UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

MARY ANN SIVOLELLA, et al. 

Plaintiffs, · 

vs 

AXA EQUITABLE FUNDS 

MANAGEMENT GROUP, LLC, 

et al., 

Defendants. 

GLENN D. SANFORD, et al. 

Plaintiffs, 

vs. 

AXA EQUITABLE FUNDS 

MANAGEMENT GROUP, LLC, 

et al., 

Defendants. 

Civ. A. No. 3:11-cv-04194-PGS-DEA 

RECEIVED 

NOV 2 4 2015 

AT8:30 M 

WILLIAM T. WALSH 

CLERK 

Civ. A. No. 3:13-cv-00312-PGS-DEA 

Judge: Hon. Douglas E. Arpert 

Final Pretrial Conference 

November 23, 2015, 10:00 AM 

Trial Date: January 11, 2016 

Filed Electronically 

[PROPOSED] JOINT 

FINAL PRETRIAL ORDER 

This matter having come before the Court for a Pretrial Conference before 

the Honorable Douglas E. Arpert, U.S.M.J., pursuant to Fed. R. Civ. P. 16; and 

Arnold Lakind, Robert Lakind and Daniel Sweetser of Szaferman, Lakind, Blader 

& Blumstein, P.C. having appeared for plaintiffs ("Plaintiffs") 1

; and Sean M. 

1 Plaintiffs bring this action with respect to the following twelve portfolios (the "Funds"), each 

of which is a separate portfolio within the EQ Advisors Trust ("EOAT"): ( 1) EQ/GAMCO Small 

Company Value Portfolio; (2) EQ/PIMCO Ultra Short Bond Portfolio; (3) EQ/T. Rowe Price 

Growth Stock Portfolio; (4) EQ/Equity Growth PLUS Portfolio; (5) EQ/Global Bond PLUS 

Portfolio; (6) EQ/Global Multi-Sector Equity Portfolio; (7) EQ/Large Cap Value PLUS 

Portfolio; (8) EQ/Mid Cap Value PLUS Portfolio; (9) EQ/Common Stock Index Portfolio; (10) 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 1 of 72 PageID: 11742
Murphy and Robert C. Hora of Milbank, Tweed, Hadley & McCloy LLP, and 

Jonathan Korn of Blank Rome having appeared for defendants AXA Equitable 

Life Insurance Company ("AXA") and AXA Equitable Funds Management Group, 

LLC ("FMG") (together with AXA, "Defendants"); the following Final Pretrial 

Order is hereby entered: 

1. JURISDICTION (set forth specifically). 

This Court has jurisdiction over the subject matter of this action pursuant to 

Section 44 of the Investment Company Act of 1940 (the "ICA"), 15 U.S.C. § 80a43. The parties agree that venue is proper in the District of New Jersey pursuant to 

28 U.S.C. § 1391(b). 

2. PENDING/CONTEMPLATED MOTIONS * (Set forth all pending or 

contemplated motions, whether dispositive or addressed to discovery or to the 

calenda-r. Also, set forth the nature of the motion and the return date. If the 

Court indicated that it would rule on any matter at pretrial, summarize that 

matter and each party's position). 

For Plaintiffs: 

Plaintiffs have no pending motions. Plaintiffs contemplate moving in limine 

to bar the following evidence expected to be offered at trial: 

1. Plaintiffs will move to bar the expert testimony of defense expert, William 

Holder, C.P.A., on the same bases argued in their previous motion in limine: that 

the testimony of this expert is inadmissible (1) because that testimony does not 

satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579 (1993) and (2) because Mr. Holder was not the author of the opinions in 

his report. Plaintiffs' Daubert motion was originally filed on January 23, 2015. 

The Court determined that it would resolve this motion at trial. 

2. Plaintiffs will move to bar the admission of all evidence relating to 

distribution expenses, marketing expenses and transfer agency expenses if such 

evidence will be offered because these expenses are irrelevant. 

EQ/Core Bond Index Portfolio; (11) EQ/Equity Index 500 Portfolio; and (12) EQ/lntermediate 

Government Bond Index Portfolio. 

-¥ Al\ ~ /1-/~~uf )lo~ MWJ.+ ~ ~cl/~.r~rl ~.kc. ILu1.f'-

2 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 2 of 72 PageID: 11743
-lt7~~ ~~ 1 

:S~L 

3. Defendants objected to a number of Plaintiffs' Interrogatories and Requests 

for Production of Documents on the ground that the information and documents 

sought were not discoverable because such discovery was not relevant nor 

reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs 

will move to bar the introduction of any proffered evidence responsive to the 

Interrogatories and Document Requests that was not produced in discovery based 

on Defendants' objection on these grounds. 

4. Defendants and the Board of Trustees of the EQ Advisors Trust ("EQAT") 

invoked the attorney client privilege with regard to a number of Plaintiffs' 

inquiries at depositions and in written discovery addressed to the care and 

conscientiousness of the Board. Plaintiffs will move to bar the introduction of any 

evidence offered by Defendants addressed to the care and conscientiousness of the 

EQATBoard. 

5. Counsel to the Defendants communicated with and provided documents to 

the EQAT Board in connection with this litigation. Although counsel to 

Defendants is not counsel to the EQAT Board, Defendants have refused to disclose 

these communications or provide the documents related to these communications 

to Plaintiffs. Plaintiffs intend to subpoena these documents for trial and to 

question a number of witnesses with regard to communications between counsel to 

Defendants and the EQAT Board. If Defendants intend to object to these inquiries, 

Plaintiffs will seek a ruling that testimony about these communications and 

documents must be provided at trial. 

Plaintiffs will move to bar any evidence introduced by the defense with 

regard to documents produced on and after October 26, 2015 (Bates stamped above 

( AXA1264195) due to the untimeliness of such productions. 

~ ~o& "'\' 

Jr 1 7. Plaintiffs will move to bar defense expert Russell Wermers from opining on 

, ~ the performance of Plaintiffs' Funds because his opinion: (a) relies on 

~ methodologies not used or accepted in the industry, (b) contradicts defense 

\\ ' 1. experts' prior opinions and ( c) was not presented to or relied on by the EQAT 

~\":> Board. 

8. Plaintiffs will move to bar the defense expert testimony offered by Marianne 

K. Smythe, Esq. with regard to all issues in her report other than her opinion with 

regard to the level of expertise of the members of the EQAT Board. The grounds 

for Plaintiffs'motion are: (a) Ms. Smythe lacks the expertise to render an opinion 

on any other issue addressed in her report; (b) Ms. Smythe' s opinion that the 

3 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 3 of 72 PageID: 11744
Board was careful and conscientiousness is based upon her assessment of the 

expertise of the Board members which is not a subject appropriate for expert 

testimony; ( c) Ms. Smythe' s opinions constitute improper legal conclusions and 

are ipse dixit based on unsupported factual assertions derived from improper and 

unreliable inferences and ( d) Ms. Smythe' s opinion does not satisfy the 

requirements of Daubert. 

9. Plaintiffs will move to bar the Lipper fee comparison reports in their 

entirety. If the Lipper reports are deemed admissible, Plaintiffs will move to limit 

the scope/purpose of this evidence under Evid. Rule 105. 

For Defendants: 

Defendants have no pending motions. Defendants intend to file the 

following motions: 2 

1. Defendants' Motion to Strike Expert Opinions Offered by Kent E. Barrett. 

[Dkt. No. 99 (Sivolella); Dkt. No. 50 (Sanford)] 

As set forth in greater detail in Defendants' previously filed Motion to 

Strike, Defendants seek to strike the expert testimony offered by Mr. Barrett and 

preclude Mr. Barrett from offering opinion testimony concerning: 

a. Defendants' profitability accounting and reporting, on the grounds that 

Mr. Barrett's opinions: (i) constitute improper legal conclusions that 

he is not qualified to provide; (ii) are unreliable because Mr. Barrett 

does not identify any accounting irregularity regarding Defendants' 

profitability calculations; (iii) are unsupported by any accepted 

accounting practice; and (iv) rely on calculations that improperly 

exclude subadvisory I sub-administrative fees and expenses allocated 

to FMG from AXA; 

b. Investment management or administrative services provided by 

Defendants, and which of these services Defendants delegated to the 

Funds' Subadvisers and/or the Subadministrator, on the grounds that 

this topic is not a proper grounds of expert testimony and Mr. Barrett: 

(i) has no expertise relevant to determining what services Defendants 

provide; (ii) conducted no investigation to support his opinion aside 

2 The first four of Defendants' motions described herein was previously filed with the Court and 

has been fully briefed by the Parties. Pursuant to JudgeSheridan's Order dated July 24, 2015, 

the Court administratively terminated these motions and stated that the Court would address 

them "at the time of trial." [Dkt No. 167 (Sivolella); Dkt. No. 117 (Sanford).] 

4 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 4 of 72 PageID: 11745
from reading certain contracts; (iii) is not qualified to interpret 

contracts; and (iv) disregarded evidence that contradicted his opinions; 

c. Purported "fall-out benefits" that accrued to Defendants (or their 

affiliates), on the grounds that: (i) his opinion is based on an improper 

legal conclusion, which he is not qualified to provide, that certain 

revenues constitute "fall-out benefits"; (ii) his calculations are 

unreliable because they are based on speculative assumptions about 

choices made by investors in the Funds to allocate money among the 

various investment options available within AXA' s insurance 

products; and (iii) Mr. Barrett's calculations are unreliable and 

irrelevant because they are not limited to the Funds at issue here; and 

d. Purported "economies of scale," on the grounds that Mr. Barrett has no 

relevant expertise and failed to conduct the threshold analysis required 

to determine whether FMG realized any economies of scale in 

managing or administering the Funds. Thus, any opinions offered by 

Mr. Barrett on this topic lack foundation and are unreliable. 

2. Defendants' Motion to Strike the Expert Qpinions Offered by Phillip 

Goldstein. [Dkt. No.-100 (Sivolella); Dkt. No. 51 (Sanford)] · 

As set forth in greater detail in Defendants' previously filed Motion to 

Strike, Defendants seek to strike the expert testimony offered by Mr. Goldstein and 

preclude Mr. Goldstein from offering opinion testimony concerning: 

a. The care and conscientiousness exercised by the statutorily 

independent trustees ofEQAT, on the grounds that Mr. Goldstein's 

opinions (i) constitute improper legal conclusions that Mr. Goldstein is 

not qualified to provide, and (ii) are ipse dixit based on unsupported 

factual assertions derived from improper and unreliable inferences; 

b. A narrative of selected facts, as such testimony is (i) beyond the scope 

of permissible expert testimony, and (ii) premised on subjective 

relevance and credibility determinations regarding the available 

evidence; 

c. The services provided to the Funds by Defendants, on the grounds that 

Mr. Goldstein's opinion is unreliable because (i) it lacks foundation 

and is not a proper subject of expert testimony, and (ii) is based on a 

selective review of available evidence; 

5 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 5 of 72 PageID: 11746
d. Defendants' expense allocation methodology, on the grounds that (i) 

Mr. Goldstein is not an accounting expert and thus is not qualified to 

opine on this topic, and (ii) his opinion on this topic rests entirely on 

ipse dixit; 

e. The "independence" of external counsel to the Funds or the 

Independent Trustees, on the grounds that it is unreliable because Mr. 

Goldstein (i) lacks support for these opinions, and (ii) identifies no 

conflicts concerning counsel's independence; 

f. The Independent Trustees' response to purported! y "poor" fund 

performance, on the grounds that Mr. Goldstein's opinion lacks 

foundation; 

g. The Independent Trustees' consideration of purported "fall out 

benefits," on the grounds that: (i) Mr. Goldstein lacks the necessary 

qualifications and expertise; (ii) such testimony is unreliable because 

he failed to review most materials provided to the Board; and (iii) his 

opinions concerning what the Trustees "should have done" regarding 

the consideration of fall out benefits lacks any support in the law, or 

industry custom and practice; 

h. The Trustees' consideration of purported "economies of scale," on the 

grounds that (i) Mr. Goldstein is not an economist and thus is not 

qualified to offer opinions on this topic; and (ii) he failed to conduct 

the threshold analysis required to determine whether FMG realized any 

economies of scale. Thus, any opinions offered by Mr. Goldstein on 

this topic lack foundation and are unreliable; 

I. Whether the investment management and administrative fees paid by 

the Funds to FMG bear a "reasonable relationship" to the services that 

Defendants provide to the Funds, on the grounds that: (i) such 

testimony constitutes an improper conclusion on the ultimate legal 

question in this case; (ii) Mr. Goldstein does not reference any relevant 

data concerning the fees on which he opines; and (iii) this opinion is 

based on Mr. Goldstein's unsupported assumptions; and 

J. Evidence neither cited nor considered by Mr. Goldstein in his expert 

reports. 

6 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 6 of 72 PageID: 11747
3. Defendants' Motion to Strike the Expert Opinions Offered by Steve 

Pomerantz. [Dkt. No. 99 (Sivolella); Dkt. No. 52 (Sanford)] 

As set forth in greater detail in Defendants' previously filed Motion to 

Strike, Defendants seek to strike the expert testimony offered by Dr. Pomerantz 

from offering opinion testimony concerning: 

a. The services that Defendants perform for the Funds, as compared to 

the services Defendants purportedly delegate to the Subadvisers and 

Subadministrator, on the grounds that this is not a proper subject of 

expert testimony and Dr. Pomerantz: (i) lacks expertise on this topic; 

(ii) based his opinions on subjective determinations of relevance and 

credibility, legal issues that are reserved for the Court; (iii) improperly 

based his conclusions on his subjective interpretation of various 

contracts, but lacks any qualification to off er legal conclusions 

concerning contractual interpretation; and (iv) failed to support his 

opinions by reference to, or analysis of, reliable data; 

b. The services the Independent Trustees purportedly "should have 

performed," on the grounds that such opinions are unreliable because 

Dr. Pomerantz's opinions on this topic (i) are supported only by his 

own ipse dixit, and (ii) are based on unsupported assumptions 

concerning the services Defendants' perform; 

c. Defendants' profitability, on the grounds that Dr. Pomerantz: (i) lacks 

accounting experience or education, and thus is not qualified to off er 

an opinion on this topic because profitability cannot be calculated 

absent consideration of expenses that Dr. Pomerantz improperly 

ignores; (ii) employs unreliable calculations because he fails to explain 

or cite relevant data to support them; and (iii) ignores numerous 

expenses of Defendants, including allocated expenses and subadvisory 

expenses; 

d. Purported "economies of scale," on the grounds that Dr. Pomerantz 

failed to conduct the analysis required to determine whether 

Defendants realize any economies of scale. Thus, any opinions 

offered by Dr. Pomerantz on this topic are unreliable. Dr. Pomerantz's 

opinions on the topic are also unreliable because he: (i) ignores 

Defendants' total costs, including changes to those costs over time; (ii) 

failed to conduct an analysis of Defendants' per unit costs; and (iii) 

7 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 7 of 72 PageID: 11748
ignores means by which Defendants' shared potential economies of 

scale; 

e. Defendants' purported "fall-out benefits," on the grounds that Dr. 

Pomerantz's opinion is: (i) based on an improper legal conclusion that 

he is not qualified to provide; and (ii) improperly relies on Mr. 

Barrett's flawed calculations; and 

f. Plaintiffs' purported damages, on the grounds that his calculations (i) 

lack foundation and (ii) employ an inappropriate "cost-plus" approach 

to damages. 

4. Defendants' Motion to Strike the Expert Opinions Offered by Richard 

W. Kopcke and Francis M. Vitagliano. [Dkt. No. 102 (Sivolella); Dkt. No. 53 

(Sanford)] 

As set forth in greater detail in Defendants' previously filed Motion to 

Strike, Defendants seek to strike the expert testimony of Messrs. Kopcke and 

Vitagliano and to preclude either of them from offering opinion testimony 

concemmg: 

a. Defendants' investment management fees, on the grounds that Messrs. 

Kopcke and Vitagliano's opinions are (i) improper legal conclusions 

that they are not qualified to provide, and (ii) based on improper and 

unreliable assertions that Messrs. Kopcke and Vitagliano did not 

investigate; 

b. Defendants' administration fees, on the grounds that Messrs. Kopcke 

and Vitagliano' s opinions are (i) improper legal conclusions that they 

are not qualified to provide, and (ii) based on improper and unreliable 

assertions that are supported only by Messrs. Kopcke and Vitagliano' s 

ipse dixit; 

c. Investment management or administrative services provided by 

Defendants, and which of these services Defendants delegated to the 

Funds' Subadvisers and the Subadministrator, on the grounds that this 

is not a proper subject of expert testimony and Messrs. Kopcke and 

Vitagliano: (i) have no expertise relevant to determining what services 

Defendants provide; (ii) conducted no investigation to support their 

opinion aside from reading certain contracts; (iii) are not qualified to 

interpret contracts, a legal analysis reserved for the Court; and (iv) 

disregarded evidence that contradicted their opinions; 

8 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 8 of 72 PageID: 11749
d. What represents an "arm's length fee" or "reasonable fee" for the 

investment management and administrative services provided by 

Defendants, on the grounds that: (i) Messrs. Kopcke and Vitagliano 

lack the expertise to opine on these issues; (ii) these opinions 

constitute improper legal conclusions that Messrs. Kopcke and 

Vitagliano are not qualified to provide; (iii) their calculations are not 

supported by any data; and (iv) they rely on their own ipse dixit and 

unfounded assumptions concerning the services Defendants actually 

provide to the Funds; 

e. The sharing of potential economies of scale, on the grounds that 

Messrs. Kopcke and Vitagliano failed to conduct the threshold analysis 

required to determine whether Defendants realize any economies of 

scale in managing or administering the Funds. Thus, any opinions 

offered by Messrs. Kopcke and Vitagliano on this topic lack 

foundation and are unreliable; and 

f. Any topic because Messrs. Kopcke and Vitagliano co-signed their 

expert reports without disclosing the division of work, in violation of 

Federal Rule of Civil Procedure 26. 

5. Defendants also intend to move to preclude Plaintiffs from introducing 

deposition testimony taken from a non-party, Harvey Rosen, in a separate action to 

which Defendants were not parties. 

a. Plaintiffs intend to introduce selected portions of a deposition 

transcript of Mr. Harvey Rosen, taken in connection with an entirely 

separate legal proceeding. Defendants will move to preclude the 

introduction of this testimony. 

b. Defendants object to Plaintiffs' use of Harvey Rosen's testimony on 

the grounds that it is hearsay that is not subject to the "former 

testimony" hearsay exception set forth in Rule 804(b)(l) of the Federal 

Rules of Evidence. Mr. Rosen is an employee of JPMorgan Chase 

Bank, N.A. ("JPMorgan") and a resident of Massachusetts. Mr. Rosen 

was deposed on February 4, 2015 in an entirely different action 

brought by Plaintiffs' counsel, to which Defendants are not partiesKasilag v. Hartford Inv. Fin. Servs., LLC, No. 11-1083 

(D.N.J.). Federal Rule of Evidence 804(b)(l) provides that such 

testimony is not admissible unless it is "offered against a party who 

had- or, in a civil case, whose predecessor in interest had- an 

9 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 9 of 72 PageID: 11750
opportunity and similar motive to develop it by direct, cross-, or 

redirect examination." Plaintiffs cannot meet this exception on its 

face. Neither Defendant is a party nor a predecessor in interest to any 

party in the Kasilag matter and thus neither had an opportunity to 

develop any testimony during Mr. Rosen's deposition by direct, cross, 

or redirect examination. Defendants and Plaintiffs also have no 

agreement to allow Mr. Rosen's deposition testimony in this matter. 

3. STIPULATION OF FACTS 

The parties hereby agree and stipulate to the following undisputed facts at 

trial: 3 

I. General Background 

1. Plaintiffs are parties to variable annuity contracts with AXA Equitable Life 

Insurance Company ("AXA"). 4 

2. Variable annuity contract-holders contribute money to a variable annuity and 

then allocate those contributions to one or more investment options offered within 

the variable annuity. 

3. A mutual fund is a pool of stocks, bonds or other investments. 

4. Plaintiffs have allocated contributions to their variable annuities to one or 

more of the following twelve (12) mutual funds (the "Funds"): 

a) EQ/Common Stock Index Portfolio; 

b) EQ/Core Bond Index Portfolio; 

c) EQ/Equity 500 Index Portfolio; 

3 The Stipulated Facts set forth herein are without prejudice to any evidentiary objections to the 

relevance of any Stipulated Fact and/or motion by any party to this action. 

4 AXA was formerly known as The Equitable Life Assurance Society of the United States. As 

used herein, "AXA" refers to both AXA Equitable Life Insurance Company and The Equitable 

Life Assurance Society of the United States. 

10 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 10 of 72 PageID: 11751
d) EQ/Equity Growth PLUS Portfolio;5 

e) EQ/GAMCO Small Company Value Portfolio; 

f) EQ/Global Bond PLUS Portfolio; 

g) EQ/Global Multi-Sector Equity Portfolio; 6 

h) EQ/Intermediate Government Bond Index Portfolio; 7 

i) EQ/Large Cap Value PLUS Portfolio; 8 

j) EQ/Mid Cap Value PLUS Portfolio;9 

k) EQ/PIMCO Ultra Short Bond Portfolio; and 

1) EQ/T. Rowe Price Growth Stock Portfolio. 

5. The EQ Advisors Trust ("EQAT") is a Delaware statutory trust and is 

registered with the U.S. Securities and Exchange Commission ("SEC") as an 

investment company under the Investment Company Act of 1940 and its shares are 

registered with the SEC under the Securities Act of 1933. 

6. The EQAT is comprised of a number of mutual funds or portfolios. As of 

May 1, 2010, the EQAT had 65 distinct portfolios, and as of May 1, 2015, EQAT 

had 86 distinct portfolios. 

7. Each Fund is a portfolio ofEQAT. 

5 In 2014, the assets of the EQ/Equity Growth PLUS Portfolio were acquired by the EQ/Large 

Cap Growth PLUS Portfolio, which was renamed the AXA Large Cap Growth Managed 

Volatility Portfolio. 

6 In 2014, the EQ/Global Multi-Sector Equity Portfolio was renamed the AXA Global Equity 

Managed Volatility Portfolio. 

7 In 2012, the EQ/Intermediate Government Bond Index Portfolio was renamed the 

EQ/Intermediate Government Bond Portfolio. 

8 In 2014, the EQ/Large Cap Value PLUS Portfolio was renamed the AXA Large Cap Value 

Managed Volatility Portfolio. 

9 In 2014, the EQ/Mid Cap Value PLUS Portfolio was renamed the AXA Mid Cap Value 

Managed Volatility Portfolio. 

11 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 11 of 72 PageID: 11752
8. Plaintiff Sivolella allocated contributions to her variable annuity to the 

EQ/Common Stock Index Portfolio, the EQ/Equity 500 Index Portfolio, the 

EQ/Equity Growth PLUS Portfolio, the EQ/GAMCO Small Company Value 

Portfolio, the EQ/Global Multi-Sector Equity Portfolio, the EQ/Intermediate 

Government Bond Index Portfolio, the EQ/Large Cap Value PLUS Portfolio, and 

the EQ/Mid Cap Value PLUS Portfolio. 

9. Plaintiff Sanford allocated contributions to his variable annuity to the 

EQ/GAMCO Small Company Value Portfolio, the EQ/Global Multi-Sector Equity 

Portfolio, the EQ/Large Cap Value PLUS Portfolio, and the EQ/T. Rowe Price 

Growth Stock Portfolio. 

10. Plaintiffs Mary and Robert Cusack allocated contributions to their variable 

annuity to the EQ/Core Bond Index Portfolio, the EQ/Large Cap Value PLUS 

Portfolio, and the EQ/Mid Cap Value PLUS Portfolio. 

11. Plaintiff Lynn allocated contributions to her variable annuity to the 

EQ/GAMCO Small Company Value Portfolio, the EQ/Global Bond PLUS 

Portfolio, the EQ/Mid Cap Value PLUS Portfolio, and the EQ/PIMCO Ultra Short 

Bond Portfolio. 

12. Plaintiff Sanchez allocated contributions to his variable annuity to the 

EQ/Global Multi-Sector Equity Portfolio and the EQ/Large Cap Value PLUS 

Portfolio. 

13. Plaintiff Tucker allocated contributions to his variable annuity to the 

EQ/GAMCO Small Company Value Portfolio and the EQ/T. Rowe Price Growth 

Stock Portfolio. 

14. AXA served as the Funds' investment manager and administrator from at 

least May 1, 2000 until May 1, 2011, when AXA Equitable Funds Management 

Group, LLC ("FMG," together with AXA, "Defendants") started serving as the 

Funds' investment manager and administrator. 

15. FMG is registered with the SEC as an investment adviser under the 

Investment Advisers Act of 1940. Prior to May 1, 2011, AXA was registered with 

the SEC as an investment adviser under the Investment Advisers Act of 1940. 

16. FMG is currently a wholly-owned subsidiary of AXA. 

12 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 12 of 72 PageID: 11753
17. FMG was previously a business unit within AXA, and was established as a 

separate legal entity and wholly-owned subsidiary of AXA on February 11, 2011. 

II. Investment Management Agreements 

18. On and after May 1, 2011, FMG had two Investment Management 

Agreements (as amended) with EQAT relating to the Funds ("FMG Investment 

Management Agreements"). One of the FMG Investment Management 

Agreements applies to three of the Funds (EQ/GAMCO Small Company Value, 

EQ/PIMCO Ultra Short Bond, and EQ/T. Rowe Price Growth Stock Portfolios) 

and the other FMG Investment Management Agreement applies to the other nine 

Funds (EQ/Common Stock Index, EQ/Core Bond Index, EQ/Equity 500 Index, 

EQ/Equity Growth PLUS, EQ/Global Bond PLUS, EQ/Global Multi-Sector 

Equity, EQ/Intermediate Government Bond Index, EQ/Large Cap Value PLUS, 

and EQ/Mid Cap Value PLUS Portfolios). 

19. Prior to May 1, 2011, AXA had two Investment Management Agreements 

with EQAT relating to the Funds ("AXA Investment Management Agreements, 

and together with the FMG Investment Management Agreements, the "Investment 

Management Agreements"). One of the AXA Investment Management 

Agreements applied to three of the Funds (EQ/GAMCO Small Company Value, 

EQ/PIMCO Ultra Short Bond, and EQ/T. Rowe Price Growth Stock Portfolios) 

and the other AXA Investment Management Agreement applied to the other nine 

Funds (EQ/Common Stock Index, EQ/Core Bond Index, EQ/Equity 500 Ind~x, 

EQ/Equity Growth PLUS, EQ/Global Bond PLUS, EQ/Global Multi-Sector 

Equity, EQ/Intermediate Government Bond Index, EQ/Large Cap Value PLUS, 

and EQ/Mid Cap Value PLUS Portfolios). 

20. The Investment Management Agreements contain or contained the following 

fee schedules: 

1. EQ/Common Stock Index Portfolio 

~g1~().re~9·~·•••§•~()·(!~··••~11.~.~~···•··~911fc>••9·····.···· Fee Schedule Under Investment ".·:···· .......... ·:·:·'"·.·:·.·.·.· :·.· .. ·.· 

·.···'Mana2¢m~~i.A21"~~1ii~11~s·•············•·• 

2010- 8/31/2011 

0.350% (fee on all assets) 

9/1/2011- 8/31/2012 ' 

0.350% on first $4 billion of assets 

0 .340% thereafter 

13 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 13 of 72 PageID: 11754
9/1/2012 - 8/31/2013 

0.350% on first $4 billion of assets 

0 .340% on next $4 billion of assets 

0.330% thereafter 

9/1/2013 - 8/31/2015 

0.350% on first $4 billion of assets 

0 .340% on next $4 billion of assets 

0.330% on next $2 billion of assets 

0.320% thereafter 

9/1/2015 

0.350% on first $2 billion of assets 

0.340% on next $4 billion of assets 

0.320% on next $3 billion of assets 

0.310% on next $2 billion of assets 

0.300% thereafter 

2. EQ/Core Bond Index Portfolio 

~~1~9~~·•1*·~••••.•ll~e~•···~~l#il9••: ...... Fee.···SchedulelJ:nderJnvestiDent 

.•··.·•MaiiiJ.2¢fu¢fii••A2r~¢ffiilJ.t:~· 

2010- 8/3112011 

0. 3 50% (fee on all assets) 

9/1/2011 - 8/31/2012 

0.350% on first $4 billion of assets 

0.340% thereafter 

9/1/2012 -- 8/31/2013 

0.350% on first $4 billion of assets 

0 .340% on next $4 billion of assets 

0.330% thereafter 

9/1/2013 - 8/31/2015 

0.350% on first $4 billion of assets 

0 .340% on next $4 billion of assets 

0.330% on next $2 billion of assets 

0.320% thereafter 

9/1/2015 

0.350% on first $2 billion of assets 

0 .340% on next $4 billion of assets 

0.320% on next $3 billion of assets 

0.~10% on next $2 billion of assets 

14 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 14 of 72 PageID: 11755
I 0 .300% thereaftef 

3o EQ/Equity 500 Index Portfolio 

·~~~·CjJ(i~:···~~g·•··~·~·~·~~····~~~?.~~ .· ·····.·····Fee §:~~~~~-~ ~~~~~<~~~~.~J~~nt 

M3Pil2~Pl~Qt Agfe~m«mts · 

2010 - 8/31/2011 

0.250% (fee on all assets) 

9/1/2011- 8/31/2012 

0 .250% on first $4 billion of assets 

0 .240% thereafter 

9/1/2012 ..... 8/31/2013 

0 .250% on first $4 billion of assets 

0 .240% on next $4 billion of assets 

0 .230% thereafter 

9/1/2013 - 8/31/2015 

0.250% on first $4 billion of assets 

0 .240% on next $4 billion of assets 

0 .230% on next $2 billion of assets 

0 .220% thereafter 

9/1/2015 

0 .250% on first $2 billion of assets 

0 .240% on next $4 billion of assets 

0 .220% on next $3 billion of assets 

0 .210% on next $2 billion of assets 

0 .200% thereafter 

4. EQ/E ui Growth PLUS Portfolio 

· ····(.····~Qlit9»•!Y•·••G:r<l"7t~··•!'l2Y~.···•r~ ... ff.,,•j~··••···.·· .·.· ·: Fee sclledute un.aer Investment 

0. 500% on first $2 billion of assets 

0.450% on next $1 billion of assets 

0.425% on next $3 billion of assets 

0 .400% on next $5 billion of assets 

0.375% thereafter 

15 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 15 of 72 PageID: 11756
5. EQ/GAMCO Small Com an Value Portfolio 

.1t·Q1G~fill9!•:~m~n••·•·fi~•mll~nl'••·•v~1fi~•·•: ······ J.>ortfolio > 

Fi~•····scti~<1~1i·.·uriti~i··••1i~~itffi~ii·········· 

0 .800% on first $400 million of assets 

0. 750% on next $400 million of assets 

0. 700% thereafter 

9/1/2012 - 2015 

0. 7 50% on first $1 billion of assets 

0.700% on next $1 billion of assets 

0.675% on next $3 billion of assets 

0. 650% on next $5 billion of assets 

0.625% thereafter 

6. EQ/Global Bond PLUS Portfolio 

Jt~/~l~·~·~1····~~~·~.Il'~.~.~.···~~l~~10• · Fee Scbedule/Under··Investment 

•··••••M3.t~•~¢1ft¢rit••·Af(i-.~~hi¢iIJ$••·•·••·•••• 2010 - 8/31/2015 

0.550% on first $4 billion of assets 

0.530% on next $4 billion of assets 

0 .510% thereafter 

9/1/2015 

0.550% on first $2 billion of assets 

0.530% on next $4 billion of assets 

0.510% on next $3 billion of assets 

0 .490% on next $2 billion of assets 

0.480% thereafter 

7. EQ/Global Multi-Sector E ui Portfolio 

.•••.•. ~.8/.~l~~~1•.·1\fu.•t.i-$·~~~9•r1••~ci:~1t:y • : < ~()~tf ~,:i()> . < . · · · · Fee Schedule Under Investment 

0.750% on first $1 billion of assets 

0.700% on next $1 billion of assets 

16 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 16 of 72 PageID: 11757
0.675% on next $3 billion of assets 

0.650% on next $5 billion of assets 

0.625% thereafter· 

8. EQ/Intermediate ~vernment Bond Index Portfolio 

~~~~t~~:~~~~~*~ ~x~~~~~8:·:~~e~~~~~~ 13~~~~.: IP~e s~1t~<Jμl~J.11l<J~i;J11yest111~nt·Ma11a2~111ent A2J'e~ni~nt$ 

2010 -8/31/2011 

0.350% (fee on all assets) 

9/1/2011 - 8/31/2012 

0.350% on first $4 billion of assets 

0 .340% thereafter 

9/1/2012 - 8/31/2013 

0.350% on first $4 billion of assets 

0 .340% on next $4 billion of assets 

0.330% thereafter 

9/1/2013 - 8/31/2015 

0.350% on first $4 billion of assets 

0.340% on next $4 billion of assets 

0.330% on next $2 billion of assets 

0.320% thereafter 

9/1/2015 

0.350% on first $2 billion of assets 

0.340% on next $4 billion of assets 

0.320% on next $3 billion of assets 

0.310% on next $2 billion of assets 

0.300% thereafter 

9. E /Lar e Ca Value PLUS Portfolio 

~Q~~rg~•·•·'R·.a.e·•y-,iμ~·•··~lf"JJ"§•••·J.>f'~tl., i() Fee Schedule Under· Investment 

0.500% on first $2 billion of assets 

0.450% on next $1 billion of assets 

0.425% on next $3 billion of assets 

0 .400% on next $5 billion of assets 

0.375% thereafter 

17 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 17 of 72 PageID: 11758
1 OoEQ~·~ .... ~.~ ............ Y~I~.~ ... ~~!!~~~~t~?~~? .............................. 

~Q~~····•··~·'·~···x11·~·~·.·~~~~~9m?li9 Fee·•Schedule·Under··Investment 

0.550% on first $2 billion of assets 

0 .500% on next $1 billion of assets 

0.475% on next $3 billion of assets 

0.450% on next $5 billion of assets 

0 .425% thereafter 

lLE /PIMCO Ultra Short Bond Portfolio 

tQ~~~~<?:····~n1-·~I$•~9~·••··~~.~~·~~m<)u~··· Fee Schedule Underinvestment· 

0.500% on first $750 million of assets 

0.475% on next $750 million of assets 

0.450% on next $1 billion of assets 

0.430% on next $2.5 billion of assets 

0.420% thereafter 

12.EQ/T. Rowe Price Growth Stock Portfolio 

it'lZrn.•••R.9~·~.·••f riij·e·•···•~ro\1vth••·•S!9•¢k····. ·····portfolio 

I?~~···•s~li~a·~1e·•··.u1it1~·t••·1:u~~~tffi~iit :.:::: ::.:: ::.:~.:<·.:::·:.::·.::: .:::.:-: C:· -:·: ,:->::: :.::·:,.::. :· .. ,.,::::: _·:: ··: :· ., :·:·· :·.·:·::.· ::·:· 

.•Niat1a•2~111~r.t• A2r~¢·J!t~flt$ 

2010 - 8/31/2012 

0. 800% on first $400 million of assets 

0.750% on next $400 million of assets 

0. 700% thereafter 

9/1/2012 - 2015 

0. 7 50% on first $1 billion of assets 

0. 700% on next $1 billion of assets 

0.675% on next $3 billion of assets 

0.650% on next $5 billion of assets 

0.625% thereafter 

18 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 18 of 72 PageID: 11759
III. Sub-Advisory Agreements 

21. For all years at issue in this action, Defendants contracted with third-parties 

called "Sub-Advisers". 

22. For all years at issue in this action, the Sub-Advisers were paid a 

subadvisory fee ("Sub-Advisory Fee") pursuant to the Investment Advisory 

Agreements. 

IV. The Sub-Advisers 

23. From July 2010, to the date of these Stipulated Facts, the Sub.-Adviser for 

the EQ/Comnion Stock Index Portfolio was AllianceBemstein, L.P. 

24. From January 2012 to the date of these Stipulated Facts, the Sub-Adviser 

for the EQ/Core Bond Index Portfolio was SSgA Funds Management, Inc. 

25. From July 2010 to the date of these Stipulated Facts, the Sub-Adviser for the 

EQ/Equity 500 Index Portfolio was AllianceBemstein, L.P. 

26. From July 2010 to June 20, 2014 (when the EQ/Equity Growth PLUS 

Portfolio was acquired by the EQ/Large Cap Growth PLUS Portfolio), the SubAdviser for the active sleeve of the EQ/Equity Growth PLUS Portfolio was 

BlackRock Capital Management, Inc. and the Sub-Adviser for the index sleeve 

was BlackRock Investment Management, LLC. 

27. From July 2010 to the date of these Stipulated Facts, the Sub-Adviser for the 

EQ/GAMCO Small Company Value Portfolio was GAMCO Asset Management, 

Inc. 

28. From January 2012 to the date of these Stipulated Facts, the Sub-Adviser 

for the active sleeve of the EQ/Global Bond PLUS Portfolio was First International 

Advisors, LLC & Wells Capital Management, Inc. and the Sub-Adviser for the 

index sleeve was BlackRock Investment Management, LLC. 

29. From July 2010 to July 2013, the Sub-Adviser for the active sleeve of the 

EQ/Global Multi-Sector Equity Portfolio was Morgan Stanley Investment 

Management, Inc. and the Sub-Adviser for the index sleeve was BlackRock 

Investment Management, LLC. From July 2013 to the date of these Stipulated 

Facts, the Sub-Adviser for one active sleeve of the EQ/Global Multi-Sector Equity 

19 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 19 of 72 PageID: 11760
Portfolio was Morgan Stanley Investment Management, Inc., the Sub-Adviser for 

the second active sleeve was OppenheimerFunds, Inc., and the Sub ... Adviser for the 

index sleeve was BlackRock Investment Management, LLC. 

30. From July 2010 to the date of these Stipulated Facts, the Sub-Adviser for the 

EQ/Intermediate Government Bond Index Portfolio was SSgA Funds 

Management, Inc. 

31. From July 2010 to July 2013, the Sub-Adviser for the active and index 

sleeves of the EQ/Large Cap Value PLUS Portfolio was AllianceBemstein, L.P. 

From July 2013 to May 2014, the Sub-Adviser for the index sleeve and one active 

sleeve of the EQ/Large Cap Value PLUS Portfolio was AllianceBemstein L.P ., the 

Sub-Adviser for the second active sleeve was BlackRock Investment Management, 

LLC, and FMG managed ETFs in the Portfolio's ETF sleeve. From May 2014 to 

the date of these Stipulated Facts, the Sub-Adviser for the index sleeve and one 

active sleeve· of the EQ/Large Cap Value PLUS Portfolio was AllianceBemstein 

L.P., the Sub-Adviser for the second active sleeve was BlackRock Investment 

Management, LLC, the Sub-Adviser for the third active sleeve was Massachusetts 

Financial Services Company d/b/a MFS Investment Management, and FMG 

managed ETFs in the Portfolio's ETF sleeve. 

32. From July 2010 to June 2013, the Sub-Adviser for the index sleeve of the 

EQ/Mid Cap Value PLUS Portfolio was BlackRock Investment Management, 

LLC, the Sub-Adviser for the active sleeve was Wellington Management 

Company, LLP, and AXA (until May 1, 2011) and FMG (from May 1, 2011 

forward) managed ETFs in the Portfolio's ETF sleeve. From June 2013 to the date 

of these Stipulated Facts, the Sub-Adviser for the index sleeve of the EQ/Mid Cap 

Value PLUS Portfolio was BlackRock Investment Management, LLC, the SubAdviser for one active sleeve was Wellington Management Company LLP, the 

Sub-Adviser for the second active sleeve was Diamond Hill Capital Management, 

LLC, and FMG managed ETFs in the Portfolio's ETF sleeve. 

33. From January 2012 to the date of these Stipulated Facts, the Sub-Adviser for 

the EQ/PIMCO Ultra Short Bond Portfolio was Pacific Investment Management 

Company, LLC. 

34. From January 2012 to the date of these Stipulated Facts, the Sub-Adviser for 

the EQ/T. Rowe Price Growth Stock Portfolio was T. Rowe Price Associates, Inc. 

20 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 20 of 72 PageID: 11761
V. Administrative Agreement 

35. On and after May 1; 2011, FMG had a Mutual Funds Service Agreement 

("FMG Administrative Agreement") with EQAT relating to the Funds. The FMG 

Administrative Agreement was amended and restated as of April 1,.2015. 

36. From May 1, 2000 to May 1, 2011, AXA had a Mutual Funds Service 

Agreement with EQAT relating to the Funds ("AXA Administrative Agreement" 

and together with FMG Administrative Agreement, the "Administrative 

Agreements"). 

3 7. The Administrative Agreements contain or contained the following fee 

schedules: 

1. For the Single-Advised Portfolios (EQ/Common Stock Index 

Portfolio, EQ/Core Bond Index Portfolio, EQ/Equity 500 Index 

Portfolio, EQ/GAMCO Small Company Value Portfolio, 

EQ/Intermediate Government Bond Index Portfolio, 

EQ/PIMCO Ultra Short Bond Portfolio, EQ/T. Rowe Price 

Growth Stock Portfolio) 

> : ; : : :: §i9~l~ .. ~~Xi~~~ ~()rt(9Ye~ v :: >:: : ( 

Fe¢·. Scbe<l4Je JJ1nl~tA<l.tn.ini$ttat;ve .f\greemellt 

2010 - 8/31/2013 

0.120% on first $3 billion of assets 

0 .110% on next $3 billion of assets 

0.105% on next $4 billion of assets 

0.100% on the next $20 billion of assets 

0.0975% thereafter based on aggregate average daily net assets of the 

Portfolios 

Plus $30,000 per Portfolio 

9/1/2013 -- 8/31/2014 

0.120% on first $3 billion of assets 

0 .110% on next $3 billion of assets 

0.105% on next $4 billion of assets 

0 .100% on the next $20 billion of assets 

0.0975% thereafter based on aggregate average daily net assets of the 

Single-Advised Portfolios 

Plus $30,000 for each Portfolio with average net assets of less than $5 

billion. 

21 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 21 of 72 PageID: 11762
9/1/2014 - 2015 

Greater of $30,000 per Portfolio or, 

0 .120% of first $3 billion of assets 

0 .110% of next $3 billion of assets 

0.105% of next $4 billion of assets 

0 .100% of next $20 billion of assets 

0.0975% of next $10 billion of assets 

0.0950% thereafter based on aggregate average daily net assets of the 

Single-Advised Portfolios 

2. For the Multi-Subadvised/Hybrid Portfolios (EQ/Equity 

Growth PLUS Portfolio, EQ/Global Bond PLUS Portfolio, 

EQ/Global 'Multi-Sector Equity Portfolio, EQ/Large Cap 

Value PLUS Portfolio, EQ/Mid Cap Value PLUS PQrtfolio) 

M~I~J2$11h~A¥i~~~/'~'1'Y~ti~" g~rtt9~Ii(j~ , · F~es~i.~dg.I,·Vntll'~ Atliniili$ttP.ttYe.A2re~ment······. 

5/1/2009 - 7/31/2010 

0.150% of each Portfolio's average daily net assets 

Plus $35,000 per Portfolio 

Plus $35,000 for each allocated portion of the Portfolio 

8/1/2010 - 8/31/2013 

0.150% on first $20 billion of assets 

0.125% on next $5 billion of assets 

0.100% thereafter based on aggregate average daily net assets of the 

Hybrid Portfolios 

Plus $32,500 per Portfolio 

Plus $32,500 for each allocated portion of the Portfolio 10 

9/1/2013 - 8/31/2014 

0 .150% on first $20 billion of assets 

0 .110% on next $5 billion of assets 

0.100% thereafter based on aggregate average daily net assets of the 

Hybrid Portfolios 

Plus $32,500 for each Portfolio with average net assets of less than $5 

billion 

9/1/2014 - 8/31/2015 

Greater of $32,500 per Portfolio or, 

0.150% on first $15 billion of assets 

1

° From September 1, 2012 to August 31, 2013, the $32,500 fee for each allocated portion of the 

Portfolios only applied to Portfolios for which separate custodial services· were provided. 

22 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 22 of 72 PageID: 11763
0 .110% of next $5 billion of assets 

0.100% thereafter based on aggregate average daily net assets of the 

Hybrid Portfolios 

9/1/2015 

Greater of $32,500 per Portfolio or, 

0.150% on first $14 billion of assets 

0 .110% on next $6 billion of assets 

0 .100% on next $5 billion of assets 

0.0975% thereafter based on aggregate average daily net assets of the 

Hybrid Portfolios 

VI. Sub··Administration Agreement 

38. On and after May 1, 2011, FMG contracted with JPMorgan Chase Bank 

N.A. ("JPMorgan") as a sub-administrator. 

39. From May 1, 2000 to May 1, 2011, AXA contracted with Chase Global 

Funds Services Company as a sub-administrator (together with JPMorgan, the 

"Sub-Administrator"). 

40. Defendants entered into Mutual Funds Sub-Administration Agreements 

("Sub-Administration Agreements") with the Sub-Administrator. The SubAdministration Agreement between FMG and JPMorgan was amended and 

restated as of April I, 2015. 

41. For all years at issue in this action, the Sub-Administrator was paid a subadministration fee ("Sub-Administration Fee") pursuant to the Sub-Administration 

Agreements. 

VII. Sub-Advisory Fees 

42. The amount of the Sub-Advisory Fees, which are calculated at an annual rate 

and paid at the end of each calendar month, were determined pursuant to the 

following schedules: 

23 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 23 of 72 PageID: 11764
1. EQ/Common Stock Index Portfolio 

~~~: .. $~1J~4μ:,~ tr~~~*' $iJ_~,~~~9i 

························{i\.gt~~~~n.t .........•......... 

················••• (A.JUa11.;~Jl~r11~t~i11···.L·2~J.·· 2010-2014 

0.050% on all assets 

2. EQ/Core Bond Index Portfolio 

··~~~:•·$·~.~·~CJ.9l~•·Vf:!4.~t•·•~fllj.~~yi~9.D7 

.:.·······•·>•• .. •<<>····: .. · .~~r~¢Jfi~~t ........................ <.••· >•·r SS. A Flil:J.<l$ Ma'.l~~. ··· ~m¢!tt,11i~~·· 

2010-2014 

0.020% on first $2 billion of assets 

0. 015% thereafter 

3. EQ/E ui 500 Index Portfolio 

.· ·r:e~·Scb~i.1.~;~~ rr~~~*~1l~a~~s()Jt 

.· .... · .... ·• Agr-~~melJ.t•• ·••·· ············.A1Uan¢¢1\¢r11stei1t t.r~ 

2010-2014 

0.050% on first $1 billion of assets 

0.030% thereafter 

4. EQ/Equity Growth PLUS Portfolio 

.f~~S~fle(JμI~ 1Jgder···~1.l!)~(Jyiso..Y·. 

~g.-e¢1li¢1it 

·· .. ··<1l•~c~g~.~·····~~ ~~tm~llt•M~.~·~~~J.tt~iit < : • : : ~l..i<f ~ < : 

:••~f ~~$•••ll~§~g·••8~·········~!1~••••··~9!;ig~i •. o~··t11~····.· J>ottfolio;~sass~t§ alJ,()<;ti!eg.tQ tb.eSulJs f 

A.a.Y1s~r) 1: y······· 

2010-2014 

Index Allocated Portion 

0.075% on first $5 billion of assets 

0.055% on next $5 billion of assets 

0.050% thereafter 

11 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

24 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 24 of 72 PageID: 11765
2010-2014 

Active Allocated Portion12 

0.400% on first $100 million of assets 

0.375% on next $200 million of assets 

0.350% on next $200 million of assets 

0.325% on next $500 million of assets 

0.300% thereafter 

5. EQ/GAMCO Small Com an Value Portfolio 

~·~~· s~ll~~ti1e p-9a~~··Sllb11<l~s()rY···· ~greem~11J . G-mco A$s¢t Mana .·.·~01ent ·bi¢. 

2010-2014 

0.400% on first $1 billion of assets 

0 .300% thereafter 

6. EQ/Global Bond PLUS Portfolio 

~e~•i•$c~~~·t11~•:·•·Y~~~r:••~11.~~~Yi$9i:•••·•·• . , . .J\~reellt~llt • . : > l / (J.lla,c~9~k 1Pcv~~tqt~nt•·Nl8.9ag~m~nt·> 

. ················/ >•/\<:····.\ ..•.•.• :Ij~(jl.········>••.•·······················•< :.••••••········: C(~e$•·1'~~·t~··••s~··••tne•·••P~J:ti2~·•of•tq~.··•· •....•.•.•...•.. 

Portfolio's assets allocated to theSub~ 

· Adwser) · 

2011-2014 

0.020% on all assets 

. ····.· ~~¢. S~l:l~<ti•le••\J"J!d.~t§μl.)~tl"Vi$qey<······· ... .Agt¢¢ment (We~l~··•·•<J.~·piJal···M~J)ag~gt~J1t•.••I11~•·••••11p.tl·•·•. 

Firstll1t~ff.l~tionafl\tfvis9r$) .. . 

J(e~s ~c:t$~c1 <?ii Ufe 1'>9#R>P. ()ftb.¢·:_ .... ·.··1>hrt:fdt1o'·s··a.sseis··· aHoc~tecf·•10·•tne•••s:as~ 

····A.awse:tJ••••· 

2010-2014 

0 .300% on first $100 million of assets 

12 The Active Allocated Portion of this Portfolio was subadvised by BlackRock Capital 

Management, Inc. 

25 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 25 of 72 PageID: 11766
0 .200% on next $50 million of assets 

0.150% thereafter 

7. EQ/Global Multi-Sector Equity Portfolio 

F.e!••···~f~e~·~·,···~~~·~t-•••§~.~~~~i~·~·~ :· . ~~~~.~~~~ c > ; 

w~ ... ~~~ -~~~'~1~~ lr:tx-~~!~~.l!t ··· · 

·•·••···.···•·•·••••·••·•·•<·.·····••· '1:~~,~~lll.~~·~'·•.•!M~.·>•• .. •·•·•• ~f ees·•·•1'~~t:~·····g~•·•Il:tr•••·~•<>irti?~···qf ~~~.•• ..•.•. •··•·••Portfolio's •.. ass~!~·a,}l(.)P~tedto.the•.Sub~ 

lA4vi&etJ 

2010-2014 

1. 000% on first $100 million of assets 

0.800% on next $300 million of assets 

0.600% on next $100 million of assets 

0 .400% thereafter 

. ···•<~~~··~c~~~~~~:·~~~er··~·~~~~~.~~•'t•····· . . Agr:"emel!t:-. : · . · · : It · (Qlll.~.~9¢•1'••·•1pyestmeitt••·M1lllllg~•me.nt··· . . -~~.(Z) 

(f~¢s·§~~~9 p~(tlie port1()I1'. cjf:t~e > .•·Portfolio's•·•·assets.·aUocated••to .• tfie·.••S-ub~ 

A.Civis¢t)~ ••·•··. 

2010-2014 

0.075% on first $5 billion of assets 

0.055% on next $5 billion of assets 

0.050% thereafter 

Fe~ ScJ1~4μ1~ 1JJ:!4~t ~9J>~tl\rist)ry 

. . ..... ·· .......... ~gf¢~!11¢Ji.t> 

...•.••. <Sl,PP~~~~b11et-~it~4s, !~~~). ./. . (f ~~s.••l:>ased••pnthe····poft:iog.c>f .tll.e·•··•· 

· ·Porifolio~s assetsal1ocate&t0 the Sub.; 

13 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

26 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 26 of 72 PageID: 11767
2013 -2014 

0.450% on first $50 million of assets 

0 .400% thereafter 

8. E /Intermediate Government Bond Index Portfolio 

J?~~••••·~·~·~·~·~·~,~···•··~~·~~r-:·•••s•~~~.~~~~~ SS 1\. :Fu.n(ls ••!:i·····~~:t°.~~~~J.1.~j.:Tr/ Mana· ·ement <·}······························ Inc~ .. 

2010-2014 

0. 020% on first $2 billion of assets 

0.015% thereafter 

9. EQ/Large Cap Value PLUS Portfolio 

·· ···••·••)1·~~•·••$.clje~·111~:••J.Tlld.~J" .. ·.•s1.1~~t1'1~9·ry-··· 

· · . .. ..~~t~~wellt . ·< 

•.•...• <J\.!li~~ll!~~e~ns~e~p.·.·~··f .}······ .• · 

~f e~·~··•·R·~~~····.°11.•tlie••.•••.•por:ti.Q~•·••Pf.~11¢············:• ....... • ... . Phrtf Qliqrs···a.~s~t~··(lllpqat~d.t9.• tb~<Sub~········ 

AdviserlH 

2010-2014 

Active Allocated Portion 

0.490% on first $100 million of assets 

0.300% on next $100 million of assets 

0 .250% thereafter 

July 2010-2014 

Index Allocated Portion 

0.075% on first $5 billion of assets 

0.055% on next $5 billion of assets 

0.050% thereafter 

14 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

15 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

27 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 27 of 72 PageID: 11768
•·•··• ~~~,~~~~~~~~~~~~¥ :~~.~.~~~~~!•<< : : >. ·: :~~r~~~~~~ .,, T:>:r (!JJ~c~9c;~•·IP~~~~m~~~ 1\1:.~.ti~g~m~ll~···•·••: . . .} '. ;:~~~> r . : 

...........•...... <f~¢~••·•Rei~7g•;•2~···••tll~•~·R~~ig~ 2~·~11e•••·.•···· .· >Rortfolio}s:·assets•.auocated··to tlie•·•Sub# 

.••..•...• ! .• ~a¥~~·er) ·~ 

2013-2014 

0.400% on first $100 million of assets 

0.375% on next $200 million of assets 

0.350% on next $200 million of assets 

0.325% on next $500 million of assets 

0.300% thereafter 

······~·~·~·····~·~~·~~MJ~:•••.~~.~·~r•·••.§•~ ~~.~~~·~ · ·•.··· ··.·<····• ·······>··· <·••· <~gr~~m~~tr>•·•·······••••••·> <••·•·•·<···· <•·····•.•······. 

<~§!1"!~~~~~~9tM11~l1g~~~J1~J 

• i (fe~§ ~~~~~ 8~ ;~e 1>()~~9R: C>~t!i~ : < . 

Portfoliots··assetsallocatedto·•the.Sub;;;. · 

··.·· A4Yiser)17< 

2014 

0.400% on first $300 million of assets 

0.375% on next $300 million of assets 

0 .350% thereafter 

10.EQ/Mid Cap Value PLUS Portfolio 

········•· :~~ ~~~~~~~~"~·~ri§~~~~~~~~ . . .. : : : . . .: . ~g~~~~~"~ < ;./ ·: > 

(Jll~.'-?l<)l.~~1$·•·l11y~.~.pli.~~.~··•.~~9.~g~.R1~9~. 

· .... ········· .................... 1"'~Gl (fe¢s ll~~eq ()titli.e ppfti91'l. oft}l.¢ > 

.···•PC>rtfolio}s a$~_ets~Uocat~dtC> the Sub+ 

16 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

17 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

28 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 28 of 72 PageID: 11769
2010-2014 

0.075% on first $5 billion of assets 

0.055% on next $5 billion of assets 

0.050% thereafter 

ir.~~•·.·•~c~~<1μ1¢ .. Y#d.~r•.••$1l1J'tlyisC>fY 

··.•// •..•.•. <>·•:~~~¢¢11J.~ll~./••··················>·.····· •...... OV~Iimgtt>n·••M~bf.tg¢11t~11t•i.~•olll.P.•~ii)r,••.•: 

.. :··· . . .. ~~~).. ·> .. 

(fee~•·ilJ~~e~··••Bn•tH~··•P()11io11•••2•~···~~~ J>ottfolio's·•·ass~ts ~~l2c.~!e<lto•.the ... Sub~ 

A.dvisetJ. 

2010-2014 

0.550% on first $150 million of assets 

0.450% thereafter 

lf~i $~~~(:tij1~·JJJ1a~r $111l~ctY.•~9rY · · 

·••·••····•:••·•••:•·······: ·•·•• \ •• i\.~r~~lli~JJ.!··•·······••.·•·····•·············>·····•····' / . > <J.l-•~91l~.··••.Q:iJ.J••·•~.aeital••·Nf~r.t·~g¢m~11t 

·.····•····.···<>·•· ... ·············iLC) .. · ... >>··.•.········· ... • 

<!~~~.·•§~s~e·•·o~•••~~·.··••••J>§~fg*····gf .J~e J>Ottfc>Ho'$••·assets•·.a11<::>cated to.the· •SuH$ Ad¥js~r1 9: 

2013.,... 2014 

0.550% on first $50 million of assets 

0. 500% on next $50 million of assets 

0.450% thereafter 

18 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

19 The portion of the Portfolio's assets allocated to the Sub-Adviser are aggregated with those of 

other portfolios or allocated portions that are managed by the Sub-Adviser and have the same 

investment strategy. 

29 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 29 of 72 PageID: 11770
11.EQ/PIMCO Ultra Short Bond Portfolio 

~.~·~:·~·(!~~~~i~i:~~~.~~••···~·~·~'~Xi~()•~····~gr.~~·m~»t ..... ·.·· .... ~~ificJPY~$®ent'M~m1 ·· e,gumt ~9m LL@ 

2010-2014 

0 .150% on all assets 

12.EQ/T. Rowe Price Growth Stock Portfolio 

~~~ ~~~~~~~;y,~~~~'~:~~~~~.i,~~I .... ><•••X••··············•·<I: ..... ·•.t\.~r~~m~p.t••K<I····· <<<·<:····· 

.· . . ~ fl\. Row~ frice Asso~i~fes,Jn~!) 

2010-2014 

0 .400% on first $250 million of assets 

0.375% on next $250 million of assets 

0.350% on next $500 million of assets 

0.350% fee on all assets once assets 

exceed $1 billion 

43. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the 

EQ/Common Stock Index Portfolio from 2010 to 2014 were: 

2010 

$2,421,062 

2011 

$2,449,890 

2012 

$2,390,873 

2013 

$2,625,765 

2014 

$2,832,443 

TOTAL 

$12,720,033 

44. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the EQ/Core 

Bond Index Portfolio from 2010 to 2014 were: 

2010 

$921,872 

2011 

$1,125,066 

2012 

$1,060,703 

2013 

$1,194,221 

2014 

$1,355,503 

TOTAL 

$5,657,365 

45. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the 

EQ/Equity 500 Index Portfolio from 2010 to 2014 were: 

2010 

$1,028,713 

2011 

$1,076,679 

2012 

$1,109,128 

2013 

$1,275,835 

30 

2014 

$1,438,523 

TOTAL 

$5,928,878 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 30 of 72 PageID: 11771
46. The Sub-Advisory Fees paid to the Sub-Advisers with respect to the 

EQ/Equity Growth PLUS Portfolio from 2010 to 2014 were: 

2010 

$2,385,935 

2011 

$2,405,695 

2012 

$2,150,730 

2013 

$1,485,340 

2014 

$356,852 

TOTAL 

$8,784,552 

47. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the 

EQ/GAMCO Small Company Value Portfolio from 2010 to 2014 were: 

2010 

$5,925,175 

2011 

$7,225,765 

2012 

$7,480,437 

2013 

$9,196,650 

2014 TOTAL 

$10,028,593 $39,856,620 

48. The Sub-Advisory Fees paid to the Sub-Advisers with respect to the 

EQ/Global Bond PLUS Fund from 2010 to 2014 were: 

2010 

$956,144 

2011 

$992,944 

2012 

$637,460 

2013 

$463,539 

2014 

$372,513 

TOTAL 

$3,422,600 

49. The Sub-Advisory Fees paid to the Sub-Advisers with respect to the 

EQ/Global Multi-Sector Equity Portfolio from 2010 to 2014 were: 

2010 

$5,016,325 

2011 

$5,078,750 

2012 

$4,675,472 

2013 

$5,200,176 

2014 

$5,514,057 

TOTAL 

$25,484, 780 

50. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the 

EQ/Intermediate Government Bond Index Portfolio from 2010 to 2014 were: 

2010 

$364,906 

2011 

$426,437 

2012 

$1,202,720 

2013 . 

$1,247,383 

2014 

$1,280,777 

TOTAL 

$4,522,223 

51. The Sub-Advisory Fees paid to the Sub-Advisers with respect to the 

EQ/Large Cap Value PLUS Portfolio from 2010 to 2014 were: 

2010 

$4,816,204 

2011 

$4,542,377 

2012 

$4,124,604 

2013 

$5,756,966 

2014 TOTAL 

$9,082,261 $28,322,411 

52. The Sub-Advisory Fees paid to the Sub-Advisers with respect to the EQ/Mid 

Cap Value PLUS Portfolio from 2010 to 2014 were: 

2010 

$2,841,598 

2011 

$3,230,044 

2012 

$2,978,533 

31 

2013 

$3,690,923 

2014 TOTAL 

$4,112,725 $16,853,823 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 31 of 72 PageID: 11772
53. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the 

EQ/PIMCO Ultra Short Bond Portfolio from 2010 to 2014 were: 

2010 

$4,218,396 

2011 

$5,232,548 

2012 

$4,963,499 

2013 

$4,094,348 

2014 TOTAL 

$3,080,987 $21,589,778 

54. The Sub-Advisory Fees paid to the Sub-Adviser with respect to the EQ/T. 

Rowe Price Growth Stock Portfolio from 2010 to 2014 were: 

2010 

$2,361,687 

2011 

$2,806,118 

2012 

$3,13_6,555 

2013 

$2,647,404 

2014 TOTAL 

$2,242,946 $13,194,710 

VIII. Sub-Administrative Fees 

55. The amount of the Sub-Administrative Fees were determined pursuant to the 

fee schedules set forth below: 

1. For the EQ/Common Stock Index Portfolio, EQ/Core Bond 

Index Portfolio, EQ/Equity 500 Index Portfolio, EQ/GAMCO 

Small Company Value Portfolio, EQ/Intermediate 

Government Bond Index Portfolio, EQ/PIMCO Ultra Short 

Bond Portfolio, EQ/T. Rowe Price Growth Stock Portfolio 

~~~- S¢ti~d#1e una~r $116+.A4fuinistt~#ilti-t\.g~~~m~~t$ ·. < 

2010 ... 2015 ' ' . 

Charges Based on AUM 

Annual Fixed Charge 

32 

0. 0150% on first $3 billion of assets 

0.0125%% on next $3 billion of assets 

0. 0100% on next $4 billion of assets 

0.0075% on next $10 billion of assets 

$15,000 for Portfolios with assets less 

than $100 million 

$20,000 for Portfolios with assets 

greater than $100 million 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 32 of 72 PageID: 11773
2. For the EQ/Equity Growth PLUS Portfolio, EQ/Global Bond 

PLUS Portfolio, EQ/Global Multi-Sector Portfolio, EQ/Large 

Cap Value PLUS Portfolio, EQ/Mid Cap Value PLUS Portfolio 

Charges Based on AUM 0. 0150% on first $3 billion of assets 

0.0125% on next $3 billion of assets 

0.0100% on next $4 billion of assets 

0.0075% on next $10 billion of assets 

Annual Fixed Charge Composite fee $2,000 

Per sleeve fee $25,000 

56. The fees paid to the Sub-Administrator with respect to the EQ/Common 

Stock Index Portfolio from 2010 to 2014 were: 

2010 

$415,018 

2011 

$416,791 

2012 

$405,492 

2013 

$439,049 

2014 

$468,276 

TOTAL 

$2,144,626 

57. The fees paid to the Sub-Administrator with respect to the EQ/Core Bond 

Index Portfolio from 2010 to 2014 were: 

2010 

$466,801 

2011 

$573,526 

2012 

$536,341 

2013 

$601,994 

2014 

$682,325 

TOTAL 

$2,860,987 

58. The fees paid to the Sub-Administrator with respect to the EQ/Equity 500 

Index Portfolio from 2010 to 2014 were: 

2010 

$245,347 

2011 

$256,658 

2012 

$264,299 

2013 

$306,131 

2014 

$346,674 

TOTAL 

$1,419,109 

59. The fees paid to the Sub-Administrator with respect to the EQ/Equity 

Growth PLUS Portfolio from 2010 to 2014 were: 

2010 

$199,876 

2011 

$194,455 

2012 

$181,200 

2013 

$141,463 

2014 

$45,687 

TOTAL 

$762,681 

60. The fees paid to the Sub-Administrator with respect to the EQ/GAMCO 

Small Company Value Portfolio from 2010 to 2014 were: 

2010 2011 2012 2013 2014 TOTAL 

33 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 33 of 72 PageID: 11774
$153,899 $188,057 $194,142 $237,986 $258,164 $1,032,248 

61. The fees paid to the Sub-Administrator with respect to the EQ/Global Bond 

PLUS Portfolio from 2010 to 2014 were: 

2010 

$158,936 

2011 

$163,813 

2012 

$115,672 

2013 

$94,840 

2014 

$77,340 

TOTAL 

$610,601 

62. The fees paid to the Sub-Administrator with respect to the EQ/Global MultiSector Equity Portfolio from 2010 to 2014 were: 

2010 

$274,546 

2011 

$268,694 

2012 

$246,385 

2013 

$272,800 

2014 

$292,546 

TOTAL 

$1,354,971 

63. The fees paid to the Sub-Administrator with respect to the EQ/Intermediate 

Government Bond Index Portfolio from 2010 to 2014 were: 

2010 

$168,857 

2011 

$197,862 

2012 

$612,627 

2013 

$630,419 

2014 

$642,921 

TOTAL 

$2,252,686 

64. The fees paid to the Sub-Administrator with respect to the EQ/Large Cap 

Value PLUS Portfolio from 2010 to 2014 were: 

2010 

$347,237 

2011 

$322,431 

2012 

$292,308 

2013 

$397,702 

2014 

$569,825 

TOTAL 

$1,929,503 

65. The fees paid to the Sub-Administrator with respect to the EQ/Mid Cap 

Value PLUS Portfolio from 2010 to 2014 were: 

2010 

$233,506 

2011 

$227,900 

2012 

$212,177 

2013 

$252,512 

2014 

$288,753 

TOTAL 

$1,214,848 

66. The fees paid to the Sub-Administrator with respect to the EQ/PIMCO Ultra 

Short Bond Portfolio from 2010 to 2014 were: 

2010 

$249,451 

2011 

$302,548 

2012 

$286,771 

2013 

$237,980 

2014 

$182,553 

TOTAL 

$1,259,303 

67. The fees paid to the Sub-Administrator with respect to the EQ/T. Rowe Price 

Growth Stock Portfolio from 2010 to 2014 were: 

2010 2011 2012 2013 2014 TOTAL 

34 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 34 of 72 PageID: 11775
$70,829 $81,292 $90,808 $81,439 $71,801 $396,169 

IX. The EQAT Board 

68. With one exception,20 the trustees on the EQAT Board are not employed by 

FMGorAXA. 

69. Since July 2010, the trustees on the EQAT Board who are not employed by 

FMG or AXA have included: 

NAME TIME PERIOD 

Theodossios Athanassiades March 2000 to February 2014 

Jettie Edwards March 1997 to March 2015 

Donald E. Foley January 2014 to date of Stipulated Facts 

David Fox May 2000 to December 2012 

William Keams, Jr. March 1997 to December 2014 

Christopher Komisarjevsky March 1997 to date of Stipulated Facts 

H. Thomas McMeekin January 2014 to date of Stipulated Facts 

Harvey Rosenthal March 1997 to date of Stipulated Facts 

Gary Schpero May 2000 to date of Stipulated Facts 

Kenneth Walker January 2012 to date of Stipulated Facts 

Caroline Williams January 2012 to date of Stipulated Facts 

70. Morgan, Lewis & Bockius LLP21 is legal counsel to the trustees on the 

EQAT Board who are not employed by FMG or AXA. 

71. The Board has five regularly scheduled meetings each year, including four 

quarterly meetings and an annual contract renewal meeting in July. 

72. K&L Gates LLP is legal counsel to the EQAT. 

20 The one exception is Steven M. J oenk. 

21 The attorneys from Morgan, Lewis, & Bockius LLP who are counsel to the trustees on the 

EQAT Board who are not employed by FMG or AXA were formerly affiliated with the law firm 

Bingham Mccutchen, LLP, which ceased operations in late November 2014. 

35 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 35 of 72 PageID: 11776
4. PLAINTIFFS' CONTESTED FACTS (State separately for each 

plaintiff. Proofs shall be limited at trial to the matters set forth below. Failure 

to set forth any matter shall be deemed a waiver thereof). 

A. Plaintiffs intend to prove the following contested facts with regard to . 

liability: 

1. Plaintiffs intend to prove the following facts pertaining to liability set 

forth in Exhibit A, attached hereto. Attached as Exhibit A-1 hereto 

are tables referenced in Exhibit A. 

B. Plaintiffs intend to prove the following contested facts with regard to 

damages: (This must include each item of damages, the amount of each item, 

the factual basis for each item and, if punitive damages are claimed, the facts 

upon which plaintiff will rely to establish punitive damages). 

1. Plaintiffs intend to prove the following facts pertaining to damages, 

also set forth in Exhibit A, attached hereto. Attached as Exhibit A-1 

hereto are tables referenced in Exhibit A. 

5. DEFENDANTS' CONTESTED FACTS (State separately for each 

defendant. See instructions above). 

A. Defendants intend to prove the following contested facts with regard to 

liability: 

1. Defendants intend to prove the following facts pertaining to liability 

set forth in Exhibit B, attached hereto. 

B. Defendants intend to prove the following contested facts with regard to 

damages (This must include each item of damages, the amount of each 

item, the factual basis for each item and, if punitive damages are 

claimed, the facts upon which plaintiff will rely to establish punitive 

damages). 

1. Defendants intend to prove the following facts pertaining to damages, 

also set forth in Exhibit B, attached hereto. 

36 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 36 of 72 PageID: 11777
6. PLAINTIFFS'WITNESSES (Aside from those called for impeachment 

purposes, only those witnesses whose names and addresses are listed below 

will be permitted to testify at trial). 

a. On liability, plaintiffs intend to call the following witnesses who will 

testify in accordance with the following summaries: 

1. Alwi Chan: Mr. Chan is a Senior Vice President of Defendant FMG and a 

Vice President of Defendant AXA Equitable Life Insurance Company, and will be 

called as a hostile witness pursuant to Evid. Rule 61 l(c)(2). Mr. Chan will testify 

to the nature of Defendants' investment management business, including but not 

limited to: the investment management services provided by FMG, the FMG 

employees who provide investment management services, the trusts/funds that 

FMG manages, the investment management services performed by Sub-Advisors, 

Sub-Advisory fees, the process for hiring, firing and monitoring Sub-Advisors, 

fund guidelines, fund performance and his separate work for AXA Equitable Life 

Insurance Company. 

2. Mary Cusack: Ms. Cusack is a Plaintiff and a security holder in the 

following funds: the Core Bond Index Fund, the Large Cap Value PLUS Fund and 

the Mid Cap Value PLUS Fund. She will testify regarding her general knowledge 

of the funds and_ fees, the harms that shareholders and the funds have suffered due 

to the Defendants' actions, her experience as an investor in the mutual funds 

operated by Defendants and her desire to protect the other shareholders of the 

funds. 

3. Robert Cusack: Mr. Cusack is a Plaintiff and a security holder in the 

following funds: the Core Bond Index Fund, the Large Cap Value PLUS Fund and 

the Mid Cap Value PLUS Fund. He will testify regarding: his general knowledge 

of the funds and fees, the harms that shareholders and the funds have suffered due 

to the Defendants' actions, his experience as an investor in the mutual funds 

operated by Defendants and his desire to protect the other shareholders of the 

funds. 

4. Patricia Lynn: Ms. Lynn is a Plaintiff in this case and is a security holder in 

the following funds: the PIMCO Ultra Short Bond Fund, the Global Bond PLUS 

Fund, the Mid Cap Value PLUS Fund and the GAMCO Small Company Value 

Fund. She will testify regarding: her general knowledge of the funds and fees, the 

harms that shareholders and the funds have suffered due to the Defendants' 

37 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 37 of 72 PageID: 11778
actions, her experience as an investor in the mutual funds operated by Defendants 

and her desire to protect the other shareholders of the funds. 

5. Brian Sanchez: Mr. Sanchez is a Plaintiff in this case and is a security 

holder in the following funds: the Global Multi-Sector Equity Fund and the Large 

Cap Value PLUS Fund. Mr. Sanchez will testify regarding: his general knowledge 

of the funds and fees, the harms that shareholders and the funds have suffered due 

to the Defendants' actions, his experience as an investor in the mutual funds 

operated by Defendants and his desire to protect the other shareholders of the 

funds. 

6. Glenn Sanford: Mr. Sanford is a Plaintiff in this case and is a security 

holder in the following funds: the Large Cap Value PLUS Fund, the Global MultiSector Equity Fund, the T.Rowe Price Growth Stock Fund and the GAMCO Small 

Company Value Fund. Mr. Sanford will testify regarding: his general knowledge 

of the funds and fees, the harms that. shareholders and the funds have suffered due 

to the Defendants' actions, his experience as an investor in the mutual funds 

operated by Defendants and his desire to protect the other shareholders of the 

funds. 

7. Mary Ann Sivolella: Ms. Sivolella is a Plaintiff in this case and is a security 

holder in the following funds: the Large Cap Value PLUS Fund, the Mid Cap 

Value PLUS Fund, the Equity Growth PLUS Fund, the Common Stock Fund, the 

Equity 500 Index Fund, the Intermediate Government Bond Fund, the Global 

Multi-Sector Equity Fund, and the GAMCO Small Company Value Fund. Ms. 

Sivolella will testify regarding: her general knowledge of the funds and fees, the 

harms that shareholders and the funds have suffered due to the Defendants' 

actions, her experience as an investor in the mutual funds operated by Defendants 

and her desire to protect the other shareholders of the funds. 

8. William Tucker: Mr. Tucker is a Plaintiff in this case and is a security 

holder in the following funds: the T. Rowe Price Growth Stock Fund and the 

GAMCO Small Company Value Fund. Mr. Tucker will testify regarding: his 

general knowledge of the funds and fees, the harms that shareholders and the funds 

have suffered due to the Defendants' actions, his experience as an investor in the 

mutual funds operated by Defendants and his desire to protect the other 

shareholders of the funds. 

38 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 38 of 72 PageID: 11779
9. Steven Joenk: Mr. Joenk is CEO of Defendant, FMG, a Senior Vice 

President of Defendant AXA Equitable Life Insurance Company, and Director on 

the EQAT Board. Mr. Joenk will be called as a hostile witness pursuant to Evid. 

Rule 61 l(c)(2). It is anticipated that Mr. Joenk will testify to the nature of 

Defendants' business including but not limited to FMG's investment management 

and administration contracts, the investment management and administration 

services provided by FMG, the FMG employees who provide investment 

management and administration services, the trusts/funds that FMG manages and 

to which FMG provides administration services, the services performed by SubAdvisors, Sub-Advisory contracts, the services performed by the SubAdministrator, the Sub-Administration contacts, FMG's expenses, FMG's shared 

services contract with AXA Equitable Life Insurance Company, FMG's 

involvement in the 15( c) process, the information FMG provided to the EQAT 

Board, the EQAT Board's involvement in the 15(c) process, FMG's interaction 

with the EQAT Board, FMG's exchange of information with the EQAT Board, 

FMG's fees, Sub-Advisory fees, Sub-Administration fees, and other fees paid by 

the trust/funds, his role on the Board, and FMG's services to AXA Equitable Life 

Insurance Company. 

10. Patricia Louie: Ms. Louie is a Senior Vice President and Corporate Counsel 

ofFMG, and will be called as a hostile witness pursuant to Evid. Rule 61 l(c)(2). 

Ms. Louie will testify to the nature of Defendants' business including but not 

limited to FMG's investment management and administration contracts, the 

investment management and administration services provided by FMG, the FMG 

employees who provide investment management and administration services, the 

trusts/funds that FMG manages and to which FMG provides administration 

services, the services performed by Sub-Advisors, Sub-Advisory contracts, the 

services performed by the Sub-Administrator, the Sub-Administration contacts, 

FMG's expenses, FMG's shared services contract with AXA Equitable Life 

Insurance Company, FMG's involvement in the 15(c) process, the EQAT Board's 

involvement iQ the EQAT process, FMG's interaction with the EQAT Board, 

FMG's and AXA Equitable' s representation by Fund legal counsel, K&L Gates, 

FMG's exchange of information with the EQAT Board, FMG's fees, SubAdvisory fees, Sub-Administration fees, other fees paid by the trust/funds and 

FMG's services to AXA Equitable Life Insurance Company. 

11. Xavier Poutas: Mr. Poutas is an Assistant Vice President ofFMG and will 

be called as a hostile witness pursuant to Evid. Rule 61 l(c)(2). Mr. Poutas will 

testify to the nature of Defendants' investment management business, including but 

not limited to: the investment management services provided by FMG, the FMG 

39 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 39 of 72 PageID: 11780
employees who provide investment management services, the trusts/funds that 

FMG manages, the investment management services performed by Sub-Advisors, 

Sub-Advisory fees, the process for hiring and monitoring Sub-Advisors, fund 

guidelines, fund performance, FMG's and the Sub-Advisors use of Exchange 

Traded Funds ("ETFs") and the ATM Strategy for certain funds, and his work for 

AXA Equitable Life Insurance Company. 

12. Brian Walsh: Mr. Walsh is a Senior Vice President and Lead Director of 

FMG and Vice President of AXA Equitable Life Insurance Company, and will be 

called as a hostile witness pursuant to Evid. Rule 61 l(c)(2). Mr. Walsh will testify 

to the nature of Defendants' business including but not limited to FMG's 

investment management and administration contracts, the investment management 

and administration services provided by FMG, the FMG employees who provide 

investment management and administration services, the trusts/funds that FMG 

manages and to which FMG provides administration services, the services 

performed by Sub-Advisors, Sub-Advisory contracts, the services performed by 

the Sub-Administrator, the Sub-Administration contacts, FMG's expenses, FMG's 

shared services contract with AXA Equitable Life Insurance Company, FMG's 

involvement in the 15( c) process, the EQAT Board's involvement in the EQAT 

process, FMG's interaction with the EQAT Board, FMG's exchange of 

information with the EQAT Board, FMG's fees, Sub-Advisory fees, SubAdministration fees, the manner in which the Sub-advisors and the SubAdministrator are paid, other fees paid by the trust/funds and FMG's services to 

AXA Equitable Life Insurance Company. 

13. Jettie Edwards: Ms. Edwards is a former Director of the EQ Advisors Trust 

("EQAT Board"). Portions of her video deposition testimony will be admitted by 

agreement of the parties under Evid. Rule 804(b )( 1 ). Ms. Edwards will testify 

about her involvement with the EQAT Board, Board compensation, the Board's 

interactions with and oversight ofFMG, Board processes including the 15(c) 

process, her knowledge of Defendants' business including but not limited to 

FMG's investment management and administration contracts, the investment 

management and administration services provided by FMG, the FMG employees 

who provide investment management and administration services, the trusts/funds 

that FMG manages and to which FMG provides administration services, the 

services performed by Sub-Advisors, Sub-Advisory contracts, the services 

performed by the Sub-Administrator, the Sub-Administration contacts, FMG's 

expenses, FMG's shared services contract with AXA Equitable Life Insurance 

Company, FMG's involvement in the 15(c) process, the EQAT Board's 

involvement in the 15(c) process, FMG's interaction with the EQAT Board, 

40 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 40 of 72 PageID: 11781
FMG's exchange of information with the EQAT Board, FMG's fees, SubAdvisory fees, Sub-Administration fees, other fees paid by the trust/funds. 

14. Harvey Rosenthal: Harvey Rosenthal is a Director on the EQAT Board 

whose deposition testimony will be admitted by agreement of the parties under 

Evid. Rule 804(b)(l). Mr. Rosenthal will testify about his involvement with the 

EQAT Board, Board member compensation, the Board's interactions with and 

oversight of FMG, Board processes including the 15( c) process, his knowledge of 

Defendants' business including but not limited to FMG's investment management 

and administration contracts, the investment management and administration 

services provided by FMG, the FMG employees who provide investment 

management and administration services, the trusts/funds that FMG manages and 

to which FMG provides administration services, the services performed by SubAdvisors, Sub-Advisory contracts, the services performed by the SubAdministrator, the Sub-Administration contacts, FMG's expenses, FMG's shared 

services contract with AXA Equitable Life Insurance Company, FMG's 

involvement in the 15(c) process, the EQAT Board's involvement in the 15(c) 

process, FMG's interaction with the EQAT Board, FMG's exchange of 

information with the EQAT Board, FMG's fees, Sub-Advisory fees, SubAdministration fees, and other fees paid by the trust/funds. 

15. Gary Schpero: Gary Schpero is the Lead Director of the EQAT Board, 

whose deposition testimony will be admitted by agreement of the parties under 

Evid. Rule 804(b)(l). Mr. Schpero will testify about his involvement with the 

EQAT Board, Board member compensation, the Board's interactions with and 

oversight of FMG, Board processes including the 15( c) process, his knowledge of 

Defendants' business including but not limited to FMG' s investment management 

and administration contracts, the investment management and administration 

services provided by FMG, the FMG employees who provide investment 

management and administration services, the trusts/funds that FMG manages and 

to which FMG provides administration services, the services performed by SubAdvisors, Sub-Advisory contracts, the services performed by the SubAdministrator, the Sub-Administration contracts, FMG's expenses, FMG's shared 

services contract with AXA Equitable Life Insurance Company, FMG's 

involvement in the 15(c) process, the EQAT Board's involvement in the 15(c) 

process, FMG's interaction with the EQAT Board, FMG's exchange of 

information with the EQAT Board, FMG's fees, Sub-Advisory fees, SubAdministration fees, and other fees paid by the trust/funds. 

41 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 41 of 72 PageID: 11782
16. Russell Warren: Mr. Warren is an employee of JPMorgan Chase Bank, 

N .A. ("JPMorgan") whose deposition testimony will be admitted by agreement of 

the parties under Evid. Rule 804(b)(l). Mr. Warren will testify to JPMorgan's 

Sub-Administration Agreement with FMG, its fund accounting and administrative 

services under the Sub-Administration Agreement, its fees and the manner in 

which it is paid, JPMorgan's expenses, JPMorgan's interaction with FMG and the 

EQAT Board, JPMorgan' s profit and other contractual services that JPMorgan 

provides to Defendants. 

17. Harvey Rosen: Mr. Rosen is an Executive Director of JPMorgan Chase 

Bank, N.A. ("JPMorgan") and Global Head of Fund Accounting which provides 

mutual fund accounting and mutual fund administrative services. Mr. Rosen will 

testify to JPMorgan's Sub-Administration Agreement with FMG, its fund 

accounting and administrative services under the Sub-Administration Agreement, 

its fees and the manner in which it is paid, JPMorgan's expenses, JPMorgan's 

interaction with FMG and the EQAT Board, JPMorgan' s profit and the services 

that JPMorgan provides to Defendants. 

18. Martin Jennings: Mr. Jennings is a partner with PricewaterhouseCoopers, 

LLP, ("PwC") whose deposition testimony will be admitted by agreement of the 

parties under Evid. Rule 804(b)(l). Mr. Jennings will testify to PwC's services to· 

Defendants' and/or the EQAT Board, Defendant's revenue, profit and expenses 

attributable to the Investment Management and Administration Agreements, 

PwC's interaction with Defendants and the EQAT Board and the financials that 

PwC' s prepares for Defendants. 

19. A Corporate Representative of BlackRock, Inc. and/or BlackRock, 

Investment Management, LLC: A corporate representative BlackRock, Inc. 

and/or BlackRock, Investment Management, LLC (collectively "BlackRock") will 

be subpoenaed to testify to BlackRock' s services, fees, expenses, profitability 

(including that reported in BLKOOOOl produced in discovery) relating to its SubAdvisory Agreements with FMG for the Global Multi-Sector Equity Fund. 

b. On damages, plaintiffs intend to call the following witnesses who will 

testify in accordance with the following summaries: 

Given the nature of this case, portions of the testimony of most liability 

witnesses identified above will generally relate to the issue of damages. The basis 

for Plaintiffs damages and the quantum of Plaintiffs' damages, however, are based 

on the opinions Plaintiffs' experts identified below. 

42 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 42 of 72 PageID: 11783
C. Defendants object to the following witnesses for the reasons stated: 

1. Harvey Rosen: Defendants object to Plaintiffs' use of Harvey 

Rosen's deposition testimony, provided in the action Kasilag v. 

Hartford Investment Financial Serv's, LLC, No. 11-1083 (D.N.J.), as 

inadmissible hearsay that is not subject to the former testimony 

hearsay exception in Rule 804(b)(l) ofthe Federal Rules of Evidence. 

Mr. Rosen is an employee of JPMorgan Chase Bank, N.A. 

("JPMorgan") and a resident of Massachusetts. Mr. Rosen was 

deposed on February 4, 2015 in an entirely different action brought by 

Plaintiffs' counsel, to which Defendants are not parties-Kasilag v. 

Hartford Inv. Fin. Servs., LLC, No. 11-1083 (D.N.J.). Federal Rule of 

Evidence 804(b )( 1) provides that such testimony is not admissible 

unless it is "offered against a party who had - or, in a civil case, whose 

predecessor in interest had - an opportunity and similar motive to 

develop it by direct, cross-, or redirect examination." Plaintiffs cannot 

meet this exception on its face. Neither Defendant is a party nor a 

predecessor in interest to any party in the Kasilag matter and thus 

neither had an opportunity to develop any testimony during Mr. 

Rosen's deposition by direct, cross, or redirect examination. 

Defendants and Plaintiffs also have no agreement to allow Mr. 

Rosen's deposition testimony in this matter. 

7. DEFENDANTS' WITNESSES (See instructions above). 

A. On liability, defendants intend to call the following witnesses who will 

testify in accordance with the following summaries: 

1. Steven M. Joenk 

Address: AXA Equitable Funds Management Group, LLC 

1290 Avenue of the Americas, 16th Floor 

New York, New York 10104 

Steven M. Joenk serves as Chairman, President, and Chief Executive Officer 

of the EQ Advisors Trust ("EQAT"). He is a Managing Director of AXA, and Chief 

Executive Officer, Chairman and President ofFMG, with responsibility for 

directing all strategic and financial activities ofFMG. 

Mr. Joenk will testify regarding the characteristics of the Funds and AXA's 

variable annuity products through which they are offered as investment options. He 

will testify generally regarding the nature and quality ofFMG's investment 

43 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 43 of 72 PageID: 11784
management services, including the Funds' investment strategies and 

restructurings; research, monitoring, and due diligence on subadvisers; asset 

allocation for Funds with multiple subadvisers; monitoring fund performance; 

direct portfolio management services; Board governance; compliance; legal and 

regulatory; valuation; provision of personnel, equipment, and facilities to EQAT; 

and establishing new funds. He will further testify regarding the nature and quality 

ofFMG's administrative services, including shareholder reporting and regulatory 

filings; Board governance and shareholder meetings; fund accounting; calculating 

and distributing the Funds' dividends and capital distributions; overseeing the 

Subadministrator's calculation of the Funds' net asset values (''NAV") and 

correcting errors; supervising and coordinating the Funds' annual audit; supervising 

and coordinating activities of the Funds' service providers; and compliance-related 

administrative services. He will also testify regarding the services performed on 

behalf of FMG by the Subadvisers and the Subadministrator. 

Mr. Joenk will testify regarding the benefits of the "manager-of-managers" 

structure and the administrator/sub-administrator structure used by Defendants in 

connection with their management and administration of the Funds. He will testify 

to the various risks incurred by FMG in serving as investment manager and 

administrator of the Funds. He will testify regarding the services provided to the 

Funds by FMG's parent company AXA and the riS.ks to which AXA is exposed as 

sponsor of the Funds. He will t~stify regarding the Funds' investment management 

and administrative fees, comparisons of the Funds' investment management and 

administrative services fees, total expense ratios, the ''spread" between the fees paid 

to FMG and the Subadvisers and Subadministrator, respectively, and component 

fee "spreads" to peer funds. He will testify regarding the scope of the Shared 

Services Agreement ("SSA") between FMG and AXA. He will testify to FMG's 

interaction with and reliance on AXA. He will testify regarding FMG's 

methodology for allocating costs to the Funds, the profitability realized by FMG 

from the management and administration of the Funds, and profitability 

comparisons between FMG and other investment managers. Mr. Joenk will testify 

to FMG's potential economies of scale and methods of sharing potential economies 

of scale. He will testify regarding FMG's realization of fall-out benefits, if any, · 

from managing the Funds. He will testify regarding the independence and · 

conscientiousness of the Independent Trustees. He will also testify regarding the 

annual contract renewal process mandated by Section 15( c) of the ICA, including 

the preparation and dissemination by FMG of voluminous reports, presentations, 

and other materials to the Independent Trustees. In addition, Mr. Joenk may testify 

regarding Plaintiffs' alleged damages. 

44 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 44 of 72 PageID: 11785
The above summary is not an exhaustive synopsis of all facts to which Mr. 

Joenl< may testify. 

2. James D. Kelly 

Address: AXA Equitable Funds Management Group, LLC 

1290 Avenue of the Americas, 16th Floor 

New York, New York 10104 

James D. Kelly serves as the Controller ofEQAT and is a member of the 

EQAT Valuation Committee. He is a Senior Director of AXA and Vice President 

of FMG. Mr. Kelly is responsible for daily administrative operations and reporting 

for EQAT. Mr. Kelly works in FMG's Fund Administration Group. 

Mr. Kelly will testify regarding the nature and quality ofFMG's fund 

administration services, including financial reporting, tax matters, shareholder 

reporting and regulatory filings; Board governance and shareholder meetings; fund 

accounting; calculating and distributing the Funds' dividends and capital 

distributions; overseeing the calculation of the Funds' NAV; managing and 

coordinating the Funds' annual audit; managing and coordinating activities of the 

Funds' service providers; and the risks that FMG bears as administrator to EQAT. 

He will also testify regarding the nature and quality of FM G's valuation services 

and the functions performed by the Valuation Committee. Mr. Kelly will also 

testify to the nature of administrative services performed by the Subadministrator 

on behalf ofFMG. He will also testify to the Fund Administration Group's reliance 

on and interaction with AXA. In addition, he will testify regarding information 

provided to the Board regarding FMG's fund administration services. 

The above summary is not an exhaustive synopsis of all facts to which Mr. 

Kelly may testify. 

3. Kenneth T. Kozlowski 

Address: AXA Equitable Funds Management Group, LLC 

1290 A venue of the Americas, 16th Floor 

New York, New York 10104 

Kenneth T. Kozlowski is a Managing Director of AXA and Executive Vice 

President and Chief Investment Officer ofFMG. He is the head of the Investment 

Management Services unit within FMG. 

Mr. Kozlowski will testify to the nature and quality of investment 

management services that FMG provides to the Funds, including the Funds' 

investment strategies and restructurings; researching, selecting, monitoring, and 

45 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 45 of 72 PageID: 11786
performing due diligence on subadvisers; asset allocation for Funds with multiple 

subadvisers; monitoring and evaluating fund performance; direct portfolio 

management services; Board governance; valuation; and establishing new funds. 

Mr. Kozlowski will also testify regarding the uses and benefits of the Funds' ETF 

sleeves managed by FMG and FMG' s proprietary volatility management overlays 

(the "ATM Strategy") utilized by certain of the Funds. Mr. Kozlowski will also 

testify to the performance of the Funds, and changes that have been made to the 

Funds over time. He will further testify regarding materials and presentations 

furnished to the Board relating to investment management services and the Funds' 

performance. Mr. Kozlowski will also provide testimony regarding the nature of 

the services performed by the Subadvisers on behalf ofFMG. He will also testify 

regarding this Investment Management Services unit's reliance on and interaction 

with AXA. 

The above summary is not an exhaustive synopsis of all facts to which Mr. 

Kozlowski may testify. 

4. Patricia Louie, Esq. 

Address: AXA Equitable Funds Management Group, LLC 

1290 A venue of the Americas, 16th Floor 

New York, New York 10104 

Patricia Louie serves as Vice President and Secretary ofEQAT. She is a 

Managing Director and Associate General Counsel of AXA and an Executive Vice 

President and General Counsel of FMG. Ms. Louie is the head of the Law 

Department's Funds Management Group, which is responsible for all legal and 

compliance activities relating to AXA' s proprietary asset management activities. 

Ms. Louie will testify regarding the nature and quality ofFMG's 

management services, including Board governance, Board process, and legal and 

regulatory services. She will also testify regarding the nature and quality ofFMG's 

administrative services, including shareholder reporting and regulatory filings, 

facilitating Board governance and shareholder meetings, negotiating contractual 

arrangements and coordinating audits and third-party service providers. She will 

further testify regarding FMG' s various agreements with EQAT and service 

providers, including the Investment Management Agreements between FMG and 

EQAT, the Mutual Funds Service Agreement between FMG and EQAT, the 

Advisory Agreements between FMG and the Subadvisers, and the 

Subadministration Agreement between FMG and the Subadministrator. She will 

also testify regarding the independence and conscientiousness of the Independent 

Trustees. She will testify regarding the annual contract renewal process mandated 

46 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 46 of 72 PageID: 11787
by Section 15( c) of the ICA, including the preparation and dissemination by FMG 

of voluminous reports, presentations, and other materials to the Board. She will 

further testify regarding the role of counsel for EQAT and the Independent 

Trustees. She will testify regarding the risks that FMG bears as investment 

manager to EQAT. She will also testify to FMG legal department's interaction with 

and reliance upon AXA. In addition, she will testify about the information 

provided to the Board regarding FMG's legal services. 

The above summary is not an exhaustive synopsis of all facts to which Ms. 

Louie may testify. 

5. Joseph J. Paolo 

Address: AXA Equitable Funds Management Group, LLC 

1290 A venue of the Americas, 16th Floor 

New York, New York 10104 

Joseph J. Paolo is a Lead Director of AXA, a Senior Vice President and the 

Chief Compliance Officer ofFMG, and Chief Compliance Officer and Anti-Money 

Laundering Compliance Officer ofEQAT. As Chief Compliance Officer, Mr. 

Paolo oversees FMG's dedicated compliance unit. 

Mr. Paolo will testify regarding the nature and quality of the compliancerelated services that FMG provides to the Funds, including the development and 

execution of EQAT's mandatory compliance program and FMG's compliance 

program. He will also testify regarding FMG's daily and monthly compliance 

testing of Subadvisers, quarterly compliance reviews for the purpose of reporting to 

the EQAT Board, the Annual Assessment of the Trust's Compliance Program 

furnished to the Board, ETF review and monitoring, code of ethics and conflict 

management, anti-money laundering oversight, and regulatory filings and audits. 

He will further testify to the due diligence FMG performs on Subadvisers and 

potential subadvisers, the Subadministrator, and other of the Funds' service 

providers. He will also testify to the valuation services that FMG performs. In 

addition, Mr. Paolo will testify to the risks that FMG bears as EQAT's manager and 

administrator. Mr. Paolo will further testify to the nature of administrative 

compliance services performed by the Subadministrator on FMG's behalf, as well 

as FMG's use of outside consultants. He will also testify regarding FMG's 

compliance unit's reliance on and interaction with AXA. In addition, he will testify 

regarding information provided to the Board regarding FMG's compliance services. 

The above summary is not an exhaustive synopsis of all facts to which Mr. 

Paolo may testify. 

47 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 47 of 72 PageID: 11788
6. Brian E. Walsh 

Address: AXA Equitable Funds Management Group, LLC 

1290 Avenue of the Americas, 16th Floor 

New York, New York 10104 

Brian Walsh serves as Chief Financial Officer and Treasurer of EQAT and is 

a member of the Valuation Committee. He is a Lead Director of AXA and Senior 

Vice President and Lead Director ofFMG. He is responsible for the coordination 

ofEQAT's audits, financial statements and ongoing oversight ofEQAT's 

accounting matters. 

Mr. Walsh will testify regarding the nature and quality ofFMG's 

administrative services, including financial reporting, tax matters, shareholder 

reporting and regulatory filings; Board governance and shareholder meetings; fund 

accounting; calculating and distributing the Funds' dividends and capital 

distributions; overseeing the calculation of the Funds' NAV; managing and 

coordinating the Funds' annual audit; managing and coordinating activities of the 

Funds' service providers; and the risks that FMG bears as administrator to EQAT. 

He will also testify regarding the nature and quality ofFMG's valuation services 

and the functions performed by the Valuation Committee. Mr. Walsh will further 

testify to the nature of administrative services performed by the Subadministrator 

on behalf ofFMG. He will also testify to the Fund Administration Group's reliance 

on and interaction with AXA. In addition, he will testify regarding information 

provided to the Board regarding FMG's fund administration services. 

The above summary is not an exhaustive synopsis of all facts to which Mr. 

_ ~ Walsh may testify. 

" _.(~ 7. H. Thomas McMeekin 

~~ \' Address: 495 Bow Line Drive 

~ . Naples, Florida 34103 

f{\ H. Thomas McMeekin has served as an Independent Trustee of the EQAT 

~ ~ .. \Rt Board of Trustees ("EQAT Board") since January 1, 2014. Mr. McMeekin is 

K}V'1' currently a Co-Chair of the Board's Investment Committee. Mr. McMeekin has a 

~ 'P background in the financial services industry, has held senior management positions 

~ with insurance companies, and has multiple years of service on public and private 

vJ\:'\0 vb( company boards and organizations . . W~, 

~ 

~ fP ~ If called, Mr. McMeekin will testify regarding the independence and 

~onscientiousness of the Independent Trustees, particularly with regard to the 

M.'.lA Vl's .. ,, ... v \\ ( 

yi· 48 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 48 of 72 PageID: 11789
experience and qualifications of the Independent Trustees, the negotiations between 

the Independent Trustees and FMG, and the Board process and preparation for 

Board meetings. He will testify to the amount and type of information the Board 

receives and considers in renewing the Funds' contracts, including information 

relating to the nature and quality of FMG's services, FMG's potential realization of 

economies of scale, profitability from management of the Funds, fee comparisons 

with other investment advisers, and fall-out benefits. Mr. McMeekin will also 

testify regarding the Board's consideration of the services performed by FMG, the 

Subadvisers and Subadministrator, respectively, the "spread" between the 

management fee and subadvisory fees, and the risks FMG bears as a manager-ofmanagers and as the administrator of the Funds. He will also testify regarding the 

conclusions reached by the Board with respect to the reasonableness of the 

management and administrative fees charged to the Funds by FMG. 

The above summary is not an exhaustive synopsis of all facts to which Mr. 

McMeekin may testify. · 

8. Gary S. Schpero 

Address: 28 Rowayton Avenue 

Rowayton, Connecticut 06853 

Gary S. Schpero is the Lead Independent Trustee of the Board of Trustees of 

the EQ Advisers Trust. Mr. Schpero has experience as the managing director of the 

investment management practice group at a large international law firm, Simpson 

Thacher & Bartlett LLP, and multiple years of service as a Trustee of the Trust. 

Mr. Schpero will testify regarding the independence and conscientiousness of 

the Independent Trustees, particularly with regard to the experience and 

qualifications of the Independent Trustees, the negotiations between the 

Independent Trustees and FMG, and the Board process and preparation for Board 

meetings. He will testify to the amount and type of information the Board receives 

and considers in renewing the Funds' contracts, including information relating to 

the nature and quality ofFMG's services, FMG's potential realization of economies 

of scale, profitability from management of the Funds, fee comparisons with other 

investment advisers, and fall-out benefits. Mr. Schpero will testify regarding the 

Board's consideration of the services performed by FMG and the subadvisers and 

sub-administrator, the "spread" between the management fee and subadvisory fees, 

and the risks FMG bears as a manager-of-managers and as the administrator of the 

Funds. He will also testify regarding the conclusions reached by the Board with 

regard to the reasonableness of the management and administrative fees charged to 

the Funds by FMG. 

49 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 49 of 72 PageID: 11790
The above summary is not an exhaustive synopsis of all facts to which Mr. 

. 'j> Schpero may testify. 

PJI~~~ 6

. ~~=~~ ~9~~: Road ~}~~ Robbinsville, New Jersey 08691 

"';J '~. Caroline L. Williams is an Independent Trustee of the EQAT Board, and has 

f-\~'9- ;>°held this position from January 2012 to the present. Ms. Williams is currently the 

c}""' ~ Chair of the Board's Audit Committee. Ms. Williams has a background in the 

financial services industry and has senior management experience with an 

investment banking firm and multiple years of service on the boards of public and 

private companies and organizations. 

\

I I 

':> If called, Ms. Williams will testify regarding the independence and 

conscientiousness of the Independent Trustees, particularly with respect to the 

experience and qualifications of the Independent Trustees, the negotiations between 

the Independent Trustees and FMG, and the Board process and preparation for 

Board meetings. She will testify to the amount and type of information the Board 

receives and considers in renewing the Funds' contracts, including information 

relating to the nature and quality ofFMG's services, FMG's potential realization of 

economies of scale, profitability from management of the Funds, fee comparisons 

with other investment advisers, and fall-out benefits. Ms. Williams will testify 

regarding the Board's consideration of the services performed by FMG, the 

Subadvisers and the Subadministrator. She will also testify regarding the "spread" 

between the management fee and subadvisory fees, and the risks FMG bears as a 

manager-of-managers and as the administrator of the Funds. She will also testify 

regarding the conclusions reached by the Board with regard to the reasonableness of 

the management and administrative fees charged to the Funds by FMG. 

The above summary is not an exhaustive synopsis of all facts to which Ms. 

Williams may testify. 

7. William T. MacGregor, Esq. 

Address: UBS Global Asset Management Inc. 

1285 Avenue of the Americas 

New York, NewYork 10019 

Mr. Macgregor is a former employee of Defendants, who was a member of 

FMG's Legal group. 

50 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 50 of 72 PageID: 11791
If called, Mr. MacGregor will testify regarding the process for Board 

meetings. 

The above summary is not an exhaustive synopsis of all facts to which Mr. 

MacGregor may testify. 

8. Jettie M. Edwards 

Ms. Edwards is an Independent Trustee of the Board of Trustees ofEQAT, 

whose deposition testimony will be admitted under Fed. R. Evid. 804(b)(l). Ms. 

Edwards is a former partner and consultant of Syrus Associates (a business and 

marketing consulting firm) and a former director of Old Mutual Funds. 

Ms. Edwards will testify regarding the independence and conscientiousness 

of the Independent Trustees, particularly with regard to the experience and 

qualifications of the Independent Trustees, the negotiations between the 

Independent Trustees and FMG, and the Board process and preparation for Board 

meetings. She will testify to the amount and type of information the Board receives 

and considers in renewing the Funds' contracts, including information relating to 

the nature and quality of FM G's services, FM G's potential realization of economies 

of scale, profitability from management of the Funds, fee comparisons with other 

investment advisers, and fall-out benefits. Ms. Edwards will testify regarding the 

Board's consideration of the services performed by FMG and the subadvisers and 

sub-administrator, respectively. She will also testify regarding the conclusions 

reached by the Board with regard to the reasonableness of the management and 

administrative fees charged to the Funds by FMG. 

9. Harvey Rosenthal 

Mr. Rosenthal is an Independent Trustee of the Board of Trustees ofEQAT, 

whose deposition testimony will be admitted under Fed. R. Evid. 804(b)(l). Mr. 

Rosenthal is Former President and COO of Melville Corporation; former CEO of 

the CVS Division of Melville Corporation. 

Mr. Rosenthal will testify regarding the independence and conscientiousness 

of the Independent Trustees, particularly with regard to the experience and 

qualifications of the Independent Trustees, the negotiations between the 

Independent Trustees and FMG, and the Board process and preparation for Board 

meetings. He will testify to the amount and type of information the Board receives 

and considers in renewing the Funds' contracts, including information relating to 

the nature and quality ofFMG's services, FMG's potential realization of economies 

of scale, profitability from management of the Funds, fee comparisons with other 

51 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 51 of 72 PageID: 11792
investment advisers, and fall-out benefits. Mr. Rosenthal will testify regarding the 

Board's consideration of the services performed by FMG and the subadvisers and 

sub-administrator, respectively. He will also testify regarding the "spread'' between 

the management fee and subadvisory fees. He will also testify regarding the 

conclusions reached by the Board with regard to the reasonableness of the 

management and administrative fees charged to the Funds by FMG. 

10. Russell Warren 

Mr. Warren is an employee of JPMorgan Chase Bank, N.A. ("JPMorgan") 

whose deposition testimony will be admitted under Fed. R. Evid. 804(b)(l). Mr. 

Warren will testify regarding his understanding of the administrative services 

provided to the EQAT funds by Defendants and JP Morgan, respectively. 

11. Martin Jennings 

Mr. Jennings is a partner with PricewaterhouseCoopers, LLP, ("PwC") 

whose deposition testimony will be admitted by agreement of the parties under Fed. 

R. Evid. 804(b)(l). Mr. Jennings will testify regarding FMG's cost allocation 

methodology used to assess FMG's profitability and PwC's involvement in the 

development of that methodology. He will also testify as to audit and tax services 

provided to EQAT by PwC. 

12. Joseph Wiggins 

Mr. Wiggins is a partner with PwC whose deposition testimony will be 

admitted under Evid. Rule 804(b)(l). Mr. Wiggins will testify regarding FMG's 

cost allocation methodology used to assess FMG's profitability and PwC's 

involvement in the development of that methodology, and cost allocation 

methodologies more generally. · 

13. Edward Steinborn 

Mr. Steinborn is an employee of Wellington Management Company, LLP 

("Wellington") whose deposition testimony will be admitted under Fed. R. Evid. 

804(b)(l). Mr. Steinborn will testify regarding Wellington's revenues and expenses 

relating to its subadvisory services generally, and with respect to EQAT 

specifically. Mr. Steinborn will also testify as to the profitability to Wellington of 

its subadvisory fees. 

52 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 52 of 72 PageID: 11793
14. Francis M. Vitagliano 

Mr. Vitagliano is one of Plaintiffs' expert witnesses, and co-authored two 

expert reports with Richard Kopcke, Ph.D. Plaintiffs do not intend to call Mr. 

Vitagliano as a witness. If called, Mr. Vitagliano will testify regarding the bases for 

his conclusions, assumptions he made in arriving at those conclusions, his lack of 

experience regarding the topics on which he offers opinions, and his refusal to 

provide information concerning the methodology used to arrive at certain 

conclusions. 

15. Plaintiffs Mary Ann Sivolella, Glenn D. Sanford, Patricia F. Lynn, 

William R. Tucker, Brian A. Sanchez, Mary T. Cusack and Robert 

Cusack. 

Defendants may call Plaintiffs in this action as hostile witnesses pursuant to 

Fed. R. Evid. 61 l(c)(2), or by designation, to testify regarding their respective 

purchases of variable annuity contracts; their decisions to allocate contributions to 

the Funds; their knowledge of the fees and performance of the Funds; their receipt 

of documents disclosing the fees charged to the Funds and other information about 

the Funds; their knowledge of the management and administrative services 

provided to the Funds; their knowledge of the claims asserted against Defendants; 

and the circumstances surrounding the filing of the complaints in this action, and 

their respective involvement therewith. 

16. Other witnesses identified prior to trial, including any witnesses named 

by Plaintiffs. 

B. On damages, defendants intend to call the following witnesses who will 

testify in accordance with the following summaries: 

1. Defendants do not have an affirmative claim for damages. In defense of 

Plaintiffs' claim for damages, Defendants intend to rely upon the crossexamination of Plaintiffs' witnesses and the direct examinations of Dr. Christopher 

M. James and of Mr. Steven M. Joenk and Defendants' other liability witnesses, 

respectively. 

C. Plaintiffs object to the following witnesses for the reasons stated: 

1. Plaintiffs object to the testimony of Thomas McMeekin and Caroline 

Williams for the following reasons: 

53 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 53 of 72 PageID: 11794
a. The witnesses were not identified in Defendants' Rule 26( a) Disclosures and 

therefore, their testimony should be barred. 

b. The witnesses were added to the EQAT Board of Trustees during the course of 

the litigation: Mr. McMeekin in January 2014 and Ms. Williams in January 

2012. Defendants' Rule 26(a) Disclosures stated the following regarding the 

Trustees: 

The following Independent Trustees are reasonably likely to have discoverable 

information relevant to disputed facts alleged in the pleadings [Gary Schpero, Jettie 

Edwards, Harvey Rosenthal, and Christopher Komisarjefsky]. Each Independent Trustee 

can be contacted through the undersigned counsel for Defendants, who will coordinate 

with counsel for the Independent Trustees. Defendants specifically object to plaintiffs 

deposing all of the Independent Trustees on the grounds, among others, that any 

discoverable information can be obtained through the depositions of a small number of 

Independent Trustees. 

Based on the foregoing disclosure by Defendants, Plaintiffs deposed Mr. Schpero, 

Ms. Edwards and Mr. Rosenthal. Mr. Schpero is the Lead Trustee and was 

produced as the EQAT Board's 30(b)(6) witness. Given Defendants' objection and 

instruction to Plaintiffs regarding the Trustees, Defendants are barred from 

proffering the testimony of these two additional Trustees. 

2. Plaintiffs object to Defendants calling Plaintiffs' expert, Francis Vitagliano 

to testify for the defense. If Defendants are permitted to call Mr. Vitagliano, 

Plaintiffs' counsel will arrange for his live testimony in Court during Defendants' 

case in chief. Thus, the defense is not permitted to read in his deposition under 

Evid. Rule 804(b )(1 ). 

7. EXPERT WITESSES (No opposing coun_sel shall be permitted to 

question the expert's qualifications unless the basis of an objection is set forth 

herein). 

A. Plaintiffs' expert witnesses are: 

1. Kent Barrett, CPA: Mr. Barrett will provide expert testimony consistent 

with his reports dated June 11, 2014 and September 19, 2014. Mr. Barrett's 

testimony will include his opinions on FMG' s investment management and 

administration profit margins, FMG's genuine expenses, the misleading 

information FMG provides to the EQAT Board, the grossly overstated expenses 

54 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 54 of 72 PageID: 11795
FMG presents to the Board, the grossly understated profit FMG presents to the 

EQAT Board, the proper treatment of the sub-advisory and sub-administration 

fees, and the flaws in FMG's expense allocation methodology. Mr. Barrett has 

also quantified--- using FMG's own method -- the "fallout benefits" to FMG and 

AXA Equitable from the. variable annuity insurance products through which 

Plaintiffs' Funds are sold, that Defendants stopped reporting to the Board in or 

about 2006. Mr. Barrett will also offer opinions on economies of scale, and he will 

address the flaws with certain Defense experts' opinions as detailed in his rebuttal 

report. 

2. Phillip Goldstein: Mr. Goldstein will provide testimony consistent with the 

opinions in his initial and rebuttal reports. His opinions include EQAT Board's 

lack of diligence in reviewing and approving the subject agreements, its lack of 

care and understanding of basic information needed to evaluate FMG's fees; its 

lack of independence from Defendants, procedures the Board should have 

employed, and flaws with certain Defense experts' opinions as detailed in his 

rebuttal report. 

3. Ricbard_Kopcke, Ph.D.: Dr. Kopcke will provide expert testimony 

consistent with his reports dated June 11, 2014 and September 19, 2014. Dr. 

Kopcke will offer testimony that the investment management and administration 

fees FMG receives from the Subject Funds do not reflect an "arm's length'' fee, 

and that FMG's fees far exceed the fees that could have been negotiated by the 

EQAT for Plaintiffs' Funds with an independent investment manager or 

administrator. Dr. Kopcke will testify that arm's length fee for FMG's 

management services is .25 bps and an arm's length fee for its administration 

services is .5 bps. He will also offer testimony regarding any economies of scale 

and his opinion that FMG does not fairly share economies of scale with Plaintiffs' 

Funds. Dr. Kopcke will also address flaws with certain Defense experts' opinions 

as detailed in his rebuttal report. 

4. Steven Pomerantz, Ph.D. : Dr. Pomerantz will provide testimony 

consistent with the opinions in his initial and rebuttal reports. His testimony will 

include his opinions on: the level of services provided by FMG, the value of 

FMG's services, the poor performance of Plaintiffs' Funds, the impact ofFMG's 

poor performance on Plaintiffs' Funds, how FMG's fees compare and greatly 

exceed other investment advisors/service providers and industry averages, FMG's 

real expenses and true profit margin, industry average profit margins, how FMG's 

profit margins greatly exceed other those of other investment advisors/service 

providers and industry averages, how FMG's profit and profit margin are excessive 

55 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 55 of 72 PageID: 11796
in comparison to the 39% to 43% industry profit margin average, how FMG's fees 

are most comparable if a comparison must be made to those of index fund 

managers, economies of scale and the failure of FMG to fairly share economies of 

scale with the funds, "fall-out" benefits, the detrimental impact of excessive fee on 

retirement accounts, the damages suffered by Plaintiffs and will also address flaws 

with certain Defense experts' opinions as detailed in his rebuttal report. 

B. Defendants' objections to the qualifications of plaintiffs' expert are: 

1. Kent E. Barrett, CPA: Defendants object to the qualifications of Plaintiffs' 

expert Kent E. Barrett on the grounds that he lacks the qualifications to offer legal 

conclusions (which in any event are the province of the Court), yet he offers 

several opinions that are expressly based upon his understanding of certain legal 

standards or his interpretation of contracts. In the area of profitability, Mr. Barrett 

repeatedly invokes "the Gartenberg Standard," "Section 36(b) of the 1940 Act," 

"FMG's fiduciary duty," and other legal standards in connection with his opinions 

regarding how FMG reports profitability to the Board, how it accounts for 

subadvisory fees, and the allocation to FMG of a share of AXA's expenses. Mr. 

Barrett admitted at his deposition that he relied on his interpretation of Gartenberg 

in forming profitability opinions. In the area of services, Mr. Barrett expressly 

relies upon his interpretation of contracts including the "Management Agreement," 

"Administration Agreement," the "Sub-Administration Agreement," and the 

"Service Level Document" in connection with his opinion as to what services 

FMG itself performs and what services it delegates to others. In the area of fall-out 

benefits, Mr. Barrett offers a bald legal conclusion, referencing "the Gartenberg 

factors," that certain wrapper and general account profits constitute fall-out 

benefits. 

2. Philip Goldstein: Defendants object to the qualifications of Plaintiffs' 

expert Phillip Goldstein on the grounds that he lacks the qualifications to off er 

legal opinions (which in any event are the province of the Court), FMG's 

accounting practices, and economies of scale, all of which are topics with respect 

to which he lacks specialized knowledge. Mr. Goldstein's legal opinions include 

(i) his conclusion that the Board "did not exercise sufficient care and 

conscientiousness" in approving FMG's fees (which mimics the language of one of 

the Gartenberg factors), (ii) his conclusion that insurance wrapper fees are fall-out 

benefits (a legal determination), and (iii) his conclusion that FMG's fees "are so 

disproportionately large that they bear no reason able relationship to the actual 

services rendered ... and could not have been the product of arm's-length 

bargaining" (which represents an opinion on the ultimate legal issue in this case). 

56 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 56 of 72 PageID: 11797
As to accounting matters, Mr. Goldstein opines that FMG's expense allocation 

methodology is improper even though he admittedly has no accounting expertise. 

Mr. Goldstein's lack of accounting expertise also means he is not qualified to 

opine on purported fall-out benefits. Mr. Goldstein admittedly is not an economist 

or an expert in economies of scale, and therefore is not qualified to off er opinions 

on economies of scale. 

3~ Richard W. Kopcke, Ph.D.: Defendants object to the qualifications of 

Plaintiffs' expert Richard W. Kopcke, Ph.D. on the grounds that he offers legal 

conclusions and opinions relating to mutual fund management, administration, and 

governance with respect to which he lacks specialized knowledge. As to legal 

questions (which in any event are the province of the Court), Dr. Kopcke opines 

"[a]gainst the Gartenberg framework" that FMG's management and administration 

fees are "grossly excessive" in language that is couched in the precise language 

used in Section 36(b) case law. Dr. Kopcke's opinion regarding the services that 

FMG, the Subadvisers, and the Subadministrator each perform also is an 

unqualified legal opinion, because it is based on his interpretation of the 

Management, Administrative, Subadvisory, and Subadministration Agreements at 

issue in this case. As to mutual fund management, administration, and governance, 

Dr. Kopcke offers opinions regarding such matters as staffing, salaries and 

benefits, and the role of a mutual fund board, yet he has no· specialized knowledge 

on these topics, having never worked for a mutual fund investment adviser, 

participated in the management and administration of a mutual fund, served on a 

mutual fund board, or worked as a human resources professional. 

4. Steven Pomerantz, Ph.D.: Defendants object to the qualifications of 

Plaintiffs' expert Steve Pomerantz, Ph.D., on the grounds that he lacks specialized 

knowledge regarding many of the topics upon which he opines. Dr. Pomerantz 

lacks the qualifications to offer legal conclusions (which in any event are the 

province of the Court), yet he offers opinions on: (i) the breakdown in services 

among FMG, the subadvisers, and the sub-administrator based upon his legal 

interpretation of the service agreements at issue in this case; (ii) the role and 

responsibilities ofFMG and the Board, which are defined in large part by 

applicable legal standards; (iii) FMG's purported realization of "fall-out benefits," 

based upon his legal conclusion as to what constitutes a fall-out benefit; and (iv) 

Plaintiffs' purported damages, which (if any) would be defined by Section 36(b) 

and related law. Dr. Pomerantz also lacks specialized knowledge regarding the 

role and responsibilities of mutual fund boards, yet he purports to opine that the 

Board should have performed the investment management and administrative tasks 

that (according to Dr. Pomerantz) FMG performs. Dr. Pomerantz also lacks any 

57 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 57 of 72 PageID: 11798
specialized knowledge relating to the role of an adviser and administrator with 

respect to subadvised mutual funds, yet he summarily concludes that the 

subadvisers and sub-administrator perform virtually all of the management and 

administrative functions pertaining to the Funds. Dr. Pomerantz admittedly has no 

specialized knowledge as an accountant, yet he inappropriately purports to opine 

on the propriety of FMG accounting for subadvisory and sub-administrative fees as 

a business expense. Dr. Pomerantz also purports to calculate what he argues is 

FMG's true profitability (based upon a crude "revenue minus expenses divided by 

revenue" formula), even though he lacks the accounting qualifications to determine 

the proper method for calculating profitability, or to perform the actual 

calculations. Dr. Pomerantz also has no qualifications as an economist, yet he 

purports (i) to opine that FMG realizes economies of scale (a determination that 

requires a specialized analysis relating to costs per unit of production), and (ii) to 

then calculate those purported economies of scale. Finally, even though Dr. 

Pomerantz lacks specialized knowledge as an accountant or an economist, he 

purports to lay out various "approaches to measuring the amount of damages in 

this case," which amount to nothing more than back-of-the-envelope calculations 

that a lay person could perform. 

As explained supra at Section 2.B, Defendants intend to re-file in limine 

motions seeking to strike the expert testimony offered by Plaintiffs' experts. The 

aforementioned in limine motions include arguments based on the qualifications of 

Plaintiffs' experts, which are incorporated by reference herein, as well as the 

failure of Plaintiffs' experts' opinions to satisfy the fit and reliability requirements 

under the governing standard set forth in Daubert v. Merrell Dow 

Pharmaceuticals, 509 U.S. 579 (1993). See also, e.g., Oddi v. Ford Motor Co., 

234 F.3d 136, 144 (3d Cir. 2000); Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 

2003). 

C. Defendants' expert witnesses are: 

1. William W. Holder 

Address: University of Southern California 

Leventhal School of Accounting 

Los Angeles, California 90089-0441 

William W. Holder is currently the Dean of the Leventhal School of 

Accounting and holds the Alan Castlen Dean's Chair of Accountancy at the 

University of Southern California. His academic research and publications focus on 

the topics of financial accounting, financial reporting and auditing. 

58 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 58 of 72 PageID: 11799
Mr. Holder was retained by Defendants to develop independent opinions 

based on his perspective as an accounting expert. Mr. Holder analyzed and opined 

on the appropriateness of treating subadvisory and subadministration fees incurred 

by FMG as expenses of FMG and on the reasonableness of the methodology used 

by FMG to allocate costs to the 12 funds at issue in this litigation for the purposes 

of reporting FMG's profitability with respect to those funds to the Board. 

Mr. Holder will testify regarding the methodologies by which FMG reported 

profitability from its management and administration of the Funds to the Board, 

specifically that it is appropriate and consistent with Generally Accepted 

Accounting Principles ("GAAP") to treat subadviser and subadministration fees as 

expenses; that it is reasonable to include AXA's allocated expenses in the 

calculation of FM G's profitability; and that FMG's methodology for allocating 

expenses to the EQAT funds for the purposes of determining FMG's fund-by-fund 

profitability is reasonable. Mr. Holder will also testify regarding the opinions of 

Plaintiffs' accounting expert, Mr. Kent E. Barrett and may testify, in addition to the 

above opinions, that FMG's fund profitability presentations to the Board are 

complete and transparent, that FMG' s treatment of deferred acquisition costs is 

reasonable in calculating profitability, and concerning the calculation of purported 

"fall-out benefits" from general account spread and product wrapper revenues. He 

may also respond to these and other topics as they are presented in the expert 

testimony of Steve Pomerantz, Phillip Goldstein, and Richard W. Kopcke and 

Francis M. Vitagliano. 

The above summary is not an exhaustive synopsis of all those matters to 

which Mr. Holder may testify. 

2. Christopher M. James, Ph.D. 

Address: Department of Finance, Insurance and Real Estate 

University of Florida, College of Business 

Gainesville, Florida 32611 

Christopher M. James, Ph.D. is a Professor of Finance and Economics at the 

University of Florida. His academic research is in the areas of financial institutions, 

securities pricing, and corporate finance. 

Dr. James will testify regarding the benefits of the manager-of-managers 

structure to the Funds' investors, such as: (1) access to specialized subadvisers; (2) 

the ability to choose from a wide-ranging and diverse set of portfolios; (3) the 

structure's inherent flexibility and adaptability; ( 4) the ease of fund customization 

provided by the structure; and (5) the ability to diversify investments. Dr. James 

59 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 59 of 72 PageID: 11800
will also testify regarding the large number of risks that FMG assumes as the 

Funds' investment manager and administrator. He will testify to how the fees 

charged to the Funds are consistent with the fees charged to other similarly styled 

funds, and how the regulation and competition within the mutual fund industry 

ensure that fees and expenses remain at competitive levels. Dr. James will also 

discuss economies of scale within the mutual fund industry and how FMG shares 

the benefits of any potential economies of scale with the Funds. Dr. James will also 

address Plaintiffs' purported damages, including the damages calculations 

performed by Plaintiffs' expert Steve Pomerantz, and Dr. Pomerantz's analysis of 

purported fall-out benefits. Dr. James may also respond to these and other topics as 

they are presented in the expert testimony of Dr. Pomerantz, Richard W. Kopcke 

and Francis M. Vitagliano, and Kent E. Barrett. 

The above summary is not an exhaustive synopsis of all those matters to 

which Mr. James may testify. 

3. Marianne K. Smythe 

Address: 4807 Wellington Drive 

Chevy Chase, Maryland 20815 

Marianne K. Smythe was the Director of the U.S. Securities and Exchange 

Commission's Division of Investment Management from 1990 to 1993, and served 

in various other senior capacities at the SEC. Ms. Smythe was also a partner at 

Wilmer Cutler & Pickering LLP. Her legal practice included representation of, 

among other things, independent boards of directors of mutual funds. 

Ms. Smythe was retained by Defendants to assess the Board's 15( c) process 

and its consistency with the expectations, customs, and practice in the investment 

company community. 

Ms. Smythe will testify regarding the Independent Trustees' qualifications, 

experience, and independence. She will testify regarding the quality of FMG' s 

15( c) process. She will testify to the quality of materials and disclosures FMG 

provides to the Board, including with respect to the nature and quality ofFMG's 

services, FMO 's potential realization of economies of scale, profitability from 

management of the Funds, fee comparisons with other investment advisers, and 

fall-out benefits. She will testify to the extent to which the Independent Trustees 

exercised their independence and conscientiousness, and the consistency of the 

Board's governance process with best practices in the investment company 

community. She may also respond to these and other topics as they are presented in 

60 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 60 of 72 PageID: 11801
the expert testimony of Phillip Goldstein, Steve Pomerantz, Kent E. Barrett, and 

Richard W. Kopcke and Francis M. Vitagliano. 

The above summary is not an exhaustive synopsis of all those matters to 

which Ms. Smythe may testify. 

4. Russell R. Wermers, Ph.D. 

Address: Department of Finance 

Robert H. Smith School of Business 

University of Maryland 

College Park, Maryland 20742-1815 

Russell R. Wermers is a Professor of Finance at the Smith School of 

Business, University of Maryland at College Park. Much of his academic research 

is focused on the study of securities trading, securities markets, and portfolio 

management. 

Mr. Wermers was retained by Defendants to address the investment 

management services provided by FMG for Funds. 

Mr. Wermers will testify regarding the performance of the Funds. He will 

also testify, from the perspective of industry practice, as to the benefits of FMG' s 

portfolio management services, including the quality and extent of FMG's 

Subadviser selection and oversight processes. Mr. Wermers will also testify to the 

general characteristics and features of mutual funds and variable annuity products. 

He will also testify to FMG's enhancements and introduction of innovative 

products and services to the Funds, including offering active and passive 

components, implementing and executing the ATM Strategy, and FMG's use of 

ETFs, including within dedicated ETF "sleeves" of certain of the Funds. He will 

also testify regarding FMG' s changes to the strategies, objectives, benchmarks, and 

Subadvisers of certain of the Funds over time. He will testify to the quality of 

FMG's portfolio management-related services with regard to the Funds' 

performance during the relevant time period. He will testify to the extensive 

infrastructure required in order to service and administer mutual funds. He will 

further testify, in relation to industry practice, to the services performed by the 

Subadvisers on behalf ofFMG. He may also respond to these topics as they are 

presented in the expert testimony of Steve Pomerantz, Kent E. Barrett, Phillip 

Goldstein, and Richard W. Kopcke and Francis M. Vitagliano. 

The above summary is not an exhaustive synopsis of all those matters to 

which Mr. Wermers may testify. 

61 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 61 of 72 PageID: 11802
D. Plaintiffs' objections to the qualifications of defendants' expert are: 

See Section 2 above regarding Plaintiffs' objections to and intention to move 

in limine to strike the testimony of Messrs. Holder and Wermers, and Ms. Smythe. 

9. PLAINTIFFS' 'EXHIBITS (Except for exhibits the need for which could 

not reasonably have been foreseen or which are used solely for impeachment 

purposes, only the exhibits set forth on the exhibit list attached hereto may be 

introduced at trial. Any objection to an exhibit, and the reason for said 

objection, must be set forth below or it shall be deemed waived. All parties 

hereby agree that it will not be necessary to bring in the custodian of any 

exhibit as to which no such objection is made). 

A. Plaintiffs intend to introduce into evidence the exhibits listed on the 

attached exhibit list (list by number with a description of each): 

See Plaintiffs' Exhibit List with Defense Objections, attached hereto as 

Exhibit C. 

B. Defendants object to the introduction of plaintiffs' exhibits (set forth 

number of an exhibit and grounds for objection): 

See above Plaintiffs' Exhibit List with Defense Objections, attached hereto 

as Exhibit C. 

10. DEFENDANTS' EXHIBITS (See instructions above). 

A. Defendants intend to introduce into evidence the exhibits listed on the 

attached exhibit list (list by number with a description of each): 

See Defendants' Exhibit List with Plaintiffs' Objections, attached hereto as 

Exhibit D. 

Defendants reserve the right to supplement the attached exhibit list with 

additional documents, including but not limited to documents for rebuttal purposes. 

Defendants have anticipated some rebuttal documents on this exhibit list. The 

inclusion of these documents is not an admission that the documents are relevant or 

admissible or a representation that Defendants will move them into evidence. 

Defendants also reserve the right to supplement the exhibit list with demonstrative 

exhibits to be used at trial. Defendants further reserve the right to sub-divide large 

62 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 62 of 72 PageID: 11803
exhibits for the convenience of the Court and the witnesses at trial. In addition, 

Defendants reserve the right to use documents on Plaintiffs' exhibit list. 

B. Plaintiffs object to the introduction of defendants' exhibits (set forth 

number of an exhibit and grounds for objection): 

See above Defendants' Exhibit List with Plaintiffs' Objections, attached 

hereto as Exhibit D. 

(Copies of exhibits are to be made for opposing counsel, and a bench book of 

exhibits is to be delivered to the Judge at the start of trial. If counsel desires 

to display exhibits to the jury, sufficient copies should be available to provide 

each juror with a copy; alternatively, enlarged photographic or projected 

copies may be used). 

The Parties' current Joint Exhibit List is attached hereto as Exhibit E. 

11. PLAINTIFFS' LEGAL ISSUES 

a. Is the magnitude of the management and administrative fees and other 

compensation received by FMG from the Plaintiffs' Funds during the period at 

issue consistent with the fiduciary duty owed by FMG pursuant to § 36(b) of the 

Investment Company Act? 

b. Is the magnitude of the management and administrative fees and other 

compensation received by FMG from the Plaintiffs' Funds during the period at 

issue the product of an arm's length negotiation? 

c. Is the magnitude of the management and administrative fees and other 

compensation received by FMG from the Plaintiffs' Funds during the period at 

issue disproportionate to the services rendered? 

d. Are the management and/or administrative fees retained by FMG in 

violation of the fiduciary duty owed by FMG pursuant to § 36(b) of the Investment 

Company Act? 

e. Did FMG's management and/or administrative fees attributable to Plaintiffs' 

Funds violate the law? 

63 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 63 of 72 PageID: 11804
f. IfFMG's compensation is found to be a breach of fiduciary duty or 

otherwise in violation of law, what is the proper measure of damages and other 

relief to be awarded to the Plaintiffs Funds? 

g. Did the EQAT Board apply the proper standard when it reviewed and 

approved the subject fees? 

h. Is the EQAT Board's approval of the subject fees entitled to any deference 

given the facts of ~his case? 

12. DEFENDANTS' LEGAL ISSUES 

a. Do Plaintiffs lack standing to sue under Section §36(b) of the ICA because 

they do not own any shares in the Funds, and thus are not "security[ies] holder[s]" 

as required by Section 36(b )?22 

b. Are the investment management and administrative fees paid by the Funds 

to Defendants "so disproportionately large that [they] bear[] no reasonable· 

relationship to the services rendered and could not have been the product of arm'slength bargaining, see Jones v. Harris, 559 U.S. 335, 346 (adopting standard 

established by the Second Circuit in Gartenberg v. Merrill Lynch Asset Mgmt., 

Inc., 694 F.2d 923, 928-29 (2d Cir. 1982)), where Defendants performed extensive 

management and administrative services to the Funds, provided the Funds' 

independent trustees with ample information concerning each Gartenberg factor, 

and the independent trustees regularly negotiated for alterations to the Funds' fees 

before approving the fees charged by Defendants each year? 

c. Have Plaintiffs satisfied their burden of proof with respect to any of the 

Gartenberg factors: ( 1) the nature and quality of services provided to the funds; 

(2) the independence and conscientiousness of the funds' directors; (3) whether 

economies of scale were realized and, if so, whether such benefits were adequately 

shared with the funds; ( 4) the fees charged to comparable mutual funds; ( 5) the 

profitability of the funds to the adviser; and (6) fall-out benefits (i.e., indirect 

profits) that would not occur but for the adviser's relationship with the funds? 

Gartenberg, 694 F.2d at 928-29; see also Jones, 559 U.S. at 344 n.5. 

22 The Court ruled on this issue in connection with Defendants' motion to dismiss. Defendants 

include this issue herein for the purposes of preservation on any appeal. 

64 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 64 of 72 PageID: 11805
d. May Plaintiffs base their claim on the Funds' performance, where the Funds' 

Board of Trustees considered the Funds' undisputed performance data prior to 

approving the Funds' fees? Gallus v. Ameriprise Fin., Inc., 497 F. Supp. 2d 974, 

980 (D. Minn. 2007). 

e. Was the process used by the statutorily disinterested trustees "robust" and 

thus subject to judicial "deference" because the disinterested trustees exercised 

sufficient care and conscientiousness in their review and approval of Defendants' 

compensation under the Investment Management and Administration Agreements, 

respectively, when the trustees reviewed and considered materials containing 

detailed, fund-by-fund information relating to each Gartenberg factor, participated 

in presentations made by Defendants, and engaged in negotiations regarding the 

fees that benefitted the Funds? See Jones v. Harris Assocs. L.P., 559 U.S. 335, 350 

(2010). 

f. Have Plaintiffs met their burden of proof regarding the existence of any 

potential economies of scale concerning any Fund, where Plaintiffs failed to 

analyze whether the pre-unit cost of servicing each Fund decreased as assets under 

management for that Fund increased? See In re Am. Mut. Funds Fee Litig., No. 

04-5593, 2009 U.S. Dist. LEXIS 120597, at *77 (C.D. Cal. Dec. 28, 2009); Krinsk 

v. Fund Asset Mgmt., Inc., 715 F. Supp. 472, 496 (S.D.N.Y. 1988). 

g. Have Defendants adequately shared any potential benefits from economies 

of scale with investors in the Funds, where Defendants implemented multiple 

mechanisms for sharing potential fee economies, including breakpoints (which 

courts have recognized as a form of sharing), fee waivers, and reinvestments in the 

Funds? Gartenberg, 528 F. Supp. at 1054; In re Am. Mut. Funds Fee Litig., 2009 

U.S. Dist. LEXIS 120597, at *139-40. 

h. Have Plaintiffs adduced any evidence of breach of fiduciary duty by 

Defendants with respect to Defendants' receipt of compensation where the fees 

~barged to the Funds fall within the range of fees charged by comparable funds? 

i. May Plaintiffs artificially disaggregate FMG's unitary investment 

management and administrative fees for the purposes of challenging isolated, 

artificially constructed portions of those fees (i.e., the amounts left over after FMG 

pays its subadvisers and sub-administrator)? S. Rep. No. 91-184 (1969), at 13, 

reprinted in 1970 U.S.C.C.A.N. 4897, 4910 (1970) (under Section 36(b) a court 

must "look at all the facts ... , including all services rendered to the fund or its 

65 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 65 of 72 PageID: 11806
shareholders and all compensation and payments received") (emphasis added); see 

also Gartenberg v. Merrill Lynch Asset Mgmt., Inc., 528 F. Supp. 1038, 1052 

(S.D.N.Y. 1981) (holding that it is "entirely proper for the fiduciary to consider the 

totality of values placed at the disposal of the shareholders in appraising the 

fairness of compensation, or else form would be substituted for substance") 

(emphasis added), aff'd, 694 F.2d 923 (2d Cir. 1982). In other words, can whether 

a fee is excessive hinge on the mere difference between whether a 

manager/administrator performs all of its services in-house or instead utilizes third 

parties to assist with some services, where the ultimate fee charged to investors is 

in line with competitor funds? 

j. Have Plaintiffs shown any breach of fiduciary duty by Defendants with 

respect to Defendants' receipt of compensation where Defendants' profitability for 

each Fund is within the range of profitability that has been found acceptable by 

courts in other Section 36(b) cases? See, e.g., Meyer v. Oppenheimer Mgmt. Corp., 

707 F. Supp. 1394, 1401 (S.D.N.Y. 1988) (pre-tax margins up to 89%), aff'd, 895 

F.2d 861 (2d Cir. 1990); Schuyt v. Rowe Price Prime Reserve Fund, Inc., 663 F. 

Supp. 962 (S.D.N.Y. 1987) (pre-tax margins up to 77.3% and post-tax margins up 

to 38.6%); In re Am. Mut. Funds Fee Litig., 2009 U.S. Dist. LEXIS 120597, at 

*135-37 (pre-tax margins ranged from 30% to 52%); Kalish v. Franklin Advisers, 

Inc., 742 F. Supp. 1222, 1236, 1250 (S.D.N.Y. 1990) (post-tax margin up to 37.8% 

"neither requires nor supports a finding [of excessiveness]"); Krinsk v. Fund Asset 

Mgmt., Inc., 715 F. Supp. 472, 502-03 & n.61 (S.D.N.Y. 1988) (margins as high as 

33% were "well within the realm of reasonableness"). 

k. Should expenses incurred by AXA (Defendants' parent company) in 

connection with providing services for the benefit of FMG and the Funds be 

allocated for purposes of calculating FMG's profitability with respect to each 

Fund? See, e.g., Gartenberg, 694 F .2d at 931; see also Schuyt v. Rowe Price 

Prime Reserve Fund, Inc., 663 F. Supp. 962, 978 n.49 (S.D.N.Y. 1987) 

(considering in Section 36(b) case "all costs that are directly associated with each 

product as well as an equitable share of indirect and corporate administrative 

expense") 

1. Did any indirect benefits (i.e., "fall-out benefits") accrue to Defendants or 

their affiliates that "would not have occurred but for the existence of' the Funds? 

In re Am. Mut. Funds Fee Litig., 2009 U.S. Dist. LEXIS 120597, at *53 (emphasis 

in original) (quoting Krinsk, 715 F. Supp. at 495). 

66 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 66 of 72 PageID: 11807
13. CHOICE OF LAW: 

(If there is any issue as to what state's law is applicable to any count of the 

complaint, set forth the choice of law question. This issue shall be separately 

briefed in accordance with an order to be entered herewith). 

Federal substantive law applies under Section 36(b) of the Investment Company 

Act of 1940. 

14. MISCELLANEOUS (Set forth any other matters which require action J:. by, or should be brought to the attention of the Court). 

I\. .• ~" i 1. If the def~nse offers the Summ~ Ch~s that were prepared post- l~tigation ~-~ by Defendants' m house counsel, Patricia Lome and attorneys from the Milbank 

·•~ J Tweed Firm, Plaintiffs intend to (i) subpoena all documents related to the those 

~~~(f\~ communications and (ii) examine Ms. Louie and each attorney from the Milbank 

~ .J firm involved in the preparation of the Summary Charts. This matter was the 

1 

~.~~ ~v subject of an in limine motion filed by Plaintiffs. Plaintiffs' anticipate that the 

':P ~ defense will object to the subpoena and their attorneys being examined at trial on 

~ &Vo';,/ this topic based on the attorney/client privilege. Plaintiffs believe the 

~ JJI" k attorney/client privilege is not applicable given legal counsel's admitted 

~ 1f:/ ' involvement in the preparation of the Summary Charts. 

~-. &~, 

-~~ 

~;/ 

a. Defendants intend to offer the summary charts at trial. Plaintiffs' 

contemplated subpoena, however, is improper. A trial subpoena 

cannot be used to obtain evidence that could have been obtained , 

during the discovery period. Therefore, federal courts in the Third 

Circuit routinely quash such subpoenas. See, e.g., Puritan Inv. Corp. 

v. ASLL Corp., No. 97-1580, 1997 WL 793569, at *2 (E.D. Pa. Dec. 

9, 1997). Here, Plaintiffs could have obtained the evidence they now 

seek prior to the close of discovery nearly 18 months ago. In fact, this 

Court, in denying Plaintiffs' request to reopen discovery on the 

summary charts, found no excuse for Plaintiffs' failure to pursue 

evidence concerning the summary charts during the discovery 

period. See Mem. Op. and Order (Arpert, Mag.), ECF No. 174. Even 

if the subpoena is not quashed, communications between Milbank and 

Ms. Louie are protected by privilege. 

2. Plaintiffs may seek to elicit testimony from Board members about 

conversations with and documents provided by counsel to FMG and counsel to the 

Independent Trustees. Plaintiffs believe that the Board will assert an 

67 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 67 of 72 PageID: 11808
attorney/client privilege and that FMG will assert that it can avail itself of the 

attorney/client privilege under the common interest doctrine. Plaintiffs believe that 

the fiduciary exception to the attorney/client privilege bars the Board from 

asserting this privilege and that any privilege the Board has was waived because 

information was disclosed in the presence of non-clients. Plaintiffs further believe 

that the common interest doctrine is not available to FMG. 

....--

a. It is unclear what information/testimony Plaintiffs have in 

mind. However, courts in Section 3 6(b) actions have long held that a 

common interest privilege exists between the investment adviser and a 

mutual fund's trustees regarding ~ommunications about defense of the 

litigation. See Strougo v. BEA Assocs., 199 F.R.D. 515, 525 

(S.D.N.Y. 2001); Bennett v. Fidelity Mgmt. & Research Co., et al., 

Civ. No. 04-116510 MLW, Tr. of Mot. Hr'g 38-39, July 19, 2007 

(Dkt. No. 90). Moreover, the time to challenge privilege objections 

has long since passed, and Plaintiffs are bound by the terms of the 

Joint Stipulation and Proposed Order Regarding Privilege Issues, 

entered by this Court on February 6, 2014 . 

3. The Parties believe that Opening Statements will greatly assist the Court in 

understanding the evidence and request that the Court permit each party to present 

an Opening Statement limited to 90 minutes. 

4. For employees of Defendants.that Plaintiffs' call in their direct case, will the 

Court permit Defendants to examine those witnesses on matters that are part of 

Defendants' direct case? If so, how will the Court handle re-direct/crossexamination of those witnesses by Plaintiffs, including Plaintiffs' use of exhibits 

not identified in the Joint Pre-Trial Order to cross-examine the witness? 

j5. Does the Court approve the Parties' proposed schedule for exchanging 

-~·\er designations of deposition testimony? 

~ ,,J. Does the Court approve the Parties' proposed deadlines for submitting (i) 

· Q'"' proposed findings of fact and conclusions of law, and (ii) pretrial briefs? 

9-. Vihat is the br iefmg sehednle applicable to Plaintiffs' antieiptttecl m6tions 

ne>t f}fC v it>tt5l' fileti with the C6ttrt? ~ ~ . 

8;- Shaula the Par.tie~ provide the Court with a disc incJuding electronic copies 

of their r espeetive trial exhiaits, in lieu of paper e6pies? 

68 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 68 of 72 PageID: 11809
9. How will stipulated facts be introduced into evidence? 

10. What post-trial submissions does the Court want the Parties to submit, and 

when? 

11. Would the Court like to be provided with videotaped deposition testimony 

and transcripts, in advance of trial? 

12. Does the Court want the parties to read in designated testimony I show 

· designated videotaped testimony, or would the Court prefer that the parties simply 

submit the designated portions of the transcripts/videotapes? 

13. Will the Court permit Defendants to amend their exhibit list to add exhibits 

to be used in their direct case after the Pre-Trial Conference despite Plaintiffs' 

objection? 

14. Will the Court permit Defendants "to sub-divide large exhibits for the 

convenience of the Court and the witnesses at trial" despite Plaintiffs' multiple 

objections to these "large exhibits" and Defendants' failure to expressly identify in 

their exhibit list the specific portions of the large exhibits they propose to "subdivide" at trial? 

15. 

A. Each side sha submit to the J dge and to opposing counsel a trial brief 

or memorandum in a cordance w· Local Civil Rule 7 .2B, with citations to 

authorities and argum nts in su ort of its position on all disputed issues of 

law. In the event a brie shall ot be filed, the delinquent party's complaint or 

defense may be stricken. 

B. shall submit to the Judge, with a copy to 

opposing counsel, wri en re nests for instructions to the jury. Supplemental 

requests for instruc ·ons may e submitted at any time prior to argument to 

the jury. All req sts for instr tions shall be plainly marked with the name 

and number of e case, shall co ain citations of supporting authorities, if 

any, and shal esignate the party ubmitting same. In the case of multiple 

requests by party, these shall be n mbered in sequence and each request 

shall be o a separate sheet of paper. 

69 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 69 of 72 PageID: 11810
C. Joint proposed verdict form/special interrogatories are to be submitted 

to the trial judge. 

Not Applicable 

16. NON-JURY TRIALS- Not later than December 30, 2015 at 7:00 P.M.: 

A. Each side shall submit to the Judge and opposing counsel a trial brief or 

memorandum in accordance with Local Civil Rule 7.2B with citation to 

authorities and arguments in support of its position on all disputed issues of 

law. In the event a brief shall not be filed, the delinquent party's complaint or 

defense may be stricken. 

B. Each side shall submit to the Judge and other counsel proposed written 

findings of fact and conclusions of law. There is reserved to counsel the right 

to submit additional proposed findings of fact and conclusions of law during 

the course of the trial on those matters that cannot reasonably be anticipated. 

17. TRIAL COUNSEL (List the names of trial counsel for all parties). 

a. Counsel for Plaintiffs: Arnold Lakind, Robert Lakind, Robert Stevens and 

Daniel Sweetser, Szaferman, Lakind, Blader & Blumstein, P.C. 

b. Counsel for Defendants: 

t. James N. Benedict, Sean M. Murphy, Robert C. Hora, James C. Cavoli, 

and Andrea G. Hood, Milbank, Tweed, Hadley & McCloy LLP, New 

York, New York; and 

n. Jonathan M. Korn, Blank Rome LLP, Princeton, New Jersey. 

18. BIFURCATION (Where appropriate, the issues relating to liability 

shall be severed and tried to verdict. Thereafter, all issues relating to 

damages will be tried). 

The issues of liability and damages SHALL I SHALL NOT be tried 

separately. 

70 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 70 of 72 PageID: 11811
The Parties agree that the issues of liability and damages SHALL NOT be tried 

separately 

19. ESTIMATED LENGTH OF TRIAL 

DAYS FOR LIABILITY ----

and 

DAYS FOR DAMAGES. ----

Plaintiffs estimate that their entire case (liability and damages) will be 

presented in 8 full trial days. 

Defendants estimate that their entire case (liability and damages will be 

presented in approximately 8 to 10 full trial days. 

AMENDMENTS TO THIS PRETIRAL ORDER WILL NOT BE 

PERMITTED UNLESS THE COURT DETERMINES THAT MANIFEST 

INJUSTICE WOULD RESULT IF THE AMENDMENT IS DISALLOWEDo 

(EXHIBIT LIST TO FOLLOW) 

71 

/s/ Daniel S. Sweetser 

DANIEL S. SWEETSER, ESQ. 

(Attorney for Plaintiff) 

/s/ Jonathan M. Korn 

JONATHAN M. KORN, ESQ. 

(Attorney for Defendants) 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 71 of 72 PageID: 11812
Exhibit A 

To The Parties' Proposed Joint Pre-Trial Order 

Case 3:11-cv-04194-PGS-DEA Document 178 Filed 11/24/15 Page 72 of 72 PageID: 11813