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FILED: NEW YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021
NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023
EXHIBIT A
FILED: NEW YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021
NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023
EXHIBIT A
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07-22-2022
George L. Christenson
Clerk of Circuit Court
2022CV000846
STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY
Honorable Michael
Aprahamian
CHARLES SHERCK,
6326 Barrel Race Drive
Colorado Springs, CO 80923
Plaintiff, Case No. 22-CV-846
v. Case type: 35004 Sale of Securities
U.S. BANCORP FUND SERVICES, LLC, JURY TRIAL DEMANDED
615 East Michigan Street
Milwaukee, WI 53202
Defendant.
AMENDED CLASS ACTION COMPLAINT FOR
VIOLATION OF FEDERAL SECURITIES LAWS
Plaintiff Charles Sherck (“Plaintiff”) alleges the following upon knowledge as to himself
and his own actions, and upon information and belief as to all other matters, based upon an
investigation conducted by counsel, which included, among other things, review of public filings
with the United States Securities and Exchange Commission (“SEC”), the SEC’s investigation
relating to this matter and subsequent enforcement action, and review of news reports, press
releases and other publicly available documents.
INTRODUCTION
1. The Infinity Q Diversified Alpha Fund (the “Fund”) was a mutual fund offered to
the public by U.S. Bancorp Fund Services, LLC (“U.S. Bank”) through the Trust for Advised
Portfolios (“TAP Trust”), a trust consisting of multiple mutual funds (the “TAP Funds”), all of
which are operated by U.S. Bank.
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2. While the Fund’s portfolio of securities was selected by an outside portfolio
manager, Infinity Q Capital Management, LLC (“Infinity Q”), U.S. Bank controlled and was
responsible for all of the Fund’s other operations, including valuing its securities, preparing its
financial reports and filings with the SEC, and reporting the Fund’s NAV to investors on a daily
basis.
3. Under contracts with the TAP Trust, U.S. Bank provided its own employees to
perform the Fund’s day-to-day operations and its own senior personnel to serve as the Fund’s
officers. U.S. Bank also assembled the group of trustees to serve as the Fund’s Board, which
likewise serve on the boards of the other TAP Funds. The Fund had no personnel of its own other
than those employed by U.S. Bank.
4. This action asserts federal securities law claims against U.S. Bank for causing the
Fund to materially misstate in SEC filings and other public disclosures the value of its portfolio
and the process pursuant to which U.S. Bank was purportedly calculating those values.
5. From at least February 2017 through February 2021—i.e., for every trading day for
four years or more—U.S. Bank caused the Fund to overstate the value of its portfolio by hundreds
of millions of dollars using valuations that were based on manipulated financial data from Infinity
Q and its Chief Investment Officer, James Velissaris (“Velissaris”). U.S. Bank was responsible for
implementing and overseeing the Fund’s securities valuation process and represented to investors
that it had procedures in place to protect against manipulation of valuation inputs by Infinity Q.
6. Because roughly two thirds of the Fund’s portfolio consisted solely of cash (and
did not need to be valued), U.S. Bank’s valuation obligations were limited to the other third of the
portfolio, which consisted of derivative securities. U.S. Bank botched those valuations so badly
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that the Fund’s portfolio of swap instruments reported to be worth more than half a billion dollars
was revealed by the SEC to be virtually worthless, forcing the Fund to liquidate immediately.
7. Not only were the Fund’s securities enormously mispriced, but U.S. Bank
misrepresented for years the process that it was supposedly conducting to verify the values of the
Fund’s securities, which was led by a Valuation Committee comprised solely of U.S. Bank
employees.
8. The requirements of this valuation process were all but abandoned by U.S. Bank
personnel, despite regular representations to the contrary in the Fund’s SEC filings, leaving Infinity
Q unsupervised to select and manipulate the prices for the Fund’s derivative holdings.
9. While U.S. Bank repeatedly informed investors that it was verifying every
valuation provided by Infinity Q, spot-checking even a few valuations of the Fund’s holdings
would have revealed that they had been extensively manipulated by Infinity Q. However, U.S.
Bank was not independently verifying the valuations and instead was merely downloading prices
that had been created by Infinity Q, which itthen integrated directly into the Fund’s published
NAVs.
10. By 2020, the differences between the Fund’s prices and those reported for the same
securities by the Fund’s counterparties (and even Infinity Q itself with respect to other accounts)
began to diverge by millions of dollars, but U.S. Bank still never cross-checked the prices.
11. Infinity Q even began to report prices that were mathematically incapable of being
accurate, and routinely permitted securities to expire as worthless despite having reported
significant value for those securities only days earlier, but none of these abnormalities were
reviewed or identified by U.S. Bank.
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12. The irregularities in the Fund’s valuations, however, did draw the SEC’s attention,
and in May 2020 the SEC’s Division of Enforcement launched an inquiry into the Fund’s securities
valuation practices.
13. By November 2020, the SEC’s investigation had expanded to include U.S. Bank.
In December 2020 the Fund suspiciously announced that it would no longer accept new
investments but continued to conceal the Fund’s ongoing valuation problems.
14. In February 2021, the SEC required the Fund to enter liquidation proceedings
immediately given the extent of its valuation errors. With no prior notice to investors, on February
22, 2021, the Fund announced that it was unable to accurately calculate its NAV and would be
suspending redemptions and liquidating.
15. According to the SEC’s calculations, U.S. Bank had overstated the Fund’s NAV by
tens of millions of dollars since at least 2017 and by over $400 million since at least 2020. Upon
liquidation, the Fund’s assets were approximately $500 million less than the NAV last calculated
by U.S. Bank.
16. While the valuation errors caused investors to overpay for their shares and
ultimately caused hundreds of millions in losses, it was highly profitable to U.S. Bank: the
overstatement resulted in significantly inflated asset-based fees to U.S. Bank throughout the four-
year period.
17. This class action seeks damages caused by U.S. Bank to investors pursuant to the
Securities Act of 1933 (the “Securities Act”). The proposed class (the “Class”) consists of all
persons, excluding Defendant and its officers, directors, and affiliates, who purchased or otherwise
acquired Fund shares at inflated prices from January 1, 2017 through December 30, 2020 (the
“Class Period”), and were damaged thereby.
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PARTIES, JURISDICTION, AND VENUE
18. The TAP Trust is a Delaware statutory trust registered with the SEC as an
investment company. The Fund is a series of the TAP Trust and operates as an open-end
investment company, more commonly known as a mutual fund. The Fund’s stated investment
objective was to “generate positive absolute returns” that were “intended to have a low correlation
to equity, fixed income and credit markets”—i.e., a portfolio that would generate positive returns
and would not move in sync with the market.
19. Plaintiff is a resident of Colorado Springs, Colorado and a 23-year veteran of the
U.S. Air Force, where he held multiple positions within the Strategic Air Command, Space
Command, Headquarters Air Force and Joint Chiefs of Staff relating to flight, missile and space
operations. Plaintiff purchased shares of the Fund directly from the Fund pursuant to the
Registration Statements and other Offering Materials (defined below) and has suffered damages
as a result of the federal securities law violations alleged herein.
20. Defendant U.S. Bank is a Wisconsin limited liability company with itsprincipal
offices located at 615 East Michigan Street, Milwaukee, Wisconsin 53202. As set forth in detail
below, U.S. Bank created the TAP Trust and the Fund and was responsible for virtually all non-
advisory operations.
21. This Court has personal jurisdiction over U.S. Bank because it is a domestic limited
liability company with principal offices located in Wisconsin.
22. Venue is appropriate in Milwaukee County pursuant to Wis. Stat. 801.50(2)(a)
because Defendant resides in Milwaukee County.
23. The claims asserted herein arise under and pursuant to §§ 11, 12(a) and 15 of the
Securities Act.
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24. This Court has jurisdiction pursuant to Article 7, Section 8 of the Wisconsin
Constitution and Section 22 of the Securities Act, 15 U.S.C. § 77v (providing concurrent
jurisdiction to state and federal courts).
25. This action is not removable to federal court pursuant to § 22 of the Securities
Act,15 U.S.C. $ 77v, which states that “no case arising under this title and brought in any State
court of competent jurisdiction shall be removed to any court in the United States.”
26. This action is not subject to a stay in favor of any other action because no action
asserting claims against U.S. Bank preceded this one or otherwise creates a risk of inconsistent or
duplicative adjudication of the claims and allegations because this case is the most procedurally
advanced.
SUBSTANTIVE ALLEGATIONS
A. U.S. Bank Controls The TAP Funds’ Operations
27. U.S. Bank operates the TAP Trust as a “turn key” mutual fund service for smaller
investment advisers that do not have the interest or ability to manage the governance,
administrative, accounting, transfer agency, custody, legal and other services required to operate
a mutual fund under U.S. regulations. Each of the TAP Funds, including the Fund, receives
investment advice from a third-party investment manager, but U.S. Bank handles everything else.
28. As it does for the other TAP Funds, U.S. Bank served as the Fund’s administrator,
fund accountant, transfer agent, and custodian pursuant to contracts with the TAP Trust.
29. U.S. Bank also provided its own employees to serve in officer and trustee positions
for the Fund (and the other TAP Funds), including:
• Christopher E. Kashmerick, President, Principal Executive Officer and Chairman of
the Board;
• Russell B. Simon, Treasurer and Principal Financial Officer;
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• Steven J. Jensen, Vice President, Chief Compliance Officer, and AML (Anti-Money
Laundering) Officer; and
• Scott A. Resnick, Secretary.
30. These U.S. Bank employees served in their role as Fund officers as part of the
regular duties of employment at U.S. Bank. They were not separately compensated by the Fund
for their service as Fund officers, but rather U.S. Bank was compensated for their service under its
agreements with the TAP Trust, as discussed in further detail below. These employees served as
officers for all of the TAP Funds within the TAP Trust and had no special association with any
particular Fund other than in their capacity as an employee of U.S. Bank performing U.S. Bank’s
contractual obligations to the TAP Trust.
31. As a result of this arrangement, U.S. Bank was both contractually and practically
responsible for virtually all of the Fund’s day-to-day operations, including drafting, preparing and
filing the Fund’s SEC filings, valuing the Fund’s assets, and calculating and publishing its NAV.
The Fund had no other personnel or employees available to perform these tasks and thus they were
necessarily performed by U.S. Bank’s personnel.
32. As set forth below, U.S. Bank expressly agreed, through multiple contracts with the
Fund, to be responsible for and execute these services on the Fund’s behalf.
33. Fund Administration. U.S. Bank served as the Fund’s administrator since the
Fund’s inception pursuant to a Fund Administration Servicing Agreement dated January 1, 2014
(the “Admin Agreement”).
34. Under the Admin Agreement, U.S. Bank agreed to provide, through its own
employees, a broad range of non-advisory services necessary to operate the Fund (what it described
as “general fund management”), including among many other things:
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• Provide “[o]ffice facilities (which may be in USBFS’ or an affiliate’s, own offices)”
and “[c]orporate secretarial services”;
• “Provide personnel to serve as officers of the Trust”;
• “Prepare [Board] meeting agendas and resolutions,” “minutes of meetings,” and
“reports for the Board of Trustees based on financial and administrative data”;
• “Prepare and file [with the SEC] annual and semiannual shareholder reports, Form N-
SAR, Form N-CSR, and Form N-Q filings and Rule 24f-2 notices. As requested by the
Trust, prepare and file Form N-PX filings”;
• “Coordinate the printing, filing and mailing of Prospectuses, SAI’s and shareholder
reports, and amendments and supplements thereto”;
• “Assist Fund counsel in annual update of the Prospectus and SAI and in preparation of
proxy statements as needed”;
• “Monitor fidelity bond and director and officer liability coverage, and make the
necessary Securities and Exchange Commission (the “SEC”) filings”;
• “Provide financial data required by the Prospectus and SAI” and “[p]repare financial
reports for officers, shareholders, tax authorities, performance reporting companies, the
Board of Trustees, the SEC, and independent accountants”;
• “Supervise the Fund’s custodian and fund accountants in the maintenance of the Fund’s
general ledger and in the preparation of the Fund’s financial statements, including
oversight of expense accruals and payments [and] the determination of net asset value”;
• “Prepare quarterly financial statements”;
• “Pay Fund expenses upon written authorization from the Trust”;
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• “Prepare appropriate schedules and assist independent auditors” and “[p]rovide
information to the SEC and facilitate audit process”;
• “Keep the Trust’s governing documents, including its charter, bylaws and minute
books”;
• “Monitor compliance with the 1940 Act requirements,” “the policies and investment
limitations as set forth in its prospectus (the “Prospectus”) and statement of additional
information (the “SAI”),” and “status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986”; and
• “Prepare and file with the appropriate state securities authorities any and all required
compliance filings relating to the qualification of the securities of the Fund so as to
enable the Fund to make a continuous offering of its shares in all states.”
35. U.S. Bank expressly agreed in the Admin Agreement to be liable for its own
negligence and misconduct.
36. U.S. Bank’s compensation for providing services under the Admin Agreement was
“bundled” with its fee for fund accounting services described below, which included an asset-
based fee as well as additional fixed fees and reimbursements.
37. Fund Accounting. U.S. Bank served as fund accountant for the Fund since the
Fund’s inception pursuant to a Fund Accounting Servicing Agreement dated January 1, 2014
(“Accounting Agreement”).
38. Under the Accounting Agreement, U.S. Bank assumed responsibility to, among
other things:
• “Determine the net asset value of the Fund according to the accounting policies and
procedures set forth in the Fund's current prospectus”;
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• “[O]btain prices from a pricing source approved by the [Board] and apply those prices
to the portfolio positions,” including fair valuation for “securities where market
quotations are not readily available”;
• “Calculate per share net asset value, per share net earnings, and other per share amounts
reflective of Fund operations”;
• “Transmit a copy of the portfolio valuation to the Fund’s investment adviser daily”;
• Report the Fund’s “net asset value for each valuation date”; and
• “Prepare monthly reports that document the adequacy of accounting detail to support
month-end ledger balances.”
39. U.S. Bank expressly agreed in the Accounting Agreement to be liable for its own
negligence and misconduct.
40. U.S. Bank was compensated by the Fund under the Accounting Agreement by an
asset-based fee based on the Fund’s current average daily net assets plus additional fees for
providing securities pricing services and reimbursements for out-of-pocket expenses.
41. Chief Compliance Officer. U.S. Bank also agreed to provide an employee to serve
as the Fund’s Chief Compliance Officer (“CCO”), who was responsible for designing,
implementing and overseeing the Fund’s compliance program under SEC Rule 38a-1.
42. SEC Rule 38a-1 requires the Fund to “[a]dopt and implement written policies and
procedures reasonably designed to prevent violation of the Federal Securities Laws by the fund,
including policies and procedures that provide for the oversight of compliance by each investment
adviser, principal underwriter, administrator, and transfer agent of the fund.”
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43. The Fund’s compliance program was intended to cover securities pricing, including
fair valuation, and the Fund’s CCO was responsible for “[d]aily monitoring of securities
positions.”
44. Other Non-Advisory Functions. In addition to serving as the Fund’s
administrator, fund accountant, and CCO, U.S. Bank also served as the Fund’s transfer agent
pursuant to a Transfer Agent Servicing Agreement (“TA Agreement”) and the Fund’s custodian
pursuant to a Custody Agreement, each dated January 1, 2014.
45. As the Fund’s transfer agent, U.S. Bank was responsible for, among other things,
processing “all orders for the purchase, exchange, transfer and/or redemption of [Fund] shares” at
the Fund’s reported NAV.
46. As the Fund’s custodian, U.S. Bank was responsible for, among other things,
supplying “necessary information to . . . compute the value of the assets of the Fund,” reconciling
pricing discrepancies between the Fund’s valuations and other reported valuations of the same
securities, and obtaining “favorable opinions” from the Fund’s auditors with respect to the Fund’s
public filings, including its registration statements and financial reports.
47. As above, U.S. Bank expressly agreed to be liable for its own negligence and
misconduct in these agreements as well.
48. U.S. Bank was compensated by the Fund under the TA Agreement and Custody
Agreement by asset-based and transactional fees plus reimbursements for out-of-pocket expenses.
B. U.S. Bank Prepared The Offering Materials On Behalf Of The Fund
49. Because the Fund offered securities to the public, it was subject to a range of
disclosure and regulatory obligations under federal law. The Fund’s securities were registered
under the Securities Act, and until December 20, 2020, it continuously issued and redeemed shares
each trading day.
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50. The Fund conducted its continuous public offerings pursuant to Registration
Statements filed with the SEC annually. Under U.S. Bank’s direction, the Fund filed its initial
Registration Statement on September 26, 2014, and the Registration Statements in effect during
the Class Period were filed on December 31, 2016, December 31, 2017, December 31, 2018 and
December 31, 2019.
51. Each of the Fund’s Registration Statements included a Prospectus and a Summary
Prospectus, which provide investors information about, among other things, the Fund’s investment
strategies, risks, and performance.
52. Each of the Registration Statements also incorporated by reference a Statement of
Additional Information (“SAI”), which provided further information about the Fund and its
operations.
53. U.S. Bank drafted the Fund’s Registration Statement, including each of the
Prospectus, Summary Prospectus, and SAI, and coordinated the process by which the Registration
Statement was approved and filed with the SEC each year.
54. In addition, the Fund filed Annual and Semi-Annual Shareholder Reports with the
SEC every six months, which U.S. Bank drafted.
55. The Shareholder Reports included, among other things, the Fund’s financial
statements, including a listing of all securities held by the Fund and their values as of the end of
the reporting period (for the Annual Reports, as of the end of August; for the Semi-Annual Reports,
as of the end of February), all of which were prepared by U.S. Bank. The financial statements and
accompanying notes in the Fund’s Shareholder Reports were incorporated by reference into the
Registration Statements.
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56. The Fund's Registration Statements, including the incorporated Prospectuses,
Summary Prospectuses, SAIs, and Shareholder Reports, are collectively referred to herein as the
“Offering Materials.”
57. U.S. Bank was directly responsible for drafting, preparing and filing the Fund’s
public filings, including the Offering Materials. In order to do these things (or, in other words, to
cause the Fund to do these things), U.S. Bank utilized its own employees across multiple groups.
As to its own operational responsibilities, including securities valuation (as discussed below), U.S.
Bank’s employees were the only personnel with knowledge with respect to such operations and
therefore necessarily drafted and/or provided the information necessary to make the Fund’s public
disclosures.
58. In addition to drafting and preparing the Fund’s public disclosures, U.S. Bank
employees, Mr. Kashmerick and Mr. Simon—who were officers of the Fund that U.S. Bank
contractually agreed to provide under the Admin Agreement—both signed the Fund’s Registration
Statements and Shareholder Reports during the Class Period.
C. U.S. Bank Calculated And Published The Fund’s NAV
59. The Fund, like all mutual funds, was required to publish the offering price of its
shares based on its per share NAV, which was calculated by U.S. Bank every trading day. The per
share NAV is the value of a pro rata share of the Fund’s investment portfolio on the day of
purchase.
60. As explained in the Fund’s Prospectus:
Shares of the Fund are sold at NAV per share which is calculated as of the
close of regular trading (generally, 4:00 p.m., Eastern Time) on each day
that the New York Stock Exchange (“NYSE”) is open for unrestricted
business . . . The NAV is the value of the Fund’s securities, cash and other
assets, minus all expenses and liabilities (assets – liabilities = NAV). The
NAV per share is determined by dividing NAV by the number of shares
outstanding (NAV/# of shares = NAV per share).
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61. U.S. Bank was contractually responsible for accurately calculating and publishing
the Fund’s NAV. Accurate calculation of NAV was critical to ensure that purchasing shareholders
received the correct value for their investment and that existing shareholders were not diluted.
62. Through the Accounting Agreement, the Fund’s Board delegated day-to-day
responsibilities for valuation to U.S. Bank and a “Valuation Committee” consisting entirely of
U.S. Bank employees.
63. Mr. Kashmerick and Mr. Simon were members of the Fund’s Valuation Committee,
as was a third member, identified publicly as the Fund’s Assistant Treasurer, who on information
and belief also was a U.S. Bank employee.
64. While some securities, like stocks, can be valued based on market prices, the Fund
invested heavily in derivative instruments, including credit derivatives, convertible securities,
futures, forwards, options and swap contracts (the “Derivative Investments”), that did not have
readily obtainable market prices that could be used for purposes of the daily NAV calculation.
65. In the absence of readily available market prices, the Fund’s Derivative Investments
could be valued using prices provided by an independent pricing service or they could be “fair
valued,” in which case they would be valued based on a good faith assessment of the amount that
the Fund would receive for the securities upon a current sale.
66. While a mutual fund’s investment adviser may provide input in connection with
fair valuation of securities held by a fund, such involvement gives rise to potential conflicts of
interest because investment advisers may have an incentive to value fund assets improperly to
increase fees, improve or smooth reported returns, or comply with the fund’s investment policies
and restrictions. Thus, it is important that a fund’s valuation process be properly implemented and
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overseen, and that any valuation inputs provided by the fund’s adviser be independently verified
to ensure the information reflects a good faith assessment of the actual value of the securities.
67. The Registration Statement represented to investors that U.S. Bank and its
personnel on the Valuation Committee were responsible for implementing and overseeing the
Fund’s valuation process, including independently verifying any valuations provided by Infinity
Q. These statements indicated to investors that they would be protected by U.S. Bank from any
conflict of interest on the part of Infinity Q with respect to securities valuation.
68. As explained in the Fund’s December 31, 2019 Prospectus, the Valuation
Committee was supposed to review each and every valuation of the Fund’s securities, and the
underlying basis for the valuations, including so-called “Fair Valuation Forms”: 1
The Board has delegated day-to-day valuation matters to a Valuation Committee that is
comprised of the Trust’s President, Treasurer and Assistant Treasurer and is overseen by
the Trustees. The function of the Valuation Committee is to review each Adviser’s
valuation of securities held by any series of the Trust for which current and reliable market
quotations are not readily available. Such securities are valued at their respective fair values
as determined in good faith by each Adviser, and the Valuation Committee gathers and
reviews Fair Valuation Forms that are completed by an Adviser to support its
determinations, and which are subsequently reviewed and ratified by the Board.
69. The December 31, 2019 Prospectus further stated that:
When reliable market quotations are not readily available or the Fund’s pricing service
does not provide a valuation (or provides a valuation that in the judgment of the Adviser
does not represent the security’s fair value) or when, in the judgment of the Adviser, events
have rendered the market value unreliable, a security or other asset is valued at its fair value
as determined under procedures approved by the Board. Valuing securities at fair value is
intended to ensure that the Fund is accurately priced and involves reliance on judgment.
Fair value determinations are made in good faith in accordance with the procedures adopted
by the Board. The Board will regularly evaluate whether the Fund’s fair valuation pricing
procedures continue to be appropriate in light of the specific circumstances of the Fund
and the quality of prices obtained through their application by the Trust’s valuation
committee.
1
While this complaint quotes from the Fund’s December 31, 2019 Registration Statement, the other
Registration Statements effective during the Class Period contain materially identical disclosures.
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70. The December 31, 2019 SAI further explained:
Generally, the Fund’s investments are valued at market value or, in the absence of a market
value, at fair value as determined in good faith by the Fund’s Adviser with oversight by
the Trust’s Valuation Committee pursuant to procedures approved by or under the direction
of the Board.
71. U.S. Bank’s employees, who were responsible for implementing and overseeing
the Fund’s valuation process, necessarily drafted and/or provided the information incorporated
into the Fund’s Offering Materials on those topics, including the foregoing representations with
respect to the Valuation Committee and the process for securities valuation.
72. The foregoing representations were false and misleading because they failed to
disclose that, as described in detail below: (a) the Fund’s Derivative Instruments were not “valued
at their respective fair values as determined in good faith”; (b) day-to-day valuation of the
Derivative Instruments was essentially delegated to Infinity Q, without effective oversight by the
Valuation Committee, despite the potential conflict of interest; (c) in the absence of effective
oversight by the Valuation Committee, Infinity Q manipulated the pricing models and inputs used
to value the Derivative Instruments, resulting unreliable and inflated valuations; (d) the Valuation
Committee did not “gather[] and review[] Fair Valuation Forms . . . to support [Infinity Q’s]
determinations,” nor were Fair Valuation Forms “subsequently reviewed and ratified by the
Board”; and (e) the Valuation Committee did not implement any process to independently verify
the valuation information provided by Infinity Q for the Derivative Instruments.
D. U.S. Bank Misrepresented Its Valuation Oversight
For Years, Permitting Infinity Q To Manipulate Prices At Will
73. Unbeknownst to investors, and contrary to the Fund’s public representations (which
U.S. Bank caused it to make), the Valuation Committee was not following the pricing guidelines
in the Valuation Policies described above or otherwise ve
Preview
FILED: NEW YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 EXHIBIT A FILED: NEW YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 EXHIBIT A FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 1 of 33 NYSCEF DOC. NO. 245 RECEIVEDFILED NYSCEF: 01/10/2023 07-22-2022 George L. Christenson Clerk of Circuit Court 2022CV000846 STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY Honorable Michael Aprahamian CHARLES SHERCK, 6326 Barrel Race Drive Colorado Springs, CO 80923 Plaintiff, Case No. 22-CV-846 v. Case type: 35004 Sale of Securities U.S. BANCORP FUND SERVICES, LLC, JURY TRIAL DEMANDED 615 East Michigan Street Milwaukee, WI 53202 Defendant. AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF FEDERAL SECURITIES LAWS Plaintiff Charles Sherck (“Plaintiff”) alleges the following upon knowledge as to himself and his own actions, and upon information and belief as to all other matters, based upon an investigation conducted by counsel, which included, among other things, review of public filings with the United States Securities and Exchange Commission (“SEC”), the SEC’s investigation relating to this matter and subsequent enforcement action, and review of news reports, press releases and other publicly available documents. INTRODUCTION 1. The Infinity Q Diversified Alpha Fund (the “Fund”) was a mutual fund offered to the public by U.S. Bancorp Fund Services, LLC (“U.S. Bank”) through the Trust for Advised Portfolios (“TAP Trust”), a trust consisting of multiple mutual funds (the “TAP Funds”), all of which are operated by U.S. Bank. FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 2 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 2. While the Fund’s portfolio of securities was selected by an outside portfolio manager, Infinity Q Capital Management, LLC (“Infinity Q”), U.S. Bank controlled and was responsible for all of the Fund’s other operations, including valuing its securities, preparing its financial reports and filings with the SEC, and reporting the Fund’s NAV to investors on a daily basis. 3. Under contracts with the TAP Trust, U.S. Bank provided its own employees to perform the Fund’s day-to-day operations and its own senior personnel to serve as the Fund’s officers. U.S. Bank also assembled the group of trustees to serve as the Fund’s Board, which likewise serve on the boards of the other TAP Funds. The Fund had no personnel of its own other than those employed by U.S. Bank. 4. This action asserts federal securities law claims against U.S. Bank for causing the Fund to materially misstate in SEC filings and other public disclosures the value of its portfolio and the process pursuant to which U.S. Bank was purportedly calculating those values. 5. From at least February 2017 through February 2021—i.e., for every trading day for four years or more—U.S. Bank caused the Fund to overstate the value of its portfolio by hundreds of millions of dollars using valuations that were based on manipulated financial data from Infinity Q and its Chief Investment Officer, James Velissaris (“Velissaris”). U.S. Bank was responsible for implementing and overseeing the Fund’s securities valuation process and represented to investors that it had procedures in place to protect against manipulation of valuation inputs by Infinity Q. 6. Because roughly two thirds of the Fund’s portfolio consisted solely of cash (and did not need to be valued), U.S. Bank’s valuation obligations were limited to the other third of the portfolio, which consisted of derivative securities. U.S. Bank botched those valuations so badly 2 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 3 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 that the Fund’s portfolio of swap instruments reported to be worth more than half a billion dollars was revealed by the SEC to be virtually worthless, forcing the Fund to liquidate immediately. 7. Not only were the Fund’s securities enormously mispriced, but U.S. Bank misrepresented for years the process that it was supposedly conducting to verify the values of the Fund’s securities, which was led by a Valuation Committee comprised solely of U.S. Bank employees. 8. The requirements of this valuation process were all but abandoned by U.S. Bank personnel, despite regular representations to the contrary in the Fund’s SEC filings, leaving Infinity Q unsupervised to select and manipulate the prices for the Fund’s derivative holdings. 9. While U.S. Bank repeatedly informed investors that it was verifying every valuation provided by Infinity Q, spot-checking even a few valuations of the Fund’s holdings would have revealed that they had been extensively manipulated by Infinity Q. However, U.S. Bank was not independently verifying the valuations and instead was merely downloading prices that had been created by Infinity Q, which itthen integrated directly into the Fund’s published NAVs. 10. By 2020, the differences between the Fund’s prices and those reported for the same securities by the Fund’s counterparties (and even Infinity Q itself with respect to other accounts) began to diverge by millions of dollars, but U.S. Bank still never cross-checked the prices. 11. Infinity Q even began to report prices that were mathematically incapable of being accurate, and routinely permitted securities to expire as worthless despite having reported significant value for those securities only days earlier, but none of these abnormalities were reviewed or identified by U.S. Bank. 3 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 4 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 12. The irregularities in the Fund’s valuations, however, did draw the SEC’s attention, and in May 2020 the SEC’s Division of Enforcement launched an inquiry into the Fund’s securities valuation practices. 13. By November 2020, the SEC’s investigation had expanded to include U.S. Bank. In December 2020 the Fund suspiciously announced that it would no longer accept new investments but continued to conceal the Fund’s ongoing valuation problems. 14. In February 2021, the SEC required the Fund to enter liquidation proceedings immediately given the extent of its valuation errors. With no prior notice to investors, on February 22, 2021, the Fund announced that it was unable to accurately calculate its NAV and would be suspending redemptions and liquidating. 15. According to the SEC’s calculations, U.S. Bank had overstated the Fund’s NAV by tens of millions of dollars since at least 2017 and by over $400 million since at least 2020. Upon liquidation, the Fund’s assets were approximately $500 million less than the NAV last calculated by U.S. Bank. 16. While the valuation errors caused investors to overpay for their shares and ultimately caused hundreds of millions in losses, it was highly profitable to U.S. Bank: the overstatement resulted in significantly inflated asset-based fees to U.S. Bank throughout the four- year period. 17. This class action seeks damages caused by U.S. Bank to investors pursuant to the Securities Act of 1933 (the “Securities Act”). The proposed class (the “Class”) consists of all persons, excluding Defendant and its officers, directors, and affiliates, who purchased or otherwise acquired Fund shares at inflated prices from January 1, 2017 through December 30, 2020 (the “Class Period”), and were damaged thereby. 4 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 5 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 PARTIES, JURISDICTION, AND VENUE 18. The TAP Trust is a Delaware statutory trust registered with the SEC as an investment company. The Fund is a series of the TAP Trust and operates as an open-end investment company, more commonly known as a mutual fund. The Fund’s stated investment objective was to “generate positive absolute returns” that were “intended to have a low correlation to equity, fixed income and credit markets”—i.e., a portfolio that would generate positive returns and would not move in sync with the market. 19. Plaintiff is a resident of Colorado Springs, Colorado and a 23-year veteran of the U.S. Air Force, where he held multiple positions within the Strategic Air Command, Space Command, Headquarters Air Force and Joint Chiefs of Staff relating to flight, missile and space operations. Plaintiff purchased shares of the Fund directly from the Fund pursuant to the Registration Statements and other Offering Materials (defined below) and has suffered damages as a result of the federal securities law violations alleged herein. 20. Defendant U.S. Bank is a Wisconsin limited liability company with itsprincipal offices located at 615 East Michigan Street, Milwaukee, Wisconsin 53202. As set forth in detail below, U.S. Bank created the TAP Trust and the Fund and was responsible for virtually all non- advisory operations. 21. This Court has personal jurisdiction over U.S. Bank because it is a domestic limited liability company with principal offices located in Wisconsin. 22. Venue is appropriate in Milwaukee County pursuant to Wis. Stat. 801.50(2)(a) because Defendant resides in Milwaukee County. 23. The claims asserted herein arise under and pursuant to §§ 11, 12(a) and 15 of the Securities Act. 5 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 6 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 24. This Court has jurisdiction pursuant to Article 7, Section 8 of the Wisconsin Constitution and Section 22 of the Securities Act, 15 U.S.C. § 77v (providing concurrent jurisdiction to state and federal courts). 25. This action is not removable to federal court pursuant to § 22 of the Securities Act,15 U.S.C. $ 77v, which states that “no case arising under this title and brought in any State court of competent jurisdiction shall be removed to any court in the United States.” 26. This action is not subject to a stay in favor of any other action because no action asserting claims against U.S. Bank preceded this one or otherwise creates a risk of inconsistent or duplicative adjudication of the claims and allegations because this case is the most procedurally advanced. SUBSTANTIVE ALLEGATIONS A. U.S. Bank Controls The TAP Funds’ Operations 27. U.S. Bank operates the TAP Trust as a “turn key” mutual fund service for smaller investment advisers that do not have the interest or ability to manage the governance, administrative, accounting, transfer agency, custody, legal and other services required to operate a mutual fund under U.S. regulations. Each of the TAP Funds, including the Fund, receives investment advice from a third-party investment manager, but U.S. Bank handles everything else. 28. As it does for the other TAP Funds, U.S. Bank served as the Fund’s administrator, fund accountant, transfer agent, and custodian pursuant to contracts with the TAP Trust. 29. U.S. Bank also provided its own employees to serve in officer and trustee positions for the Fund (and the other TAP Funds), including: • Christopher E. Kashmerick, President, Principal Executive Officer and Chairman of the Board; • Russell B. Simon, Treasurer and Principal Financial Officer; 6 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 7 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 • Steven J. Jensen, Vice President, Chief Compliance Officer, and AML (Anti-Money Laundering) Officer; and • Scott A. Resnick, Secretary. 30. These U.S. Bank employees served in their role as Fund officers as part of the regular duties of employment at U.S. Bank. They were not separately compensated by the Fund for their service as Fund officers, but rather U.S. Bank was compensated for their service under its agreements with the TAP Trust, as discussed in further detail below. These employees served as officers for all of the TAP Funds within the TAP Trust and had no special association with any particular Fund other than in their capacity as an employee of U.S. Bank performing U.S. Bank’s contractual obligations to the TAP Trust. 31. As a result of this arrangement, U.S. Bank was both contractually and practically responsible for virtually all of the Fund’s day-to-day operations, including drafting, preparing and filing the Fund’s SEC filings, valuing the Fund’s assets, and calculating and publishing its NAV. The Fund had no other personnel or employees available to perform these tasks and thus they were necessarily performed by U.S. Bank’s personnel. 32. As set forth below, U.S. Bank expressly agreed, through multiple contracts with the Fund, to be responsible for and execute these services on the Fund’s behalf. 33. Fund Administration. U.S. Bank served as the Fund’s administrator since the Fund’s inception pursuant to a Fund Administration Servicing Agreement dated January 1, 2014 (the “Admin Agreement”). 34. Under the Admin Agreement, U.S. Bank agreed to provide, through its own employees, a broad range of non-advisory services necessary to operate the Fund (what it described as “general fund management”), including among many other things: 7 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 8 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 • Provide “[o]ffice facilities (which may be in USBFS’ or an affiliate’s, own offices)” and “[c]orporate secretarial services”; • “Provide personnel to serve as officers of the Trust”; • “Prepare [Board] meeting agendas and resolutions,” “minutes of meetings,” and “reports for the Board of Trustees based on financial and administrative data”; • “Prepare and file [with the SEC] annual and semiannual shareholder reports, Form N- SAR, Form N-CSR, and Form N-Q filings and Rule 24f-2 notices. As requested by the Trust, prepare and file Form N-PX filings”; • “Coordinate the printing, filing and mailing of Prospectuses, SAI’s and shareholder reports, and amendments and supplements thereto”; • “Assist Fund counsel in annual update of the Prospectus and SAI and in preparation of proxy statements as needed”; • “Monitor fidelity bond and director and officer liability coverage, and make the necessary Securities and Exchange Commission (the “SEC”) filings”; • “Provide financial data required by the Prospectus and SAI” and “[p]repare financial reports for officers, shareholders, tax authorities, performance reporting companies, the Board of Trustees, the SEC, and independent accountants”; • “Supervise the Fund’s custodian and fund accountants in the maintenance of the Fund’s general ledger and in the preparation of the Fund’s financial statements, including oversight of expense accruals and payments [and] the determination of net asset value”; • “Prepare quarterly financial statements”; • “Pay Fund expenses upon written authorization from the Trust”; 8 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 9 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 • “Prepare appropriate schedules and assist independent auditors” and “[p]rovide information to the SEC and facilitate audit process”; • “Keep the Trust’s governing documents, including its charter, bylaws and minute books”; • “Monitor compliance with the 1940 Act requirements,” “the policies and investment limitations as set forth in its prospectus (the “Prospectus”) and statement of additional information (the “SAI”),” and “status as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986”; and • “Prepare and file with the appropriate state securities authorities any and all required compliance filings relating to the qualification of the securities of the Fund so as to enable the Fund to make a continuous offering of its shares in all states.” 35. U.S. Bank expressly agreed in the Admin Agreement to be liable for its own negligence and misconduct. 36. U.S. Bank’s compensation for providing services under the Admin Agreement was “bundled” with its fee for fund accounting services described below, which included an asset- based fee as well as additional fixed fees and reimbursements. 37. Fund Accounting. U.S. Bank served as fund accountant for the Fund since the Fund’s inception pursuant to a Fund Accounting Servicing Agreement dated January 1, 2014 (“Accounting Agreement”). 38. Under the Accounting Agreement, U.S. Bank assumed responsibility to, among other things: • “Determine the net asset value of the Fund according to the accounting policies and procedures set forth in the Fund's current prospectus”; 9 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 10 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 • “[O]btain prices from a pricing source approved by the [Board] and apply those prices to the portfolio positions,” including fair valuation for “securities where market quotations are not readily available”; • “Calculate per share net asset value, per share net earnings, and other per share amounts reflective of Fund operations”; • “Transmit a copy of the portfolio valuation to the Fund’s investment adviser daily”; • Report the Fund’s “net asset value for each valuation date”; and • “Prepare monthly reports that document the adequacy of accounting detail to support month-end ledger balances.” 39. U.S. Bank expressly agreed in the Accounting Agreement to be liable for its own negligence and misconduct. 40. U.S. Bank was compensated by the Fund under the Accounting Agreement by an asset-based fee based on the Fund’s current average daily net assets plus additional fees for providing securities pricing services and reimbursements for out-of-pocket expenses. 41. Chief Compliance Officer. U.S. Bank also agreed to provide an employee to serve as the Fund’s Chief Compliance Officer (“CCO”), who was responsible for designing, implementing and overseeing the Fund’s compliance program under SEC Rule 38a-1. 42. SEC Rule 38a-1 requires the Fund to “[a]dopt and implement written policies and procedures reasonably designed to prevent violation of the Federal Securities Laws by the fund, including policies and procedures that provide for the oversight of compliance by each investment adviser, principal underwriter, administrator, and transfer agent of the fund.” 10 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 11 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 43. The Fund’s compliance program was intended to cover securities pricing, including fair valuation, and the Fund’s CCO was responsible for “[d]aily monitoring of securities positions.” 44. Other Non-Advisory Functions. In addition to serving as the Fund’s administrator, fund accountant, and CCO, U.S. Bank also served as the Fund’s transfer agent pursuant to a Transfer Agent Servicing Agreement (“TA Agreement”) and the Fund’s custodian pursuant to a Custody Agreement, each dated January 1, 2014. 45. As the Fund’s transfer agent, U.S. Bank was responsible for, among other things, processing “all orders for the purchase, exchange, transfer and/or redemption of [Fund] shares” at the Fund’s reported NAV. 46. As the Fund’s custodian, U.S. Bank was responsible for, among other things, supplying “necessary information to . . . compute the value of the assets of the Fund,” reconciling pricing discrepancies between the Fund’s valuations and other reported valuations of the same securities, and obtaining “favorable opinions” from the Fund’s auditors with respect to the Fund’s public filings, including its registration statements and financial reports. 47. As above, U.S. Bank expressly agreed to be liable for its own negligence and misconduct in these agreements as well. 48. U.S. Bank was compensated by the Fund under the TA Agreement and Custody Agreement by asset-based and transactional fees plus reimbursements for out-of-pocket expenses. B. U.S. Bank Prepared The Offering Materials On Behalf Of The Fund 49. Because the Fund offered securities to the public, it was subject to a range of disclosure and regulatory obligations under federal law. The Fund’s securities were registered under the Securities Act, and until December 20, 2020, it continuously issued and redeemed shares each trading day. 11 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 12 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 50. The Fund conducted its continuous public offerings pursuant to Registration Statements filed with the SEC annually. Under U.S. Bank’s direction, the Fund filed its initial Registration Statement on September 26, 2014, and the Registration Statements in effect during the Class Period were filed on December 31, 2016, December 31, 2017, December 31, 2018 and December 31, 2019. 51. Each of the Fund’s Registration Statements included a Prospectus and a Summary Prospectus, which provide investors information about, among other things, the Fund’s investment strategies, risks, and performance. 52. Each of the Registration Statements also incorporated by reference a Statement of Additional Information (“SAI”), which provided further information about the Fund and its operations. 53. U.S. Bank drafted the Fund’s Registration Statement, including each of the Prospectus, Summary Prospectus, and SAI, and coordinated the process by which the Registration Statement was approved and filed with the SEC each year. 54. In addition, the Fund filed Annual and Semi-Annual Shareholder Reports with the SEC every six months, which U.S. Bank drafted. 55. The Shareholder Reports included, among other things, the Fund’s financial statements, including a listing of all securities held by the Fund and their values as of the end of the reporting period (for the Annual Reports, as of the end of August; for the Semi-Annual Reports, as of the end of February), all of which were prepared by U.S. Bank. The financial statements and accompanying notes in the Fund’s Shareholder Reports were incorporated by reference into the Registration Statements. 12 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 13 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 56. The Fund's Registration Statements, including the incorporated Prospectuses, Summary Prospectuses, SAIs, and Shareholder Reports, are collectively referred to herein as the “Offering Materials.” 57. U.S. Bank was directly responsible for drafting, preparing and filing the Fund’s public filings, including the Offering Materials. In order to do these things (or, in other words, to cause the Fund to do these things), U.S. Bank utilized its own employees across multiple groups. As to its own operational responsibilities, including securities valuation (as discussed below), U.S. Bank’s employees were the only personnel with knowledge with respect to such operations and therefore necessarily drafted and/or provided the information necessary to make the Fund’s public disclosures. 58. In addition to drafting and preparing the Fund’s public disclosures, U.S. Bank employees, Mr. Kashmerick and Mr. Simon—who were officers of the Fund that U.S. Bank contractually agreed to provide under the Admin Agreement—both signed the Fund’s Registration Statements and Shareholder Reports during the Class Period. C. U.S. Bank Calculated And Published The Fund’s NAV 59. The Fund, like all mutual funds, was required to publish the offering price of its shares based on its per share NAV, which was calculated by U.S. Bank every trading day. The per share NAV is the value of a pro rata share of the Fund’s investment portfolio on the day of purchase. 60. As explained in the Fund’s Prospectus: Shares of the Fund are sold at NAV per share which is calculated as of the close of regular trading (generally, 4:00 p.m., Eastern Time) on each day that the New York Stock Exchange (“NYSE”) is open for unrestricted business . . . The NAV is the value of the Fund’s securities, cash and other assets, minus all expenses and liabilities (assets – liabilities = NAV). The NAV per share is determined by dividing NAV by the number of shares outstanding (NAV/# of shares = NAV per share). 13 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 14 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 61. U.S. Bank was contractually responsible for accurately calculating and publishing the Fund’s NAV. Accurate calculation of NAV was critical to ensure that purchasing shareholders received the correct value for their investment and that existing shareholders were not diluted. 62. Through the Accounting Agreement, the Fund’s Board delegated day-to-day responsibilities for valuation to U.S. Bank and a “Valuation Committee” consisting entirely of U.S. Bank employees. 63. Mr. Kashmerick and Mr. Simon were members of the Fund’s Valuation Committee, as was a third member, identified publicly as the Fund’s Assistant Treasurer, who on information and belief also was a U.S. Bank employee. 64. While some securities, like stocks, can be valued based on market prices, the Fund invested heavily in derivative instruments, including credit derivatives, convertible securities, futures, forwards, options and swap contracts (the “Derivative Investments”), that did not have readily obtainable market prices that could be used for purposes of the daily NAV calculation. 65. In the absence of readily available market prices, the Fund’s Derivative Investments could be valued using prices provided by an independent pricing service or they could be “fair valued,” in which case they would be valued based on a good faith assessment of the amount that the Fund would receive for the securities upon a current sale. 66. While a mutual fund’s investment adviser may provide input in connection with fair valuation of securities held by a fund, such involvement gives rise to potential conflicts of interest because investment advisers may have an incentive to value fund assets improperly to increase fees, improve or smooth reported returns, or comply with the fund’s investment policies and restrictions. Thus, it is important that a fund’s valuation process be properly implemented and 14 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 15 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 overseen, and that any valuation inputs provided by the fund’s adviser be independently verified to ensure the information reflects a good faith assessment of the actual value of the securities. 67. The Registration Statement represented to investors that U.S. Bank and its personnel on the Valuation Committee were responsible for implementing and overseeing the Fund’s valuation process, including independently verifying any valuations provided by Infinity Q. These statements indicated to investors that they would be protected by U.S. Bank from any conflict of interest on the part of Infinity Q with respect to securities valuation. 68. As explained in the Fund’s December 31, 2019 Prospectus, the Valuation Committee was supposed to review each and every valuation of the Fund’s securities, and the underlying basis for the valuations, including so-called “Fair Valuation Forms”: 1 The Board has delegated day-to-day valuation matters to a Valuation Committee that is comprised of the Trust’s President, Treasurer and Assistant Treasurer and is overseen by the Trustees. The function of the Valuation Committee is to review each Adviser’s valuation of securities held by any series of the Trust for which current and reliable market quotations are not readily available. Such securities are valued at their respective fair values as determined in good faith by each Adviser, and the Valuation Committee gathers and reviews Fair Valuation Forms that are completed by an Adviser to support its determinations, and which are subsequently reviewed and ratified by the Board. 69. The December 31, 2019 Prospectus further stated that: When reliable market quotations are not readily available or the Fund’s pricing service does not provide a valuation (or provides a valuation that in the judgment of the Adviser does not represent the security’s fair value) or when, in the judgment of the Adviser, events have rendered the market value unreliable, a security or other asset is valued at its fair value as determined under procedures approved by the Board. Valuing securities at fair value is intended to ensure that the Fund is accurately priced and involves reliance on judgment. Fair value determinations are made in good faith in accordance with the procedures adopted by the Board. The Board will regularly evaluate whether the Fund’s fair valuation pricing procedures continue to be appropriate in light of the specific circumstances of the Fund and the quality of prices obtained through their application by the Trust’s valuation committee. 1 While this complaint quotes from the Fund’s December 31, 2019 Registration Statement, the other Registration Statements effective during the Class Period contain materially identical disclosures. 15 FILED: NEWCase YORK COUNTY CLERK 01/10/2023 02:12 PM INDEX NO. 651295/2021 2022CV000846 Document 34 Filed 07-22-2022 Page 16 of 33 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/10/2023 70. The December 31, 2019 SAI further explained: Generally, the Fund’s investments are valued at market value or, in the absence of a market value, at fair value as determined in good faith by the Fund’s Adviser with oversight by the Trust’s Valuation Committee pursuant to procedures approved by or under the direction of the Board. 71. U.S. Bank’s employees, who were responsible for implementing and overseeing the Fund’s valuation process, necessarily drafted and/or provided the information incorporated into the Fund’s Offering Materials on those topics, including the foregoing representations with respect to the Valuation Committee and the process for securities valuation. 72. The foregoing representations were false and misleading because they failed to disclose that, as described in detail below: (a) the Fund’s Derivative Instruments were not “valued at their respective fair values as determined in good faith”; (b) day-to-day valuation of the Derivative Instruments was essentially delegated to Infinity Q, without effective oversight by the Valuation Committee, despite the potential conflict of interest; (c) in the absence of effective oversight by the Valuation Committee, Infinity Q manipulated the pricing models and inputs used to value the Derivative Instruments, resulting unreliable and inflated valuations; (d) the Valuation Committee did not “gather[] and review[] Fair Valuation Forms . . . to support [Infinity Q’s] determinations,” nor were Fair Valuation Forms “subsequently reviewed and ratified by the Board”; and (e) the Valuation Committee did not implement any process to independently verify the valuation information provided by Infinity Q for the Derivative Instruments. D. U.S. Bank Misrepresented Its Valuation Oversight For Years, Permitting Infinity Q To Manipulate Prices At Will 73. Unbeknownst to investors, and contrary to the Fund’s public representations (which U.S. Bank caused it to make), the Valuation Committee was not following the pricing guidelines in the Valuation Policies described above or otherwise ve