General Eliot Spitzer and the U.S. Securities and Exchange Commission announced additional variable annuity market-timing settlements.

Timing variable annuities can be attractive because there is an added layer of anonymity between the market timer and the mutual fund companies that manage the funds in which the variable annuities invest. Annuities are life insurance contracts that promise to pay the holder a certain amount at a certain time, usually retirement. Payments from variable annuities fluctuate based on the value of an underlying portfolio of securities--in many cases, mutual funds.

For market timers, variable annuities can provide fertile ground. Rather than buying and selling the mutual fund shares directly, they submit orders to the insurance companies to transfer assets between various sub accounts within the annuity. The insurance companies aggregate these orders and submit them to the mutual fund companies. The fund companies do not know the identities of the end investors, making it harder to identify market timers.

CClair@HedgeWorld.com

Contact Bob Keane with questions or comments at: bkeane@investmentadvisor.com">.

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