A shareholder of Davis New York Venture Fund initiated a lawsuit against the investment adviser (Davis Selected Advisers) and the distributor (Davis Distributors) of this Fund. This lawsuit sought to recover for the Fund certain excessive and disproportionate fees paid by the Fund to the defendants, who allegedly breached their fiduciary duties to the Fund under Section 36(b) of the Investment Company Act of 1940.
This lawsuit was filed in U.S. District Court for the District of Arizona. On June 1, 2011, the Court granted the defendants’ Motion to Dismiss, ending this case at the District Court level. The Court determined that the plaintiff’s allegations largely consisted of general conclusions and not specific facts and the plaintiff did not explain how any of its alleged facts met the Gartenberg test, in which a particular fee is “so disproportionately large that its bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining.”
The plaintiff in this case has appealed the Motion to Dismiss and other Court rulings to the Ninth Circuit Court of Appeals. The plaintiff filed his opening brief on January 30, 2014. In his brief, the plaintiff argues the amended complaint sufficiently alleges that the investment adviser charged the New York Venture Fund excessive and disproportionate advisory fees and Rule 12b-1 fees.
Davis filed its answering brief and oral argument on the case was held on June 10, 2015. The Ninth Circuit Court of Appeals affirmed the dismissal of this case on September 29, 2015, ruling that the plaintiff's complaint only offered conclusory statements and "inapt comparisons."