May 23, 2017

May 23, 2017

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May 22, 2017

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Financial CHOICE Act of 2017 Would Impose Heightened Pleading Standards, Raise Burden of Proof for Plaintiffs in Section 36(b) Excessive Fee Litigation

On April 19, 2017, the Chairman of the Financial Services Committee of the U.S. House of Representatives, Jeb Hensarling (R-TX), released an updated version of the Financial CHOICE Act (H.R. 10), the financial regulatory reform legislation that aims to repeal and replace various provisions of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The latest version of the Financial CHOICE Act, dubbed “CHOICE 2.0,” modifies, in several respects, the original bill (or “CHOICE 1.0”) that was introduced in the last Congress and cleared the House Financial Services Committee, but did not advance to the full House of Representatives for a vote. The latest iteration of the bill has also been approved by the House Financial Services Committee, which recently passed CHOICE 2.0 in a 34-26 vote on May 4, 2017. Notably, CHOICE 2.0 includes amendments to Section 36(b) of the 1940 Act, which were not included in CHOICE 1.0, that would impose heightened pleading standards and raise the burden of proof for plaintiffs in excessive fee litigation. Section 36(b) imposes a duciary duty on investment advisers with respect to the compensation they receive for providing advisory services to funds and provides fund shareholders with an express private right of action to enforce this duty against advisers and their affiliates that receive compensation from funds. In such cases, the burden of proof rests on the plaintiffs to show, by a preponderance of the evidence, that the advisory fee is excessive, i.e., that the fee is “so disproportionate that it does not bear a reasonable relationship to the service the defendant rendered and could not have been negotiated at arm’s-length.”

CHOICE 2.0 would require that a complaint brought under Section 36(b) “state with particularity all facts establishing a breach of fiduciary duty, and, if an allegation of any such facts is based on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” In addition to the heightened pleading standards proposed under CHOICE 2.0, the bill would raise the burden of proof for plaintiffs from a “preponderance of the evidence” standard to a “clear and convincing evidence” standard. That is, under CHOICE 2.0, a fund shareholder would “have the burden of proving a breach of fiduciary duty by clear and convincing evidence.”

The current draft of the bill is available here. 

© 2017 Vedder Price

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Vedder Price P.C. attorneys provide a full range of services to a diverse financial services clientele. Attorneys practicing in the firm’s Investment Services Group are experienced in all aspects of investment company and investment adviser securities regulations, broker-dealer regulatory and compliance matters, derivatives and financial product matters, and ERISA and tax matters. Clients include mutual fund complexes, hedge and other private funds, money managers, broker-dealers, independent directors, and many other types of institutions such as banks, savings and loans,...

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