The jury did not buy the Wulf defense, and now the former NPS fund manager faces a much, much longer prison term than Doug Cassity. To get a better understanding of the positions taken by the prosecution and the defense, we will seek briefs and jury instructions. However, the US Attorney’s press release gives some hints at what arguments were used to persuade the jury. The second paragraph of the press release states:
Wulf was appointed in the 1980’s to serve as the independent investment advisor to the preneed funeral trusts established pursuant to Missouri statutes by National Prearranged Services, Inc. (“NPS”). As the trusts’ advisor, Wulf was responsible for protecting, investing and managing the trusts’ assets, which included more than $150 million paid by customers who were told their funds would be kept safe until the time of need.
Two words jump out at this author: protecting and managing. The US Attorney argued that the fund manager had duties beyond providing investment advice. So, when NPS requested his consent to certain trust distributions, Mr. Wulf’s duty to protect and manage the trust assets required actions that he did not perform. At first blush, the prosecutor’s standard for the death care fund manager would seem substantially higher than compliance with either the prudent man rule or the prudent investor rule.