UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

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Jeffrey McGinnes, Wendy Berry, Lorri Hulings, 

and Kathleen Sammons, individually and as 

representatives of a class of similarly situated 

persons, and on behalf of the FirstGroup 

America, Inc. Retirement Savings Plan,

Plaintiffs,

v.

FirstGroup America, Inc., FirstGroup America, 

Inc. Employee Benefits Committee, and Aon 

Hewitt Investment Consulting, Inc.,

Defendants.

Case No. 1:18-cv-00326-TSB

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FIRST GROUP DEFENDANTS’ ANSWER TO THE SECOND AMENDED CLASS 

ACTION COMPLAINT

Defendants FirstGroup America, Inc. (“FGA”) and the FirstGroup America, Inc. 

Employee Benefits Committee (the “Committee” and together with FGA, the “FGA 

Defendants”) hereby answer Plaintiffs’ Second Amended Class Action Complaint (the “Second 

Amended Complaint”) as follows:

PRELIMINARY STATEMENT

The Second Amended Complaint improperly mixes factual averments with 

argumentative rhetoric. Many of the allegations in the Second Amended Complaint are 

overbroad, vague, or conclusory so as to make admissions or denials of such averments difficult 

or impossible. Further, the Second Amended Complaint includes a number of allegations that 

appear intended solely to provide background information about defined contribution plans 

generally, without asserting specific allegations about the retirement plans at issue in this case. 

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By way of a general response, FGA Defendants deny all allegations unless specifically admitted 

herein, and any factual averment admitted is admitted only as to properly pleaded facts and not 

as to any conclusion, characterization, implication, speculation, or general background 

information contained therein.

The Second Amended Complaint also purports to paraphrase or quote from a number of 

sources, some identified, some not. FGA Defendants do not admit the authenticity of any such 

sources, and reserve the right to challenge the truth, accuracy, relevance and admissibility of the 

sources, quotation and paraphrasing. 

These comments and objections are incorporated, to the extent appropriate, into each 

numbered paragraph of this Answer.

1. The allegations of Paragraph 1 purport to describe Plaintiffs’ cause of action, and 

therefore require no response. To the extent a response is required, FGA Defendants specifically 

deny the allegation that FGA Defendants engaged in any wrongful conduct with respect to the 

FirstGroup America, Inc. Retirement Savings Plan (the “Plan”), deny that Plaintiffs have any 

viable claim against FGA Defendants, and deny any remaining allegations of Paragraph 1.

2. The allegations of Paragraph 2 purport to characterize and selectively quote from 

a case that speaks for itself, state legal conclusions, and provide general background information 

about the management of defined contribution plans without addressing the management of the 

Plans at issue in this case, and therefore require no response. To the extent a response is 

required, FGA Defendants deny the allegations of Paragraph 2.

3. The allegations of Paragraph 3 purport to characterize written documents that 

speak for themselves and provide general background information about defined contribution 

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and defined benefit plans without addressing the Plan at issue in this case, and therefore require 

no response.

4. The allegations of Paragraph 4 purport to selectively quote from a statute and case 

that speak for themselves and to state legal conclusions, and therefore require no response. To 

the extent a response is required, FGA Defendants deny that the allegations of Paragraph 4 fully 

or fairly set forth the law concerning duties under ERISA.

5. The allegations of Paragraph 5 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants deny the allegations 

of Paragraph 5.

6. The allegations of Paragraph 6 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants admit the allegations 

that Aon Hewitt Investment Consulting, Inc. (“Hewitt”) acted as the investment consultant to the 

Plan since at least 2009 and that Hewitt provided analysis and advice to the Committee regarding 

which investments to include in the Plan’s investment menu. FGA Defendants deny the 

remaining allegations of Paragraph 6.

7. FGA Defendants admit that Hewitt initially helped the Committee construct and 

maintain an investment lineup for the Plan consisting of a diverse set of investment products 

from a number of different fund managers. FGA Defendants lack knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations of Paragraph 7. 

8. FGA Defendants admit that, in 2013, a number of the Plan’s investment options 

were removed and that other funds offered by an Aon Hewitt company (the “Hewitt Funds”) 

were added to the Plan. FGA Defendants further admit that, in 2013, the Plan had over $250 

million which was invested in Hewitt Funds and that the Aon Hewitt Retirement Solution target 

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date funds became the Plan’s default investment option. FGA Defendants lack knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 8. 

9. FGA Defendants admit that the funds removed from the Plan were managed by 

asset managers at companies including Morgan Stanley, T. Rowe Price and Dodge & Cox, that 

those companies had experience managing assets, and that they had met or exceeded their 

benchmark indices at some point in time. FGA Defendants deny the remaining allegations of 

Paragraph 9.

10. The allegations of Paragraph 10 purport to state a legal conclusion, and therefore 

require no response.

11. The allegations of Paragraph 11 purport to state a legal conclusion, and therefore 

require no response.

12. The allegations of Paragraph 12 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants deny the allegations 

of Paragraph 12.

13. The allegations of Paragraph 13 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants admit that Plaintiffs 

purport to bring this action to obtain relief under ERISA and deny the remaining allegations of 

Paragraph 13.

14. The allegations of Paragraph 14 purport to state a legal conclusion, and therefore 

require no response.

15. The allegations of Paragraph 15 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants deny that Plaintiffs 

have any viable claim against them. 

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16. The allegations of Paragraph 16 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants lack knowledge or 

information sufficient to form a belief as to the truth of Mr. McGinnes’ residence or Plan 

investments. FGA Defendants specifically deny that Mr. McGinnes “suffered losses as a result 

of [FGA] Defendants’ fiduciary breaches, and would have been worth more at the time it was 

distributed from the Plan had [FGA] Defendants not violated ERISA” and deny the remaining 

allegations of Paragraph 16. 

17. The allegations of Paragraph 17 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants lack knowledge or 

information sufficient to form a belief as to the truth of Ms. Berry’s residence or Plan 

investments. FGA Defendants specifically deny that Ms. Berry “suffered losses as a result of 

[FGA] Defendants’ fiduciary breaches, and would be worth more if [FGA] Defendants not 

violated ERISA” and deny the remaining allegations of Paragraph 17. 

18. The allegations of Paragraph 18 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants lack knowledge or 

information sufficient to form a belief as to the truth of Ms. Hulings’ residence or Plan 

investments. FGA Defendants specifically deny that Ms. Hulings “suffered losses as a result of 

[FGA] Defendants’ fiduciary breaches, and would be worth more if [FGA] Defendants not 

violated ERISA” and deny the remaining allegations of Paragraph 18. 

19. The allegations of Paragraph 19 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants lack knowledge or 

information sufficient to form a belief as to the truth of Ms. Sammons’ residence or Plan 

investments. FGA Defendants specifically deny that Ms. Sammons “suffered losses as a result 

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of [FGA] Defendants’ fiduciary breaches, and would be worth more if [FGA] Defendants not 

violated ERISA” and deny the remaining allegations of Paragraph 19. 

20. As to the allegations of the first sentence of Paragraph 20, FGA Defendants admit 

that FGA is a transportation services company headquartered in Cincinnati, Ohio. The 

allegations of the remainder of Paragraph 20 purport to state legal conclusions, and therefore 

require no response.

21. The allegations of Paragraph 21 purport to state a legal conclusion, and therefore 

require no response.

22. The allegations of Paragraph 22 are directed to a different defendant, and 

therefore require no response by FGA Defendants. 

23. The allegations of Paragraph 23 purport to state legal conclusions, and therefore 

require no response.

24. The allegations of Paragraph 24 purport to state a legal conclusion, and therefore 

require no response. To the extent a response is required, FGA Defendants admit that the Plan or 

its predecessors were established by FGA or its predecessors and were in effect prior to and 

during the putative class period. 

25. FGA Defendants admit that eligible employees of FGA and related companies are 

covered by the Plan and that they may contribute a percentage of their earnings on a pre-tax basis 

to the Plan. FGA Defendants further admit that, prior to September 30, 2013, the Plan included 

eleven investment options, and that those options included a target date option managed by T. 

Rowe Price, the Wells Fargo Stable Return Fund, a S&P 500 index fund and eight actively 

managed mutual funds managed by asset managers at financial companies including American 

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Funds and Dodge & Cox, who were experienced managers. FGA Defendants further admit that 

those funds provided exposure to different asset classes. 

26. FGA Defendants admit that, with the exception of the Wells Fargo Stable Return 

Fund, the Plan’s then-existing options were removed from the Plan’s investment lineup effective 

October 1, 2013 and that a self-directed brokerage account (“SDBA”) was added to the Plan’s 

menu. FGA Defendants further admit that the Plan’s investment options beginning October 1, 

2013 included the Wells Fargo Stable Return Fund, Aon Hewitt Core Plus Bond Fund, Aon 

Hewitt Inflation Strategy Fund, Aon Hewitt Large Cap Equity Fund, Aon Hewitt Small & Mid 

Cap Equity Fund, Aon Hewitt Non-U.S. Equity Fund and Aon Hewitt Retirement Solution 

Target Date Funds. FGA Defendants further admit that Plan participants could invest through 

the SDBA in one or more passive investment strategies. 

27. The allegations of Paragraph 27 purport to characterize the law and selectively 

quote from a statute and cases that speak for themselves, and therefore require no response.

28. The allegations of Paragraph 28 purport to characterize the law and selectively 

quote from cases that speak for themselves, and therefore require no response.

29. The allegations of Paragraph 29 purport to characterize the law and selectively 

quote from cases and regulatory guidance that speak for themselves, and therefore require no 

response.

30. The allegations of Paragraph 30 purport to characterize the law and selectively 

quote from a case that speaks for itself, and therefore require no response.

31. The allegations of Paragraph 31 purport to characterize the law and selectively 

quote from a statute and regulatory guidance that speak for themselves, and therefore require no 

response.

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32. The allegations of Paragraph 32 purport to characterize the law and selectively 

quote from a case that speaks for itself, and therefore require no response.

33. The allegations of Paragraph 33 purport to characterize the law and selectively 

quote from cases that speak for themselves, and therefore require no response.

34. The allegations of Paragraph 34 purport to characterize the law, and therefore 

require no response.

35. The allegations of Paragraph 35 purport to characterize the law and selectively 

quote from a statute and regulations that speak for themselves, and therefore require no response.

36. The allegations of Paragraph 36 purport to characterize written sources that speak 

for themselves and provide general background information about investment alternatives in 

defined contribution plans without addressing the Plan at issue in this case, and therefore require 

no response.

37. The allegations of Paragraph 37 purport to provide a general description of how 

fees are charged for certain investment products without addressing the Plan at issue in this case, 

and therefore require no response.

38. The allegations of Paragraph 38 purport to provide general background 

information about investment alternatives in defined contribution plans without addressing the 

Plan at issue in this case, and therefore require no response.

39. The allegations of Paragraph 39 purport to provide general background 

information about investment alternatives in defined contribution plans without addressing the 

Plan at issue in this case, and therefore require no response.

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40. The allegations of Paragraph 40 purport to provide general background 

information about investment alternatives in defined contribution plans without addressing the 

Plan at issue in this case, and therefore require no response.

41. The allegations of Paragraph 41 purport to provide general background 

information about investment alternatives in defined contribution plans without addressing the 

Plan at issue in this case, and therefore require no response.

42. The allegations of Paragraph 42 purport to provide a general description of 

actively and passively managed funds without addressing the Plan at issue in this case and to 

characterize written sources that speak for themselves, and therefore require no response. To the 

extent a response is required, FGA Defendants deny that the allegations of Paragraph 42 

accurately describe actively and passively managed funds.

43. The allegations of Paragraph 43 purport to characterize the law and selectively 

quote a case that speaks for itself, and therefore require no response.

44. The allegations of Paragraph 44 purport to state legal conclusions and selectively 

quote cases, and therefore require no response. 

45. The allegations of Paragraph 45 purport to state legal conclusions and selectively 

quote a case, and therefore require no response. 

46. The allegations of Paragraph 46 are directed to a different defendant, and 

therefore require no response by FGA Defendants. 

47. The allegations of Paragraph 47 are directed to a different defendant, and 

therefore require no response by FGA Defendants. 

48. The allegations of Paragraph 48 are directed to a different defendant, and 

therefore require no response by FGA Defendants.

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49. The allegations of Paragraph 49 are directed to a different defendant, and 

therefore require no response by FGA Defendants.

50. FGA Defendants admit that Hewitt regularly consulted with the Committee 

regarding the investment options in the Plan. FGA Defendants further admit that, in 2013, a 

number of the Plan’s investment options were removed from the Plan’s then-existing investment 

lineup, that several Hewitt funds were added to the Plan, and that the Aon Hewitt Retirement 

Solutions target date funds became the Plan’s default investment option. FGA Defendants 

further admit that, at some point in 2013, the Plan had more than $250 million invested in the 

Aon Hewitt Funds. FGA Defendants deny the remaining allegations in Paragraph 50.

51. FGA Defendants admit that the chart at Illustration 1 in Paragraph 51 reflects the 

investment options for the Plan before and after the Hewitt funds were added to the Plan’s 

investment lineup, other than the SDBA. FGA Defendants deny the remaining allegations in 

Paragraph 51.

52. FGA Defendants admit that, as of October 1, 2013, the Aon Hewitt Retirement 

Solution target date funds became the Plan’s default investment option. FGA Defendants further 

admit that, at some point in 2013, the Plan had more than $250 million invested in the Hewitt 

Funds. FGA Defendants further admit that Plan participants could invest through the SDBA in 

one or more passive investment strategies, and that the Wells Fargo Stable Return Fund was the 

Plan only investment option outside the SDBA other than the Hewitt Funds. FGA Defendants 

deny the remaining allegations in Paragraph 52.

53. The allegations of Paragraph 53 purport to state a legal conclusion, and therefore 

require no response.

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54. FGA Defendants admit that the funds that were removed from the Plan’s 

investment lineup when the Hewitt funds were added to that lineup were managed by investment 

managers with experience in managing investment products. FGA Defendants further admit that 

those funds included funds with varying styles, such as large cap, mid cap, small cap, 

international stock funds and funds styled as “growth” or “value” options. FGA Defendants 

further admit that participants could customize their allocation to the various fund options. FGA 

Defendants further admit that the funds in the T. Rowe Price target date series were intended to 

be managed to provide investors an appropriate portfolio based on a targeted retirement date. 

FGA Defendants deny the remaining allegations in Paragraph 54.

55. FGA Defendants admit that the funds referenced in Paragraph 55 had a track 

record of performance at the time they were replaced. The first sentence of Paragraph 55 and the 

chart at Illustration 2 purports to compile and rely upon data from publicly available sources and 

therefore requires no response. 

56. FGA Defendants admit that the T. Rowe Price Retirement target date funds in the 

Plan had met or exceeded their stated benchmarks at times prior to their removal from the Plan’s 

investment lineup. 

57. The allegations of Paragraph 57 purport to state legal conclusions and selectively 

quote from an expert report in another lawsuit, and therefore require no response.

58. FGA Defendants deny the allegations of Paragraph 58.

59. The allegations of Paragraph 59 purport to state legal conclusions, and therefore 

require no response. FGA Defendants lack knowledge or information sufficient to form a belief 

as to the allegations of Paragraph 59 regarding the number of retirement plans in 2013. FGA 

Defendants deny the remaining allegations of Paragraph 59. 

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60. The allegations of Paragraph 60 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants admit that the Aon 

Hewitt Retirement Solution target date funds became the Plan’s default investment option and 

that at some point in 2013, the Plan had more than $250 million invested in the Hewitt Funds. 

FGA Defendants deny the remaining allegations of Paragraph 60.

61. The allegations of Paragraph 61 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants deny the allegations 

of Paragraph 61.

62. The allegations of Paragraph 62 purport to characterize a document that speaks 

for itself, and therefore require no response.

63. The allegations of Paragraph 63 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants deny the allegations 

of Paragraph 63.

64. The allegations of Paragraph 64 purport to state legal conclusions and to 

characterize a document that speaks for itself, and therefore require no response. To the extent a 

response is required, FGA Defendants deny the allegations of Paragraph 64.

65. The allegations of Paragraph 65 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants deny the allegations 

of the first sentence of Paragraph 65. FGA Defendants further lack knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations of Paragraph 65.

66. The allegations of Paragraph 66 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants deny the allegations 

of Paragraph 66. 

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67. FGA Defendants deny the allegations of Paragraph 67.

68. The allegations of Paragraph 68 purport to characterize a document that speaks 

for itself, and therefore require no response. To the extent a response is required, FGA 

Defendants deny the allegations of Paragraph 68.

69. The allegations of Paragraph 69 purport to characterize a document that speaks 

for itself, and therefore require no response.

70. The allegations of Paragraph 70 purport to state legal conclusions and to 

characterize documents that speak for themselves, and therefore require no response. To the 

extent a response is required, FGA Defendants deny the allegations of Paragraph 70.

71. FGA Defendants lack knowledge or information sufficient to form a belief as to 

the accuracy of the chart at Illustration 3 in which Plaintiffs purport to calculate the “Average 

Annual Return Since Inception, +/- Fund Benchmark” and “Average Annual Return Since 

Inception +/- Removed Fund(s)”. FGA Defendants deny the remaining allegations in Paragraph 

71.

72. Paragraph 72 purports to summarize a Form 5500, which speaks for itself. FGA 

Defendants lack knowledge or information sufficient to form a belief as to the accuracy of the 

purported calculations referenced in Paragraph 72. FGA Defendants deny the remaining 

allegations in Paragraph 72. 

73. FGA Defendants lack knowledge or information sufficient to form a belief as to 

the accuracy of the purported calculations referenced in Paragraph 73. FGA Defendants deny 

the remaining allegations in Paragraph 73.

74. FGA Defendants deny the allegations in Paragraph 74.

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75. The allegations of Paragraph 75 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants admit that the Plan 

lineup currently includes Hewitt Funds and deny the remaining allegations of Paragraph 75.

76. FGA Defendants lack knowledge or information sufficient to form a belief as to 

the accuracy of the allegations in Paragraph 76.

77. The allegations of Paragraph 77 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants deny that the Plan 

suffered any losses.

78. The allegations of Paragraph 78 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants admit that the Aon 

Hewitt Retirement Solution target date funds invest in other funds, including other Hewitt funds 

and FGA Defendants lack knowledge or information sufficient to form a belief as to the accuracy 

of the remaining allegations of Paragraph 78.

79. The allegations of Paragraph 79 purport to state legal conclusions, and therefore 

require no response.

80. The allegations of Paragraph 80 purport to state legal conclusions, and therefore 

require no response. To the extent a response is required, FGA Defendants lack knowledge or 

information sufficient to form a belief as to Plaintiffs’ actual or other knowledge as set forth in 

Paragraph 80. 

81. The allegations of Paragraph 81 purport to state legal conclusions, and 

characterize Plaintiffs’ cause of action, and therefore require no response. To the extent a 

response is required, FGA Defendants deny that Plaintiffs have stated a valid claim against them 

and deny that certification of a class is appropriate in this case.

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82. The allegations of Paragraph 82 purport to characterize the putative class that 

Plaintiffs seek to have certified, and therefore require no response. To the extent a response is 

required, FGA Defendants deny that Plaintiffs have stated a valid claim against them and deny 

that certification of a class is appropriate in this case.

83. FGA Defendants deny the allegations of Paragraph 83, except FGA Defendants 

admit that the Plan had approximately 13,000 participants during various times in the putative 

class period. FGA Defendants deny that certification of any class is appropriate in this case.

84. FGA Defendants deny the allegations of Paragraph 84, and deny that certification 

of any class is appropriate in this case.

85. FGA Defendants deny the allegations of Paragraph 85, and deny that certification 

of any class is appropriate in this case.

86. FGA Defendants deny the allegations of Paragraph 86, and deny that certification 

of any class is appropriate in this case.

87. FGA Defendants deny the allegations of Paragraph 87, and deny that certification 

of any class is appropriate in this case.

88. FGA Defendants deny the allegations of Paragraph 88, and deny that certification 

of any class is appropriate in this case.

89. FGA Defendants deny the allegations of Paragraph 89, and deny that certification 

of any class is appropriate in this case.

COUNT I

90. FGA Defendants incorporate their responses to Paragraphs 1 through 89 as if fully 

set forth here.

91. The allegations of Paragraph 91 purport to state legal conclusions, and therefore 

require no response.

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92. The allegations of Paragraph 92 purport to state legal conclusions, and therefore 

require no response.

93. The allegations of Paragraph 93 purport to state legal conclusions, and therefore 

require no response.

94. The allegations of Paragraph 94 purport to state legal conclusions, and therefore 

require no response.

95. The allegations of Paragraph 95 purport to state legal conclusions, and therefore 

require no response.

96. The allegations of Paragraph 96 purport to state legal conclusions, and therefore 

require no response.

97. FGA Defendants deny the allegations of Paragraph 97.

98. FGA Defendants deny the allegations of Paragraph 98.

99. FGA Defendants deny the allegations of Paragraph 99.

100. FGA Defendants deny the allegations of Paragraph 100.

101. FGA Defendants deny the allegations of Paragraph 101.

102. FGA Defendants deny the allegations of Paragraph 102. 

COUNT II

103. FGA Defendants incorporate their responses to Paragraphs 1 through 102 as if 

fully set forth here. 

104. The allegations of Paragraph 104 purport to state legal conclusions, and therefore 

require no response.

105. The allegations of Paragraph 105 purport to state legal conclusions, and therefore 

require no response.

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106. The allegations of Paragraph 106 purport to characterize a document that speaks 

for itself, and therefore require no response. 

107. FGA Defendants deny the allegations of Paragraph 107.

108. FGA Defendants deny the allegations of Paragraph 108.

109. FGA Defendants deny the allegations of Paragraph 109.

COUNT III

110. FGA Defendants incorporate their responses to Paragraphs 1 through 109 as if 

fully set forth here. 

111. The allegations of Paragraph 111 purport to state legal conclusions, and therefore 

require no response.

112. The allegations of Paragraph 112 purport to state legal conclusions, and therefore 

require no response.

113. The allegations of Paragraph 113 purport to state legal conclusions, and therefore 

require no response.

114. FGA Defendants deny the allegations of Paragraph 114.

115. FGA Defendants deny the allegations of Paragraph 115.

116. FGA Defendants deny the allegations of Paragraph 116.

DEFENSES

FGA Defendants advance the following defenses to the Second Amended Complaint. 

The defenses asserted below will apply or will not apply in in varying degrees to members of the

putative class including Plaintiffs, depending upon the particular factual circumstances of each 

individual member of the putative class. By setting forth these defenses, FGA Defendants do not 

assume the burden of proving any fact, issue, or element of a cause of action where such burden 

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properly belongs to the Plaintiffs. Nothing stated herein is intended or shall be construed as an 

admission that any particular issue or subject matter is relevant to Plaintiffs’ allegations 

First Defense

The Second Amended Complaint fails to state a claim upon which relief can be granted.

Second Defense

Plaintiffs lack standing to bring claims regarding funds in which each Plaintiff did not 

invest, or for any time period in which a Plaintiff did not participate in the Plan.

Third Defense

Plaintiffs’ claims, and those of the putative class members, are barred in whole or in part 

by the applicable statute of limitations and repose, including but not limited to ERISA § 413, 29 

U.S.C. § 1113, to the extent that Plaintiffs and/or the putative class members had knowledge of 

their alleged claims more than three years prior to filing the Second Amended Complaint and/or 

that the conduct giving rise to Plaintiffs’ claim occurred more than six years prior to the filing of 

the Second Amended Complaint.

Fourth Defense

Neither the Plaintiffs nor the putative class members have suffered any legally cognizable 

losses or damages from their purported investments in funds through the Plan.

Fifth Defense

Any injury sustained by Plaintiffs or any putative class members on behalf of the Plan 

was not directly or proximately caused by the alleged breach of fiduciary duty as set forth in the 

Second Amended Complaint.

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Sixth Defense

The FGA Defendants acted at all times and in all respects in good faith and with due care, 

and did not engage in any conduct which would constitute a breach of fiduciary duty or a failure 

to monitor fiduciaries.

Seventh Defense

Plaintiffs’ claims, and those of the putative class members, are barred, in whole or in part, 

because the Second Amended Complaint seeks relief that cannot be obtained under ERISA 

§§ 409 and 502(a)(2), 29 U.S.C. §§ 1109 and 1132(a)(2), and it seeks relief that is not “other 

appropriate equitable relief” available under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). 

Eighth Defense

Plaintiffs’ claims, and those of the putative class members, are barred in whole or in part 

by ERISA § 404(c), 29 U.S.C. § 1104(c), because Plaintiffs and/or the putative class members 

exercised control over their plan accounts.

Ninth Defense

Plaintiffs’ claims, and those of the putative class members, are barred, in whole or in part, 

because advisory fees paid by investment companies are governed not by ERISA but by the 

Investment Company Act of 1940, as amended. 

Tenth Defense

The claims of Plaintiffs and the putative class members are barred or reduced because 

they have proximately caused, contributed to, and/or failed to mitigate an any and all harm 

and/or loss claimed.

Eleventh Defense

The claims of Plaintiffs and the putative class members are barred by the doctrine of 

laches, waiver, and/or estoppel.

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Twelfth Defense

The claims of Plaintiffs and the putative class members are barred to the extent that 

Plaintiffs and/or the putative class members released and/or covenanted to not sue Defendants 

regarding the ERISA claims brought in the Second Amended Complaint. 

Thirteenth Defense

The claims of Plaintiffs and the putative class members are barred by their failure to 

exhaust administrative remedies.

Fourteenth Defense

To the extent that this action seeks exemplary or punitive damages, any such relief would 

violate FGA Defendants’ rights to procedural and substantive due process.

Fifteenth Defense

Committees can neither properly be sued as parties nor considered as fiduciaries under 

ERISA; accordingly, the Committee is not a proper party to this lawsuit. 

Sixteenth Defense

The Plan’s investment policy statements are not “documents [or] instruments governing 

the [P]lan” under ERISA § 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D).

DEMAND FOR JUDGMENT

WHEREFORE, FGA Defendants respectfully request that the Court:

a) dismiss the Second Amended Complaint with prejudice;

b) award FGA Defendants their attorneys’ fees and costs; and

c) grant such other and further relief as it deems just and proper.

Case: 1:18-cv-00326-MWM Doc #: 72 Filed: 10/14/21 Page: 20 of 22 PAGEID #: 1567
-21-

DINSMORE & SHOHL LLP

By: /s/ Jennifer O. Mitchell 

Jennifer O. Mitchell 

255 E. Fifth Street, Suite 1900

Cincinnati, Ohio 45202

(513) 977-8364

(513) 977-8141 (Fax)

jennifer.mitchell@dinsmore.com

GOODWIN PROCTER LLP

James O. Fleckner (admitted pro hac vice)

David Rosenberg (admitted pro hac vice)

100 Northern Avenue

Boston, Massachusetts 02210

(617) 570-1000

(617) 523-1231 (Fax)

jfleckner@goodwinlaw.com

drosenberg@goodwinlaw.com

Gabrielle L. Gould (admitted pro hac vice)

Samuel J. Rubin (admitted pro hac vice)

The New York Times Building

620 Eighth Avenue

New York, New York 10018

(212) 813-8800

(212) 355-3333 (Fax)

ggould@goodwinlaw.com

srubin@goodwinlaw.com

ATTORNEYS FOR DEFENDANT 

FIRSTGROUP AMERICA, INC. AND THE 

FIRSTGROUP AMERICA, INC. 

EMPLOYEE BENEFITS COMMITTEE

Dated: October 14, 2021

Cincinnati, Ohio Respectfully submitted,

Case: 1:18-cv-00326-MWM Doc #: 72 Filed: 10/14/21 Page: 21 of 22 PAGEID #: 1568
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CERTIFICATE OF SERVICE

I hereby certify that on this 14

th day of October 2021, I electronically filed the foregoing

with the Clerk of Court using the CM/ECF system, which will send notification to all counsel of 

record.

/s/ Jennifer O. Mitchell 

Jennifer O. Mitchell 

Case: 1:18-cv-00326-MWM Doc #: 72 Filed: 10/14/21 Page: 22 of 22 PAGEID #: 1569