Taking the plunge and bearing the risks.

Plaintiff is an attorney and experienced investor who retained defendant to manage approximately $600,000 of plaintiff's assets. He had reviewed and completed various documents provided by defendant, including a questionnaire concerning his risk tolerance and management objective. Plaintiff's risk assessment stated that on a scale of 1 to 10, his risk comfort level was 6, with a maximum risk level of 8. His stated that his portfolio management objective was to "Beat the Market - High Risk/Return."

Plaintiff reviewed and signed an investment policy statement which provided that plaintiff's portfolio would be a moderately aggressive growth and equity portfolio, and that "the Investment Manager(s) has been given full investment discretion with respect to the portion of the Portfolio it manages to allocate among assets equities, fixed income securities and cash equivalents and to purchase and sell individual securities. Such investment discretion will be exercised consistent with the stated investment objectives, risk tolerance, goals and guidelines of the Portfolio." It went on to state, in two places, that the portfolio would be managed in a "prudent manner," and further provided that "The equity portions of the Portfolio should be well-diversified among economic sectors, industry groups, and individual securities to avoid any undue exposure in any part of the U.S. equity market."

After plaintiff's initial $599,000 investment had declined in value by 39% to approximately $365,000, he closed his account and commenced a class action on behalf of himself and all others whose investment accounts were managed by defendant. The First Department found no evidence that defendant had breached its fiduciary duty, and dismissed the complaint, in Vladimir v. Cowperthwait, which was decided on July 26, 2007.

The court noted that plaintiff was an experienced investor who habitually selected his own stocks for investment, using the services of a broker only to execute his buy and sell orders. His deposition testimony states he was looking for "growth" and that he "wanted to beat the market." The client agreement signed by plaintiff acknowledges that there was no guarantee that his investment strategy would be achieved. Plaintiff acknowledged in his examination before trial that prior to investing in the Large Cap Growth Equity Portfolio, he was provided with a list of all the companies in the portfolio, and, although he did not examine the list in detail, he noticed that some of the companies were in the technology sector and did not object to their being in the fund. He also testified that he regularly reviewed his monthly statements and repeatedly discussed them with his broker during the entire time he was involved with defendant.