The SEC announced a settlement in an enforcement proceeding against eight former directors of five Regions Morgan Keegan open- and closed-end funds that were heavily invested in securities backed by subprime mortgages. The proceeding, which began in December 2012, alleged that the directors failed to satisfy their pricing responsibilities under the federal securities laws.
Under the securities laws, fund directors are responsible for determining the fair value of portfolio securities for which market quotations are not readily available. In addition, fund directors must determine the methodologies to be used to fair value securities and must periodically reevaluate the appropriateness of those methodologies. The Commission made clear in Accounting Series Release No. 118 (Dec. 23, 1970) and In the Matter of Seaboard Associates Inc., Investment Company Act Release No. 13890 (April 16, 1984) that while fund directors may engage others to assist them to calculate fair values of these securities, they continue to be ultimately responsible to determine fair value in good faith.
The settled order finds that the eight directors failed to satisfy these responsibilities. Specifically, the directors delegated their fair valuation responsibility to a valuation committee without providing adequate substantive guidance on how fair valuation determinations should be made. The directors then made no meaningful effort to learn how fair values were being determined. They received only limited information about the factors involved with the funds' fair value determinations, and obtained almost no information explaining why particular fair values were assigned to portfolio securities. The limited information provided to the directors was particularly problematic because fair valued securities comprised a significant percentage of the funds' net asset values (NAVs) - in most cases above 60 percent.
The settled order finds that the valuation committee to whom the directors delegated the fair valuation responsibilities did not utilize reasonable procedures and often allowed the portfolio manager to arbitrarily set values. As a result, the settled order finds that the funds overstated the value of their securities as the housing market was on the brink of financial crisis in 2007. The SEC and other regulators previously charged Morgan Keegan and others, and the firms later agreed to pay $200 million to settle charges related to that conduct.
For more information regarding SEC enforcement actions and the defense of those accused, contact Mark Astarita at Sallah Astarita & Cox, LLC. For more information on this particular case, seeit Former Mutual Fund Directors Agree to Settle Claims That They Failed to Properly Oversee Asset Valuation.