Supreme Court nominee Elena Kagan filed a briefing with the high court last year asking it not to accept an appellate decision affirming the Gartenberg standard in the Jones vs. Harris Associates case.

The 1982 decision, made in the Gartenberg vs. Merrill Lynch Asset Management case, made it easier for fund companies to charge higher fees for retail than for institutional clients, such as endowments and pension funds.

In her amicus brief, filed in her capacity as U.S. solicitor general, Kagan wrote: “The Gartenberg court’s inquiry—an analysis of ‘all pertinent facts,’ potentially including the fees charged by the advisor for comparable services offered to unaffiliated clients—provides the appropriate way to resolve [excessive-fee] cases.”

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