UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL WACHALA, MARY BETH

PREUSS, PATRICIA WALSH, SADE 

ADENEYE, MIKE BICKLE, AND 

JACQUELINE GOUGH, individually and as 

representatives of classes of participants and 

beneficiaries on behalf of the Astellas US 

Retirement and Savings Plan,

Plaintiffs,

v.

ASTELLAS US LLC, THE BOARD OF 

DIRECTORS OF ASTELLAS US LLC, THE 

ASTELLAS RETIREMENT PLAN 

ADMINISTRATIVE COMMITTEE, AON 

HEWITT INVESTMENT CONSULTING, INC. 

(NKA AON INVESTMENTS USA, INC.), AND 

JOHN DOES 1–14,

Defendants.

Civil Action No. 1:20-cv-03882

Honorable Ronald A. Guzman

CLASS ACTION

ORAL ARGUMENT REQUESTED

MEMORANDUM OF LAW IN SUPPORT OF AON HEWITT INVESTMENT 

CONSULTING, INC.’S MOTION FOR SUMMARY JUDGMENT

Brian D. Boyle 

Shannon M. Barrett

Stuart M. Sarnoff

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

Tel: (202) 383-5300

John R. Landis

Jeffrey A. Sable

FOLEY & LARDNER LLP

321 North Clark Street, Suite 3000

Chicago, IL 60654-4762

Tel: (312) 832-4539

Attorneys for Aon Hewitt Investment Consulting, Inc.

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TABLE OF CONTENTS

Page

i

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

A. The Plan and AHIC’s Selection of the Aon Trust Funds........................... 1

B. Performance of the Challenged Aon Trust Funds...................................... 3

SUMMARY JUDGMENT STANDARD...................................................................................... 3

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

I. AHIC IS ENTITLED TO SUMMARY JUDGMENT ON COUNT I 

BECAUSE THE ALLEGED BREACH LED TO PLAN GAINS, NOT 

LOSSES. ................................................................................................................ 4

A. The Aon Trust Funds Have Generated Substantial Gains for Plan 

Participants Relative Even to Plaintiffs’ Own Comparators...................... 4

B. Plaintiffs’ Efforts to Split Their Claims of Breach in Order to 

Show A Loss Fail as a Matter of Law........................................................ 5

i. There Is No Legitimate Basis for Prematurely Cutting Off 

the Calculation of Losses to the Plan as of June 30, 2020............. 5

ii. Nor Can Plaintiffs Manufacture a Plan Loss By Singling 

Out Specific Aon Trust Funds or Participant Accounts................. 7

C. Plaintiffs Cannot Establish a Right to Any Other Remedy...................... 12

II. AHIC IS ENTITLED TO JUDGMENT ON COUNT III FOR THE 

ADDITIONAL REASON THAT THE PLAN’S INVESTMENT IN THE 

AON TRUST FUNDS IS EXEMPT FROM ERISA’S PROHIBITED 

TRANSACTION PROVISIONS......................................................................... 14

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

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TABLE OF AUTHORITIES

Pages

ii

Cases

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1989).................................................................................................................... 3

Brock v. Robbins,

830 F.2d 640 (7th Cir. 1987) ...................................................................................................... 4

Brotherston v. Putnam Invs., LLC,

907 F.3d 17 (1st Cir. 2018)......................................................................................................... 4

Celotex Corp. v. Catrett,

477 U.S. 317 (1989).................................................................................................................... 4

DiFelice v. U.S. Airways, Inc.,

235 F.R.D. 70 (E.D. Va. 2006)............................................................................................. 6, 10

Donovan v. Bierwirth,

754 F.2d 1049 (2d Cir. 1985) ..................................................................................................... 6

Hecker v. Deere & Co.,

556 F.3d 575 (7th Cir. 2009) .................................................................................................... 15

Int’l Ass’n of Heat & Frost Insulators Local 17 Pension Fund v. Am. Nat’l Bank & Tr. Co. of 

Chi.,

13 F. Supp. 2d 753 (N.D. Ill. 1998)............................................................................................ 5

King v. Nat’l Hum. Res. Comm., Inc.,

218 F.3d 719 (7th Cir. 2000) ...................................................................................................... 5

Larson v. United Healthcare Ins. Co.,

723 F.3d 905 (7th Cir. 2013) ...................................................................................................... 8

Mira v. Nuclear Measurements Corp.,

107 F.3d 466 (7th Cir. 1997) ...................................................................................................... 3

Munro v. Univ. of S. Cal.,

896 F.3d 1088 (9th Cir. 2018) .................................................................................................... 4

Peabody v. Davis,

636 F.3d 368 (7th Cir. 2011) .................................................................................................... 11

Peters v. Aetna Inc.,

2 F.4th 199 (4th Cir. 2021) ................................................................................................. 10, 11

Ramos v. Banner Health,

461 F. Supp. 3d 1067 (D. Colo. 2020), aff’d, 1 F.4th 769 (10th Cir. 2021)....................... 13, 14

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TABLE OF AUTHORITIES

(continued)

Pages

iii

Smith v. Greatbanc Tr. Co.,

2020 WL 4926560 (N.D. Ill. Aug. 21, 2020), aff’d sub nom. Smith v. Bd. Of Dirs. of Triad 

Mfg., Inc., 13 F.4th 613 (7th Cir. 2021).................................................................................... 12

Tracey v. MIT,

404 F. Supp. 3d 356 (D. Mass. 2019)....................................................................................... 15

Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt.,

843 F.3d 561 (2d Cir. 2016) ................................................................................................... 8, 9

Tussey v. ABB, Inc.,

746 F.3d 327 (8th Cir. 2014) ...................................................................................................... 5

Wsol v. Fiduciary Mgmt. Assocs., Inc.,

266 F.3d 654 (7th Cir. 2001) .................................................................................................... 13

Statutes

29 U.S.C. § 1109(a) .................................................................................................................. 4, 11

Other Authorities

Restatement (Third) of Trusts § 101............................................................................................... 8

Restatement (Third) of Trusts § 101 cmt. a .................................................................................... 8

Restatement (Third) of Trusts § 101 cmt. c .................................................................................... 9

Rules

Fed. R. Civ. P. 56(c) ....................................................................................................................... 3

Fed. R. Civ. P. 56(e) ....................................................................................................................... 4

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1

Plaintiffs seek to recover supposed losses to the Astellas U.S. Retirement & Savings Plan

(the “Plan”) allegedly stemming from the decision by Aon Hewitt Investment Consulting, Inc.

(“AHIC”) to use funds within the Aon Hewitt Collective Investment Trust (the “Aon Trust 

Funds”) as options in the Plan’s investment lineup. AHIC disputes that it acted imprudently or 

disloyally or otherwise violated any legal duty in selecting those funds. There is no need to 

consider the issue of breach, however, because it is indisputable that the Plan has not incurred 

any losses as the result of its investment in the Aon Trust Funds. To the contrary, the Plan has 

reaped substantial gains relative to the returns it would have received had AHIC instead selected 

plaintiffs’ chosen alternatives, which serve as their stated barometer for damages. The other 

equitable remedies plaintiffs purport to seek, in turn, are not available given that AHIC has not 

profited from the alleged breach and plaintiffs do not appear to be challenging AHIC’s current or 

recent conduct. Because plaintiffs cannot establish a right to any cognizable remedy, no trial 

involving AHIC is necessary and summary judgment as to both of plaintiffs’ claims against 

AHIC should be granted in AHIC’s favor. Moreover, AHIC is entitled to summary judgment on 

Count III for the additional reason that the Plan’s investment in the Aon Trust Funds is exempt 

from the prohibited transaction provisions on which that count is based. 

FACTUAL BACKGROUND

A. The Plan and AHIC’s Selection of the Aon Trust Funds

Astellas US LLC (“Astellas”) sponsors a 401(k) plan that allows employees to invest 

pre-tax contributions to save for retirement. SUMF ¶ 1. AHIC is a registered investment advisor 

that provides investment advisory services. SUMF ¶ 2. Following a competitive request for 

proposal process involving multiple candidates, in August 2016, Astellas and AHIC entered into 

an investment management agreement (the “IMA”), pursuant to which Astellas retained AHIC as 

the delegated fiduciary or outsourced chief investment officer (“OCIO”) to the Plan. SUMF ¶¶ 

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3–5. Under the IMA, the Astellas Retirement Plan Administrative Committee (the “Committee”)

retained responsibility for establishing the structure of the Plan’s investment menu, while AHIC,

as the Plan’s OCIO, was responsible for selecting and monitoring the specific funds that would 

be used within that structure. SUMF ¶ 6. 

After it hired AHIC, the Committee approved a streamlined Plan investment structure, 

consisting of mandates for target date funds, asset class funds (including both active and passive 

investment options), and a self-directed brokerage window. SUMF ¶ 26. In accordance with the 

new investment structure, AHIC selected five of the Aon Trust Funds, five passive index funds 

managed by State Street, the T. Rowe Price Health Sciences fund, the Invesco Stable Value 

Fund, and the JP Morgan SmartRetirement target date funds. SUMF ¶¶ 28–29. On October 3, 

2016, the following funds (the “Legacy Funds”) were replaced by the Aon Trust Funds: 

Legacy Funds Challenged Aon Trust Funds

MFS Large Cap Value 

T. Rowe Price Inst’l Large Cap Core Growth Fund Aon Hewitt Large Cap Equity Fund 

Touchstone Mid Cap Value Fund 

Aon Hewitt Small & Mid Cap Equity 

Fund 

AMG TimesSquare Mid Cap Growth Fund

DFA Small Cap Fund

American Funds Europacific Growth Aon Hewitt Non-U.S. Equity Fund 

PIMCO Total Return Fund Aon Hewitt Core Plus Bond Fund 

PIMCO Real Return Aon Hewitt Inflation Strategy Fund 

Id. Under the IMA, AHIC receives a fee for acting as the OCIO based on the total assets in the 

Plan. SUMF ¶ 7. AHIC’s fee does not vary based on the precise investment options it chooses

to fulfill the Plan’s investment mandates, whether those options consist of the Aon Trust Funds 

or other alternatives. SUMF ¶ 9. A different entity, Aon Trust Company (“ATC”) earns a fee of 

0.005% to 0.02% for acting as trustee to the Aon Trust Funds. SUMF ¶¶ 20–21. This trustee fee 

was established in 2012, with an independent, third-party trustee, Reliance Trust Company, 

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following a competitive Request for Information process. SUMF ¶¶ 18–19. When ATC 

replaced Reliance Trust as the trustee in 2015, it maintained the same trustee fee structure 

utilized by Reliance Trust. SUMF ¶ 21. This structure is in line with fees charged by other 

financial institutions providing trustee services to collective investment trusts. SUMF ¶¶ 22–23. 

B. Performance of the Challenged Aon Trust Funds

Plaintiffs’ expert calculated purported losses by comparing the performance of each of 

the challenged Aon Trust Funds to the Legacy Funds (with one notable exception)1 from October 

3, 2016 (the date the funds were added to the Plan) through June 30, 2020. SUMF ¶¶ 57–61. 

Using the latest available data as of October 31, 2022, the Aon Trust Funds generated over $14

million in returns above what the Plan would have earned in the Comparator Funds. SUMF ¶ 73. 

SUMMARY JUDGMENT STANDARD

The Court must grant summary judgment when the movant shows “that there is no 

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of 

law.” Mira v. Nuclear Measurements Corp., 107 F.3d 466, 471 (7th Cir. 1997) (quoting Fed. R.

Civ. P. 56(c) (1997)) (granting summary judgment to defendant on plaintiff’s ERISA breach-offiduciary duty claim). A dispute is “genuine” only “if a reasonable [factfinder] could return a 

verdict for the nonmoving party,” and a fact is material only if it “might affect the outcome of 

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1989). A 

mere “scintilla of evidence” does not create a genuine factual dispute, id. at 252, nor may the 

non-movant rely upon “mere allegations or denials” to survive summary judgment. Celotex 

Corp. v. Catrett, 477 U.S. 317, 321 n.3 (1989) (quoting Fed. R. Civ. P. 56(e)). 

1 Instead of comparing the returns of the Aon Hewitt Core Plus Bond Fund to the PIMCO Total Return 

Bond Fund—which had previously been an investment option in the Plan—O’Neal used the PGIM Total 

Return Fund R6 Fund because he had been instructed to do so by plaintiffs’ counsel (the Legacy Funds 

with the PGIM Total Return Fund are referred to herein as the “Comparator Funds”). SUMF ¶ 60. 

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ARGUMENT

I. AHIC IS ENTITLED TO SUMMARY JUDGMENT ON COUNT I BECAUSE 

THE ALLEGED BREACH LED TO PLAN GAINS, NOT LOSSES.

Count I of the complaint alleges that AHIC violated its fiduciary duties of prudence and 

loyalty under ERISA “by selecting and retaining the [Aon Trust Funds] in the Plan” and is liable 

under 29 U.S.C. § 1109(a) for resulting “Plan losses.” ECF 173 (“Am. Compl.”) ¶¶ 105–07.

The Plan, however, has not suffered any losses as the result of the inclusion of the Aon Trust 

Funds in the Plan’s lineup, but rather has obtained substantial gains even relative to plaintiffs’ 

own chosen comparators.2 And, while ERISA authorizes other possible remedies, none of those 

other remedies is available here. In the absence of any provable loss or other available remedy, 

plaintiffs’ claims against AHIC fail, and summary judgment in AHIC’s favor is warranted. 

A. The Aon Trust Funds Have Generated Substantial Gains for Plan 

Participants Relative Even to Plaintiffs’ Own Comparators.

The only measure of loss that plaintiffs have offered on their investment claims is based 

on a purported comparison of the actual returns experienced on the Plan assets invested in the 

Aon Trust Funds to the returns that the Plan would have obtained had those assets instead been 

invested in the Comparator Funds. See SUMF ¶¶ 58–60.

3 But comparing the Plan’s investment 

2 See 29 U.S.C. § 1109(a) (fiduciary must “make good” only those “losses to the plan resulting from” a 

fiduciary “breach”); Brock v. Robbins, 830 F.2d 640, 647 (7th Cir. 1987) (“[N]o court has held trustees 

liable in money damages for imprudent conduct which resulted in no loss or damages to the ERISA 

plan[.]”); Brotherston v. Putnam Invs., LLC, 907 F.3d 17, 39 (1st Cir. 2018) (requiring plaintiffs to show 

a “loss to the Plan”); Munro v. Univ. of S. Cal., 896 F.3d 1088, 1092–93 (9th Cir. 2018) (“[A] plaintiff 

bringing a suit for breach of fiduciary duty similarly seeks recovery only for injury done to the plan.”)). 

3 This comparison is at the threshold inapt because AHIC could not have chosen to retain the full slate of 

Comparator Funds without running afoul of the decision by the Astellas Committee—which retained 

authority for determining the Plan’s investment structure—to move to a more streamlined menu, as 

reflected in the Committee’s adoption of a new IPS. SUMF ¶¶ 6, 26–27; see Tussey v. ABB, Inc., 746 

F.3d 327, 339 (8th Cir. 2014) (comparison to replaced fund was inappropriate in light of requirements 

enumerated in the plan’s IPS). The returns on the Comparator Funds thus do not reflect the returns that 

the Plan could have expected to receive had AHIC chosen off-the-shelf alternatives to fulfill the Plan’s 

IPS rather than the Aon Trust Funds. An appropriate measure that would respect the Astellas 

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returns to those of the Comparator Funds through October 31, 2022—the latest data available as 

of the filing of this motion—shows that the Plan experienced a gain of over $14 million. SUMF 

¶¶ 71, 73; see King v. Nat’l Hum. Res. Comm., Inc., 218 F.3d 719, 722–24 (7th Cir. 2000)

(affirming summary judgment because plaintiffs suffered no damages from plan’s investment in 

money market funds where “the participants fared better in the money market funds than they 

would have in the individual investments they had previously chosen”). 

In short, whether the Plan’s returns through the Aon Trust Funds are compared to the 

returns of their benchmarks, or—as plaintiffs prefer—to the returns of the Comparator Funds that 

populated a materially different investment structure, plaintiffs cannot show that the Plan 

experienced any economic loss through their collective Aon Trust Fund investments.

B. Plaintiffs’ Efforts to Split Their Claims of Breach in Order to Show A Loss 

Fail as a Matter of Law

To manufacture the appearance of a loss, plaintiffs have tried to obscure the full effects of

the Plans’ investments in the Aon Trust Funds. None of those efforts withstands scrutiny. 

i. There Is No Legitimate Basis for Prematurely Cutting Off the 

Calculation of Losses to the Plan as of June 30, 2020.

First, despite the fact that, as a result of AHIC’s continued exercise of delegated fiduciary 

authority over the Plan’s investments, the Plan has remained invested in the challenged Aon 

Trust Funds through today, plaintiffs instructed their expert to cut off his calculation of alleged 

Committee’s independent judgment as to the narrower range of menu options they wanted for the Plan (as 

reflected in the revised IPS) would be a comparison of the returns on the Plan’s investments in the Aon 

Trust Funds against the funds’ respective benchmarks, with an adjustment to reflect that those 

benchmarks do not include the fees that would be charged with any actual investment product. See Int’l 

Ass’n of Heat & Frost Insulators Local 17 Pension Fund v. Am. Nat’l Bank & Tr. Co. of Chi., 13 F. Supp. 

2d 753, 755 (N.D. Ill. 1998) (“A benchmark is an appropriate way to judge prudent performance[.]”). Far 

from indicating a loss, however, that comparison confirms that the Plan obtained investment gains from 

the Aon Trust Funds of approximately $6.2 million through October 31, 2022 (not including an 

adjustment for the fees that would be charged with an actual investment product). SUMF ¶ 74. 

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losses as of June 30, 2020. SUMF ¶¶ 32, 61, 64. In so doing, plaintiffs conveniently eliminated 

from the comparison the recent period of market turbulence in which more diversified strategies, 

like the Aon Trust Funds, have outperformed more concentrated investments, such as the 

Comparator Funds. SUMF ¶¶ 63, 71–74. Plaintiffs have attempted to justify this artificial 

shortening of the loss calculation period by vaguely suggesting Aon’s alleged breach had at least 

partially abated by that point. See ECF No. 141 at 5, 8.4 But plaintiffs plainly confuse the 

existence of an alleged continuing breach of duty with the consequences of a prior alleged 

breach—which, of course, may continue long after the breach takes place. See, e.g., DiFelice v. 

U.S. Airways, Inc., 235 F.R.D. 70, 82 (E.D. Va. 2006) (recognizing that plan could “continue[] to 

suffer damages” after the defendant was no longer acting as fiduciary “as a result of” a breach 

that occurred during its fiduciary tenure). Plaintiffs and their experts have offered no coherent 

basis for concluding that the effects of AHIC’s supposed breach of duty in selecting the Aon 

Trust Funds for the Plan suddenly ended on June 30, 2020. Nor could they: The Aon Trust 

Funds remain in the Plan5 and AHIC remains the fiduciary responsible for their continued 

inclusion. SUMF ¶ 32. And plaintiffs’ experts have offered no theory under which a fiduciary 

who deemed the Aon Trust Funds inappropriate investment options before June 30, 2020 would 

have found them to be appropriate additions to the Plan’s lineup after that date.

Indeed, any such theory would be at odds with the opinions of plaintiffs’ own expert, 

Marek Pfeil. Pfeil opined that because AHIC had made changes to the underlying third-party 

portfolio managers within the Large Cap Equity and Small & Mid Cap Funds less than a year 

4 See, e.g., ECF No. 141 at 5 (asserting that AHIC “partially neutralized the conflict of interest that had 

tainted the initial selection of the Aon Funds . . .”). 

5 See Donovan v. Bierwirth, 754 F.2d 1049, 1056–57 (2d Cir. 1985) (holding that, in determining whether 

trustees’ purchase of employer stock caused a loss to a plan, court should consider the performance of the 

stock through the date it was ultimately sold by the plan). 

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before they were selected for the Plan, those funds should have been viewed as having less than a 

one-year performance history at that point—a disability that he insists should have disqualified 

the funds from consideration for the Plan’s menu. SUMF ¶¶ 79–80; Declaration of W. Pollak, 

Ex. 34, Pfeil Rpt. ¶ 73.

6 But the undisputed record reflects that, as of June 2020, all of the Aon 

Trust Funds either had recently undergone, or were in the process of undergoing, another round 

of significant changes in their slates of underlying third-party portfolio managers. SUMF ¶¶ 34–

40. Thus, by the logic of plaintiffs’ own expert, as of the date that plaintiffs insist the Aon Trust 

Funds became appropriate for the Plan, they once again had too brief a performance history with 

their underlying managers to be prudently considered. Plaintiffs cannot assert a disqualifying 

infirmity in the Aon Trust Funds and then arbitrarily cut off the continuing effects of AHIC’s 

alleged breach in selecting those funds at a point when the conditions giving rise to that

purported infirmity still existed. 

ii. Nor Can Plaintiffs Manufacture a Plan Loss By Singling Out Specific 

Aon Trust Funds or Participant Accounts. 

Second, plaintiffs ask the Court to ignore the collective economic gains that the Plan 

achieved through the Aon Trust Funds by focusing their expert’s loss calculations solely on those

Aon Trust Funds that tracked slightly lower than plaintiffs’ comparators. Even more absurdly, 

they seek a Plan recovery that is calculated exclusively from the experience of the fraction of 

Plan participants whose investments in any given Aon Trust Fund generated losses, while 

ignoring the larger body of participants who had gains under plaintiffs’ expert’s loss 

6 Pfeil opined that, to warrant consideration for inclusion in a plan’s lineup, a fund must have a 

performance history of at least three to five years. SUMF ¶¶ 77–80; Pollak Decl. Ex. 34, Pfeil Rpt. ¶ 145

(“Applying industry standards, knowledgeable and diligent investment professionals would not have 

considered actively managed investment vehicles for a defined contribution plan that did not have at least 

three to five years of performance history at the time they considered that investment for inclusion in the 

plan.”). 

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methodology. SUMF ¶¶ 65–69. These attempts to manipulate the economic loss element on 

their claims, too, are legally baseless. 

Plaintiffs’ bid to have the Court apply the economic loss element of their claims by 

looking solely at the subset of Aon Trust Funds that tracked slightly lower than plaintiffs’ 

comparators runs directly counter to their theory of breach. Plaintiffs have insisted that their 

claims as to all five Aon Trust Funds resulted from a singular course of misconduct by AHIC.

“Because Aon’s actions were directed to and affected the Plan as a whole,” plaintiffs urged in 

support of class certification, “Plaintiffs’ claims arise from the same course of conduct as all 

class members’ claims—Aon’s single unified decision to replace the Plan’s prior investments 

with the Aon Funds in October and its conduct in monitoring the Funds on an ongoing bases 

after October 2016.” ECF 141 at 12 (emphasis added). Under trust law principles, which serve 

as the backbone of ERISA’s remedial structure, Larson v. United Healthcare Ins. Co., 723 F.3d 

905, 914 (7th Cir. 2013), the recoverable loss on such a theory of breach is the net loss across all 

investments that resulted from the single course of misconduct. Restatement (Third) of Trusts § 

101. As the authors of the Restatement counsel, “it would be unduly harsh to hold a trustee 

liable for the loss without taking into account a related profit” when all portions of the trust 

portfolio were invested pursuant to a single fiduciary decision, and are challenged on the same 

factual and legal basis. Id. cmt. a.; see Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset 

Mgmt., 843 F.3d 561, 570 (2d Cir. 2016) (dismissing ERISA claim where alleged losses from 

investment did not “exceed the profit that the Plan derived in excess of what it would have made 

from a prudent alternative investment”). 

While comments to the Restatement explain that there is “[n]o bright-line rule” for 

determining “whether misconduct resulting in a profit and misconduct resulting in a loss should 

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be treated as constituting a single breach,” they point to factors that courts consider—including 

“[w]hether the improper acts are the result of a single strategy or policy, a single decision or 

judgment, or a single set of interrelated decisions,” “[t]he amount of time between the instances 

of misconduct and whether the trustee was aware of the earlier misconduct and its resulting loss 

or profit,” “[w]hether the trustee intended to commit a breach of trust or knew the misconduct 

was a breach,” and “[w]hether the profit and loss can be offset without inequitable consequences, 

for example to beneficiaries having different beneficial interests in the trust.” Restatement 

(Third) of Trusts § 101 cmt. c. The comments explain that “no single factor or combination of 

factors is necessarily determinative of whether offset is appropriate.” Nevertheless, the 

commentators urge that the first factor “is likely to be of particular significance.” Id. 

That overriding factor clearly requires losses to be netted across the Plan’s Aon Trust 

Fund investments in this case. After all, plaintiffs themselves have described the challenged 

breaches as stemming from a “single unified decision.” ECF 141 at 10, 12. This candid selfappraisal came at a time before the record established that the Plan had enjoyed overall economic 

gains from the Aon Trusts, and so is particularly credible. The same is true for the Restatement’s 

second factor—the amount of time between the instances of misconduct. Restatement (Third) of 

Trusts § 101 cmt. c. Again, plaintiffs have themselves emphasized that “all five Aon Funds were 

the subject of a single unified decision to overhaul the Plan and were included in the Plan on the 

same date” (ECF No. 141 at 10) and they (improperly) seek to cut off loss calculations for all the

funds on the same date of June 30, 2020, supra at 5–7. SUMF ¶ 64. 

Nevertheless, at the class certification stage, plaintiffs ignored the factor “of particular 

significance” and argued that netting was inappropriate because they have alleged that AHIC

engaged in self-dealing or other intentional breaches. ECF No. 154 at 5. In fact, their 

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allegations of self-dealing have always been tissue-thin. AHIC’s compensation was exactly the 

same no matter whether the Aon Trust Funds were chosen for the Plan. SUMF ¶¶ 9–10.

Although it is true that an affiliated entity receives small trustee fees from assets invested in the 

Aon Trust Funds, SUMF ¶ 21, AHIC provided an offering statement to Astellas before the Plan’s 

delegation to AHIC that detailed this affiliated relationship and disclosed the trustee fees (and 

Astellas represented in the IMA that it was aware that an AHIC affiliate was trustee of the 

funds)—allowing an independent fiduciary to judge whether that compensation stream was 

reasonable. SUMF ¶¶ 11–13. Regardless, the cases suggest that where the other Restatement 

factors point toward a single breach or interrelated set of breaches, the fact that the fiduciary’s 

actions were intentional—or even allegedly disloyal—will not allow a litigating plan to avoid the 

net loss principle. For example, in Peters v. Aetna Inc., 2 F.4th 199 (4th Cir. 2021), the Fourth 

Circuit held—affirming a summary judgment ruling in relevant respects—that gains and losses 

stemming from defendants’ handling of different medical claims over multiple years should be 

treated as a single breach despite evidence that defendants intentionally “circumvented] the Plan 

terms” by “devis[ing]” a “cost-shifting scheme to avoid having to pay” subcontractor expenses 

that the claims administrator had agreed to cover out of its own account, and made 

misrepresentations regarding its conduct by “burying” the improper administrative fee in medical 

claim payments. Id. at 234–35. The Court of Appeals credited the Restatement’s first factor—

“[w]hether the improper acts are the result of a single strategy or policy, a single decision or 

judgment, or a single set of interrelated decisions”—as sufficiently important to merit summary 

judgment against the plan. Peters, 2 F.4th at 224–25 (“[T]he evidence before [the court of 

appeals] only permits the conclusion that Appellees’ actions constituted a single breach primarily 

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under the first factor of the Restatement.”). By the measure of plaintiffs’ own descriptions of 

their theory of breach, that factor unquestionably favors netting here. 

Plaintiffs also insisted in class briefing that they could predicate a Plan-wide recovery 

solely on the experience of the subset of participants whose investments in the Aon Trust Funds 

tracked below plaintiffs’ damages comparators, but this is even less plausible. Plaintiffs seek to 

hold AHIC liable under 29 U.S.C. § 1109(a), see Am. Compl. ¶ 107, which by its terms 

establishes liability for losses to the Plan as a whole. 29 U.S.C. § 1109(a); see Peabody v. 

Davis, 636 F.3d 368, 373 (7th Cir. 2011) (“The remedy in an action for breach of fiduciary duty 

[under § 502(a)(2)] is for the fiduciary to ‘make good’ the loss to the plan.” (emphasis added)).

Plaintiffs have repeatedly acknowledged this well-established legal principle, including, 

ironically, in their class papers. See, e.g., ECF 141 at 1 (stating that claims under ERISA § 

409(a), 29 U.S.C. § 1109(a), “[b]y their nature,” “do not involve individual relief, but instead are 

brought in a representative capacity on behalf of the plan”), 10 (“If Aon breached its duty, 

determining whether the Plan suffered a loss, and the proper measure of those losses, are yet 

more common questions.” (emphasis added)). It follows that, in determining whether the Plan 

suffered a loss from AHIC’s decision to include the Aon Trust Funds as investment options, the 

Court must evaluate the Plan’s experience in those Aon Trust Funds across all participants—

including the large number of participants who did better by virtue of their investment in the Aon 

Trust Funds than they would have if invested in the alternative investments plaintiffs propose. 

That the Court has allowed plaintiffs to limit their class definition just to those 

participants who ostensibly incurred losses in at least one of the Aon Trust Funds does not alter 

that conclusion. As plaintiffs asserted at the class certification stage, “[t]he certification decision 

does not affect Aon’s monetary liability to the Plan.” ECF No. 154 at 15. Regardless of the

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contours of the class plaintiffs are allowed to represent, plaintiffs’ section 502(a)(2) claims 

remain claims for Plan losses. See Smith v. Greatbanc Tr. Co., 2020 WL 4926560, at *4 (N.D. 

Ill. Aug. 21, 2020) (“The Supreme Court did not indicate in LaRue that § 502(a)(2) claims are 

‘inherently individualized,’ nor did it suggest that an individual plan participant’s claim can 

somehow be split from a claim seeking plan-wide relief.”), aff’d sub nom. Smith v. Bd. Of Dirs. 

of Triad Mfg., Inc., 13 F.4th 613 (7th Cir. 2021). Indeed, according to plaintiffs, they did not 

even need to obtain a certified class in order to seek Plan-wide relief. See ECF No. 154 at 15. 

The relevant question thus remains whether the Plan as a whole suffered a loss—not whether a 

subset of class members may have experienced losses in their individual accounts.

7

 

C. Plaintiffs Cannot Establish a Right to Any Other Remedy. 

Plaintiffs cannot salvage Count I by claiming a right to some remedy other than Plan 

losses. Although ERISA § 409(a) provides for disgorgement of profits stemming from a 

fiduciary breach, plaintiffs do not seek disgorgement under Count I. Am. Compl. at 46–47

(Prayer for Relief). Even if they had, there are no such profits for AHIC to disgorge. As 

explained, AHIC received no additional compensation at all—much less profit—as a result of its 

decision to invest Plan assets in the Aon Trust Funds. SUMF ¶¶ 7–10. Rather, since being 

retained as delegated fiduciary, the only compensation AHIC has received in connection with the 

Plan or its investments is AHIC’s delegated fiduciary fee. SUMF ¶ 7. And under the IMA, 

7 Even if plaintiffs could properly exclude non-class member participant accounts from their loss 

calculations, that would not fully explain their failure to net across one single participant’s accounts. In 

calculating the Plan’s losses in a given AHCIT, plaintiffs’ expert also excluded class members who 

experienced gains from their investments in that particular AHCIT. SUMF ¶¶ 67–68. 

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AHIC is entitled to that same delegated fiduciary fee regardless of whether AHIC selects the 

Aon Trust Funds or other funds for the Plan’s investment lineup. SUMF ¶¶ 9–10.

8

 

Nor can plaintiffs establish a right to any equitable relief that would be appropriate under 

the circumstances. While plaintiffs’ demand in their Prayer for Relief for the Court to order 

defendants to “provide all accountings necessary to determine the amounts Defendants must 

make good to the Plan under § 1109(a),” and request a surcharge, Am. Compl. pp. 46–47, these 

requests go nowhere because AHIC’s alleged breaches did not generate either a Plan loss or an 

AHIC profit. Further, plaintiffs’ request to “reform the Plan,” id. at p. 47, has no application to 

AHIC, because AHIC is not the Plan’s sponsor and has no authority to set Plan terms.

Finally, plaintiffs request that the Court “remove the fiduciaries who have breached their 

fiduciary duties and enjoin them from future ERISA violations.” Am. Compl. p. 47. But such

forward-looking injunctive relief is “appropriate” only where the record contains evidence 

suggesting that a fiduciary “will likely in the future violate ERISA in the same manner.” Ramos 

v. Banner Health, 461 F. Supp. 3d 1067, 1142–43 (D. Colo. 2020), aff’d, 1 F.4th 769 (10th Cir. 

2021). Plaintiffs have offered no theory (let alone evidence) of such a likelihood. To the 

contrary, in attempting to manufacture the appearance of a loss by cutting off loss calculations as 

of June 30, 2020, plaintiffs necessarily press the position that any supposed violation ended more 

than two years ago.9 That position is untenable for the reasons discussed above. But, having 

committed to it as their theory of the case, plaintiffs have no basis to claim a likely risk of future 

8 To be sure, a different entity—ATC—has received trustee fees from the Aon Trust Funds. SUMF ¶ 21. 

But AHIC cannot be required to disgorge assets that AHIC did not itself receive. See, e.g., Wsol v. 

Fiduciary Mgmt. Assocs., Inc., 266 F.3d 654, 656 (7th Cir. 2001) (explaining that plaintiffs could not 

prevail on a claim for disgorgement “unless the breach of fiduciary duty . . . generated a profit for 

[defendant] through use of assets of the plan by [defendant]”). 

9 Cessation of a breach is a necessary though not sufficient condition for ending loss calculations. As 

discussed above, breaches can, and often do, have consequences well after they have occurred. 

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violations. Moreover, plaintiffs’ proposed injunction from “future [ERISA] violations” is 

nothing more than “an impermissibly vague obey-the-law injunction,” Ramos, 461 F. Supp. 3d at 

1143 (quotation omitted), and, therefore, is insufficient to keep the case alive.10 

II. AHIC IS ENTITLED TO JUDGMENT ON COUNT III FOR THE ADDITIONAL 

REASON THAT THE PLAN’S INVESTMENT IN THE AON TRUST FUNDS IS 

EXEMPT FROM ERISA’S PROHIBITED TRANSACTION PROVISIONS.

Count III seeks to hold AHIC liable under ERISA § 409(a) for allegedly causing the Plan 

to engage in prohibited transactions in violation of ERISA § 406, 29 U.S.C. § 1106, when it 

caused the Plan to invest in the Aon Trust Funds. This claim fails for the same reason as Count 

I—plaintiffs cannot show that the Plan suffered any loss as a result of the Plan’s investment in 

the Aon Trust Funds, nor can plaintiffs establish a right to any other remedy. 

AHIC is also entitled to summary judgment on Count III because the Plan’s investment in 

the Aon Trust Funds is exempt from ERISA’s prohibited transaction rules under ERISA 

§ 408(b)(8), 29 U.S.C. § 1108(b)(8). Section 408(b)(8) exempts “[a]ny transaction between a 

plan and a collective trust fund maintained by a bank or trust company,” “[1] if the transaction is 

a sale or purchase of an interest in the fund; [2] the bank or trust company receives not more than 

reasonable compensation; and [3] the transaction is expressly permitted by the plan instrument or 

by a fiduciary (who is not the bank or trust company or an affiliate).” ECF No. 99 at 12. 

The undisputed facts establish that the Plan’s investment in the Aon Trust Funds satisfied 

all of the conditions for the section 408(b)(8) exemption. The first prong of the test is satisfied 

because the Plan’s investment in the Aon Trust Funds involved the purchase of units in the Aon 

Hewitt Collective Investment Trust, a collective trust fund maintained by ATC, an Illinois10 Even if plaintiffs could establish a right to some form of equitable relief, that would logically only 

preserve claims on behalf of the Equitable Relief Class and not the separately certified Investment Loss 

Class. See ECF No. 169 at 5, 13. 

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chartered bank. SUMF ¶¶ 15, 20. The third prong of the test is satisfied because, as plaintiffs 

conceded in the complaint, the Plan’s investment in the Aon Trust Funds was expressly approved 

by Astellas—a Plan “fiduciary” who is not the “trust company ... or an affiliate thereof.” 29 

U.S.C. § 1108(b)(8)(C); SUMF ¶¶ 11–13; see Am. Compl. ¶¶ 18, 20, 39 (acknowledging that 

Astellas “expressly agreed to allow [AHIC] to select [investments] for the Plan exclusively from 

its proprietary Aon [] CITs”). And the second prong of the test is satisfied because the 

uncontroverted evidence shows that the compensation received by the ATC, the trust company 

that maintains the AHCIT, is reasonable. SUMF ¶¶ 21–22. 

In particular, the undisputed facts establish that ATC adopted the same trustee fee 

structure used by the prior AHCIT trustee, Reliance Trust Company, which is not affiliated with 

AHIC in any way and whose trustee fees were set through a competitive process. SUMF ¶¶ 18–

21; Hecker v. Deere & Co., 556 F.3d 575, 586 (7th Cir. 2009) (fees were reasonable where they 

were “set against the backdrop of market competition”). ATC’s trustee fees, moreover, have 

been comparable to or lower than those charged by the trustees of other collective trust funds.

SUMF ¶¶ 21–23; see, e.g., Tracey v. MIT, 404 F. Supp. 3d 356, 364 (D. Mass. 2019) (holding 

that fees were reasonable based on expert testimony that the fees “were comparable” “or less 

expensive than fees of similar investments during the class period”). Plaintiffs have offered no 

evidence or expert opinion indicating that ATC’s compensation was unreasonable.11 SUMF ¶ 23. 

CONCLUSION

The Court should enter summary judgment for AHIC on Counts I and III.

11 In the absence of a separately delineated trustee fee, some courts have assessed ERISA § 408(b)(8) by 

reference to a collective fund’s overall expense ratio. Although the Court need not resort to that measure 

here, AHIC, through its expert Professor Chalmers, has shown that Aon Trust Funds’ expense ratios

compared favorably to the range of peer expense ratios, and thus were also reasonable, SUMF ¶¶ 24–25, 

and plaintiffs have offered no evidence or expert opinion that they were not. 

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Dated: November 8, 2022 Respectfully Submitted,

/s/ Brian D. Boyle

O’MELVENY & MYERS LLP

Brian D. Boyle 

Shannon M. Barrett 

Deanna M. Rice (pro hac vice)

1625 Eye Street, N.W.

Washington, DC 20006

Telephone: (202) 383-5300

bboyle@omm.com

sbarrett@omm.com

derice@omm.com

Stuart M. Sarnoff (pro hac vice)

William Pollak (pro hac vice)

Times Square Tower

7 Times Square

New York, NY 10036

Telephone: (212) 326-2000

ssarnoff@omm.com

wpollak@omm.com

John R. Landis

FOLEY & LARDNER LLP

321 North Clark Street, Suite 3000

Chicago, IL 60654-4762

Telephone: (312) 832-4539

Attorneys for Aon Hewitt Investment Consulting 

Inc. (N/K/A Aon Investments USA, Inc.)

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CERTIFICATE OF SERVICE

I, Brian Boyle, hereby certify that on November 8, 2022, I electronically filed the 

foregoing Memorandum of Law in Support of AHIC’s Motion for Summary Judgment using the 

CM/ECF system, which will send notification of such filing to all registered participants. 

/s/ Brian D. Boyle

Brian D. Boyle

Attorney for Aon Hewitt Investment Consulting, Inc.

(NKA Aon Investments USA, Inc.)

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