Supreme Court Might Side With Investors on ‘Excessive Fees’

After years of the court system siding with the mutual fund industry on the discrepancy between retail and institutional mutual fund fees, the case that the Supreme Court will hear this fall, Jerry N. Jones et al. v. Harris Associates, might be a watershed one for investors.

Judging from initial filing briefs filed on behalf of the plaintiff, including one from the Solicitor General acting on behalf of the Securities and Exchange Commission, they might have a strong case, The Wall Street Journal reports. Solicitor General Elana Kagan said that the investors, who say they were paying twice the amount of institutional investors, have a right to be heard.

Fees that retail and institutional investors are set at arm’s length, rather than in a true bargaining process, Kagan wrote. However, she suggested that the case be sent back to the lower courts to decide whether the investors have “presented sufficient evidence about the comparability of services.”

Regardless of whether the case is heard by the Supreme Court or not, Kagan’s sympathetic stance goes against the ruling of Judge Frank Easterbrook of the Seventh U.S. Circuit Court of Appeals, who essentially said the investment advisor can charge whatever fees it likes as long as it doesn’t involve fraud and as long as they are not excessive, as set by the Gartenberg standard.

In its brief, the AARP asked the Supreme Court to consider another case in which the Eight Circuit ruled in favor of retail investors. In the case, Gallus et al. v. Ameriprise, Judge Roger Wollman wrote, “The argument for comparing mutual fund advisory fees with the fees charged to institutional accounts is particularly strong in this case, because the investment advice may have been essentially the same for both accounts.”