Federal Court Denies “Fiduciary Exception” Challenge in Connection with Section 36(b) Excessive Fee Lawsuit

May 02, 2017

The U.S. District Court for the Northern District of Illinois denied a motion to compel production of attorney-client privileged documents on April 25, 2017, in connection with the Section 36(b) lawsuit Chill v. Calamos Advisors LLC pending in the U.S. District Court for the Southern District of New York. The Court concluded that plaintiffs, shareholders of the Calamos Growth Fund, failed to meet their burden to obtain the privileged communications between the independent trustees of that fund and their independent counsel.2 The ten-page opinion is the second decision to recognize that certain attorney-client privileged communications between mutual fund independent trustees and their counsel are subject to a “fiduciary exception,” but it applied a “good cause” limitation to deny the motion.

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