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Appeals Court Affirms that Plaintiff in 36(b) Case Lacked Standing to Challenge Acquired Fund Fees

An Eighth Circuit panel recently agreed with an Iowa district court’s dismissal of a Section 36(b) lawsuit brought by American Chemicals & Equipment Inc. 401 (K) Retirement Plan against Principal Management Corp. The district court ruled that the retirement plan lacked standing to challenge fees charged to underlying funds held in six LifeTime Funds, target date funds that the retirement plan invested in. The retirement plan argued on appeal that a portion of the fees paid by the underlying funds to Principal Management were “compensation for services” or “payments of a material nature” that were “paid by” the LifeTime Funds with respect to their investment in the underlying funds. The court determined, however, that the acquired fund fees were paid by the underlying funds and not by the LifeTime Funds in which the retirement plan was a shareholder. According to the opinion, while adviser fees and other costs reflected in the acquired fund fees reduced the net asset value of the underlying fund paying the fees, which in turn reduced the value of the LifeTime Funds’ holdings in the underlying fund, “the mere reduction of an asset’s value does not mean that the reduction was paid by the asset’s investors.” The court concluded that since the retirement plan had no security interest in the underlying funds, the retirement plan could not sue on behalf of a fund in which it lacks an interest.

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