A recent InvestmentNews article explored The Securities and Exchange Commission’s (SEC) attempts to prevent conflicts of interest at registered investment advisers, a breach of their fiduciary duties, by focusing on potential misuse of popular flat-fee wrap accounts. The use of these accounts have given rise to claims of “reverse churning.” As we previously reported, “churning” is excessive trading activity or in a brokerage account. Churning trading activity has no utility for the investor and is conducted solely to generate commissions for the broker. By contrast “reverse churning” is the practice of placing investors in advisory accounts or wrap programs that pay a fixed fee, such as 1-2% annually, but generate little or no activity to justify that fee. Such programs constitute a form of commission and fee “double-dipping” in order to collect additional fees.
The SEC is looking into the practice by which clients pay an annual or quarterly fee for wrap products that manage a portfolio of investments. Investment advisors who place clients in such programs already charge fees based on assets under management (AUM) and the money management charges for wrap products are in addition to the AUM fee. According to InvestmentNews, the assets under these arrangements totaled $3.5 trillion in 2013, a 25% increase from 2012. Included in these numbers include separately managed accounts, mutual fund advisory programs, exchange-traded-fund (ETF) advisory programs, unified managed accounts, and two types of brokerage-based managed accounts.
Reverse churning can occur under these arrangements if there’s too little trading in the accounts in order to justify the high fees. In August, the SEC’s scrutiny of these products came to the forefront with the agency’s victory in a court case that revolved in part around an adviser’s improperly placing his clients into wrap programs. A jury decided in the SEC’s favor against the advisory firm Benjamin Lee Grant that the SEC argued improperly induced clients to follow him when he left the broker-dealer Wedbush Morgan Securities to his advisory firm, Sage Advisory Group.
In 2010, the SEC filed a complaint alleging that Grant failed to tell his clients that brokerage costs would be significantly lower at Charles Schwab & Co., the discount broker Sage used, as compared with the money manager Wedbush employed, First Wilshire Securities Management Inc. The SEC alleged that Grant’s compensation climbed from less than $500,000 in 2004-05 to more than $1 million in 2006-07 through the use of these higher and unjustified fees.
Andrew Ceresney, director of the SEC Division of Enforcement, said in a statement that “This case sends an important message to investment advisers that they must put the needs of their clients before their own,”
The attorneys at Gana Weinstein LLP are experienced in representing investors in securities litigation matters concerning churning and breach of fiduciary duties. Our consultations are free of charge and the firm is only compensated if you recover.