This past week the SEC announced a $40 million enforcement action against investment advisor First Eagle Investment Management and its affiliated broker-dealer FEF Distributers for what it touted as the first to arise from its “distribution-in-guise” initiative.
Advisors to funds have been anxiously awaiting some sort of guidance since the SEC first announced the initiative several years ago, but as is all too often the case, it has finally arrived in the form of an enforcement action.
To understand what the SEC is really after with its distribution-in-guise initiative, it’s helpful to take a step back to 1980: Ronald Reagan defeated Jimmy Carter in the presidential election, the U.S. Olympic hockey team defeated the Soviet Union in the Miracle on Ice, and the fund industry was feeling defeated by a “significant and consistent outflow of cash from its funds.”
As SEC Financial Economist Lori Walsh elaborates:
The investors that remained in the funds were paying increasingly higher expenses, as the fixed costs of the funds were spread over ever fewer shareholders. The industry asked the SEC to allow advisers to use fund assets to pay for distribution costs. This would allow funds to compete on a more level playing field with other investment products that did not charge upfront loads, leading to a net cash flow into funds and scale economies for shareholders. The SEC adopted Rule 12b-1 in October 1980.
In short, Rule 12b-1 was at least partly born out of the desire to juice the sale of fund shares so that fund shareholders could collectively benefit from the resultant economies of scale. The Rule thus permits fund assets (i.e., shareholders’ wallets) to be used to promote the sale of fund shares by paying for marketing and distribution of the fund.
The Rule calls for such marketing and distribution payments to be made pursuant to a plan, which must be approved annually by individuals with a fiduciary duty to act in the best interests of fund shareholders: the fund’s board of directors. To satisfy disclosure concerns, the specific amount to be drawn from a fund’s net assets to pay for marketing and distribution must be disclosed to shareholders in the prospectus as a line item of the fund’s annual operating expenses.
Fund assets increase, the advisor to the fund earns more fees from the fund, fund marketers and distributors get paid and each shareholder individually bears less fixed costs. Seems like a win-win, right?
Fast forward to 1998: The Clinton/Lewinsky scandal unfolds, Google is founded and fund supermarkets are all the rage. Think of a fund supermarket as just that: a supermarket bearing the name of any custodial brokerage firm that offers its brokerage clients the ability to purchase and sell a variety of funds through its platform.