18. Fidelity acts as a recordkeeper, “service provider,” a party-in-interest, and a fiduciary  of thousands of 401(k) plans and similar defined contribution retirement plans (the “Plans,” more  fully defined below) in the United States.    19. Fidelity offers the Plans the opportunity to invest in third-party mutual funds and  similar investment vehicles through its “FundsNetwork,” which Fidelity launched in 1989 and  describes as “one of the industry’s leading fund supermarkets.” As part of its “Workplace  Investing” business unit, Fidelity allows the Plans “to invest in mutual funds from hundreds of  fund companies outside of Fidelity,” https://www.fidelity.com/mutual-funds/overview, and  Fidelity’s Workplace Investing business unit provides third-party (i.e., non-Fidelity) mutual  funds with access to over 24,000 retirement plans with over $1.6 trillion in assets.     20. Beginning in or about 2016, Fidelity began requiring various mutual funds, affiliates  of mutual funds, mutual fund advisors, sub-advisors, investment funds, including collective  trusts, and other investment advisors, instruments or vehicles that are offered to the Plans  through Fidelity’s FundNetwork (collectively, “mutual funds”), to make secret payments (the  “kickbacks,” “kickback payments,” or “secret payments”) to Fidelity for its own benefit in the  guise of “infrastructure” payments or so-called relationship-level fees in violation of, inter alia,  the prohibited transaction rules of the Employee Retirement Income Security Act (“ERISA”), 29  U.S.C. §§ 1001, et seq. (i.e., ERISA §§ 404 and 406, 29 U.S.C. §§ 1104 and 1106), as well as  ERISA’s fiduciary rules (i.e., ERISA §§ 404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and  72. This action is brought as a class action by Plaintiffs, individually and in a  representative capacity on behalf of the Plan and the following proposed Class (“Class”):  Class   All employee pension benefit plans covered by the  Employee Retirement Income Security Act of 1974 subject  to the Internal Revenue Code §§ 401(a) or 401(k) with  which Fidelity has maintained a contractual relationship.   Excluded from the Class are Defendants, any employee pension benefit plans for which  Defendants’ directors, officers or employees are beneficiaries, and any employee pension benefit  Plans for which the Judge to whom this case is assigned or any other judicial officer having  responsibility for this case is a beneficiary.    74. 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.    75. Commonality. There are numerous questions of fact and/or law that are common to  the Plan and all the members of the Class, including, but not limited to the following:  (a) whether Defendants have acted and continue to act as fiduciaries under  ERISA in connection with the conduct described herein;   (b) whether Defendants engaged in prohibited transactions by receiving the  kickback payments for their own benefit and otherwise earning excessive  compensation and effectively charging excessive fees for the administrative,  management and investment services they provide to the Plans;   (c) whether Defendants have breached their fiduciary duties under ERISA by  failing to defray the reasonable expenses of administering the Plans;   (d) whether Defendants have failed to disclose or inform the Plans of the  existence and true nature of the kickback payments, as well as the excessive  fees and compensation received by Fidelity;   (e) whether Defendants are liable for participating in a prohibited transaction by  failing to disclose the indirect compensation they receive from mutual funds  in violation of 29 C.F.R. § 2550.408b-2; and   (f) whether and what form of relief should be afforded to Plaintiff and the Class.    76. Typicality. Plaintiffs, who are a representative of the Plan and the Plans, have claims  that are typical of all the members of the Class. Plaintiffs’ claims and all of the Class members’  claims arise out of the same uniform course of conduct by Defendants and arise under the same  legal theories that are applicable to all other members of the Class.    78. Predominance. Common questions of law and fact predominate over questions  affecting only individual Class members, and the Court, as well as the 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 will ultimately be a ministerial function, and which does not  bar certification.    79. Superiority. A class action is superior to all other feasible alternatives for the  resolution of this matter. The vast majority, if not all, of the Class members are unaware of  Defendants’ 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  Defendants, the claims of virtually all 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 court and of the parties, and potentially could lead to  inconsistent results that would be contrary to the interests of justice.    80. Manageability. This case is well suited for treatment as a class action and easily can  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.    82. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as  if fully set forth herein.    83. Defendants are fiduciaries of the Plans under ERISA § 3(21)(A), 29 U.S.C. §  1002(21)(a), as explained above, and are fiduciaries based on their discretion, authority, and/or  control with respect to the administration, management, and/or disposition of the Plans and their  assets, and their provision of investment advice for a fee or other compensation with respect to  the monies or other property of the Plans and Defendants’ authority and responsibility with  respect to the administration and management of the Plans and their retirement assets.    84. Defendants control the selection of the mutual funds available as investment options  for the Plans and their participants, provide investment advice for compensation with respect to  these investment options, use custody, control, ownership, and dominion over the Omnibus  Accounts and accumulated united of assets of the Plans and use their discretionary authority and  responsibility in the administration of the Plans to obtain kickback payments from the mutual  funds and to earn other compensation from self-dealing as described above.    85. Defendants are prohibited from receiving benefits and compensation in connection  with their position as fiduciaries of the Plans and a party-in-interest.   87. Fidelity is a fiduciary under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(a), with respect  to the kickback payments, because it has discretion and control, or exercises authority, with  respect to the management or disposition of these payments by arranging for, accepting and  retaining them, either directly or through its subsidiaries or affiliates, as well as self-determining  the excessive compensation, as described above.    88. Fidelity has engaged in and continues to engage in prohibited transactions in violation  of ERISA § 406(b)(1), 29 U.S.C. § 1106(b)(1), by dealing with the assets of the Plans in its own  interest or for its own account.    89. Fidelity has engaged in and continues to engage in prohibited transactions in violation  of ERISA § 406(b)(2), 29 U.S.C. § 1106(b)(2), by acting on behalf of third parties which have  interests that are adverse to those interests of the Plans, their participants and/or beneficiaries in  connection with transactions involving the Plans.    91. Fidelity also has engaged in and participated in violations of ERISA § 406(a), 29  U.S.C. § 1106(a), by causing the Plans to enter into arrangements with Defendants that are not  subject to the safe harbor created by 20 C.F.R. § 2550-408b-2 and, therefore, constitute  prohibited transactions.    92. Pursuant to ERISA §§ 409(a) and 502(a), 29 U.S.C. §§ 1109(a) and 1132(a), Fidelity  is liable to the Plans to credit back, disgorge and/or make restitution of all kickback payments  and other improper compensation received by it; or, alternatively, Fidelity is liable to the Plans  and the Class to pay damages to make restitution to the Plans in an amount representing the  difference between the kickback payments and other compensation that it received, and the  reasonable fair market value of any services provided to the Plans by Fidelity.    93. Plaintiffs and the Class also are entitled to all equitable or remediable relief as the  Court may deem appropriate and just.    95. Plaintiffs incorporate the allegations in the previous paragraphs of this Complaint as  if fully set forth herein.    96. Fidelity’s arranging for and retention (or the retention by its affiliates or subsidiaries)  of the kickback payments, as set forth above, violates its fiduciary duties under ERISA §  404(a)(1)(A) and (B), 29 U.S.C. § 1104(a)(1)(A) and (B), in that Fidelity failed and continues to  fail to discharge its duties with respect to the Plans solely in the interest of the Plans’ participants  and beneficiaries and (a) for the exclusive purpose of (i) providing benefits to participants and  their beneficiaries; and (ii) defraying reasonable expenses of administering the Plans with (b) the  care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man  acting in a like capacity and familiar with such matters would use in the conduct of an enterprise  of a like character with like aims.    98. As a direct result of Fidelity’s breaches of duties, Plaintiffs and the Class have  suffered losses and damages.    99. Pursuant to ERISA § 409, 29 U.S.C. § 1109, and ERISA § 502(a), Fidelity is liable to  restore to the plans the losses they have suffered as a direct result of Fidelity’s breaches of  fiduciary duty and is liable for damages and any other available equitable or remedial relief,  including prospective injunctive and declaratory relief, and attorneys’ fees, costs and other  recoverable expenses of litigation.   ERISA’S PROHIBITED TRANSACTION RULES   