(you will notice that this report dates to 1998, and yet nothing has been done to address the systemic churning of customer accounts to benefit sales firms)
INVESTMENT FUNDS IN CANADA
AND
CONSUMER PROTECTION
STRATEGIES FOR THE MILLENNIUM
A Review by Glorianne Stromberg
Prepared for Office of Consumer Affairs, Industry Canada
October 1998
http://www.ic.gc.ca/app/oca/crd/dcmnt.d ... 1&lang=enghttp://www.ic.gc.ca/eic/site/oca-bc.nsf ... Canada.pdf 21. ONGOING RELATIONSHIPS BETWEEN
INTERMEDIARIES AND CONSUMER/INVESTORS
21.1. Switching and Churning
Industry participants tell me that there is substantial switching and churning of accounts going on.185
Two situations in particular appear to be giving rise to this. Both situations relate to mutual fund
securities that have been sold on a deferred sales commission basis.
The first situation relates to the permitted ten per cent per annum redemption of mutual fund securities
that may be redeemed free of any deferred sales commission or redemption fee.
I understand that some sales representatives are advising their clients (or using powers of attorney that
they have obtained from their clients) to redeem these “free shares” and to reinvest the proceeds either:
(i) in the same fund on a zero front-end sales commission basis; or
(ii) in another fund on a deferred sales charge basis.
Investing the redemption proceeds on a zero front-end sales commission basis results in the doubling
of the ongoing trailing commission that the intermediary receives.
Investing the redemption proceeds on a deferred sales commission basis results in:
(i) a new deferred sales commission period starting with respect to the mutual fund securities that
are acquired with the redemption proceeds; and
(ii) the intermediary receiving an immediate lump sum sales commission that is paid by the fund’s
manager plus an ongoing trailing commission.
When these transactions occur in a registered plan account such as a retirement savings plan or a
retirement income fund, there are no income tax consequences to the client. However, if the
transactions occur in a non-registered plan account, the transactions are a “disposition” for income tax
purposes and give rise to a realized gain or loss that the client must take into account for tax purposes.
I have been told that in some cases clients are not even aware that the transactions have occurred. If
this is so, it creates additional problems for clients whose securities are held in a non-registered plan
account.
The second situation relates to the expiration of the period during which redemptions of mutual fund
securities would give rise to a deferred sales commission. Industry participants tell me that as in the
first situation, some sales representatives are advising their clients (or using powers of attorney that
they have obtained from their clients) to redeem these mutual fund securities and to reinvest the
proceeds either in the same fund on a zero front-end sales commission basis or in another fund on a
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185 The discussion in Section 21 of this Review is confined to situations dealing with mutual funds.
Industry participants have spoken with me about the switching and churning which they say goes
on in the case of certain market-linked universal life policies. I have not, in the time constraints
applicable to this Review, been able to follow-up on this to gain a better understanding of what is
involved or the magnitude of any problems that exist.
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deferred sales commission basis. The consequences of this action are the same as those described
above in respect of the first situation.
Another consequence of the switching and churning transactions is the added record-keeping and
administrative work that mutual fund management organizations perform for distributors to keep track
of deferred sales commission transactions and the payment of ongoing trailing commissions. This work
adds costs and is another contributing factor to the increasing costs of investing that are borne by
consumer/investors.
Although individuals associated with the “manufacturers”, the “distributors” and their respective service
providers know what is going on, they remain silent. This silence and these situations are examples of
how the competitive pressure on “manufacturers” to increase sales and access to distribution, and the
competitive pressure on “distributors” to retain top performers have an impact on what happens to
consumer/investors.
It is situations like these that undermine the confidence and trust that consumer/investors are
encouraged to place in the integrity of the investment fund industry. Here the work of the relatively few
undermines the work of the many in an industry that strives hard to merit the confidence and trust of
consumer/investors.
21.2. Recommendations to Address Switching and Churning
There is no simple way to distinguish bona fide changes in investments from those that are not. There
is also no simple way to prevent the abuse of trust that results when switching and churning occurs. I
have set out some suggestions below that might help address the problems by keeping them from
occurring in the first place.
Systemic Changes - Education and Regulatory Structure
The recommendations made earlier in this Review relating to enhancing the knowledge and awareness
of consumer/investors and industry participants should help.186 In the case of consumer/investors
increased knowledge and awareness should result in a more aware, questioning client. In the case of
industry participants the enhanced knowledge and awareness of their fiduciary obligations and the
consequences of breaching them should help to reduce the incidences of abuse of trust.
A regulatory system and structure that was aligned with advisory-based relationships as opposed to
transaction-based relationships should also help.187
Systemic Changes – Compensation
Commission-based compensation is at the root of the problems relating to switching and churning. It is
also often at the root of most of the problems relating to suitability issues. This is so because as long as
there is a product-based differential in the compensation that a sales representative or adviser will earn,
the question will always arise as to whether the product that has been chosen is the best one for the
client or the best one for the intermediary. Differences in sales commissions and the opportunity to
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186 See Sections 14 and 15 of this Review.
187 See Sections 12, 13, 14, 15 and 16 of this Review.
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generate new commission payments have long been responsible for many investment changes that are
made.188
The recommendations made earlier in this Review relating to the need to align the compensation
structure so that it is more appropriate for an advisory-based relationship than for a transaction-based
relationship should serve to remove or reduce any incentive or advantage to switching and churning.
In this respect, some firms have adopted the practice of not charging commissions on switches.
Instead, a low flat administrative fee is payable. The internal compensation plans of these firms are also
designed to discourage switches.
Switch Disclosure Document
Industry participants have suggested that the best method to deal with switching and churning is to
require that a switch disclosure document be completed. They note that this type of document is used in
the life insurance industry when policyholders surrender one policy and acquire another.189
The mandatory use of a switch disclosure document should help to focus the attention of
consumer/investors on the proposed changes in their investments. This document should clearly set
forth:
(i) the change in investments that is being made;
(ii) the reason for the change;
(iii) the costs of the change;190
(iv) the income tax consequences of the change with an estimate of the amount of income tax that
will be payable; and
(v) any other information that is needed in order to illustrate the impact that the proposed changes
will have on the consumer/investor.
The switch disclosure document should be required to be signed by the client in question, the sales
representative and by the appropriate supervising officer(s) of the intermediary with whom the sales
____________________________________________
188 Industry participants have told me about attending “road shows” to launch new investment funds
and sales meetings where the people attending are urged to review their client records to identify how
much “free room” there is to switch investments without incurring sales charges. The opportunity to
earn extra commission and to be eligible for additional cooperative marketing and educational
conference support is used as a motivating force to persuade sales representatives to redirect client
investments.
189 I have been told that one of the reasons contributing to the effectiveness of the insurance
industry’s switch disclosure document to reduce unsuitable transactions is that it is a “chore” to prepare
the document and when the client sees the impact of the changes, the client often decides not to
proceed with the transaction.
190 These costs would include sales commissions or charges that are:
(i) payable directly or indirectly by the consumer/investors;
(ii) payable either immediately or at a later time; and
(iii) payable either on a lump sum basis or a continuing trailing basis.
The costs would also include any transaction or account fees and any other fees and charges that are
payable directly or indirectly by the consumer/investor in respect of the transactions. The required
information would relate to both the redemption and the reinvestment of the redemption proceeds.
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representative is associated before the transactions are processed. Powers of attorney granted to sales
representatives or to the intermediary should not be permitted to be used to eliminate the requirement
for the client’s signature. The client should receive a fully executed copy of the switch disclosure
document.
In determining the situations where a switch disclosure document is required to be used, some thought
needs to be given to ensuring that the requirements include transactions that may be designed to avoid
the requirements. An example of where this might happen is if there is a delay between the redemption
and the reinvestment of the redemption proceeds. There are other practices that may need to be
addressed such as “pre-signed” approvals by supervising personnel.
The proposals for requirements for a switch disclosure document are designed
to discourage inappropriate advice being given to consumer/investors.
They are not designed to discourage bona fide investment changes.
The switch disclosure document should be a key compliance tool to assist all intermediaries to exercise
oversight and supervision over the persons associated with the firms. To this end, there is no reason
why intermediaries could not begin using such a document immediately. The use of the document need
not await the promulgation of regulatory or self-regulatory requirements. However, ideally, the minimum
requirements for the switch disclosure document would be mandated as a condition of registration
and/or membership in a self-regulatory organization.
In the interim, consumer/investors should ask for a switch disclosure document that sets out the above
information before agreeing to a switch of the nature described above.
Enhanced Supervision and Oversight Procedures
Enhanced supervision and oversight procedures would assist in identifying and dealing with switching
and churning. The switch disclosure document referred to above is one tool. There are other review
mechanisms that could be used. What is needed is an impetus to motivate intermediaries to use these
mechanisms.
While the best impetus may be the demands of consumer/investors, the reality is that most
consumer/investors are not aware that they may be receiving inappropriate advice. Therefore the
motivation needs to come from the regulators and the self-regulators. They should take a pro-active
role in setting standards and in monitoring compliance with the standards.
They need to recognize that high standards that are implemented on a voluntary basis can place
intermediaries at a competitive disadvantage and result in sales representatives leaving to join less
principled firms. The role therefore of the regulators and self-regulators is to ensure that all players in
the industry are required to have, and to meet on an ongoing basis, the same high standards.