United States Eighth Circuit

In an action involving the fiduciary duty of advisers of mutual funds, district court's grant of summary judgment is reversed and remanded where: 1) the court erred in holding that no violation of Investment Company Act sec. 36(b) occurred simply because defendant's fee passed muster under the Gartenberg v. Merrill Lynch standard; 2) the court erred in rejecting a comparison between the fees defendant charged its institutional clients and its mutual funds clients; 3) the court should have determined whether defendant purposefully omitted or disguised information that it presented to the Board about the fee discrepancy between different types of clients; and 4) plaintiffs may obtain recovery for damages suffered while litigation is pending.

Appellate Information

• Decided 04/08/2009
• Published 04/08/2009

Judges

• WOLLMAN, Circuit Judge., Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

Court

• United States Eighth Circuit

Counsel

• For Appellant:
  
• Guy M. Burns, argued, Tampa, FL, James C. Bradley, Michael J. Brickman and Nina H. Fields, Charleston, SC, Gretchen F. Cappio, Tana Lin, Lynn L. Sarko, and Michael D. Woerner, Seattle, WA, Jonathan S. Coleman and Becky Ferrell-Anton, Tampa, FL, John M. Greabe, Hopkinton, NH, and Karl L. Cambronne, Minneapolis, MN, on the brief, for appellant.


• For Appellees:
  
• John D. Donovan, Jr., argued, Boston, MA Robert A. Skinner and Benjamin S. Halasz, Boston, MA, and Robert LO. Schenell, Jr., Minneapolis, MN, on the brief, for appellee.