FILED
                           NOT FOR PUBLICATION
                                                                               SEP 17 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


THOMAS J. KENNIS,                                No.   19-55934

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-08162-GW-FFM
 v.

METROPOLITAN WEST ASSET                          MEMORANDUM*
MANAGEMENT, LLC,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                           Submitted August 31, 2020**
                              Pasadena, California

Before: IKUTA and BENNETT, Circuit Judges, and WOODLOCK,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Douglas P. Woodlock, United States District Judge for
the District of Massachusetts, sitting by designation.
      Thomas Kennis, a shareholder in the MetWest Total Return Bond Fund (the

Fund), appeals the district court’s ruling that Metropolitan West Asset

Management, LLC (MetWest) did not breach its fiduciary duty under section 36(b)

of the Investment Company Act of 1940 (ICA), 15 U.S.C. § 80a-35(b). We have

jurisdiction under 28 U.S.C. § 1291.

      We conclude that the district court did not clearly err in finding that Kennis

failed to carry his burden of showing that MetWest charges the Fund “a fee that is

so disproportionately large that it bears no reasonable relationship to the services

rendered and could not have been the product of arm’s length bargaining.” Jones

v. Harris Assocs. L.P., 

, 346 (2010). We therefore affirm.

      The district court did not clearly err in finding that MetWest provided the

Fund with significantly greater services than it provided the funds for which it

served as a subadvisor (the Subadvised Funds), including maintaining the Fund’s

net asset value and liquidity, ensuring compliance with legal requirements, and

assisting the Board, among other things. Nor did the district court clearly err in

finding that MetWest incurred greater risks for the Fund than for the Subadvised

Funds. Kennis’s argument that the district court credited MetWest with providing

services that were actually provided by BNY Mellon Investment Servicing (US)

Inc. (BNY) is not supported by the record. Because MetWest never charged the


                                           2
Fund for reimbursement under the Supplemental Administration Agreement, the

agreement sheds no light on the question whether MetWest charges

disproportionately large fees. And because the district court found that the “nature

and extent of the services required by [the Fund and the Subadvised Funds] differ

sharply,” the court reasonably rejected any comparison between the fees charged to

the Fund and the Subadvised Funds as “not probative.” 

–50

(citation omitted).

      Nor did the district court clearly err in rejecting Kennis’s other arguments.

While the record contains mixed evidence (including conflicting expert reports and

testimony) on Kennis’s argument that MetWest experienced savings resulting from

the Fund’s growth in assets under management, the district court did not clearly err

in concluding that MetWest had not profited from “economies of scale,” 

(citation omitted). The record also supports the district court’s

findings that the Board’s process was robust and that MetWest did not withhold

material information from the Board.1 Finally, the district court did not err in its

assessment of the Broadridge peer data; the data supported MetWest’s claim that




      1
       The ICA does not require the Board to negotiate for a lower fee; the Board
need only consider the relevant factors. See Jones v. Harris Assocs. L.P., 

, 351 (2010).
                                           3
its fees were reasonable, but the court gave the data “no more and no less” weight

“than the weight it deserves.”2

      AFFIRMED.




      2
        The record supports the district court’s determination that Professor John
Coates was qualified to testify as an expert; therefore, the court did not abuse its
discretion in admitting his testimony. See Fed. R. Evid. 702; United States v.
Hankey, 

, 1168 (9th Cir. 2000). Moreover, Kennis’s objection to the
testimony was not timely under the district court’s standing order. See Fed. R. Civ.
P. 16(c)(2)(D), 83(b).
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