Chicago Business Litigation Lawyer Blog
In a mutual fund’s shareholder dispute, the Seventh U.S. Circuit Court of Appeals ruled on May 19 that an investment advisor’s fiduciary duty to shareholders does not require that the advisor’s fees be “reasonable” by any legal definition. In Jones v. Harris Associates L.P., 07-1624 (7th Cir. 2008), the circuit affirmed a summary-judgment ruling in favor of the mutual fund manager by the U.S. District Court for the Northern District of Illinois.
Three shareholders in the Oakmark complex of mutual funds sued the fund’s advisor, Harris Associates, contending that the fees they paid toward Harris’s compensation were too high. The bulk of the opinion (which the majority called “the main event”) concerned section 36(b) of the Investment Company Act, an amendment to the 1940 act added in 1970. That law gives investment advisors at registered investment companies a fiduciary duty to shareholders with regard to any compensation they or their affiliates receive. However, said the Seventh Circuit, “a fiduciary duty differs from rate regulation…. Section 36(b) does not say that fees must be ‘reasonable’ in relation to a judicially created standard. It says instead that the adviser has a fiduciary duty.” The court goes on to note that fiduciary duty is well-defined in trust law and does not foreclose an advisor’s ability to negotiate for compensation.
In doing so, the court disapproved caselaw from Gartenberg v. Merrill Lynch Asset Management, Inc., 694 F.2d 923 (2d Cir. 1982). That case requires that “[t]o be guilty of a violation of §36(b) . . . the adviser-manager must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining.”
In addition to the amendment, the plaintiffs’ case relied on multiple parts of the original Investment Company Act, all of which were deemed moot for various reasons by the majority.