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Third Circuit Affirms AXA Victory in 36(b) Case

The U.S. Court of Appeals for the Third Circuit recently affirmed a District Court’s ruling against plaintiffs who lost an excessive fee suit against AXA Equitable and affiliates, concluding that the plaintiffs did not meet their burden of proof on their Section 36(b) claim since they were unable  to show that the lower court’s findings regarding the Gartenberg factors were clearly erroneous. The Third Circuit’s opinion was non-precedential, meaning it has no guiding effect for future cases. The Third Circuit’s opinion emphasized the District Court’s reliance on the lead independent trustee’s “credible testimony.” The plaintiffs had challenged the District Court’s analysis of “the independence, expertise, care, and conscientiousness of the board in evaluating adviser compensation” and argued that the board chairman’s dual role as president and CEO of the adviser compromised the board. The Third Circuit emphasized the District Court’s findings that the board was “sufficiently diverse and independent” and credited testimony from the lead independent trustee that the independent trustees “run [the] Board” even though the interested trustee provided the board with information.