42.  By investing or keeping invested funds in Plaintiffs' retirement accounts for  purposes other than their benefit after receiving their written transfer requests, TIAA-CREF  exercised authority or control respecting the management or disposition of such accounts and  must be deemed a fiduciary under section 3(21)(A) ofERISA, 29 U.S.C. § 1002(21)(A).   43.  An ERISA fiduciary is obligated to "discharge his duties with respect to a plan  solely in the interest of the participants and beneficiaries and ... for the exclusive purpose of ...  providing benefits to participants and their beneficiaries" under section 404(a) of ERISA, 29  U.S.C. § 1104(a).   44.  By investing or keeping invested retirement funds belonging to Plaintiffs and  others similarly situated for purposes other than their benefit after receiving their written transfer  requests, TIAA-CREF was not acting solely in the interest of Plaintiffs or for the exclusive  purpose of providing benefits to Plaintiffs or their retirement plan, as ERISA requires.   45.  TIAA-CREF is liable to the ERISA Plans in which Plaintiffs and other members  of Subclass A and Subclass B were participants or beneficiaries for the value of the use of the  plan assets in their retirement accounts, and for the disgorgement of any investment profits made  through the use of such funds, under sections 409, 502(a)(2) and 502(a)(3) ofERISA, 29 U.S.C.  §§ 1109(a); 1132(a)(2); 1132(a)(3).   46.  TIAA-CREF is also liable for the reasonable costs and attorney's fees of this  action under Section 502(g)(l) ofERISA, 29 U.S.C. 1132(g)(l), as well as prejudgment interest.  gra~~e~ IATTORNEYSATLAW  76 St. Paul Street  Post Office Box 369  Burlington, Vermont 05402-0369  47.  By investing or keeping invested funds in Plaintiffs' retirement accounts for  purposes other than their benefit after receiving their written transfer requests, TIAA-CREF  exercised authority or control respecting the management or disposition of such accounts and  must be deemed a fiduciary under section 3(21)(A) ofERISA, 29 U.S.C. § 1002(21)(A).   48.  Under section 404(a) of ERISA, 29 U.S.C. § 1104(a), a fiduciary is required to act  impartially with respect to plan participants and their beneficiaries.   49.  By compensating certain customers for their lost investment experience but not  others whose funds remained invested after TIAA-CREF received their written transfer requests,  TIAA-CREF violated its fiduciary duty of impartial treatment under section 404 ofERISA.   50.  TIAA-CREF is liable to the ERISA plans in which Plaintiffs and other members  of Subclass B were participants or beneficiaries for the difference between the compensation  which it paid (if any) and the lost investment experience such participants and beneficiaries  actually suffered.   51.  TIAA-CREF is also liable for the reasonable costs and attorney's fees of this  action under Section 502(g)(l) ofERISA, 29 U.S.C. 1132(g)(l), as well as prejudgment interest.  gra"s~e~ I ATTORNEYS AT LAW  - 13- 76 St. Paul Street  Post Office Box 369  Burlington, Vermont 05402-0369  52.  TIAA-CREF, and each of the Defendant entities of which it is comprised, are  "parties in interest" under section 3(14)(a) of ERISA, 29 U.S.C. § 1002(14)(A).   53.  Section 406(a)(l)(D) of ERISA, 29 U.S.C. § 1106(a)(l)(D), prohibits the "use by  or for the benefit of a party in interest of any assets of the plan." Such use is barred categorically  and is a per se violation of ERISA.   54.  All amounts in the retirement account of Plaintiffs and other members of Subclass  A were "assets ofthe plan" within the meaning of section 401(a)(1)(D). TIAA-CREF's  investment of such assets following the receipt of their written transfer or withdrawal requests  for any purpose other than the benefit of the account holder violates section 406 of ERISA, 29  57.  TIAA-CREF owed a fiduciary and contractual duty to act in the best interest of  Plaintiffs and other Class Members in handling their retirement accounts, including a duty not to  use funds in such accounts for any purpose other than their benefit.   58.  Although there was no practical impediment to transferring or distributing  account funds promptly, TIAA-CREF routinely retained them for up to four weeks or more after  receiving their written transfer or withdrawal requests. During such period, TIAA-CREF  invested the account funds or kept them invested.   59.  In violation of its fiduciary and contractual duties, TIAA-CREF did not pay  Plaintiffs and other Class Members investment gains generated by their accounts after receipt of  their written transfer or withdrawal requests.   60.  TIAA-CREF owed a fiduciary duty to treat Plaintiffs and other Class Members  impartially.   61.  By compensating certain customers for their lost investment experience but not  others whose funds remained invested after the receipt of their written transfer or withdrawal  requests, TIAA-CREF violated its fiduciary duty of impartial treatment.   62.  By compensating certain customers whose redemption or transfer payments were  delayed seven days or less but not others, TIAA-CREF violated its fiduciary duty of impartial  treatment.   63.  TIAA-CREF is liable to Plaintiffs and other Class Members at common law for  the value of the use of their funds or the actual amount of investment earnings generated during  the unauthorized investment period, whichever is greater.  gra~~e~ I ATTORNEYS AHAW  - 15- 76 St. Paul Street  Post Office Box 369  Burlington, Vermont 05402-0369  64.  TIAA-CREF engaged in an unfair practice in commerce by investing or keeping  invested the retirement account funds of Plaintiffs and other Class Members for purposes other  than the customer's benefit, after receipt of their written transfer or withdrawal requests. Such  practices are prohibited by the Vermont Consumer Fraud Act, 9 Vt. Stat. Ann. §§ 2451 et. seq.,  and by similar "mini-FTC" statutes in other states.   65.  Under 9 Vt. Stat. Ann.§§ 2451 et. seq. and similar "mini-FTC" statutes, Plaintiffs  and other Class Members are entitled to compensatory damages based on the unauthorized  investment of their retirement account funds for purposes other than their benefit, as well as  exemplary damages not to exceed three times the amount of consideration. In addition, Plaintiffs  and other Class Members are entitled to the reasonable attorney's fees incurred in prosecuting  this action.  On behalf of themselves and all others similarly situated, Plaintiffs request the following  relief:  (a)  Compensatory damages and appropriate equitable relief, including  disgorgement, for TIAA-CREF' s breach of its fiduciary duties under  sections 502(a)(2) and 502(a)(3) of ERISA and common law;  (b)  Equitable relief, including disgorgement of investment profits, under  section 502(a)(3) of ERISA, for engaging in prohibited transactions  involving plan assets under section 406(a) of ERISA;  gra~~e~ I ATTORNEYS AT LAW  - 16- 76 St. Paul Street  Post Office Box 369  Burlington, Vermont 05402-0369  Common Law Violations   Consumer Fraud   ERISA Breach of Fiduciary Duty of Loyalty  (Claim by Subclass A)   ERISA Prohibited Transactions  (Claim by Subclass A)   ERISA Breach of Fiduciary Duty of Impartiality  (Claim By Subclasses A and B)  