(For Breach Of Fiduciary Duty And Violation Of ERISA’s Prohibited Transaction Rules)  (For Co-Fiduciary Breach And Liability For Knowing Breach Of Trust)  (For Breach Of Fiduciary Duty)  11. Upon information and belief, the Plan was established in 2002 by SLC to provide health insurance benefits to its employees and their dependents.  12. At all relevant times, SLC withheld Employee Contributions from Plaintiffs’ pay and its employees’ pay for remittance to the Plan.  Upon information and belief, at all relevant times, these Employee Contributions were retained in SLC’s corporate bank account until they were remitted to the Plan’s third-party administrator, Key Benefit Administrators, Inc.  13. At all relevant times, SLC was responsible for causing Employee Contributions and Employer Contributions to be remitted to Key Benefit Administrators, Inc.  14. At some point in 2015, SLC failed to remit Premiums to Key Benefit Administrators, Inc.  SLC’s failure to remit these Premiums caused the Plan’s health insurance Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 3 of 11  PAGEID #: 3 -4- coverage to lapse, and caused Plaintiffs and other similarly situated employees to lose their health insurance coverage for a portion of 2015.  15. During the period of time that the Plan’s coverage lapsed, Egbers was pregnant and, in connection with that pregnancy, incurred approximately $2,500 in medical expenses that should have been covered by the Plan.  16. During the period of time that the Plan’s coverage lapsed, Williams was pregnant and gave birth to a child and, in connection with that birth and ensuing medical complications, incurred medical expenses of approximately $400,000 that should have been covered by the Plan.  17. Similarly, during the period of time that the Plan’s coverage lapsed, thousands of Defendant’s employees (1) paid for health insurance coverage that was never provided; and (2) incurred medical expenses that should have been at least partially covered by the Plan. 18. Plaintiffs bring this class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of themselves and all others similarly situated, as members of the proposed class (“Class”), defined as follows: All current and former participants or beneficiaries of the Senior Lifestyle Corporation Employees Medical Plan whose health insurance coverage lapsed on or after July 5, 2010 due in whole or in part to Defendant’s failure to remit Premiums to fund the Plan.  19. Numerosity.  Plaintiffs are informed and believe that there are at least thousands of Class members throughout the United States.  As a result, the members of the Class are so numerous that their individual joinder in this action is impracticable.  20. Commonality.  There are numerous questions of fact and/or law that are common to Plaintiffs and all the members of the Class, including, but not limited to the following: Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 4 of 11  PAGEID #: 4 -5- (a) whether Defendant acted as a fiduciary under ERISA in connection with the conduct described herein; (b) whether Defendant breached its fiduciary duties under ERISA by failing to remit Premiums to fund the Plan; (c) whether Defendant engaged in prohibited transactions by, inter alia, converting the Premiums for its own benefit; and (d) whether and what form of relief should be afforded to Plaintiffs and the Class.  21. Typicality.   Plaintiffs are members of the Class and have claims that are typical of all Class members.  Plaintiffs’ claims and all of the Class members’ claims arise out of the same uniform course of conduct by Defendant and arise under the same legal theories that are applicable as to all other members of the Class.  22. Adequacy of Representation.  Plaintiffs will fairly and adequately represent the interests of the members of the Class.  Plaintiffs have no conflicts of interest with or interests that are any different from the other members of the Class.  Plaintiffs have retained competent counsel experienced in class action and other complex litigation, including class actions under ERISA.  23. Predominance.  Common questions of law and fact predominate over questions affecting only individual Class members, and the Court and parties will spend the vast majority of their time working to resolve these common issues.  Indeed, virtually the only individual issues of significance will be the exact amount of damages recovered by each Class member, the calculation of which ultimately will be a ministerial function that poses no bar for class certification.  24. Superiority.  A class action is superior to all other feasible alternatives for the Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 5 of 11  PAGEID #: 5 -6- resolution of this matter. Many of the Class members are unaware of Defendant’s breaches of fiduciary duty and prohibited transactions such that they will never bring suit individually. Furthermore, even if they were aware of the claims they have against Defendant, the claims of the many Class members would be too small to economically justify individual litigation.  Finally, individual litigation of multiple cases would be highly inefficient, a gross waste of the resources of the courts and of the parties, and potentially could lead to inconsistent results that would be contrary to the interests of justice.  25. Manageability.  This case is well suited for class treatment and can easily be managed as a class action since evidence of both liability and damages can be adduced, and proof of liability and damages can be presented, on a class wide basis, while the allocation and distribution of damages to Class members would be essentially a ministerial function. 26. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as if fully set forth herein.  27. Defendant is a fiduciary of the Plan under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(a), as explained above, as well as because it is a named fiduciary and a sponsor of the Plan, and is a fiduciary based on the exercise of its discretion, authority, and/or control with respect to the management of the plan and/or the disposition of its assets, as well as the discretionary authority and responsibility that Defendant has with respect to the administration of the Plan.  28. During 2015, Defendant withheld at least hundreds of thousands of dollars from its Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 6 of 11  PAGEID #: 6 -7- employees’ pay as Employee Contributions to the Plan, but failed to remit the amounts so withheld to Key Benefits Administrators, Inc., the third-party administrator of the Plan. Defendant also failed to remit the Employer Contributions owed to Key Benefits Administrators, Inc.  29. By the conduct described above, Defendant: A. violated ERISA § 403(a) and (c)(1), 29 U.S.C. §1103(A) and (c)(1), which provide that all assets of an employee benefit plan shall be held in trust and never inure to the benefit of the employer; B. violated ERISA § 404(a)(1)(A), 29 U.S.C. §1104(a)(1)(A), by failing to act solely in the interest of the participants and beneficiaries, and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of plan administration; and C. as detailed below, violated ERISA § 406, 29 U.S.C. § 1106, by engaging in prohibited transactions that also are per se breaches of fiduciary duty under 32. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as if fully set forth herein.  33. By the conduct described above, Defendant: A. violated ERISA § 406(a)(1)(D), 29 U.S.C. §1106(a)(1)(D), by causing the Plan to engage in transactions which Defendant knew, or should have known, constituted a direct or indirect transfer to, or use by or for the benefit of, a party in interest, of assets of the Plan; B. violated ERISA § 406(b)(1), 29 U.S.C. §1106(b)(1), by dealing with assets of the Plan in Defendant’s own interest and/or for its own account; C. violated ERISA § 406(b)(2), 29 U.S.C. §1106(b)(2), by acting on behalf of a party whose interests were adverse to the interests of the Plan or the interests of its participants and beneficiaries; and D.  violated ERISA § 406(b)(3), 29 U.S.C. §1106(b)(3), by receiving consideration for its own account from a party dealing with the Plan and/or in connection with a transaction involving the assets of the Plan.  34. Because Defendant engaged in the above-described prohibited transactions, Plaintiffs and the Class are entitled to all equitable or remedial relief as the Court may deem appropriate and just, as well as the remedies of disgorgement and restitution as may be appropriate. Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 8 of 11  PAGEID #: 8 -9- 35. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as if fully set forth herein.  36. In the alternative, to the extent that Defendant is not deemed a fiduciary or co-fiduciary under ERISA, Defendant is liable to Plaintiffs and the Class for all recoverable damages and relief as a non-fiduciary that knowingly participated in a breach of trust. WHEREFORE, Plaintiffs, on behalf of themselves and the Class, demand judgment against Defendant for the following relief: (a) Disgorgement, restitution, and/or damages as set forth above, plus any and all other equitable or remedial relief as the Court may deem appropriate pursuant to ERISA §§ 409(a) and 502(a), 29 U.S.C. §§ 1109(a) and 1132(a); (b) Pre-judgment and post-judgment interest at the maximum permissible rates, whether at law or in equity; (c) Attorneys’ fees, costs, and other recoverable expenses of litigation; and (d) Such further and additional relief to which Plaintiffs and the Class may be justly entitled and the Court deems appropriate and just under all of the circumstances. NOTICE PURSUANT TO ERISA § 502(h) To ensure compliance with the requirements of ERISA § 502(h), 29 U.S.C. § 1132(h), the undersigned hereby affirms that, on this date, a true and correct copy of this Complaint was served upon the Secretary of Labor and the Secretary of the Treasury by certified mail, return receipt requested. Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 9 of 11  PAGEID #: 9 -10- Dated: July 5, 2016 Respectfully submitted, /s/Jeffrey S. Goldenberg Jeffrey S. Goldenberg (0063771) Todd B. Naylor (0068388) Goldenberg Schneider LPA One West Fourth Street, 18th Floor Cincinnati, Ohio 45202 Telephone: (513) 345-8291 Facsimile: (513) 345-8294 Email: jgoldenberg@gs-legal.com tnaylor@gs-legal.com James E. Miller (pro hac to be filed) Laurie Rubinow (pro hac to be filed) Shepherd Finkelman Miller & Shah, LLP 65 Main Street Chester, CT 06412 Telephone: (860) 526-1100 Facsimile: (866) 300-7367 Email: jmiller@sfmslaw.com lrubinow@sfmslaw.com Attorneys for Plaintiffs and the Proposed Class Case: 1:16-cv-00732-MRB Doc #: 1 Filed: 07/05/16 Page: 10 of 11  PAGEID #: 10 -11-