U.S. District Court: Fund Trustees Cannot Rely On Attorney-Client Privilege In Section 36(b) Case

A federal district court has ordered mutual fund trustees to produce privileged documents to a plaintiff who sued an investment adviser accused of charging excessive investment advisory fees. The November 21, 2016 order may pave the way for plaintiffs in "excessive fee" cases to brush aside the attorney-client privilege and learn what independent trustees discussed with their legal counsel in executive session meetings.

In ordering fund trustees to produce complete, unredacted documents relating to their consideration of investment advisory contracts, the United States District Court for the Western District of Washington relied on a fiduciary exception to the attorney-client privilege. The Court distinguished between legal advice to fund trustees relating to their fiduciary duties in managing the fund, as compared to personal advice given to the trustees.