IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

James Smith and Jerry Honse, on behalf of 

themselves and all others similarly 

situated, and on behalf of the Triad 

Manufacturing, Inc. Employee Stock 

Ownership Plan,

Plaintiffs,

v.

GreatBanc Trust Company, the Board of 

Directors of Triad Manufacturing, Inc., 

David Caito, Robert Hardie, Michael 

McCormick, Elizabeth J. McCormick, 

Elizabeth J. McCormick Second Amended 

and Restated Revocable Living Trust, 

Michael K. McCormick Second Amended 

and Restated Revocable Living Trust, 

David M. Caito Revocable Trust, and First 

Amended and Restated Robert Hardie 

Revocable Trust,

Defendants.

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Civil Action No.: 1:20-cv-02350

JUDGE RONALD A. GUZMAN

MAGISTRATE JUDGE YOUNG B. KIM

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL 

PRODUCTION OF DOCUMENTS RESPONSIVE TO RFP NO. 7

I. Introduction

Plaintiffs James Smith and Jerry Honse seek to compel Defendants1 to produce documents

and communications regarding the valuation of Triad Manufacturing, Inc. (“Triad” or the 

1 “Defendants” collectively refers to Defendant GreatBanc Trust Company (“GreatBanc”), 

and the Triad Defendants – which include the Board of Directors of Triad Manufacturing, Inc. 

(“Board Defendants”), David Caito, Robert Hardie, Michael McCormick, Elizabeth J. 

McCormick, Elizabeth J. McCormick Second Amended and Restated Revocable Living Trust, 

Michael K. McCormick Second Amended and Restated Revocable Living Trust, David M. Caito 

Revocable Trust, and First Amended and Restated Robert Hardie Revocable Trust.

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“Company”) after the 2015 ESOP Transaction giving rise to this ERISA class action lawsuit. In 

that 2015 Transaction, 100% of the common stock of Triad was sold to the newly created Triad 

Employee Stock Ownership Plan (“ESOP”) for a total purchase price of $106.2 million. This price 

was based on a pre-Transaction valuation of the Company which projected tremendous growth in 

future earnings. Plaintiffs allege that the appraisal was inflated because, among other reasons, 

Defendants overstated Triad’s expected future earnings. E.g., Pls.’ First Am. Compl. ¶¶ 85, 90–

101 (ECF No. 99). Discovery to date has shown that these earnings, or “EBITDA”2 projections

were wildly optimistic: in 2016, the Company actually achieved EBITDA that was $9.3 million 

short of projections; in 2017, the Company achieved EBITDA of $15.3 million less; and worst, in 

2018, it fell short by $26.9 million. Declaration of Mary J. Bortscheller ¶¶ 3–4, Ex. A (2015 

Transaction valuation) at TRIAD-GREATBANC-0000224, Ex. B (2018 valuation statement) at 

TRIAD-011800.

Post-2015 Transaction information is relevant to the Plaintiffs’ claims. Although Plaintiffs’ 

First Amended Complaint (“FAC”) makes allegations about pre- and post-2015 Transaction acts 

and omissions, Defendants are improperly withholding documents and communications regarding 

post-Transaction events. This Motion seeks to compel production of post-Transaction documents 

and communications responsive to one Request for Production of Documents served on both the 

Triad Defendants and GreatBanc, RFP No. 7. This Request seeks information regarding the 

valuation of the Company in the years between the 2015 Transaction and December 31, 2019. See

Bortscheller Decl. ¶¶ 5–6, Group Ex. C (Pls.’ RFP No. 7 to Triad Defs. and GreatBanc), Group 

Ex. D (Triad Defs. and GreatBanc’s Responses and Objections to RFP No. 7). Documents 

2 EBITDA refers to “earnings before interest, taxes, depreciation and amortization.”

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responsive to RFP No. 7 are relevant to Counts I and II of the FAC, which assert claims based on

the pre- and post-Transaction conduct of GreatBanc and the Board Defendants.3

First, the discovery goes to Plaintiffs’ allegations in Count I that GreatBanc breached its 

fiduciary duty owed to the ESOP both before and after the Transaction. FAC ¶¶ 161–62, 166

(alleging GreatBanc failed to act prudently and loyally “in connection with the 2015 Transaction 

and Clawback.”). Documents responsive to RFP No. 7 relate to Count I’s allegations that 

GreatBanc breached its fiduciary duty to the ESOP participants by failing to ensure that postTransaction decisions—including allocation of shares and debt renegotiation—were in 

participants’ best interest and otherwise in compliance with ERISA. Id. ¶¶ 139, 166. Further, the 

FAC alleges that GreatBanc failed to do adequate due diligence and relied on the overly optimistic

earnings projections prior to the Transaction. Id. ¶¶ 161–62; see also ¶¶ 87–89, 97–98, 100, 104. 

Post-Transaction valuation documents and related communications are relevant because they will 

reveal whether Triad’s earnings shortfalls were attributable to issues known or knowable at the 

time of the Transaction. For instance, the FAC alleges that the pre-Transaction valuation assumed 

that the Company would continue growing at a rapid pace, despite headwinds and risks that made 

potential third-party buyers reject Triad’s growth narrative. E.g., id. ¶¶ 91–94. Discovery thus far 

indicates that Triad’s contracts with its key customers gave the customers broad discretion as to 

how much business to give to Triad. Post-Transaction discussion about why the Company missed 

its earnings will reveal whether GreatBanc took for granted future orders which were not 

guaranteed.

3 Defendants have represented that they have produced all pre-Transaction due diligence

documents.

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Second, documents responsive to RFP No. 7 also directly relate to the Count II allegations 

that the Board Defendants breached their duty to monitor GreatBanc. Id. ¶ 171(g). The FAC 

alleges that the Board Defendants failed to ensure that GreatBanc took remedial action following 

the 2015 Transaction when it became apparent the Company’s projections were inflated due to 

reasons that were foreseeable at the time of the Transaction. Id.; see also ¶ 107 (alleging that the 

clawback did not remedy the ERISA violations). Moreover, the Board Defendants failed to 

monitor GreatBanc to ensure that the ESOP participants were treated fairly in the allocation of 

shares and the renegotiation of the sellers’ notes following the clawback. Id. ¶¶ 138–39. In 

particular, Defendants’ communications about the post-Transaction debt acceleration and 

renegotiation are highly relevant to Plaintiffs’ claim that Defendants failed to adequately consider 

whether such actions would negatively impact the Company’s solvency and future growth. 

Defendants should be compelled to provide the post-Transaction documents requested in 

RFP No. 7 because they are central to Plaintiffs’ claims, and any burden associated with the 

production of the documents is outweighed by the importance of the discovery. 

II. Legal Standard

Parties may obtain discovery regarding “any nonprivileged matter that is relevant to any 

party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); Stone 

v. Signode Indus. Grp. LLC, No. 17-CV-05360, 2022 WL 393584, at *2 (N.D. Ill. Feb. 9, 2022) 

(affirming magistrate’s grant of motion to compel production of documents withheld as irrelevant).

“In determining the scope of discovery under Rule 26, relevance is construed broadly and is not 

limited to issues raised by the pleadings.” Wachala v. Astellas US LLC, No. 20 CV 3882, 2021 

WL 5014157, at *2 (N.D. Ill. June 14, 2021) (internal citation omitted) (granting motion to compel 

production of documents withheld on relevance grounds). The proportionality of a discovery 

request considers “the importance of the issues at stake in the action, the amount in controversy, 

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the parties’ relative access to relevant information, the parties’ resources, the importance of the 

discovery in resolving the issues, and whether the burden or expense of the proposed discovery 

outweighs its likely benefit.” Id., quoting Fed. R. Civ. P. 26(b)(1).

III. Relevant Background

Triad Manufacturing, Inc. (“Triad” or the “Company”) designs and manufactures custom

fixtures, like shelving, for bricks-and-mortar retail stores. FAC ¶¶ 42, 101. The Co-Presidents of 

Triad – Defendants David Caito, Robert Hardie, and Michael McCormick (collectively, the “Board 

Defendants”) – attempted to sell the Company in early 2015. Id. ¶ 5. Despite a concerted marketing 

effort, the Board Defendants did not find a third-party buyer willing to pay the price the sellers

wanted. Id.; see also ¶¶ 76–80. Instead, the Board Defendants created an ESOP overseen by a 

Trustee – Defendant GreatBanc – that they appointed. Id. ¶¶ 7, 81. GreatBanc then approved the 

ESOP’s purchase of 100% of the shares of Triad’s common stock, at $58.08 per share, for a total 

price of $106.2 million. Id. ¶¶ 4, 56, 178. The ESOP purchased this Company stock from the Board 

Defendants and revocable trusts for which they or their spouses are beneficiaries. Id. ¶ 4. The 

purchase price was based on a flawed valuation analysis which relied on overly optimistic financial 

projections supplied by Triad’s management. Id. ¶¶ 85–105. 

The FAC alleges, in pertinent part, that GreatBanc breached its fiduciary duty as Trustee 

when it failed to perform adequate due diligence to ensure that the stock appraisal was based on 

reliable earnings projections. Among other things, GreatBanc “failed to take into account Triad’s 

highly concentrated and volatile customer base due to the widespread closure of retail stores.” 

FAC ¶ 13; see also ¶ 94 (alleging that Triad’s bricks-and-mortar retail-based customers were 

shrinking in 2015 due to the rise in online shopping); ¶¶ 161–62.

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The FAC also alleges that the Board Defendants were each a fiduciary with respect to the 

ESOP, with the authority to appoint and remove GreatBanc as the ESOP Trustee. ¶ 25. As a result, 

the Board Defendants at all relevant times had a duty to monitor GreatBanc to ensure it fulfilled 

its fiduciary obligations to the ESOP and did not engage in transactions prohibited under ERISA. 

Id. ¶¶ 25, 169 (citing 29 C.F.R. § 2509.75-8 (FR-17)). The Board Defendants allegedly breached 

that duty to monitor by failing to ensure that GreatBanc took remedial action after the 2015 

Transaction, when it became clear that the ESOP had paid more than fair market value for Triad 

stock. Id. ¶¶ 107, 171(h).

Plaintiffs’ RFP No. 7 seeks:

“All Documents constituting or Relating to the appraisal* or valuation** report of Triad 

and/or Triad Stock, during the Relevant Time Period, including but not limited to any draft 

or final versions of appraisals, valuation reports, analyses, financial models, memoranda, 

spreadsheets, letters, exhibits, appendices, notes, or work papers.”

*The term “appraisal” has the same meaning as “appraisal” used in the first sentence 

of GreatBanc’s Answer at ¶ 43 (ECF No. 45). 

**The term “valuation report” has the same meaning as “valuation report” used in the 

first sentence of GreatBanc’s Answer at ¶ 8 (ECF No. 45).

Bortscheller Decl. ¶ 5, Group Ex. C (Pls.’ RFP No. 7). While Defendants have produced certain 

documents responsive to this Request, Defendants continue to withhold any notes, 

communications, or other documents regarding the post-Transaction annual valuation reports and 

the related due diligence, on the basis that such discovery is not relevant. Id. ¶ 6, Group Ex. D

(Triad Defs. and GreatBanc responses to RFP No. 7). Notably, Plaintiffs have also served a 

document subpoena seeking similar discovery from third-party Stout Risius Ross, LLC (“Stout”).

GreatBanc hired Stout to calculate the Company valuation – pre- and post-Transaction. From the 

outset, Stout has indicated that it would produce documents in “coordination with” Defendants. 

Id. ¶ 7, Ex. E (Stout Objections to Subpoena). Relevant to this Motion, Stout has asserted

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Defendants’ objection as to the appropriate time frame, stating that Plaintiffs’ request for postTransaction documents “is unreasonable in view of the date of the challenged transaction.” Id. at 

3.

IV. Compliance With Local Rule 37.2

N.D. Illinois Local Rule 37.2 requires that the moving party in a discovery motion engage 

with opposing counsel to attempt to resolve differences. Plaintiffs and Defendants have had a 

disagreement regarding the scope of relevant discovery in the case since the commencement of 

discovery. See, e.g. Joint Status Report Regarding Written Discovery Issues at 3–5 (ECF No. 91).

The parties engaged in numerous telephonic meet and confers, starting in December 2021, 

repeatedly trying in good faith to resolve the instant discovery dispute. Bortscheller Decl. ¶ 8. The 

most recent meet and confer teleconferences occurred on March 8, 10 and 16 of 2022. Id. ¶ 9. The 

March 8 conference involved counsel for all Parties, including Matthew Grabell for Triad 

Defendants and Mark Nebrig and Kristen Kenley for Defendant GreatBanc. Id. The March 10 

conference involved Mr. Grabell for Triad, and Mary Bortscheller, Daniel Feinberg and Daniel 

Sutter for Plaintiffs. Id. The March 16 conference included Mr. Grabell and Benjamin Fryer for 

Triad, Mr. Nebrig and Ms. Kenley for GreatBanc, and Ms. Bortscheller, Mr. Feinberg and Mr.

Sutter for Plaintiffs. Id. During these conferences, the parties narrowed the issues in dispute 

considerably, but ultimately reached impasse regarding the production of post-Transaction 

documents and communications responsive to RFP No. 7. Id. ¶ 10.

V. Argument

Defendants should be compelled to produce documents and communications related to the 

post-Transaction valuations of the Company following the 2015 Transaction until December 31, 

2019. Such discovery is relevant to determining whether (1) Triad Defendants inflated the 

Company’s projected earnings, (2) GreatBanc failed to conduct adequate due diligence and (3) the 

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reasons for the Company’s post-Transaction earnings shortfalls were known or knowable at the 

time of the Transaction, as alleged in the FAC. Moreover, the FAC contains numerous factual 

allegations that implicate the post-Transaction valuations, including allegations regarding the 

clawback of part of the Transaction price(triggered in 2018), changes to the terms of the selling 

shareholders’ subordinated notes, and Defendants’ failure to take remedial action. FAC ¶¶ 135–

39, 166, 171(g) How the post-Transaction valuations were performed; when the Defendants 

became aware of the information in the reports regarding the Company’s inaccurate financial 

projections; what, if anything, GreatBanc and the Board Defendants did with the information; and 

whether post-Transaction changes to the terms of the selling shareholders’ notes were fair to the 

ESOP – the discovery sought is relevant to answering these questions and is plainly relevant to 

Plaintiffs’ claims. Defendants cannot credibly claim this discovery is not relevant and they lack a 

compelling argument that the discovery not proportional to the needs of this case. The balancing 

of interests contemplated by Rule 26(b) favors Plaintiffs. Accordingly, this Motion should be 

granted.

A. Discovery of Post-Transaction Valuations and Related Communications is Relevant to 

Plaintiffs’ Breach of Fiduciary Duty Claims Against GreatBanc

GreatBanc had a fiduciary duty to ensure the ESOP did not pay more than fair market value 

for the Triad stock purchased in the 2015 Transaction. Plaintiffs allege that GreatBanc breached 

this duty by, among other things, failing to adequately investigate the management earning 

projections underlying Stout’s Transaction valuation analysisto confirm that such projections were 

accurate and reliable. Defendants are withholding post-2015 valuation documents and 

communications on the assertion that they are irrelevant because they came after the initial ESOP 

Transaction. However, as outlined above, Plaintiffs’ claims involve post-Transaction conduct and 

events, and the requested discovery will reveal whether Defendants are liable for approving a 

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Transaction based on inflated assumptions about future growth and whether post-Transaction 

changes to the terms of the sellers’ notes were fair to the ESOP. 

Defendants’ narrow view on relevance is also not supported by case law. Other courts have 

rejected Defendants’ arguments in the identical context of a challenged ESOP transaction. See,

e.g., Woznicki v. Raydon Corp., No. 618CV2090ORL78GJK, 2020 WL 2562874, at *3 (M.D. Fla. 

May 19, 2020); Perez v. First Bankers Tr. Servs., Inc., No. CV124450MASDEA, 2017 WL 

1232527, at *19, *61–65 (D.N.J. Mar. 31, 2017). In Woznicki, plaintiff sought production of

certain documents which were created after the ESOP transaction, and defendants withheld them, 

objecting that the documents were “irrelevant and not proportional because whether [the ESOP

trustee] is liable depends on the circumstances then prevailing, not the ‘results of the transaction.’” 

Id. The court rejected this argument, finding that “[s]imply because the circumstances then 

prevailing are when [the trustee’s] behavior will be measured, does not necessarily lead to the 

conclusion that documents created after the 2015 Transaction are not relevant or proportional.” Id. 

(granting motion to compel); see also Donovan v. Cunningham, 716 F.2d 1455, 1472 (5th Cir. 

1983) (considering post-transaction communications as relevant to an ESOP trustee’s actions 

before the transaction).

Similarly, in Perez, the court’s post-trial findings of fact specifically cited the “Industry 

Analysis section” from a “Post-Transaction Valuation Report.” Perez, 2017 WL 1232527, at *19, 

*32, *61–62. Notably, the court found that “a prudent investor would have considered [the Industry 

Analysis] to be material prior to the Transaction for determining whether the tenor of the industry 

analysis for [the company purchased by the ESOP] reasonably reflected [the company’s] projected 

performance.” Id. at *19 (emphasis added). Further, the court found that the Post-Transaction 

Valuation contained information that “was known or reasonably knowable as of the date of the 

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Transaction.” Id. at *61. The same reasoning applies here – Plaintiffs allege that the Transaction 

valuation failed to adequately consider a secular trend from brick-and-mortar stores to online retail 

sales and this shift in the retail market was an important reason why Triad fell far short of its 

projected sales and earnings.4

Further, discovery to date supports the relevance of Plaintiffs’ request in RFP No. 7. 

Defendants have produced the post-Transaction valuation reports suggesting that the problems 

with the 2015 valuation could have been discovered with adequate due diligence. For example, the 

2016 valuation report explains that the Company had a “decline in net sales and adjusted earnings 

in fiscal 2016” that was “attributable to lower sales from the Company’s key customers, including 

Samsung, Under Armour and Best Buy.” Bortscheller Decl. ¶ 11, Ex. F (2016 valuation statement)

at TRIADP-02352. It further reported that “sales to Under Armour were below expectations in 

2016 primary [sic] due to excess fixture inventory held by Under Armour that was previously 

unidentified as well as the negative impact of the closure of Sports Authority retail locations.” Id. 

at TRIADP-023258 (emphasis added). The documents and communications related to the 

valuation reports from 2016, 2017 and 2018 will shed light on whether GreatBanc could have 

known, through a reasonable investigation, that the headwinds described above were likely to 

depress Triad’s future earnings, as alleged in the FAC. See, e.g., FAC ¶¶ 94–98. As it stands, the 

record remains incomplete on that inquiry. The production of these documents should be 

compelled.

4

 Notably, the word “Amazon” does not appear in the 2015 Transaction valuation report. See 

generally Bortscheller Decl. Ex. A.

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B. Discovery Sought is Relevant to Plaintiffs’ Duty to Monitor Claim Against the Triad 

Defendants

Similarly, documents and communications concerning post-Transaction valuations will 

help reveal what, if anything, the Board Defendants did after the Transaction to ensure that their 

appointed fiduciary, GreatBanc, adequately fulfilled its fiduciary function. Such discovery is 

central to Plaintiffs’ breach of the duty to monitor claim in Count II. “Individuals who appoint 

ERISA fiduciaries have a duty to monitor those fiduciaries’ actions and to provide them with the 

information necessary to carry out their responsibilities.” Bartnett v. Abbott Lab'ys, No. 20-CV02127, 2021 WL 428820, at *5 (N.D. Ill. Feb. 8, 2021) (quoting Brieger v. Tellabs, Inc., 629 F. 

Supp. 2d 848, 867 (N.D. Ill. 2009)). According to the Department of Labor, ERISA requires that 

a fiduciary who has appointed a trustee (or other fiduciary) must monitor the performance of the 

appointee in order “to ensure that their performance has been in compliance with the terms of the 

plan and statutory standards....” 29 C.F.R. § 2509.75–8 at FR–17 (Department of Labor questions 

and answers).

The requested documents and communications regarding the post-Transaction valuations 

will show whether the Board Defendants monitored in any way GreatBanc’s handling of the

ESOP’s overpayment in the 2015 Transaction, including the impact of the clawback on ESOP 

participants and the fairness of the renegotiated sellers’ note terms. Such discovery is central to 

Plaintiffs’ breach of the duty to monitor claim in Count II. FAC ¶ 171(g); see also ¶¶ 107, 138–

39. For example, Triad has extensive communications with Stout and GreatBanc each year in 

connection with the annual valuation reports. Plaintiffs are entitled to find out if these 

communications include disclosures of adverse developments that were known or knowable as of 

the ESOP Transaction date and whether Defendants considered any corrective actions beyond the 

clawback. Given the high degree of importance of such discovery, and Plaintiffs’ inability to obtain 

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this information from any other source, the requests at issue are also proportional to the needs of 

the case. Fed. R. Civ. P. 26(b).

C. Defendants’ Objections Provide Cover to Third-Party Stout to Not Produce Documents

Finally, Defendants’ objections to RFP No. 7 are thwarting Plaintiffs’ efforts to obtain 

discovery into this subject from any source. As noted above, Plaintiffs also have sought production 

of the post-Transaction valuation and associated due diligence documents from Stout, a non-party, 

which performed the valuation analyses. Stout has cited Defendants’ objections and refused to 

produce the requested documents. To date, Plaintiffs have not received any post-Transaction 

valuation due diligence documents from Stout. An order compelling Defendants to produce 

documents and communications regarding the Company’s post-Transaction valuations would also 

support Plaintiffs’ efforts to obtain Stout’s internal valuation due diligence notes and 

communications. 

VI. Conclusion

For the reasons articulated above, Plaintiffs respectfully request that the Court order 

Defendants to respond to RFP No. 7 and produce all documents and communications regarding 

the valuation reports created by Stout between the 2015 Transaction and December 31, 2019. 

 Dated: March 22, 2022 Respectfully submitted,

/s/ Mary J. Bortscheller

COHEN MILSTEIN SELLERS & TOLL PLLC

Michelle C. Yau (admitted pro hac vice) 

Mary J. Bortscheller, Illinois Bar: 6304457 

Daniel R. Sutter (admitted pro hac vice) 

Laura E. Older (admitted pro hac vice) 

1100 New York Ave. NW ● Fifth Floor 

Washington, DC 20005 (202) 408-4600 

myau@cohenmilstein.com 

mbortscheller@cohenmilstein.com

dsutter@cohenmilstein.com

lolder@cohenmilstein.com

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Carol V. Gilden, Illinois Bar: 6185530 

190 South LaSalle Street, Suite 1705 

Chicago, IL 60603

Tel: (312) 357-0370 

Fax: (312) 357-0369 

cgilden@cohenmilstein.com

FEINBERG, JACKSON, WORTHMAN & WASOW, 

LLP

Nina Wasow (admitted pro hac vice)

Dan Feinberg (admitted pro hac vice)

2030 Addison Street ● Suite 500

Berkeley, CA 94704

Tel: (510) 269-7998

Fax: (510) 269-7994

nina@feinbergjackson.com

dan@feinbergjackson.com

Attorneys for Plaintiffs 

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