Morgan Keegan, fund directors and fair value pricing: and SEC action to keep tabs on

Morgan Keegan, now a part of Raymond James, was a regional brokerage firm with a strong fixed income emphasis.  It was severely wounded by large losses in fixed income mutual funds during the housing meltdown, and by subsequent SEC legal actions.  The regulator accused the firm of misrepresenting the risk character of some mutual fund offerings to potential clients and of systematically mispricing funds over extended periods of time.  As part of a settlement, the portfolio manager who ran a number of these funds agreed to a fine of $500,000 and a lifetime ban from the securities industry.

“So, what’s new?” you may ask.

What’s unusual about this case is that late last year the SEC sued the boards of directors of some of these funds for what it says was their failure to ensure that the funds were priced correctly.   Although directors are, legally speaking, the highest-ranking officials in any mutual fund and are therefore directly responsible for the conduct of the fund’s officers and staff, the SEC has until now only held the investment professionals and support staffs of wayward funds accountable for their actions–and left the directors alone.

my thoughts

1.  The returns cited by the Wall Street Journal  for one of these funds in reporting on this case are really ugly.  It lost 30% of its value in 2008 vs. a return of +6.8% by the fund’s performance benchmark.  In 2008, the fund was down by 73.2% vs. a benchmark return of +4.0%.

2.  Fair value pricing–meaning having third-party experts estimate a price for a security if there are no trades for it on a given day–is an important issue.  Typically a rogue manager or a rogue firm will want to assign securities a price that’s too high, to disguise a fund’s underperformance.

The problem:  shareholders who sense the problem early and cash in their shares get more than their share of the fund assets, leaving loyal/trusting shareholders with a large hole in their fund NAV once the fraud is uncovered.

3.  Fair value pricing isn’t a new issue.  It was a big problem during the collapse of the junk bond market in the late 1980s.  It was also the centerpiece of Eliot Spitzer’s expose of shady practices by international funds in the mid-1990s.  Apparently the SEC again called mutual fund boards’ attention to possible fair value pricing issues with funds holding mortgage-backed bonds in 2007.

4.  The SEC must think that its warnings were being ignored by mutual fund boards and that it had to make an example of someone.

5.  If so, the agency appears to have chosen its target well.  Morgan Keegan isn’t a large, deep-pocketed, politically powerful investment banker like Goldman Sachs or Morgan Stanley.  The Morgan Keegan name no longer exists.  The firm has recently been sold to Raymond James, whose executives presumably have no personal ties with the accused directors and no interest in prolonged or expensive litigation which would only keep any past Morgan Keegan misdeeds in the public eye.

Yes, the directors doubtless have liability insurance against possible lawsuit.  But my guess is that the insurer in question may assert that coverage doesn’t extend to instances like this.

This case has the potential to change the way mutual fund directors are selected, what qualifications they should have, how they carry out their duties and how much they’re paid.  It’s worth keeping an eye on.

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