The original investigation, launched in May 2002, was
initiated to look into how hedge funds are valued.
However, the proliferation of “fund of hedge funds” –
alternative investments that pool the money of average
investors allowing access to the hedge fund market – has
given cause for speculation into their value as
well.
Because the average investor now has more access to
the volatile hedge fund market, the SEC wants to ensure
that these “fund of hedge funds” are valuing their
investments correctly, and passing the correct valuation
on when determining the fund’s overall value.
With the downturn of the market over the past few
years; the $550 billion hedge fund industry has suffered as
well.
According to New York consultants, Hennessee Group,
the average hedge fund has lost more than 5%
year-to-date.
The SEC did not provide a target date for the
publication of results from this investigation.
September 5, 2003 (PLANSPONSOR.com) - The New York
state attorney general's office has expanded its latest probe
into improper trading - market timing - by subpoenaing
records from a number of large hedge funds and mutual fund
companies.
Subpoenas seeking data about mutual fund trading
activity went to The Vanguard Group, the nation’s
second-largest fund company measured by assets (behind
Fidelity Investments), and Invesco Funds Group, a unit of
Amvescap
PLC, another large fund group, according to a Wall Street
Journal report. Also getting a call for documents was
Millennium Management LLC, a hedge fund with $4 billion in
assets. Millennium, Vanguard and Invesco told the
Journal they were cooperating in the probe.
There is also word that the US Securities and Exchange
Commission (SEC) is ramping up its investigation.
So far, only one hedge fund has been charged with any
wrongdoing. But in reaching a settlement Wednesday
with Canary Capital Partners LLP, New York Attorney
General Eliot Spitzer said additional cases alleging abuses
in fund trading were almost a certainty.
In the complaint, filed this week in a New York state
court, Spitzer accused Canary of arranging with
Bank of America
Corp. to do mutual fund trading after the market had closed
and then moving the shares the next day for a
profit.
Spitzer also accused Canary in the complaint of frequent
in-and-out “timing trades” at the mutual funds, which, for
example, take advantage of differences between closing
prices of stocks overseas and the mutual fund’s later
closing value. While this activity isn’t against the law,
most mutual-fund companies prohibit it as costly to other
fund investors. Canary settled the charges and agreed to
pay $40 million in fines and restitution, without admitting
to any wrongdoing.
While just four mutual-fund companies are currently
named as part of Spitzer’s lawsuit, Canary potentially had
access to trading with thousands of different funds through
the facilities of Security Trust Co. of Phoenix, according
to the Journal. STC provides an electronic system to handle
mutual-fund trades for participants in
retirement
plans as well as institutional investors and financial
advisers.
Spitzer alleged that STC gave Canary the ability to
trade funds as late as 9 p.m. Eastern time at prices that
shouldn’t have been available after the 4 p.m. close of
market trading. Such trades were so profitable to Canary
that STC eventually demanded and received 4% of Canary’s
gains, Spitzer charged.
Grant Seeger, STC chief executive, declined to comment
on the details of the attorney general’s lawsuit to the
Journal, except to say that STC was fully cooperating with
the investigation. STC wasn’t charged with any wrongdoing
in Spitzer’s complaint.
On Wednesday,
Spitzer contended that four mutual-fund groups — units of
Bank of America and
Bank One
Corp. as well as
Janus Capital Group
Inc. and Strong Capital Management Inc. — agreed to give
Canary manager, Edward Stern preferential treatment,
allowing Canary to buy and sell fund shares at prices not
available to other investors.
None of the fund companies were charged with any
wrongdoing. Two types of trading violations were alleged:
Late trading, or buying mutual-fund shares after the market
close at that day’s closing price; and timing, which
involves taking advantage of market-moving events after the
close of the market, when the funds’ daily price is set
based on the net-asset value of the portfolio.
Also in the Journal report was word that the SEC plans
to send letters to mutual funds holding about 75% of assets
under management in the US to inquire about their practices
on market-timing and their fund-trading practices in
general, according to people familiar with the matter.
Similar letters will be sent to some registered brokers who
sell mutual funds to investors, they said.
But the SEC insisted it hasn't been caught unaware about
problems in the hedge- and mutual-fund industries, although
officials said the agency hadn't been looking into the
market-timing problems alleged by Spitzer in his complaint
against Canary and Stern.
SEC enforcement chief Stephen Cutler Thursday praised
Spitzer's aggressive action in pursuing the mutual-fund
case, telling the Journal that there is room for both
federal and state regulators to act in investors' best
interest. "God bless Eliot. He got the tip, and he pursued
it," Cutler said after announcing an enforcement action
against a major securities firm,
Goldman Sachs Group
Inc. "I view what Eliot did as for the benefit of the
investing public."
Targets: Subpoenas Received
In confirming it had received a subpoena for
information, a spokesman for Millennium, one of the largest
hedge funds, told the Journal that the firm "did not engage
in after-hours trading as described in that complaint" by
Spitzer. As one of its numerous strategies, Millennium does
do permissible timing trades in mutual-fund shares,
allocating as much as $1 billion to that arcane trading
area, according to people familiar with the fund. At times,
the strategy returned 25% and accounted for as much as $250
million in profits, a huge part of the fund's performance,
these unidentified sources told the Journal.
Invesco runs several funds in which Stern placed late
trades to buy and sell, according to a copy of one
evening's orders obtained by Spitzer's office. On the
evening of January 13, Stern placed late trades through
Bank of America's trading system for the
Invesco Health Sciences
and
Invesco Dynamics
funds. He also placed orders for the Alliance Growth and
Income Fund and the
MFS Research Fund
, the document shows. The fact that Stern bought and sold
shares of funds didn't automatically mean that he had
agreements with those companies to engage in these timing
trades.
The Bank of America system would enable his fund to
trade with any of the hundreds of funds in the system.
However, investigators say that large and frequent trades
would likely gt spotted by the fund companies. A spokesman
for AIM Investments, an Amvescap subsidiary whose
affiliates include the Invesco Funds group, said that
Invesco was contacted by New York officials "in connection
with its inquiry on certain mutual-fund industry
practices." But the company declined to comment on specific
trades and said it is a company policy not to comment on
legal matters. The spokesman said Invesco is cooperating
with the inquiry.
Vanguard's spokesman said the company recently received
a subpoena but declined to comment further. A spokesman for
MFS Investment Management and Alliance Capital Management
Holding LP declined to comment.
Ongoing SEC Mutal and Hedge Fund Probes
The SEC has been focusing on potential abuses in the
mutual-fund and hedge-fund industries for several months.
But the agency has been looking more broadly at conflicts
of interest and whether investors are getting adequate
information from funds. In fact, the SEC is expected to
issue new rules aimed at improving disclosure and curbing
fraud in coming weeks (See
SEC Widens Hedge Fund
Probe
,
Sources: Fund Probe
Uncovers Widespread Discount Problems
).
One area of heavy focus for the SEC has been determining
whether conflicts exist in the way Wall Street brokerage
firms are compensated when selling mutual funds.
The SEC, which requested documents from more than 15
brokerage firms, has discovered such conflicts, including
undisclosed incentives given to brokers in exchange for
selling particular funds over others, according to people
familiar with the probe.
A separate investigation into hedge funds has also been
tracking how those investment vehicles work and the
relationships that the funds have with brokerage firms. The
commission, which plans to release its hedge-fund report by
the end of the month, is expected to require hedge funds or
their investment advisers to register with the SEC. Right
now, hedge funds aren't regulated by the SEC, though the
agency can pursue fraud cases against them.
Meanwhile, the Massachusetts Securities Division,
which has been investigating mutual-fund sales practices at
brokerage firm Morgan Stanley, said it was also looking
into instances of market-timing at
Prudential Financial Inc.'s Prudential Securities. At issue
is whether Prudential brokers in the Boston office were
timing mutual funds and then evading fund companies'
efforts to block their rapid trading by switching internal
identification numbers that are used to track which brokers
are placing the trades.