Mr. Isenman represents mutual funds, investment advisers, fund and retirement plan service providers, insurance companies, hedge funds, other financial services companies, and their respective officers and directors in a variety of litigation and regulatory contexts, including class actions, shareholder derivative demands and litigation, internal investigations, and governmental investigations and inquiries.
Outside of the financial services arena, Mr. Isenman frequently represents companies in class actions, complex business disputes, and other litigation.
Examples of recent representations include:
Mutual Fund Excessive Fee Litigation
- A top-10 asset manager by AUM, successfully obtaining summary judgment in consolidated actions brought under Section 36(b) of the Investment Company Act of 1940 alleging that it charged mutual funds excessive investment advisory fees, premised on the allegation that it provided substantially similar services for a lower fee as a subadviser to other mutual funds.
- A top-10 asset manager by AUM, successfully obtaining dismissal on the pleadings, and successfully defending that dismissal on appeal, of a complaint brought under Section 36(b) of the Investment Company Act of 1940 alleging that it charged a mutual fund excessive investment advisory fees, premised on the allegation that it charged an allegedly similar mutual fund lower fees and that other allegedly peer funds paid lower fees.
Mutual Fund Shareholder Demand Investigations and Derivative Actions
- The demand review committee of a mutual fund board, investigating a shareholder demand that alleged that the board and the fund’s investment adviser had violated their respective duties when the fund invested in an affiliated fund.
- The demand review committee of a closed-end fund board, investigating a shareholder demand that asserted that the board had breached its fiduciary duties by allegedly failing to take sufficient action to address market price discount to NAV.
- The demand review committee of a mutual fund board, investigating a shareholder demand that alleged that the board had breached its fiduciary duties by approving certain investment advisory agreements that called for the payment of allegedly excessive advisory fees.
- The independent trustees of a group of mutual funds, successfully obtaining the dismissal of a putative shareholder derivative and class action that alleged breach of fiduciary duty in connection with the sale of the mutual funds’ investment adviser, and successfully defending that judgment on appeal. Halebian v. Berv, 869 F. Supp. 2d 420 (S.D.N.Y. 2012), aff’d, 548 Fed. Appx. 641 (2d Cir. Nov. 12, 2013).
- A national association of registered investment companies, filing amicus briefs on its behalf in the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit in connection with the Ninth’s Circuit’s decision in Northstar Financial Advisors, Inc. v. Schwab Investments.
Other Mutual Fund Litigation
- A large mutual fund complex, successfully obtaining the dismissal of a putative 10b-5 class action alleging that fund prospectuses falsely represented that class A shares were better long-term investments than other share classes.
The independent trustees of the boards of several closed-end funds, defending the trustees in litigation brought by an activist investor.
- A closed-end fund and its board’s special litigation committee, successfully defending the fund in an action brought by another closed-end fund arising out of a contested proxy contest.
- A large financial services company, successfully trying a lawsuit against a well-known mutual fund market-timer.
Several large asset managers, defending each in separate ERISA class actions challenging the use of the asset manager’s own investment products in its 401(k) plan.
- A large financial services company and plan provider, defending an ERISA class action challenging the provider’s participant loan program.
- A large financial services company and plan provider, defending an ERISA excessive fee class action filed against both the plan provider and the plan sponsor.
- A large financial services company, defending an ERISA "stock-drop" class action alleging breach of fiduciary duty in connection with origination and underwriting of sub-prime loans.
Other Financial Services Litigation and Investigations
- A large financial services company, successfully obtaining the dismissal of several putative class actions challenging the company’s use of retained asset accounts to settle life insurance claims, and successfully defending those dismissals on appeal.
- A large financial services company, successfully obtaining the dismissal of a putative class action challenging an increase in cost-of-insurance charges in universal life insurance contracts.
- A special committee of the board of directors of a privately-held company, successfully negotiating the resolution of a dispute with a controlling shareholder.
- Various financial services companies, investment advisers and related entities in connection with investigations or inquiries by the SEC, the FTC, the New York Attorney General's Office and other government regulators.
Mr. Isenman served on the New York City Bar Committee on Investment Management Regulation from 2018-2021 and continues to serve as an affiliate member of that Committee.