25.  MonaVie is a Utah limited liability company headquartered in South Jordan,  Utah. MonaVie manufactures and distributes fruit juice beverages. MonaVie’s business model is  to distribute its product through multi-level marketing, resembling a pyramid scheme of  distributors. MonaVie was founded by D. Larsen in January 2005.   27.  MonaVie sells its products through a multi-level marketing distribution system.  MonaVie ranks its distributors and provides incentives as a distributor progresses through the  ranks in the following ascending order of prestige: Star, Bronze, Silver, Gold, Ruby, Emerald,  Diamond, Blue Diamond, Hawaiian Blue Diamond, Black Diamond, Royal Black Diamond,  Presidential Black Diamond, Imperial Black Diamond, and Crown Black Diamond. MonaVie  promotes that its juices contain antioxidants from açai or other fruits in its blends.    28.  MonaVie’s 2007 Statement of Policies and Procedures (“Policies and  Procedures”) provide for income disclosure to distributors and prospective distributors, through a  developed Income Disclosure Statement (“IDS”). According to MonaVie’s policies and  procedures, the IDS was “designed to convey truthful, timely, and comprehensive information  regarding the income that MonaVie distributors earn.” Further, the MonaVie policies and  procedures required an IDS be provided to all prospective distributors, as well as any time  distributor compensation was discussed. The IDS also was required to be produced anytime an  income claim or earnings representation was made, including statements that refer to average  earnings, ranges of earnings, for example “our average Black Diamond distributor makes XXX  per month.”   30.  MonaVie’s Policies and Procedures also allowed distributors to utilize Internet  web pages to promote their business, however, all distributors were required to do so through  MonaVie’s official website or through replicating already approved MonaVie websites.  Distributors who reached the rank of Black Diamond or higher were allowed to develop their  own websites, but could only use text found on MonaVie’s official website and were prohibited  from supplementing their websites with text from any source other than MonaVie.   31.  In 2007, the FDA issued a Warning Letter to MonaVie distributor Kevin Vokes  for misleading promotional materials claiming that MonaVie was an effective treatment for  inflammation, high cholesterol, and muscle/joint pain. Amidst serious criticism, MonaVie issued  a statement that many of its distributors may have unwittingly violated its internal advertising  practices.   32.  According to MonaVie's 2007 Income Disclosure Statement, a federally required  printout of their distributor earnings, most of the sales were generated by selling MonaVie juices  to its own salesforce. More than 90 percent were considered "wholesale customers," whose  earnings are mostly discounts on sales to themselves.    33.  In July 2008, MonaVie, and several of its top level distributors were sued in this  Court by Quixtar, Inc.(“Quixtar”) and Amway, Corp. (“Amway”) for unfair competition and for  raiding the sales forces of Quixtar and Amway through false and misleading statements  regarding MonaVie’s products and the health benefits associated with MonaVie’s products.   36.  According to the Quixtar and Amway Complaint, repeatedly in the Harts’ sales  meetings, potential MonaVie customers and distributors were told that MonaVie products reduce  blood pressure and relieve the symptoms of fibromyalgia despite the fact that MonaVie’s  products were not approved by the FDA for medicinal use.   38.  The 2008 Quixtar and Amway Complaint also alleged that Dr. Niles’ outrageous  misrepresentations of the healing effects of MonaVie products were found on Club MonaVie  Radio via the internet at www.blogtalkradio.com/live2a120/2007/12/09/MONAVIE- 65.  The Plaintiff Class is so numerous that joinder of all members is impracticable.  Although the exact number and identities of Class Members are unknown to Plaintiff at this time,  the ESOP’s form 5500 filing for 2013 indicates that there are 458 participants in the ESOP.    67.  Plaintiff’s claims are typical of those of the Plaintiff Class. For example, Plaintiff,  like other ESOP participants in the Plaintiff Class, suffered a diminution in the value of his  ESOP account because the ESOP plunged in value after purchasing MonaVie stock for more  than fair market value, and he continues to suffer such losses in the present because Defendants  have failed to correct the overpayment by the ESOP.   68.  Plaintiff will fairly and adequately represent and protect the interests of the  Plaintiff Class. Plaintiff has retained counsel competent and experienced in complex class  actions, ERISA, and employee benefits litigation.   70.  In addition, Class certification of Plaintiff’s Claims for Relief for violations of  ERISA is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendants have acted or  refused to act on grounds generally applicable to the Class, making appropriate declaratory and  injunctive relief with respect to Plaintiff and the Class as a whole. The members of the Class are  entitled to declaratory and injunctive relief to remedy Defendants’ violations of ERISA.   71.  The names and addresses of the Plaintiff Class are available from the ESOP.  Notice will be provided to all members of the Plaintiff Class to the extent required by Fed. R.  Civ. P. 23.  72.  Plaintiff incorporates the preceding paragraphs as though set forth herein.   74.  ERISA § 409, 29 U.S.C. § 1109, provides, inter alia, that any person who is a  fiduciary with respect to a plan and who breaches any of the responsibilities, obligations, or  duties imposed on fiduciaries by Title I of ERISA shall be personally liable to make good to the  plan any losses to the plan resulting from each such breach, and additionally is subject to such  other equitable or remedial relief as the court may deem appropriate, including removal of the  fiduciary.   75.  ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), permits a plan participant to bring an  action for relief under ERISA § 409.   76.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), permits a plan participant to bring an  action to obtain appropriate equitable relief to enforce the provisions of Title I of ERISA or to  enforce the terms of a plan.   78.  ERISA § 410 prohibits agreements that purport to relieve a fiduciary from  responsibility or liability for any fiduciary duty. 29 U.S.C. § 1110(a). Specifically, § 410 states  that “any provision in an agreement or instrument which purports to relieve a fiduciary from  responsibility or liability for any responsibility, obligation, or duty under this part shall be void  as against public policy.” 29 U.S.C. § 1110(a).   79.  Any indemnification agreement between Bankers Trust, on the one hand, and  MonaVie or the ESOP, on the other hand, violates ERISA § 410 and is therefore null and void.  Defendant’s acts and omissions caused millions of dollars of losses to the Plan and its  participants in an amount to be proven more specifically at trial.  80.  Plaintiffs incorporate the preceding paragraphs as though set forth herein.   81.  ERISA § 406(a), 29 U.S.C. § 1106(a), requires that a plan fiduciary “shall not  cause the plan to engage in a transaction, if he knows or should know that such transaction  constitutes a direct or indirect sale or exchange, or leasing of any property between the plan and  a party in interest,” or a “transfer to, or use by or for the benefit of, a party in interest, of any  assets of the plan.”   83.  ERISA § 408(e), 29 U.S.C. § 1108(e) provides a conditional exemption from the  prohibited transaction rules for sale of employer securities to or from a plan if a sale is made for  adequate consideration. ERISA § 3(18)(B) defines adequate consideration as “the fair market  value of the asset as determined in good faith by the trustee or named fiduciary.” ERISA’s  legislative history and existing case law make clear that ERISA § 3(18)(B) requires that the price  paid must reflect the fair market value of the asset, and the fiduciary must conduct a prudent  investigation to determine the fair market value of the asset.   84.  Defendant Bankers Trust engaged in a prohibited transaction in violation of  ERISA §§ 406(a)-(b), 29 U.S.C. §§ 1106(a)-(b), in the 2010 ESOP Transaction, and the  prohibited transaction did not meet the conditional exemption requirements of ERISA § 408(e),  29 U.S.C. § 1108(e). Defendant Bankers Trust failed to ensure that the ESOP paid no more than  fair market value for the MonaVie stock purchased by the ESOP from the Selling Shareholders,  all parties in interest to the ESOP, in 2010. Specifically, the ESOP paid more than fair market  value for shares sold by the Selling Shareholders.   86.  Specifically, the ESOP paid more than fair market value for shares sold by the  Selling Shareholders, and Bankers Trust failed to conduct an independent and prudent  investigation into the fair market price before entering into the stock purchase agreement with  MonaVie and the Selling Shareholders.    87.  ERISA § 409, 29 U.S.C. § 1109, provides, inter alia, that any person who is a  fiduciary with respect to a plan and who breaches any of the responsibilities, obligations, or  duties imposed on fiduciaries by Title I of ERISA shall be personally liable to make good to the  plan any losses to the plan resulting from each such breach, and additionally is subject to such  other equitable or remedial relief as the court may deem appropriate, including removal of the  fiduciary.   88.  ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), permits a plan participant to bring a  suit for relief under ERISA § 409.   89.  ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), permits a plan participant to bring a  suit to obtain appropriate equitable relief to enforce the provisions of Title I of ERISA or to  enforce the terms of a plan.   90.  Defendant Bankers Trust has caused millions of dollars of losses to the ESOP by  the prohibited transactions in an amount to be proven more specifically at trial.  91.  Plaintiffs incorporate the preceding paragraphs as though set forth herein.   93.  The Individual Defendants knew of and participated in Defendant Bankers Trust’s  violations of ERISA, which are detailed in Plaintiff’s First and Second Claims for Relief.   94.  Specifically, each of the Individual Defendants knew before and at the time of the  2010 ESOP Transaction that MonaVie was in dire financial condition, as detailed above. Each of  the Individual Defendants knew that: (1) sales of MonaVie products were declining; (2)  MonaVie had been widely criticized in various media outlets; (3) several of its top distributors  had multi-million dollar judgments entered against them; (4) several of its top distributors and  representatives had engaged in routine and repeated false and misleading health claims about  MonaVie products; (5) MonaVie was mired in several costly and bitter lawsuits; and (6) virtually  all of its sales were to wholesale distributors who left the distribution chain rapidly, rather than to  retail consumers.   95.  Despite their knowledge that the ESOP was essentially insolvent and worthless on  day one, the Individual Defendants hired Bankers Trust to represent the ESOP as Trustee and  knowingly participated in Bankers Trust’s violations of ERISA.   96.  The Selling Shareholders reaped millions from the ESOP Transaction.  Breach of Fiduciary Duty Under ERISA §§ 502(a)(2) and (a)(3),  29 U.S.C. §§ 1132(a)(2) and (a)(3)   Engaging in Prohibited Transactions Forbidden by ERISA §§ 406(a)-(b),  29 U.S.C. §§ 1106(a)-(b)   Knowing Participation in Violations of ERISA  