fiduciary duty sup ct 4 13 2012
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IN THE SUPREME COURT OF THE UNITED STATES
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JERRY N. JONES, ET AL., :
Petitioners :
v. : No. 08-586
HARRIS ASSOCIATES L.P. :
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Washington, D.C.
Monday, November 2, 2009
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 10:04 a.m.
APPEARANCES:
DAVID C. FREDERICK, ESQ., Washington, D.C.; on behalf of
the Petitioners.
CURTIS E. GANNON, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington,
D.C.; on behalf of the United States, as amicus
curiae, supporting the Petitioners.
JOHN D. DONOVAN, JR., ESQ., Boston, Mass.; on behalf of
the Respondent.
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C O N T E N T S
ORAL ARGUMENT OF PAGE
DAVID C. FREDERICK, ESQ.
On behalf of the Petitioners 3CURTIS E. GANNON, ESQ.
On behalf of the United States, as amicuscuriae, supporting the Petitioners 18
JOHN D. DONOVAN, JR., ESQ.
On behalf of the Respondent 27REBUTTAL ARGUMENT OFDAVID C. FREDERICK, ESQ.
On behalf of the Petitioners 47
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P R O C E E D I N G S
(10:04 a.m.)
CHIEF JUSTICE ROBERTS: We will hear
argument first this morning in Case 08-586, Jones v.
Harris Associates.
Mr. Frederick.
ORAL ARGUMENT OF DAVID C. FREDERICK
ON BEHALF OF THE PETITIONERS
MR. FREDERICK: Thank you,
Mr. Chief Justice, and may it please the Court:
In 1970, Congress amended the Investment
Company Act to provide a cause of action when an
investment adviser breaches its fiduciary duty with
respect to compensation.
The Seventh Circuit upheld summary judgment
for Respondent under a legal standard for fiduciary duty
that Respondent here no longer defends.
For three reasons, the Seventh Circuit's
judgment should be reversed. First, under the Court's
longstanding precedent, in this context a fiduciary duty
requires a fair fee, achieved through full disclosure
and good-faith negotiation.
Second, the best gauge of a fair fee is what
the investment adviser charges at arm's-length in other
transactions for similar services.
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And, third, applying that standard here,
Harris charged twice as much in percentage terms for
providing virtually identical advisory services in
arm's-length transactions with institutional investors.
With respect to the first point, the
standard for fiduciary duty has been clear from this
Court's cases, at least since Pepper v. Litton, in which
the Court said that a fair result in the
circumstances -- a fair fee -- was an important
component of a fiduciary duty.
Congress was aware of that standard when it
enacted the 1970 amendments to the Investment Company
Act. The SEC brought the case to the Congress'
attention, and that standard, we submit, is one that
Congress intended to incorporate.
Applying that standard, where Pepper said
that the best gauge of a fair fee is what the person --
the fiduciary charges in arm's-length transactions,
applied here, the best way to understand how that
fiduciary duty is being breached in this context is what
Harris is charging for same or similar services at
arm's-length to institutional investors.
JUSTICE KENNEDY: Is Harris a fiduciary in
the same sense as a corporate officer and a corporate
director? Or does his fiduciary duty differ? Is it
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higher or lower, same with a guardian, same with a
trustee?
I mean, the word "fiduciary" -- does
fiduciary imply different standards, depending on what
kind of fiduciary you are?
MR. FREDERICK: The basic concept,
Justice Kennedy, is the same. There are two components,
where there must be full disclosure of information and a
fair result, and that fair result translates in
different contexts in different ways. Here, because of
the statutory references to fiduciary duty with respect
to compensation, one focuses on the fairness of the fee
charged.
But, as Professor Dumont points out in her
amicus brief, the idea of a fiduciary duty is one that
is well known in various circumstances of the law, and
as applied here the concept goes to the fairness of the
fee.
JUSTICE KENNEDY: Well, would the test for
compensation in this case be the same as any director or
any officer of a corporation?
MR. FREDERICK: The difference here, Justice
Kennedy, is that in those circumstances the indicia of
an arm's-length transaction may be achieved. The
directors can fire the head of a company. They can call
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for changes.
Here, the investment adviser has appointed
the members of the board. As this Court said in the
Daily Income Fund case, the earmarks of an -- of an
arm's-length transaction are absent precisely because --
JUSTICE KENNEDY: I just want to know, is
the fiduciary duties the same? Is the fiduciary
standard the same, without getting into how its applied?
Is the fiduciary standard the same for
Jones, for a guardian, for a trustee, for a corporate
officer or a corporate director, always the same?
MR. FREDERICK: Yes. The concept is fair
result through full information and good-faith
negotiations.
JUSTICE SCALIA: And for lawyers?
MR. FREDERICK: For lawyers --
JUSTICE SCALIA: Lawyers have a fiduciary
obligation to their clients; right?
MR. FREDERICK: That is true.
JUSTICE SCALIA: So courts should review
lawyers' fees for -- on the basis of whether it's a fair
result.
MR. FREDERICK: That is how courts do it
every day in this country, Justice Scalia, when they are
asked to make fee applications for reasonableness.
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CHIEF JUSTICE ROBERTS: Well, but this is
different. I mean, this is part of an expense of a
fund. They don't get fees, but -- but they get -- they
have to pay for the lawyers, just like they have to pay
for management advice.
So why wouldn't you review the lawyers' fees
to make sure they are fair?
MR. FREDERICK: The lawyers' fees in which
context, Mr. Chief Justice? I'm not sure I understand
the question.
CHIEF JUSTICE ROBERTS: Counsel for the
fund.
MR. FREDERICK: Counsel for the fund is --
that is actually not at issue here, but the issue of
what constitutes reasonable expenses may arise in
various circumstances.
The statute prohibits fees that are
unreasonable in terms of their unfairness to the fund.
The concept here is that the board cannot fire the
investment adviser. So in evaluating the fairness of
the fee the adviser is charging the fund, the normal
indicia of an arm's-length transaction is absent, and
that is the key principle here because this adviser is
using the same manager to provide the same research
analytics from the same research group, from the same
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meetings, buying the same stocks, and simply allocating
them to different accounts and charging those to whom it
owes a fiduciary duty twice what it is getting at
arm's-length.
JUSTICE GINSBURG: But there was in this
record, was there not, a submission by the adviser
comparing what mutual funds this fund was charged, what
institutional funds were charged, but explaining the
differential in terms of the services provided, that
more services were provided to the fund and less
services were provided to the institutional investors.
MR. FREDERICK: And, Justice Ginsburg, that
is where there is a disputed issue of fact for which
summary judgment is not appropriate, because the
plaintiffs submitted evidence that in fact the services
provided to the institutional investors were greater,
even though they were being charged a lower amount of
money.
JUSTICE GINSBURG: Who would have the
burden? You said that is an issue that has not been
decided, it's a disputed issue of fact, appropriate for
remand. Who -- would you have the burden if they came
forward and said, look, this is what our situation is.
These are the services. Would you have the burden to
show that in fact they were comparable and the
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differences did not warrant the differences in the fee?
MR. FREDERICK: Yes.
JUSTICE GINSBURG: You would have the
burden?
MR. FREDERICK: We have the burden.
JUSTICE SCALIA: That's different from
normal trust law, isn't it?
MR. FREDERICK: It is.
JUSTICE SCALIA: Normally where you are a
fiduciary, it's up to you to prove that it was
reasonable.
MR. FREDERICK: That's true.
JUSTICE SCALIA: So Congress evidently did
not mean ordinary trust law to apply in this context.
MR. FREDERICK: We disagree with that last
part, Justice Scalia. We agree that Congress did make
modifications to the way a cause of action ordinarily
would have been brought at common law for breach of
fiduciary duty in several respects, including imposing
the burden of proof on the investor. Where we disagree
is that when they used the phrase "fiduciary duty" they
intended to mean something less than what fiduciary duty
had meant at common law.
CHIEF JUSTICE ROBERTS: What if -- if you
are having courts decide -- review what is fair, a fair
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fee, what if the adviser had given such good advice that
the fund beat the industry average for his category of
fund by 5 percent over the last 5 years. Does he get
double the normal compensation of the average fees?
Does he get triple? 50 percent more? How is the court
supposed to decide that?
MR. FREDERICK: Well, there is an issue of
fact as to how relevant performance is. They didn't
give the money back when their performance lagged behind
the market, Mr. Chief Justice, in this case. So the
question of whether or not a performance metric is
relevant is certainly a factor that will be entitled to
less --
CHIEF JUSTICE ROBERTS: Well, surely you
think it is. When you say they don't give the money
back, you are not suggesting that the amount of the fees
should be the same regardless of whether they outperform
by 10 percent or not?
MR. FREDERICK: My point, Mr. Chief Justice,
is that when they charge the same amount, buying the
same stocks, to institutional investors and achieve the
same performance, there is no reason why the mutual fund
should be charged twice as much.
CHIEF JUSTICE ROBERTS: Well, but there is
different parameters, right, in the sense that you're
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trying -- the company is trying to attract investors to
the mutual fund. If you are advising a pension fund, it
is not the case that they are trying to attract
pensioners who have other choices.
MR. FREDERICK: But the investor doesn't
gain because of the marketing skill of the adviser.
Simply having a larger asset pool which increases the
fee that the adviser can charge doesn't inure to the
individual benefit of the investor. And the point of
this statute was to provide protection against investors
so that when the adviser charged excessive fees that
excess would be returned to the fund for the pro
rata benefit --
JUSTICE KENNEDY: You said that Congress
used "fiduciary" in a special sense. Then -- then, I
have to conclude that your earlier answer is confusing
for me, because I thought you were going to tell us that
this investment adviser has the same fiduciary standard
that officers and directors of corporations have. Then
you say that Congress used it in this special sense. So
that doesn't quite square.
MR. FREDERICK: Well, Justice Kennedy, let
me just add the extra words of the statute, because what
Congress said was a fiduciary duty "with respect to
compensation." And so when I say special sense, I mean
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that Congress used additional words to elaborate on the
circumstance in which the fiduciary duty would be
examined.
Here what is happening is that an
arm's-length transaction for the same services -- the
same manager is going out and touting his services to
the institutional investor, but simply charging them
half as much money for providing the same portfolio of
management.
CHIEF JUSTICE ROBERTS: Do technological
changes make a difference in terms of disclosures
required? These days all you have to do is push a
button and you find out exactly what the management fees
are. I mean, you just look it up on Morningstar and
it's right there and you can make -- as an investor you
can make whatever determination you'd like, including to
take your money out.
MR. FREDERICK: The fact that an investor
may know going in what the fee is does not address the
problem Congress was intending to address, which is that
as larger and larger sums of assets were accreted to the
mutual fund, the investor was not obtaining the benefits
of economies of scale. And that's the central point --
CHIEF JUSTICE ROBERTS: So we could look
at -- you know, as the fund grows bigger and he doesn't
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get those benefits he can go look at another fund. It
takes 30 seconds.
MR. FREDERICK: And that again doesn't
address the problem Congress was trying to get at, which
is to protect the company, not the individual investor.
The individual investor might lessen the damages that
that investor suffers, but the fund, the people
remaining, continue to pay excessive fees.
JUSTICE SCALIA: No, but he protects the
company ultimately, because when investors leave the
company that is charging excessive fees to go to other
companies, the company that they are leaving sees that
something's wrong and has to lower its compensation to
its adviser. Why doesn't that affect the company at
issue?
MR. FREDERICK: A large number of assets
under management in mutual funds, something like 26 to
35 percent according to materials that are in the
record, are from 401(k) plans, where the investor is
essentially locked into the fund that his or her company
chooses to make that investment. And even as to
investors who are not locked in, there are significant
tax consequences where over time an investor might be in
the Oakmark Fund and have to suffer large tax
consequences in order to get the benefit of the
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statute --
CHIEF JUSTICE ROBERTS: Companies --
companies change who they invest with under the 401(k)'s
all the time. The employees are not happy with the
return they are getting because the company has limited
their choices, they change. It happens all the time.
MR. FREDERICK: And Mr. Chief Justice, as
the Court recognized in the Daily Income Fund case, this
is a unique cause of action in which Congress was
intending to protect the entire corpus of the investors
in the fund, because --
CHIEF JUSTICE ROBERTS: You told me just a
little while ago, or told somebody, Congress wasn't
interested in protecting investors; they were interested
in protecting the companies.
MR. FREDERICK: The company is comprised of
the investors, Mr. Chief Justice. What the right of
action does not do is to provide individual damages to
the investor who brings the suit. The recovery inures
to the entire benefit of all the investors.
JUSTICE SOTOMAYOR: Counsel, can I unpackage
your argument a little bit. Because using the word
"fair fee" in my mind is meaningless, because it has to
be fair in relationship to something. And so what is
your definition of what that something is that it's fair
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to, and -- or unfair against? And start from there,
because I understood the Seventh Circuit to be saying:
Look, a fair fee is paying market value. If one takes a
sort of reading -- whatever negotiation goes on between
the two, as long as there has been full disclosure as
required, that's the market. So that's fair. You're
saying it's something else. What's that something else?
MR. FREDERICK: Well, what the Court said in
pepper is that fair is what is reflective of what an
arm's-length agreement would produce.
JUSTICE SOTOMAYOR: All right. So you start
there.
MR. FREDERICK: Yes.
JUSTICE SOTOMAYOR: All right. So let's
stop confusing this -- the articulation of the standard,
which is -- that's fair. What would an arm's-length
transaction produce? And let's go to what seems to be
part of your argument and sort of what everyone's
skirting around, which is what's the proof that a
particular transaction is not arm's-length?
The Seventh Circuit appeared to be saying,
it's arm's-length when the parties have done all of the
disclosure that is required, because then the buyer can
decide whether they want to pay that fee or not, and
once they choose to it's a fair price. It's an arm's-
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just find that quite a puzzling use of the word
"fiduciary."
Now, if Congress uses it as a term of art or
in some special sense, fine.
MR. GANNON: Well, we do think that --
JUSTICE KENNEDY: But it seems to me an odd
use of the term "fiduciary." I don't know why Congress
didn't use some other word.
MR. GANNON: Well, we do think that the term
"fiduciary duty" is here used to counterbalance the lack
of arm's-length bargaining that exists between the board
of directors and the investment adviser, and we do think
that it drew upon the established term of art in
Pepper v. Litton, the case that counsel for Petitioners
was already referring to. That's a case that actually
involved corporate directors and there the same test,
the same ultimate standard, was stated, which is whether
the bargain carries the earmarks of an arm's length
bargain and whether it's inherently fair.
And so we do think that in the development
of the legislation in 1969, the memorandum that the SEC
submitted to Congress in 1969 explained that the shift
from reasonableness to fiduciary duty largely achieved
some procedural objectives of shifting the focus from
the board of directors to the investment adviser, and
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this systematic disparity between the amounts that
mutual funds were being charged by investment advisers
and the amounts that investment advisers were charging
their unaffiliated clients, and in the 1969 memorandum
that I referred to, which is reprinted in an appendix to
the amicus brief by John Bogel in its entirety, the SEC
mentioned that comparison as being something that may
well be relevant in proving in an individual case that
that particular investment adviser's fees are excessive.
And we think that the test here of whether
under all the circumstances, which is what section
36(b)(2) points the Court towards, of having to weigh --
having to weigh the board's approval of fees in light of
all the circumstances, that those circumstances include
things like the evidence that petitioners have presented
here.
JUSTICE GINSBURG: Mr. Gannon, the -- all
the circumstances, that comes from the Second Circuit's
Gartenberg case?
MR. GANNON: Well, it also comes,
Justice Ginsburg, from the text of section 36(b)(2).
JUSTICE GINSBURG: But in -- in that case,
at least there was a footnote that seemed to say, you
don't have to engage in a -- in the comparison with what
institutional investors are paid.
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MR. GANNON: The footnote that you are
talking about did point out that in that case the
comparison that the plaintiffs were attempting to draw
between the money market fund at issue and a pension
fund wasn't a particularly relevant one, because the
services at issue were so different. And here the
parties appear to dispute how different the services
are. And at the summary judgment stage, the Respondent
stated that it disputed how comparable the relevant
services were.
The district court and the court of appeals
considered that dispute immaterial because, instead of
comparing, instead of determining whether this
investment adviser is selling the same services at half
the price to its unaffiliated clients who actually can
engage in arm's length bargaining, those courts simply
said that if it -- if it falls within the range that is
charged by other mutual funds, that would be acceptable.
And we --
CHIEF JUSTICE ROBERTS: Counsel, the statute
does not say, in considering the rates you look at all
the circumstances. Am I right? It says, in considering
whether to defer to the board, you look at all the
circumstances.
MR. GANNON: It does say that you should
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JUSTICE SOTOMAYOR: Well, how much deviance,
and what is the scope of the range?
MR. GANNON: Well, I think that the term of
art of "fiduciary duty" doesn't necessarily demonstrate
how much deviance away from the range there would be. I
think that depending upon the segment of the market the
range might be more or less narrow.
In segments of the market where services are
more commodified and standardized, perhaps with index
funds, there might be a much narrower range of fees that
are arrived at through arm's-length bargaining, and even
-- and smaller disparities might be inappropriate there.
JUSTICE KENNEDY: How is the -- how is the
standard you've just described different from a standard
of reasonableness?
MR. GANNON: It -- I think that the chief
way it differs from reasonableness, Justice Kennedy, is
in saying that the Court doesn't actually have to decide
what the single most reasonable fee is. But as the SEC
explained in 1969, the shift from reasonableness to --
JUSTICE KENNEDY: Well, I would be very
surprised if "reasonableness" always meant one -- one
figure. It could mean a range.
MR. GANNON: Well, I think reasonableness
is - is inevitably going to be part of the inherent
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of disputed fact. So let's go back. Are you disavowing
the Seventh Circuit's approach? Because I read your
brief and it doesn't appear as if you are defending
their market approach that says so long as the process
was fair, any fee is okay. That's how I thought they
had reached their conclusion.
MR. DONOVAN: I think what Judge Easterbrook
said, and we don't agree, is if there is deceit of
directors that would justify a cause of action under
36(b). But in the absence of, in his words, "pulling
the wool over the eyes of the trustees" --
JUSTICE SOTOMAYOR: That's what I'm talking
-- I am using his words in terms of case --
MR. DONOVAN: I do --
JUSTICE SOTOMAYOR: And you're disavowing
that?
MR. DONOVAN: I do not defend that, because
I can imagine, as your hypothetical asked earlier,
directors or trustees who -- are not paying attention --
JUSTICE SOTOMAYOR: Your positions is no
different than the solicitor general's, that there has
to be some measure of fair process and some measure of a
fair fee, at least within -- in terms of it not being
outside the range an arm's length transaction?
MR. DONOVAN: The solicitor general gets it
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MR. DONOVAN: I look at it in the Gartenberg
sense, Your Honor. And the reason is because as I --
from what I said the first question is, is when do you
ask courts to substitute their judgment?
CHIEF JUSTICE ROBERTS: It's probably --
you're not the person to -- to ask, but do you
understand the Solicitor General's position to be your
understanding of the Gartenberg sense or something else?
MR. DONOVAN: I believe they interpret in
the Gartenberg sense. I think that the Solicitor
General's position and the Respondent's, with respect to
the standard that you ought to apply, is Gartenberg.
JUSTICE BREYER: What do we do about
Gartenberg? That is to say, the key sentence you can
read either way. The key sentence could mean -- it just
depends on tone of voice. You must charge a fee that is
not so disproportionately large that it bears no
reasonable relationship to the services rendered and
could not -- could not have been the product of
arms-length bargaining. Or you could say, look, it's
unlawful where it's so large -- it doesn't -- where
there is no reasonable relationship. And if there is no
reasonable relationship, how could it have been the
product of arm's-length bargaining?
MR. DONOVAN: I agree you can turn the words
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upside down. I think they turned it upside down --
JUSTICE BREYER: You object if we turn them
upside down?
MR. DONOVAN: I think they turned them
upside down for a reason, and the reason is 36(b)(1),
which imposes the burden of proof upon --
JUSTICE BREYER: Well, I'm saying the tone,
be a little careful here.
MR. DONOVAN: Well --
JUSTICE BREYER: So we can say the substance
is -- I'm just trying this out -- the substance is to
look and see if it's reasonable, and if it's reasonable
it certainly is the product of arm-length bargaining, if
it's not reasonable, how could it be? Got to get an
answer to that, okay? So, that way you see the tone is
be careful, you are a judge, you are not a rate-setter.
How's that?
MR. DONOVAN: I would accept the proposition
that it is reasonable if it is outside of what could
have been bargained at arm's length. I think they
turned it upside down the fact for the reason that the
statute reverses the burden of proof and I think that
they also acknowledge that it is a process-oriented
thing for judges to do, because after all you are asking
here a standard for judges to apply in a contested
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always required and may be dispositive and is always a
fraction of what mutual fund charges and that judges are
the, in the first instance, the ones to decide who is
fair and reasonable or what is fair and reasonable, as
opposed to directors, I suggest you consign 8,000 mutual
funds to a trial.
On this record, these were funds that had
best in class performance for fees that were at or below
industry averages.
That is not a record upon which a reasonable
person could conclude that the adviser has over-reached.
That is at the heart of fiduciary duty. I see my time
is about to expire.
Thank you, Your Honor.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Mr. Frederick, you have three minutes
remaining.
REBUTTAL ARGUMENT OF DAVID C. FREDERICK
ON BEHALF OF THE PETITIONERS
MR. FREDERICK: At this recording here did
not make findings -- this was a summary judgment case,
and in fact, the Court didn't find that the disputes
were nonexistent.
In fact, on page 30a, the district court
said that the disputes were nonmaterial, and that's a
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very important distinction because the joint appendix
that you have before you contains a lot of evidence in
which it is disputed whether or not these were similar
services.
The Harris manager on page 6 -- JA 650, the
portfolio holdings of the funds, are very similar. On
512, the Harris fund manager testimony that, when he
buys a stock, he buys it for all mutual funds and
independent accounts, with the same investment
objective.
On 505 to 506, the Harris research director
testimony that the managers of the mutual funds and
independent accounts share equally all work done by the
research department, and 513 to 514, that the Harris
fund manager says all of our analysts do research for
all of our clients.
There is disputed evidence here as to what
constitutes similarity, Justice Sotomayor, these are
comparing apples to apples because the record indicates
that there are separate contracts for the additional
fees that they charge to the mutual funds for the
additional services provided.
We're simply talking about comparisons of
money management, but --
CHIEF JUSTICE ROBERTS: Was your friend
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correct, that these funds have better than average
performance and lower than average fees?
MR. FREDERICK: In one small aspect of the
damages period, that is correct, and after that was
found, they had lower than average performance and
higher than average fees, Mr. Chief Justice. It's a
damages period that encompasses several years.
If I could go back to the point, though,
about the fiduciary duty, what Judge Cardozo, when he
was on the New York Court of Appeals, said, a fiduciary
represents the punctilio of honor, and that is
contrasted with the morals of the marketplace operating
at arm's-length.
It surely cannot be the case that, where you
are dealing with a fiduciary duty -- which is a higher
standard recognized in the law -- that you can charge
twice as much as what you are obtaining at arm's-length
for services that you are providing.
The Gartenberg court, Justice Breyer, in
fact, had the opposite language that you are averting
to, and that is at page 694 F.2nd 928, where the Court
said, "The test is essentially whether the fee schedule
represents a charge within the range of what would have
been negotiated at arm's-length in the light of all the
surrounding circumstances."
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address12:19 10:16,20 34:18 approve28:10 assets12:21A12:20 13:4 amounts22:1,3 approved24:19 13:16able21:7
advice7:5 10:1 analogy27:21 28:11 Assistant1:17above-entitled21:22 analysis39:20 area36:11 Associates1:61:11 50:18
adviser3:13,24 analysts48:15 arguing30:1 3:5absence35:106:2 7:20,21,23 analytics7:25 50:3 assume17:12absent6:5 7:228:6 10:1 11:6,8 announce45:5 argument1:12 28:16,17 40:22absolutely45:2311:11,18 13:14 answer11:16 2:2,10 3:4,7 assuming25:9abstract20:1516:22 17:1,9 29:22 38:23,24 14:22 15:18 attached31:2025:1217:15,18 18:14 39:2,4 42:15 18:4 27:25 attempting23:3accept17:2,619:12,25 23:14 answers39:6 33:18 34:22,23 attention4:1442:1827:18 28:7 apparently 47:18 35:19acceptable33:22 36:19,21 18:24 arms-length attract11:1,323:1836:21 37:5 appeals23:11 41:20 attributed34:16account39:1345:12 47:11 33:6,9,11 38:7 arm's15:25 authority20:1940:16
advisers21:10 49:10 16:5 19:18 20:22accounted46:322:2,3 36:12 appear23:7 20:8 23:16 average10:2,446:4,1336:18 35:3 44:10 25:7 30:2 49:1,2,5,6accounting46:3 adviser's18:11 APPEARAN... 35:24 36:3 averages47:9accounts8:222:9 1:14 42:20 averting49:2036:14,16,19
advising11:2 appeared15:21 arm's-length aware4:1140:7,8 44:2,6advisor16:5 appendix22:5 3:24 4:4,18,22 17:21 21:8,1144:22 46:23,25advisors40:4 33:20 43:14 5:24 6:5 7:22 21:1348:9,13advisory4:3 48:1 8:4 12:5 15:10 a.m1:13 3:2accreted12:21
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bargained29:14AL1:3 appointed6:2 articulation25:25 29:1,2,330:8 36:2allegation45:12 37:10 15:1529:5,22,2342:20 44:24allocated46:5 approach35:2,4 asked6:2530:3,5 35:9
bargainingallocating8:1 appropriate 35:18 36:10actionable25:1518:12 19:11amended3:11 8:14,21 24:4 37:24 46:16actual25:1620:8 23:16amendments 30:22 45:2,10 asking42:24add11:2325:24 26:114:12 appropriately asks24:20 38:11added29:1627:17 41:20,24amicus1:19 2:6 24:20 aspect49:3adding29:1642:135:15 18:6 22:6 approval22:13 assertion40:14additional12:1
basic5:6amount8:17 24:15 asset11:734:14 48:20,2251
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Official - Subject to Final Review
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Official - Subject to Final Review
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