IMHO: Somebody’s Got To Pay

Much has been made in recent weeks over the so-called Ponzi scheme foisted on the investing public by Bernie Madoff.
The classic elements are all there: the promise of future returns that are, in reality, fueled by new investors lured by the promise of future returns that are…well, you know. Of course, the perpetrators of these schemes manage along the way to siphon off their cut from the flow of funds. Human beings fall prey to such schemes all the time, and for a variety of reasons: gullibility, greed, and sometimes a simple willingness to trust the wrong people. Madoff, whose role in worsening the current economic crisis is still surely underappreciated, managed to play on those tendencies better and for longer than most.
We’ve already seen some $350 billion worth of government bailout absorbed by the system like so much water into a thirsty sponge. And, since that didn’t work, the answer apparently is to double down—and then some. Which, IMHO, calls to mind a comment candidate Obama made during the campaign about the definition of insanity….1
Now, in fairness, the new spending isn’t being sent in the same direction as the last bailout (or whatever euphemism you’re most comfortable using). Of course, as far as I can tell, that first package (which by most accounts was strongly influenced, if not architected, by the new Secretary of the Treasury) didn’t wind up going in the direction(s) we were told it would—and while we were told that the government needed discretion to administer the funds where it best saw fit, most Americans probably didn’t think that meant it would wind up funding big corporate takeovers and massive golden parachutes. Ultimately—let’s face it—the bill was really about helping financial institutions stay in business, and, once that money was in hand, many proceeded to do just that.
On the other hand, if that first package was ill-approved in haste, the second wave approved by the U.S. House last week was, in almost every respect, IMHO, a slap in the face of American taxpayers. You don’t have to have (or win) the argument about whether infrastructure spending is truly stimulative to the economy or just a necessary investment to realize that much of what the members of Congress (at least the ones who voted for this monstrosity) apparently want us to pay for is—their reelection.
Something’s “Fishy”
What seems to be lost in the furor over needing to DO something—and we’re all surely anxious for things to get better—is that the federal government doesn’t have its own bank account. And for all the talk of the burden we’re leaving our grandchildren, there is a fiscal reality coming, and probably sooner than that. We all know this at some level—just as we all knew that that housing bubble was going to burst eventually, that those paper business plans couldn’t possibly justify that kind of market valuation for technology start-ups, and that there had to be something fishy about how Enron was reporting its revenues.
In sum, we all know this is wrong, if not criminally stupid. Maybe we’re not quite sure what to do, and perhaps we’ve been hopeful that wiser minds than ours can figure something out. However, if this is the best they can do—well, then, IMHO, it’s time to take away their ATM card—which, lest we forget, is wired to OUR bank accounts.
Now, in this, as in life generally, it’s relatively easy to sit on the sidelines and criticize those who don’t have that option. This is the time, even if you’ve never felt the urge before, to weigh in with those making decisions that will affect your job, your investments, your retirement….
Before it’s too late….because, sooner or later, somebody has to pay.

 


 

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1He quoted Albert Einstein who noted that doing the same thing over and over again and expecting a different result was the definition of insanity.

SEC Charges Merrill With Misleading Pension Clients

Just over a year after launching an investigation, the Securities and Exchange Commission (SEC) has charged Merrill Lynch and two of its former investment adviser representatives for misleading pension consulting clients.
The SEC said that the firm misled pension consulting clients about its money manager identification process and failed to disclose conflicts of interest when recommending them to use two of the firm’s affiliated services. Merrill Lynch has agreed to settle the SEC’s charges and pay a $1 million penalty, according to a press release.
“There has been tremendous growth in the pension consulting business in recent years. This case is an important reminder to firms and their investment adviser representatives that, whenever they sit across the table from their advisory clients, they need to make sure that all material conflicts of interest are disclosed,” said Scott W. Friestad, Deputy Director of the SEC’s Division of Enforcement.
According to the SEC’s order, Merrill Lynch failed to disclose its conflicts of interest when recommending that clients use directed brokerage to pay hard dollar fees, whereby the clients directed their money managers to execute trades through Merrill Lynch. These clients received credit for a portion of the commissions generated by these trades against the hard dollar fee owed for the advisory services provided by Merrill Lynch Consulting Services. Consequently, Merrill Lynch and its investment adviser representatives “could and often did receive significantly higher revenue if clients chose to use Merrill Lynch directed brokerage services,’ according to the SEC.
The SEC’s order finds that Merrill Lynch also failed to disclose a similar conflict of interest in recommending that clients use Merrill Lynch’s transition management desk. In addition, the SEC finds that Merrill Lynch made misleading statements to the clients served by its Ponte Vedra South, Florida office regarding the process used to identify new money managers to present to its clients (see SEC Looks into Merrill’s Florida Pension Consultancy Practice).
The SEC also charged Michael Callaway and Jeffrey Swanson, who were formerly employed in Merrill Lynch’s Ponte Vedra South office (see Merrill Closing FL Consulting Practice as Result of Controversy).
In a settled enforcement action against Swanson, the SEC found that he made misleading statements to some of the firm’s pension consulting clients regarding the process by which Merrill Lynch assisted them in identifying new managers. As a result, the SEC charged Swanson with aiding and abetting and causing Merrill Lynch’s violation of the Investment Advisers Act of 1940. Without admitting or denying the SEC’s allegations, Swanson has agreed to a censure, and to cease and desist from committing or causing violations of Section 206(2) of the Advisers Act, according to the announcement.
In the contested enforcement action against Callaway, the SEC’s Division of Enforcement alleges that Callaway breached his fiduciary duty in making misrepresentations about the manager identification process used by the Ponte Vedra South office and his compensation in connection with transition management services. The Division of Enforcement further alleged that Callaway was a cause of Merrill Lynch’s violation of the Advisers Act because he failed to ensure that Merrill Lynch disclosed to clients the conflicts of interest in recommending that clients enter into a directed brokerage relationship with Merrill Lynch and in recommending that they use Merrill Lynch for transition management services. The Division of Enforcement charged that, by this conduct, Callaway willfully aided and abetted and caused Merrill Lynch’s violations of Section 206(2) of the Advisers Act.
The SEC charged Merrill Lynch with violations of an anti-fraud provision of the Advisers Act, which does not require a showing of scienter (knowledge of the nature of one’s act or omission), according to the announcement. The SEC also charged Merrill Lynch with failing to maintain certain records and failing to supervise its investment adviser representatives in the Ponte Vedra South office. Without admitting or denying the SEC’s allegations, Merrill Lynch has agreed to a censure, to cease and desist from committing or causing violations of Sections 204 and 206(2) of the Advisers Act, and to pay a $1 million penalty.
More information is available online at http://www.sec.gov/news/press/2009/2009-13.htm

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