J.P. Morgan Settles Share Class Upcharge Challenge from SEC

The SEC says the firm disadvantaged certain retirement plan customers by failing to provide them with less expensive share classes for which they were eligible.

J.P. Morgan Securities (JPMS) has submitted an order of settlement to the Securities and Exchange Commission (SEC) to resolve the market regulator’s allegations that it disadvantaged certain retirement plan and charitable organization clients.

SEC documents show the regulator will accept the settlement order, in which J.P. Morgan Securities neither admits nor denies the SEC’s findings.

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According to an SEC investigation, from at least January 2010 through December 2015, J.P. Morgan Securities “disadvantaged certain retirement plan and charitable organization brokerage customers who maintained accounts at JPMS by failing to ascertain that they were eligible for a less expensive share class, and recommending and selling them more expensive share classes in certain open-end registered investment companies when less expensive share classes were available.”

The SEC says J.P. Morgan Securities did so without disclosing that it would receive greater compensation from the eligible customers’ purchases of the more expensive share classes.

“Eligible customers did not have sufficient information to understand that JPMS had a conflict of interest resulting from compensation it received for selling the more expensive share classes,” the SEC says. “Specifically, JPMS recommended and sold these eligible customers Class A shares with an up-front sales charge, or Class B or Class C shares with a back-end contingent deferred sales charge and higher ongoing fees and expenses, when these eligible customers were eligible to purchase load-waived Class A shares.”

The SEC further alleged that J.P. Morgan Securities omitted material information concerning its compensation when it recommended the more expensive share classes.

“JPMS also did not disclose that the purchase of the more expensive share classes would negatively impact the overall return on the eligible customers’ investments, in light of the different fee structures for the different fund share classes,” the SEC says. “In making those recommendations of more expensive share classes while omitting material facts, JPMS violated Sections 17(a)(2) and 17(a)(3) of the Securities Act. These provisions prohibit, respectively, in the offer or sale of securities, obtaining money or property by means of an omission to state a material fact necessary to make statements made not misleading, and engaging in a course of business which operates as a fraud or deceit on the purchaser.”

In determining to accept the settlement offer, the SEC considered remedial acts promptly undertaken by JPMS and cooperation afforded the Commission staff, including that JPMS voluntarily identified and converted eligible customers into a lower-priced share class, and repaid eligible customers, including through reimbursement of transactions outside the relevant period.

Specifically, JPMS identified approximately 16,734 eligible customers that paid a total of $16,283,277 in upfront sales charges and higher ongoing fees and expenses. The SEC says JPMS has issued payments (including interest) to approximately 16,335 accounts, representing approximately 98% of eligible customers, by crediting the accounts of current customers and mailing reimbursement checks or otherwise directing payments as instructed by former customers. JPMS also has converted all eligible customers holding Class B and Class C shares to Class A shares with the lowest expenses for which they are eligible, at no cost to the customers.

Retirement Savings Options for the Self-Employed

Advisers share ideas for advisers to help small business owners and those who are self-employed save for retirement.

There are a number of options that retirement plan advisers can suggest to the self-employed and small business owners to help them save for retirement.

Serving this group is important, because a recent study by Manta, which helps small businesses market themselves, found that one-third of small business owners don’t have a retirement plan, says Rodger Parker, president and CEO of Parker Financial Group.

“And of those with a retirement plan, 21% have tapped into those funds to keep their business going,” Parker says. Since such a large percentage don’t have a plan, they definitely need the help of advisers, he says.

The two most prevalent retirement savings plans that the self-employed or small business owners use are Simplified Employee Pension Individual Retirement Arrangements (SEP IRAs) and Solo 401(k)s, says David Flores Wilson, founder of Planning To Wealth. Depending on how the business is structured, that is, whether it is a S Corp or a Limited Liability Corporation (LLC), the business owner will be able to contribute 20% to 25% of his salary to both of these options, or $57,000, a year, whichever is less, he says.

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Chad Parks, founder and CEO of Ubiquity Retirement + Savings,  likes Solo 401(k)s because like regular 401(k)s, “assets in the plan are covered under ERISA [the Employee Retirement Income Security Act], and the assets are protected from any liability, lawsuit or bankruptcy you might face. A SEP IRA doesn’t have the same protections.”

There is also a SIMPLE (Savings Incentive Match Plan for Employees) IRA, Parker notes. It permits contributions of $13,500 a year plus an additional $3,000 for those 50 and older, he adds. The only downside to these is that “they are a little more complicated due to accounting rules.”

In addition, there are Keogh plans, which can be set up either as a defined contribution or defined benefit plan, says Cheryl Heilman, president of Bankers Life Securities. Contributions are generally tax deductible and are set by the IRS each year up to a certain percentage of salary.

Those who do not think they can afford to save more than $6,000 a year should consider a “good old fashioned IRA,” Parks says. “If you can save more, the next level up are SEP IRAs. With these, you can save 25% of your salary or $57,000, whichever is less. SEP IRAs for the self-employed are a fine solution because they have high savings limits and are tax deductible. However, the limitation is tricky because it is a calculation of your net income. You have to pay Social Security and Medicare tax.”

The self-employed and small business owners should also take advantage of health savings accounts (HSAs) and 529 college savings plans, Flores Wilson recommends.

One of the main reasons the self-employed and small business owners don’t get around to saving for their retirement is because they are so focused on growing their business, says Chuck Czajka, founder of Macro Money Concepts. This is why he recommends using Section 7702 of the tax code to buy life insurance. “Money in the policies is liquid, and when you take the money out, it is tax free,” Czajka says. “The money will be available to the business owner while he is growing his business without being severely penalized and taxed.”

Another reason Czajka recommends this strategy over a qualified account is that taxes under the Trump Administration are low right now. “Rather than recommending to a 35-year-old to lock their money away for 30 years, I think it is preferable for them to buy life insurance and take it out when it is going to be taxed less,” he says.

The type of insurance he generally recommends is traditional whole life insurance that pays dividends through a rider called “paid up additions.” “With this type of insurance, it is self completing,” Czajka says. “Should you become disabled, the insurance company will continue paying your premiums, and you can use the death benefit while you are alive for long-term care and chronic illness.”

Parker also recommends indexed universal life insurance policies, which are linked to a stock index. “If the market goes up, you get the upside up to a cap,” he says. He also recommends fixed indexed annuities, which also are linked to a stock index. In the case of both of these options, he notes, should the market go into negative territory, the owner’s account offers zero gain.

For those who a “super high earners,” Parks recommends a 401(k) with a cash balance plan added on.

Recommending at least one of these options is critical, Heilman says. “With roughly a third of all working Americans expected to be self-employed this year, retirement savings options for entrepreneurs are becoming increasingly popular,” she says. “If you are self-employed, you need to be disciplined about saving for retirement because, oftentimes, you trade off your future to continuously invest in your business.”

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