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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.

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.

To describe the main provisions of the US Department of Labor’s final “fiduciary” rule and its related prohibited transaction exemptions and the key challenges the rule poses for financial advisers.

This article describes the impact of the new “fiduciary” rule on broker-dealers, banks and other financial organizations who will, for the first time since the passage of ERISA, be subject to ERISA’s fiduciary standards and remedies when providing investment and asset management recommendations to individual retirement accounts and other retail retirement clients.

The most immediate impact of the rule will be on the compensation practices at broker-dealers and other financial institutions and on the fee and revenue sharing arrangements among funds, fund sponsors and the financial institutions that offer investment advice to retail retirement clients. Although the new rule responds to many of the concerns raised by the financial services industry, compliance with the rule will require the restructuring of pay and compliance policies at financial institutions servicing retail clients.

Practical guidance from experienced ERISA lawyers.

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.

The purpose of this summary is to provide excerpts of selected Financial Industry Regulatory Authority (FINRA) Regulatory Notices and Disciplinary Actions issued in April, May, and June 2010.

The paper provides excerpts from FINRA Regulatory Notice 10‐18, Master Accounts and Sub‐Accounts; 10‐22, Regulation D Offerings; 10‐23, Trade Reporting and Compliance Engine (TRACE); 10‐24, Trade Reporting; 10‐27, Customer Complaint Reporting; and 10‐30, Trading‐Pause Pilot Program; provides summaries of selected disciplinary actions.

(10‐18) If a firm has notice that the sub‐accounts of a master account have different beneficial ownership (but does not know the identities of the beneficial owners) or the firm is privy to facts and/or circumstances that would reasonably raise the issue as to whether the sub‐accounts, in fact, may have separate beneficial owners, then the firm must inquire further and satisfy itself as to the beneficial ownership of each such sub‐account. (10‐22) A broker‐dealer has a duty – enforceable under federal securities laws and FINRA rules – to conduct a reasonable investigation of securities that it recommends, including those sold in a Regulation D offering. (10‐23) On February 22, 2010, the SEC approved the second major proposed expansion of TRACE to include Asset‐backed Securities as TRACE‐Eligible Securities, to require the reporting of Asset‐backed Securities transactions and to establish reporting fees. (10‐27) Starting on July 1, 2010, the beginning of the third calendar quarter, firms must use revised and new product codes to report statistical information regarding written customer complaints relating to annuities and life settlement products. (10‐30) On June 10, 2010, FINRA began a pilot program in which it will halt trading otherwise than on an exchange with respect to securities included in the S&P 500® Index where the primary listing market has issued a trading pause due to extraordinary market volatility. Selected disciplinary actions: FINRA announced that it has settled charges with two additional firms relating to the sale of auction rate securities (ARS) that became illiquid when auctions froze in February 2008. FINRA announced that it has fined five broker‐dealers a total of $385,000 for the illegal sale of more than 8 billion shares of penny stock on behalf of their customers.

These are direct excerpts designed to provide a useful digest for the reader and an indication of regulatory trends. The FINRA staff is aware of this summary but has neither reviewed nor edited it. For further detail as well as other useful information, the reader should visit www.finra.org.

The purpose of this paper is to highlight not only the pre‐closing, but also the continuing due diligence required of all parties in private placement life insurance or annuities invested in hedge funds.

This technical paper describes the due diligence process for these high‐end offerings, illustrating key concerns through case studies.

Recent events have caused the advantages, disadvantages and timing issues to crystallize, together with what issues require pre‐closing and post‐closing due diligence.

This paper provides timely guidance from experts approaching the issues from multiple disciplines – law, accounting, and financial analysis – to yield a comprehensive analysis of the position of all parties to the transaction.

This study uses content analysis of disclosures under the Japanese Stewardship Code to examine how investee company audit fees are influenced by institutional investor governance.

Scores are developed based on objective and verifiable Code disclosures made by the top-five institutional investors of Nikkei 225 index companies. The scores are related to management of conflicts of interest, monitoring actions and resource availability connected with stewardship.

The results show that higher scores on monitoring and resource availability are associated with lower audit fees. The extent of resources that institutional investors allocate to playing an effective stewardship role is found to be the primary determinant of their influence on audit fees. Overall, the findings are consistent with governance by institutional investors reducing audit risk and audit effort, which leads to lower audit fees.

The study offers new insights because there is no apparent prior research that uses Code disclosure content to measure institutional investor governance. This provides new information on the open question of the relation between audit fees and institutional investor governance.

This paper aims to analyze a special corporate banking product, the so-called cash-pool, which gained remarkable popularity in the recent years as firms try to centralize and manage their liquidity more efficiently.

A Monte Carlo simulation has been applied to assess the key benefits of the firms arising from the pooling of their cash holdings.

The main conclusion of the analysis is that the value of a cash-pool is higher in the case of firms with large, diverse and volatile cash flows having less access to the capital markets, especially if the partner bank is risky but offers a high interest rate spread at the same time. It is also shown that cash pooling is not the privilege of large multinational firms as the initial direct costs can be easily regained within a year even in the case of SMEs.

The novelty of this paper is the formalization of a valuation model. The literature emphasizes several benefits of cash pooling, such as interest rate savings, economy of scale and reduced cash flow volatility. The presented model focuses on the interest rate savings complemented with a new aspect: the reduced counterparty risk toward the bank.

Identifies fundamental errors, both mathematical and methodological, in the purported $17 billion annual benefit from the U.S. Department of Labor’s Conflict of Interest Rule, commonly known as the Fiduciary Rule.

Examines the methodologies and data used by the Council of Economic Advisers (CEA) in calculating the estimated $17 billion benefit of the Fiduciary Rule, and then recalculates the benefit according to the CEA’s stated methodologies and data descriptions. The approach is non-partisan, the review apolitical.

The article concludes that the estimated $17 benefit from the DOL’s Fiduciary Rule was grossly exaggerated and that other data suggests the Rule may not provide meaningful new protections for investors.

From the perspective of staunch fiduciary advocates, the calculation of the benefit to IRA investors from the DOL’s Fiduciary Rule is examined. The current measures that protect individual investors are also noted. The information may provide a turning point in the discussion of the Rule’s delay and potential rescission. It may also provide relevant points for the DOL to consider as it carries out its task of re-evaluating the Rule.

To describe the need and suggest guidelines for a formal, written manual that provides a firm, its registered representatives, and its supervisory principals a line of defense against costly repercussions from sales practice violations.

Discusses regulations concerning the suitable sales of securities to customers, the legal basis for reasonable supervision, why a brokerage firm's business model should guide it in building its manual, contents of a prototype manual, how investment objectives and risk tolerance should be considered, how performance information is disclosed so it is understandable to the customer, both justifiable reasons and dangers related to switching a customer from one fund to another, commission savings issues (including breakpoints, letters of intent, rights of accumulation, and reinstatement privileges), and home office supervision of reps and supervisory principals.

Regulators are concerned with an investment firm's culture of compliance, including its written supervisory procedures and evidence of supervisor training and compliance performance. To support principals charged with supervising registered reps and investment adviser reps, a firm should have a formal training program that starts out with a well‐thought‐out mutual fund suitability guidelines manual.

A hands‐on guide for writing an important manual by a specialized investment compliance lawyer.