Free Request for Judicial Notice - District Court of California - California

Case 3:08-cv-02705-JSW

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Gilmur R. Murray (SBN 111856) [email protected] Derek G. Howard (SBN 118082) [email protected] MURRAY & HOWARD, LLP 436 14th Street, Suite 1413 Oakland, California 94612 Telephone: (510) 444-2660 Facsimile: (510) 444-2522 Joseph W. Cotchett (SBN 36324) [email protected] Niall P. McCarthy (SBN 160175) [email protected] Laura Schlichtmann (SBN 169699) [email protected] COTCHETT, PITRE & MCCARTHY 840 Malcolm Road, Suite 200 Burlingame, California 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 Attorneys for Plaintiffs and the Classes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ELLEN STOODY-BROSER , an Individual, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, Case No. 08-2705 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Date: Time: Place: October 31, 2008 9:00a.m. Courtroom 2, 17th Floor

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v. BANK OF AMERICA, N.A., and BANK OF AMERICA CORPORATION Defendants.

Complaint Filed: May 29, 2008 Honorable Jeffrey S. White

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

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I.

INTRODUCTION Plaintiffs respectfully request that the Court take judicial notice of the documents attached as

Exhibits 1-17 listed below. Plaintiff makes this request pursuant to Federal Rule of Evidence 201. Judicial notice of each of the documents listed below is proper. Rule 201 of the Federal Rules of Evidence permits the Court to take judicial notice of facts "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Ev. 201. Each of the attached documents meets this requirement. II. ARGUMENT A. Judicial Notice of Documents Filed in Federal Courts Attached Hereto as Exhibits 1-16 is Proper.

"Judicial notice may be taken of documents filed in any federal or state court[]" because their existence is not susceptible to reasonable dispute. See Robert E. Jones et al., RUTTER GROUP PRACTICE GUIDE: FEDERAL CIVIL TRIALS AND EVIDENCE, § 8:875 (2007). This includes both records filed previously in the current litigation as well as in recorded in other proceedings. See, e.g., United States ex. rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) ("[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue."). Judicial notice of the following documents filed in federal courts attached as Exhibits 1-14 is therefore proper: Exhibit 1: is a true and correct copy of the case docket for Luleff v. Bank of America, N.A. et al. (S.D.N.Y., Case No. 06-cv-1435 JGK) (available at: http://ecf.nysd.uscourts.gov/cgibin/login.pl.) Exhibit 2: is a true and correct copy of the Memorandum of Law in Support of Defendants Bank of America, N.A. and Bank of America Corporation's Motion to Dismiss filed on October 2, 2007 in the Luleff action (Docket No. 53, available at: http://ecf.nysd.uscourts.gov/cgi-bin/login.pl.) Exhibit 3: is a true and correct copy of the Second Amended Complaint filed on September 21, 2007 in the Luleff case (Docket No. 51, available at: http://ecf.nysd.uscourts.gov/cgibin/login.pl.)
_________________________________________________________________________________________________ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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Exhibit 4: is a true and correct copy of the Luleff September 7, 2007 hearing transcript on the Defendant Bank of America, N.A.'s Motion to Dismiss Plaintiffs' Amended Complaint. Exhibit 5: are true and correct copies of the two complaints filed in Siepel et al. v. Bank of America, N.A. et al. (E.D. Mo., Case No. 05-2393 CAS). The original Complaint was filed on December 28, 2005 (Docket Nos. 1 and 45, available at: http://pacer.login.uscourts.gov/cgibin/login.pl.) The Amended Complaint (E.D. Mo., Case No. 05-2393 RWS) was filed on April 13, 2006. In the Amended Complaint Plaintiffs removed their Claim of Breach of Contract and added three federal claims for: violations of The 1940 Act (15 U.S.C. § 80B-6); violations of The Exchange Act (§10b(5)), and The Securities Act (§§ 11 and 12). The Amended Complaint was dismissed on December 27, 2006 (Dismissal Memorandum and Order, Docket No. 104, available at: http://pacer.login.uscourts.gov/cgi-bin/login.pl.) Exhibit 6: are true and correct copies of the two complaints filed in Rabin et al. v. JPMorgan Chase Bank, N.A., (N.D. Ill., Case No. 06-5452 WJH). The original Complaint was filed on October 6, 2006. The Amended Complaint was filed on February 20, 2007. (Docket Nos. 1 and 32, available at: http://ecf.ilnd.uscourts.gov/cgi-bin/login.pl.) Exhibit 7: is a true and correct copy of the August 3, 2007 Memorandum and Order dismissing the Amended Complaint in the Rabin case. (Dismissal Memorandum and Order, Docket No. 62, available at: http://ecf.ilnd.uscourts.gov/cgi-bin/login.pl.) The Court stated that in the Amended Complaint, Plaintiffs "maintain[ed] that the breach of fiduciary duty and unjust enrichment claims were merely ancillary to and not predicated upon material misrepresentations or omissions" (pg. 11.) The Court held, however, that attempts to "disguise what amounts to securities fraud claims for breach of fiduciary duty under state law claims is not enough to evade preclusion of those claims under SLUSA." Id. at 11. The Court also held that misrepresentations and omissions of material facts relating to the purchase of mutual fund shares were "the heart of the Amended Complaint." Id. Exhibit 8: are true and correct copies of the two complaints filed in Segal v. Fifth Third Bank, et al. (S.D. OH, Case No. 07-348 SSB-TSH). The original Complaint was filed on May 1,
_________________________________________________________________________________________________ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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2007. The Amended Complaint was filed on October 17, 2007 (Docket Nos. 1 and 17, available at: http://ecf.ohsd.uscourts.gov/cgi-bin/login.pl.). A comparison between the two complaints shows that plaintiffs removed most of the direct allegations of "misrepresentations," "omissions," and "schemes." Exhibit 9: is a true and correct copy of the March 25, 2008 Dismissal Order in the Segal action. (Dismissal Order, Docket No. 30, available at: http://ecf.ohsd.uscourts.gov/cgi-bin/login.pl). The Court stated that, "A review of the 92 paragraphs pertaining to the amended complaint's class claims leads to the inescapable conclusion that Plaintiff's action was premised on central factual allegations: that Fifth Third misrepresented or failed to disclose material facts, and/or engaged in manipulative or deceptive course of conduct, when Fifth Third invested Plaintiffs' fiduciary funds into the Bank's proprietary mutual funds. That allegation is clearly the gravamen of Plaintiff's state law claims." The Order also states that "the fact that Plaintiffs avoided using the words `misrepresentation' and `omission' does not control the result. It was clear to the Court that it should disregard the particular labels or titles Plaintiffs may affix to their claims when determining if SLUSA precluded those claims." (pgs. 7-8.) Exhibit 10: are true and correct copies of the three complaints filed in Kutten v. Bank of America, et al. ("Kutten I") (E.D. Mo. Case No. 04-0244 PAM). The original Complaint was filed on February 27, 2004. The Amended Complaint was filed on April 2, 2004. The Second Amended Complaint was filed on June 29, 2005. (Docket Nos. 1, 3, and 127, available at: http://pacer.login.uscourts.gov/cgi-bin/login.pl.) Exhibit 11: is a true and correct copy of the May 26, 2006 Memorandum and Order dismissing the Second Amended Complaint in the Kutten I action. (Dismissal Memorandum and Order, Docket No. 322, available at: http://pacer.login.uscourts.gov/cgi-bin/login.pl.) The Court dismissed the Second Amended Complaint for lack of subject matter jurisdiction, holding that Plaintiffs Arnold, Kutten and Scharff did not set forth a "scintilla of evidence" of any damage to prove the requisite amount in controversy" (pgs. 4, 8.) Exhibit 12: are true and correct copies of the two complaints filed in Kutten v. Bank of America et al. ("Kutten II") (E.D. Mo. Case No. 06-937 PAM). The original Complaint was filed on
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705 _________________________________________________________________________________________________

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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June 16, 2006, less than one month after Kutten I was dismissed. The Amended Complaint was filed on October 26, 2006. (Docket Nos. 1 and 23, available at: http://pacer.login.uscourts.gov/cgibin/login.pl). A review of the Amended Complaint shows that Plaintiffs removed the federal securities claims and deleted most of the language from the original complaint that directly referenced disclosures, deceptive practices, misrepresentations or omissions made by defendants. The Amended Complaint also included a paragraph that specifically argued why the Amended Complaint was not preempted by SLUSA (pg. 3, ¶ 3). Exhibit 13: is a true and correct copy of the August 29, 2007 Memorandum and Order dismissing the Amended Complaint. (Dismissal Memorandum and Order, Docket No. 58, available at: http://pacer.login.uscourts.gov/cgi-bin/login.pl). The Court held that SLUSA preempted all state law class claims asserted in this action. However, the Court also concluded that Kutten established diversity jurisdiction over her individual claims (pg. 21). Exhibit 14: is a true and correct copy of Defendant Bank of America, N.A. and Bank of America Corporation's Memorandum of Law in Support of Motion to Continue Stay of Discovery filed in Kutten II (Docket No. 28, available at: http://pacer.login.uscourts.gov/cgi-bin/login.pl.) In that motion, the Bank of America stated that "in the `new' initial complaint, Plaintiffs added numerous securities claims based on the same underlying allegations of Kutten I. Counts I through III of the complaint allege violations of various sections of the Securities Act of 1933. Counts IV and V assert violations of the Exchange Act of 1934 and Court VI alleges violations of the Investment Advisers Act of 1940. Counts VII through XV are state law claims, which are subject to preemption under Securities Litigation Uniform Standards Act of 1998 (`SLUSA') because they are based upon allegations of an untrue statement or omission of a material fact made in connection with the purchase or sale of a covered security." (pg. 2.) /// /// /// /// ///
_________________________________________________________________________________________________ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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B.

Judicial Notice of the Published Federal Deposit Insurance Corporation ("FDIC") Trust Examination Manual, Comptroller of the Currency Handbook, and the Board of Governors Federal Reserve System, Supervision and Regulation SR 99-7 Attached Hereto Is Proper. Federal courts may take judicial notice of guidelines, manuals, and rules of federal and state

governmental agencies. See Lockyer v. County of Santa Cruz, 2006 WL 3086706, at *3 n.3 (N.D. Cal. Oct. 30, 2006) (granting judicial notice of US DOJ checklist for polling places, available on US DOJ website); Kothmann Enters., Inc. v. Trinity Industries, Inc., 455 F. Supp. 2d 608, 929 (S.D. Tex. 2006) (taking judicial notice of USPTO Manual on Patent Examining Procedure); Driebel v. City of Milwaukee, 298 F.3d 622, 631 n.2 (7th Cir. 2002) (taking judicial notice of a police department manual containing rules and regulations promulgated by the chief of police); Gleave v. Graham, 954 F. Supp. 599, 605 (W.D.N.Y. 1997) (taking judicial notice of Bureau of Prisons' office internal agency guidelines). The Comptroller of the Currency Handbook ("OCC"), FDIC Trust Examination Manual, and the Board of Governors Federal Reserve Supervision and Regulation, SR 99-7, attached here to as Exhibits 15-17, are also published on official governmental websites. Numerous courts have held judicial notice is appropriate of facts found on official government web pages. See Lockyer, 2006 WL 3086706, at *3 n.3 (taking judicial notice of US DOJ checklist for polling places, available on US DOJ's web site); Reece v. U.S., 119 F.3d 1462, 1468 n.10 (11th Cir. 1997) (taking judicial notice of the fact of "devastating impact" upon communities of drug methamphetamine, as provided on the Drug Enforcement Administration and National Institute's web site); Wallace v. Federal Emergency Management Agency, 2001 WL 125316, at *2 (N.D. Cal. Jan. 26, 2001) (taking judicial notice of various publications available on the Federal Emergency Management Agency's web site); In re Agribiotech Securities Litigation, 2000 WL 1277603, at *4-*5 (D. Nev. Mar. 2, 2000) (taking judicial notice of public filings available on the Securities and Exchange Commission's web site, holding "in this new technological age, official government or company documents may be judicially noticed insofar as they are available via the worldwide web"); McLaughlin v. Volkswagen of America, 2000 WL 1793071, at *3 n.3(E.D. Pa. Dec. 6, 2000) (taking judicial notice of automobile recall described on National Highway Transportation Safety Administration's web site); _________________________________________________________________________________________________
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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Modesto Irrigation Dist. v. Pacific Gas & Elec. Co., 61 F. Supp. 2d 1058, 1066 (N.D. Cal. 1999) (taking judicial notice of documents submitted to Federal Regulatory Commission because they were available on agency's web site). For both these reasons, the following manuals and booklets attached hereto as Exhibits 15-17 published on official government websites, are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," (Fed. R. Ev. 201) and are therefore appropriate for judicial notice: Exhibit 15: is a true and correct copy of selected portions of the Comptrollers of the Currency Administrator of National Banks Handbook, Conflicts of Interest, published in June 2000, (pgs. i-9; 43-45) (available at the OCC's web site: http://www.occ.treas.gov/handbook/conflict.pdf). Exhibit 16: is a true and correct copy of the Board of Governors of the Federal Reserve System, Division of Banking Supervision and Regulations, SR 99-7, dated March 26, 1999 (available at the Board of Governors Federal Reserve System's web site: http://www.federalreserve.gov/BOARDDOCS/srletters/1999/SR9907.HTM). Exhibit 17: is a true and correct copy of selected portions of the FDIC Trust Examination Manual, Section 7-Complaince-Pooled Investment Vehicles (subsections K and L) (available at: http://www.fdic.gov/regulations/examinations/trustmanual/index.html) III. DECLARATION IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE I, Derek G. Howard, declare as follows: 1. I am an attorney duly admitted to practice law in the State of California.

I am a partner with the law firm Murray & Howard, LLP, and am one of the counsel of record for the Plaintiff in this class action. 2. I have personal knowledge of the facts set forth below, and if called upon to testify, I

could and would competently testify to them. 3. I make this declaration in support of the Request for Judicial Notice in Support of

Plaintiff's Opposition to Defendants' Motion to Dismiss the Complaint. 4. As to all of the exhibits identified above in section II, except Exhibit 4, our firm

downloaded and printed the document from its respective official website, as also indicated in

_________________________________________________________________________________________________ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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section II. Exhibit 4 attached to the Request for Judicial Notice is a copy of the transcript in the case Luleff v. Bank of America et. al. (S.D. N.Y. Case No. 06-cv-1435 JGK). To our knowledge this is not an electronically available document. I received a copy of this document from Plaintiff's counsel. I did not attend the hearing but do believe it is a true and accurate copy of the September 7, 2007 transcript in that case. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed at Oakland, California, on September 5, 2008. By: /s/_______________________________ Derek G. Howard IV. CONCLUSION For the forgoing reasons, judicial notice of all of the documents attached hereto is proper. Dated: September 5, 2008 Respectfully submitted, MURRAY & HOWARD LLP COTCHETT, PITRE & MCCARTHY By /s/ Derek G. Howard Attorneys for Plaintiff and the Class

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_________________________________________________________________________________________________ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; DECLARATION OF COUNSEL Case No. 08-2705

MURRAY & HOWARD, LLP
436 14th Street, Suite 1413 Oakland, CA 94612 Tel. (510) 444-2660 Fax (510) 444-2522

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION S.C. RABIN, individually and on behalf of herself and all others similarly situated and JOHN HOLLINGER, individually and on behalf of himself and all others similarly : situated Plaintiffs, vs. JPMORGAN CHASE BANK, N.A. and JPMORGAN CHASE & Co., Defendants. : : : : : : : : : : : : : : : Case No. 06-C-5452 Judge William J. Hibbler Magistrate Judge Nolan CLASS ACTION

AMENDED COMPLAINT Plaintiffs, through their counsel, hereby allege the following upon personal knowledge as to their own acts and upon information and belief based, among other things, upon the investigation made by plaintiffs by and through such counsel as to the acts of the defendants JP Morgan Chase Bank, N.A. (the "Bank"), JPMorgan Chase & Co, ("JPM") and others as described herein. The majority of evidence in support of plaintiffs' claims is in defendants' exclusive possession, custody, or control. Plaintiffs' claims are likely to have additional evidentiary support after a reasonable opportunity for discovery. JURISDICTION AND VENUE 1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §

1331 and § 22 of the Securities Act of 1933 ("Securities Act"), 15 U.S.C. § 77(v); § 27 of the Securities

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Exchange Act of 1934 ("Exchange Act"), 28 U.S.C. § 1332 (b), the Class Action Fairness Act of 2005 and 28 U.S.C. § 1367. 2. There is diversity of citizenship between each plaintiff and defendant Bank, a federally

chartered bank and JPM, with their headquarters in the State of New York. Further, the claims of all members of the Class will exceed $5,000,000, exclusive of interest and costs. Although plaintiff Rabin and a substantial number of members of the Class reside in Illinois, more than two-thirds of the Class members are residents of other states. The conduct of the defendants as described herein occurred directly and indirectly within this District, as well as in other states. Further, defendants have continuous, material and systemic contacts within this District through, inter alia, numerous branches and offices of the Bank and otherwise. Accordingly, this Court has personal jurisdiction over the defendants. 3. Venue is proper in this District pursuant to § 22 of the Securities Act, § 27 of the Exchange

Act and 28 U.S.C. § 1391(b) because the defendants had undeniable daily and regular contacts with this District by reason of, inter alia, the common scheme, plan and conspiracy set forth below, to materially reduce the fiduciary responsibilities owed by the Bank to plaintiffs and members of the Class, to foist upon the fiduciary accounts of plaintiffs and all members of the Class shares of the proprietary mutual funds of defendant including, in particular, those of the JPMorgan Funds, and to extract from such accounts excessive and unjust fees and other benefits. 4. In connection with the acts alleged in this Complaint, defendants, directly or indirectly, used

the means and instrumentalities of interstate commerce, including, but not limited to, the mails, interstate telephone communications and the facilities of the national securities markets. Defendants, directly and/or through agents, affiliates and/or independent contractors distributed prospectuses within and otherwise

2

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marketed and sold JPMorgan Funds shares to the fiduciary accounts of members of the Class residing in this District, much of which conduct originated within this District. THE PARTIES 5. Plaintiff S.C. Rabin, a citizen of the State of Illinois, is a beneficiary of one of the Bank's

fiduciary accounts who is and was victim of its breaches of fiduciary duties and its other wrongful conduct as set forth herein. 6. Plaintiff John Hollinger, a citizen of the State of Colorado, was a beneficiary of one of the

Bank's fiduciary accounts until on or about August, 2006, when the account was closed. He too was a victim of the Bank's breaches of fiduciary duties and its other wrongful conduct as set forth herein. 7. Defendant JPMorgan Chase Bank, N.A. (the "Bank") is a federally chartered Bank

domiciled in New York, and is a wholly owned subsidiary of defendant JPMorgan Chase & Co. ("JPM"). At material times during the Class Period defined below, the Bank has served as a corporate fiduciary for fiduciary accounts for the benefit of plaintiffs and members of the Class. As indicated below, at all material times, JPM controlled the transactions described herein directly sand indirectly.

BACKGROUND FACTS 8. This Class Action is brought by plaintiffs on their own behalf and on behalf of all those

similarly situated against the defendants arising out of, inter alia, violations of the federal securities law as well as breaches of fiduciary duty owed to them by defendant Bank. This case is brought against the backdrop, inter alia, of the Bank's breaches of fundamental fiduciary duties owed by it to plaintiffs and the members of the Class defined below. 9. As stated by the Court in Busby v. Worthen Bank & Trust Co., N.A., 484 F. Supp. 647, 3

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(E.D.Ark. 1979): The dispositive point, in this Court's judgment, is that [the bank] is the trustee of an express trust. As such, it is subject to what is probably the highest standard of fiduciary duty known to the law. Doubts must be resolved against the trustee, and against its employees, and in favor of the beneficiaries. The famous passage by Chief Judge (later Mr. Justice) Cardozo, speaking for the New York Court of Appeals, has lost none of its force: `Many forms of conduct permissible in a work-a-day world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the "disintegrating erosion" of particular exceptions. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court....' The trustee has a duty to avoid even the appearance of impropriety..." [emphasis added, internal citations omitted] 10. By acting as described herein and ignoring the explicit guidance provided by federal banking

regulators and the Court in the Busby case as quoted above and other pronouncements of fiduciary obligations, the Bank has been a "faithless fiduciary" which put its own interests before those of the plaintiffs and members of the Class. Plaintiffs' Trust Accounts 11. In 1969, plaintiff Hollinger, as a result of medical malpractice when he was one year old,

was caused to be afflicted with cerebral palsy and other serious medical conditions. Following a jury trial in 1974, a judgment in his favor was rendered leaving his parents with a net amount of approximately $600,000, to be used for his lifetime care. 12. Thereafter, his family caused the funds available from the malpractice judgment to be placed

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in trust for plaintiff Hollinger at the American National Bank of Chicago, one of the numerous predecessor financial institutions ultimately merged into the Bank. The income from his trust account has been applied to his care and welfare including, inter alia, tutoring expenses, creating a wheelchair-accessible bathroom, therapists' fees and, for some years, payments to his mother, Katherine Kylen, for plaintiff Hollinger's benefit. 13. Despite the fact that plaintiff Hollinger's parents were co-trustees with the Bank, the Bank

did not make any attempt to determine his needs from them or from plaintiff Hollinger directly. Despite federal regulatory requirements to do so, neither the Bank nor its predecessors had annual or other periodic reviews of plaintiff Hollinger's account with him or with the co-trustees to discuss appropriate investment strategies of otherwise. As with other co-fiduciaries of accounts at the Bank, it ignored such co-fiduciaries and the beneficiaries of the accounts and made investment decisions unilaterally. 14. Plaintiff Rabin's Trust accounts were established by her father, David D. Rabin, to insure

that his wife and daughter would be well cared for throughout their lives. Plaintiff Rabin is the daughter of David D. Rabin, deceased. Although the Bank periodically had discussions with plaintiff and her mother, Bertha Rabin, with respect to certain of the investments purchased for plaintiff Rabin's trust accounts, at all relevant times, the Bank acted unilaterally in making investment decisions and never had annual or other periodic reviews of plaintiff Rabin's trust accounts with her to discuss appropriate investment strategies of otherwise. JPM's Goal To Be A Nationwide Financial Giant 15. Over the course of the last 15 years, JPM has made numerous acquisitions of other financial

institutions throughout the United States, including Bank One and predecessors, American National Bank of Chicago and First National Bank of Chicago, which previously serviced the fiduciary accounts of 5

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plaintiffs. In 2004, Bank One and JPM merged to form "one of the strongest financial institutions in the world" as touted by Bank One's press release. 16. In the course of JPM's long chain of acquisitions of other financial institutions ("Acquired

Banks"), many of which were purchased for substantial premiums over book value, it relied increasingly on squeezing more and more revenues and profits from fiduciary operations, including standardizing the investment of fiduciary assets and forcing them, increasingly, into proprietary mutual funds. As stated at p.60 of the JPMorgan Funds Statement of Additional Information dated November 1, 2006, it is acknowledged that one of the investment advisors to the JPMorgan Funds "represents a consolidation of the investment advisory staffs of a number of [Acquired Banks] of the former Bank One Corporation..." Sales of JPMorgan Funds Shares To The Bank's Fiduciary Accounts 17. Throughout and on a regular basis during the Class Period defined below, defendant Bank

purchased and sold shares of various JPMorgan Funds for plaintiffs' respective trust accounts including, but not limited to the following:

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Plaintiff Rabin's Accounts Purchase JP Morgan Municipal Money 11/05 Market Premier Sale JP Morgan Municipal Money 11/05 Market Premier Purchase JP Morgan Multi Cap Market 4/05 Neutral Fd Sale JP Morgan Intermediate Tax Free 4/05 Bond

Plaintiff Hollinger's Account Exchange JP Morgan Intermediate Tax Free 2/05 Bond Fund Sale JP Morgan Intermediate Tax Free 2/05 Bond Fund Sale JP Morgan Equity Index Fund 2/05

18.

Plaintiffs were not made aware of these or any other purchase, sale or other transactions by

the Bank involving shares of JPMorgan Funds until after they had occurred and plaintiffs played no role in connection with such transactions. The Bank informed plaintiffs of these transactions by sending them

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periodic account statements which so advised them of the Bank's purchases, sales and holdings of JPMorgan Funds shares for their respective accounts. 19. Similarly, the Bank purchased shares of JPMorgan Funds for all or practically all of its

fiduciary accounts, including accounts which have or had co-fiduciaries, such as plaintiff Hollinger's account. In the course of carrying out such purchases, the Bank intentionally excluded from consideration investing the assets in these fiduciary accounts on a fee and expense-free basis through Common Trust Funds ("CTFs") or other in-house pools of investments or alternate, lower cost, better managed non-proprietary mutual funds or the investment preferences of co-fiduciaries.

FACTS UNDERLYING THE VIOLATIONS OF FEDERAL AND COMMON LAW The Bank's Relationship To Fiduciary Account Beneficiaries 20. The Bank markets itself as a sophisticated corporate fiduciary which

provides personalized financial solutions and excellent service. 21. The Bank holds itself out as possessing a degree of skill greater than that of an individual of

ordinary intelligence. Accordingly, the Bank is held to that higher degree of skill when evaluating its management (or in this case, lack thereof) of the fiduciary accounts at issue here. Under Federal Regulations The Bank Owes the Highest Fiduciary Duty to the Trust Beneficiaries 22. Trustees, executors and other corporate fiduciaries such as the Bank are bound by the

highest standards of fiduciary duty to their charges. For that reason, much guidance exists to inform corporate fiduciaries of the extent of their fiduciary obligations. 23. For example, recognizing the inherent dangers prevalent when a bank acts as a

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trustee, the Office of the Comptroller of the Currency (the "OCC"), the Bank's principal regulator, has set up stringent guidelines to ensure that banks do not breach fiduciary duties owed to beneficiaries of trusts and other fiduciary accounts under their management. In that regard, the OCC directs: Investment of fiduciary accounts ­ (1) In general. Unless authorized by applicable law, a national bank may not invest funds of a fiduciary account for which a national bank has investment discretion in the stock or obligations of, or in assets acquired from: The bank or any of its directors, officers, or employees; affiliates of the bank or any of their directors, officers, or employees; or individuals or organizations with whom there exists an interest that might affect the exercise of the best judgment of the bank. 12 C.F.R. § 9.12(a). 24. As a follow up to the generalized limitations on the investments that may be made by a bank

as set forth in 12 C.F.R. § 9.12(a), the OCC released: Acceptance of Financial Benefits By Bank Trust Departments, Comptroller of Currency ­ Banking Issues B-233, Chief Executive Officers of National Banks Authorized to Exercise Fiduciary Powers, Deputy Comptrollers (District), and Examining Personnel, February 3, 1989, which states in pertinent part: FIDUCIARY DUTIES OF BANK TRUST DEPARTMENTS National bank trustees owe exacting fiduciary duties to customers who place trust funds under the bank's management. Trustees are obligated to make decisions concerning the investment of trust assets based exclusively on the best interest of trust customers. This principle is reflected in 12 C.F.R. § 9.12(a) . . . . **** When selecting a mutual fund or money market investment, a trustee should evaluate the return being paid, the composition and length of maturities of its portfolio, the fund's management and all other factors relevant to the suitability of the investment for customers. The trustee must not place themselves in a position where their judgments concerning the optimal investment for trust accounts may be influenced by the trustees' receipt of financial benefits for selecting a particular investment. The same principles apply whether the bank (i) rebates or discounts services provided by or at the direction of an investment management firm 9

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(such as accounting and administrative services), (ii) computer goods or services, (iii) seminars and travel expenses which are offered by, or at the direction of, such firms, or (iv) any other financial benefits in exchange for investing trust funds in particular money market funds. *** In sum, if a bank receives incentives for placing trust assets in an investment fund offered by a particular provider, the bank must pass those incentives on to the accounts which have had their asset interests invested in the fund. REMEDIAL ACTION National banks that engage, or have engaged, in conduct inconsistent with their fiduciary duties may be subject to significant liability for fiduciary breaches of these duties. [Emphasis added]. 25. The language contained in both 12 C.F.R. § 9.12(a) and the OCC's directive contemplate

that the Bank must conduct an analysis and evaluation of whether its fiduciary obligations to beneficiaries are affected by the transactions it mandates and to what extent its judgment may be compromised by its own interests. Despite the fact that the Bank was and is bound to follow OCC directives, it did not conduct such an objective analysis of the fiduciary accounts of plaintiffs and the members of the Class, clearly engaged in self-dealing and completely abrogated its fiduciary obligation to actively and independently analyze and monitor fiduciary account assets. Indeed, the actions of the Bank were driven purely by its desire to maximize its profit rather than by the Bank's obligations to the beneficiaries entrusted to it. 26. The Board of Governors of the Federal Reserve System ("Federal Reserve") in its

February 26, 1997, Supervision and Regulation letter SR 97-3 (SPE) similarly analyzed the Bank's obligations when investing assets under management in its own proprietary funds either in connection with 10

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Conversions or otherwise, as the Bank did here with the assets in plaintiffs' accounts, and provided the following guidelines to it: In determining whether to convert common trust funds to mutual funds, a banking organization must address the possibility that the conversion could result in conflicts between the best interest of the organization and the best interests of its fiduciary customers. The banking organization must also determine that the mutual fund shares are suitable for accounts which previously held common trust fund units. Banking organizations that convert or transfer common trust funds to mutual funds may face questions from current and future beneficiaries with respect to those two issues. Potential conflicts can arise if a banking organization were to charge a direct fee to the trust customers for serving as trustee while also charging an advisor's fee to the mutual fund . . . it may appear that the organization's primary motive for conversion was a self-interest in generating greater fee income. Another possible conflict of interest could arise from the use of proprietary mutual funds when there are unaffiliated mutual funds or alternate investment opportunities available that may be equally appropriate for the participants' portfolio. Again, the appearance that the organization put its own interests above those of its fiduciary customers may cause concern particularly if investments are made in a newly established proprietary fund with no history or track record. [emphasis added] 27. Here, in direct contradiction of the foregoing Federal Reserve guidelines, which it was

obligated to follow in fulfillment of its fiduciary duties to plaintiffs and the members of the Class, the Bank mandated investment of fiduciary assets in its care in its captive proprietary mutual funds ­ the JPMorgan Funds ­ when there were and are unaffiliated mutual funds (such as low-expense ratio Vanguard Funds or Fidelity Funds) or alternate investment opportunities that were available to the Bank's fiduciary accounts and which were at least equally appropriate for the participants' portfolios.

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The Bank Failed to Exercise Any Standards of Prudent Investment 28. A fiduciary such as the Bank is obligated to invest and manage the assets held in a fiduciary

capacity as a prudent investor would, in light of the purpose, terms, distribution, requirements, and other circumstances of the instruments which established the relationship. This requires a fiduciary to exercise reasonable care, skill and caution before investing the assets in its care. As such, a fiduciary must always incorporate risk and return objectives reasonably suitable and otherwise appropriate for the beneficiaries for whom it is obligated to act..1 29. In addition, a fiduciary must always: a. abide by its fundamental fiduciary duty of loyalty; b. act with prudence in deciding whether and how to delegate authority and when selecting supervisory agents; and c. incur only reasonable and appropriate costs for the trustees' investment responsibilities. 30. In general, trustees such as the Bank have a fiduciary obligation to comply with the terms of

the trust agreements and other underlying instruments creating the fiduciary relationship. The fiduciary must also adhere to fundamental duties as outlined above which are implied terms in all agreements establishing such relationships. An evaluation of whether or not a fiduciary has breached its obligations to those in its care is judged at the time of the investment decision in question. Thus, the question of whether the Bank breached its fiduciary duties turns on the prudence of its original conduct, not on the hindsight analysis of the eventual results of its decision. 31. Plaintiffs and members of the Class were and are being damaged by having their fiduciary

accounts charged, directly and indirectly, as a result of the JPMorgan Funds incurring investment advisory,

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administrative and other fees and expenses which such accounts would not have incurred (thereby lowering net investment returns) if the Bank had made direct investments in securities such as through fee and expense-free CTFs and otherwise. While it is not disputed that investments in proprietary mutual funds may be appropriate as investments by a corporate fiduciary which controls them in some instances, such investments may be made only if they are the most cost-effective and prudent investment choices, after the fiduciary has made an careful and thorough analysis of all available alternatives, including direct investment of fiduciary assets and/or use of fee and expense-free CTFs or other similar investment pools. Plaintiffs and members of the Class are being and have been further damaged by the defendants, through their subsidiaries and the controlled Board of Trustees of the JPMorgan Funds (acting nominally through business trusts established pursuant to Massachusetts law and statutory trusts established pursuant to Delaware law), by not causing the JPMorgan Funds to obtain the best qualified, lowest cost advisory, administrative, and other services rather than utilizing subsidiaries of the Bank and its parent, JPM, on a no-bid basis. 32. In addition, as mandated by the Federal Reserve, a fiduciary such as the Bank owes a duty

of undivided loyalty to a beneficiary entrusted to it and must administer a trust or other fiduciary account solely in the interest of the account's beneficiaries. The strict adherence to this duty prohibits a fiduciary from, as the Bank did with respect to the plaintiffs' fiduciary accounts, investing in or managing investments in a manner that gives rise to an undue profit from a personal conflict of interest. If a fiduciary, by virtue of his or her disloyalty to a beneficiary, generates an undue profit, as the Bank did in the case of plaintiffs and the members of the Class, the beneficiary is entitled to recover that profit from the Bank, as well as all the fees paid to it as a "faithless fiduciary."

1

See Restatement (Third) Trusts §§ 227 (1992).

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33.

Further, the duty of care requires a fiduciary such as the Bank to exercise reasonable effort

and diligence in making and monitoring investments of the assets in its care, paying particular attention to the objectives of the fiduciary relationship, which the Bank failed to do with respect to the accounts of the plaintiffs and members of the Class. Instead, to generate the operational efficiencies needed by it to justify the acquisitions of the Acquired Banks, the Bank shifted and is increasingly directing its approach from individual investment decisions to computerized and standardized model investment portfolios. Such practices of the Bank are contrary to its fundamental obligations to the beneficiaries in its care: The Trustee must give reasonably careful consideration to both the formulation and the implementation of an appropriate investment strategy, with investments to be selected and reviewed in a manner reasonably appropriate to that strategy. Ordinarily this involves obtaining relevant information about such matters as the circumstances and requirements of the trust and its beneficiaries, the contents and resources of the trust estate, and the nature and characteristics of available investment alternatives. **** [I]f the trustee, such as a corporate or professional fiduciary, procured appointment as a trustee by expressly or impliedly representing that it possessed greater skill than that of an individual of ordinary intelligence, or if the trustee has or represents that it has special facilities for investment man