Ex-SEC Official an Effective New Voice For Fund Owners

A few years ago, I was on the education committee of the powerful Securities Industry Association. It created and promoted several significant educational programs to member firms such as Merrill Lynch and Prudential Securities. The only thing that frustrated me was the inability of the committee to take any program directly to the consumer. While the consumer was the ultimate beneficiary, all programs had to be filtered through member firms.

Since then, I have tried to identify people and groups that create an advocacy for the consumer on mutual-fund issues. Of course, the most obvious advocate is the great John Bogle, founder of the Vanguard Group. Another is Don Phillips, the brilliant, peripatetic CEO of Morningstar. Not a day goes by without a reference to him and his company. Then there is the Alpha Group, founded by Harold Evensky and several of his associates. Their message should especially be effective because they actually manage portfolios of mutual funds for clients.

Mutual-fund companies consist of some of the richest and most powerful institutions on earth. It seems like only the flow of money in or out of their coffers has outside voting power on issues that affect the consumer. Consumer pressure groups seem to have only limited impact, but they are important because they keep the issues in circulation, especially with the media. The most obvious issues relate to lower costs, frequent and full disclosure of mutual-fund portfolios, and effective and objective boards of directors.

There are lots of other issues, and there is a powerful new voice raising them. His name is Mercer Bullard, and he writes a column occasionally for TheStreet.com. He is the 39-year-old founder of Fund Democracy in Chevy Chase, Md. Until January, he was assistant chief counsel to the Security and Exchange Commission's Division of Investment Management. He has the background and credibility to be an effective advocate for mutual-fund shareholders. Part of the challenge of an advocate is to understand the structure and politics of the system. He has that in spades.

It is significant that he's had inside experience with the SEC. He knows the players. It seems most of the SEC's time is consumed by issues coming from the fund industry itself. It simply doesn't have much time to spend with consumers directly. Bullard knows how to get the commission's attention. For instance, he filed a rule-making petition with the SEC that calls for monthly disclosure of fund holdings, clearer definition of fund names and a requirement that funds post holdings on the Internet.

While Bullard believes "Directors are basically doing a good job," he thinks the legal standard by which mutual fund management fees are judged is woefully inadequate. The landmark case that set the legal standard was in 1982, in Gartenberg vs. Merrill Lynch Asset Management. The standard states that for a fee to be excessive it must be "so disproportionately large that it bears no reasonable relationship to the services rendered, and could not have been the product of arms-length bargaining." That is not exactly a tamper-proof directive.

You can easily get an introduction to all of Bullard's activities by going to his Web site, www.funddemocracy.com, where he promises to "give you an extra edge by rating funds based on policies and practices that can affect fund performance and your overall satisfaction with your investments." His articles for TheStreet.com on portfolio pumping and window dressing, fund performance claims, fair-value pricing and 401(k) plan disclosure also are illuminating.

On Oct. 12, Bullard is sponsoring a symposium titled, Toward Truth in Mutual Fund Investing, in Washington, D.C. The significance of this event cannot be overstated. The country's top mutual-fund regulator, Paul Roye, director of the SEC's investment management division, is a featured participant. Morningstar's Phillips and Alpha Group's Evensky also are participants.

This could easily become a groundbreaking event for the mutual-fund shareholder. The most interesting effect will probably be on those mutual-fund companies that place more emphasis on their companies' shareholders than on their mutual-fund shareholders. They may hope these voices will be silenced, but they may also learn there are at least two sides to the capitalistic coin.