Judging from recent summary judgments, a growing number of courts are rejecting the argument that mutual fund companies charge retail investors more than institutional investors, The National Law Journal reports.

Two recent cases, involving American Express Funds and Oakmark Funds, are signs of an “industrywide assault” against such arguments, said Rob Skinner, a defense lawyer with Ropes & Gray who is involved in both cases. “This is the first time that judges have concluded that plaintiffs could not make their case [after discover]. We’re hopeful this means the tide is turning on these cases.”

In the American Express case, plaintiffs said the firm breached its fiduciary duty by charging excessive advisory fees and failed to pass economies of scale onto investors. As a result, they wanted the firm to return all fees not covered by the statute of limitations. But the judge said that even if the firm’s underwriters, distributors and advisers had undertaken a neutral, arm’s length bargaining process, there is no proof that the fees would have been lower.

In fact, the judge said that the board took pains to set fees at a median rate for comparable funds and did, in fact, share economies of scale and use performance-incentive adjustments to cut fees.

“Plaintiffs have failed to establish a genuine issue of material fact regarding whether the fees charged were so disproportionately large that they bear no reasonable relationship to the service rendered,” the judge wrote.

In the Oakmark case, the judge conceded that the plaintiffs established that fees paid on similar funds varied, but they failed to prove that the services would have been greater.

“What matters is whether there is a fundamental disconnect between what the funds paid and what the services were worth. On this score, plaintiffs have not set forth an issue of fact that, if resolved in their favor, could lead to a finding that [the investment advisor] breached its duty,” the judge in the Oakmark case said.

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