Shareholders challenging fees paid to the advisers of their mutual funds in civil lawsuits under §36(b) of the Investment Company Act face steep substantive and procedural challenges, but a recent decision from the federal district of New Jersey holds promise for private plaintiffs in this area. The central allegation in Kasilag v. Hartford Investment Financial Services1 was that the defendant investment adviser retained sub-advisers to perform substantially all of the investment management services for the defendant’s client mutual funds, and then charged its fund clients much higher investment management fees than what those services actually cost defendant. Based on these allegations, the federal district court denied the investment manager’s Rule 12(b)(6) motion to dismiss and allowed the shareholders’ lawsuits to proceed.
The victory for the plaintiffs in Kasilag stands in contrast to the defeats of many other prior plaintiff shareholders who could not present convincing evidence that the challenged advisory fees were excessive. Forced to rely on speculative arguments as to what discovery would reveal, these plaintiffs often were unable to survive the crucial pretrial motion to dismiss stage, and, even if they did get past this stage, inevitably lost at either the summary judgment stage or trial. By highlighting the role of the sub-advisers, the plaintiffs in Kasilag were uniquely able to make a plausible showing that the defendant’s investment management fees were excessive under the circumstances.
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