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The purpose of this paper is to assess the history, current use, and possible future of Rule 12b‐1 of the Investment Company Act of 1940.

This paper briefly reviews the history behind the original adoption of Rule 12b‐1, then discusses the ways in which 12b‐1 fees are used today, some of the issues surrounding the Rule, and finally, briefly explores where we might be heading in the future.

The paper finds that, first adopted in 1980 in an effort to prop up a then ailing industry, Rule 12b‐1 and Rule 12b‐1 fees have been a staple for many mutual funds for almost 30 years. Over this time, the ways in which 12b‐1 fees are used has evolved significantly such that some people now wonder whether the Rule continues to serve the purpose for which it was designed.

The paper provides a comprehensive evaluation of how mutual funds' use of Rule 12b‐1 has changed, what the underlying issues are, and the prospects for reexamination of the Rule.

To explain the January 6, 2016 written guidance (the “New Guidance”) issued by the Securities and Exchange Commission’s Division of Investment Management on payments made by mutual funds to intermediaries for distribution and non-distribution-related services.

Explains the SEC’s earlier guidance in the 1998 “Supermarket Letter,” the provisions of Rule 12b-1, the practice termed “distribution in guise,” the emphasis in the “New Guidance” on the role of a fund board’s business judgment, how Rule 12b-1 compliance fits into Rule 38a-1 compliance programs, specific fund activities and arrangements with intermediaries that are of concern to the SEC staff, and the focus of the New Guidance on an adviser’s fiduciary duty to mitigate or eliminate conflicts of interest.

The New Guidance articulates clear expectations that fund boards will have a process to evaluate the nature of intermediary payments and that fund advisers will provide boards with information in the advisers’ possession that the boards need to carry out that evaluation. Another intent of the New Guidance is apparently to give the SEC a clearer basis to bring enforcement actions concerning the use of fund assets to pay intermediaries for distribution-related activities.

Practical guidance from experienced investment management lawyers.

The purpose of this paper is to explain the SEC's proposal to establish a new framework for mutual fund distribution charges by replacing Rule 12b‐1 with a new Rule 12b‐2 combined with an amended Rule 6c‐10.

The paper discusses the background of ongoing distribution charges permitted under Rule 12b‐1; explains the SEC's proposal to establish a hard cap to the percentage rate of the charges that can be deducted from funds over time and to require fund boards of directors to make annual determinations of the reasonableness, fairness, and effectiveness of front‐end sales loads and ongoing sales charges; provides a summary of the new cap; explains the proposed disclosure changes, fee externalization alternative, and timetable and compliance dates; discusses various commercial and legal issues to consider in light of the proposal.

Long uncomfortable with a registered mutual fund's use of its own assets to pay for the distribution of its shares, the SEC is proposing a completely new approach.

The paper provides expert guidance from experienced financial services lawyers.

We examine the relationship between how mutual fund sponsors configure their board(s) of directors and the performance of the funds under a particular board's purview. Fund sponsors utilize either one board to oversee all the funds within a fund family or multiple boards that oversee one fund or a subset of the family's funds. Our results suggest that fund families – that is, sponsors – that use multiple boards have significantly higher objective-adjusted board-level weighted excess returns. But, there are no significant differences in the objective-adjusted board-level weighted excess expenses. These results are consistent with the argument that multiple boards provide superior monitoring.

Under rule 12b‐1, mutual funds are allowed to charge a fee of up to 100 basis points per year to cover marketing and distribution costs. Under NASD rules, a fund may charge a 12b‐1 fee of up to 25 basis points per year and still advertise itself as a no load fund. This fee is used to make the funds charging it more visible to the investing public. The question explored here is very simple; are the investors in no load funds well served by investing in those funds that charge this fee? It is shown here that the no load funds charging 12b‐1 fees do not perform as well as the funds that do not charge the fee but that they experience greater cash inflows.

To explain the guidance published on January 6, 2016 by the SEC’s Division of Investment Management containing its views and recommendations relating to mutual fund distribution and sub-accounting fees.

Explains the SEC’s Office of Compliance Inspections and Examinations focus on “distribution in guise” payments, its 2013 “sweep exam,” an enforcement action against a fund’s adviser and affiliated distributor related to payments for distribution-related activities outside of a 12b-1 plan, lists SEC staff recommendations with respect to mutual fund distribution and sub-accounting fees, summarizes the SEC’s guidance on board oversight of sub-accounting fees, provides indicia that a payment may be for distribution-related activities, and points to the need for mutual funds to have policies and procedures designed to prevent violations of Section 12(b) and Rule 12b-1.

The guidance is an outgrowth of the staff’s observations from a three-year “distribution in guise” sweep exam of mutual fund complexes, investment advisers, broker-dealers and transfer agents conducted by the SEC’s Office of Compliance Inspections and Examinations and other offices and divisions of the SEC to identify whether firms were using fund assets to directly or indirectly finance any activities primarily intended to result in the sale of fund shares outside of an approved Rule 12b-1 distribution plan.

Practical guidance from experienced financial services lawyers.

During 2003, compensation practices for the retail sale of mutual funds came under fire. Recent revelations about failures in the processing of mutual fund breakpoints had triggered a more in‐depth investigation into mutual fund marketing and compensation practice by securities regulators, Congress, and the states. This article focuses on the regulation of sales compensation practices primarily as it affects a broker‐dealer selling mutual funds in the retail market. It addresses the regulatory framework for three key compensation practices: (1) the use of non‐cash compensation in connection with mutual fund sales; (2) marketing and compensation arrangements providing enhanced compensation to a selling firm as well as to its sales representatives for the promotion of certain fund securities over others, such as proprietary funds over non‐proprietary funds, preferred funds over non‐preferred funds, and Class B shares over Class A shares; and (3) the use of commissions for mutual fund portfolio trades as an additional source of selling compensation for selling firms, a practice sometimes referred to as ”directed brokerage.“

To describe the broad range of reform initiatives that has been undertaken in response to a series of mutual fund scandals that have become apparent starting in 2003. This is the second of a two‐part article. The first part, in Volume 7, Number 1, is a chronology of developments related to the fund scandals since 1 January 2003.

Describes SEC reforms, including governance reforms; compliance reforms; SEC‐directed expanded disclosure regarding fund expenses and costs; reforms with respect to share distribution practices; reforms addressing market timing, selective disclosure, and fair value pricing; other reform initiatives including codes of ethics for investment advisers and a requirement that hedge fund advisers register with the SEC; an enhanced surveillance and inspection program for mutual funds; and enforcement activities. Describes private civil suits brought against fund companies, legislative proposals, the roles of NASD and New York State Attorney General Eliot Spitzer, the development of “best practices” guides by industry groups, and measures being promoted by institutional investors.

A broad range of reform initiatives has been undertaken by the SEC; NASD; and the New York, Massachusetts, and California Attorneys General. Both the US House of Representatives and the Senate have held hearings and proposed legislation, which at the moment appears dormant. Independent directors of only one mutual fund have been implicated in the trading abuse scandals. Hundreds of private civil lawsuits have been brought by fund shareholders against fund groups but virtually none has resulted in substantial restitution to plaintiffs.

A detailed and comprehensive analysis of reform initiatives in response to mutual fund scandals since 2003.

The purpose of this paper is to provide a comprehensive background on the recent legislative, regulatory, and prosecutorial scrutiny of mutual funds and underlying issues such as the level and transparency of fees and costs, distribution and sales practices, and fund governance.

Provides a detailed chronology of events since January 2003 concerning mutual fund scandals such as trading abuses and questionable sales practices and related issues such as revenue sharing, directed brokerage, soft dollars, market timing, late trading, and selective disclosure. The chronology in this issue of JOIC will be followed an article in the next issue that describes reform initiatives that have taken place in response to the scandals.

Despite criticism and scrutiny of equity mutual funds following poor performance in 2001 and 2002, meaningful efforts to achieve reform began to lose momentum in mid‐2003. Then concern with mutual fund abuses was reignited in September 2003 when New York Attorney General Eliot Spitzer announced a settlement with Canary Capital that involved market timing, late trading, and selective disclosure. Since then there have been numerous disclosures of fund trading abuses and questionable trading practices, and the resulting uproar has triggered significant efforts to reform the manner in which funds and their service providers conduct business.

This comprehensive chronology provides an essential reference by bringing together all the events and underlying issues related to mutual fund scandals, abuses, regulation, compliance, and reform efforts since January 1, 2003.

With over 8,400 mutual funds available to U.S. investors, the battle for shelf space has never been more intense. Fund advisers or “manufacturers” are caught in a classic squeeze by distributors demanding a bigger piece of the revenue pie. In this environment, distributors and investment advisers must deal carefully with the conflicts and SEC concerns that inevitably arise. Financing for fund share distribution, an enormously costly activity, is from three sources: from front‐end and deferred sales charges paid directly by shareholders, from asset‐based sales charges paid by the fund, and from the adviser’s own assets. Reciprocal sales deals should be considered within the context of an adviser’s best‐execution and soft‐dollar policies and procedures. Trading portfolio commissions for fund sales efforts presents conflicts, but the conflicts are manageable if controls are put in place and driven by senior management and legal/compliance staff.