On February 27, 2007 the judge entered his final order denying plaintiffs' motion to amend or reconsider the order of dismissal. The case has been dismissed with prejudice and no appeals have been filed.
On February 24, 2005, the defendants filed motions to dismiss the Plaintiffs’ Consolidated Amended Complaint. On March 28, 2006, the Court entered the Opinion signed by U.S. District Judge Robert W. Sweet, granting the defendants’ motion to dismiss the complaint. That day, Judgment was further entered. On April 11, 2006, the plaintiffs filed a motion to Amend/Correct the judgment. The motion is currently pending.
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 Evergreen Funds to pay brokers to aggressively push Evergreen 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 Evergreen Funds public filings or elsewhere. Thus Evergreen Funds investors were induced to purchase Evergreen Funds by brokers who received undisclosed payments from the Investment Adviser Defendants to push Evergreen Funds over other mutual funds and who therefore had an undisclosed conflict of interest. Then, once invested in one or more of the Evergreen Funds, Evergreen Funds investors were charged and paid undisclosed fees that were improperly used to pay brokers to aggressively push Evergreen 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 Evergreen Funds because their fees were calculated as a percentage of funds under management and, therefore, tended to increase as the number of Evergreen Funds investors grew. The Investment Adviser Defendants attempted to justify this conduct on the ground that by increasing the Evergreen Funds assets they were creating economies of scale that inured to the benefit of investors but, in truth and in fact, Evergreen Funds investors received none of the benefits of these purported economies of sale. Rather, fees and costs associated with the Evergreen Funds increased during the Class Period, in large part because the Investment Adviser Defendants continued to skim from the Evergreen Funds to finance their ongoing marketing campaign. The Evergreen Funds trustees, who purported to be Evergreen investor watchdogs, knowingly or recklessly permitted this conduct to occur.