IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HEIDE K. BARTNETT,

Plaintiff,

v.

ABBOTT LABORATORIES, ABBOTT 

CORPORATE BENEFITS, ABBOTT 

LABORATORIES STOCK RETIREMENT 

PLAN, MARLON SULLIVAN and 

ALIGHT SOLUTIONS, LLC,

Defendants.

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Case No. 20 CV 2127

Hon. Thomas M. Durkin

ABBOTT DEFENDANTS’ MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS AND STRIKE

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TABLE OF CONTENTS

Page

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

BACKGROUND ............................................................................................................................ 1

LEGAL STANDARD..................................................................................................................... 3

ARGUMENT.................................................................................................................................. 4

I. BARTNETT FAILS TO STATE A SECTION 502(A)(2) CLAIM AGAINST THE 

ABBOTT DEFENDANTS. ................................................................................................ 4

A. Bartnett Does Not State a Fiduciary Claim Against Abbott Laboratories or 

Marlon Sullivan. ..................................................................................................... 5

1. No Allegations Linking Abbott’s Role to Acts............................................. 5

2. No Allegations Regarding Breach by any Abbott Defendant. .................... 7

3. No Causal Link Between Fiduciary Duties and Plaintiff’s Loss. ............. 10

B. Abbott Laboratories Stock Retirement Plan Cannot Be a Fiduciary of Itself....... 11

C. “Abbott Corporate Benefits” Does Not Exist as a Legal Entity. .......................... 12

II. BARTNETT FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES. .......... 13

III. PLAINTIFF’S JURY DEMAND MUST BE STRICKEN............................................... 15

CONCLUSION............................................................................................................................. 15

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TABLE OF AUTHORITIES

Page

CASES

Allen v. GreatBanc Tr. Co.,

835 F.3d 670 (7th Cir. 2016) ...................................................................................................... 8

Ashcroft v. Iqbal, 

556 U.S. 662 (2009).................................................................................................................... 4

Bank of Am., N.A. v. Knight, 

725 F.3d 815 (7th Cir. 2013) .................................................................................................. 3, 8

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2017).............................................................................................................. 4, 10

Brandt v. Grounds, 

687 F.2d 895 (7th Cir. 1982) .............................................................................................. 10, 11

Brosted v. Unum Life Ins. Co. of Am., 

421 F.3d 459 (7th Cir. 2005) ...................................................................................................... 4

Bunch v. W.R. Grace & Co., 

555 F.3d 1 (1st Cir. 2009)........................................................................................................... 9

Carter v. Signode Indus., Inc., 

688 F. Supp. 1283 (N.D. Ill. 1988)........................................................................................... 14

Chicago Dist. Council of Carpenters Welfare Fund v. Caremark, Inc.,

474 F.3d 463 (7th Cir. 2007) .................................................................................................. 5, 7

Denius v. Dunlap, 

330 F.3d 919 (7th Cir. 2003) .................................................................................................... 12

Donovan v. Cunningham, 

716 F.2d 1455 (5th Cir. 1983) .................................................................................................... 9

Edwards v. Briggs & Stratton Ret. Plan, 

639 F.3d 355 (7th Cir. 2011) .............................................................................................. 13, 14

Foltz v. U.S. News & World Report, Inc., 

613 F. Supp. 634 (D.D.C. 1985)......................................................................................... 11, 12

Frahm v. Equitable Life Assurance Society of U.S., 

137 F.3d 955 (7th Cir. 1998) ...................................................................................................... 8

George v. Kraft Foods Glob., Inc., 

No. 07-CIV-1713, 2008 WL 780629 (N.D. Ill. Mar. 20, 2008)............................................... 15

Hakim v. Accenture United States Pension Plan, 

656 F. Supp. 2d 801 (N.D. Ill. 2009)........................................................................................ 12

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Hecker v. Deere & Co., 

556 F.3d 575 (7th Cir. 2009) .................................................................................................... 12

Howell v. Motorola, Inc.,

633 F.3d 552 (7th Cir. 2011) .............................................................................................. 10, 12

In re Calpine Corp. ERISA Litig., 

No. 03-cv-1685, 2005 WL 1431506 (N.D. Cal. Mar. 31, 2005) ................................................ 9

In re Unisys Sav. Plan Litig., 

74 F.3d 420 (3d Cir. 1996) ......................................................................................................... 9

In re Xcel Energy, Inc., Securities, Derivatives, & “ERISA” Litig., 

312 F. Supp. 2d 1165 (D. Minn. 2004)....................................................................................... 9

Kamler v. H/N Telecomm. Serv., Inc., 

305 F.3d 672 (7th Cir. 2002) ...................................................................................................... 4

Kross v. W. Elec. Co., 

701 F.2d 1238 (7th Cir. 1983) .................................................................................................. 13

Lindemann v. Mobil Oil Corp., 

79 F.3d 647 (7th Cir. 1996) ...................................................................................................... 14

McDougall v. Pioneer Ranch Ltd. P’ship, 

494 F.3d 571 (7th Cir. 2007) .................................................................................................... 15

Mugnai v. Kirk Corp., 

843 F. Supp. 2d 858 (N.D. Ill. 2012).......................................................................................... 6

Neil v. Zell, 

677 F. Supp. 2d 1010 (N.D. Ill. 2009).............................................................................. 5, 9, 10

Pegram v. Herdrich,

530 U.S. 211 (2000)................................................................................................................ 4, 5

Powell v. AT&T Commc’ns., Inc.,

938 F.2d 823 (7th Cir. 1991) .................................................................................................... 13

Richardson v. Astellas U.S. LLC Emp. Ben. Plan & Life Ins. Co. of N. Am., 

610 F. Supp. 2d 947 (N.D. Ill. 2009)........................................................................................ 15

Robyns v. Reliance Standard Life Ins. Co., 

130 F.3d 1231 (7th Cir. 1997) .................................................................................................. 14

Sharp Elecs. Corp. v. Metro. Life Ins. Co.,

578 F.3d 505 (7th Cir. 2009) ...................................................................................................... 4

Smith v. Blue Cross & Blue Shield United of Wis., 

959 F.2d 655 (7th Cir. 1992)..................................................................................................... 14

Specht v. Google, Inc., 

660 F. Supp. 2d 858 (N.D. Ill. 2009)........................................................................................ 12

Standard v. Nygren, 

658 F.3d 792 (7th Cir. 2011) ...................................................................................................... 3

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Stark v. PPM Am., Inc., 

354 F.3d 666 (7th Cir. 2004) .................................................................................................... 14

Steinman v. Hicks, 

252 F. Supp. 2d 746 (C.D. Ill. 2003), aff’d, 352 F.3d 1101 (7th Cir. 2003)............................. 11

Vallone v. CNA Fin. Corp., 

375 F.3d 623 (7th Cir. 2004) ...................................................................................................... 8

Wheeler v. Pension Value Plan for Emps. of Boeing Co., 

No. 06-cv-500-DRH, 2007 WL 2608875 (S.D. Ill. Sept. 6, 2007)............................................. 6

White v. Chevron Corp., 

No. 16-cv-0793-PJH, 2016 WL 4502808 (N.D. Cal. Aug. 29, 2016)........................................ 9

White v. Marshall & Ilsley Corp.,

No. 10-CV-311, 2011 WL 2471736 (E.D. Wis. June 21, 2011),

aff'd, 714 F.3d 980 (7th Cir. 2013) ........................................................................................... 12

Womack v. Orchids Paper Prods. Co. 401(K) Sav. Plan, 

769 F. Supp. 2d 1322 (N.D. Okla. 2011).................................................................................. 11

STATUTES

29 C.F.R. § 2509.75-8............................................................................................................... 7, 10

29 U.S.C. § 1001............................................................................................................................. 1

29 U.S.C. § 1002(21)...................................................................................................................... 5

29 U.S.C. § 1104(a) ........................................................................................................................ 8

29 U.S.C. § 1109(a) ........................................................................................................................ 4

29 U.S.C. § 1132(a) .................................................................................................................. 4, 11

RULES

Federal Rule of Civil Procedure 12(b)(6)............................................................................. 1, 3, 12

Federal Rule of Civil Procedure 8 .................................................................................................. 3

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Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants Abbott 

Laboratories, Abbott Corporate Benefits, Abbott Laboratories Stock Retirement Plan, and Marlon 

Sullivan (collectively the “Abbott Defendants”), by and through their attorneys, move this Court 

to dismiss the claims against them and to strike the jury demand from the Complaint.

INTRODUCTION 

Plaintiff Heide Bartnett (“Bartnett”) was the victim of an identity thief who hacked her 

personal e-mail account and used her private information—none of which the thief obtained from 

the defendants—to steal $245,000 from her retirement account. In response, Bartnett filed this 

suit against the Abbott Defendants for breach of fiduciary duty, wrongly claiming that they 

“allow[ed] the theft to be consummated.” (Compl. ¶ 1, p. 15.) Bartnett’s frustration over the theft 

is understandable, but it is also misdirected. The Abbott Defendants neither hacked her emails nor 

stole her funds, and Bartnett does not allege any facts that would support a breach of fiduciary 

duty claim against the Abbott Defendants. Her claims should therefore be dismissed.

BACKGROUND

Bartnett is a former employee of Defendant Abbott Laboratories (“Abbott”) who retired in 

2012. (Compl. ¶ 13.) As an employee, she participated in the Defendant Abbott Laboratories

Stock Retirement Plan (the “Plan”), which is a defined contribution plan regulated by the 

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., established by 

Abbott for the benefit of its employees. (Id. ¶¶ 14, 19.) When she retired, Bartnett left the funds 

in her Plan account and continued to receive account statements and notifications via U.S. Mail. 

(Id. ¶¶ 14, 20.) 

Defendant Alight Solutions, LLC (“Alight”) provides services to the Plan. (Id. ¶ 7.) 

Among other things, it operates the abbottbenefits.com website that allows participants to manage 

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their accounts online. (Id.) Alight also staffs and manages the Abbott Benefits Center1 which

allows participants to access their accounts over the phone. (Id.) 

The wrongdoer in this case is an identity thief who obtained Bartnett’s social security 

number, date of birth, and access to her e-mail account—that is, all identifiers typically used to 

secure accounts—from sources other than the defendants. On December 29, 2018, according to 

the Complaint, the identity thief accessed Bartnett’s account in the Plan online through the 

abbottbenefits.com website and chose the “forgot password” option. (Id. ¶ 26.) The identity thief 

already had Bartnett’s social security number and date of birth, which the thief entered when 

challenged by the website. (Id. ¶ 27.) A one-time security code was sent to Bartnett’s personal 

e-mail account – the account Bartnett herself had selected as her preferred means of 

communication (id. ¶ 17), and which already had been hacked by the identity thief. The identity 

thief obtained the security code from Bartnett’s e-mail account and entered it to access Bartnett’s 

retirement account online. (Id. ¶ 28.) The identity thief then changed the password to Bartnett’s 

retirement account and added direct deposit information for a new SunTrust Bank account. (Id. ¶ 

29.) 

A notification of the direct deposit addition was mailed to Bartnett on January 1, 2019. (Id. 

¶ 34.) The Complaint is silent about when Bartnett received this written notification. She does 

acknowledge, however, that her husband logged into her account on January 4, 2019 (id. ¶ 35), 

after the SunTrust Bank account had been added, but before any funds had been transferred.

On January 8, 2019, the identity thief (or someone working with them) called the Abbott 

Benefits Center pretending to be Bartnett. (Id. ¶ 37.) A one-time security code was sent to 

1 Throughout her Complaint, Bartnett refers to the Abbott Benefits Center as “Abbott Benefits 

Service Center,” “Abbott Benefits Support Center” or “Abbott Corporate Benefits.” For accuracy, 

it is referred to as “Abbott Benefits Center” throughout this Motion.

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Bartnett’s e-mail account to verify identity, and the identity thief again entered the code 

successfully. (Id. ¶ 38.) As a security measure, funds cannot be transferred to a new bank account 

for seven days after it has been added to a participant’s account. (Id. ¶ 32.) Because over nine 

days had passed since the SunTrust Bank account had been added, the identity thief was able to 

have a customer service representative authorize a transfer of $245,000 from the retirement 

account to the SunTrust account. (Id. ¶¶ 32, 40.) A notification of the transfer was sent to Bartnett 

by first class mail on January 9, 2019. (Id. ¶ 41.)

Bartnett alleges she received notification of this transfer on January 14, 2019 (id.), the same 

day the funds were transferred (id. ¶ 42). She called the Abbott Benefits Center the next day to 

report that money was missing from her retirement account, whereupon her account was 

immediately frozen and she was told to contact the police. (Id. ¶¶ 44-45.) Defendants then 

immediately assisted Bartnett in recovering $48,991 in taxes withheld from the withdrawal and 

$59,494.02 from SunTrust Bank, for a total of $108,485.02, all of which was deposited back in 

her retirement account, reducing Bartnett’s loss from the theft to approximately $137,000. (Id. ¶¶ 

55-56.) Although Bartnett’s attorney engaged in subsequent discussions with Abbott, Bartnett 

ultimately filed this lawsuit without exhausting, or even initiating, the formal administrative 

review process under the Plan. (Id. ¶¶ 65-67).

LEGAL STANDARD

To survive this Rule 12(b)(6) Motion to Dismiss for failure to state a claim, Bartnett must 

satisfy the pleading requirements of Federal Rule of Civil Procedure 8. The primary purpose of 

Rule 8 “is to give defendants fair notice of the claims against them and the grounds supporting the 

claims,” Standard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011), which entitles “[e]ach defendant 

... to know what he or she did that is asserted to be wrongful.” Bank of Am., N.A. v. Knight, 725 

F.3d 815, 818 (7th Cir. 2013). “[L]abels and conclusions, and a formulaic recitation of the 

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elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2017). 

Instead, the Complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief’” against each defendant that “‘is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Twombly, 550 U.S. at 570). 

ARGUMENT

I. BARTNETT FAILS TO STATE A SECTION 502(A)(2) CLAIM AGAINST THE 

ABBOTT DEFENDANTS. 

In Count I of her Complaint, Bartnett asserts breach of fiduciary duty claims against the 

Abbott Defendants under Section 502(a)(2) ERISA2, which allows a plan “participant” to bring an 

action “for appropriate relief” under ERISA § 409. 29 U.S.C. § 1132(a)(2). Section 409 provides 

that a “person who is a fiduciary with respect to a plan” who breaches “the responsibilities, 

obligations, or duties imposed upon fiduciaries by this subchapter” shall be liable “to make good 

to such plan any losses to the plan” resulting from the breach. 29 U.S.C. § 1109(a). Thus, to state 

a Section 502(a)(2) claim, Bartnett must allege plausible facts that each Abbott Defendant acted 

as a fiduciary of the plan, breached its fiduciary duty, and caused a loss to the plan by the breach. 

Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 512 (7th Cir. 2009) (citing Pegram v.

Herdrich, 530 U.S. 211, 223–26 (2000)); Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 465 

(7th Cir. 2005) (citing Kamler v. H/N Telecomm. Serv., Inc., 305 F.3d 672, 681 (7th Cir. 2002)). 

The Complaint fails to state such a claim against any Abbott Defendant.

2 Plaintiff also asserts in Count I a Section 502(a)(2) claim against Alight, and, in Count II, a claim 

for breach of the Illinois Consumer Fraud and Deceptive Trade Practices Act against Alight. 

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A. Bartnett Does Not State a Fiduciary Claim Against Abbott Laboratories or 

Marlon Sullivan. 

Abbott is the Plan Sponsor and Marlon Sullivan (“Sullivan”) presently is the Plan 

Administrator and named fiduciary of the Plan. See Compl. ¶¶ 3, 6. But their fiduciary status for 

certain purposes does not make them liable for every wrong alleged by a plan participant. 

Bartnett’s Section 502(a)(2) claims against Abbott and Sullivan should be dismissed because she 

fails to allege facts establishing the necessary elements of those claims. 

1. No Allegations Linking Abbott’s Role to Acts. 

Bartnett must allege more than Abbott’s title in the Plan. Unless specifically named as a 

fiduciary in a plan, a person is a fiduciary under ERISA only “to the extent (i) he exercises any 

discretionary authority or discretionary control respecting management of such plan or exercises 

any authority or control respecting management or disposition of its assets ... or (iii) he has any 

discretionary authority or discretionary responsibility in the administration of such plan.” 29 

U.S.C. § 1002(21)(A) (emphasis added); see Neil v. Zell, 677 F. Supp. 2d 1010, 1018 (N.D. Ill. 

2009) (“To be an ERISA fiduciary, a party must be named as a fiduciary in the plan or meet 

ERISA’s functional definition...”). Bartnett does not allege that Abbott is a named fiduciary, but 

rather that Abbott is a functional fiduciary under 29 U.S.C. § 1002(21)(A). (Compl. ¶ 3.) Thus, 

Bartnett must allege facts that Abbott was “a fiduciary as that term is defined in the statute and

that it was acting in its capacity as a fiduciary at the time it took the actions that are the subject of 

the complaint.” Chicago Dist. Council of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 

463, 471-72 (7th Cir. 2007) (emphasis added) (citing Pegram v. Herdrich, 530 U.S. 211, 223-226

(2000) (“In every case charging breach of ERISA fiduciary duty, then, the threshold question is

... whether that person was acting as a fiduciary ... when taking the action subject to the 

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complaint.”)). Bartnett must allege facts linking Abbott’s role to the acts that resulted in the loss 

alleged in the Complaint. She has not done so.

The Complaint simply parrots the statutory definition of a fiduciary by stating Abbott 

“exercises authority or control respecting management or disposition of the Stock Retirement 

Plan’s assets, it exercises discretionary authority or discretionary control respecting management 

of the Plan, and/or it has discretionary authority or discretionary responsibility in the 

administration of the Plan.” (Compl. ¶ 3.) Critically, the factual allegations in the Complaint do 

not involve any of these responsibilities, and reciting the statutory definition of a fiduciary has 

never been sufficient to state a Section 502(a)(2) claim. See, e.g., Mugnai v. Kirk Corp., 843 F.

Supp. 2d 858, 871-872 (N.D. Ill. 2012) (dismissing conclusory fiduciary allegations that “failed to 

allege sufficient facts linking the [defendants’] fiduciary obligations” to the challenged acts);

Wheeler v. Pension Value Plan for Emps. of Boeing Co., No. 06-cv-500-DRH, 2007 WL 2608875, 

at *2 (S.D. Ill. Sept. 6, 2007) (“A complaint that merely recites the language of the [ERISA] statute

. . . does not satisfy even the lenient federal notice pleading standard.”).

All of Bartnett’s factual allegations concern Alight. She alleges it is Alight, not Abbott, 

which “operated the [Abbott Benefits Center] telephone customer service center and website at 

abbottbenefits.com” and “direct[ed]” the “unauthorized distributions” from her account. (Compl. 

¶ 7.) She identifies two acts, both by Alight, which supposedly “allow[ed] the theft to be 

consummated”: (1) an Alight customer service representative “failed to enforce a security question 

routine” during a December 31 call with the identity thief and disclosed Bartnett’s mailing address 

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(Compl. ¶¶ 1, 30, 32); and (2) Alight mailed notices of the identity thief’s direct deposit account 

addition and account transfer to Bartnett, rather than emailing the notices (id. ¶¶ 34, 41).3 

The only factual allegations in the Complaint concerning Abbott relate to discussions 

between Bartnett’s prior attorney and an Abbott in-house attorney months after the distributions 

and any purported fiduciary breaches occurred. (See Compl. ¶¶ 54, 58-60, 62-63.) Bartnett admits 

that the in-house attorney was not a decision-maker (see id. ¶ 63), she is not a named fiduciary or 

plan administrator, and there is no allegation that she was acting as a functional fiduciary of the 

Plan. See 29 C.F.R. § 2509.75-8, at D-2 (“[m]aking recommendations to others for decisions with 

respect to plan administration” for a plan is a ministerial function and not a fiduciary one). An inhouse attorney’s “arms-length negotiations” cannot be construed to be the acts of a fiduciary. See 

Chicago Dist. Council of Carpenters Welfare Fund, 474 F.3d at 477 (holding that defendant was 

not a fiduciary when engaged in “arms-length negotiations” with plaintiff). Because Bartnett 

identifies no fiduciary acts by Abbott, her fiduciary duty against Abbott necessarily fails. 

2. No Allegations Regarding Breach by any Abbott Defendant.

Bartnett likewise does not allege facts supporting a breach of fiduciary duty by either 

Abbott or Sullivan. She alleges that all of the “Defendants breached their fiduciary duties of 

loyalty and prudence” by “causing, allowing, or processing unauthorized distributions of Ms. 

Bartnett’s Plan account assets; failing to confirm authorizations for distributions with Ms. Bartnett 

before making distributions; failing to provide timely notice of distributions to Ms. Bartnett by 

telephone or email; failing to identify and halt suspicious distribution requests [...]; failing to 

3 Bartnett also alleges that “Defendants knew or should have known of the possibility of 

individuals attempting to make unauthorized withdrawals from retirement plans it oversaw or 

managed, due to prior similar incidents.” (Compl. ¶ 52.) This allegation appears to be directed at 

Alight, which provides services to other plans. Bartnett does not articulate how the Abbott 

Defendants would have known of incidents with other plans.

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establish distribution processes to safeguard the Plan’s assets against unauthorized withdrawals; 

failing to monitor other fiduciaries’ distribution processes, protocols and activities; and related acts 

and omissions.” (Compl. ¶ 72.) Bartnett does not differentiate among the Defendants, or identify 

which Defendant is alleged to have breached what fiduciary duty by committing any action, which 

by itself merits dismissing her claims. See, e.g., Bank of Am., 725 F.3d at 818 (“A complaint based 

on a theory of collective responsibility must be dismissed.”). 

Insofar as these allegations are made against Abbott and Sullivan, Bartnett fails to state a 

claim against them for breach of the duties of loyalty or prudence, or the duty to monitor. To state 

a claim for breach of the duty of loyalty, Bartnett must allege facts demonstrating that a defendant 

acted for some reason other than “the exclusive purpose” of providing benefits to participants. 

Allen v. GreatBanc Tr. Co., 835 F.3d 670, 678 (7th Cir. 2016) (quoting 29 U.S.C. § 1104(a)(1)(A)). 

The duty of loyalty requires a fiduciary to act in the interest of participants rather than in its own 

self-interest, see Frahm v. Equitable Life Assurance Society of U.S., 137 F.3d 955, 959 (7th Cir. 

1998), and also includes an obligation not to “mislead plan participants or misrepresent the terms 

or administration of a plan.” Vallone v. CNA Fin. Corp., 375 F.3d 623, 640 (7th Cir. 2004)

(quotation omitted). Bartnett does not allege that Abbott or Sullivan engaged in any self-dealing 

or misled her in any way. She therefore fails to state a loyalty claim against them.

To state a claim for breach of the duty of prudence, Bartnett must allege facts demonstrating 

that a defendant failed to act “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.” Allen, 835 F.3d 

at 678 (quoting 29 U.S.C. § 1104(a)(1)(B)). The standard for determining prudence does not 

analyze results; rather, it examines whether the fiduciary’s process and method in arriving at the 

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challenged decision was imprudent. In re Unisys Sav. Plan Litig., 74 F.3d 420, 434 (3d Cir. 1996); 

Bunch v. W.R. Grace & Co., 555 F.3d 1, 7–8 (1st Cir. 2009) (“[T]he test of prudence – the Prudent 

Man Rule – is one of conduct, not a test of performance. . . .”) (quoting Donovan v. Cunningham, 

716 F.2d 1455, 1467 (5th Cir. 1983)).

Again, the Complaint is devoid of allegations regarding the processes or methods of Abbott 

and Sullivan, which are necessary elements to state a prudence claim against them. The only 

factual allegations are against Alight.

4 Because Bartnett does not allege that any part of the process 

for selecting and retaining Alight was deficient, she fails to state a prudence claim against Abbott 

or Sullivan.

To state a claim for breach of the duty to monitor, Bartnett must allege facts demonstrating 

a defendant failed in its monitoring process. See Neil, 677 F. Supp. 2d at 1023–24 (dismissing 

monitoring claim that alleged “only in the most general terms that the [fiduciaries] breached their 

duty to monitor”); White v. Chevron Corp., Case No. 16-cv-0793-PJH, 2016 WL 4502808, at *16 

(N.D. Cal. Aug. 29, 2016) (dismissing monitoring claim where “plaintiffs allege[d] no facts 

showing how the monitoring process was deficient”). The duty of an ERISA fiduciary to monitor 

the performance of its appointees is “relatively narrow,” In re Xcel Energy, Inc., Securities, 

Derivatives, & “ERISA” Litig., 312 F. Supp. 2d 1165, 1176 (D. Minn. 2004),

5

and requires the 

fiduciary to have a procedure in place to review the performance of appointees at “reasonable 

intervals . . . in such manner as may be reasonably expected to ensure that their performance has 

been in compliance with the terms of the plan and statutory standards, and satisfies the needs of 

4

See supra at 6. 

5

See also In re Calpine Corp. ERISA Litig., No. 03-cv-1685, 2005 WL 1431506, at *6 (N.D. Cal. 

Mar. 31, 2005) (duty to monitor is “a limited one”).

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the plan.” Howell v. Motorola, Inc., 633 F.3d 552, 573 (7th Cir. 2011) (quoting 29 C.F.R. 

§ 2509.75-8 at FR-17). 

Bartnett does not allege any facts demonstrating a defect in the monitoring process of 

Abbott or Sullivan. She simply alleges that the “Defendants” failed “to monitor other fiduciaries’ 

distribution processes, protocols and activities,” but she does not allege how Abbott and Sullivan

failed to do so, nor does she explain how appropriate monitoring by them might have stopped the

distributions from her account. Like the claim in Neil, Bartnett’s allegations that Abbott and 

Sullivan “breached [their] duty to monitor is no more than conceivable” and “fails Twombly’s 

plausibility requirement.” 677 F. Supp. 2d at 1024.

3. No Causal Link Between Fiduciary Duties and Plaintiff’s Loss.

Finally, Bartnett fails to allege a causal link between Abbott’s and Sullivan’s fiduciary 

obligations and the theft of her retirement funds. See Brandt v. Grounds, 687 F.2d 895, 898 (7th 

Cir. 1982) (“A causal connection is required between the breach of fiduciary duty and the losses 

incurred.”). While Bartnett alleges that Alight wrongly disclosed her mailing address to the 

identity thief, and mailed notices rather than emailing them to Bartnett, these actions are not 

fiduciary, see 29 C.F.R. § 2509.75-8 D-2 (preparing employee communications and processing 

claims are ministerial functions that are not fiduciary) and in any event were not committed by 

Abbott or Sullivan. 

Moreover, there is no causal connection between these actions and the loss of Bartnett’s 

funds. Bartnett’s mailing address is publicly available online through a simple Google search. 

Bartnett does not allege the identity thief needed that address to direct the unauthorized 

distribution, or that it was unavailable from the emails to which the identity thief already had 

access. Furthermore, Bartnett’s assertions – that if she had received e-mail notifications of the 

direct deposit address addition and the transfer of funds she would have been able to halt the 

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transfer – are purely speculative and contradicted by her own allegations. The Complaint indicates 

that the identity thief had access to Bartnett’s e-mail account for many weeks, so if notices had 

been emailed rather than mailed, the identity thief would have been able to intercept them.6 In any 

event, it was Alight’s representatives, not Abbott or Sullivan, who conversed with the identity thief 

and mailed the notices. Because Bartnett has failed to plausibly allege that Abbott and Sullivan 

breached a duty to her that caused the theft of her retirement funds, her claims against them should 

be dismissed. See Brandt, 687 F.2d at 898-99 (affirming dismissal of complaint that failed to 

allege causal connection between breach and loss). 

B. Abbott Laboratories Stock Retirement Plan Cannot Be a Fiduciary of Itself. 

Bartnett also names the Plan as a defendant. (Compl. ¶ 5.) The Plan cannot be a fiduciary 

of itself. See Steinman v. Hicks, 252 F. Supp. 2d 746, 756-57 (C.D. Ill. 2003) (profit sharing plan 

“cannot be named as a defendant” in § 1132(a)(2) suit), aff’d, 352 F.3d 1101 (7th Cir. 2003); see 

also Womack v. Orchids Paper Prods. Co. 401(K) Sav. Plan, 769 F. Supp. 2d 1322, 1328 (N.D. 

Okla. 2011) (“The Plan itself cannot be held liable for breach of fiduciary duties pursuant to 

§ 1132(a)(2) because the Plan cannot be a fiduciary of itself.”); Foltz v. U.S. News & World Report, 

Inc., 613 F. Supp. 634, 641 n.7 (D.D.C. 1985) (“Only the non-Plan defendants are eligible for 

fiduciary roles. The Plan, of course, cannot be a fiduciary of itself.”). 

Bartnett alleges the Plan “may be sued as an entity pursuant to 29 U.S.C. § 1132(d)” 

(Compl. ¶ 5), but that does not make it a fiduciary. A plan may be sued in an action “to recover 

benefits due” to a participant under ERISA § 502(a)(1)(B), but it cannot be sued as a fiduciary in 

an action to recover “losses to the plan” under ERISA § 502(a)(2). See Womack, 769 F. Supp. 2d 

6 Bartnett states she does not have a record of the one-time security codes emailed by Alight (see 

Compl. ¶¶ 28, 38), meaning the identity thief likely deleted them.

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at 1328; Foltz, 613 F. Supp. at 641. Because the Plan is not a fiduciary, it should be dismissed as 

a matter of law. See Howell, 633 F.3d at 562 (“If a particular defendant is not a fiduciary, then 

nothing more need be said.”); Womack, 769 F.Supp.2d at 1328 (because the plan “does not hold 

fiduciary status” it was “entitled to judgment as a matter of law”). 

C. “Abbott Corporate Benefits” Does Not Exist as a Legal Entity.

Bartnett additionally names “Abbott Corporate Benefits” as a defendant, but no such legal 

entity exists. Bartnett’s allegation that Abbott Corporate Benefits “is the Plan Sponsor” (Compl. 

¶ 4) appears to be based on a misreading of the Plan’s 2018 Annual Return/Report of Employee 

Benefit Plan Form 5500, attached as Exhibit 1.7 Form 5500 identifies Abbott Laboratories as the 

Plan Sponsor and its mailing address as: “Corporate Benefits, D-589, AP6B-2, 100 Abbott Park 

Road Abbott Park Illinois 60064-6222.” See Ex. 1, Part 2 § 2a. The Summary Plan Document 

(“SPD”) confirms that Abbott Laboratories is the Plan Sponsor.8 “Abbott Corporate Benefits” is 

the mailing address for the Plan Sponsor, not a legal entity, and should be dismissed. See Specht 

v. Google, Inc., 660 F. Supp. 2d 858, 863 (N.D. Ill. 2009) (dismissing non-existent defendant). 

7 Abbott Laboratories 2018 Annual Return/Report of Employee Benefit Plan Form 5500 is publicly 

available on the Department of Labor’s website. See https://www.efast.dol.gov/welcome.html

(Select “Search” and enter “Abbott Laboratories Stock Retirement Plan” in “Plan Name” box.) 

(last accessed June 30, 2020); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (district 

courts should take judicial notice of information on government websites). 

8 The Court may consider the SPD without converting this Motion into one for summary judgment 

because the Complaint refers to the information in these documents, they are concededly authentic, 

and they are central to Plaintiffs’ claims, including her assertions regarding the identities of Plan 

Sponsor and Plan Administrator (Compl. ¶¶ 4, 6) and the Plan’s administrative review procedures 

(id. ¶¶ 66-67). See Hecker v. Deere & Co., 556 F.3d 575, 582-83 (7th Cir. 2009) (affirming district 

court’s decision to not convert a Rule 12(b)(6) motion to dismiss a breach of ERISA fiduciary duty 

complaint into a motion for summary judgment when SPDs were attached to defendant’s motion); 

Hakim v. Accenture United States Pension Plan, 656 F. Supp. 2d 801, 809 (N.D. Ill. 2009)

(considering SPDs attached to motion to dismiss); White v. Marshall & Ilsley Corp., No. 10-CV311, 2011 WL 2471736, at *1 n.1 (E.D. Wis. June 21, 2011), aff'd, 714 F.3d 980 (7th Cir. 2013)

(same).

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II. BARTNETT FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES. 

Bartnett’s fiduciary duty claims against the Abbott Defendants also fail as a matter of law 

because she did not exhaust her administrative remedies under the Plan. The Seventh Circuit has 

long “interpreted ERISA as requiring exhaustion of administrative remedies as a prerequisite to 

bringing suit under the statute.” Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 360 (7th 

Cir. 2011); see also Powell v. AT&T Commc’ns., Inc., 938 F.2d 823, 826 (7th Cir. 1991) (applying 

exhaustion to fiduciary duty claims). The exhaustion requirement encourages “private resolution 

of ERISA-related disputes,” Powell, 938 F.2d at 825-26, and was “‘intended by Congress . . . to 

promote the consistent treatment of claims for benefits; to provide a nonadversarial method of 

claims settlement; and to minimize the cost of claims settlement for all concerned.’” Edwards, 

639 F.3d at 360 (quoting Kross v. W. Elec. Co., 701 F.2d 1238, 1244-45 (7th Cir. 1983)). 

The SPD likewise states that a participant “may not initiate any lawsuit to recover under 

the [Plan] until [she has] exhausted the claims and appeals procedures” outlined therein. (See Ex.

2 at 31). Those procedures provide that a participant “may file a claim under the [Plan] within 90 

days” after learning of the circumstances giving “rise to the claim,” and that if the claim is denied, 

the participant “may file an appeal with the Plan Administrator . . . in writing . . . within 60 days 

after [she] receive[s] the written claim denial[.]” (Id. at 30.) The Plan Administrator then must 

provide a “final written decision” that includes the “specific reasons for the decision, with specific

reference to the plan provisions on which that decision is based” and includes the “right to file a 

civil suit under ERISA[.]” (Id. at 31). 

Bartnett admits that she failed to follow this claims and appeals procedure. (Compl. ¶¶ 66-

67.) She alleges only that her prior counsel informally negotiated with Abbott. (Id. ¶¶ 58-60, 62-

65.) Those discussions are not a substitute for the formal administrative review process under the 

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Plan. Because Bartnett did not pursue, much less exhaust, the administrative remedies available 

under the Plan, her Section 502(a)(2) claims should be dismissed. 

Bartnett’s failure is not excused by futility or lack of meaningful access. While an “ ERISA 

plaintiff's failure to exhaust administrative remedies may be excused . . . where pursuing internal 

plan remedies would be futile,” Edwards, 693 F.3d at 361, the Seventh Circuit applies a high 

standard to the futility exception, and requires that it must have been “certain” that the plaintiff’s 

claim would have been denied had the plaintiff pursued his administrative remedies. Lindemann 

v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996) (quoting Smith v. Blue Cross & Blue Shield 

United of Wis., 959 F.2d 655, 659 (7th Cir. 1992)). Plaintiff makes a conclusory allegation that 

“any administrative appeal would [have been] futile” (Compl. ¶ 67), but she does not allege with 

certainty that her appeal would have been denied. She cannot do so, because there was no formal 

claim denial much less an appeal. See Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 

1237 (7th Cir. 1997). That Bartnett deemed a claim and appeal unlikely to be successful does not 

make it futile. See, e.g., Stark v. PPM Am., Inc., 354 F.3d 666, 671-72 (7th Cir. 2004) (rejecting 

futility claim based on failed negotiations and defendants’ potential opposition to claim).

An ERISA plaintiff’s failure to exhaust administrative remedies also may be excused 

where “there is a lack of meaningful access to review procedures,” Edwards, 639 F.3d at 361, 

which requires that the claimant must have attempted to initiate the higher level review procedure, 

but was denied access to that level of review. Smith v. Blue Cross & Blue Shield United of Wis., 

959 F.2d 655, 659 (7th Cir. 1992) (citing Carter v. Signode Indus., Inc., 688 F. Supp. 1283, 1287 

(N.D. Ill. 1988)). While Bartnett alleges that she was not advised of the appeal process, she never 

filed a claim in the first place. She was also represented by counsel at the time (Compl. ¶¶ 65-66), 

who should have understood how to protect her ERISA rights. Because Bartnett does not plausibly 

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allege that an exception to the exhaustion rule is applicable, her failure to exhaust administrative 

remedies requires dismissal of her claims.

III. PLAINTIFF’S JURY DEMAND MUST BE STRICKEN.

Independent of the legal flaws in Bartnett’s claims, the Court should strike her jury 

demand. “[N]early 30 years of Seventh Circuit authority hold[s] that there is no right to a jury trial 

under ERISA.” George v. Kraft Foods Glob., Inc., No. 07-CIV-1713, 2008 WL 780629, at *2 

(N.D. Ill. Mar. 20, 2008) (collecting cases). See also McDougall v. Pioneer Ranch Ltd. P’ship, 

494 F.3d 571, 576 (7th Cir. 2007) (“The general rule in ERISA cases is that there is no right to a 

jury trial because ERISA’s antecedents are equitable, not legal.”) (quotation omitted); Richardson 

v. Astellas U.S. LLC Emp. Ben. Plan & Life Ins. Co. of N. Am., 610 F. Supp. 2d 947, 950-52 (N.D. 

Ill. 2009) (“[T]he Seventh Circuit has continued to hold that jury trials are unavailable for ERISA 

plaintiffs.”) (citations omitted).

CONCLUSION

The Abbott Defendants empathize with Ms. Bartnett, who was unquestionably the victim 

of a crime. That is why the Abbott Defendants helped her to recover a substantial portion of her 

losses. But the Abbott Defendants are not responsible for the actions of an identity thief who 

obtained Ms. Bartnett’s personal information, and hacked into her personal email account, entirely 

outside of Abbott’s systems.

* * *

For the reasons set out above, Bartnett fails to state a Section 502(a)(2) claim and failed to

exhaust her administrative remedies under the Plan. Her claims against the Abbott Defendants 

should therefore be dismissed. 

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Dated: June 30, 2020 Respectfully submitted, 

/s/ Ronald S. Safer 

Ronald S. Safer

Nick Kahlon

Mariangela Seale 

Sarah E. Finch

RILEY SAFER HOLMES & CANCILA LLP

70 W. Madison Street, Suite 2900

Chicago, Illinois 60602

Phone: 312-471-8700

Fax: 312-471-8701

Email: rsafer@rshc-law.com

nkahlon@rshc-law.com

mseale@rshc-law.com

sfinch@rshc-law.com

Jorge M. Leon

MICHAEL BEST & FRIEDRICH LLP

444 W. Lake Street, Suite 3200

Chicago, Illinois 60606

Phone: 312-222-0800

Fax: 312-222-0818

Email: jmleon@michaelbest.com

Attorneys for Defendants Abbott 

Laboratories, Abbott Corporate Benefits, 

Abbott Laboratories Stock Retirement Plan, 

and Marlon Sullivan

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CERTIFICATE OF SERVICE

I, Ronald S. Safer, certify that on June 30, 2020, I served a copy of the foregoing document 

electronically using the Court’s CM/ECF system, which will automatically generate notice of this 

filing to all Counsel of Record.

/s/ Ronald S. Safer 

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