Managing Conflicts of Interest in the Wealth ：在财富管理利益冲突.doc

Prepared for Federated Investors, Inc. October 2006 Melanie L. Fein Goodwin Procter LLP 901 New York Avenue, N.W. Washington, D.C. 20001 (202) 346-4308  This study paper was prepared in connection with the Symposium on Conflicts of Interest sponsored by the Boston University Law School’s Center for Banking and Financial Law at Boston University Law School and Federated Investors, Inc., held on October 13, 2006, in Washington, D.C. Copyright ? Melanie L. Fein I. Introduction 1 II. The Fiduciary Relationship 3 A. The Meaning of “Fiduciary” 3 B. Fiduciary Capacities 4 1. Trustee 5 2. Investment Adviser 6 3. Broker 7 4. Custodian 9 5. ERISA Fiduciary 10 C. The Fiduciary Agreement 10 III. Sources of Fiduciary Law 11 A. Trust Law 11 B. Agency Law 12 C. Banking Law 15 1. National Bank Act 15 2. Federal Deposit Insurance Act 17 3. State Banking Laws 18 D. Securities Laws 18 1. Investment Advisers Act of 1940 18 2. Securities Exchange Act of 1934 21 3. State Securities Laws 22 E. Employee Retirement Income Security Act of 1974 23 F. Contract Law 23 IV. Fiduciary Duties 24 A. Fiduciary Duties of Trustees 25 1. Duty of Loyalty 26 2. Duty of Care, Skill, and Ordinary Prudence 28 3. Duty to Invest as a Prudent Investor 28 4. Duty to Delegate 29 5. Duty to Avoid Excessive Costs 29 6. Duty of Confidentiality 31 7. Duty of Fair Dealing and Disclosure 32 8. Duty of Reasonable Compensation 32 B. Fiduciary Duties of Agents 33 1. Duty of Loyalty 36 2. Duty of Care, Competence, and Diligence 38 3. Duty of Confidentiality 38 4. Duty to Follow Instructions 39 5. Duty to Provide Information 39 C. Fiduciary Duties Under ERISA 39 V. Regulatory Duties 41 A. Duties of Banks 42 1. Duties under 12 U.S.C. § 92a 42 2. Duties under “Applicable Law” 42 3. Duties Regarding Conflicts 42 4. Duties of Bank Investment Advisers 43 5. Compliance Duties 44 B. Duties of Investment Advisers 45 1. Duty of Utmost Good Faith 46 2. Duty of Disclosure 46 3. Compliance Duties 47 4. Code of Ethics 48 C. Duties o