Jones v. Harris Associates
Encyclopedia
Jones v. Harris Associates L.P. 559 U.S. ___ (2010) is a case heard by the United States Supreme Court on November 2, 2009 in which investors claimed that the fees they paid to an investment advisor were too steep, violating the Investment Company Act of 1940
.
The case held that the court has the jurisdiction to regulate fees of investment advisers in the mutual fund industry under the Investment Company Act of 1940
, when those fees are excessive, and in breach of fiduciary duty. It is notable from a law and economics
perspective for the vigorous opinion in the Seventh Circuit Court of Appeal of Easterbrook J and the powerful dissenting judgment of Posner J, regarding the necessity and market failure
in respect of adviser fee regulation.
(which lost $450m to Bernard Madoff
). The mutual funds are ‘open ended’ meaning they buy back shares at current asset value. Harris Associates was sued by Jones and other investors in Harris’ mutual funds. They argued that under the Investment Company Act 1940 s 36(b) and Gartenberg v. Merrill Lynch Asset Management, Inc., 694 F.2d 923 (2d Cir. 1982) the company’s fees were unreasonably high.
After an adverse finding in the Illinois District Court, Jones appealed to the Seventh Circuit Court of Appeals.
, reading for the majority, argued that the free market was the best regulator of the fees. Easterbrook rejected the argument, saying the government was in no place to make such an assessment. ‘Like the plaintiffs, the second circuit in Gartenberg expressed some skepticism of competition’s power to constrain investment advisers’ fees.
Posner
, reading a dissenting judgment, argued that the majority's decision ran counter to well established principle in Gartenberg, that the market was ineffective to solve the problem and that procedurally the decision was flawed since it was not circulated prior to publication, as is required in the case of a circuit split. He would have held that the case should be heard en banc
(ie all the judges of the bench give a full hearing).
Jones then appealed to the Supreme Court which granted certiorari
on March 9, 2009.
Investment Company Act of 1940
The Investment Company Act of 1940 is an act of Congress. It was passed as a United States Public Law on August 22, 1940, and is codified at through . Along with the Securities Exchange Act of 1934 and Investment Advisers Act of 1940, and extensive rules issued by the Securities and Exchange...
.
The case held that the court has the jurisdiction to regulate fees of investment advisers in the mutual fund industry under the Investment Company Act of 1940
Investment Company Act of 1940
The Investment Company Act of 1940 is an act of Congress. It was passed as a United States Public Law on August 22, 1940, and is codified at through . Along with the Securities Exchange Act of 1934 and Investment Advisers Act of 1940, and extensive rules issued by the Securities and Exchange...
, when those fees are excessive, and in breach of fiduciary duty. It is notable from a law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
perspective for the vigorous opinion in the Seventh Circuit Court of Appeal of Easterbrook J and the powerful dissenting judgment of Posner J, regarding the necessity and market failure
Market failure
Market failure is a concept within economic theory wherein the allocation of goods and services by a free market is not efficient. That is, there exists another conceivable outcome where a market participant may be made better-off without making someone else worse-off...
in respect of adviser fee regulation.
Facts
Harris Associates LP was the adviser to a set of $47bn Chicago funds including the Oakmark brands and is owned by French fund NatixisNatixis
Natixis is a French corporate and investment bank created in November 2006 from the merger of the asset management and investment banking operations of Natexis Banque Populaire and IXIS ....
(which lost $450m to Bernard Madoff
Bernard Madoff
Bernard Lawrence "Bernie" Madoff is a former American businessman, stockbroker, investment advisor, and financier. He is the former non-executive chairman of the NASDAQ stock market, and the admitted operator of a Ponzi scheme that is considered to be the largest financial fraud in U.S...
). The mutual funds are ‘open ended’ meaning they buy back shares at current asset value. Harris Associates was sued by Jones and other investors in Harris’ mutual funds. They argued that under the Investment Company Act 1940 s 36(b) and Gartenberg v. Merrill Lynch Asset Management, Inc., 694 F.2d 923 (2d Cir. 1982) the company’s fees were unreasonably high.
After an adverse finding in the Illinois District Court, Jones appealed to the Seventh Circuit Court of Appeals.
Seventh Circuit
The majority of the Court of Appeals ruled against the plaintiffs citing a lack of judicial authority to regulate investment company fees. EasterbrookFrank H. Easterbrook
Frank Hoover Easterbrook is the Chief Judge of the United States Court of Appeals for the Seventh Circuit. He has been Chief Judge since November 2006, and has been a judge on the court since 1985...
, reading for the majority, argued that the free market was the best regulator of the fees. Easterbrook rejected the argument, saying the government was in no place to make such an assessment. ‘Like the plaintiffs, the second circuit in Gartenberg expressed some skepticism of competition’s power to constrain investment advisers’ fees.
Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, reading a dissenting judgment, argued that the majority's decision ran counter to well established principle in Gartenberg, that the market was ineffective to solve the problem and that procedurally the decision was flawed since it was not circulated prior to publication, as is required in the case of a circuit split. He would have held that the case should be heard en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
(ie all the judges of the bench give a full hearing).
Jones then appealed to the Supreme Court which granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on March 9, 2009.