UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

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

Judge Matthew W. McFarland

PLAINTIFFS’ MEMORANDUM

IN OPPOSITION TO THE FGA

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

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.

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................v

SUMMARY OF ARGUMENT.......................................................................................................v

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND..........................................................................................................1

I. THE COMMITTEE HIRES AON WITH VIRTUALLY NO DUE DILIGENCE ...................................1

II. AON TARGETED THREE COMMITTEE MEMBERS BEHIND THE SCENES USING A BAIT-ANDSWITCH PLOY .......................................................................................................................3

III. THE COMMITTEE LEAPT BEFORE IT LOOKED........................................................................4

IV. THE COMMITTEE RELIED ON ITS UNSUBSTANTIATED “BELIEF” THAT AON 

WAS QUALIFIED ....................................................................................................................5

V. THE COMMITTEE TRUSTED, BUT NEVER VERIFIED ...............................................................8

ARGUMENT.................................................................................................................................11

I. THE COMMITTEE FAILED TO UTILIZE A PRUDENT PROCESS FOR SELECTING AON AS THE 

PLAN’S DELEGATED INVESTMENT MANAGER ....................................................................12

II. THE COMMITTEE FAILED TO APPROPRIATELY MONITOR AON AND THE AON FUNDS .........17

III. THE FGA DEFENDANTS’ BREACHES UNDOUBTEDLY RESULTED IN A LOSS TO THE PLAN ..20

CONCLUSION..............................................................................................................................23

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TABLE OF AUTHORITIES

Cases

Accardi v. McGuire, Woods & Battle, 

734 F.2d 10 (4th Cir. 1984) ...............................................................................................16

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)................................................................................................... viii, 11

Baird v. BlackRock Inst. Tr. Co.,

2021 WL 105619 (N.D. Cal. Jan. 12, 2021)......................................................................23

Bd. of Trustees of S. California IBEW-NECA Defined Contribution Plan v. Bank of New York

Mellon Corp., 

2011 WL 6130831 (S.D.N.Y. Dec. 9, 2011) ............................................................... vi, 11

Brotherston v. Putnam Invs., LLC, 

907 F.3d 17 (1st Cir. 2018)................................................................................................22

Cassell v. Vanderbilt Univ., 

285 F. Supp. 3d 1056 (M.D. Tenn. 2018)..........................................................................13

Cates v. Columbia Univ., 

2019 WL 8955333 (S.D.N.Y. Oct. 25, 2019)..............................................................11, 20

Chao v. Hall Holding Co., 

285 F.3d 415 (6th Cir. 2002) ...................................................................................... passim

Cryer v. Franklin Res., Inc.,

2018 WL 6267856 (N.D. Cal. Nov. 16, 2018) ............................................................11, 16

Davidson v. Cook,

567 F. Supp. 225 (E.D. Va. 1983) .....................................................................................16

Dilts v. United Group Servs., LLC, 

500 Fed. Appx. 440 (6th Cir. 2012)...................................................................................12

Donovan v. Bierwirth, 

754 F.2d 1049 (2d Cir. 1985).............................................................................................22

Donovan v. Cunningham, 

716 F.2d 1455 (5th Cir. 1983) ...........................................................................................14

Evans v. Akers, 

534 F.3d 65 (1st Cir. 2008)................................................................................................20

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iii

Fifth Third Bancorp v. Dudenhoeffer,

573 U.S. 409 (2014)...........................................................................................................20

Forman v. TriHealth, Inc., 

40 F.4th 443 (6th Cir. 2022) ..............................................................................................12

Garthwait v. Eversource Energy Co.,

2022 WL 3019633 (D. Conn. July 29, 2022) ....................................................................20

Gregg v. Transp. Workers of Am. Int’l,

343 F.3d 833 (6th Cir. 2003) .................................................................................12, 15, 17

Howard v. Shay,

100 F.3d 1484 (9th Cir. 1996) .....................................................................................12, 17

Kuper v. Iovenko,

66 F.3d 1447 (6th Cir. 1995) .............................................................................................20

Laster v. City of Kalamazoo, 

746 F.3d 714 (6th Cir. 2014) .............................................................................................11

Liss v. Smith,

991 F. Supp. 278 (S.D.N.Y. 1998) ....................................................................................15

Marshall v. Northrop Grumman Corp.,

2019 WL 4058583 (C.D. Cal. Aug. 14, 2019)...................................................................16

Mohler v. Unger, 

1994 WL 1860578 (S.D. Ohio Aug. 26, 1994)..................................................................12

Moitoso v. FMR LLC,

451 F. Supp. 3d 189 (D. Mass. 2020)................................................................................14

Pfeil v. State St. Bank & Tr. Co., 

806 F.3d 377 (6th Cir. 2015) .........................................................................................1, 12

Phillips v. Cohen, 

400 F.3d 388 (6th Cir. 2005) .............................................................................................15

Ramos v. Banner Health, 

2019 WL 1777524 (D. Colo. Apr. 23, 2019).....................................................................20

Ramos v. Banner Health, 

461 F. Supp. 3d 1067 (D. Colo. 2020)...............................................................................18

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Ramos v. Banner Health, 

1 F.4th 769 (10th Cir. 2021) ........................................................................................18, 22

Reetz v. Lowe’s Cos., 

2021 WL 535160 (W.D.N.C. Feb. 12, 2021) ....................................................................16

Reetz v. Lowe’s Cos.,

2021 WL 4771535, at *46 (W.D.N.C. Oct. 12, 2021)...........................................14, 15, 18

Sacerdote v. New York Univ.,

1:16-cv-06284, Dkt. 174 (S.D.N.Y. Feb. 22, 2018) ..........................................................16

Sacerdote v. N.Y. Univ., 

328 F. Supp. 3d 273 (S.D.N.Y. 2018)................................................................................14

Sacerdote v. New York Univ.,

9 F.4th 95 (2d Cir. 2021) ...................................................................................................19

Seawell v. Brown, 

2010 WL 4683952 (S.D. Ohio Nov. 10, 2010)............................................................11, 12

Sec'y of U.S. Dep't of Lab. v. Gilley,

290 F.3d 827 (6th Cir. 2002) .............................................................................................23

Sims v. BB&T Corp., 

2018 WL 3128996 (M.D.N.C. June 26, 2018) ............................................................16, 17

Tatum v. RJR Pension Inv. Comm., 

761 F.3d 346 (4th Cir. 2014) .............................................................................................15

Terraza v. Safeway Inc., 

2019 WL 12872958 (N.D. Cal. Apr. 16, 2019).....................................................11, 20, 23

Tibble v. Edison Int'l, 

575 U.S. 523 (2015).................................................................................................... vii, 17

Tracey v. Massachusetts Inst. of Tech.,

404 F. Supp. 3d 356 (D. Mass. 2019)......................................................................... vii, 12

Rules, Regulations, and Statutes

Fed. R. Civ. P. 56(c) ......................................................................................................................11

29 U.S.C. § 1104(a)(1)(B) ................................................................................................... vi, 1, 12

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PRELIMINARY STATEMENT

The Second Amended Complaint contains three Counts against the FGA Defendants and 

Aon Hewitt Investment Consulting, Inc. (“Aon”): Count I alleges breaches of the duties of loyalty 

and prudence, Count II alleges a breach of the duty to follow plan documents (specifically, the 

Plan’s Investment Policy Statement), and Count III alleges a failure by First Group America, Inc. 

to monitor the Committee. (Second Amended Complaint, ECF No. 71.) While Aon has agreed to 

settle all of these claims, the FGA Defendants now move for summary judgment on all three 

Counts. In light of the settlement with Aon and in the interest of streamlining this matter for trial, 

avoiding duplicative arguments, and focusing the Court’s attention on the matters genuinely in 

dispute, Plaintiffs do not oppose (i) dismissal of the loyalty claims against the FGA Defendants 

under Count I; (ii) dismissal of Count II as a stand-alone claim;

1

and (iii) dismissal of Count III. 

Thus, for the reasons explained in this memorandum, the core issue for trial is the imprudence of 

FGA’s process for engaging, retaining, and monitoring Aon and the Aon funds, as alleged under 

Count I.

SUMMARY OF ARGUMENT

Defendants are not entitled to summary judgment on the issue of whether the process they 

used to retain and monitor Aon as the delegated investment fiduciary for the FirstGroup America, 

Inc. Retirement Savings Plan (“the Plan”) complied with ERISA’s strict duty of prudence. This 

issue is intensely fact-based and requires a holistic evaluation of the acts and omissions of 

defendants to determine whether they acted “with the care, skill, prudence, and diligence under the 

circumstances then prevailing that a prudent man acting in a like capacity and familiar with such 

1 While Plaintiffs do not oppose dismissal of Count II as a stand-alone claim, they reserve the right to rely on 

evidence regarding the Committee’s failure to follow the Plan’s Investment Policy Statement in support of their 

claim of imprudence under Count I.

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matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. 

§ 1104(a)(1)(B). “Rarely will such a determination be appropriate on a motion for summary 

judgment.” Bd. of Trustees of S. California IBEW-NECA Defined Contribution Plan v. Bank of 

New York Mellon Corp., 2011 WL 6130831, at *3 (S.D.N.Y. Dec. 9, 2011). This case is no 

exception.

There is ample evidence in the record establishing that Defendants did not utilize a prudent 

process in initially selecting Aon and the Aon funds. The entirety of the Committee’s due diligence 

process consisted of a single meeting during which the Committee heard a sales pitch from Aon 

and promptly decided to hire Aon for the role, all of which took less than an hour. Aon’s sales 

pitch was not on the agenda for the meeting, and no information was provided to the Committee 

in advance. Contrary to its typical practices, the Committee did not issue a request for proposals 

(“RFP”) or otherwise investigate alternative service providers. Prior to the meeting, the Committee 

had never discussed engaging a delegated fiduciary for the Plan, and three of the eight voting 

members of the Committee were not present at the meeting and did not find out about the decision

until after the fact. Meanwhile, there was no independent analysis of Aon’s projected fees and 

performance—both of which turned out to be significantly less favorable than promised. 

Moreover, the Aon funds did not even exist yet, and the Committee had no information about 

Aon’s experience and skill (or lack thereof) in managing funds for 401(k) plans. 

Indeed, the one piece of concrete data that the Committee did have available at the time, 

but which they apparently failed to review, was Aon’s track record managing funds for First 

Group’s defined benefit pension plan. 

something that should have sharply called into 

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question Aon’s promise of improved performance for the Aon funds it was pitching for the Plan. 

This is especially true given that the Plan’s existing lineup of investments was performing well 

and included a best-in-class suite target date funds (“TDFs”) managed by T. Rowe Price, all of 

which the Committee authorized Aon to replace with Aon’s new, untested funds.

These facts speak for themselves. But Plaintiffs also offer substantial expert testimony 

establishing that the Committee’s process was inconsistent with the standard of care observed in 

the industry. In such cases, courts routinely deny motions for summary judgment. See, e.g., Tracey 

v. Massachusetts Inst. of Tech., 404 F. Supp. 3d 356, 363 (D. Mass. 2019) (“[O]pinions of the 

parties’ experts as to the proper industry protocol . . . are in stark contrast. Both parties also present 

competing narratives surrounding the decision not to conduct an RFP. Because those disputes are 

more than superficial, the Court concludes that they are best resolved at trial.”).

Following the Committee’s hasty and ill-advised decision to engage Aon and the Aon 

funds, the record also demonstrates that the Committee failed in its “continuing duty to monitor 

trust investments and remove imprudent ones.” Tibble v. Edison Int'l, 575 U.S. 523, 529 (2015).

Despite almost immediate indications that Aon would not be able to deliver either the fee savings 

or the improved performance that its sales pitch promised, the Committee took no steps to 

independently analyze Aon’s poor performance and instead passively relied on the 

recommendations of Aon’s consultants to make no changes to the Plan’s investments. Meanwhile, 

internally Aon personnel recognized 

Once the Committee finally decided to take action, it moved at a glacial pace, delaying 

action for four years due to corporate concerns rather than the prudent management of the Plan. 

And, ironically, once Aon was finally terminated and a new delegated fiduciary was in place, the 

Aon TDFs were removed from the Plan and replaced with 

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 Again, in addition to this ample factual record, Plaintiffs offer significant expert testimony 

that the Committee’s process was inconsistent with the standard of care observed in the industry.

Finally, Defendants are simply wrong in their argument that there is insufficient evidence 

of a causal link between these deficiencies in the Committee’s process and the damages calculated 

by Plaintiffs’ damages expert. These damages were calculated using two models, one that 

compared the performance of the Aon funds to the lineup of “legacy” funds that were removed 

from the Plan when Aon took over in 2013, and the other comparing the performance of the Aon 

TDFs to a suite of passively managed TDFs from fund manager State Street. The first model is 

well supported, given that 

 The State Street model is also grounded in the 

record, as Aon itself advised the Committee 

Though Defendants clearly wish it were not so, the evidence in this case is far from being 

“so one-sided that [Defendants] must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 252 (1986). Accordingly, their request for summary judgment should be denied.

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INTRODUCTION

The central issue for trial in this case is whether the FirstGroup Defendants employed a 

prudent process for selecting and retaining an investment manager, and for monitoring the Plan’s 

investment options. To resolve this issue, this Court must determine whether the Committee acted 

“with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent 

[person] acting in a like capacity and familiar with such matters would use in the conduct of an 

enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). In other words, this 

Court must decide, among other things:

(1) whether a prudent fiduciary would forego a diligent review process when selecting 

an investment manager, based on the unsubstantiated “belief” that an existing 

service provider was qualified for the role; 

(2) whether a prudent fiduciary would select an inexperienced investment manager, 

knowing that investment manager would replace a top-tier suite of target date funds 

with untested, unfunded, and undeveloped proprietary investments; and 

(3) whether a prudent fiduciary would rely on an inexperienced investment manager’s 

self-assessment in lieu of independently evaluating whether chronic 

underperformance merited the retention of that manager, or their funds.

The undisputed facts in this case plainly establish that the Committee’s conduct fell far 

short of ERISA’s exacting standards—the highest duties known to law. Chao v. Hall Holding Co., 

285 F.3d 415, 426 (6th Cir. 2002). However, because the Parties vehemently dispute “the 

appropriateness of [Defendants’] methods” for making fiduciary decisions, Defendants’ motion 

for summary judgment as to their duties of prudence must be denied. See Pfeil v. State St. Bank & 

Tr. Co., 806 F.3d 377, 385 (6th Cir. 2015).

FACTUAL BACKGROUND

I. THE COMMITTEE HIRES AON WITH VIRTUALLY NO DUE DILIGENCE 

On May 22, 2013, in the span of a single discussion lasting no more than an hour, the 

FirstGroup America Inc. Employee Benefits Committee (the “Committee”) voted to appoint their 

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investment advisor, Aon Hewitt Investment Consulting, Inc. (“Aon”), as a “delegated fiduciary” 

for the FirstGroup America, Inc. Retirement Savings Plan (“the Plan”), giving Aon nearly 

complete control over the investment of more than $250 million in employee retirement savings

held in the company’s 401(k) plan. Plaintiffs’ Statement of Proposed Disputed Issues of Material 

Fact (“PSOF”) ¶¶ 98, 99, 131.

PSOF ¶¶ 90, 92. Other than listening to Aon’s sales pitch, the Committee 

performed no independent due diligence to determine whether the information in Aon’s pitch was 

accurate, to evaluate Aon’s qualifications for the role, to compare the performance of Aon’s funds 

to the Plan’s existing investment lineup, to compare Aon’s fees to those of other providers, or to 

investigate other possible solutions for the Plan. PSOF ¶¶ 98-100.

At the time, the Plan’s existing investments were performing exceptionally well. This 

“legacy” fund lineup had been selected and monitored by the Committee using a set of well 

recognized fiduciary guidelines set forth in the Committee’s Investment Policy Statement (“IPS”).

PSOF 24-39, 46-47. These legacy funds included a suite of twelve target-date funds (“TDFs”) 

managed by T. Rowe Price that were among the best—if not the best—in class. Every one of the 

Plan’s legacy TDFs had beaten its benchmark over the prior 5- and 10-year periods, with several 

TDFs ranking in the top one percent among peers over the last 10 years. PSOF ¶ 47. All of the 

Plan’s TDFs and nearly every other fund in the legacy lineup were in the top half of their peer 

groups over the prior 5- and 10-year periods. PSOF ¶¶ 168-169. In fact, just minutes before Aon 

gave its pitch to scrap this lineup and replace it with a set of Aon-managed funds, both Aon and 

the Committee agreed that “it would be in the best interests of the participants and beneficiaries in 

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the 401(k) Plan to make no changes to the investments in the 401(k) Plan . . .” PSOF ¶ 49.

Aon’s funds could not boast a similarly impressive track record because, at the time, they 

did not exist. Nor could Aon claim to have a proven history of success managing 401(k) plan 

investments because, prior to that time, it never had. 

To be sure, in 2013 Aon did have some limited experience as a delegated fiduciary for 

defined benefit (“DB”) plans. For example, Aon had served as the delegated fiduciary for 

FirstGroup’s DB plan since sometime in 2009 or 2010, and several Committee members cited this 

experience as a basis for their decision to engage Aon. But Aon’s performance as delegated 

fiduciary on the DB side was hardly encouraging. 

 Nevertheless—despite the 

exceptional performance of the Plan’s legacy funds, 

—the Committee 

approved the transition to Aon and Aon’s funds without even bothering to consider any alternative 

course of action.

II. AON TARGETED THREE COMMITTEE MEMBERS BEHIND THE SCENES USING A BAITAND-SWITCH PLOY

Prior to its presentation to the Committee in May 2013, Aon targeted three Committee 

members behind the scenes. As a late-entrant to the delegated DC market, Aon had developed a 

strategy to “[c]ross-sell” its new delegated services to its existing consulting clients. PSOF ¶ 55.

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Aon immediately targeted First Group as part of this campaign. Following a Committee meeting 

in February 2013, Aon’s consultants to the Committee began discussing how to leverage the 

Committee’s concern about the Plan’s over-allocation to a stable value fund2as a way to pitch 

Aon’s delegated DC service. PSOF ¶ 66-67. The Aon consultants invited three committee 

members to a meeting to discuss “Stable Value Fund in 401(k) Plan,” PSOF ¶ 68, but then, in a 

classic bait-and-switch, instead used the meeting to pitch its new delegated fiduciary services. 

PSOF ¶¶ 72-73.

Varying combinations of Aon consultants and one or more of these three Committee 

members met one or two more times prior to the full Committee meeting on May 23, 2013—details 

in the record are vague and conflicting. PSOF ¶¶ 67-80, 87-88; see also Plaintiffs’ Response to the 

FGA Defendants’ Statement of Proposed Undisputed Facts ¶¶ 70-71, 73, 77-79. The purpose and 

outcome of these meetings is equally unclear: Aon believed it had already been hired before the 

full Committee meeting and one Committee member, Christian Gartner, agreed that this was “a 

foregone conclusion,” PSOF ¶¶ 83-84, 86; another, John Chilman, testified that no decision had 

been made to hire Aon and the only purpose was to determine whether to allow Aon to present its 

pitch to the full Committee, PSOF ¶ 85. In any event, these meetings were not disclosed to other 

members of the Committee. PSOF ¶ 89.

III. THE COMMITTEE LEAPT BEFORE IT LOOKED

Without any advanced warning to the Committee, Aon’s consultants delivered their sales 

pitch at the May 22, 2013, Committee meeting. PSOF ¶¶ 90-92. The pitch centered on an Aon 

slide deck that was not provided to the Committee prior to the meeting. PSOF ¶ 92. In its pitch, 

2 A stable value fund is a type of bond fund whose returns are guaranteed through an insurance arrangement, but 

which typically has lower returns than equity funds and other bond funds commonly found in retirement plan 

lineups. See Investopedia, Stable Value Fund Defined, available at https://www.investopedia.com/terms/s/stablevalue-fund.asp.

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Aon made clear that it intended to replace the whole Plan lineup with Aon proprietary funds (which 

did not yet exist), and the Committee understood that. PSOF ¶ 93. Incredibly, Aon told the 

Committee that Aon expected its TDFs to outperform the Plan’s existing TDFs by 50 basis points 

(i.e., 0.50%) every year, leading to tens of thousands of dollars of increased retirement savings for 

Plan participants. PSOF ¶ 94. Aon’s presentation provided no support for this assertion, which was 

all the more remarkable given that the Plan’s existing TDFs were among the highest performing 

in the marketplace. PSOF ¶ 95. Aon made similar suggestions elsewhere in its pitch, professing 

that it would “increase investment returns,” “help improve performance,” “Improve[] Outcomes,” 

and provide “Performance beyond the fiduciary standard.” PSOF ¶ 96. No one on the committee 

asked for the basis for these claims. PSOF ¶ 96. Upon Aon concluding its sales pitch, the 

Committee decided to delegate full investment management authority for all Plan assets to Aon. 

PSOF ¶ 98. 

IV. THE COMMITTEE RELIED ON ITS UNSUBSTANTIATED “BELIEF” THAT AON WAS 

QUALIFIED

At the time, the Committee did not know:

• whether Aon had an existing track record as a delegated fiduciary provider for defined 

contribution plans;

• whether FirstGroup would be Aon’s first delegated fiduciary client in the defined 

contribution marketplace;

• whether other service providers were capable of acting as the Plan’s investment 

manager;

• whether Aon’s fees were commensurate with any other service provider capable of 

acting as the Plan’s investment manager.

PSOF ¶ 100.

Moreover, it is undisputed that the Committee did not discuss:

• whether issuing a Request for Proposals (RFP) was warranted under the circumstances;

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• whether the circumstances warranted hiring an independent advisor to assist the 

Committee with its decision;

• whether Aon’s role as the Plan’s delegated fiduciary would present a potential conflict 

of interest that would interfere with its role as the Plan’s investment advisor; 

• whether, in light of the potential conflict, the Committee would benefit from 

terminating Aon’s role as a 3(21) advisor and hiring a new investment advisor to 

monitor Aon’s performance as a delegated fiduciary;

• whether Aon could be hired as a delegated fiduciary without using their own funds;

• whether the terms of the Investment Management Agreement were appropriate; or

• whether it was appropriate to agree that Aon could carry out its obligations under the 

IMA by selecting exclusively from its own funds.

PSOF ¶ 101.

The Committee also failed to consider whether Aon’s proprietary funds were appropriate 

investment options for the Plan. For example, members of the Committee did not know:

• that Aon’s proprietary TDF suite did not yet exist at the time the Committee selected 

Aon to be the Plan’s investment manager; 

• that Aon had not decided the glide path that would set the asset allocation for each 

vintage over time;

• whether the individuals responsible for making asset allocation decisions for the funds 

were “any good at allocation decisions,” or had significant experience with respect to 

building target date funds and glide paths;

• whether the funds would have sufficient assets under management to be able to achieve 

the desired asset allocation;

• whether the funds would have sufficient assets under management to attract the desired 

fund managers;

• whether the funds needed to reach a certain level of assets under management to 

achieve the projected fee savings;

• whether the projected savings could be achieved through other means; or

• that FirstGroup would be the first to invest in Aon’s funds.

PSOF ¶ 102.

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And the Committee did not consider:

• whether the Committee should wait to change the Plan’s lineup until the Aon funds had 

offering statements, prospectuses, or other description of the funds available for review; 

or

• whether the Committee should wait to change the Plan’s lineup until the Aon funds 

showed a positive performance history.

PSOF ¶ 103.

At a basic level, the Committee also failed to consider whether Aon’s lofty promises were 

too good to be true. A review of Aon’s sales materials reveals that Aon’s estimates of Plan 

expenses and projected savings were unreliable from the start. For example, Aon’s sales pitch 

relied on outdated line-up information, including investments and share classes that the Committee 

had already voted to eliminate from the Plan. PSOF ¶ 110. In addition, Aon’s estimates did not 

contemplate the effects of the Committee’s other decisions (such as re-enrollment) would have on 

the Plan expenses. PSOF ¶ 111. But the Committee did not question Aon’s estimates, and thus did 

not ask for Aon to update its projections, consider whether savings would be eliminated by the 

transition costs borne by participants, or inquire into how many participants would benefit from 

Aon’s projected savings. PSOF ¶ 112. 

 Accordingly, even before the Committee’s decision had taken full 

effect, it was clear that one of FirstGroup’s key considerations for the complete overhaul of the 

Plan’s lineup would not materialize.

Later in the transition period, FGA and Aon executed an Investment Management 

Agreement. Mr. Gartner signed on behalf of the Committee. Shortly thereafter, Mr. Gartner signed 

an amendment to the Investment Management Agreement that purportedly authorized Aon to carry 

out its obligations by selecting exclusively from among its own funds, alleviating Aon from any 

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obligation to consider non-proprietary options. PSOF ¶¶ 114-115. Members of the Committee 

testified that they did not know about the terms of the Investment Management Agreement or its 

amendment and did not discuss granting Aon the authority to consider only proprietary options for 

the Plan. PSOF ¶ 116. Moreover, Mr. Gartner testified that he did not read either the agreement or 

its amendment prior to signing them. PSOF ¶ 116.

V. THE COMMITTEE TRUSTED, BUT NEVER VERIFIED

The Committee’s failure to conduct a diligent investigation when deciding to hire Aon as 

its delegated fiduciary inhibited its ability to properly monitor Aon’s performance in its expanded 

role. As before, the Committee inappropriately relied on Aon’s self-assessments rather than 

conducting an independent evaluation of Aon’s performance. 

Because the Committee failed to independently monitor Aon’s performance as an 

investment manager, the Committee failed to uncover when Aon’s investment consultants 

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withheld or embellished the truth. For example:

When presented with Aon’s internal emails 

at his deposition, Mr. Chilman reflected, “I remember the discussions around adding things into 

the portfolios, but not a fundamental change in investment thesis . . . . [This] makes it sound a lot 

more severe than it felt when I was inside the committee.” PSOF ¶ 137.

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 Remarkably, less than one month later, Aon’s fiduciary consultants sang a different 

tune, advising the Committee of Aon’s conclusion that it would be in the “best interests” of the 

participants and beneficiaries “to make no changes to the investments” at that time. PSOF ¶ 143. 

And luckily for Aon, despite clear frustrations with the poor performance of the Plan’s 

funds, the Committee’s incredibly slow pace resulted in essentially that: no changes for another 

four years. For example, although the Committee “agreed to move forward with issuing RFPs for 

the FGA pension and 401(k) plans” on July 14, 2017, the Committee did not vote to engage a 

consultant to administer the RFP until September 5, 2019, over two years later. PSOF ¶ 152. 

Almost as soon as the consultant was hired, the process was postponed. PSOF ¶ 154.

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After spurts and false starts, the RFP process that the Committee initiated in July 2017 

finally resulted in the selection of a new delegated fiduciary on December 6, 2021. PSOF ¶ 156. 

ARGUMENT

“Summary judgment is appropriate when the record, viewed in the light most favorable to 

the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving 

party is entitled to a judgment as a matter of law.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 

(6th Cir. 2014) (citing Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists when “there 

is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making its assessments, a court may 

not make credibility determinations or weigh the evidence. Laster, 746 F.3d at 726.

Because the duty of prudence imposed by ERISA concerns a standard that is fact-specific, 

courts regularly conclude that summary judgment on the issue of liability is 

“[r]arely ... appropriate.” See, e.g., Terraza v. Safeway Inc., 2019 WL 12872958, at *3 (N.D. Cal. 

Apr. 16, 2019); see also Cates v. Columbia Univ., 2019 WL 8955333, at *13 (S.D.N.Y. Oct. 25, 

2019); Cryer v. Franklin Res., Inc., 2018 WL 6267856, at *9 (N.D. Cal. Nov. 16, 2018); Bd. of 

Trustees of S. California IBEW-NECA Defined Contribution Plan v. Bank of New York Mellon 

Corp., 2011 WL 6130831, at *3 (S.D.N.Y. Dec. 9, 2011).

Summary judgment is also inappropriate where expert testimony creates a genuine issue of 

fact on issues such as common industry practices and the standard of care. See, e.g., Seawell v. 

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Brown, 2010 WL 4683952, at *6–7 (S.D. Ohio Nov. 10, 2010); see also Dilts v. United Group 

Servs., LLC, 500 Fed. Appx. 440, 449 (6th Cir. 2012); Tracey v. Massachusetts Inst. of Tech., 404 

F. Supp. 3d 356, 363 (D. Mass. 2019) (“[O]pinions of the parties’ experts as to the proper industry 

protocol ... are in stark contrast. Both parties also present competing narratives surrounding the 

decision not to conduct an RFP. Because those disputes are more than superficial, the Court 

concludes that they are best resolved at trial.”).

I. THE COMMITTEE FAILED TO UTILIZE A PRUDENT PROCESS FOR SELECTING AON AS THE 

PLAN’S DELEGATED INVESTMENT MANAGER

The undisputed facts concerning what the Committee did and did not know, ask, or 

consider when they selected Aon to be the Plan’s delegated investment manager clearly establish 

that the Committee failed to make “a careful and perspicacious choice.” Gregg v. Transp. Workers 

of Am. Int’l, 343 F.3d 833, 843 (6th Cir. 2003). ERISA requires fiduciaries to act “with the care, 

skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting 

in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like 

character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). “The focus of the inquiry is how the 

fiduciary acted in his selection of the investment, and not whether the investment succeeded or 

failed.” Mohler v. Unger, 1994 WL 1860578, at *13 (S.D. Ohio Aug. 26, 1994); Forman v. 

TriHealth, Inc., 40 F.4th 443, 448 (6th Cir. 2022); Pfeil, 806 F.3d at 384–85. Thus, a court must 

focus “not only on the merits of the transaction, but also on the thoroughness of 

the investigation into the merits of the transaction.” Chao, 285 F.3d at 426 (quoting Howard v. 

Shay, 100 F.3d 1484, 1488 (9th Cir. 1996)).

The record here is replete with evidence demonstrating that the Committee did not “make 

an independent inquiry into the merits of [Aon’s candidacy].” Mohler, 1994 WL 1860578, at *13. 

Rather, they rushed through this decision in a single meeting without all members present and

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without any advanced notice that this issue would be discussed and put to a vote. In their haste, 

they did not obtain information about competitors in the DC delegated marketplace; question 

Aon’s experience as a delegated fiduciary for defined contribution plans or ask if Aon had other 

delegated fiduciary clients; probe into Aon’s experience and qualifications for designing and 

managing target date funds; or explore whether Aon would be willing to serve as a delegated 

fiduciary without changing the Plan’s existing lineup.3 Nor did they question the empty promises 

of proposed fee savings that Aon included in its pitch. And—inconsistent with FGA’s own 

fiduciary practices—the Committee did not consider issuing an RFP or hiring an independent 

advisor to guide the Committee through this monumental decision. Instead, they simply listened 

to Aon’s sales pitch and immediately voted to hire Aon with no further due diligence. On this 

record, there is no basis to conclude that the Committee “investigated its alternatives and made a 

considered decision” to hire Aon. Forman, 40 F.4th at 453 (quotation omitted); see also Cassell v. 

Vanderbilt Univ., 285 F. Supp. 3d 1056, 1064–65 (M.D. Tenn. 2018) (“Defendants’ failure to 

secure competitive bids under these circumstances was not consistent with that of a prudent man 

or woman acting in a like capacity. Whether it was actually imprudent involves questions of 

fact[.]”).

Without an objective basis to rely on, Defendants repeatedly seek to justify their conduct 

based on their good-faith “belief” that Aon was qualified and capable of fulfilling this new role, 

pointing to their “comfort” with their existing “trusted advisor.” See Memorandum in Support of 

the FGA Defendants’ Motion for Summary Judgment, ECF No. 108 (“Defs’ Memo”) at PAGEID

3 The Defendants’ persistent attempts to downplay the differences between advising Plan fiduciaries in a consulting 

role versus actively designing and managing investment funds only underscores how little the Committee understood 

about the role they hired Aon to perform. 

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4141, 4159, 4160, 4163, 4169, 4172 (repeating numerous items that the Committee “believed” but 

did not verify). But ERISA’s process-based prudence standard “is not a search for subjective good 

faith—a pure heart and an empty head are not enough.” Chao, 285 F.3d at 437 (quoting Donovan 

v. Cunningham, 716 F.2d 1455, 1467 (5th Cir. 1983)). “[M]erely having a ‘firmly held belief’ on 

the wisdom of a course of action or honestly employing one’s own ‘best thinking’ . . . is not 

sufficient, standing alone, to satisfy [one’s] fiduciary duty. If it was, then the standard for fiduciary 

duty would simply amount to establishing good faith. More is required.” See Reetz v. Lowe’s Cos. 

(Reetz II), 2021 WL 4771535, at *46 (W.D.N.C. Oct. 12, 2021); see also Moitoso v. FMR LLC,

451 F. Supp. 3d 189, 218 (D. Mass. 2020) (“The apparent belief on the part of the Plan Fiduciaries 

... does not provide a defense, because they failed closely to investigate the available 

documentation to confirm that this belief was true.”).

This case demonstrates why an untested and unsubstantiated belief is insufficient. 

Similarly, despite the Plan’s legacy T. Rowe 

Price target date funds performing at or near the top 1% of all peer TDFs, the Committee apparently 

accepted without question Aon’s representation that its new, untested, and as-of-then undeveloped 

proprietary TDF suite would deliver an additional 50 basis points per year over the legacy TDFs. 

PSOF ¶ 94-97. Even when dealing with an impartial advisor, ERISA fiduciaries have an obligation 

to independently evaluate the basis for the advice, as “no fiduciary may passively rely on 

information provided by a co-fiduciary.” Sacerdote v. N.Y. Univ., 328 F. Supp. 3d 273, 286 

(S.D.N.Y. 2018). All the more so here, where Aon labored under a conflict of interest that 

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incentivized it to offer self-interested advice. See Gregg, 343 F.3d at 841 (“One extremely 

important factor is whether the expert advisor truly offers independent and impartial advice.”).

The fiduciaries of other plans, when presented with Aon’s sales pitch, exhibited far more 

diligence, 

This evidence is corroborated by the opinion of Plaintiffs’ expert, Samuel Halpern,

4 Presented with similar facts, courts around the country have reached 

the same conclusion. See, e.g., Reetz II, 2021 WL 4771535, at *58 (failure to perform “any real 

due diligence or comparison of alternatives before selecting Aon to be the Plan’s delegated 

fiduciary investment manager”), appeal docketed on other grounds, No. 21-2267 (4th Cir. Nov. 

10, 2021); Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 358–60 (4th Cir. 2014) (reliance on 

“unconfirmed assumption[s]” and exhibiting a “lack of effort”); Liss v. Smith, 991 F. Supp. 278, 

300, 313 (S.D.N.Y. 1998) (failure “to investigate proposed investments” and “to solicit and 

consider competitive bids from other service providers” and explaining “[a]t the very least, trustees 

have an obligation to (i) determine the needs of a fund’s participants, (ii) review the services 

provided and fees charged by a number of different providers and (iii) select the provider whose 

service level, quality and fees best matches the fund’s needs and financial situation.”).

Defendants emphasize that three committee members discussed Aon’s nascent delegated 

fiduciary service for DC plans prior to the full Committee meeting on May 22, 2013. But the actual 

record is hardly compelling. Neither Mr. Young nor Mr. Gartner had any recollection of any of 

these discussions. PSOF ¶ 87. Mr. Chilman similarly recalled virtually nothing about the 

4 Of course, Defendants offer a contrary opinion from their expert. But these “competing expert opinions present the 

classic ‘battle of the experts’ and it is up to [the factfinder] to evaluate what weight and credibility each expert opinion 

deserves.” Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005) (quotation omitted).

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discussions, other than that he received a draft presentation from Aon and provided feedback on 

the presentation. PSOF ¶ 88. Other Committee members were not even told about these 

discussions. PSOF ¶ 89. This scant record falls far short of establishing as a matter of law that the 

Committee satisfied ERISA’s “high standards” by engaging in a “thorough[] ... investigation into 

the merits of” Aon’s proposal. Chao, 285 F.3d at 426 (quotation omitted).

Finally, Defendants urge this Court to consider each omission in isolation. But that is not 

the standard. Rather than asking whether the “failure to take any of these steps, standing alone, 

would constitute such imprudence as to violate a fiduciary’s duty,” Defendants’ conduct is 

considered under the totality of the circumstances. Davidson v. Cook, 567 F. Supp. 225, 237 (E.D. 

Va. 1983), aff’d sub nom. Accardi v. McGuire, Woods & Battle, 734 F.2d 10 (4th Cir. 1984). 

Considered in context, it becomes clear that “[Defendants’] omissions together do . . . constitute 

such neglectful practice that the Court cannot conclude a prudent investor in similar circumstances 

would have acted in the same manner.” Id.; accord, e.g., Cryer, 2018 WL 6267856, at *9 (“A trier 

of fact could reasonably view the discussion in the August 14, 2012 meeting insufficient to 

disprove a breach of Defendants’ fiduciary duties because the [Committee] failed to adequately 

weigh the costs and benefits of [its decision].”); Marshall v. Northrop Grumman Corp., 2019 WL 

4058583, at *10 (C.D. Cal. Aug. 14, 2019) (same); Sacerdote v. N.Y. Univ., 1:16-cv-06284, 

Dkt. 174 (S.D.N.Y. Feb. 22, 2018) (“It is clear that the remaining issues in this case implicate 

questions of fact. The questions of whether NYU’s actual processes and conduct were prudent 

cannot be resolved on motion given the state of the factual record (including contradictory expert 

views on the topic).”); Reetz v. Lowe’s Cos. (Reetz I), 2021 WL 535160, at *2 (W.D.N.C. Feb. 12, 

2021) (“Who has the better evidence? Where does the truth truly lay? These questions cannot and 

should not be determined on cross-motions for summary judgment.”); Sims v. BB&T Corp., 2018

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WL 3128996, at *7–8 (M.D.N.C. June 26, 2018) (noting that plaintiffs “rely on both internal ... 

documents and expert opinion testimony that the ... process used to select and evaluate funds was 

inconsistent with industry practices.... The plaintiffs have established disputed questions of 

material fact on whether the defendants breached their fiduciary duties of prudence[.]”).

II. THE COMMITTEE FAILED TO APPROPRIATELY MONITOR AON AND THE AON FUNDS

The Committee’s hasty decision to hire an inexperienced investment manager with brand 

new, untested funds created additional problems when those funds immediately and persistently 

underperformed. An ERISA fiduciary “has a continuing duty to monitor trust investments and 

remove imprudent ones. This continuing duty exists separate and apart from the trustee's duty to 

exercise prudence in selecting investments at the outset.” Tibble v. Edison Int'l, 575 U.S. 523, 529 

(2015). Here again, the record more than adequately shows that the Committee failed to recognize 

its error and take timely corrective action, unreasonably delaying replacement of Aon and the Aon 

funds until 2021.

The Committee’s monitoring process suffered from several flaws. First, because the 

Committee did not recognize that Aon’s dual role as the Plan’s advisor and delegated fiduciary 

created an obvious potential for conflict, the Committee relied on Aon’s investment advice without 

“mak[ing] certain that reliance on [Aon’s] advice [was] reasonably justified under the 

circumstances.” Gregg, 343 F.3d at 841; Chao, 285 F.3d at 430 (citing Howard, 100 F.3d at 1489). 

Particularly against the backdrop of the IMA amendment—which purportedly authorized Aon to 

fulfill its delegated fiduciary mandate exclusively with proprietary funds without considering nonproprietary alternatives—the Committee’s decision to passively rely on Aon for advice was 

especially suspect. Aon’s fiduciary advisors “[were] not an objective analyst any more than the 

same real estate broker can simultaneously protect the interests of both buyer and seller or the 

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same attorney can represent both husband and wife in a divorce.” See Gregg, 343 F.3d at 842. In 

contrast, at least one similarly situated fiduciary “took notice of the potential conflict posed by 

Aon’s dual positions as the Plan’s investment consulting fiduciary and investment manager,” and 

retained an independent consultant to advise on Aon’s performance. Reetz II, 2021 WL 4771535, 

at *37. 

Second, ERISA’s duty to investigate requires fiduciaries “to review the data a consultant 

gathers, to assess its significance and to supplement it where necessary.” Gregg, 343 F.3d at 843; 

Ramos v. Banner Health (Ramos II), 461 F. Supp. 3d 1067, 1124 (D. Colo. 2020), aff’d (Ramos 

III), 1 F.4th 769 (10th Cir. 2021). Here, Aon’s consultants did not volunteer metrics necessary to 

evaluate Aon’s performance as an investment manager, and the Committee did not ask for them. 

PSOF ¶ 133. Thus, the Committee could not perform its duty to monitor Aon independently and 

was entirely reliant on performance narratives that were filtered through Aon’s conflicted 

consultants for the majority of the class period. PSOF ¶ 133.

Third, the Committee failed to respond to key warning signs, and did not recognize that 

the TDFs were not performing according to their design, or that the overhauls that Aon made 

throughout the class period evinced a “fundamental change” in Aon’s investment thesis. PSOF 

¶ 137. If the Committee had been closely monitoring the extent of the design changes and their 

outcomes in real time, it would have uncovered that the funds’ chronic underperformance was a 

symptom of a larger problem: Aon itself.

Finally, the Committee was not timely with its corrective actions. The record reflects that 

Committee members were dissatisfied with the Aon funds almost immediately upon their 

introduction to the Plan and continued to be so throughout the class period. PSOF ¶ 148. For 

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example, one Committee member testified that she was “concerned” about the funds’ performance 

at approximately the one-year mark, not “on board” with the Aon funds by January 2016, was “so 

ready to be done with Aon” by July 2019, and agreed that the “funds suck” in August 2020. PSOF 

¶ 148. Yet despite these concerns, the Committee failed to act. As Mr. Halpern explains, 

Moreover, the Committee members’ own testimony evinces that their failure to take 

corrective action was not the result of a reasoned and considered decision to retain Aon, but due 

to a lack of attention. For example, when asked why the funds were retained for so long, 

Ms. MacAndrew explained, “there was a lot of activity going on with Greyhound being up for 

sale, and the Student and Transit being put on the market. So I would say a lot of those things were 

impacting, probably, the focus more so than it should have at the time.” PSOF ¶ 156. Similarly, 

Mr. Gartner testified that his role on the Committee was “a minor part of the job, which [he] 

obviously didn’t care enough about.” PSOF ¶ 156.

Defendants seek refuge in the frequency and regularity of Committee meetings. But 

“[w]hile the absence of a deliberative process may be enough to demonstrate imprudence, the 

presence of a deliberative process does not . . . suffice in every case[.]” Sacerdote v. N.Y. Univ., 9 

F.4th 95, 111 (2d Cir. 2021), cert. denied, 142 S. Ct. 1112 (2022). “In assessing whether a fiduciary 

fulfilled her duty of prudence, we ask whether a fiduciary employed the appropriate methods to 

investigate and determine the merits of a particular investment, not merely whether there were any 

methods whatsoever.” Id. (quotation omitted). Accordingly, genuine issues of material fact remain 

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concerning the adequacy (in substance and in speed) of the Committee’s process for reviewing the 

Plan’s investments and investment manager. See, e.g., Garthwait v. Eversource Energy Co., 2022 

WL 3019633, at *18 (D. Conn. July 29, 2022) (denying summary judgment, noting “[w]hether the 

defendants breached their duty of prudence depends on several contested issues of fact[.]”); Ramos 

v. Banner Health (Ramos I), 2019 WL 1777524, at *10 (D. Colo. Apr. 23, 2019) (“The parties 

offer differing views of what a prudent process would be for responding to and evaluating the 

Freedom Funds as of 2011. Such evidence is sufficient to create a genuine dispute of material fact 

that must be resolved at trial.”); Cates, 2019 WL 8955333, at *13 (S.D.N.Y. Oct. 25, 2019) 

(“[T]here are questions of fact as to whether a prudent fiduciary would have removed the 

investments, and when, based on the alleged underperformance.”), R. & R. adopted, 2020 WL 

1528124, at *5 (S.D.N.Y. Mar. 30, 2020) (“Plaintiffs have proffered ample evidence for a jury to 

find that a prudent fiduciary would have removed the investments at an earlier date.”); Terraza, 

2019 WL 12872958, at *5.

III. THE FGA DEFENDANTS’ BREACHES UNDOUBTEDLY RESULTED IN A LOSS TO THE PLAN

Plaintiffs have also satisfied their burden to “show a causal link between the failure to 

investigate and the harm suffered by the plan.” Kuper v. Iovenko, 66 F.3d 1447, 1460 (6th Cir. 

1995), abrogated on other grounds by Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014).

“Losses to a plan from breaches of the duty of prudence may be ascertained, with the help of expert 

analysis, by comparing the performance of the imprudent investments with the performance of a 

prudently invested portfolio.” Evans v. Akers, 534 F.3d 65, 74 (1st Cir. 2008). 

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Defendants contend that these loss calculations are not “consistent with [Plaintiffs’] theory 

of liability,” but that is plainly not so. At the very meeting during which the Committee hastily 

accepted Aon’s sales pitch, the Committee and its Aon consultants also reviewed the Plan’s Legacy 

Fund lineup and “determined that it would be in the best interests of the participants and 

beneficiaries in the 401(k) Plan to make no changes to the investments in the 401(k) Plan at this 

time.” PSOF ¶ 170. The Committee reached this same conclusion regarding the legacy lineup at 

its next meeting in August 2013, after it had voted to engage Aon but before the change to Aon’s 

funds has occurred. PSOF ¶ 170. Based on this evidence alone, a reasonable factfinder could 

conclude that, had Defendants not hastily and imprudently engaged Aon as a delegated fiduciary, 

the Plan’s legacy lineup—including the best-in-class T. Rowe Price TDFs—would have remained 

intact. And in any event, the record is replete with additional evidence supporting a finding that 

but-for the Committee’s rash and spontaneous decision to hire Aon as the Plan’s investment 

manager, the Committee would have retained its Legacy Funds. PSOF ¶¶ 47, 171.

Ample evidence in the record also supports the use of the State Street TDFs as comparators. 

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Courts have 

long recognized that passively managed index funds are “an appropriate comparator for loss 

calculation purposes.” Brotherston v. Putnam Invs., LLC, 907 F.3d 17, 31 (1st Cir. 2018). Thus, 

the passively managed State Street TDFs are a reasonable alternative comparator for what a 

prudently retained investment manager would have selected (or recommended as an advisor) for 

the Plan.

Defendants’ arguments to the contrary hinge on a misrepresentation of Mr. Halpern’s 

opinions. Mr. Halpern does not opine—as Defendants suggest—that the Committee “would have 

selected a different company as delegated investment fiduciary.” Defs’ Memo at 24. Mr. Halpern 

testified: 

Nothing about Mr. Halpern’s fundamental conclusion, that a prudent fiduciary 

 is inconsistent with Dr. Becker’s various 

damages models. 

Similarly, with regard to the Committee’s failure to prudently monitor Aon, 

It is therefore not inconsistent with Plaintiffs’ theory of breach to begin calculating damages 

as of that date. To the extent the Court determines that a different start date should apply, it is 

within the province of the Court to “fashion its own measure of loss resulting from the breach.” 

Ramos III, 1 F.4th at 778 (citing Donovan v. Bierwirth, 754 F.2d 1049, 1055 (2d Cir. 1985)). And 

“to the extent that there is any ambiguity in determining the amount of loss in an ERISA action, 

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the uncertainty should be resolved against the breaching fiduciary.” Sec'y of U.S. Dep't of Lab. v. 

Gilley, 290 F.3d 827, 830 (6th Cir. 2002). At most, Defendants arguments presented with genuine 

factual disputes that must be resolved at trial. See, e.g., Baird v. BlackRock Inst. Tr. Co., 2021 WL 

105619, at *3 (N.D. Cal. Jan. 12, 2021) (“Defendants’ loss causation arguments also involve 

weighing the credibility of the parties’ respective experts and their methodologies, a task which is 

inappropriate at the summary judgment stage.”) (citations omitted); Terraza, 2019 WL 1589979, 

at *1 (denying the Safeway Defendants’ motion for summary judgment on the issue of loss 

causation, explaining “[if Defendants’ conduct was imprudent], then the Court will determine 

whether there were comparable assets the [Committee] could have offered Plan participants that 

would have performed better. [Plaintiff] has identified such assets; whether they are fair 

comparators is an issue the Court will resolve at trial.”).

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court deny the FGA 

Defendants’ Motion for Summary Judgment as to Count I, concerning the breach of the duty of 

prudence.

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Dated: November 18, 2022 Respectfully submitted,

NICHOLS KASTER, PLLP

By: /s/ Brock J. Specht 

Paul J. Lukas, admitted pro hac vice

Brock J. Specht, admitted pro hac vice

Matthew H. Morgan, admitted pro hac vice

Anna P. Prakash, admitted pro hac vice

Steven J. Eiden, admitted pro hac vice

Patricia C. Dana, admitted pro hac vice

4700 IDS Center

80 S 8th Street

Minneapolis, MN 55402

Telephone: 612-256-3200

Facsimile: 612-338-4878

lukas@nka.com

bspecht@nka.com

morgan@nka.com

aprakash@nka.com

seiden@nka.com

pdana@nka.com

FREKING MYERS & REUL

George M. Reul, Jr. (OH 0069992)

600 Vine Street, Suite 900

Cincinnati, Ohio 45202

Telephone: 513-721-1975

Facsimile: (513) 651-2570

greul@fmr.law

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I, Brock J. Specht, hereby certify that I served this document on counsel of record via ECF 

on November 18, 2022.

/s/ Brock J. Specht 

Brock J. Specht

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