IN THE UNITED STATES DISTRICT COURT 

FOR THE 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, AND AON 

HEWITT INVESTMENT CONSULTING, INC. 

(NKA AON INVESTMENTS USA, INC.), 

Defendants. 

Civil Action No. 1:20-cv-03882 

Hon. Ronald A. Guzman 

Magistrate Judge Heather K. McShain 

AMENDED COMPLAINT—CLASS 

ACTION 

JURY TRIAL DEMANDED 

AMENDED COMPLAINT 

1. Plaintiffs Michael Wachala, Mary Beth Preuss, Patricia Walsh, Sade Adeneye,

Mike Bickle, and Jacqueline Gough, individually and as representatives of classes of participants 

and beneficiaries of the Astellas US Retirement and Savings Plan, bring this action under 29 

U.S.C. §1132(a)(2) and (a)(3) on behalf of the Plan against Defendants Astellas US LLC, the 

Board of Directors of Astellas US LLC, the Astellas Retirement Plan Administrative Committee, 

and Aon Hewitt Investment Consulting, Inc. (nka Aon Investments USA, Inc.) for breach of 

fiduciary duties and prohibited transactions under ERISA.1 

1

 The Employee Retirement Income Security Act, 29 U.S.C. §§1001–1461. All Defendants are 

collectively referred to as “Defendants”. Aon Hewitt Investment Consulting, Inc. is referred to as “Aon 

Hewitt”. Astellas US LLC is referred to as “Astellas”. The Astellas-affiliated defendants are collectively 

referred to as the “Astellas Defendants.” 

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2. The marketplace for retirement plan services is established and competitive. 

Large defined contribution plans, like the Plan, have tremendous bargaining power to obtain high 

quality, low-cost investment management services. As fiduciaries to the Plan, Defendants are 

obligated to act for the exclusive benefit of Plan participants and beneficiaries and to ensure that 

Plan expenses are reasonable and the Plan’s investments are prudent. These duties are the 

“highest known to the law”, and must be discharged with “an eye single to the interests of the 

participants and beneficiaries.” Donovan v. Bierwirth, 680 F.2d 263, 271, 272 n.8 (2d Cir. 1982). 

Instead of acting in the exclusive best interest of participants, Aon Hewitt acted in its own 

interest by causing the Plan to invest in Aon Hewitt’s proprietary collective investment trusts, 

which benefitted Aon Hewitt at the expense of Plan participants’ retirement savings. The 

Astellas Defendants also failed to use the Plan’s bargaining power to negotiate reasonable fees, 

which caused unreasonable expenses to be charged to the Plan and participants for investment 

management services. 

3. To remedy these breaches of duty, Plaintiffs, individually and as representatives 

of classes of participants and beneficiaries of the Plan, bring this action on behalf of the Plan 

under 29 U.S.C. §1132(a)(2) and (a)(3) to enforce Defendants’ personal liability under 29 U.S.C. 

§1109(a) to make good to the Plan all losses resulting from each breach of fiduciary duty and to 

restore to the Plan profits made through Defendants’ use of Plan assets. In addition, Plaintiffs 

seek equitable or remedial relief for the Plan as the Court may deem appropriate. 

JURISDICTION AND VENUE

4. Subject-matter jurisdiction. This Court has exclusive jurisdiction over the 

subject matter of this action under 29 U.S.C. §1132(e)(1) and 28 U.S.C. §1331 because it is an 

action under 29 U.S.C. §1132(a)(2). 

5. Venue. This District is the proper venue for this action under 29 U.S.C. 

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§1132(e)(2) and 28 U.S.C. §1391(b) because it is the district where the Plan is administered, 

where at least one of the alleged breaches took place, and where at least one defendant resides or 

may be found. 

6. Standing. An action under §1132(a)(2) allows recovery only for a plan and does 

not provide a remedy for individual injuries distinct from plan injuries. LaRue v. DeWolff, 

Boberg & Assocs., 552 U.S. 248, 256 (2008). The plan is the victim of any fiduciary breach and 

the recipient of any recovery. Id. at 254. Section 1132(a)(2) authorizes any participant, fiduciary, 

or the Secretary of Labor to bring a civil action to seek relief on behalf of a plan. 29 U.S.C. 

§1132(a)(2). As explained in detail below, the Plan suffered millions of dollars in losses resulting 

from Defendants’ fiduciary breaches and remains exposed to harm and continued future losses, 

and those injuries may be redressed by a judgment of this Court in favor of Plaintiffs. To the 

extent the Plaintiffs must also show an individual injury, each Plaintiff has suffered such an 

injury, in at least the following ways: 

a. The named Plaintiffs suffered harm to their individual accounts as a result of 

Defendants’ fiduciary breaches. During the proposed class period, Plaintiffs 

Preuss invested in each of the Aon Hewitt collective investment trusts provided in 

the Plan. Plaintiffs Wachala and Walsh invested in each of the Aon Hewitt funds 

with the exception of the Aon Hewitt Inflation Strategy Fund. Plaintiff Bickle 

invested in each of the Aon Hewitt funds with the exception of the Aon Hewitt 

Non-US Equity Fund, and Plaintiff Adeneye invested in the Aon Hewitt Core 

Plus Bond Fund and the Aon Hewitt Large Cap Equity Fund. By providing the 

Aon Hewitt collective investment trusts, Defendants caused millions of dollars in 

performance losses to all participants who invested in these funds.

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b. The named Plaintiffs suffered harm to their individual accounts as a result of the 

Astellas Defendants selecting and retaining higher-cost shares of the Plan’s 

investments, including the Aon Hewitt collective investment trusts. Had the 

Astellas Defendants provided the lowest-cost shares of the Plan’s investments, the 

Named Plaintiffs’ and every participant’s account would have had fewer 

investment management fees deducted and would have been of higher value in 

light of those fees and the investment return on those fees.

PARTIES 

The Astellas US Retirement and Savings Plan

7. The Plan is a defined contribution, individual account, employee pension benefit 

plan under 29 U.S.C. §1002(2)(A) and §1002(34) in which certain employees of Astellas and its 

affiliates may participate. 

8. The Plan is established and maintained under a written document in accordance 

with 29 U.S.C. §1102(a)(1), last amended and restated on October 1, 2016. 

9. Under the Plan, participants are responsible for investing their individual accounts 

and will receive in retirement only the current value of that account, which will depend on the 

amount contributed to the account by the employee and employer, and the performance of 

investment options net of fees and expenses. Plan fiduciaries control what investment options are 

provided in the Plan and the Plan’s fees and expenses. 

10. As of December 31, 2013, the Plan had $623 million in net assets and 3,796 

participants with account balances. By December 31, 2018, the Plan had grown to $932 million 

in net assets and 3,967 participants with account balances. The Plan’s size gave it substantial 

bargaining power to command very low investment management fees for its participants. 

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Plaintiffs

11. Michael Wachala is a former employee of Astellas. He resides in Lowell, 

Massachusetts. He was a participant in the Plan until the end of 2019. However, he is still a 

“participant” under 29 U.S.C. §1002(7) for the purposes of bringing this action on behalf of the 

Plan under 29 U.S.C. §1132(a)(2) because he is eligible to receive his share of the amount by 

which his account would have been greater had Defendants not breached their fiduciary duties. 

12. Mary Beth Preuss is a former employee of Astellas. She resides in Parkville, 

Missouri. She was participant in the Plan through approximately May 2020. However, she is still 

a “participant” under 29 U.S.C. §1002(7) for purposes of bringing this action on behalf of the 

Plan under 29 U.S.C. §1132(a)(2) because she is eligible to receive her share of the amount by 

which her account would have been greater had Defendants not breached their fiduciary duties. 

13. Patricia Walsh is a former employee of Astellas. She resides in Brentwood, 

Tennessee. She was a participant in the Plan until approximately December 2019. However, she 

is still a “participant” under 29 U.S.C. §1002(7) for the purposes of bringing this action on behalf 

of the Plan under 29 U.S.C. §1132(a)(2) because she is eligible to receive her share of the 

amount by which her account would have been greater had Defendants not breached their 

fiduciary duties. 

14. Sade Adeneye is a former employee of Astellas. She resides in Reseda, 

California. She is a participant in the Plan under 29 U.S.C. §1002(7) because she and her 

beneficiaries are or may become eligible to receive benefits under the Plan. 

15. Mike Bickle is a former employee of Astellas. He resides in Wolfforth, Texas. He 

was a participant in the Plan until approximately March 2019. However, he is still a “participant” 

under 29 U.S.C. §1002(7) for the purposes of bring this action on behalf of the Plan under 29 

U.S.C. §1132(a)(2) because he is eligible to receive his share of the amount by which his account 

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would have been greater had Defendants not breached their fiduciary duties. 

16. Jacqueline Gough is a former employee of Astellas. She resides in Lincolnshire, 

Illinois. She is a participant in the Plan under 29 U.S.C. §1002(7) because she and her 

beneficiaries are or may become eligible to receive benefits under the Plan. 

Defendants

17. Astellas US LLC (“Astellas”) is a pharmaceutical product manufacturing limited 

liability company headquartered in Northbrook, Illinois and incorporated in Delaware. Astellas is 

a subsidiary of Astellas Pharma US Inc. Astellas Pharm US Inc. is an affiliate of Astellas 

Pharma, Inc., a Japanese corporation headquartered in Tokyo, Japan. 

18. Astellas is the Plan sponsor under 29 U.S.C. §1102(a)(1) and Plan administrator 

under 29 U.S.C. §1002(16). The Plan document presently designates Astellas as a named 

fiduciary and plan administrator under 29 U.S.C. §1102(a)(2) with full power and authority to 

manage and administer the Plan. As alleged herein, Astellas exercises discretionary authority or 

discretionary control respecting the management of the Plan, exercises authority or control 

respecting the management or disposition of Plan assets, and/or has discretionary authority or 

discretionary responsibility in the administration of the Plan and is a fiduciary under 29 U.S.C. 

§1002(21)(A)(i) and (iii). 

19. The Board of Directors of Astellas (“Astellas Board”) oversees the overall 

governance of the Plan and has discretionary authority or control over the selection, monitoring, 

and removal of Plan investments. The Astellas Board exercises discretionary authority or 

discretionary control respecting the management of the Plan, exercises authority or control 

respecting the management or disposition of Plan assets, and/or has discretionary authority or 

discretionary responsibility in the administration of the Plan and is a fiduciary under 29 U.S.C. 

§1002(21)(A)(i) and (iii). 

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20. The Astellas Retirement Plan Administrative Committee (“Administrative 

Committee”) is a named fiduciary of the Plan under 29 U.S.C. §1102(a)(2) and was formed by 

Astellas to administer the Plan. In addition to being a named fiduciary, the Administrative 

Committee entered into an investment management agreement on behalf of the Plan, which 

appointed Aon Hewitt as the Plan’s discretionary investment manager as defined by 29 U.S.C. 

§1002(38). 

21. Because the Astellas individuals and entities described above acted as alleged 

herein as agents of Astellas, these defendants are collectively referred to hereafter as the 

“Astellas Defendants” unless otherwise indicated. 

22. Aon Hewitt Investment Consulting, Inc. (“Aon Hewitt”) is a registered investment 

adviser under the Investment Advisers Act of 1940 with its principal place of business in 

Chicago, Illinois. In March 2020, the firm began operating as Aon Investments USA, Inc. From 

at least 2010 through August 25, 2016, Aon Hewitt (then known as Hewitt EnnisKnupp, Inc.) 

was a fiduciary to the Plan because it rendered investment advice for a fee with respect to the 

Plan. 29 U.S.C. §1002(21)(A)(ii). Effective August 26, 2016, Astellas and the Administrative 

Committee appointed Aon Hewitt as the Plan’s discretionary investment manager as defined by 

29 U.S.C. §1002(38). 

23. As alleged herein, prior to August 26, 2016, Aon Hewitt rendered investment 

advice for a fee with respect to the Plan’s assets, or had authority or responsibility to do so, and 

was a fiduciary under 29 U.S.C. §1002(21)(A)(ii), and separately, since August 26, 2016, Aon 

Hewitt has been the investment manager and a fiduciary under 29 U.S.C. §1002(38), with the 

power to manage, acquire, or dispose of any asset of the Plan. 

ERISA’S FIDUCIARY STANDARDS 

24. ERISA imposes strict fiduciary duties of loyalty and prudence upon the 

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Defendants as fiduciaries of the Plan. 29 U.S.C. §1104(a), states, in relevant part, that: 

[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the 

participants and beneficiaries and – 

(A) for the exclusive purpose of 

(i) providing benefits to participants and their beneficiaries; and 

 (ii) defraying reasonable expenses of administering the plan; 

[and] 

(B) with the care, skill, prudence, and diligence under the circumstances then 

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

such matters would use in the conduct of an enterprise of like character 

and with like aims. 

25. Under ERISA, fiduciaries that exercise any authority or control over plan assets, 

including, but not limited to, the selection of plan investments and service providers, must act 

prudently and for the exclusive benefit of participants in the plan, monitor the funds in the plan 

and remove imprudent or excessively expensive funds. Fiduciaries cannot act for the benefit of 

third parties, including service providers to the plan such as recordkeepers, affiliated businesses, 

brokerage firms, or managed account service providers and those who provide investment 

products. Fiduciaries must ensure that the amount of fees paid to service providers is no more 

than reasonable. DOL Adv. Op. 97-15A; DOL Adv. Op. 97-16A; see also 29 U.S.C. §1103(c)(1) 

(plan assets “shall be held for the exclusive purposes of providing benefits to participants in the 

plan and their beneficiaries and defraying reasonable expenses of administering the plan”). 

26. An ERISA “trustee has a continuing duty to monitor trust investments and remove 

imprudent ones.” Tibble v. Edison Int’l, 135 S. Ct. 1823, 1828 (2015). Prudence requires a 

review at “regular intervals.” Id. When making investment decisions, an ERISA fiduciary “is 

duty-bound ‘to make such investments and only such investments as a prudent [person] would 

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make of his own property[.]’” In re Unisys, 74 F.3d 420, 434 (3d Cir. 1996) (quoting 

RESTATEMENT (SECOND) OF TRUSTS §227 (1959)). “[T]he duty to conduct an independent 

investigation into the merits of a particular investment” is “the most basic of ERISA’s 

investment fiduciary duties.” Id. at 435. 

27. A defined contribution plan fiduciary cannot “insulate itself from liability by the 

simple expedient of including a very large number of investment alternatives in its portfolio and 

then shifting to the participants the responsibility for choosing among them.” Hecker v. Deere & 

Co., 569 F.3d 708, 711 (7th Cir. 2009). Instead, fiduciaries must “initially determine, and 

continue to monitor, the prudence of each investment option available to plan participants.” 

DiFelice v. U.S. Airways, Inc., 497 F.3d 410, 423 (4th Cir. 2007) (emphasis original); see also 29 

C.F.R. §2550.404a-1; DOL Adv. Op. 98-04A; DOL Adv. Op. 88-16A. Fiduciaries have “a 

continuing duty to monitor investments and remove imprudent ones” within a reasonable time. 

Tibble, 135 S. Ct. at 1828–29. 

28. ERISA also imposes explicit co-fiduciary liabilities on plan fiduciaries. 29 U.S.C. 

§1105(a) provides a cause of action against a fiduciary for knowingly participating in a breach 

by another fiduciary and knowingly failing to cure any breach of duty. The statute states, in 

relevant part, that: 

In addition to any liability which he may have under any other provisions of this part, a 

fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of 

another fiduciary with respect to the same plan in the following circumstances: 

(1) if he participates knowingly in, or knowingly undertakes to conceal, an act 

or omission of such other fiduciary, knowing such act or omission is a 

breach; [or] 

(2) if, by his failure to comply with section 1104(a)(1) of this title in the 

administration of his specific responsibilities which give rise to his status 

as a fiduciary, he has enabled such other fiduciary to commit a breach; or 

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(3) if he has knowledge of a breach by such other fiduciary, unless he makes 

reasonable efforts under the circumstances to remedy the breach. 

BACKGROUND FACTS 

29. “Defined contribution plans dominate the retirement plan scene today.” LaRue v. 

DeWolff, Boberg & Assocs., 552 U.S. 248, 255 (2008). In the private sector, such plans have 

largely replaced the defined benefit pension plans that were America’s retirement system when 

ERISA was enacted in 1974. The consulting firm Towers Watson studied Fortune 100 

companies from 1985 to 2012 and found that the type of retirement plan offered by the 

companies has essentially flipped over the last three decades.2

 The survey found that whereas in 

1985, 89 of the Fortune 100 companies offered a traditional defined benefit plan, in 2012, only 

eleven of the Fortune 100 companies offered defined benefit plans to newly hired employees. 

Defined contribution plans have become America’s retirement system. 

30. A fundamental difference between traditional pension plans and defined 

contribution plans is that in the former, the employer’s assets are at risk. Because the employer is 

responsible for funding the pension plan to satisfy its commitments to employees, it bears all 

investment risks. In a defined contribution plan, the employees and retirees bear all investment 

risks. 

31. Each participant in a defined contribution plan has an individual account and 

directs plan contributions into one or more investment alternatives in a lineup chosen by the 

plan’s fiduciaries. “[P]articipants’ retirement benefits are limited to the value of their own 

individual investment accounts, which is determined by the market performance of employee 

and employer contributions, less expenses.” Tibble, 135 S. Ct. at 1826. Plan expenses can 

2

 Towers Watson, Retirement Plan Types of Fortune 100 Companies in 2012, TOWERS WATSON 

RESEARCH INSIDER, Oct. 2012. 

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“significantly reduce the value of an account in a defined-contribution plan.” Id. The fees 

assessed to participants are generally attributable to two types of services: plan administration 

and investment management. 

32. The plan’s fiduciaries have control over these expenses. The fiduciaries are 

responsible for hiring administrative service providers and negotiating and approving their 

compensation. The fiduciaries also have exclusive control over the menu of investment 

alternatives to which participants may direct the assets in their accounts. The investment 

alternatives each have their own fees, usually expressed as a percentage of assets under 

management, or “expense ratio.” For example, if a fund deducts 1.0% of fund assets each year in 

fees, the fund’s expense ratio would be 1.0%, or 100 basis points (“bps”). (One basis point is 

equal to 1/100th of one percent.) The fees deducted from a fund’s assets reduce the value of the 

shares and hence reduce the returns that participants receive on their investments. 

33. These fiduciary decisions have the potential to dramatically affect the amount of 

money that participants are able to save for retirement. According to the U.S. Department of 

Labor, a 1% difference in fees over the course of a 35-year career makes a difference of 28% in 

savings at retirement.3 Over a 40-year career, this difference in fees can reduce a participant’s 

retirement savings by almost $500,000, as shown in the following graph.4

 

3

 U.S. Dept. of Labor, A Look at 401(k) Plan Fees, at 2 (Sept. 2019), 

https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/a-lookat-401k-plan-fees.pdf. 

4

 Michael Bird, Pandemic Highlights Reasons for Reviewing Plan Fees, PLANSPONSOR, May 15, 2020, 

https://www.plansponsor.com/pandemic-highlights-reasons-reviewing-plan-fees/. 

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34. Academic and financial industry literature demonstrate that high expenses are not 

correlated with superior investment management. Indeed, funds with high fees on average 

perform worse than less expensive funds even on a pre-fee basis. Javier Gil-Bazo & Pablo RuizVerdu, When Cheaper is Better: Fee Determination in the Market for Equity Mutual Funds, 67 J.

ECON. BEHAV. & ORG. 871, 873 (2008); see also Jill E. Fisch, Rethinking the Regulation of 

Securities Intermediaries, 158 U. PA. L. REV. 1961, 1993 (2010) (summarizing numerous studies 

showing that “the most consistent predictor of a fund’s return to investors is the fund’s expense 

ratio”). 

[T]he empirical evidence implies that superior management is not priced through 

higher expense ratios. On the contrary, it appears that the effect of expenses on 

after-expense performance (even after controlling for funds’ observable 

characteristics) is more than one-to-one, which would imply that low-quality 

funds charge higher fees. Price and quality thus seem to be inversely related in the 

market for actively managed mutual funds. 

Gil-Bazo & Ruiz-Verdu, When Cheaper is Better, at 883. 

35. Accordingly, fiduciaries of defined contribution plans must engage in a rigorous 

process to control costs and ensure that participants pay no more than a reasonable level of fees. 

This is particularly true for large defined contribution plans which have the bargaining power to 

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obtain the highest level of service and the very lowest fees. The fees available to these plans are 

orders of magnitude lower than the much higher retail fees available to small investors. 

36. The entities that provide services to defined contribution plans have an incentive 

to maximize their fees by putting their own higher-cost funds in plans and collecting the highest 

amount possible for plan-related services. For each additional dollar in fees paid to a service 

provider, participants’ retirement savings are directly reduced by the same amount, and 

participants lose the potential for those lost assets to grow over the remainder of their careers 

through investment returns. The level of diligence used by plan fiduciaries to control, negotiate, 

reduce the plan’s fees, and safeguard plan assets directly affects participants’ retirement security. 

37. Fiduciaries must be cognizant of service providers’ self-interest in maximizing 

fees, and cannot simply accede to the providers’ desires and recommendations to include the 

provider’s proprietary funds and services that will maximize the provider’s fees without 

negotiating or considering alternatives. In order to act in the exclusive interest of participants and 

not in the service providers’ interest, fiduciaries must conduct their own independent 

investigation into the merits of a particular investment or service by considering alternatives. 

DEFENDANTS BREACHED THEIR FIDUCIARY DUTIES 

I. Defendants restructured the Plan in 2016 by replacing established funds with Aon 

Hewitt’s proprietary collective investment trusts. 

38. The Astellas Defendants initially hired Aon Hewitt to provide investment 

advisory services with respect to the Plan. Effective August 26, 2016, Astellas and the 

Administrative Committee expanded that responsibility and appointed Aon Hewitt as the 

discretionary investment manager for the Plan with discretion over the selection, retention and 

removal of Plan investments. The Astellas Defendants retained the fiduciary responsibility to 

ensure that Aon Hewitt carried out its fiduciary obligations loyally and prudently, and had the 

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duty to prevent any fiduciary breach in the selection and removal of Plan investments. 

39. Astellas and the Administrative Committee did not require that Aon Hewitt 

consider all prudent investment vehicles that were available to the Plan prior to making any 

investment decision. In direct violation of their fundamental fiduciary obligations, Astellas and 

the Administrative Committee expressly agreed to allow Aon Hewitt to select for the Plan 

exclusively from its proprietary Aon Hewitt collective investment trusts, and agreed that Aon 

Hewitt had no obligation to consider non-proprietary investment vehicles for the Plan. Although 

Aon Hewitt acted as the Plan’s discretionary investment manager over the Plan’s investments, 

Astellas retained the authority to request that Aon Hewitt retain any Plan investment not 

recommended by Aon Hewitt for inclusion in the Plan. 

40. After Aon Hewitt became the Plan’s discretionary investment manager, on or 

about October 3, 2016, Defendants restructured the Plan. The Astellas Defendants “partnered 

with Aon Hewitt” to develop a new investment lineup for Plan participants. With one exception 

(T. Rowe Price Health Sciences mutual fund), Defendants removed all of the Plan’s mutual 

funds (9 in total) and replaced them with six collective investment trusts. Five of those collective 

investment trusts were Aon Hewitt’s proprietary collective trusts: the Aon Hewitt Large Cap 

Equity Fund, the Aon Hewitt Small & Mid Cap Equity Fund, the Aon Hewitt Non-U.S. Equity 

Fund, the Aon Hewitt Inflation Strategy Fund, and the Aon Hewitt Core Plus Bond Fund. (The 

Plan’s Aon Hewitt funds no longer include “Aon Hewitt” in the fund name.) Defendants also 

replaced five of the Plan’s BlackRock collective investment trusts with those managed by State 

Street Global Advisors Trust Company (SSgA). 

41. Collective investment trusts are investment vehicles maintained by a bank that 

consist of pooled assets of “retirement, pension, profit sharing, stock bonus or other trusts 

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exempt from Federal income tax”. 29 C.F.R. §9.18(a)(2). A collective investment trust is similar 

to a mutual fund or other pooled investment vehicle because it also invests in a variety of 

securities to create a diversified investment portfolio. 

42. As a non-depository bank, Aon Trust Company LLC maintains the Aon Hewitt 

collective investment trusts and is the trustee of the funds. Both Aon Trust Company and Aon 

Hewitt are wholly owned subsidiaries of Aon Consulting, Inc. Aon Trust Company hired Aon 

Hewitt—effectively hired itself—as the investment adviser to perform investment advisory and 

investment management services with respect to each fund. 

43. Aon Trust Company and Aon Hewitt did not offer collective investment trusts to 

investors until October 2013.5

 Prior to that date, Aon Hewitt had not served as an investment 

manager of any collective investment trust provided to defined contribution plans. Aon Hewitt 

therefore had a limited track record as an investment manager prior to the inclusion of the Aon 

Hewitt funds in the Plan. 

44. Aon Hewitt does not actually manage the assets of the Aon Hewitt collective 

investment trusts. Aon Hewitt hires one or more unaffiliated investment managers (or subadvisors) to do the actual investing. Upon hiring the manager or sub-advisor, the assets of the 

Aon Hewitt collective investment trusts are invested in other investment vehicles, such as a 

mutual fund or collective investment trust, managed by the unaffiliated investment manager. Aon 

Hewitt collects an investment “advisory” fee charged to fund investors for its services in hiring 

the manager or sub-advisor, and Aon Trust Company charges an additional trustee fee. This 

structure results in investors paying multiple layers of fees, including an investment “advisory” 

fee to Aon Hewitt even though Aon Hewitt is not doing the actual selection of securities. 

5 E.g., Aon Hewitt Collective Investment Trust Offering Statement, Oct. 2016, at 61–62 (“Oct. 2016 

Offering Stmt.”); Aon Investments USA Inc., Form ADV Part 2A, Mar. 25, 2020, at 9. 

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45. Defendants failed to conduct an independent investigation into the merits of the 

Aon Hewitt collective investment trusts prior to placing them in the Plan. Besides being Aon 

Hewitt funds selected by Aon Hewitt, the funds had a limited performance history of less than 

three years when Defendants decided to include them in the Plan. Over that limited history, all of 

the Aon Hewitt collective investment trusts underperformed the benchmarks selected by Aon 

Hewitt and their style-specific benchmarks. They also underperformed the comparable Plan 

mutual funds they replaced, which had established investment histories. As alleged in further 

detail infra, placing these funds in the Plan violated prudent fiduciary standards governing the 

selection, monitoring, and removal of Plan investments. 

46. As the investment adviser of these collective investment trusts, Aon Hewitt had a 

direct conflict of interest between acting in the exclusive best interest of Plan participants as the 

Plan’s discretionary investment manager while also seeking to grow its collective investment 

trust business and maximize its revenue through investment advisory fees. Plan participants were 

not informed that Aon Hewitt was the entity that selected these investments. Plan participants 

also were not informed of the internal decision-making process that Defendants employed prior 

to selecting the Aon Hewitt funds. 

47. Following the decision to add the proprietary Aon Hewitt funds to the Plan, Aon 

Hewitt has earned substantial revenue from the investment advisory fees charged on the funds. 

Moreover, by causing the Plan to invest in its funds, Aon Hewitt dramatically increased its assets 

under management for these funds. For instance, the Plan’s investment in the Aon Hewitt Large 

Cap Equity Fund and the Aon Hewitt Small & Mid Cap Equity Fund more than doubled the 

assets previously invested these funds. Aon Hewitt’s collective investment trust business 

therefore has materially benefitted from the Plan’s immediate and substantial investment of 

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17 

hundreds of millions of dollars in Aon Hewitt’s proprietary funds. 

II. A prudent and loyal fiduciary would not have invested in Aon Hewitt’s proprietary 

actively managed funds, which had insufficient performance histories and were 

plainly inferior to the funds they replaced and other options in the market. 

The Aon Hewitt Large Cap Equity Fund (Class 1) 

48. Effective October 3, 2016, Defendants added the proprietary Aon Hewitt Large 

Cap Equity Fund (Class 1) to the Plan, which replaced the MFS Large Cap Value (R5) (MEIKX) 

and the T. Rowe Price Inst’l Large Cap Core Growth Fund (TPLGX). Defendants mapped over 

$90 million invested in those funds to the Aon Hewitt Large Cap Equity Fund.6

 “Mapping” 

refers to the process where the fund assets are sold, and the proceeds are transferred to the new 

investment option where they are reinvested. 

49. The Aon Hewitt Large Cap Equity Fund is still an investment option in the Plan. 

Using an active investment management strategy, the Fund seeks to achieve long-term growth of 

capital by investing in a diversified portfolio of primarily large-capitalization U.S. companies. 

Morningstar, Inc. is a leading provider of investment research and investment services, and is 

relied on by industry professionals. Defendants informed Plan participants of each fund’s 

Morningstar asset category. Morningstar classifies the Aon Hewitt Large Cap Equity Fund in the 

large cap growth asset category and uses the Russell 1000 Growth Index as its style-specific 

benchmark. The Russell 1000 Growth Index measures the performance of the large-cap growth 

segment of the U.S. equity universe. Of the 1,000 largest companies based on market cap, the 

index includes a subset of those companies that exhibit higher price-to-book ratios and higher 

forecasted growth values. 

50. In an active investment strategy, the investment manager uses her judgment in 

6

 According to the Plan’s Form 5500, as of December 31, 2015, approximately $53 million was 

invested in the T. Rowe Price fund and $38 million in the MFS fund. 

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buying and selling individual securities (e.g., stocks, bonds, etc.) in an attempt to generate 

investment returns that surpass a benchmark index, net of fees, which are higher in actively 

managed than passively managed funds. In a passive investment strategy, the investment 

manager attempts to match the performance of a given benchmark index by holding a 

representative sample of securities in that index. Because no stock selection or research is 

necessary for the manager to track the index and trading is limited, passively managed 

investments charge significantly lower fees for investment management services. 

51. In light of the effect of fees on expected returns, fiduciaries must carefully 

consider whether the added cost of actively managed funds is realistically justified by an 

expectation of higher returns. RESTATEMENT (THIRD) OF TRUSTS ch. 17, intro. note; id. § 90 cmt. 

h(2). Nobel Prize winners in economics have concluded that virtually no investment manager 

consistently beats the market over time after fees are taken into account. “Properly measured, the 

average actively managed dollar must underperform the average passively managed dollar, net of 

costs.” William F. Sharpe, The Arithmetic of Active Management, 47 FIN. ANALYSTS J. 7, 8 

(Jan./Feb. 1991);7 Eugene F. Fama & Kenneth R. French, Luck Versus Skill in the Cross-Section 

of Mutual Fund Returns, 65 J. FIN. 1915, 1915 (2010) (“After costs . . . in terms of net returns to 

investors, active investment must be a negative sum game.”). 

52. To the extent managers show any sustainable ability to beat the market, the 

outperformance is nearly always dwarfed by fund expenses. Fama & French, Luck Versus Skill in 

the Cross-Section of Mutual Fund Returns, at 1931–34; see also Russ Wermers, Mutual Fund 

Performance: An Empirical Decomposition into Stock-Picking Talent, Style, Transaction Costs, 

7

 https://www.tandfonline.com/doi/10.2469/faj.v47.n1.7. 

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and Expenses, 55 J. FIN. 1655, 1690 (2000) (“on a net-return level, the funds underperform broad 

market indexes by one percent per year”). 

53. If an individual high-cost mutual fund exhibits market-beating performance over a 

short period of time, studies demonstrate that outperformance during a particular period is not 

predictive of whether a mutual fund will perform well in the future. Laurent Barras et al., False 

Discoveries in Mutual Fund Performance: Measuring Luck in Estimated Alphas, 65 J. FIN. 179, 

181 (2010); Mark M. Carhart, On Persistence in Mutual Fund Performance, 52 J. FIN. 57, 57, 59 

(1997) (measuring thirty-one years of mutual fund returns and concluding that “persistent 

differences in mutual fund expenses and transaction costs explain almost all of the predictability 

in mutual fund returns”). But the worst-performing mutual funds show a strong, persistent 

tendency to continue their poor performance. Carhart, On Persistence in Mutual Fund 

Performance, at 57. 

54. Accordingly, investment costs are of paramount importance to prudent investment 

selection. A prudent fiduciary would not select as a plan investment option a more-expensive 

actively managed fund without determining that the fund is reasonably expected to outperform a 

cheaper index fund. 

55. When making investment decisions, prudent fiduciaries of defined contribution 

plans consider the performance history, portfolio manager experience, and manager tenure of 

available investment alternatives. A consistent performance history and investment strategy, 

among other factors, demonstrate the ability of the investment manager to generate consistently 

superior long-term investment results. At a minimum, prudent fiduciaries require a five-year 

performance history for an investment option prior to its inclusion in a 401(k) plan. 

56. The Aon Hewitt Large Cap Equity Fund did not have a sufficient performance 

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record when it was added to the Plan. The Fund was created on October 1, 2013.8 It therefore 

had only three years of history when it was added to the Plan, and less than three years when 

Defendants decided to add it to the Plan. As of June 30, 2016, the Aon Hewitt Fund 

underperformed the benchmark identified by Aon Hewitt (S&P 500 Index) every year of its short 

existence, including by 267 bps since inception.9 In comparison to its style-specific large cap 

growth benchmark (Russell 1000 Growth Index), the Aon Hewitt Fund underperformed by 100 

bps in 2014, and 667 bps in 2015. Over that two-year period, the Fund underperformed the 

Plan’s existing large cap growth option (the T. Rowe Price Inst’l Large Cap Core Growth Fund). 

For the most recent calendar year before it was included in the Plan, the Aon Hewitt Fund 

dramatically underperformed the T. Rowe Price fund by 1,234 bps.

57. Prior to its removal in October 2016, the T. Rowe Price Inst’l Large Cap Core 

Growth Fund was a Plan investment option since 2011. The T. Rowe Price fund is comparable to 

the Aon Hewitt Large Cap Equity Fund as shown by Defendants’ decision to map its assets to 

the Aon Hewitt Large Cap Equity Fund. Like the Aon Hewitt Fund, Morningstar classifies the T. 

Rowe Price Inst’l Large Cap Core Growth Fund in the large cap growth asset category and 

identifies the Russell 1000 Growth Index as its style-specific benchmark. The T. Rowe Price 

fund had a consistent history of outperforming its benchmark and peers. As of December 31, 

2015, the fund outperformed the S&P 500 Index and its style-specific benchmark (Russell 1000 

Growth Index) over one-, five-, and ten-year periods.10 And as of June 30, 2016, the fund 

outperformed the S&P 500 Index over three-, five-, and ten-year periods. From 2011 through 

8

 Oct. 2016 Offering Stmt. at 62. 

9 Id. 10 T. Rowe Price Institutional Equity Funds, Inc., Form N-1A, May 1, 2016, 

https://www.sec.gov/Archives/edgar/data/1012968/000101296816000020/ief485b.htm#1_2; T. Rowe 

Price Institutional Funds, Inc., Form N-CSR, Dec. 31, 2015, 

https://www.sec.gov/Archives/edgar/data/1012968/000120677416004567/arlcc_ncsr.htm. 

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2015, the T. Rowe Price fund ranked in the top decile to quartile of its peer group for four out of 

those five years. T. Rowe Price also charged fees comparable to Aon Hewitt. 

58. The Aon Hewitt Large Cap Equity Fund was also inferior to other comparable 

funds in the market, such as the Vanguard Growth Index Fund (Instl) (VIGIX), a passively 

managed large cap growth index fund. Like the Aon Hewitt Large Cap Equity Fund, Morningstar 

classifies the Vanguard index fund in the large cap growth asset category and uses the Russell 

1000 Growth Index as its benchmark. From 2014 through 2019, the Vanguard index fund 

charged 4 to 8 bps, while Aon Hewitt charged approximately 44 to 47 bps for the Aon Hewitt 

Large Cap Equity Fund (Class 1), up to 488% more.11 For the two calendar years that the Aon 

Hewitt Large Cap Equity Fund had an actual performance history, the Large Cap Equity Fund 

substantially underperformed the Vanguard index alternative by 157 bps in 2014, and 433 bps in 

2015.12

59. Because the Aon Hewitt Large Cap Equity Fund had an insufficient performance 

history and Aon Hewitt was unable to successfully manage the strategy by generating investment 

returns that exceeded its style-specific benchmark or a passively managed equivalent, 

Defendants failed to make a reasoned decision that adding the actively managed Aon Hewitt 

Large Cap Equity Fund to the Plan was in the best interest of Plan participants or prudent, and 

failed to determine whether participants would be better served by other prudent and better 

performing alternatives available to the Plan after considering all relevant factors. The decision 

to include the Aon Hewitt Fund in the Plan only served to benefit Aon Hewitt. 

11 Oct. 2016 Offering Stmt. at 57; Aon Hewitt Collective Investment Trust Offering Statement, June 

2019, at 65 (“June 2019 Offering Stmt.”); Astellas US Retirement and Savings Plan Participant 

Disclosure Notice, May 14, 2020, at 7 (“Astellas Fee Disclosure”); Morningstar. 

12 Unless otherwise indicated, for purposes of performance comparisons and damages calculations in 

this complaint, the lower-cost Class I shares were used for the Plan’s Aon Hewitt collective investment 

trusts. 

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60. Since the Aon Hewitt Large Cap Equity Fund was included in the Plan, it has 

underperformed both its style-specific benchmark and passively managed equivalents. By 

including the Aon Hewitt Large Cap Equity Fund in the Plan, Defendants caused Plan 

participants to lose over $15.6 million of their retirement savings as measured by the difference 

in the investment returns between Aon Hewitt Large Cap Equity Fund and the Vanguard Growth 

Index Fund (VIGIX). This is a conservative estimate of the Plan’s losses. Compared to the 

performance of the T. Rowe Price Inst’l Large Cap Core Growth Fund (TPLGX), which 

Defendants should have retained as the Plan’s actively managed large cap growth option rather 

than using the Aon Hewitt Large Cap Equity Fund, Plan participants lost in excess of $28.5 

million of their retirement savings. 

The Aon Hewitt Small & Mid Cap Equity Fund (Class 1) 

61. Effective October 3, 2016, Defendants added the proprietary Aon Hewitt Small & 

Mid Cap Equity Fund (Class 1) to the Plan. The Aon Hewitt Fund replaced three investment 

options in the Plan: the Touchstone Mid Cap Value Fund (Instl) (TCVIX), the AMG 

TimesSquare Mid Cap Growth Fund (Instl) (TMDIX), and the DFA Small Cap Fund (I) 

(DFSTX). Defendants mapped over $63.2 million invested in those three funds to the Aon 

Hewitt Small & Mid Cap Equity Fund.13 

62. The Aon Hewitt Small & Mid Cap Equity Fund is still an investment option in the 

Plan. Using an active investment management strategy, the Fund seeks to achieve long-term 

growth of capital by investing in a diversified portfolio of primarily small and mid-sized U.S. 

companies. Morningstar classifies the Fund in the mid-cap growth asset category and uses the 

Russell Mid Cap Growth Index as its style-specific benchmark. The Russell Mid Cap Growth 

13 According to the Plan’s Form 5500, as of December 31, 2015, $11.7 million was invested in the 

Touchstone fund, $30.5 million in the AMG fund, and $21.1 in the DFA fund. 

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Index measures the performance of the mid-cap growth segment of the U.S. equity universe. Of 

the approximately 800 of the smallest securities based on their market cap, the index includes a 

subset of those companies that exhibit higher price-to-book ratios and higher forecasted growth 

values. 

63. The Aon Hewitt Small & Mid Cap Equity Fund did not have a sufficient 

performance record when it was added to the Plan. Aon Hewitt first offered the Fund on October 

1, 2013.14 The Fund therefore had only three years of performance at the time it was included in 

the Plan, and less than three years of history when Defendants decided to add it to the Plan. As of 

June 30, 2016, the Fund underperformed the benchmark identified by Aon Hewitt (Russell 2500 

Index) over all reporting periods, including 166 bps since inception.15 For 2014 and 2015, the 

Fund also underperformed the style-specific mid-cap growth index (Russell Mid Cap Growth 

Index) by 650 bps and 410 bps, respectively. 

64. For the two full calendar years that the Aon Hewitt Small & Mid Cap Equity 

Fund had an actual performance record (2014 and 2015), the Fund also underperformed the 

Plan’s existing AMG TimesSquare Mid Cap Growth Fund (TMDIX), which was a mid-cap 

growth fund benchmarked to the Russell Mid Cap Growth Index. Prior to its removal in October 

2016, the AMG TimesSquare fund was a Plan investment option since at least 2010. As of June 

30, 2016, the AMG TimesSquare fund outperformed its benchmark over one-, five-, and ten-year 

periods. For the five-year period from 2011 through 2015, the fund ranked in the 36th percentile 

or better in its peer group for four out of those five years. 

65. The Aon Hewitt Small & Mid Cap Equity Fund was also inferior to other 

comparable funds in the market, such as the Vanguard Mid-Cap Growth Index Fund (Adm) 

14 Oct. 2016 Offering Stmt. at 62. 

15 Id. 

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(VMGMX), a passively managed mid-cap growth index fund. Like the Aon Hewitt Fund, 

Morningstar classifies the Vanguard index fund in the mid-cap growth asset category and uses 

the Russell Mid Cap Growth Index as its benchmark. From 2014 through 2019, the Vanguard 

index fund charged 7 to 9 bps compared to 70 to 73 bps charged by Aon Hewitt, which is up to 

711% more.16 For the two full calendar years that the Aon Hewitt Small & Mid Cap Equity Fund 

had an actual performance history (2014 and 2015), the Aon Hewitt Fund substantially 

underperformed the Vanguard index alternative by 808 bps and 332 bps, respectively. 

66. Because the Aon Hewitt Small & Mid Cap Equity Fund had an insufficient 

performance history and Aon Hewitt was unable to successfully manage the strategy by 

generating investment returns that exceeded its style-specific benchmark or a passively managed 

equivalent, Defendants failed to make a reasoned decision that adding the actively managed 

Fund to the Plan was in the best interest of Plan participants or prudent, and failed to determine 

whether participants would be better served by other prudent and better performing alternatives 

available to the Plan after considering all relevant factors. The decision to include the Aon 

Hewitt Fund in the Plan only served to benefit Aon Hewitt. 

67. Since the Aon Hewitt Small & Mid Cap Equity Fund was included in the Plan, it 

has underperformed both its style-specific benchmark and passively managed equivalents. By 

including the Aon Hewitt Small & Mid Cap Equity Fund in the Plan, Defendants caused Plan 

participants to lose in excess of $15.8 million of their retirement savings as measured by the 

difference in investment returns between the Aon Hewitt Small & Mid Cap Equity Fund and the 

Vanguard Mid-Cap Growth Index Fund (VMGMX). This is a conservative estimate of the Plan’s 

losses. Compared to the AMG TimesSquare Mid Cap Growth Fund (TMDIX), which Defendants 

16 Oct. 2016 Offering Stmt. at 57; June 2019 Offering Stmt. at 65; Astellas Fee Disclosure at 8; 

Morningstar. 

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should have retained as the Plan’s actively managed mid cap growth option rather than using the 

Aon Hewitt Small & Mid Cap Equity Fund, Plan participants lost in excess of $20.8 million of 

their retirement savings. 

The Aon Hewitt Non-U.S. Equity Fund (Class 1) 

68. Effective October 3, 2016, Defendants replaced the American Funds EuroPacific 

Growth Fund (R6) (RERGX) with the proprietary Aon Hewitt Non-U.S. Equity Fund (Class 1). 

From the American Funds mutual fund, Defendants mapped over $39.6 million in assets to the 

Aon Hewitt Non-U.S. Equity Fund.17 

69. The Aon Hewitt Non-U.S. Equity Fund is still an investment option in the Plan. 

Using an active investment management strategy, the Fund seeks to achieve long-term growth of 

capital by investing in a diversified portfolio of primarily non-U.S. equity securities. Morningstar 

classifies the Fund in the foreign large cap growth asset category and uses the Morgan Stanley 

Capital International All Country World Index Excluding U.S. Growth Index (MSCI ACWI ExUS Growth Index) as its style-specific benchmark. The MSCI benchmark index captures large 

and mid-cap securities exhibiting growth style characteristics across 22 developed markets 

countries (excluding the United States) and 26 emerging markets countries. 

70. The Aon Hewitt Non-U.S. Equity Fund did not have a sufficient performance 

record when it was added to the Plan. Aon Hewitt first offered the Fund on October 1, 2013.18

The Fund therefore had only three years of performance at the time it was included in the Plan, 

and had less than three years of history when Defendants decided to add it to the Plan. As of June 

30, 2016, the Fund underperformed the benchmark identified by Aon Hewitt (MSCI ACWI Ex17 Amount reported in the Plan’s Form 5500 as of December 31, 2015. 

18 Oct. 2016 Offering Stmt. at 62. 

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US Index) for the quarter, year-to-date and one year.19 In 2014 and 2015, the Aon Hewitt NonU.S. Equity Fund underperformed its style-specific benchmark (MSCI ACWI Ex-US Growth 

Index) by 178 bps and 160 bps, respectively. 

71. For the two full calendar years that the Aon Hewitt Non-U.S. Equity Fund had an 

actual performance history (2014 and 2015), the Fund substantially underperformed the Plan’s 

existing American Funds EuroPacific Growth Fund (RERGX) by 178 bps and 299 bps, 

respectively. The American Funds EuroPacific Growth Fund was added to the Plan during 2010. 

The fund is comparable to the Aon Hewitt Non-U.S. Equity Fund as shown by Defendants’ 

decision to map its assets to the Aon Hewitt Fund and their use of the same benchmark index 

(MSCI ACWI Ex-US Growth Index) to evaluate the performance of the fund. It also had a 

consistent history of outperforming its benchmark and peers. As December 31, 2015, the fund 

outperformed the benchmark (MSCI ACWI Ex-US Index) over one-, five-, and ten-year 

periods.20 In addition, as of June 30, 2016, the fund outperformed the MSCI ACWI Ex-US 

Growth Index over one-, three-, and five-year periods. From 2011 through 2015, the American 

Funds fund ranked in the 40th percentile or better among its peers in four out of those five years. 

The American Funds EuroPacific Growth Fund also charged fees comparable to the Aon Hewitt 

Fund before it was removed from the Plan.21

72. The Aon Hewitt Non-U.S. Equity Fund was also inferior to other comparable 

funds in the market, such as the Vanguard Total World Stock Index Fund (Instl) (VTWIX). The 

Vanguard index fund is a passively managed foreign index fund that provides shareholders broad 

19 Id.

20 EuroPacific Growth Fund, Form N-1A, Dec. 31, 2015, 

https://www.sec.gov/Archives/edgar/data/719603/000005193116002500/eupac485b.htm. Because R6 

shares did not have ten years of performance, the 

21 Astellas US Retirement and Saving Plan, Your Guide to Upcoming 401(k) Transition, at 18 

(“Transition Guide”); Morningstar. 

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exposure to stock markets around the world, including developed and emerging markets. From 

2014 through 2019, the Vanguard index fund charged 8 to 15 bps compared to approximately 42 

to 47 bps charged by Aon Hewitt, which is up to 213% more.22 The Vanguard index fund 

therefore is a reasonable lower-cost alternative to the Aon Hewitt Non-U.S. Equity Fund. For the 

two full calendar years that the Aon Hewitt Fund had an actual performance history (2014 and 

2015), the Fund substantially underperformed the Vanguard index alternative by 807 bps and 64 

bps, respectively. 

73. Because the Aon Hewitt Non-U.S. Equity Fund had an insufficient performance 

history and Aon Hewitt was unable to successfully manage the strategy by generating investment 

returns that exceeded its style-specific benchmark or a passively managed equivalent, 

Defendants failed to make a reasoned decision that adding the actively managed Fund to the Plan 

was in the best interest of Plan participants or prudent, and failed to determine whether 

participants would be better served by other prudent and better performing alternatives available 

to the Plan after considering all relevant factors. The decision to include the Aon Hewitt Fund in 

the Plan only served to benefit Aon Hewitt. 

74. Since the Aon Hewitt Non-U.S. Equity Fund was included in the Plan, it has 

underperformed both its style-specific benchmark and passively managed equivalents. By 

including the Aon Hewitt Non-U.S. Equity Fund in the Plan, Defendants caused Plan participants 

to lose substantial retirement savings as measured by the difference in investment returns 

between the Aon Hewitt Non-U.S. Equity Fund and the Vanguard Total World Stock Index Fund 

(VTWIX). This is a conservative estimate of the Plan’s losses. Compared to the American Funds 

EuroPacific Growth Fund (RERGX), which Defendants should have retained as the Plan’s 

22 June 2019 Offering Stmt. at 65; Oct. 2016 Offering Stmt. at 58; Astellas Fee Disclosure at 6; 

Morningstar. 

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actively managed foreign investment option rather than using the Aon Hewitt Non-U.S. Fund, 

Plan participants lost even more of their retirement savings. 

The Aon Hewitt Inflation Strategy Fund (Class 1) 

75. Effective October 3, 2016, Defendants replaced the PIMCO Real Return Fund 

(Instl) (PRRIX) with the proprietary Aon Hewitt Inflation Strategy Fund (Class 1). From the 

PIMCO fund, Defendants mapped over $9.3 million in assets to the Aon Hewitt Inflation 

Strategy Fund.23 

76. The Aon Hewitt Inflation Strategy Fund is still an investment option in the Plan. 

Using an active investment management strategy, the Fund seeks to provide total return in excess 

of inflation by primarily investing in debt securities, including Treasury Inflation-Protected 

Securities. Morningstar classifies the Fund in the inflation-protected bond asset category and 

identifies the Barclays U.S. Treasury Inflation Protected Securities (“TIPS”) Index as its 

benchmark. 

77. The Aon Hewitt Inflation Strategy Fund did not have a sufficient performance 

record when it was added to the Plan. Aon Hewitt first offered the Fund on October 1, 2013.24

The Fund therefore had only three years of performance at the time it was included in the Plan, 

and had less than three years of history when Defendants decided to add it to the Plan. As of June 

30, 2016, the Fund underperformed its custom benchmark developed by Aon Hewitt over all 

reporting periods.25 For the two full calendar years the Fund had an actual performance record 

(2014 and 2015), the Aon Hewitt Inflation Strategy Fund also substantially underperformed the 

Barclays U.S. TIPS benchmark index by 367 bps and 366 bps, respectively. Moreover, over that 

23 Amount reported in the Plan’s Form 5500 as of December 31, 2015. 

24 Oct. 2016 Offering Stmt. at 61 (Class I Shares). 

25 Id.

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time period, the Fund underperformed the Plan’s existing PIMCO Real Return Fund (PRRIX) by 

345 to 235 bps annually, which was a comparable inflation-protected bond fund benchmarked to 

the same index. 

78. The Aon Hewitt Inflation Strategy Fund was also inferior to other comparable 

funds in the market, such as the Vanguard Inflation-Protected Securities Fund (Instl) (VIPIX). 

Like the Aon Hewitt Fund, the Vanguard fund invests in Treasury inflation-protected securities. 

Morningstar also classifies the Vanguard fund in the inflation-protected bond asset category and 

uses the Barclays U.S. TIPS Index as its benchmark. Since before 2015, the Vanguard fund 

charged 7 bps, while Aon Hewitt charged approximately 20 to 26 bps for the Inflation Strategy 

Fund, which is up to 271% more.26 For the two full calendar years that the Aon Hewitt Inflation 

Strategy Fund had an actual performance history (2014 and 2015), the Fund substantially 

underperformed the Vanguard alternative by 410 to 343 bps annually. 

79. Because the Aon Hewitt Inflation Strategy Fund had an insufficient performance 

history and Aon Hewitt was unable to successfully manage the strategy by generating investment 

returns that exceeded its benchmark or a passively managed equivalent, Defendants failed to 

make a reasoned decision that adding the actively managed Fund to the Plan was in the best 

interest of Plan participants or prudent, or whether participants would be better served by other 

prudent and better performing alternatives available to the Plan after considering all relevant 

factors. The decision to include the Aon Hewitt Inflation Strategy Fund in the Plan only served 

to benefit Aon Hewitt. 

80. Since the Aon Hewitt Inflation Strategy Fund was included in the Plan, it has 

underperformed both its benchmark and passively managed equivalents. By including the Aon 

26 Oct. 2016 Offering Stmt. at 57; June 2019 Offering Stmt. at 65; Astellas Fee Disclosure at 10; 

Morningstar. 

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Hewitt Inflation Strategy Fund in the Plan, Defendants caused Plan participants to lose 

retirement savings as measured by the difference in investment returns between the Aon Hewitt 

Inflation Strategy Fund and the Vanguard Inflation-Protected Securities Fund (VIPIX). This is a 

conservative estimate of the Plan’s losses. Plan participants would not have lost even more of 

their retirement savings had Defendants retained the PIMCO Real Return Fund (PRRIX) rather 

than replacing this fund with the Aon Hewitt Inflation Strategy Fund. 

The Aon Hewitt Core Plus Bond Fund (Class 1) 

81. Effective October 3, 2016, Defendants replaced the PIMCO Total Return Fund 

(Instl) (PTTRX) with the proprietary Aon Hewitt Core Plus Bond Fund (Class 1). From the 

PIMCO fund, Defendants mapped over $39.3 million in assets to the Aon Hewitt Core Plus 

Bond Fund.27 

82. The Aon Hewitt Core Plus Bond Fund is still an investment option in the Plan. 

Using an active investment management strategy, the Fund seeks to achieve a total return from 

current income and capital appreciation by investing in a diversified portfolio of fixed income 

securities. Morningstar classified the Fund in the intermediate-term bond asset category and 

identifies the Barclays U.S. Aggregate Bond Index as its benchmark. The Barclays U.S. 

Aggregate Bond Index measures the performance of investment grade, U.S. dollar-denominated, 

fixed-rate taxable bonds, including Treasuries, government-related and corporate securities, and 

mortgage-backed securities. 

83. The Aon Hewitt Core Plus Bond Fund did not have a sufficient performance 

record when it was added to the Plan. Aon Hewitt first offered the Fund on October 1, 2013.28

The Fund therefore had only three years of performance at the time it was included in the Plan, 

27 Amount reported in the Plan’s Form 5500 as of December 31, 2015. 

28 Oct. 2016 Offering Stmt. at 62. 

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and had less than three years of history when Defendants decided to add it to the Plan. As of June 

30, 2016, the Fund underperformed its custom benchmark developed by Aon Hewitt over all 

reporting periods.29 For the 2014 and 2015, the Fund also underperformed the Barclays U.S. 

Aggregate Bond Index by 87 bps and 60 bps, respectively. In addition, over that two-year period, 

the Fund underperformed the Plan’s existing PIMCO Total Return Fund (PTTRX), which was a 

comparable intermediate-term bond fund benchmarked to that same index. 

84. The Aon Hewitt Core Plus Bond Fund was also inferior to other comparable 

funds in the market, such as the Vanguard Intermediate-Term Bond Index Fund (Instl Plus) 

(VBIUX), a passively managed intermediate-term bond fund. Morningstar classified the 

Vanguard index fund in the intermediate-term bond asset category and uses the Barclays U.S. 

Aggregate Bond Index as its benchmark. From 2014 through 2019, the Vanguard index fund 

charged 4 to 5 bps compared to approximately 25 to 34 bps charged by Aon Hewitt, which is up 

to 750% more.30 For the two full calendar years that the Aon Hewitt Core Plus Bond Fund had 

an actual performance history (2014 and 2015), the Aon Hewitt Fund substantially 

underperformed the Vanguard index alternative by 186 bps and 132 bps, respectively. 

85. Because the Aon Hewitt Core Plus Bond Fund had an insufficient performance 

history and Aon Hewitt was unable to successfully manage the strategy by generating investment 

returns that exceeded its benchmark or a passively managed equivalent, Defendants failed to 

make a reasoned decision that adding the actively managed Fund to the Plan was in the best 

interest of Plan participants or prudent, or whether participants would be better served by other 

prudent and better performing alternatives available to the Plan after considering all relevant 

factors. The decision to include the Aon Hewitt Fund in the Plan only served to benefit Aon 

29 Id.

30 June 2019 Offering Stmt. at 65; Astellas Fee Disclosure at 10; Transition Guide at 17; Morningstar. 

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32 

Hewitt. 

86. Since the Aon Hewitt Core Plus Bond Fund was included in the Plan, it has 

underperformed both its benchmark and passively managed equivalents. By including the Aon 

Hewitt Core Plus Bond in the Plan, Defendants caused Plan participants to lose substantial 

retirement savings as measured by the difference in investment returns between the Aon Hewitt 

Core Plus Bond Fund and the Vanguard Intermediate-Term Bond Index Fund (VBIUX). Plan 

participants also would not have lost retirement savings had Defendants retained the PIMCO 

Total Return Fund (PTTRX) rather than replacing this fund with the Aon Hewitt Core Plus Bond 

Fund. 

III. The Astellas Defendants breached their fiduciary duties by causing the Plan to pay 

unreasonable investment management fees. 

87. When providing investments to plan participants, the importance of fees cannot be 

overstated. Indeed, “the duty to avoid unwarranted costs is given increased emphasis in the 

prudent investor rule” under the common law of trusts, which informs ERISA’s fiduciary duties. 

RESTATEMENT (THIRD) OF TRUSTS ch. 17, intro. note (2007); see Tibble, 135 S. Ct. at 1828 

(citing RESTATEMENT (THIRD) OF TRUSTS §90 in finding a continuing duty to monitor under 

ERISA). As the Restatement explains, “cost-conscious management is fundamental to prudence 

in the investment function.” RESTATEMENT (THIRD) OF TRUSTS §90 cmt. b. 

88. It is a simple principle of investment management that the larger amount an 

investor has available to invest, the lower the investment management fees that can be obtained 

in the market for a given investment vehicle. Large retirement plans have substantial bargaining 

power to negotiate low fees for investment management services through separately managed 

accounts, collective investment trusts, and lower-cost share classes for mutual fund and 

collective investment trust investments. 

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89. Mutual funds and collective investment trusts frequently offer multiple share 

classes. Retail share classes are marketed to individuals with small amounts to invest. 

Institutional share classes are offered to investors with large amounts to invest, such as large 

retirement plans. The different share classes of a given mutual fund or collective trust have the 

identical manager, are managed identically, invest in the same portfolio of securities, and 

allocate their assets the same. The only difference is that the retail shares charge significantly 

higher fees, resulting in retail class investors receiving lower returns. The share classes are 

otherwise identical in all respects. 

90. Because the only difference between the share classes is fees, selecting highercost shares results in the plan paying wholly unnecessary fees. Accordingly, absent a compelling 

reason to opt for the higher-cost version, prudent fiduciaries will select the lowest-cost share 

class available to the plan. As a prominent legal counsel to defined contribution fiduciaries 

explained: 

The fiduciaries also must consider the size and purchasing power of their plan and 

select the share classes (or alternative investments) that a fiduciary who is 

knowledgeable about such matters would select under the circumstances. In other 

words, the “prevailing circumstances”—such as the size of the plan—are a part of 

a prudent decision making process. The failure to understand the concepts and to 

know about the alternatives could be a costly fiduciary breach.31

91. Given the Plan was as a large plan based on its size, the Plan had tremendous 

bargaining power to obtain share classes with far lower costs than higher-cost shares. Lower-cost 

share classes of the Plan’s investments were readily available. To the extent the Plan’s 

investments advertised minimum investment thresholds for the lowest-cost institutional shares, 

the investment provider would have waived those requirements based on the Plan’s size, if the 

31 Fred Reish, Class–ifying Mutual Funds, PLANSPONSOR, Jan. 2011, 

http://www.plansponsor.com/MagazineArticle.aspx?id=6442476537. 

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34 

Astellas Defendants had requested such a waiver. See Tibble v. Edison Int’l, No. 07-5359, 2010 

WL 2757153, at *9 (C.D. Cal. July 8, 2010), affirmed 729 F.3d 1110 (9th Cir. 2013) (finding 

based on evidence at trial that “mutual funds will often waive an investment minimum for 

institutional share classes” for large 401(k) plans, and that “[i]t is also common for investment 

advisors representing large 401(k) plans to call mutual funds and request waivers of the 

investment minimums so as to secure the institutional shares.”). 

92. Fund providers explicitly acknowledge the ability of plan fiduciaries to negotiate 

for lower-cost shares. For instance, Vanguard recognizes this ability and expressly “reserves the 

right to establish higher or lower minimum amounts for certain investors”, including when the 

“plan sponsor’s aggregate assets within the Vanguard Funds will likely generate substantial 

economies in the servicing of their accounts.”32

93. The Astellas Defendants had the fiduciary authority or responsibility over the 

selection and retention of the share class used for each of the Plan’s investments. Aon Hewitt 

expressly disclaimed any responsibility over the selection of share classes for the Plan’s 

investments. Despite the fact that lower-cost shares for the exact same investment option were 

available to the Plan, the Astellas Defendants selected and continue to maintain higher-cost 

shares for Plan investment options than were available to the Plan based on its substantial size. 

94. In connection with restructuring the Plan’s investment lineup in October 2016, the 

Astellas Defendants represented to Plan participants that Astellas was “making available the 

lowest overall cost share class of each fund”.33 By selecting and maintaining higher-cost share 

classes for certain Plan investments thereafter, the Astellas Defendants acted contrary to that 

32 See Vanguard Funds Multiple Class Plan, 

https://www.sec.gov/Archives/edgar/data/1409957/000093247113007109/multipleclassplanvanguardfun.

pdf. 

33 Transition Guide at 6 (emphasis added). 

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35 

express representation made to Plan participants. 

95. . The Astellas Defendants selected and retained the Class 1 shares of the five Aon 

Hewitt collective investment trusts included in the Plan. The Astellas Defendants made this 

decision even though lower-cost Class I shares were available for 10 bps less for each 

investment.34 This caused Plan participants to pay up to 100% more for the exact same 

investment. 

96. By providing Plan participants the more expensive share classes of Plan 

investment options, the Astellas Defendants caused participants to lose amounts of their 

retirement savings.35 

CLASS ACTION ALLEGATIONS 

97. 29 U.S.C. §1132(a)(2) authorizes any participant or beneficiary of the Plan to 

bring an action individually on behalf of the Plan to enforce a breaching fiduciary’s liability to 

the Plan under 29 U.S.C. §1109(a). 

98. In acting in this representative capacity and to enhance the due process 

protections of unnamed participants and beneficiaries of the Plan, as an alternative to direct 

individual actions on behalf of the Plan under 29 U.S.C. §1132(a)(2), Plaintiffs seek to certify 

this action as a class action on behalf of all participants and beneficiaries of the Plan. Plaintiffs 

seek to certify, and to be appointed as representatives of, the following classes: 

Investment Loss Class: All participants in the Astellas US Retirement and Savings Plan 

whose Plan accounts invested in any of the Plan’s five Aon Collective Investment Trusts 

at any time between October 3, 2016 and June 30, 2020 and whose investment in at least 

one of the Aon Collective Investment Trusts earned less as of June 30, 2020 than the 

account would have earned had it been invested in the corresponding Legacy Investment 

34 Oct. 2016 Offering Stmt. at 57; June 2019 Offering Stmt. at 65. 

35 Plan losses will be carried forward using the investment return of an S&P 500 index fund, the 

Vanguard Institutional Index (VIIIX), to account for lost investment returns on those assets. 

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Option(s).36

Payment of Plan Assets Class: All participants in the Astellas US Retirement and 

Savings Plan whose Plan accounts invested in any of the Plan’s five Aon Collective 

Investment Trusts at any time between October 3, 2016 and June 30, 2020.37

Equitable Relief Class: All participants in the Astellas US Retirement and Savings Plan 

with account balances as of the date of judgment. 

99. This action meets the requirements of Rule 23 and is certifiable as a class action 

for the following reasons: 

a. The Classes include over 3,000 members and are so large that joinder of 

all its members is impracticable. 

b. There are questions of law and fact common to the Classes because 

Defendants owed fiduciary duties to the Plan and to all participants and beneficiaries and 

took the actions and made omissions alleged herein as to the Plan and not as to any 

individual participant. Thus, common questions of law and fact include the following, 

without limitation: who are the fiduciaries liable for the remedies provided by 29 U.S.C. 

§1109(a); whether the fiduciaries of the Plan breached their fiduciary duties to the Plan; 

what are the losses to the Plan resulting from each breach of fiduciary duty; and what 

Plan-wide equitable and other relief the court should impose in light of Defendants’ 

breaches of duty. 

c. Plaintiffs’ claims are typical of the claims of the Classes because each 

36 Excluded are members of the Board of Directors of Astellas US LLC (“Board”) and the Astellas 

Retirement Plan Administrative Committee (“Committee”). Plaintiffs define the term “Legacy Investment 

Option(s)” to comprise eight options: MFS Large Cap Value R5 (MEIKX); T. Rowe Price Institutional 

Large Cap Core Growth (TPLGX); AMG TimesSquare Mid Cap Growth Institutional (TMDIX); 

Touchstone Mid Cap Value Fund Institutional (TCVIX): DFA Small Cap Fund I (DFSTX); American 

Funds Europacific Growth R6 (RERGX); PGIM Total Return Fund R6 (PTRQX); and PIMCO Real 

Return Institutional (PRRIX).

37 Excluded are Board and Committee members. 

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37 

Plaintiff was a participant during the time period at issue in this action and all participants 

in the Plan were harmed by Defendants’ misconduct. 

d. Plaintiffs are adequate representatives of the Classes because they were 

participants in the Plan during the Class period, have no interest that is in conflict with 

any other member of the Classes, are committed to the vigorous representation of the 

Classes, and have engaged experienced and competent attorneys to represent the Classes. 

e. Prosecution of separate actions for these breaches of fiduciary duties by 

individual participants and beneficiaries would create the risk of (A) inconsistent or 

varying adjudications that would establish incompatible standards of conduct for 

Defendants in respect to the discharge of their fiduciary duties to the Plan and personal 

liability to the Plan under 29 U.S.C. §1109(a), and (B) adjudications by individual 

participants and beneficiaries regarding these breaches of fiduciary duties and remedies 

for the Plan would, as a practical matter, be dispositive of the interests of the participants 

and beneficiaries not parties to the adjudication or would substantially impair or impede 

those participants’ and beneficiaries’ ability to protect their interests. Therefore, this 

action should be certified as a class action under Rule 23(b)(1)(A) or (B). 

100. A class action is the superior method for the fair and efficient adjudication of this 

controversy because joinder of all participants and beneficiaries is impracticable, the losses 

suffered by individual participants and beneficiaries may be small and impracticable for 

individual members to enforce their rights through individual actions, and the common questions 

of law and fact predominate over individual questions. Given the nature of the allegations, no 

class member has an interest in individually controlling the prosecution of this matter, and 

Plaintiffs are aware of no difficulties likely to be encountered in the management of this matter 

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38 

as a class action. Alternatively, then, this action may be certified as a class under Rule 23(b)(3) if 

it is not certified under Rule 23(b)(1)(A) or (B). 

101. Plaintiffs’ counsel, Schlichter Bogard & Denton, LLP, will fairly and adequately 

represent the interests of the Classes and is best able to represent the interests of the Classes 

under Rule 23(g). Schlichter Bogard & Denton has been appointed as class counsel in over 30 

other ERISA class actions regarding excessive fees in large defined contribution plans. Courts in 

these cases have consistently and repeatedly recognized the firm’s unparalleled success in the 

area of defined contribution excessive fee litigation: 

 On November 3, 2016, Judge Michael Ponsor of the United States District Court for the 

District of Massachusetts found that by securing a $30.9 million settlement, Schlichter, 

Bogard & Denton had achieved an “outstanding result for the class,” and “demonstrated 

extraordinary resourcefulness, skill, efficiency and determination.” Gordan v. Mass 

Mutual Life Ins., Co., No. 14-30184, Doc. 144 at 5 (D. Mass. Nov. 3, 2016). 

 As Chief Judge Michael J. Reagan of the Southern District of Illinois recognized in 

approving a settlement which was reached on the eve of trial after eight years of 

litigation, resulting in a $62 million monetary recovery and very substantial affirmative 

relief to benefit the Plans, the firm had shown “exceptional commitment and 

perseverance in representing employees and retirees seeking to improve their retirement 

plans,” and “demonstrated its well-earned reputation as a pioneer and the leader in the 

field” of 401(k) plan excessive fee litigation. Abbott v. Lockheed Martin Corp., No. 06-

701, 2015 WL 43984750, at *1 (S.D. Ill. July 17, 2015). The court further recognized that 

the law firm of “Schlichter, Bogard & Denton has had a humongous impact over the 

entire 401(k) industry, which has benefited employees and retirees throughout the entire 

country by bringing sweeping changes to fiduciary practices.” Id. at *3 (internal 

quotations omitted). 

 Other courts have made similar findings: 

o “It is clear to the Court that the firm of Schlichter, Bogard & Denton is 

preeminent in the field” “and is the only firm which has invested such massive 

resources in this area.” George v. Kraft Foods Global, Inc., No. 08-3799, 2012 

WL 13089487, at *2 (N.D. Ill. June 26, 2012). 

o “As the preeminent firm in 401(k) fee litigation, Schlichter, Bogard & Denton has 

achieved unparalleled results on behalf of its clients.” Nolte v. Cigna Corp., No. 

07-2046, 2013 WL 12242015, at *2 (C.D. Ill. Oct. 15, 2013). 

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39 

o “Litigating this case against formidable defendants and their sophisticated 

attorneys required Class Counsel to demonstrate extraordinary skill and 

determination.” Beesley v. Int’l Paper Co., No. 06-703, 2014 WL 375432, at *2 

(S.D. Ill. Jan. 31, 2014). The court also emphasized that “the law firm of 

Schlichter, Bogard & Denton is the leader in 401(k) fee litigation.” Id. at *8 

(internal quotations omitted). 

o U.S. District Judge Harold Baker of the Central District of Illinois acknowledged 

the significant impact of the firm’s work, finding that as of 2013, the nationwide 

“fee reduction attributed to Schlichter, Bogard & Denton’s fee litigation and the 

Department of Labor’s fee disclosure regulations approach $2.8 billion in annual 

savings for American workers and retirees.” Nolte, 2013 WL 12242015, at *2 

(emphasis added). 

o U.S. District Judge David Herndon of the Southern District of Illinois recognized 

the firm’s extraordinary contributions to the retirement industry: “Schlichter, 

Bogard & Denton and lead attorney Jerome Schlichter’s diligence and 

perseverance, while risking vast amounts of time and money, reflect the finest 

attributes of a private attorney general. Beesley, 2014 WL 375432, at *2. 

o U.S. District Court Judge G. Patrick Murphy similarly recognized the work of 

Schlichter, Bogard & Denton as exceptional: 

Schlichter, Bogard & Denton’s work throughout this litigation 

illustrates an exceptional example of a private attorney general 

risking large sums of money and investing many thousands of 

hours for the benefit of employees and retirees. No case had 

previously been brought by either the Department of Labor or 

private attorneys against large employers for excessive fees in a 

401(k) plan. Class Counsel performed substantial work[,] 

investigating the facts, examining documents, and consulting and 

paying experts to determine whether it was viable. This case has 

been pending since September 11, 2006. Litigating the case 

required Class Counsel to be of the highest caliber and committed 

to the interests of the participants and beneficiaries of the General 

Dynamics 401(k) Plans. 

Will v. General Dynamics Corp., No. 06-698, 2010 WL 4818174, at *3 (S.D. Ill. 

Nov. 22, 2010). 

 Schlichter, Bogard & Denton handled the first full trial of an ERISA excessive fee case, 

resulting in a $36.9 million judgment for the plaintiffs that was affirmed in part by the 

Eighth Circuit. Tussey v. ABB, Inc., 746 F.3d 327 (8th Cir. 2014). In awarding attorney’s 

fees after trial, the district court concluded that “Plaintiffs’ attorneys are clearly experts in 

ERISA litigation.” Tussey v. ABB, Inc., No. 06-4305, 2012 WL 5386033, at *3 (W.D. 

Mo. Nov. 2, 2012). Following remand, the district court again awarded Plaintiffs’ 

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40 

attorney’s fees, emphasizing the significant contribution Plaintiffs’ attorneys have made 

to ERISA litigation, including educating the Department of Labor and federal courts 

about the importance of monitoring fees in retirement plans: 

Of special importance is the significant, national contribution made by the 

Plaintiffs whose litigation clarified ERISA standards in the context of investment 

fees. The litigation educated plan administrators, the Department of Labor, the 

courts and retirement plan participants about the importance of monitoring 

recordkeeping fees and separating a fiduciary’s corporate interest from its 

fiduciary obligations. 

Tussey v. ABB, Inc., No. 06-4305, 2015 WL 8485265, at *2 (W.D. Mo. Dec. 9, 2015). 

 In Spano v. Boeing Co., in approving a settlement reached after nine years of litigation 

which included $57 million in monetary relief and substantial affirmative relief to benefit 

participants, the court found that “The law firm Schlichter, Bogard & Denton has 

significantly improved 401(k) plans across the country by bringing cases such as this one, 

which have educated plan administrators, the Department of Labor, the courts and 

retirement plan participants about the importance of monitoring recordkeeping fees.” No. 

06-743, Doc. 587, at 5–6 (S.D. Ill. Mar. 31, 2016) (Rosenstengel, J.) (internal quotations 

omitted). 

 In approving a settlement including $32 million plus significant affirmative relief, Chief 

Judge William Osteen in Kruger v. Novant Health, Inc., No. 14-208, Doc. 61, at 7–8 

(M.D. N.C. Sept. 29, 2016) found that “Class Counsel’s efforts have not only resulted in 

a significant monetary award to the class but have also brought improvement to the 

manner in which the Plans are operated and managed which will result in participants and 

retirees receiving significant savings[.]” 

 On January 28, 2020, Judge George L. Russell of the District of Maryland found 

Schlichter, Bogard & Denton “pioneered this ground-breaking and novel area of 

litigation” that has “dramatically brought down fees in defined contribution plans” after 

the firm obtained a $14 million dollar settlement. Kelly v. Johns Hopkins Univ., No. 16-

2835-GLR, 2020 WL 434473, at *2 (D. Md. Jan. 28, 2020).

 Schlichter, Bogard & Denton is also class counsel in and handled Tibble v. Edison 

International, 135 S. Ct. 1823 (2015), the first and only Supreme Court case to address 

the issue of excessive fees in a defined contribution plan—in which the Court held in a 

unanimous 9–0 decision that ERISA fiduciaries have “a continuing duty to monitor 

investments and remove imprudent ones[.]” Id. at 1829. Schlichter, Bogard & Denton 

successfully petitioned for a writ of certiorari, and obtained amicus support from the 

United States Solicitor General and AARP, among others. Given the Court’s broad 

recognition of an ongoing fiduciary duty, the Tibble decision will affect all ERISA 

defined contribution plans. 

 The firm’s work in ERISA excessive fee class actions has been featured in the New York 

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41 

Times, Wall Street Journal, NPR, Reuters, and Bloomberg, among other media outlets. 

See, e.g., Anne Tergesen, 401(k) Fees, Already Low, Are Heading Lower, Wall St. J. 

(May 15, 2016);38 Gretchen Morgenson, A Lone Ranger of the 401(k)’s, N.Y. Times 

(Mar. 29, 2014);39 Liz Moyer, High Court Spotlight Put on 401(k) Plans, Wall St. J. (Feb. 

23, 2015);40 Floyd Norris, What a 401(k) Plan Really Owes Employees, N.Y. Times 

(Oct. 16, 2014);41 Sara Randazzo, Plaintiffs’ Lawyer Takes on Retirement Plans, Wall St. 

J. (Aug. 25, 2015);42 Jess Bravin and Liz Moyer, High Court Ruling Adds Protections for 

Investors in 401(k) Plans, Wall St. J. (May 18, 2015); 43 Jim Zarroli, Lockheed Martin 

Case Puts 401(k) Plans on Trial, NPR (Dec. 15, 2014);44 Mark Miller, Are 401(k) Fees 

Too High? The High-Court May Have an Opinion, Reuters (May 1, 2014);45 Greg Stohr, 

401(k) Fees at Issue as Court Takes Edison Worker Appeal, Bloomberg (Oct. 2, 2014).46 

COUNT I: BREACH OF FIDUCIARY DUTIES (29 U.S.C. §1104(A)(1)) AGAINST 

DEFENDANTS RELATED TO THE AON HEWITT COLLECTIVE INVESTMENT 

TRUSTS

102. Plaintiffs restate and incorporate the allegations contained in the preceding 

paragraphs. 

103. This Count alleges breach of fiduciary duties against all Defendants. 

104. Defendants are required to act “solely in the interest” of participants and to 

manage the assets of the Plan for the “exclusive purpose of providing benefits to participants and 

their beneficiaries, and defraying reasonable expenses of administering the Plan”, and “with the 

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

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

of a like character and with like aims”. 29 U.S.C. §1104(a)(1)(A)–(B). Defendants are directly 

38 http://www.wsj.com/articles/401-k-fees-already-low-are-heading-lower-1463304601. 

39 http://www.nytimes.com/2014/03/30/business/a-lone-ranger-of-the-401-k-s.html?_r=0. 

40 http://www.wsj.com/articles/high-court-spotlight-put-on-401-k-plans-1424716527. 

41 http://www.nytimes.com/2014/10/17/business/what-a-401-k-plan-really-owes-employees.html?_r=0. 

42 http://blogs.wsj.com/law/2015/08/25/plaintiffs-lawyer-takes-on-retirement-plans/. 

43 http://www.wsj.com/articles/high-court-ruling-adds-protections-for-investors-in-401-k-plans1431974139. 

44 http://www.npr.org/2014/12/15/370794942/lockheed-martin-case-puts-401-k-plans-on-trial. 

45 http://www.reuters.com/article/us-column-miller-401fees-idUSBREA400J220140501. 

46 http://www.bloomberg.com/news/articles/2014-10-02/401-k-fees-at-issue-as-court-takes-edisonworker-appeal. 

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responsible for selecting prudent investment options, evaluating and monitoring the Plan’s 

investments on an ongoing basis and eliminating imprudent designated investment alternatives, 

and taking all necessary steps to ensure that the Plan’s assets are invested prudently. As the 

Supreme Court confirmed, ERISA’s “duty of prudence involves a continuing duty to monitor 

investments and remove imprudent ones[.]” Tibble, 135 S. Ct. at 1829. 

105. Defendants breached their duties of loyalty and prudence under 29 U.S.C. 

§1104(a)(1)(A) and (B) by selecting and retaining the Aon Hewitt collective investment trusts in 

the Plan. Instead of acting solely in the interest of Plan participants, Defendants put their own 

interests first, selecting and retaining the Aon Hewitt collective investment trusts because of the 

benefits they provided to Aon Hewitt, which came at the expense of participants’ retirement 

savings. While Aon Hewitt received hundreds of millions of dollars in Plan assets as seed money 

for its investment management business and significant fee revenues, participants sustained 

massive losses in retirement savings due to high fees and poor performance. Moreover, 

Defendants failed to engage in a reasoned decision-making process to determine that using the 

Aon Hewitt funds was in the best interests of Plan participants or prudent, and failed to 

determine whether participants would be better served by other prudent and better performing 

alternatives available to the Plan after considering all relevant factors. Defendants’ decision to 

add the proprietary Aon Hewitt funds to the Plan caused the Plan and participants to incur 

significant performance losses. 

106. Total Plan losses will be determined at trial after complete discovery in this case 

and are continuing. 

107. Each Defendant is personally liable under 29 U.S.C. §1109(a) to make good to the 

Plan any losses to the Plan resulting from the breaches of fiduciary duties alleged in this Count 

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and is subject to other equitable or remedial relief as appropriate. 

108. Each Defendant knowingly participated in the breach of the other Defendants, 

knowing that such acts were a breach, enabled the other Defendants to commit a breach by 

failing to lawfully discharge its own fiduciary duties, knew of the breach by the other Defendants 

and failed to make any reasonable effort under the circumstances to remedy the breach. Thus, 

each Defendant is liable for the losses caused by the breach of its co-fiduciary under 29 U.S.C. 

§1105(a). 

COUNT III: PROHIBITED TRANSACTIONS (29 U.S.C. §1106) AGAINST 

DEFENDANTS RELATED TO THE AON HEWITT COLLECTIVE INVESTMENT 

TRUSTS 

109. Plaintiffs restate and incorporate the allegations contained in the preceding 

paragraphs. 

110. This Count is asserted against all Defendants. 

111. Section 1106(b) prohibits transactions between a plan and a fiduciary. 29 U.S.C. 

§1106(b). Aon Hewitt is a Plan fiduciary, and caused the Plan to use Aon Hewitt collective 

investment trusts and to pay Plan assets to Aon Hewitt. Aon Hewitt therefore dealt with the 

assets of the Plan in its own interest or for its own account, in violation of 29 U.S.C. 

§1106(b)(1); acted in a transaction involving the Plan on behalf of a party whose interests were 

adverse to the interests of the Plan, its participants and beneficiaries, in violation of 29 U.S.C. 

§1106(b)(2); and received consideration for its own personal account from parties dealing with 

the Plan in connection with transactions involving the assets of the Plan, in violation of 29 

U.S.C. §1106(b)(3). 

112. Section 1106(a) prohibits transactions between a plan and a party in interest. 29 

U.S.C. §1106(a). Aon Hewitt is a party in interest because it is a Plan fiduciary, and an entity 

providing services to the Plan. 29 U.S.C. §1002(14)(A) and (B). Defendants caused the Plan to 

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use Aon Hewitt collective investment trusts and to pay Plan assets to Aon Hewitt. Defendants 

therefore caused the Plan to engage in a transaction that they knew or should have known 

constituted an exchange of property between the Plan and a party in interest in violation of 29 

U.S.C. §1106(a)(1)(A); engage in a transaction they knew or should have known constituted the 

furnishing of services between the Plan and a party in interest in violation of 29 U.S.C. 

§1106(a)(1)(C); and engage in a transaction they knew or should have known constituted a 

transfer of Plan assets to a party in interest in violation of 29 U.S.C. §1106(a)(1)(D). 

113. As a direct result of these prohibited transactions, Defendants caused the Plan to 

suffer losses in the reduction of Plan assets in amount of the payments to Aon Hewitt and the lost 

investment returns on those assets. 

114. Each Defendant is personally liable under 29 U.S.C. §1109(a) to make good to the 

Plan any losses to the Plan resulting from the breaches of fiduciary duties and prohibited 

transactions alleged in this Count and to restore to the Plan all profits through their use of Plan 

assets, and is subject to other equitable or remedial relief as appropriate, including removal as a 

Plan fiduciary. 

COUNT IV: FAILURE TO MONITOR FIDUCIARIES AGAINST THE ASTELLAS 

DEFENDANTS 

115. Plaintiffs restate and incorporate the allegations contained in the preceding 

paragraphs. 

116. This Count is asserted against the Astellas Defendants. 

117. Astellas, acting through the Astellas Board, oversees the overall governance of 

the Plan and has discretionary authority or control over the selection, monitoring, and removal of 

Plan investments and Plan service providers. Astellas had the authority to delegate in writing any 

of its fiduciary responsibilities, including allocating such responsibilities to the Administrative 

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45 

Committee and Aon Hewitt. 

118. To the extent any of the fiduciary responsibilities of Astellas, the Astellas Board 

or the Administrative Committee were delegated to another fiduciary, their monitoring duties 

included an obligation to ensure that any delegated tasks were being performed in accordance 

with ERISA’s fiduciary standards. 

119. A monitoring fiduciary must ensure that the person to whom it delegates fiduciary 

duties is performing its fiduciary obligations, including those with respect to the investment and 

holding of plan assets, and must take prompt and effective action to protect the plan and 

participants when the delegate fails to discharge its duties. 

120. The Astellas Defendants breached their fiduciary monitoring duties by, among 

other things: 

a. failing to monitor their appointees and delegees, to evaluate their performance, or 

to have a system in place for doing so, and standing idly by as the Plan suffered 

enormous losses as a result of their appointees’ imprudent actions and omissions 

with respect to the Plan; 

b. failing to monitor their appointees’ fiduciary process, which would have alerted 

any prudent fiduciary to the potential breach because of the unreasonable 

investment management fees and imprudent investment options in violation of 

ERISA; 

c. failing to ensure that the monitored fiduciaries considered the ready availability of 

comparable and better performing investment options that charged significantly 

lower fees and expenses than the Plan’s investments; and 

d. failing to remove appointees and delegees whose performance was inadequate in 

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46 

that they continued to allow unreasonable fees to be charged to Plan participants 

and imprudent investment options to be selected and retained in the Plan, all to 

the detriment of Plan participants’ retirement savings. 

121. As a direct result of these breaches of fiduciary duty to monitor, the Plan suffered

substantial losses. Had the Astellas Defendants and the other delegating fiduciaries discharged 

their fiduciary monitoring duties prudently as described above, the Plan would not have suffered 

these losses. 

JURY TRIAL DEMANDED 

122. Under Fed. R. Civ. P. 38 and the Constitution of the United States, Plaintiffs

demand a trial by jury. 

PRAYER FOR RELIEF

For these reasons, Plaintiffs, on behalf of the Plan and all similarly situated Plan 

participants and beneficiaries, respectfully request that the Court: 

 find and declare that Defendants have breached their fiduciary duties as

described above;

 find and adjudge that Defendants are personally liable to make good to the Plan

all losses to the Plan resulting from each breach of fiduciary duty, and to

otherwise restore the Plan to the position it would have occupied but for the

breaches of fiduciary duty;

 determine the method by which Plan losses under 29 U.S.C. §1109(a) should be

calculated;

 order Defendants to provide all accountings necessary to determine the amounts

Defendants must make good to the Plan under §1109(a);

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47 

 remove the fiduciaries who have breached their fiduciary duties and enjoin them

from future ERISA violations;

 surcharge against Defendants and in favor of the Plan all amounts involved in

any transactions which such accounting reveals were improper, excessive

and/or in violation of ERISA;

 reform the Plan to include only prudent investments;

 certify the Class, appoint each of the Plaintiffs as a class representative, and

appoint Schlichter, Bogard & Denton LLP as Class Counsel;

 award to the Plaintiffs and the Classes their attorney’s fees and costs under 29

U.S.C. §1132(g)(1) and the common fund doctrine;

 order the payment of interest to the extent it is allowed by law; and

 grant other equitable or remedial relief as the Court deems appropriate.

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48 

February 28, 2022 Respectfully submitted, 

/s/ Troy A. Doles 

SCHLICHTER BOGARD & DENTON LLP 

Jerome J. Schlichter, No. 2488116 

Michael A. Wolff, No. 6206003 

Troy A. Doles, No. 6242803 

Heather Lea, No. 6276614 

Sean E. Soyars, MO No. 57317 

Kurt C. Struckhoff, No. 6302037 

100 South Fourth Street, Suite 1200 

St. Louis, MO, 63102 

(314) 621-6115

(314) 621-5934 (fax)

jschlichter@uselaws.com

mwolff@uselaws.com

tdoles@uselaws.com

hlea@uselaws.com

ssoyars@uselaws.com

kstruckhoff@uselaws.com

Class Counsel for Plaintiffs 

DEGRAND LAW, P.C. 

Luke DeGrand 

10 S. LaSalle Street, Ste. 3400 

Chicago, IL 60603 

(312) 236-9200

(312) 236-9201 (fax)

ldegrand@degrandlaw.com

Local Counsel for Plaintiffs

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