Read the small print
The lawsuits now being filed against asset managers for various transgressions in the wake of the financial crisis have been a long time in coming, but it would seem things are in full swing now.
As the fallout continues from the US Justice Department’s $5bn lawsuit against Standard & Poor’s, there have been two other developments on the legal front that are, while not quite so dramatic, no less interesting.
In the first instance, the 20-odd pension schemes that have been suing Henderson for nearly two years over an infrastructure fund have withdrawn their complaint after they lost the right to bring derivative claims. In exchange for the case being dropped, Henderson agreed to pay their legal costs – with no admission of liability.
In the second, Goldman Sachs Asset Management (GSAM) made clear it has no intention of walking away from its fight with Dutch transport pension fund Vervoer. Last summer, Vervoer sued its former fiduciary manager for breach of contract, filing a €250m lawsuit in the High Court in London. In mid-February, GSAM filed its counterclaim, opening with a cantankerous statement in which it argues that Vervoer’s “mischievous and wholly unfounded” claim “reasoned backwards” to try to find a way to hold the asset manager responsible for various losses.
The latter case is interesting because it effectively puts the nail in the coffin of those early days of fiduciary management.
The two parties made headlines back in May 2006, when the pension fund first appointed the asset manager to run the entirety of its assets. At the time, it was the largest mandate of its kind awarded in the Netherlands, and, until then, few other Dutch pension fund had outsourced the whole of their investment strategy to a fund manager. Now, it would seem, the honeymoon is well and truly over.
The former case is interesting because it illustrates just how difficult it can be for pension funds to pin down asset managers when investments go sour.
A source familiar with the Henderson case told IPE the manager promised the pension funds it would invest in a wide range of infrastructure projects, but that, “when it came to the small print of the contract, it said ‘we can invest in anything we like’”.
Education, as folk singer Pete Seeger once said, is when you read the small print. Experience is what you get if you don’t. A growing number of pension funds, it would seem, are about to become much more experienced.