NASD Fines Two Fidelity Brokerage Subsidaries $400,000 for Distributing Misleading Sales Literature Regarding Systematic Investment Plans Sold to Military Personnel

The NASD announced this week that it fined two Fidelity brokerage firms $400,000 for preparing and distributing misleading sales literature promoting Systematic Investment Plans, which were sold primarily to U.S. military personnel. Issuance and sales of new systematic investment plans after these were prohibited by Congress last fall.

The NASD found that between January 2003 and January 2006, the two firms violated NASD advertising rules by preparing and distributing misleading sales literature. From May 2003 through January 2006, the Fidelity firms prepared and distributed a brochure entitled “Time is Money” that included misleading performance claims about its “Destiny Plans”. According to “mountain charts” contained in the brochures, these plans significantly outperformed the S&P 500 Index over a 30-year period. Yet, during the most recent 10- and 15-year periods-the time frame most relevant to current and prospective investors – Destiny Plans substantially underperformed the S&P 500 Index.

The brochures also showed average annual total returns for 1, 5 and 10 years as well as the life of the Plan, without showing comparable returns for the S&P 500 Index. This also created the misleading impression that the plans outperformed the S&P 500 Index when instead that index significantly outperformed the plans.

The Fidelity brokerage firms also used the performance of one class of the shares in charts, when investors could actually only purchase another class which did not perform as well because of higher expenses. The broker-dealers prepared and sent over 10,000 copies of these brochures for use by their registered representatives.

The NASD also found that the Fidelity firms also prepared and distributed a misleading newsletter to over 325,000 of the plan holders with a chart showing plan performance. However, the chart demonstrated performance of the underlying mutual fund portfolio rather than the performance of the plan itself which, after sales fees and expenses were charged, significantly reduced the plan’s performance.

The NASD further found that Fidelity did not adequately supervise the review of the sales literature in light of the unusual features of these products.