7 - A System of Fiduciary Protections for Mutual Funds

Summary

The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as officials and analysts attempt to balance the cost of compliance and oversight against benefits to investors. Government officials have made numerous accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced system of fiduciary protections for mutual funds. This chapter suggests areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.