Plaintiffs:: Court Use Only - Case Number

DISTRICT COURT, BOULDER COUNTY, COLORADO
Court Address: Boulder Justice Center

1777 6th Street
Boulder, CO 80302
303-441-3750
_________________________________________________
Plaintiffs:
CAROL B. CURRAN,
WADE CURRAN,
DOROTHY J. JACKSON, and
ROBERT GAHAN,
on behalf of themselves, and all others similarly situated,
v.
Defendants:
AGL LIFE ASSURANCE COMPANY, a
Pennsylvania Corporation;
PHOENIX EQUITY PLANNING CORPORATION
f/k/a PFG Distribution Company, a Pennsylvania Corporation; ▲ COURT USE ONLY ▲
JOHN K. HILLMAN, an individual; ___________________________
AGILE GROUP, LLC, a Delaware Limited Liability
Company, and
NEAL GREENBERG, an individual
Case Number:
_____________________________________________
Counsel for Plaintiffs and the Class:
Jeffrey A. Chase, #5203 jchase@jacobschase.com Division:
Michael H. Berger, #6619 mberger@jacobschase.com
Lawrence M. Zavadil, #19419 lzavadil@jacobschase.com
Andrew W. Myers, #34104 amyers@jacobschase.com
JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC
1050 17th Street, Suite 1500
Denver, Colorado 80265
Telephone: 303-685-4800
Facsimile: 303-685-4869
James Ghiselli, #15993 jghiselli@sgslitigation.com

Andrew Shoemaker, #26710 ashoemaker@sgslitigation.com
Paul Schwartz, #29729 pschwartz@sgslitigation.com
Cynthia A. Mitchell, #29714 cmitchell@sgslitigation.com
Shoemaker Ghiselli & Schwartz LLC
1007 Pearl Street, Suite 200
Boulder, CO 80302
Telephone: 303-530-3452
Facsimile: 303-530-4071
CLASS ACTION COMPLAINT AND JURY DEMAND
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Plaintiffs Carol B. Curran, Wade Curran, Dorothy J. Jackson and Robert Gahan on behalf
of themselves and on behalf of all other similarly situated investors who purchased AGL's
Flexible Premium Deferred Variable Annuity product (the "AGL Annuity") (collectively
"Plaintiffs"), for their Class Action Complaint against Defendants AGL Life Assurance
Company ("AGL"), Phoenix Equity Planning Corporation f/k/a PFG Distribution Company
("PFG") (AGL and PFG are referred to collectively herein as "AGL"), John K. Hillman, Agile
Group, LLC ("Agile Group") and Neal Greenberg ("Greenberg"), allege as follows.
NATURE OF THE ACTION
1. Plaintiffs entrusted Defendants with much, and in many cases all, of their assets for
retirement. These assets included traditional variable annuities. These assets should have been
invested in low-risk investments to conserve Plaintiffs' principal and to generate income for the
Plaintiffs' current or impending retirement. Instead, the Defendants conspired to create an
unsuitable investment vehicle for the Plaintiffs' retirement money, and then caused all of those
monies to be invested in that unsuitable investment vehicle.
2. The unsuitable investment vehicle was a private placement into the AGL
Annuity—a security created and issued by Defendant AGL with the specific intent and design
that it be exchanged for the traditional variable annuities owned by Greenberg's clients—the
Plaintiffs. AGL, in turn, funneled Plaintiffs' retirement funds into a leveraged hedge fund run by
Defendant Greenberg that, in turn, invested 100% of its funds into other leveraged hedge funds
run by third parties. AGL and Greenberg fraudulently called this leveraged hedge fund of
leveraged hedge funds the "Agile Safety Variable Fund" (the "Safety Fund").
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3. The Safety Fund was, in fact, anything but "safe," as AGL and Greenberg touted.
In reality, the AGL Annuity/Safety Fund was essentially a "black box" into which Plaintiffs'
money was placed and Defendants either knew the AGL Annuity/Safe Fund was too risky for
Plaintiffs or Defendants knew they had no meaningful ability to control, monitor or assess the
risks being taken by the investment managers of the hedge funds who were given Plaintiffs'
money. Had Defendants disclosed the riskiness of the AGL Annuity/Safety Fund and/or their
inability to meaningfully control, monitor or assess the "safety" of investing in the Safety Fund,
Plaintiffs would never have purchased the AGL Annuity. By investing in the AGL
Annuity/Safety Fund, Plaintiffs lost virtually all of their money to risky ventures and Ponzi
scheme artists, such as Bernard Madoff and Thomas Petters, with whom Greenberg concentrated
approximately 85% of the Safety Fund's investments.
4. Defendants' scheme was designed and carried out in total disregard for the
suitability of the investments for each member of the Class. The AGL Annuity/Safety Fund was
inherently unsuitable for Plaintiffs.
5. Plaintiffs are primarily older, hardworking citizens of Colorado who, through many
years of effort, had compiled a reasonable nest egg for their retirement. Plaintiffs entrusted their
retirement monies to Greenberg upon his assurance that he would safely invest those assets for
them. Now, through the greed and wrongful conduct of Greenberg and AGL, Plaintiffs' lives
have been devastated and their retirement dreams have been destroyed.
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JURSIDICTION AND VENUE
6. This is a class action brought pursuant to C.R.C.P. 23(a) and (b)(3).
7. As a court of general jurisdiction, this Court has jurisdiction over the subject matter
of this Class Action Complaint.
8. Venue is proper in this District pursuant to C.R.C.P. 98(c)(1) and (c)(5) because
Defendant Greenberg resides in Boulder County and one or more of the alleged tortious acts
were committed in Boulder County.
9. This case is not governed by the Securities Litigation Uniform Standards Act of
1998 ("SLUSA"). The AGL Annuity is not a "covered security" within the meaning of 15
U.S.C. § 77r(b)(1) or (2). AGL, the issuer of the AGL Annuity, is not an investment company
that is registered, or that has filed a registration statement, under the Investment Company Act of
1940 (the "1940 Act"). Nor is the separate account created by AGL in connection with the
issuance of the AGL Annuity registered under the 1940 Act. The AGL Annuity Private
Placement Memorandum ("PPM") expressly provides that the separate account, defined as the
"Variable Account," is not registered with the Securities and Exchange Commission under the
1940 Act as an investment company because such registration "is not required under exemptions
provided by Section 3(c)(1) of the 1940 Act."
PARTIES
10. Plaintiff Carol B. Curran is a citizen of the State of Colorado.
11. Plaintiff Wade Curran is a citizen of the State of Colorado.
12. Plaintiff Dorothy J. Jackson is a citizen of the State of Colorado.
13. Plaintiff Robert Gahan is a citizen of the State of Colorado.
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14. Defendant AGL Life Assurance Company is a Pennsylvania corporation with its
principal place of business in Pennsylvania.
15. Defendant Phoenix Equity Planning Corporation f/k/a PFG Distribution Company
("PFG") is a Pennsylvania corporation with its principal place of business in Pennsylvania.
16. Defendant Agile Group, LLC is a Delaware Limited Liability Company with its
principal place of business in Boulder County. Upon information and belief, one or more of the
Agile Group's members is a resident of Colorado.
17. Defendant Neal Greenberg is a citizen of the State of Colorado who resides in
Boulder County.
18. Defendant John K. Hillman ("Hillman") is an individual who, upon information
and belief, resides in Pennsylvania. Hillman is, or was at pertinent times, a Director of and the
President and Chief Executive Officer of AGL.
CLASS ACTION ALLEGATIONS
19. This action is brought by the named Plaintiffs for themselves and on behalf of
others similarly situated as a class action pursuant to C.R.C.P. 23 (a) and (b)(3).
CLASS DEFINITION
20. The proposed Class (the "Class") is defined as follows:
All persons who purchased the AGL Annuity prior to September 1, 2008
and held their investment through September 1, 2008. Excluded from the
Class are all Defendants, and all affiliates and persons acting in concert
with the Defendants.
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NUMEROSITY
21. The members of the Class are so numerous that joinder of all members is
impracticable. While the exact number of Class members is unknown at this time, Plaintiffs
believe that there are in excess of eighty and certainly less than 100 members of the proposed
Class.
COMMONALITY
22. There are common questions of law and fact in this class action that relate to and
affect the rights of each member of the Class including:
a. Did the Defendants omit to disclose that the AGL Annuity/Safety Fund
was too risky for Plaintiffs;
b. Did the Defendants omit to disclose that Plaintiffs faced a significant risk
of losing all of their money;
c. Did the Defendants, through their uniform writings supplied to all
Plaintiffs, misrepresent that the AGL Annuity/Safety Fund was a safe
investment;
d. Did Defendants omit to disclose that the AGL Annuity/Safety Fund was
an unsuitable security for Plaintiffs;
e. Did the Defendants omit to disclose that given the allowed investment
concentration combined with the allowed leverage, the Plaintiffs could
lose all of their money if only one or two of the leveraged hedge funds
suffered a significant loss;
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f. Did the Defendants omit to disclose that the layers of anticipated leverage
significantly magnified the risk associated with the AGL Annuity;
g. Did the Defendants omit to disclose that hedge funds make limited
disclosures and are largely unregulated and, therefore, Defendants had
limited ability to identify, monitor or control investments;
h. Did the Defendants omit to disclose that Defendants had no meaningful
ability to control, monitor or assess the risks inherent in the AGL
Annuity/Safety Fund;
i. Did the Defendants omit to disclose that the AGL Annuity was a
significantly different type of investment than their pre-existing traditional
variable annuities and that the AGL Annuity carried significantly greater
risk;
j. Did the Defendants omit to disclose that it was rare and highly
unconventional to exchange a traditional variable annuity for a private
placement insurance product that intended to invest exclusively in a
leveraged hedge fund of leveraged hedge funds;
k. Did Defendants omit to disclose that the many layers of fees/commissions
and costs associated with an investment in the AGL Annuity would
require high risk/high return investments to compete with the returns
Plaintiffs could earn on more safe investments;
l. Did the Defendants omit to disclose that it is ordinarily not in an investor's
interests to exchange one variable annuity for another;
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m. What were AGL's duties to ensure the suitability of the AGL
Annuity/Safety Fund for the Plaintiffs;
n. What were Greenberg's duties to ensure the suitability of the AGL
Annuity/Safety Fund for the Plaintiffs;
o. Did AGL and/or Greenberg satisfy their duties to ensure the suitability of
the AGL Annuity/Safety Fund for the Plaintiffs;
p. Did AGL and/or Greenberg's omissions and breaches of duty regarding
suitability cause damage to Plaintiffs;
q. Do AGL, Greenberg, Agile Group and the Safety Fund constitute an
association-in-fact COCCA "enterprise" within the meaning of C.R.S. §
18-17-103(2);
r. Did AGL, PFG, Agile Group and Greenberg each conduct and/or
participate in a COCCA enterprise, directly or indirectly, through a pattern
of racketeering activity within the meaning of C.R.S. § 18-17-103(3);
s. Did AGL, PFG, Agile Group and Greenberg engage in a "pattern" of
racketeering activity;
t. Were Plaintiffs directly and proximately injured in their person or property
by reason of the predicate acts and certain Defendants' violation of C.R.S.
§ 18-17-104(3);
u. Did PFG and AGL knowingly and substantially assist a COCCA violation
by Greenberg while being aware of their role in Greenberg's scheme to
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conduct a COCCA enterprise through a pattern of racketeering activity,
and were Plaintiffs directly and proximately injured as a result;
v. Did AGL, PFG, Agile Group and Greenberg each conspire to violate
and/or endeavor to violate C.R.S. § 18-17-104(3);
w. Did Defendants intend to use and use the mails and wires to facilitate and
execute their scheme to defraud Plaintiffs in violation of 18 U.S.C. § 1341
and § 1343;
x. Did AGL and Greenberg know, or in the exercise of reasonable care
should they have known, of the untruths and/or omissions set forth in
paragraph 48 herein;
y. Did AGL and PFG knowingly provide substantial assistance to securities
fraud committed by Greenberg;
z. Did AGL, PFG and Greenberg employ a device, scheme or artifice to
defraud Plaintiffs and/or engage in an act, practice or course of business
that operated as a fraud or deceit upon the Plaintiffs and, if so, did they act
recklessly, knowingly or with the intent to defraud Plaintiffs;
aa. Was Greenberg acting as AGL's agent in his commission of securities
fraud such that AGL and PFG are vicariously liable for Greenberg's
violations;
bb. Is John Hillman a controlling person of AGL;
cc. Did Greenberg owe Plaintiffs a fiduciary duty;
dd. Did Greenberg's actions breach his fiduciary duty;
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ee. Did AGL and PFG aid and abet Greenberg's breach of his fiduciary duties
and/or are they vicariously liable for Greenberg's breaches;
ff. Did AGL, PFG and/or Greenberg owe Plaintiffs a tort duty to use
reasonable care in the creation of and selling of the AGL Annuity to
Plaintiffs, including a non-delegable duty to the Plaintiffs to ensure that
the AGL Annuity was a suitable investment for Plaintiffs and did AGL,
PFG and/or Greenberg breach that duty;
gg. In their uniform written materials supplied to all Plaintiffs, did AGL, PFG
and/or Greenberg make a false representation of material fact and/or fail to
disclose material facts, with the intent of creating a false impression of the
actual facts in the minds of the Plaintiffs.
TYPICALITY
23. The claims of the named Plaintiffs are typical of the claims of all Class members.
Plaintiffs are similarly situated to all members of the Class with respect to the issues presented in
this case. The claims of Plaintiffs are based on the same fundamental factual allegations and
legal theories as the claims of all other Class members.
24. All members of the Class that invested in the AGL Annuity/Safety Fund have been
adversely affected by the wrongful conduct of Defendants as described herein.
ADEQUACY OF REPRESENTATION
25. The named Plaintiffs will adequately represent and protect the interests of the Class
and have no interests that conflict with or are antagonistic to the interests of the Class.
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26. The attorneys for Plaintiffs are experienced and capable of prosecuting complex
litigation such as this case. The attorneys for Plaintiffs and the Class will actively conduct and
be responsible for the prosecution of this litigation and the expenses thereof. The attorneys for
Plaintiffs have adequate resources, experience and commitment to litigate this matter.
PREDOMINANCE AND SUPERIORITY
27. A class action is superior to any other method available for the fair and efficient
adjudication of this controversy.
28. Questions of law or fact common to members of the class predominate over any
questions affecting only individual members.
SUBSTANTIVE ALLEGATIONS
29. In the early 1990's, Defendant Greenberg was an insurance salesman. Greenberg
later obtained a securities license and began selling securities.
30. By the beginning of 2004, Greenberg had approximately 80 clients whom held
traditional variable annuities issued by various insurance companies such as "Nationwide,"
"American Skandia" and "Ameritas." A variable annuity is a combination of an investment and
an insurance product. The insurance component provides a death benefit upon the death of the
owner. The investment component is typically invested in securities with the objective of
obtaining tax-deferred returns on the principal.
31. The investment component of Plaintiffs' existing annuities were invested in mutual
funds that primarily held publicly traded, "large cap" securities. Greenberg had been engaged in
a trading strategy called "market timing" with Plaintiffs' variable annuity accounts.
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32. Sometime around the beginning of 2004, the Securities and Exchange Commission
("SEC") began investigating investment and insurance companies that allowed "market timing"
through variable annuity accounts. As a consequence of the SEC's investigation, many issuers
of variable annuities decided to no longer permit the "market timing" in which Greenberg had
been engaged.
33. Rather than being content with keeping Plaintiffs' annuity money in their existing
traditional annuities that were invested primarily in mutual funds that held publicly traded, large
cap securities, Greenberg began exploring alternative investments for Plaintiffs that would retain
the tax-deferred status, but generate additional fees/commissions for Greenberg. In particular,
Greenberg devised a scheme whereby he would create a leveraged hedge fund of leveraged
hedge funds (i.e., the Safety Fund), and then convince Plaintiffs to exchange their traditional
variable annuities for a private placement variable annuity through a different insurance
company that would allow Greenberg to funnel Plaintiffs' retirement funds (less insurance costs,
fees, commissions etc.) into Greenberg's Safety Fund.
34. Upon information and belief, Greenberg performed an extensive search for an
insurance company that would accept "rollover" variable annuity funds coming from
conventional investments; issue the private placement variable annuity that was an intrinsic and
integral part of his scheme; and then turn over 100% of the funds to Greenberg to place in a
leveraged hedge fund investing 100% in other leveraged hedge funds. Initially, Greenberg was
unsuccessful. Upon information and belief, the reason for Greenberg's lack of success was that
the insurance companies were not comfortable with Greenberg's proposed use of the annuity
funds—a leveraged hedge fund of leveraged hedge funds. Consequently, Greenberg hired
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William Dreher of Compensation Strategies to act as a finder, for a fee, of an insurance company
that would issue variable annuities through a private placement tailored specifically for
Greenberg's objectives.
35. Working through Dreher, Greenberg was put in contact with AGL, a company that,
upon information and belief, had previously rejected Greenberg's scheme. After AGL learned
about Greenberg's operations and plans, Greenberg reached an agreement with AGL pursuant to
which AGL agreed to issue the AGL Annuity to be exchanged with Plaintiffs' existing.
traditional variable annuities. The investment component of the AGL Annuity would then be
invested entirely in the "Safety Fund."
36. Greenberg and AGL were aware, or acted recklessly in not knowing, that Plaintiffs
were generally older persons at or near retirement or retired. They further knew that these
persons had expressed a desire for safe investments—i.e., investments that would preserve their
principal for retirement. The application for the AGL Annuity specifically requested information
regarding the age of the proposed purchasers and AGL, therefore, knew Plaintiffs' ages.
37. AGL agreed with Greenberg to create an annuity specifically for Plaintiffs for the
sole purpose of diverting Plaintiffs' pre-existing traditional annuity funds into Greenberg's new
leveraged hedge fund of leveraged hedge funds, which was inherently unsuitable for these
persons.
38. AGL worked with Greenberg and attorney Norse Blazzard to create a PPM for
Greenberg to present to Plaintiffs for their investment in the AGL Annuity as well as a PPM for
Greenberg's Safety Fund, which was attached to the PPM for the AGL Annuity. Blazzard also
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set up the limited partnership agreement for the Safety Fund with AGL as the sole limited partner
and Agile Group as the General Partner.
39. Greenberg and AGL knew that Plaintiffs had, for the most part, been investing with
Greenberg for a long period of time and placed great trust and confidence in Greenberg and
would accept Greenberg's advice to swap their traditional annuities for the AGL Annuity as long
as Greenberg pitched the AGL Annuity as a "safe" investment, consistent with the Plaintiffs'
expressed desire for safe investments.
40. Greenberg and AGL knew that Greenberg's leveraged hedge fund of leveraged
hedge funds was new, untested, and highly risky. Indeed, the Safety Fund PPM authorized
Greenberg to invest Plaintiffs' annuity funds in leveraged hedge funds that, in turn, were free to
invest in virtually any and all risky ventures they chose, including derivatives, options, futures
contracts, commodities, currency contracts, and non-U.S. Securities. Greenberg and AGL knew
that Greenberg could not control, among other things: the investments made by the managers of
those leveraged hedge funds; the leverage they used; and the information supplied by those funds
regarding their investments or investment strategies (if any was supplied at all). Given the use of
leverage, the opacity and unregulated status of hedge funds generally, and the inherent nature of
the investments contemplated by the Safety Fund, AGL and Greenberg knew the AGL
Annuity/Safety Fund was too risky for Plaintiffs and/or knew that it was not possible for AGL or
Greenberg to meaningfully or accurately monitor, assess or control the true risk that Defendants
were taking with the Plaintiffs' funds, let alone limit those risks. In other words, AGL and
Greenberg could not control or determine the safety of the Safety Fund, but that didn't stop them
from pitching it as a "Safety" Fund.
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41. AGL and Greenberg knew, or acted recklessly in not knowing, that the AGL
Annuity, as structured by Greenberg and AGL, was not suitable for any of Plaintiffs in light of
their need and desire for safe investments—i.e., investments that would preserve their principal
for retirement. Greenberg and AGL nevertheless conspired to peddle the AGL Annuity to
Plaintiffs because: (a) Greenberg and PFG would earn fees/commissions on the sale of the AGL
Annuity; (b) AGL would earn life insurance premiums; (c) Greenberg, through the Agile Group,
would earn a percentage of the funds invested as the investment advisor to the Safety Fund; (d)
Agile Group would earn 20% of the profits earned, if any, by the Safety Fund; and (e) on
information and belief, Agile Group would be able to receive finder's fees or other compensation
from some of the leveraged hedge funds into which the Safety Fund was investing the Clients'
money.
42. Despite knowledge that Greenberg's leveraged hedge fund of leveraged hedge
funds was a highly risky investment and/or knowledge that AGL and Greenberg could not
meaningfully or accurately monitor, assess or control the true risk Defendants were taking with
Plaintiffs' funds, AGL's PPM for the AGL Annuity nevertheless acquiesced in the misleading
moniker of a "Safety" fund to be consistent with Greenberg's anticipated "pitch" to Plaintiffs to
get them to swap their traditional annuities for the privately placed AGL Annuity.
43. While the concept of private placement life insurance "wrappers" for hedge fund
investments had been around for a half dozen years or so by 2004, that vehicle was fairly rare
and unconventional and customarily reserved for clients who were investing millions of dollars
each and usually more like $5,000,000, and who had the financial ability to absorb a total loss of
their annuity investments.
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44. AGL and Greenberg knew, or were reckless in not knowing, that Plaintiffs didn't
have that kind of money (which, by itself, made the AGL Annuity unsuitable for them), so to
ensure the maximum capture of the Plaintiffs' money, they agreed that the minimum investment
in the AGL Annuity would only be $500,000 and then at some point they lowered the minimum
investment to $100,000. Upon information and belief, AGL allowed investments even lower
than this alleged minimum.
45. Such relatively small investments would usually be inadequate to support the cost
structure of such a private placement variable annuity, but AGL and Greenberg nevertheless
went ahead because they knew that Plaintiffs, collectively, had approximately $40 to $50 million
invested in their existing variable annuities, and that Greenberg would be able to persuade the
Plaintiffs to migrate en masse into the AGL Annuity, despite the fact that it was an inherently
unsuitable product for them.
46. While the AGL Annuity had an option to invest in a money market mutual fund (a
true safe investment), AGL knew that Plaintiffs were supplied with a preprinted form to sign that
directed 100% of Plaintiffs' funds into the Safety Fund and 0% into the money market fund.
47. Greenberg had historically pitched himself as a conservative investment advisor
who sought reasonable returns through low risk investments, thereby providing a superior risk
adjusted return compared to his competitors. Greenberg always emphasized the "safety" of his
investment choices. Greenberg made his pitch, among other ways, through conservative talk
radio shows, such as Michael Rosen's radio show in Denver. Because of Greenberg's pitch, he
attracted conservative investors who wanted safe investments such as the Plaintiffs.
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48. Greenberg, other investment advisors acting under Greenberg's direction and
control, including Tim Barnett, Mike Brady, and Bettsee Robertson, for themselves and acting as
agents for AGL, uniformly represented to all Plaintiffs through the AGL Annuity and Safety
Fund PPMs that were created and promulgated by AGL and Greenberg to Plaintiffs and through
statements consistent with those PPMs, that the AGL Annuity was a safe investment in order to
persuade the Plaintiffs to exchange their existing annuities for the AGL Annuity. Greenberg, and
those acting under his control, omitted to disclose:
a. That the AGL Annuity/Safety Fund was too risky for Plaintiffs;
b. That Plaintiffs faced a significant risk of losing all of their money;
c. That the AGL Annuity/Safety Fund was unsuitable for Plaintiffs;
d. That given the allowed investment concentration combined with the
allowed leverage, the Plaintiffs could lose all of their money if only one or
two of the leveraged hedge funds suffered a significant loss;
e. That the layers of anticipated leverage significantly magnified the risk
associated with the AGL Annuity/Safety Fund;
f. That hedge funds make limited disclosures and are largely unregulated
and, there, Defendants had limited ability to identify, monitor or control
investments;
g. That Defendants had no meaningful ability to control, monitor or assess
the risks inherent in the AGL Annuity/Safety Fund;
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h. That the AGL Annuity/Safety Fund was a significantly different type of
investment than Plaintiffs' pre-existing, traditional variable annuities and
that the AGL Annuity carried significantly greater risk;
i. That it was rare and unconventional to exchange a traditional variable
annuity for a private placement variable annuity that intended to invest
exclusively in a leveraged hedge fund of leveraged hedge funds;
j. That the many layers of fees/commissions/and costs associated with an
investment in the AGL Annuity would require high risk/high return
investments to compete with the returns that Plaintiffs could earn on more
safe investments; or
k. That it is ordinarily not in an investor's interests to exchange one variable
annuity for another.
49. AGL knew, or acted recklessly in not knowing, that Greenberg did not conduct a
reasonable, or industry standard, investigation into the relative merits of the AGL Annuity
compared to the Plaintiffs' existing annuities, even apart from their vastly different investment
strategies, so Greenberg (and then AGL) did not know whether it was appropriate for the
Plaintiffs to swap their existing annuity for the AGL Annuity.
50. Greenberg failed to advise the Plaintiffs on the relative merits of the AGL Annuity
versus the Plaintiffs' existing annuities so that they could make an informed choice. Rather,
Greenberg offered to pay their surrender charges on the existing annuities in order to eliminate
client resistance to switching annuities.
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51. Other than the application, which put AGL on notice of the age of the Plaintiffs
(and thus the unsuitable nature of this investment for persons at or near retirement), upon
information and belief, AGL did not seek or obtain any other evidence in order to discern or
audit whether, prior to the purchase of the AGL Annuity, anyone had determined the current
income, financial situation and needs, investment experience, investment objectives, investment
time horizon, existing assets, liquidity needs, liquid net worth, risk tolerance, tax status or any
other information Greenberg or AGL would reasonably need in order to make a determination of
the suitability of the AGL Annuity for the Plaintiffs.
52. AGL knew, or acted recklessly in not knowing, that Greenberg did not require
Plaintiffs to complete adequate or sufficient questionnaires or forms to determine the suitability
of the AGL Annuity for the Plaintiffs.
53. AGL knew, or acted recklessly in not knowing, that Greenberg had no system or
process in place to: (a) ensure that he or other registered representatives under Greenberg's
control obtained suitability information from the Plaintiffs in connection with their purchase of
the AGL Annuity; and/or (b) properly advise the Plaintiffs with respect to their investment in the
AGL Annuity.
54. AGL failed to conduct any audits (or ignored the results of such audits) of
Greenberg's suitability procedures (if any).
55. The structure created by Defendants also hid the nature of the investments being
made by the Safety Fund. The Plaintiffs received only a statement regarding the performance of
the AGL Annuity expressed in the form of a percentage return but there was no disclosure
whatsoever into the risky, leveraged hedge funds into which Greenberg had placed their money.
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56. Plaintiff Dorothy Jackson is 77 years old and first started investing with Greenberg
in 1993. Dorothy Jackson had invested in a number of variable annuities through Greenberg
including annuities with Nationwide, American Skandia, and Penn Freedom. On approximately
March 17, 2005, based upon the misrepresentation and omissions alleged in paragraph 48 above
AGL and Greenberg convinced Jackson to exchange some of her existing variable annuity funds
in the approximate amount of $247,284 for the AGL Annuity. Based on those same
misrepresentations and/or omissions, Jackson subsequently made additional investments in the
AGL Annuity/Safety Fund for a total investment of approximately $448,000.
57. Plaintiff Carol Curran is 70 years old and first started investing with Greenberg in
1988. Carol Curran had invested in a number of variable annuities through Greenberg including
annuities with Nationwide, Golden America, and Ameritus. In approximately September 2004,
based upon the misrepresentation and omissions alleged in Paragraph 48 above, AGL and
Greenberg convinced Carol Curran to exchange some of her existing variable annuity funds in
the approximate amount of $251,267 for the AGL Annuity. Based on those same
misrepresentations and/or omissions, Carol Curran also made subsequent investments in the
AGL Annuity in 2005 and 2006 for a total investment of approximately $703,689.
58. Plaintiff Wade Curran is 68 years old and first started investing with Greenberg in
approximately 1987. Wade Curran had invested in a number of variable annuities through
Greenberg including Nationwide and American Skandia. On approximately November 28, 2006,
based upon the misrepresentation and omissions alleged in Paragraph 48 above, AGL and
Greenberg convinced Wade Curran to exchange his existing annuities in the approximate amount
of $359,000 for the AGL Annuity.
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59. Plaintiff Robert Gahan is 58 years old and started investing with Greenberg in May
2002. Gahan had invested in a number of variable annuities including annuities with Provident,
American Skandia, and Nationwide. In September 2004, based upon the misrepresentation and
omissions alleged in Paragraph 48 above, AGL and Greenberg convinced Gahan to exchange
some of his existing variable annuity funds in the approximate amount of $662,345 for the AGL
Annuity. Based on those same misrepresentations and/or omissions, Gahan subsequently made
additional investments in the AGL Annuity/Safety Fund in May 2005 for a total amount invested
of approximately $1,397,874.
60. As a result of the wrongful acts of the Defendants, Plaintiffs have lost all of the
money that was invested in the AGL Annuity.
61. With respect to the creation of the AGL Annuity and the sale of the AGL annuity
to Plaintiffs, each of the Defendants acted as a principal in the wrongful and tortious conduct
associated therewith, as more particularly alleged below. Alternatively, with respect to the sale
of the AGL annuity to Plaintiffs and suitability determinations associated therewith, Greenberg
acted as an agent for AGL. With respect to the actual investment of the investment component
of the AGL Annuity into the Safety Fund, each of the Defendants acted as a principal in the
wrongful and tortious conduct associated therewith, as more particularly alleged below.
Alternatively, with respect to the actual investment of the investment component of the AGL
Annuity into the Safety Fund, Greenberg and Agile Group acted as agents for AGL.
{00256246.DOC}
21
FIRST CLAIM FOR RELIEF
(Colorado Organized Crime Control Act (COCCA):
C.R.S. § 18-17-104(3)—against AGL, PFG, Agile Group and Greenberg)
62. Plaintiffs incorporate herein the allegations in paragraphs 1 through 61 of this Class
Action Complaint.
63. AGL, Greenberg, Agile Group and the Safety Fund constitute an association-in-
fact COCCA "enterprise" within the meaning of C.R.S. § 18-17-103(2) (the "Safety Fund
Enterprise"). Though not required under Colorado law, the Safety Fund Enterprise had an
ongoing formal or informal structure or organization; the associates functioned as a continuing
unit; and it had an existence separate and apart from the pattern of racketeering activity. In
particular, the Safety Fund is a limited partnership in which AGL is the sole limited partner and
the Agile Group is the general partner. Greenberg owns/manages the Agile Group. The
associates functioned as a continuing unit to create and market the AGL Annuity and funnel the
invest components thereof to the Safety Fund and generate opaque statements to the Plaintiffs
regarding their investments. Finally, the Safety Fund Enterprise exists apart from the pattern of
racketeering activity because it has an existence beyond which is necessary to commit the
racketeering activity. Each of the associates is involved in an investment business and
investment activities separate and apart from their racketeering activity.
64. AGL, PFG, Agile Group and Greenberg are COCCA persons employed by or
associated with the Safety Fund Enterprise within the meaning of C.R.S. § 18-17-104(3). In
particular and without limitation, AGL is associated with the Safety Fund Enterprise as the
creator of the unsuitable AGL Annuity; the creator and issuer of the deceptive PPM for the AGL
Annuity; and the limited partner of the Safety Fund. PFG is a subsidiary of AGL and the
{00256246.DOC}
22
underwriter/distributor of the AGL Annuity. Greenberg is the person who had the relationship
with the Plaintiffs and is owner/manager of Agile Group which managed and advised the Safety
Fund.
65. Through their actions as set forth above, AGL, PFG, Agile Group and Greenberg
each conducted and/or participated in the Safety Fund Enterprise, directly or indirectly, through a
pattern of racketeering activity within the meaning of C.R.S. § 18-17-103(3).
66. The racketeering activity in which the COCCA persons engaged includes
numerous acts of securities fraud under C.R.S. § 11-51-501(1) (as more particularly alleged
below) and 18 U.S.C. § 78j/17 C.F.R. § 240.10b-5 which were carried out in the conduct of, and
were related to, the affairs of the Safety Fund Enterprise. The racketeering activity also included
mail and wire fraud under 18 U.S.C. § 1341 and § 1343.
67. With respect to mail and wire fraud, as set forth more particularly in paragraphs 33
through 55, Defendants, with the intent to defraud, developed a scheme to defraud Plaintiffs
and/or obtain their money or property by means of materially false or fraudulent pretenses—i.e.,
Defendants schemed to sell unsuitable securities to Plaintiffs (the AGL Annuity) through the
misrepresentation and omissions set forth in paragraph 48. Defendants planned, intended and
did use the mails and wires to facilitate and execute their fraudulent scheme.
68. In particular, at or about the time of each of Plaintiffs' purchases as referenced in
paragraphs 56 through 59 herein, Defendant AGL mailed from Pennsylvania to Greenberg
and/or Plaintiffs various documents relating to Defendants' scheme including, but not limited to,
the application for the AGL Annuity, the PPMs for the AGL Annuity and Safety Fund, and the
Limited Partnership Agreement for the Safety Fund. In addition, Greenberg and AGL mailed to
{00256246.DOC}
23
Plaintiffs their statements on a regular and continuing basis after Plaintiffs invested in the AGL
Annuity/Safety Fund.
69. If a Plaintiff made the decision to invest in the AGL Annuity, then, at or about the
time of the purchases set forth in paragraphs 56 through 59, Greenberg would cause to be wired
across state lines to Greenberg in Colorado or AGL in Pennsylvania, the funds associated with
the liquidation of Plaintiffs' existing annuities. Upon information and belief, none of Plaintiffs'
pre-existing annuities were based in Colorado. Shortly thereafter, Greenberg would either wire
Plaintiffs' funds across state lines from Colorado to AGL in Pennsylvania or, if AGL received
the funds directly, AGL would wire Plaintiffs' funds (less commissions, fees, costs of insurance)
from Pennsylvania to Greenberg in Colorado for investment in the Safety Fund. Greenberg
would then promptly wire Plaintiffs' funds across state lines to the various leveraged hedge funds
into which he invested, most of which were located outside of Colorado.
70. AGL, PFG, Agile Group and Greenberg engaged in a "pattern" of racketeering
activity because their predicate acts of securities fraud, mail fraud and wire fraud were related
and had continuity. Although not necessary under Colorado law, these Defendants' criminal acts
were related because they had the same or similar purposes, results, participants, victims, or
methods of commission and are otherwise interrelated by distinguishing characteristics. In
particular, these Defendants' actions had the common purpose of obtaining fees/commissions
and/or insurance premiums through the scheme of creating the AGL Annuity and convincing
Plaintiffs to exchange their existing, traditional annuities for the AGL Annuity by holding out the
AGL Annuity as a "safe" investment consistent with the Plaintiffs' need and desire for safe
investments.
{00256246.DOC}
24
71. Although not necessary under Colorado law, these Defendants' pattern of
racketeering activity had close-ended continuity because it consisted of a series of related
predicate acts that extended over a substantial period of time. In particular, these Defendants
continued to defraud Plaintiffs, and used the mail and wires to facilitate their fraud, over a period
beginning in early 2004 and continuing through at least 2007, during which time well over a
hundred, if not hundreds, of different purchases of the AGL Annuity were made by the
approximately 80 Plaintiffs, with each purchase based in whole or in part on Defendants'
commission of the predicate acts. Defendants' pattern of racketeering activity ceased no later
than November of 2008.
72. Plaintiffs were directly and proximately injured in their person or property by
reason of each of the predicate acts and Defendants' violation of C.R.S. §18-17-104(3). For
instance, but for Defendants' employment by or participation in, directly or indirectly, the Safety
Fund Enterprise through a pattern of racketeering activity, the AGL Annuity created specifically
for the Plaintiffs would not have existed and Plaintiffs would not have invested in the AGL
Annuity and instead would have invested their retirement funds in a portfolio of investments
appropriate for their age, investment objectives, risk tolerances and retirement goals as would
have been recommended by a properly motivated fiduciary. Because of Defendants' commission
of the predicate acts and violations of C.R.S. § 18-17-104(3), Plaintiffs have lost virtually 100%
of the funds they invested in the AGL Annuity/Safety Fund.
WHEREFORE, Plaintiffs demand judgment in their favor and against AGL, PFG, Agile
Group and Greenberg, jointly and severally, for all their direct, consequential, and special
damages, including without limitation, economic loss and mental pain and suffering, for an
{00256246.DOC}
25
award of damages threefold their actual damages sustained and their reasonable attorneys' fees
pursuant to C.R.S. § 18-17-106(7), for pre-judgment and post-judgment interest as allowed by
law, costs, and for such other and further relief as this Court deems just.
SECOND CLAIM FOR RELIEF

(Alternative Claim—Aiding and Abetting COCCA Violation—PFG and AGL)
Action Complaint.
74. As an alternative to the First Claim for Relief, with respect to PFG and AGL,
Plaintiffs assert that PFG and AGL aided and abetted the primary violations of C.R.S. § 18-17-
104(3) by Greenberg.
75. While being aware of their role in Greenberg's scheme to conduct a COCCA
enterprise through a pattern of racketeering activity (i.e., selling unsuitable securities to the
Plaintiffs and using the mails and wires to facilitate their fraudulent scheme), PFG and AGL
knowingly and substantially assisted Greenberg by creating and mailing the unsuitable security
(the AGL Annuity); developing a misleading PPM for the unsuitable security; entering into
agreements facilitating the sale of the unsuitable security; and collecting and forwarding via wire
to Greenberg/Agile Group the proceeds of the sale of the unsuitable security (less fees,
commissions, insurance costs) for investment in the Safety Fund.
76. Plaintiffs have been directly and proximately damaged as a result of PFG and
AGL's conduct in an amount to be proven at trial.
WHEREFORE, Plaintiffs demand judgment in their favor and against AGL and PFG,
jointly and severally, for all their direct, consequential, and special damages, including without
limitation, economic loss and mental pain and suffering, for an award of threefold their actual
{00256246.DOC}
26
damages sustained and their reasonable attorneys' fees pursuant to C.R.S. § 18-17-106(7), for
pre-judgment and post-judgment interest as allowed by law, costs, and for such other and further
relief as this Court deems just.
THIRD CLAIM FOR RELIEF

(Colorado Organized Crime Control Act (COCCA):
C.R.S. § 18-17-104(4)—against AGL, PFG, Agile Group and Greenberg)
Action Complaint.
78. Defendants AGL, PFG, Agile Group and Greenberg each conspired to violate
and/or endeavored to violate C.R.S. § 18-17-104(3). In particular, they agreed to join the
conspiracy to create and peddle to Greenberg's Clients the AGL Annuity, a security that was
unsuitable for the Plaintiffs, through a pattern of racketeering activity—i.e., securities fraud, mail
fraud and wire fraud. These Defendants either agreed to commit predicate acts, or to provide
support to those committing predicate acts, with the knowledge that those acts were a part of a
pattern of racketeering activity. These Defendants agreed and intended to, and/or attempted to,
further an endeavor which, if completed, would constitute a violation of C.R.S. § 18-17-104(3)
because it involved participation in a COCCA enterprise through a pattern of racketeering
activity.
damages, including without limitation, economic loss and mental pain and suffering, for an
award of damages threefold their actual damages sustained and their reasonable attorneys' fees
{00256246.DOC}
27
pursuant to C.R.S. § 18-17-106(7), for pre-judgment and post-judgment interest as allowed by
law, costs, and for such other and further relief as this Court deems just.
FOURTH CLAIM FOR RELIEF

(Violation of Colorado Securities Act, C.R.S. §§ 11-51-501(1)(b) and 11-51-604(4)—
against AGL, PFG and Greenberg)
Action Complaint.
80. In connection with the offer, sale, and/or purchase of a security—the AGL
Annuity—AGL and Greenberg made untrue statements of material facts and/or omitted to state
material facts necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading, as more particularly alleged in Paragraph 48
above.
81. AGL and Greenberg knew, or in the exercise of reasonable care should have
known, of the untruths and/or omissions.
82. Plaintiffs relied upon AGL's and Greenberg's untrue statements and/or omissions in
purchasing the AGL Annuity.
83. Plaintiffs sustained damages as a proximate result.
WHEREFORE, Plaintiffs demand judgment in their favor and against AGL, PFG and
Greenberg, jointly and severally, for all their direct, consequential, and special damages,
including without limitation, economic loss and mental pain and suffering, for pre-judgment and
post-judgment interest as allowed by law, costs, reasonable attorney fees pursuant to C.R.S.
§ 11-51-604(4), and for such other and further relief as this Court deems just.
{00256246.DOC}
28
FIFTH CLAIM FOR RELIEF
(Violation of Colorado Securities Act, C.R.S. § 11-51-604(5)(c)—Aiding and Abetting—
against AGL and PFG)
Action Complaint.
85. As more particularly alleged in the Seventh Claim for Relief, Greenberg committed
securities fraud against the Plaintiffs.
86. As an alternative claim, AGL and PFG aided and abetted Greenberg's fraud against
the Plaintiffs because AGL and PFG knew Greenberg was engaged in conduct constituting
securities fraud and provided substantial assistance to that fraud, specifically, and as more
particularly alleged above, by designing, creating, and selling the AGL Annuity; creating and
issuing a misleading PPM; failing to take actions to ensure the suitability of the AGL Annuity;
and funneling the proceeds of the sale of the AGL Annuity into Greenberg's Safety Fund.
87. Plaintiffs suffered damages as a proximate result of AGL's and PFG's unlawful
conduct.
limitation, economic loss and mental pain and suffering, for pre-judgment and post-judgment
interest as allowed by law, costs, reasonable attorney fees pursuant to C.R.S. § 11-51-604(3), and
for such other and further relief as this Court deems just.
{00256246.DOC}
29
SIXTH CLAIM FOR RELIEF
(Violation of Colorado Securities Act, C.R.S. §§ 11-51-501(1)(a) and (c), and 11-51-604(3)—
against AGL, PFG and Greenberg)
Action Complaint.
89. In connection with the offer, sale, and/or purchase of the AGL Annuity, AGL, PFG
and Greenberg:
a. Employed a device, scheme, or artifice to defraud; and/or
b. Engaged in an act, practice, or course of business that operated as a fraud
or deceit upon the Plaintiffs.
90. AGL, PFG and Greenberg did so recklessly, knowingly, or with the intent to
defraud Plaintiffs.
91. Plaintiffs relied upon these Defendants' fraudulent and deceitful device, scheme,
artifice, act, practice, and/or course of business in purchasing the AGL Annuity.
92. Plaintiffs sustained damages as a direct and proximate result.
post-judgment interest as allowed by law, costs, reasonable attorney fees pursuant to C.R.S. §
11-51-604(3), and for such other and further relief as this Court deems just.
{00256246.DOC}
30
SEVENTH CLAIM FOR RELIEF
(Violation of Colorado Securities Act, C.R.S. § 11-51-604(5)(c)—Aiding and Abetting—
against AGL and PFG)
Action Complaint.
94. As more particularly alleged in the Sixth Claim for Relief, Greenberg committed
securities fraud against the Plaintiffs.
95. AGL and PFG aided and abetted Greenberg's fraud against the Plaintiffs because
AGL and PFG knew Greenberg was engaged in conduct constituting securities fraud, and
provided substantial assistance to that fraud, specifically, and as more particularly alleged above,
by designing, creating, and selling the AGL Annuity; creating and issuing a misleading PPM;
failing to take actions to ensure the suitability of the AGL Annuity; and funneling the proceeds
of the sale of the AGL Annuity into Greenberg's Safety Fund.
conduct.
EIGHTH CLAIM FOR RELIEF

(Violation of Colorado Securities Act—Vicarious Liability—against AGL and PFG)
Action Complaint.
{00256246.DOC}
31
98. As more particularly alleged in the Fourth and Sixth Claims for Relief, Greenberg
violated the Colorado Securities Act.
99. As an alternative claim, AGL and PFG are vicariously liable for Greenberg's
violations because Greenberg was acting as AGL's and PFG's agent in soliciting the Plaintiffs to
purchase the AGL Annuity and Greenberg's actions referenced herein were within the scope and
course of his agency for AGL.
100. AGL and PFG are jointly and severally liable for the damages suffered by
Plaintiffs as a proximate result of Greenberg's violations of the Colorado Securities Act.
NINTH CLAIM FOR RELIEF

(Controlling Person Liability—C.R.S. § 11-51-604(5)(b)
Against John Hillman)
101. Plaintiffs incorporate herein the allegations in paragraphs 1 through 100 of this
Class Action Complaint.
102. As a Director, President and Chief Executive Offer of AGL, Hillman had the
ability to control, directly or indirectly, the actions of AGL complained about herein.
103. Hillman signed the Plaintiffs' policies for the AGL Annuity.
WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant
Hillman, jointly and severally with AGL with respect to Plaintiffs' claims against AGL under
{00256246.DOC}
32
C.R.S. § 11-51-501(1) and (1)(b) and C.R.S. § 11-51-604(3) and (4); for all their direct,
consequential and special damages, including, without limitation, economic loss and mental pain
and suffering, for pre-judgment and post-judgment interest as allowed by law, costs and for such
other and further relief as this Court deems just.
TENTH CLAIM FOR RELIEF

(Breach of Fiduciary Duty—against Greenberg)
105. Based on their longstanding relationship with Greenberg and based on his role as
Plaintiffs' investment advisor, Plaintiffs reposed trust and confidence in Greenberg. They relied
upon Greenberg to provide investment advice and to protect their retirement monies.
106. Greenberg breached his duties to Plaintiffs in at least the following respects: (a) by
selling the AGL Annuity to Plaintiffs without performing an appropriate suitability analysis; (b)
by recommending, offering, and selling the AGL Annuity to Plaintiffs; and (c) by making
material untrue statements and omitting to disclose the material facts set forth in paragraph 48
herein.
107. Plaintiffs incurred damages as a proximate result.
WHEREFORE, Plaintiffs demand judgment in their favor and against Greenberg for all
their direct, consequential, and special damages, including without limitation, economic loss and
mental pain and suffering, for pre-judgment and post-judgment interest as allowed by law, costs,
and for such other and further relief as this Court deems just.
{00256246.DOC}
33
ELEVENTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty—Aiding and Abetting—against AGL and PFG)
109. As more particularly alleged in the Tenth Claim for Relief, Greenberg breached his
fiduciary duties to Plaintiffs.
110. AGL and PFG aided and abetted Greenberg's breach of fiduciary duties to
Plaintiffs because AGL and PFG were aware that Greenberg was engaged in conduct in breach
of his fiduciary duties to Plaintiffs, and provided substantial assistance to that breach by, as more
particularly alleged above: designing, creating, and selling the AGL Annuity, creating and
issuing a misleading PPM; failing to take actions to ensure the suitability of the AGL Annuity;
and funneling the proceeds of the sale of the AGL Annuity into Greenberg's Safety Fund.
conduct.
interest as allowed by law, costs, and for such other and further relief as this Court deems just.
TWELFTH CLAIM FOR RELIEF

(Breach of Fiduciary Duty—Vicarious Liability—against AGL and PFG)
{00256246.DOC}
34
113. As more particularly alleged in the Tenth Claim for Relief, Greenberg breached his
fiduciary duties to Plaintiffs.
114. AGL and PFG are vicariously liable for Greenberg's violations because Greenberg
was acting as AGL's and PFG's agent in soliciting the Plaintiffs to purchase and in selling the
AGL Annuity and Greenberg's actions referenced herein were within the scope and course of
their agency for AGL and PFG.
115. AGL and PFG are jointly and severally liable for the damages suffered by
Plaintiffs as a proximate result of Greenberg's breaches of fiduciary duty.
THIRTEENTH CLAIM FOR RELIEF

(Negligence—against AGL, PFG and Greenberg)
117. AGL, PFG and Greenberg owed a duty to use reasonable care in the creation of,
and the selling of the AGL Annuity, including the non-delegable duty to the Plaintiffs to ensure
that the AGL Annuity was a suitable investment for the Plaintiffs.
118. These Defendants breached their duties to Plaintiffs by, including without
limitation:
a. Creating a security that was inherently unsuitable for Plaintiffs—the AGL
Annuity;
{00256246.DOC}
35
b. Making a misrepresentation of material fact and failing to disclose
material facts in connection with the solicitation to sell the AGL Annuity
as set forth in paragraph 48;
c. Failing to perform the required suitability analysis;
d. Recommending, offering, and selling the AGL Annuity to Plaintiffs
without performing the required suitability analysis; and/or
e. Recommending, offering, and selling an unsuitable security to the
Plaintiffs.
119. Plaintiffs incurred damages as a proximate result.
WHEREFORE, Plaintiffs demand judgment in their favor and against Defendants, jointly
and severally, for all their direct, consequential, and special damages, including without
FOURTEENTH CLAIM FOR RELIEF

(Civil Conspiracy—against AGL, PFG, Agile Group and Greenberg)
121. As more particularly alleged above, AGL, PFG, Agile Group and Greenberg
agreed, by words or conduct, to accomplish an unlawful goal. The goal was the exchange by
Plaintiffs of their existing traditional annuities for the AGL Annuity which was not suitable for
any of the Plaintiffs.
122. As more particularly alleged above, each of these Defendants performed one or
more unlawful acts to accomplish the unlawful goal.
{00256246.DOC}
36
123. Plaintiffs suffered damages as a proximate result of the actions of these
Defendants.
damages, including without limitation, economic loss and mental pain and suffering, for pre-
judgment and post-judgment interest as allowed by law, costs, and for such other and further
relief as this Court deems just.
FIFTEENTH CLAIM FOR RELIEF

(Fraudulent Misrepresentation—against AGL, PFG and Greenberg)
125. As more particularly alleged above, including in Paragraph 48, the AGL and
Greenberg made a false representation of past or present fact to the Plaintiffs.
126. The fact was material.
127. At the time the representation was made, these Defendants (a) knew the
representation was false or (b) was aware that he or it did not know whether the representation
was true or false.
128. These Defendants made the representation with the intent that the Plaintiffs would
rely upon the representation.
129. The Plaintiffs relied upon the representation.
130. The Plaintiffs' reliance was justified.
131. This reliance caused damages to the Plaintiffs.
{00256246.DOC}
37
post-judgment interest as allowed by law, costs, and for such other and further relief as this Court
deems just.
SIXTEENTH CLAIM FOR RELIEF

(Fraudulent Omission—against AGL, PFG and Greenberg)
133. As more particularly alleged above, including in Paragraph 48, each of AGL, PFG
and Greenberg failed to disclose a past or present facts he or it had a duty to disclose.
134. The facts were material.
135. These Defendants failed to disclose material facts with the intent of creating a false
impression of the actual facts in the mind of the Plaintiffs.
136. These Defendants failed to disclose the facts with the intent that the Plaintiffs take
a course of action they might not take if they knew the actual facts.
137. The Plaintiff took such action or decided not to act relying on the assumption that
the undisclosed fact did not exist or was different from what it actually was.
138. The Plaintiffs' reliance was justified.
139. This reliance caused damages to the Plaintiffs.
{00256246.DOC}
38
post-judgment interest as allowed by law, costs, and for such other and further relief as this Court
deems just.
JURY DEMAND
Plaintiffs hereby request a jury trial for all issues triable by a jury.
Dated: September 9, 2009.
JACOBS CHASE FRICK KLEINKOPF & KELLEY, LLC
This document has been filed via Lexis/Nexis File & Serve in
accordance with C.R.C.P. 121 and the original document and
signature are maintained on file.
s/ Lawrence M. Zavadil
Jeffrey A. Chase, #5203
Michael H. Berger, #6619
Lawrence M. Zavadil, #19419
Andrew W. Myers, #34104
SHOEMAKER GHISELLI & SCHWARTZ, LLC
James Ghiselli, #15993
Andrew Shoemaker, #26710
Paul Schwartz, #29729
Cynthia Mitchell, #29714
ATTORNEYS FOR PLAINTIFFS AND THE CLASS
Plaintiffs' Addresses:
Wade and Carol Curran

5477 Gunbarrel Road
Longmont, CO 80503
Dorothy Jackson
5265 Centennial Trail
Boulder, CO 80303
Robert Gahan
P.O. Box 675
Grand Lake, CO 80447
{00256246.DOC}
39

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DISTRICT COURT, BOULDER COUNTY, COLORADO

Court Address: Boulder Justice Center

James Ghiselli, #15993 jghiselli@sgslitigation.com

CLASS ACTION COMPLAINT AND JURY DEMAND

NATURE OF THE ACTION

Plaintiffs' current or impending retirement. Instead, the Defendants conspired to create an

monies to be invested in that unsuitable investment vehicle.

approximately 85% of the Safety Fund's investments.

inherently unsuitable for Plaintiffs.

6. This is a class action brought pursuant to C.R.C.P. 23(a) and (b)(3).

of this Class Action Complaint.

were committed in Boulder County.

provided by Section 3(c)(1) of the 1940 Act."

10. Plaintiff Carol B. Curran is a citizen of the State of Colorado.

11. Plaintiff Wade Curran is a citizen of the State of Colorado.

12. Plaintiff Dorothy J. Jackson is a citizen of the State of Colorado.

13. Plaintiff Robert Gahan is a citizen of the State of Colorado.

principal place of business in Pennsylvania.

("PFG") is a Pennsylvania corporation with its principal place of business in Pennsylvania.

Agile Group's members is a resident of Colorado.

18. Defendant John K. Hillman ("Hillman") is an individual who, upon information

President and Chief Executive Officer of AGL.

CLASS ACTION ALLEGATIONS

20. The proposed Class (the "Class") is defined as follows:

with the Defendants.

affect the rights of each member of the Class including:

was too risky for Plaintiffs;

of losing all of their money;

c. Did the Defendants, through their uniform writings supplied to all

Plaintiffs, misrepresent that the AGL Annuity/Safety Fund was a safe

an unsuitable security for Plaintiffs;

concentration combined with the allowed leverage, the Plaintiffs could

suffered a significant loss;

significantly magnified the risk associated with the AGL Annuity;

disclosures and are largely unregulated and, therefore, Defendants had

limited ability to identify, monitor or control investments;

h. Did the Defendants omit to disclose that Defendants had no meaningful

ability to control, monitor or assess the risks inherent in the AGL

significantly different type of investment than their pre-existing traditional

unconventional to exchange a traditional variable annuity for a private

placement insurance product that intended to invest exclusively in a

leveraged hedge fund of leveraged hedge funds;

k. Did Defendants omit to disclose that the many layers of fees/commissions

and costs associated with an investment in the AGL Annuity would

require high risk/high return investments to compete with the returns

Plaintiffs could earn on more safe investments;

l. Did the Defendants omit to disclose that it is ordinarily not in an investor's

interests to exchange one variable annuity for another;

Annuity/Safety Fund for the Plaintiffs;

n. What were Greenberg's duties to ensure the suitability of the AGL

Annuity/Safety Fund for the Plaintiffs;

the AGL Annuity/Safety Fund for the Plaintiffs;

p. Did AGL and/or Greenberg's omissions and breaches of duty regarding

suitability cause damage to Plaintiffs;

q. Do AGL, Greenberg, Agile Group and the Safety Fund constitute an

association-in-fact COCCA "enterprise" within the meaning of C.R.S. §

participate in a COCCA enterprise, directly or indirectly, through a pattern

of racketeering activity within the meaning of C.R.S. § 18-17-103(3);

s. Did AGL, PFG, Agile Group and Greenberg engage in a "pattern" of