The walls
of Mercer Bullard’s office at the University of Mississippi
provide a revealing glimpse of the public and private life of
the fund industry’s gadfly.
A photograph of an aging Walt Whitman, the subject of
Bullard’s Yale thesis as an English lit major, stands watch
above his desk. Artwork by his three children, along with a
Georgia O’Keeffe print, hangs nearby. And scattered throughout
are framed copies of articles chronicling the 42-year-old
Bullard’s growing influence as founder of Fund
Democracy, an industry watchdog group he founded in 2000.
That influence has been on display ever since the fund
scandals started appearing on the front pages of mainstream
newspapers. But make no mistake, Bullard is no
Johnny-come-lately when it comes to influencing change in the
fund industry. Ever since launching Fund Democracy, Bullard
has shown he can pressure regulators and fund groups to alter
the way they do business.
Now, amid the burgeoning scandals and resulting cries for
reform, he is playing a key role in shaping pending changes in
the industry.
“This is the biggest opportunity I may see in my lifetime
to accomplish significant mutual fund reform,” says Bullard,
who is an assistant professor at the University of Mississippi
School of Law. “My focus is first, teaching my classes and
second, to get good laws made that will serve mutual fund
shareholders.”
Bullard’s aim is both to help curb the current trading
abuses and to address broader problems in the fund industry.
His zeal for reforming the fund industry comes from his
conviction that the industry’s health may soon become crucial
to nearly every American. If Social Security is privatized as
some predict and as the president has said he intends
partially to do, assets could pour into mutual funds like
never before, says Bullard. And if those products are tainted,
it may well spell disaster for millions of retirees, he says.
His crusade began in 2000, when he left the SEC to start
Fund Democracy. At the time, many ridiculed Bullard for
passing up the generous salary of a fund lawyer to fight for
needless changes in a pristine corner of the financial
services industry.
But Bullard managed to silence many of his detractors in
May 2000 when he successfully pressured Barclays Global
Investors to add disclosure on a series of exchange-traded
funds.
Bullard, who at the time worked as a one-man operation out
of his basement, brought Barclays plans for the new ETFs to a
screeching halt by filing a complaint with the SEC and
requesting a hearing with the regulator. That could have
stalled the launch of the ETFs for months, costing Barclays
millions in lost revenues.
Rather than fight Bullard and the Consumer Federation of
America, which filed the complaint with Bullard, Barclays
decided to acquiesce to their demands. It added disclosure to
the funds’ prospectuses, its website and annual report noting
that the funds often trade at a premium or discount to their
net asset value.
Bullard also won another partial victory in 2001, when he
raised issues about the SEC’s process of granting exemptions
to funds seeking permission to replace subadvisors without
shareholder approval. Again, Bullard filed for a hearing with
the SEC on the matter, halting the flow of the regularly
requested exemptions for over two months. Although the SEC
denied Bullard’s request, he managed to create a regulatory
pile-up at the SEC, further establishing himself as a force to
be reckoned with in the industry.
Bullard’s lobbying has contributed to the passage of the
fund names rule, which requires mutual funds to hold at least
85% of their assets in the securities implied by their name.
He also fought successfully for pay parity for SEC staff and
expanded disclosure of funds’ portfolio holdings. The former
has been enacted and the latter is being more seriously
considered in the wake of the scandal.
Of course, Bullard’s tactics in bringing about change have
earned him few friends in the fund industry.
Before the fund scandal began, Bullard was seen by some as
a rabble-rouser with little constructive impact on the
industry.
Financial Research Corp. president Neil Bathon says
that Bullard has never worked at a mutual fund company. As a
result, his recommendations often aren’t based upon practical
knowledge of what’s feasible and what isn’t, he says.
And one industry attorney says that Bullard can sometimes
be abrasive.
“Mercer’s rhetoric against the industry is quite sharp,” he
says. “He attacks people more than he should.”
But the attorney also admits that for the most part,
Bullard is on point and is what the industry needs right now.
That has put him in demand by lawmakers and fund industry
heavyweights who are seeking him out both to tap his expertise
and sway his opinion in the rulemaking sessions that lie
ahead.
“I get calls from the SEC and the Investment Company
Institute all the time,” Bullard says.
At the end of January, industry leaders including
Shearman & Sterling partner Barry Barbash,
Vanguard founder John Bogle, ICI executive vice
president Paul Haaga , Morningstar managing director
Don Phillips, House Committee on Financial Services senior
counsel Linda Rich and SEC division of investment management
director Paul Roye will convene in sleepy Oxford, Miss., to
attend the Mutual Fund Summit, a brainstorming powwow
spearheaded by Bullard to build consensus on reform.
But Bullard has more than just industry insiders watching
him. To be sure, his influence can be seen in the legislation
being floated on the Hill. For instance, Bullard, in
coordination with a series of consumer rights groups, first
introduced the idea of a mutual fund oversight board similar
to the Public Company Accounting Oversight Board. That idea
found its way into a mutual fund bill sponsored in November by
Senator John Kerry (D-Mass.). Bullard was also an early
advocate of requiring funds to have independent boards,
lobbying for it soon after he launched Fund Democracy. That’s
now one of the key issues being debated, and the Baker bill
passed the House with a provision mandating independent board
chairmen.
Meanwhile, Bullard is making the most of his newfound
popularity and is taking measures to increase Fund Democracy’s
power and influence. The organization has been ramping up its
efforts in the past year. For starters it’s begun teaming up
with consumer action groups, with Bullard adding his legal
expertise in fund products to their political clout.
A number of new members, including the AFL-CIO, U.S. Public
Interest Research Group, Financial Planning Association,
Consumer’s Union and National Association of Investors, have
signed on with Fund Democracy.
Their participation allows Bullard to claim that he’s
speaking for a broad swath of mutual fund investors when he
submits rulemaking petitions to the SEC and campaigns for
changes. In return for their $25 annual membership fee, the
groups gain access to Bullard’s depth of knowledge on fund
legal issues.
The rate is nominal because using membership to fund
operations isn’t a goal for Bullard. Instead, he selects
members because of their clout with consumers. The fee is
merely a formality to give the group legal standing.
“People like Mercer are few and far between in financial
services,” says Dennis Genord, manager of mutual funds for the
National Association of Investors. “He’s close to the
environment. He’s worked with the SEC and he’s very passionate
about different areas of reform. He’s not just a paper-pusher.
He gets things done.”
Bullard’s early cry for industry reform also helps his
credibility.
“He pointed out early on that while mutual funds were
better than the rest of the [financial services] industry,
there were still lots of ways that small investors didn’t get
the treatment they should,” says Sally Greenberg, general
counsel of the Consumer’s Union. “No one was interested until
Eliot Spitzer began exploring industry practices. But Mercer
was one of the first people that came to us and said we should
be looking at these things.”
In addition to the broader representation, Bullard benefits
from Fund Democracy’s status as a membership-based
organization in another important way. He is now able to sue
the SEC if he wants. That’s because the organizational
structure gives him legal standing. He’ll use that in the near
future, he says, to sue the SEC for not finalizing a
broker-dealer rule it proposed four years ago.
One of Bullard’s key tools in bringing about change on
mutual fund issues, however, has been his use of the media.
In addition to authoring a series of articles for
TheStreet.com over the years, Bullard has been
extensively quoted in a range of well-known publications.
That’s raised Bullard’s profile while calling attention to the
changes he’s championed.
“The SEC is just starting to realize that the press is the
forum in which all of these rules will be decided,” Bullard
says.
The media exposure may have raised his profile, but it also
subjected him to the scorn of many in the industry who felt
that Bullard was using the public spotlight to unfairly bash
the industry. But Bullard says he deliberately picked issues
he believed he could win.
That kind of strategic thinking has been a hallmark of his
career in the fund industry. It’s what drove him to law school
after a postgraduate position as a defense industry analyst.
At the time, Bullard had whittled his choices down to law
school or business school, and finally decided that a legal
career would offer greater intellectual satisfaction.
After law school, he took a position at Wilmer, Cutler
& Pickering, the so-called lawyers’ lawyers. There, he
worked with partner Marianne Smythe. The former division of
investment management chief sparked Bullard’s interest in
mutual fund regulation. After three years of counseling fund
clients, Bullard decided he needed direct regulatory
experience and moved to the SEC as associate counsel in the
division of investment management.
During those years, Bullard noticed a conspicuous absence
of true shareholder representation. That, coupled with huge
growth in mutual fund assets and a bull market that seemed
destined to come crashing down, led him to found Fund
Democracy, he says.
But convictions and idealism go only so far. After starting
Fund Democracy, Bullard says he had a crisis in faith as to
whether or not the fund industry truly needed a watchdog. Then
Spitzer made his announcement in September.
“Before the scandal, I was beginning to think the industry
was too clean,” he says. “I was starting to look into banking
and payday lending.”
That’s not to say Fund Democracy will only ever focus on
funds.
“At some point, I may expand Fund Democracy into other
financial services industries,” says Bullard. “But mutual
funds will be at the core of our activities because that’s
where the money is.”
And Bullard isn’t finished with his efforts to reform the
fund industry, he says. There are a number of issues that
continue to concern him. For now, Bullard appears to have his
hands full with the industry’s pending reforms. The other
issues will have to wait another day before appearing as
framed stories on the walls of Bullard’s office.
Contact Alison Sahoo at asahoo@ignites.com