Case Document 26 Filed 06/07/17 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION JOHN MICHAEL MAIER, AS TRUSTEE FOR THE EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST, Case No. 4: 17-cv-51 DEFENDANT DAVID ANSWER AND AF FIRMATIVE DEF ENSES Plaintiffs, v. DAVID SINNWELL, MARK A. BRASE, ROSS L. NIXON, RICHARD S. RISSMAN, Defendants. Defendant David Sinnwell for his Answer and Af?rmative Defenses to the Complaint and Jury Demand states as follows: Parties 1. Paragraph 1 is denied for lack of knowledge or information suf?cient to - form a belief about the truth of the allegation. 2. Paragraph 2 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 2 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 3. Paragraph 3- states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 3 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. - 1 - Case Document 26 Filed 06/07/17 Page 2 of 12 4. Paragraph 4 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 4 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 5. Paragraph 5 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 5 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Jurisdiction and Venue 6. Paragraph 6 is admitted. 7. Paragraph 7 is admitted. 8. Paragraph 8 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Facts Dahl ?s ESOP: Creation and Purpose 9. Paragraph 9 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 10. Paragraph 10 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Defendant Sinnwell af?rmatively states that he does not have access to the ?series of plan agreements,? and therefore, he cannot admit or deny many allegations in the Complaint that appear to be derived from the plan agreements. Defendant Sinnwell incorporates this response in the paragraphs below that contain allegations based on the plan agreements. - 2 - Case Document 26 Filed 06/07/17 Page 3 of 12 11. Paragraph 11 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. ESOP iduciaries: Advisory Committee, Trustee(s), and Plan Administrator(s) 12. Paragraph 12 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 12 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 13. Paragraph 13 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 13 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. l4. Paragraph 14 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 14 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. The Trust Fund 15. Paragraph 15 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. l6. Paragraph 16 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 16 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. l7. Paragraph 17 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 17 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. - 3 - Case Document 26 Filed 06/07/17 Page 4 of 12 18. Paragraph 18 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 18 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Employee Eligibilig; and Contributions 19. Paragraph 19 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 20. Paragraph 20 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 21. Paragraph 21 is admitted. 22. Paragraph 22 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Maintenance and Valuation of Accounts 23. Paragraph 23 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 23 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 24. Paragraph 24 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 24 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 25. Paragraph 25 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 25 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. - 4 Case Document 26 Filed 06/07/17 Page 5 of 12 Distributions 26. Paragraph 26 is admitted. 27. Paragraph 27 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 27 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 28. Paragraph 28 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 28 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. ESOP iduciaries 29. Paragraph 29 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 29 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 30. Paragraph 30 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 31. Paragraph 31 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the? allegation. 32. Paragraph 32 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 33. Paragraph 33 is admitted. - 5 - Case Document 26 Filed 06/07/17 Page 6 of 12 Actions Taken by iduciaries 34. Paragraph 34 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 34 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 35. Paragraph 35 is denied as vague (?in general?) and for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 36. Paragraph 36 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 37. Paragraph 37 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 38. Paragraph 38 is admitted. 39. Paragraph 39 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Defendant Sinnwell af?rmatively states that a number of valuations were performed by outside ?rms, including Marshall Stevens and Prairie Capital Advisors, but Defendant Sinnwell does not possess copies of the valuations to be able to con?rm the allegations in the Complaint. 40. Paragraph 40 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Defendant Sinnwell admits that the ESOP made distributions to former employees at times, but without the ESOP records, he cannot admit or deny the particular allegations in the Complaint. 41. Paragraph 41 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. - 6 - Case Document 26 Filed 06/07/17 Page 7 of 12 42. Paragraph 42 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 42 is denied. Defendant Sinnwell denies that he caused the Dahl?s ESOP to engage in any prohibited transactions. 43. Paragraph 43 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 43 is denied. Defendant Sinnwell denies that he caused the Dahl?s ESOP to engage in any prohibited transactions. 44. Paragraph 44 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 44 is denied. Defendant Sinnwell denies that he caused the Dahl?s ESOP to engage in any prohibited transactions. Defendant Sinnwell further denies the legal premise of the allegation in paragraph 44. 45. Paragraph 45 is denied. 46. Paragraph 46 is denied. 47. Paragraph 47 is denied. 48. Paragraph 48 is denied. 49. Paragraph 49 is denied. Meier Hired as Trustee 50. Paragraph 50 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. Paragraph 51 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 52. Paragraph 52 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. - 7 - Case Document 26 Filed 06/07/17 Page 8 of 12 53. Paragraph 53 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. First Cause of Action: Violation of 29 US. C. 1106 54. Defendant Sinnwell incorporates by reference the responses set forth in paragraphs 1-53 above. 55. Paragraph 55 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 55 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 56. Paragraph 56 is denied. 57. Paragraph 57 is denied. 58. Paragraph 5 8 is denied. 59. Paragraph 59 is denied. 60. Paragraph 60 is denied. 61. Paragraph 61 is denied. WHEREFORE Defendant David Sinnwell prays that this Court dismiss Plaintiffs action at Plaintiff?s cost, and for such other and timber relief as the Court deems appropriate under the circumstances. Second Cause of Action: Violation of 29 US. C. 1106 62. Defendant Sinnwell incorporates by reference the responses set forth in paragraphs 1-61 above. 8 - Case Document 26 Filed 06/07/17 Page 9 of 12 63. Paragraph 63 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 63 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 64. Paragraph 64 is denied. 65. Paragraph 65 is denied. 66. Paragraph 66 is denied. 67. Paragraph 67 is denied. 68. Paragraph 68 is denied. 69. Paragraph 69 is denied. WHEREFORE Defendant David Sinnwell prays that this Court dismiss Plaintiff?s action at Plaintiff?s cost, and for such other and further relief as the Court deems appropriate under the circumstances. Third Cause of Action: Violation of 29 US. C. 1104 70. Defendant Sinnwell incorporates by reference the responses set forth in paragraphs 1-69 above. . 71. Paragraph 71 states a legal conclusion that does not require a response. Insofar as a response is necessary, paragraph 71 is denied for lack of knowledge or information suf?cient to form a belief about the truth of the allegation. 72. Paragraph 72 is denied. 73. Paragraph 73 is denied. 74. Paragraph 74 is denied. 75. Paragraph 75 is denied. - 9 - Case Document 26 Filed 06/07/17 Page 10 of 12 WHEREFORE Defendant David Sinnwell prays that this Court dismiss Plaintiffs action at Plaintiff?s cost, and for such other and further relief as the Court deems appropriate under the circumstances. Fourth Cause of Action: Attorney Fees Pursuant to 29 C. 1132 76. Paragraph 76 is denied. WHEREFORE Defendant David Sinnwell praysthat this Court dismiss Plaintiff 3 action at Plaintiff?s cost, and for such other and further relief as the Court deems appropriate under the circumstances. AFFIRMATIVE DEFENSES 1. Plaintiff fails to state a claim upon which relief may be granted. 2. Plaintiffs claims are barred by 29 U.S.C. 1113. 3. Plaintiffs claims are barred by 29 U.S.C. 1108(c). 4. Plaintiff?s claims are barred by the doctrine of estoppel. 5. Plaintiff?s claims are barred by the doctrine of laches. 6. Plaintiff?s claims are barred by the business judgment rule. Defendant Sinnwell requests that all issues be tried to a jury. - 10 - Case Document 26 Filed 06/07/17 Page 11 of 12 THE WEINHARDT LAW FIRM By 7/14 Mark E. Weinhardt AT0008280 Todd M. Lantz AT0010162 2600 Grand Avenue, Suite 450 Des Moines, IA 50312 Telephone: (515) 244-3100 E-mail: mweinhardt@weinhardtlaw.com t1antz@weinhardtlaw.com ATTORNEYS FOR DEFENDANT DAVID SINNWELL -11- Case Document 26 Filed 06/07/17 PROOF OF SERVICE The undersigned certi?es tha served upon the parties to this ac% of the attorneys listed below on i. El US. Mail Hand Delivered Electronic Mail FedEx! Overnight Carrier CM ECF Michael K. Thibodeau Stephen W. Tyler Gary R. Fischer Johannes (John) H. Moorlach Simpson, Jensen, Abels, Fischer WHITFIELD EDDY, PLC Bouslog, PC. 699 Walnut St., Suite 2000 400 Locust Street, Suite 400 Des Moines, Iowa 503 09 Des Moines, IA 50309 (515) 288-6041 Jerome R. Kerkman ATTORNEY FOR DEFENDANTS MARK A. Gregory M. Schrieber BRASE, RICHARD S. RISSMAN Kerkman Dunn 757 N. Broadway, Suite 300 Milwaukee, WI 53202-3612 jkerkman@kerkmandunn.corn ATTORNEYS FOR PLAINTIFF Stephen H. Locher BELIN MCCORMICK 666 Walnut St., Suite 2000 Des Moines, IA 50309 (515) 283-4610 shlocher@belinmccormick.com ATTORNEY FOR DEFENDANT ROSS L. NIXON Wm - 12 - Page 12 of 12