The judge entered an Order on October 11, 2005 dismissing with prejudice the complaint against all defendants. The plaintiff filed a motion for reconsideration, which was also denied. The plaintiff then filed an appeal on December 19, 2005. That appeal was later withdrawn by the United States Court of Appeals on April 6, 2006.
The complaint alleges that defendants charge “Excessive Fees” in Violation of Sections 34(b), 36(b) and 48(a) of the Investment Company Act and Sections 34(b), 36(b) and 48(a) of the Investment Company Act and Sections 206 and 215 of the Investment Advisers Act, and for Breach of Fiduciary Duty. Among other things, the Complaint alleges that the Investment Adviser Defendants drew upon the assets of the Davis/Selected Funds to pay brokers to aggressively push Davis/Selected Funds over other funds, and that the Investment Adviser Defendants concealed such payments from investors by disguising them as brokerage commissions. Such brokerage commissions, though payable from fund assets, are not disclosed to investors in the Davis/Selected Funds public filings or elsewhere. Thus Davis/Selected Funds investors were induced to purchase Davis/Selected Funds by brokers who received undisclosed payments from the Investment Adviser Defendants to push Davis/Selected Funds over other mutual funds and who therefore had an undisclosed conflict of interest. Then, once invested in one or more of the Davis/Selected Funds, Davis/Selected Funds investors were charged and paid undisclosed fees that were improperly used to pay brokers to aggressively push Davis/Selected Funds to yet other brokerage clients.
The complaint further alleges that the Investment Adviser Defendants were motivated to make these secret payments to finance the improper marketing of Davis/Selected Funds because their fees were calculated as a percentage of funds under management and, therefore, tended to increase as the number of Davis/Selected Funds investors grew. The Investment Adviser Defendants attempted to justify this conduct on the ground that by increasing the Davis/Selected Funds assets they were creating economies of scale that inured to the benefit of investors but, in truth and in fact, Davis/Selected Funds investors received none of the benefits of these purported economies of sale. Rather, fees and costs associated with the Davis/Selected Funds increased during the Class Period, in large part because the Investment Adviser Defendants continued to skim from the Davis/Selected Funds to finance their ongoing marketing campaign. The Davis/Selected Funds trustees, who purported to be Davis/Selected investor watchdogs, knowingly or recklessly permitted this conduct to occur.