For example, plaintiffs make claims pursuant to Section 36(b) of the ICA, which expressly confers rights of action on shareholders to recover damages arising from breaches of certain fiduciary duties. 15 U.S.C. § 80a-35(b). Plaintiffs also Case 1:04-cv-10584-GAO Document 74 Filed 04/15/2005 Page 46 of 48 -36- assert claims under the IAA and several common law doctrines.

Section 36(a) provides that the SEC "is authorized to bring an action" alleging that an officer, director, board member or investment adviser engaged "in any act or practice consti- tuting a breach of fiduciary duty involving personal misconduct in respect of any registered investment company for which such person so serves or acts." 15 U.S.C. § 80a-35(a). Because 5 In In re Regions Morgan Keegan Securities, Derivative & ERISA Litigation, 743 F. Supp. 2d 744 (W.D. Tenn. 2010), the court stated in dicta that "[c]ourts have determined that § 47(b) of the ICA contemplates a private right of action."

This language is consistent with § 36(b), which allows an action "by a security holder of such registered [*30] investment company on behalf of such company." 15 U.S.C. § 80a-35(b).

633 Folsom Street, 7th Floor San Francisco, California 94107 Telephone: (415) 396-4425 Facsimile: (415) 975-7867 tojacob@wellsfargo.com Attorneys for Defendants WELLS FARGO & CO. and affiliates By /s/ Bruce A. Ericson Bruce A. Ericson 78 15 U.S.C. § 80a-35(b). 79 15 U.S.C. § 80a-35(b)(3). Case3:05-cv-04518-WHA Document65 Filed05/02/06 Page24 of 24

98-12454-REK, 1999 U.S. Dist. LEXIS 23351, at *4-6 (D. Mass. Sept. 29, 1999) (same).47 45 With respect to claims under Section 36(b), this conclusion is further supported by the plain language of the statute, which states that such claims may be brought only “by a security holder of [the fund].” See 15 U.S.C. § 80a-35(b); see also AllianceBernstein, 2005 WL 2677753, at *10. In addition, as discussed above, Plaintiffs’ ICA and state-law claims are necessarily derivative, and courts have uniformly held that a mutual fund shareholder can bring a derivative action only on behalf of funds that he personally owns.

Under the ICA, the independent trustees are the first line of defense in protecting fund shareholders, and courts must give appropriate consideration to the board’s approval of the challenged fees. 15 U.S.C. § 80a-35(b)(1)-(3); see also Jones, 559 U.S. at 351-53. A. Plaintiffs Make No Allegations Relating to Some Great-West Funds Plaintiffs have taken a “group pleading” approach in their Complaint.

The ICA specifically places the burden of proof on the plaintiff in a Section 36(b) case. 15 U.S.C. § 80a-35(b)(1); see also Jones, 559 U.S. at 347. The Supreme Court has explicitly held that a fee violates Section 36(b) only if it is “so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.”

A fund shareholder may not recover damages “for any period prior to one year before the action was instituted.” 15 U.S.C. § 80a-35(b)(3). • Plaintiff alleges that HCA has failed to share economies of scale with the Fund’s shareholders because it has charged the Fund the same rate for its services since March 2006 (0.

As a result, as of that date, Plaintiff will no longer be a “security holder” with respect to that Fund and there no longer will be any entity to which any recovery for that Fund could be distributed. Id.; see also 15 U.S.C. § 80a-35(b) (authorizing Section 36(b) suits only by SEC or “security holder” in fund); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 535 n.11 (1984) (“[A]ny recovery obtained in a § 36(b) action will go to the company rather than the plaintiff.”); Forsythe v. Sun Life Fin., Inc., 417 F. Supp. 2d 100, 118 (D. Mass. 2006) (same); id.

¶ 5, § IX) or any other consequential damages incurred as a result of the allegedly excessive advisory fees. See 15 U.S.C. § 80a-35(b)(3) (“Any award of damages against such recipient shall be limited to the actual damages resulting from the breach of fiduciary duty and shall in no event exceed the amount of compensation or Case 1:15-cv-01014-ER Document 15 Filed 06/12/15 Page 40 of 41 34 CONCLUSION For the foregoing reasons, Plaintiffs’ Complaint should be dismissed in its entirety. Dated: June 12, 2015 Respectfully submitted, DECHERT LLP /s/ Matthew L. Larrabee Matthew L. Larrabee David A. Kotler Catherine V. Wigglesworth Jocelyn V. Hanamirian Melanie MacKay 1095 Avenue of the Americas New York, NY 10036-6797 Telephone: (212) 698-3500 Counsel for Defendants Calamos Advisors LLC and Calamos Financial Services LLC payments received. . .”) (emphasis added).