In March 2010, the Supreme Court in Jones v. Harris Associates L.P. clarified the standard for determining whether a mutual fund investment adviser has breached its fiduciary duty under the 1940 Act in connection with its receipt of fees from the funds that it manages. The attached article examines whether the Supreme Court’s ruling in Jones could be instructive to courts in deciding the 401(k) fee lawsuits that have been brought under ERISA. Although different terminology is used in analyzing claims under ERISA, courts apply substantially the same principles and evaluate many of the same factors applicable to claims under the 1940 Act. Accordingly, even though the 1940 Act and ERISA regulate different fiduciary relationships, the Jones decision very well may be instructive to courts in deciding ERISA-based excessive fee claims.


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