On Monday, the Supreme Court heard arguments on the case of Harris Associates v. Jones. The plaintiffs are three shareholders in the Oakmark mutual fund family, while the defendant is Harris Associates LP, which manages the funds. The claim is that Oakmark charges excessive fees for its mutual fund -- individual investors are charged roughly twice as much as institutional investors -- and has violated the "fiduciary responsibility" set out for it by Congress.
As Simon Johnson and James Kwak point out, as the trial was working its way through the lower courts, a surprising argument broke out. Chief Judge Frank Easterbrook, siding with the mutual fund noted:
"Mutual funds come much closer to the model of atomistic competition than do most other markets...It won't do to reply that most investors are unsophisticated and don't compare prices. The sophisticated investors who do shop create a competitive pressure that protects the rest...Harris Associates charges a lower percentage of assets to other clients, but this does not imply that it must be charging too much to the Oakmark funds. Different clients call for different commitments of time. Pension funds have low (and predictable) turnover of assets...In competition those joint costs are apportioned among paying customers according to their elasticity of demand, not according to any rule of equal treatment."
An interesting dissent came from law and economics guru Judge Richard Posner:
"The panel bases its [decision] mainly on an economic analysis that is ripe for reexamination on the basis of growing indications that executive compensation in large publicly traded firms often is excessive because of the feeble incentives of boards of directors to police compensation. . . . Competition in product and capital markets can't be counted on to solve the problem because the same structure of incentives operates on all large corporations and similar entities, including mutual funds. Mutual funds are a component of the financial services industry, where abuses have been rampant."
So again, institutional investors investing in a mutual fund, say a pension fund bringing $50,000,000, secures a percentage fee rate half that of an individual bringing $25,000 to the fund. These fees are taken out of the amount invested every year regardless of performance. Let's imagine a rate at 1.4% for the individual and a rate of 0.7% for the pension fund. They each put a $1 into the fund, and after 10 years of 8% returns (before fees), the individual has $1.87, and the pension fund has $2.01. After 30 years, the individual has $6.59, and the pension fund has $8.15. They were each in the same fund, facing the same market risks, but they have much different returns years later -- so the stakes are high.