Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:16-cv CMA-MJW JOAN OBESLO, ROYCE HORTON, DANIEL FISHER, NATHAN COMER, STEVE MIGOTTI, VALERIE MIGOTTI, JAMES DIMAGGIO, ANNE HALL, CAROL A. REYNON-LONGORIA, on behalf of GREAT-WEST FUNDS, INC., v. Plaintiffs, GREAT-WEST CAPITAL MANAGEMENT, LLC, Defendant. DEFENDANT S REPLY MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

2 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 2 of 16 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 ARGUMENT... 2 I. PLAINTIFFS MAY NOT BRING CLAIMS ON BEHALF OF THE 46 GREAT-WEST FUNDS THEY DO NOT OWN... 2 A. Plaintiffs Disregard Overwhelming Authority Holding Plaintiffs Do Not Have Standing on Behalf of Non-Owned Funds... 2 B. Plaintiffs Do Not Have Standing to Challenge Fees Charged to the Underlying Funds in Which the Asset Allocation Funds Invest... 4 C. Plaintiffs Standing Theories Would Lead to Absurd Results... 5 II. PLAINTIFFS DO NOT STATE A PLAUSIBLE CLAIM FOR RELIEF... 5 CONCLUSION i

3 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 3 of 16 TABLE OF AUTHORITIES Page(s) Cases In re AllianceBernstein Mutual Fund Excessive Fee Litigation, No. 04 Civ. 4885(SWK), 2005 WL (S.D.N.Y. Oct. 19, 2005)... 4 Amron v. Morgan Stanley Investment Advisors Inc., 464 F.3d 338 (2d Cir. 2006)... 6, 8, 9, 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 6 Batra v. Investors Research Corp., No CV-W-6, 1992 WL (W.D. Mo. Oct. 4, 1991)... 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)... 6 Curran v. Principal Management Corp., LLC, No. 4:09-cv RP-CFB, 2011 WL (S.D. Iowa Jan. 24, 2011)... 2, 4 In re Franklin Mutual Funds Fee Litigation, 478 F. Supp. 2d 677 (D.N.J. 2007)... 7 Hoffman v. UBS-AG, 591 F. Supp. 2d 522 (S.D.N.Y. 2008)... 8, 9 ING Principal Protection Funds Derivative Litigation, 369 F. Supp. 2d 163 (D. Mass. 2005)... 9 Ingenhutt v. State Farm Investment Management Corp., No (C.D. Ill. June 22, 2016)... 6, 7, 8, 9 Kalish v. Franklin Advisers, Inc., 742 F. Supp (S.D.N.Y. 1990)... 8 Kasilag v. Hartford Investment Financial Services, LLC, No (RMB/KMW), 2016 WL (D.N.J. Apr. 7, 2016)... 2 Kenny v. Pacific Investment Management Co., No. C , 2015 WL (W.D. Wash. Aug. 26, 2015)... 9 ii

4 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 4 of 16 Meyer v. Oppenheimer Management Corp., 895 F.2d 861 (2d Cir. 1990)... 8 Migdal v. Rowe Price-Fleming International, Inc., 248 F.3d 321 (4th Cir. 2001)... 7, 10 In re Mutual Funds Investment Litigation, 519 F. Supp. 2d 580 (D. Md. 2007)... 3, 4 Redus-Tarchis v. New York Life Investment Management LLC, No , 2015 WL (D.N.J. Oct. 28, 2015)... 9 Santomenno v. John Hancock Life Insurance Co., 677 F.3d 178 (3d Cir. 2012)... 2 Siemers v. Wells Fargo & Co., No. C WHA, 2006 WL (N.D. Cal. Oct. 24, 2006)... 2, 3, 4 Sivolella v. AXA Equitable Life Insurance Co., No (PGS), 2012 WL (D.N.J. Sept. 25, 2012)... 4 Stegall v. Ladner, 394 F. Supp. 2d 358 (D. Mass. 2005)... 5 Turner v. Davis Selected Advisers, LP, 626 F. App x 713 (9th Cir. 2015)... 8 Zehrer v. Harbor Capital Advisors, Inc., No , 2014 WL (N.D. Ill. Nov. 18, 2014)... 9 iii

5 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 5 of 16 PRELIMINARY STATEMENT Plaintiffs offer no persuasive reason for why their Complaint should not be dismissed for lack of standing and failure to state a claim. In the more than 45 years since Section 36(b) was enacted, hundreds of cases alleging excessive fees have been filed. Of those hundreds of cases, Plaintiffs are able to point to one where a court held that a plaintiff was entitled to pursue a Section 36(b) claim on behalf of funds the plaintiffs did not own and for which the plaintiff did not pay the fees at issue. That one case, decided 25 years ago, has been criticized as outdated and is inconsistent with numerous other Section 36(b) decisions that address standing. Under Plaintiffs logic, a shareholder who owns a single share of a single Great-West fund would be entitled to bring a Section 36(b) claim concerning every one of the 63 funds in the complex in which the assets under management total more than $21 billion. Compl. 11. The Court should reject this logic and find that Plaintiffs lack standing to sue on behalf of the 46 funds they indisputably do not own. Plaintiffs argument that they have adequately stated a claim regarding any of the 63 funds fares no better. Plaintiffs do not dispute that the Complaint does not even mention many of the 63 funds, much less allege the elements of a Section 36(b) claim with regard to the fees charged to each of them. Plaintiffs opposition rehashes the conclusory, group pleading allegations of the Complaint, offers implausible justifications for why this style of pleading is somehow appropriate, and makes new allegations not found in the Complaint. Plaintiffs failure to adequately state a claim is apparent, and the Court should dismiss the Complaint with prejudice.

6 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 6 of 16 ARGUMENT I. PLAINTIFFS MAY NOT BRING CLAIMS ON BEHALF OF THE 46 GREAT- WEST FUNDS THEY DO NOT OWN A. Plaintiffs Disregard Overwhelming Authority Holding Plaintiffs Do Not Have Standing on Behalf of Non-Owned Funds Plaintiffs claim that they have standing to sue on behalf of all 63 mutual funds managed by Defendant Great-West Capital Management, LLC ( GWCM ), even though they own shares of only 17 of those funds, is contrary to well-settled precedent. Plaintiffs do not pay fees on the 46 non-owned funds and cannot recover any damages on behalf of those funds. As discussed in GWCM s opening papers ( Def. s Br. ), the courts have overwhelmingly held that plaintiffs who do not own shares of a fund do not meet either Section 36(b) s express security holder requirement, or the Article III standing requirement of an injury-in-fact. 1 Plaintiffs claims in their opposition ( Pls. Br. ) that those many cases are either distinguishable or wrongly decided, (Pls. Br. at 14-15), are unpersuasive. 2 1 See Curran v. Principal Mgmt. Corp., No. 4:09-cv RP-CFB, 2011 WL , at *4 (S.D. Iowa Jan. 24, 2011) ( Because Plaintiffs do not hold any securities in the Underlying Funds, they do not qualify as security holder[s] of the Underlying Funds. Therefore, they are not entitled to bring claims regarding the fees charged by the Underlying Funds. ); see also Def. s Br. at (collecting cases). 2 For example, Plaintiffs attempt to distinguish the line of continuous ownership cases GWCM cites in its opening brief as not at issue, but those cases are plainly on point. Pls. Br. at 15. They hold that once a plaintiff disposes of his shares of a fund the plaintiff is no longer a security holder and cannot benefit from any recovery. See Santomenno v. John Hancock Life Ins. Co., 677 F.3d 178, (3d Cir. 2012) (dismissing Section 36(b) claim where plaintiff no longer owned shares in the fund); Kasilag v. Hartford Inv. Fin. Servs., LLC, No (RMB/KMW), 2016 WL , at *9 (D.N.J. Apr. 7, 2016) (same); Siemers v. Wells Fargo & Co., No. C WHA, 2006 WL , at *20-21 (N.D. Cal. Oct. 24, 2006) (same). It stands to 2

7 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 7 of 16 Plaintiffs main contention is that they may sue on behalf of all of the funds because the funds are series within a single investment company. Pls. Br. at 11. The notion that a fund complex s decision to register as a series trust, rather than as multiple investment companies, dramatically expands standing elevates form over substance. It is no surprise that, contrary to this logic, courts hold that plaintiffs who own shares in an investment company have standing only on behalf of the series they actually own. See In re Mut. Funds Inv. Litig., 519 F. Supp. 2d 580, (D. Md. 2007) ( Plaintiffs cannot overcome the fact that the text of Section 36(b)..., SEC pronouncements, and well-reasoned case law provide overwhelming support for treating an individual mutual fund as a registered investment company. ); Siemers, 2006 WL , at *7-8. Indeed, the SEC has expressly pronounced that... each series is to be treated as a separate investment company. In re Mut. Funds Inv. Litig., 519 F. Supp. 2d at 588 & n.11 (collecting SEC rules and no-action letters stating this position); Def. s Br. at 11 n.7. 3 Plaintiffs cite a lone case in support of their position: Batra v. Investors Research Corp., No CV-W-6, 1992 WL (W.D. Mo. Oct. 4, 1991). But that 25- year-old decision is inapposite. Unlike the fees here, Batra involved a management fee assessed at the investment company level rather than the individual series level. Id. at *3 & n.6. Multiple courts have distinguished Batra on that basis, or have rejected it reason that if a plaintiff lacks standing to sue on behalf of funds he used to own, a plaintiff also lacks standing to sue on behalf of funds he never owned. 3 Although Plaintiffs argue that the SEC s rules and no-action letters setting forth its position do not concern 36(b), Plaintiffs offer no reason why the SEC would treat series differently under Section 36(b). Pls. Br. at 15. 3

8 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 8 of 16 outright. See Siemers, 2006 WL , at *7 n.2 ( After considering the weight of recent authority and relevant SEC rulings, however, this order respectfully disagrees with the Batra decision. ); In re Mut. Funds Inv. Litig., 519 F. Supp. 2d at 589 n.12 (declining to follow Batra and noting it failed to consider that plaintiff did not satisfy security holder requirement); In re AllianceBernstein Mut. Fund Excessive Fee Litig., No. 04 Civ. 4885(SWK), 2005 WL , at *10 (S.D.N.Y. Oct. 19, 2005) (declining to follow Batra). This Court should do the same. B. Plaintiffs Do Not Have Standing to Challenge Fees Charged to the Underlying Funds in Which the Asset Allocation Funds Invest Plaintiffs argue that they have standing to challenge the fees charged to the underlying funds in which the Asset Allocation Funds, which are fund of funds, invest. Pls. Br. at Plaintiffs argument disregards the authorities discussed in Point I.A above, and Plaintiffs cite no authority that actually supports their theory. 4 In fact, this same type of fund of funds standing theory has already been rejected in another case. See Curran, 2011 WL , at *4. Curran holds that a fund of funds investor lacks standing because the investor does not enjoy any of the incidents of ownership or possession of the underlying funds in which the fund of funds invests, such as voting rights and the ability to receive dividends and liquidations. Id. Plaintiffs, too, do not 4 Plaintiffs reliance on Sivolella v. AXA Equitable Life Insurance Co., No (PGS), 2012 WL (D.N.J. Sept. 25, 2012) in support of their fund of funds standing theory is misplaced. Sivolella involved a very different arrangement in which the plaintiff was a variable annuity contract holder and sued AXA on behalf of mutual funds she invested in through her variable annuity. Id. at *1. In holding that plaintiff had standing, the court in Sivolella distinguished Curran, finding that [p]laintiff has the right to instruct AXA how to vote, dividends enhance the value of her investments, and when she withdraws her investment in the AXA Funds, she will receive those proceeds, as well as any dividends. Id. at *5. This is not the case here. 4

9 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 9 of 16 enjoy the incidents of ownership or possession over the underlying funds in which the Asset Allocation Funds invest but that Plaintiffs do not own. Plaintiffs therefore lack standing to sue on behalf of those underlying funds. C. Plaintiffs Standing Theories Would Lead to Absurd Results If Plaintiffs expansive standing theories are accepted, a shareholder of one fund within a complex registered as an investment company would have standing to challenge the fees charged to numerous other funds that may have decidedly different investment objectives, fees, assets under management, and other characteristics, even though the investor did not pay fees for those funds and could not recover any excessive compensation from them. That would make no sense. See Stegall v. Ladner, 394 F. Supp. 2d 358, 377 (D. Mass. 2005) (Section 36(b) was intended to provide a very specific, narrow federal remedy.... (citation omitted)). By the same token, Plaintiffs claim that GWCM s standing arguments would produce absurd results is without merit. Pls. Br. at 16. Plaintiffs suggestion that GWCM s position means that joinder of up to 63 different plaintiffs is necessary to challenge a fee arrangement, (id.), and that rejecting their fund of funds standing theory would immunize excessive fees in a fund of funds structure, (id. at 13), is simply wrong, as a single shareholder of any fund can challenge the fees charged to that fund. 5 II. PLAINTIFFS DO NOT STATE A PLAUSIBLE CLAIM FOR RELIEF In addition to lacking standing as to 46 of the 63 funds, Plaintiffs fail to state a 5 Plaintiffs argument assumes that the Asset Allocation Funds are the only shareholders of the underlying funds they invest in, which is not the case. Plaintiffs themselves separately own some of these underlying funds. See Compl , 41. 5

10 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 10 of 16 plausible claim with regard to any of the 63 funds. Plaintiffs opposition largely recycles the conclusory allegations of the Complaint. Plaintiffs do not dispute that the Complaint makes no mention of many of the funds they claim have excessive fees, much less what those fees are or how those fees are disproportionate to the services rendered in exchange for them. Plaintiffs instead rely upon group pleading to mask that their allegations pertaining to individual funds are sparse, and at times non-existent. For instance, two of the 17 funds that Plaintiffs allege they actually own are the Great-West Bond Index Fund and the Great-West Money Market Fund. Compl. 10, 14, 15, 17. The Complaint does not allege the fees those funds are charged, the services provided in exchange for those fees, or any specific information pertaining to the other Gartenberg factors. Plaintiffs allegations do not come close to meeting the threshold pleading standard. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( [C]onclusory statements are not entitled to the presumption of truth); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (complaint must contain sufficient factual matter to state a claim that is plausible on its face ) (emphasis added). Indeed, just two days ago the U.S. District Court for the Central District of Illinois dismissed a Section 36(b) complaint that, much like the Complaint here, stated unsupported and conclusory allegations against an adviser who employs sub-advisers (a so-called manager-ofmanagers ). Ingenhutt v. State Farm Inv. Mgmt. Corp., No , slip op. at 8 (C.D. Ill. June 22, 2016) (dismissing claim [b]ased on the largely unsupported allegations of the complaint); 6 see also Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 6 A copy of the Ingenhutt opinion is attached as Exhibit A. 6

11 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 11 of (2d Cir. 2006) (dismissing complaint where plaintiffs failed to allege any facts pertinent to [the] relationship between fees and services ); Migdal v. Rowe Price- Fleming Int l., Inc., 248 F.3d 321, 327 (4th Cir. 2001) ( To survive a motion to dismiss, a complaint may not simply allege in a conclusory manner that advisory fees are excessive. ). The shortcomings of Plaintiffs allegations about the Great-West Bond Index Fund and the Great-West Money Market Fund are representative of the rest of the Complaint. For instance: Nature and Quality of Services: Plaintiffs only allegation that GWCM s actively managed funds performed poorly is that [f]ully half of these funds failed to meet their stated benchmark in Compl This begs the question: what about the other fully half of those funds which by definition met or exceeded their benchmark in 2015? And in any event, pointing to a single year of performance is of marginal relevance. Migdal, 248 F.3d at 327 (allegations that funds underperformed benchmarks or peers are at best marginally helpful ; noting that investment results are themselves cyclical ). Similarly, Plaintiffs allege that the Asset Allocation Funds underperformed, but fail to allege which funds did so, over what time period, and to what extent. Compl. 55. Plaintiffs repeatedly state the unsupported conclusion that GWCM provides minimal services to the funds because GWCM engages subadvisers for some of the funds. Other than for a handful of index funds, however, Plaintiffs do not even cite any sub-advisory agreement provisions to support their contention that GWCM has delegated the numerous services listed in Great-West s Investment Advisory Agreement. See Def. s Br. at 5-6, 8; Ingenhutt, slip op. at 6 (dismissing complaint that baldly assert[ed] that [management services] are on their face limited in scope and ministerial ). The suggestion that GWCM must perform minimal services because it retains some sub-advisers is simply an attack on the manager-of-managers structure common in the industry, and cannot support a plausible claim. See In re Franklin Mut. Funds Fee Litig., 478 F. Supp. 2d 677, 687 (D.N.J. 2007) (would violate Congressional intent to allow claim based on allegations that could apply to significant portion of fund complexes). 7

12 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 12 of 16 Comparative Fees: Plaintiffs provide no comparative fee allegations at all for many of the funds, including all of the actively managed funds. The fee comparisons Plaintiffs do provide are scant, and in some instances are limited to references to a single Vanguard fund. Compl ; Amron, 464 F.3d at 345 (fee comparisons that did not show where the fee falls on the distribution of fees, and made against Vanguard, a firm known for its emphasis on keeping costs low, held inadequate); Ingenhutt, slip op. at 7 ( Plaintiffs have not presented a sufficient foundation to find that [fee comparisons] are similar enough to be comparable. ); Kalish v. Franklin Advisers, Inc., 742 F. Supp. 1222, 1250 (S.D.N.Y. 1990) ( The Vanguard comparison is seriously flawed. ). 7 Profitability: The Complaint contains no factual allegations about the profitability of any fund or GWCM s overall profitability, simply concluding profits are excessive based on the unsupported and conclusory assumption that GWCM provides minimal services. See, e.g., Compl. 72, 83-98; Amron, 464 F.3d at (profitability allegations insufficient without some allegation of the corresponding costs incurred in operating the funds ). Economies of Scale: Plaintiffs do not specify which of the funds increased in assets and realized economies of scale, nor do they allege how costs changed as assets increased. See Ingenhutt, slip op. at 7 (economies of scale allegations insufficient where there is no attempt to address any corresponding change in expenses as assets increased); Amron, 464 F.3d at 345; Hoffman v. UBS-AG, 591 F. Supp. 2d 522, 540 (S.D.N.Y. 2008) ( [P]laintiffs must make a substantive allegation regarding the actual transaction costs at issue and whether the costs per investor increased or decreased as the assets under management grew. ). Fall-out Benefits: Plaintiffs allege a single fall-out benefit: the fees charged on the underlying funds in which the Asset Allocation Funds invest. Compl But those fees are not a fall-out benefit, as a matter of law, absent a separate showing that they are excessive. Turner v. Davis Selected Advisers, LP, 626 F. App x 713, 717 (9th Cir. 2015); Meyer v. Oppenheimer Mgmt. Corp., 895 F.2d 861, 866 (2d Cir. 1990). Independence and Conscientiousness of the Board: The Complaint fails to allege any facts about the Great-West Funds independent directors 7 Although Plaintiffs attempt to distinguish Amron and Kalish because Vanguard was the only comparator in those cases, (Pls. Br. at 20 n.4), they ignore that Vanguard is Plaintiffs only comparator for the Great-West S&P Mid-Cap 400 Index Fund and Great-West S&P Small Cap 600 Index Fund. Compl

13 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 13 of 16 that would rebut the express presumption under the Investment Company Act that they are disinterested. See Amron, 464 F.3d at 344; Hoffman, 591 F. Supp. 2d at (general allegations insufficient to survive dismissal because of express presumption of independence). Plaintiffs allegations regarding the directors conscientiousness largely fault them for approving the Investment Advisory Agreement: a circular allegation that assumes fees are excessive. See ING Principal Prot. Funds Derivative Litig., 369 F. Supp. 2d 163, 172 (D. Mass. 2005) ( Simply because the Board of Trustees approved the fee contracts at issue does not render the independent trustees interested. ). Plaintiffs make three primary arguments in defense of their incomplete and conclusory allegations, none of which are persuasive. First, Plaintiffs contend that certain recent manager-of-managers cases demonstrate that they are not required to make specific allegations relating to each of the Gartenberg factors. Pls. Br. at However, the complaints in the cases Plaintiffs cite involved many fewer funds, made specific factual allegations about every one of those funds, and did not rely nearly as much on generalized and conclusory allegations. See Redus-Tarchis v. N.Y. Life Inv. Mgmt. LLC, No , 2015 WL , at *1 (D.N.J. Oct. 28, 2015) (four funds); Kenny v. Pac. Inv. Mgmt. Co., No. C , 2015 WL , at *1 (W.D. Wash. Aug. 26, 2015) (one fund); Zehrer v. Harbor Capital Advisors, Inc., No , 2014 WL , at *1 (N.D. Ill. Nov. 18, 2014) (one fund). In contrast, unsupported and conclusory allegations of the sort Plaintiffs rely upon not surprising when Plaintiffs make claims about 63 funds, the majority of which they do not even own have been held to be insufficient against a manager-of-managers. See Ingenhutt, slip op. at 8 ( The minimal factual allegations (as opposed to the many conclusory assertions), even if taken as true, would not state a claim that the fees at issue are [excessive]. ). Second, Plaintiffs suggest that they cannot allege more specific facts without 9

14 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 14 of 16 additional discovery. See Pls. Br. at 22 n.7, 24. Plaintiffs may not, however, justify insufficient allegations with the hope that they might find support for their claims in discovery. See Amron, 464 F.3d at 345 (plaintiffs failed to make sufficient Gartenberg showing where the Complaints merely pray for discovery on these points ). Third, Plaintiffs make new allegations that are not contained in the Complaint and that are either factually incorrect or legally insufficient. For example, Plaintiffs opposition newly asserts that the directors did not determine the reasonableness of the fee on a fund-by-fund basis. Pls. Br. at 22. But the funds Semi-Annual Report directly contradicts this allegation. See Exh. D to Def. s Br. at 40 ( The Board concluded that each Fund s management fees were reasonable.... ). Similarly, Plaintiffs new assertion that the directors had too many funds to review has already been made and rejected in other cases. See Migdal, 248 F.3d at 330 ( [T]he fact that a director serves on multiple boards within a fund complex is insufficient to demonstrate control. ); Pls. Br. at 22. And Plaintiffs new suggestion that the directors independence is stifle[d] because GWCM maintains fund records, (Pls. Br. at 22 n.8), ignores the fact that regulations require the adviser to maintain these records. See Migdal, 248 F.3d at 331 ( [P]laintiffs assertions that the directors were dependent on the investment advisers for information sheds no light on the question of whether the directors are disinterested. ). In sum, Plaintiffs do not come close to stating a plausible claim for relief. CONCLUSION For the reasons stated above, GWCM respectfully requests that the Court grant GWCM s motion to dismiss, and dismiss Plaintiffs Complaint with prejudice. 10

15 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 15 of 16 Dated: June 24, 2016 Respectfully submitted, s/ Edward C. Stewart Edward C. Stewart (#23834) Wheeler Trigg O Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, CO Telephone Facsimile stewart@wtotrial.com Sean M. Murphy Milbank, Tweed, Hadley & McCloy LLP One Chase Manhattan Plaza New York, NY Telephone Facsimile smurphy@milbank.com Robert J. Liubicic Milbank, Tweed, Hadley & McCloy LLP 601 South Figueroa Street Los Angeles, CA Telephone Facsimile rliubicic@milbank.com Robert M. Little Great-West Life & Annuity Insurance Company 8525 East Orchard Road, 2T3 Greenwood Village, CO Telephone: Facsimile: bob.little@gwl.com Attorneys for Defendant, Great-West Capital Management, LLC 11

16 Case 1:16-cv CMA-MJW Document 61 Filed 06/24/16 USDC Colorado Page 16 of 16 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 24, 2016, I caused the foregoing to be electronically filed with the Clerk of Court using the CM/ECF system, which will send notification to all counsel of record. Robert Michael Little bob.little@greatwest.com Sean Miles Murphy smurphy@milbank.com, cfrye@milbank.com Robert J. Liubicic rliubicic@milbank.com Jerome Joseph Schlichter jschlichter@uselaws.com, wballard@uselaws.com, rfreisinger@uselaws.com, hlea@uselaws.com, jredd@uselaws.com Sean E. Soyars ssoyars@uselaws.com Edward Craig Stewart stewart@wtotrial.com, powell@wtotrial.com, papsdorf@wtotrial.com Michael Armin Wolff mwolff@uselaws.com, rfreisinger@uselaws.com s/ Edward C. Stewart Edward C. Stewart (#23834) Wheeler Trigg O Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, CO stewart@wtotrial.com Attorney for Defendant, Great-West Capital Management, LLC 12