MEMORANDUM OPINION
At issue at the threshold dismissal stage in this breach-of-fiduciary-duty action brought pursuant to § 502(a)(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(2), is the nature of an independent fiduciary’s duties to the participants in a 401 (k) retirement plan. Specifically, this case considers whether defendant Fiduciary Counselors, Inc. (“Fiduciary Counselors”) acted in conformity with ERISA’s standards of fiduciary conduct after it was appointed to manage pension investments in a company’s stock shortly before the company’s bankruptcy filing.
I. 1
Plaintiff, Vincent D. DiFelice, is a mechanic employed by U.S. Airways since January 3, 1990 and a participant in the U.S. Airways, Inc. 401(k) Plan (the “Plan”). US Airways, Inc. (“US Airways”) is a major domestic commercial airline and a subsidiary of -U.S. Airways Group, Inc. (“US Air Group”). On June 27, 2002, in consideration of the possible bankruptcy filing of U.S. Air Group and its subsidiaries, U.S. Airways appointed Fiduciary Counselors, known as Aon Fiduciary Counselors, Inc. during the class period, as an independent fiduciary with responsibility for managing certain Plan investments.
The Company Stock Fund was a unitized fund that consisted primarily of the publicly traded shares of U.S. Airways Group, Inc. (“US Air Group”), the parent company of U.S. Airways. The remainder of the Company Stock Fund’s assets were held in cash. It its role as Plan administrator, U.S. Airways, together with the Plan directed trustee, Fidelity Management Trust (“Fidelity”), set a cash target range for the Company Stock Fund of 10%. As a unitized fund, the amount of cash held by the Stock Fund varied daily based on several factors, including (i) the targeted liquidity levels established for the fund, (ii) participant activity in the fund (contributions, redemptions, exchanges, withdrawals, etc.) and (iii) variations in the price of U.S. Air Group stock. Fidelity was charged with buying or selling shares of U.S. Air Group in order to keep the amount of cash in the fund within one percent of the target range. The value of an investment in units of the Company Stock Fund was therefore primarily a function of the value of the underlying shares of U.S. Air Group and to a lesser extent, a function of the amount of cash held in the Company Stock Fund.
US Airways remained responsible for deciding whether to retain the Company Stock Fund as a Plan investment option until June 27, 2002 when it appointed Fiduciary Counselors as the independent fiduciary with responsibility for making all investment decisions regarding the Company Stock Fund. For several years prior to this appointment, the financial condition of U.S. Airways and its parent company U.S. Air Group had been weakened by a combination of competitive pressures, a high cost structure, and the terrorist attacks of September 11, 2001. This combination ultimately resulted in the bankruptcy of U.S. Airways and U.S. Air Group.
In the year 2000, U.S. Airways’ business was suffering from the combination of a generally weak economic environment, and competition from both low-cost airlines and the larger network carriers. These factors would result in operating losses for the fiscal year 2000 of $350 million and $270 million respectively for U.S. Airways and U.S. Air Group. In an attempt to reverse
This already dire situation was dealt a further blow by the terrorist attacks of September 11, 2001. In response to the attacks, the Federal Aviation Administration grounded all civilian aircraft for three days. In addition, Ronald Reagan Washington National Airport, particularly important to U.S. Airways’ business, was closed until October 4, 2001. US Airways President and CEO David Siegel would later describe the impact of September 11 to his employees in the following terms:
While all airlines are contending with the business fallout from September 11, economically, U.S. Airways has been the hardest hit. The post-September 11 reluctance to fly has been most pronounced on the East Coast, where most of our flights are concentrated. US Airways was most heavily impacted by the prolonged closure of Reagan Washington National Airport. Additionally, we’re the only airline that has to compete not only with big competitors and low-cost carriers, but also with cars and trains. The end result is that the events of September 11 and the ensuing deep-rooted changes to our industry have put into jeopardy the short- and long-term financial health of U.S. Airways.
US Airways’ continuing problems were recognized by debt rating agencies and the business press as well. Moody’s Investors Service downgraded U.S. Airways’ senior secured debt from “Bl” to “B2” with a negative outlook rating. Standard and Poor’s likewise downgraded U.S. Airways’ debt from “B” to “CCC + ” indicating that U.S. Airways would be unlikely to have the ability to pay the debt in the event of adverse business, financial or economic conditions. Similarly, a September 21, 2001 article in the Wall Street Journal described U.S. Airways “as one of the two or three most likely [airlines] for seeking bankruptcy-law protection soon.” These problems were reflected in the stock market valuation of the airline. On September 27, 2001, U.S. Air Group Stock closed at $4.10 per share, representing a 65% decline from its pre-September 11 price.
US Air Group would ultimately record $2.12 billion in net losses in the year 2001, $1.86 billion of which was attributable to its subsidiary U.S. Airways. US Air Group acknowledged in its annual report that it expected these losses to continue at the rate of $3 million per day through the first quarter of 2002. In its Form 10-Q filing for the quarter ended March 31, 2002, U.S. Airways acknowledged the possibility of a bankruptcy filing should it fail to obtain sufficient government loans, and employee concessions. This possibility became increasingly more likely throughout the spring of 2002 as U.S. Airways finan
A bankruptcy filing was not, however, a foregone conclusion. In an attempt to avoid bankruptcy, U.S. Airways had completed its application for government loan guarantees by June 28, 2002. Three days later U.S. Airways commented on' its federal loan application in the Plan’s annual report, stating that:
[l]oan approval is dependent upon, among other things, achieving the necessary cost reductions contemplated in the loan application. Therefore, at this time, significant uncertainties exist regarding the Company’s ability to reach an accord with its key stakeholders and whether or not the government will approve the Company’s application for a guaranteed loan.
On July 10, 2002, the federal government approved U.S. Airways’ application for a $900 million loan, contingent upon U.S. Airways’ ability to secure concessions from labor, creditors, and lessors.
As it happened, U.S. Airways was unable to secure these concessions, and on August 11, 2002, U.S. Air Group and seven of its subsidiaries and affiliates, including U.S. Airways, filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code. The New York Stock Exchange immediately suspended trading in U.S. Air Group shares, and U.S. Airways issued a bulletin warning its employees that investments in U.S. Air Group stock were highly speculative.
The Company Stock Fund had remained a Plan investment option throughout the period preceding the bankruptcy filing. Significantly, due in part to the combination of the 10% cash target range acting in combination with the steep decline in the price of U.S. Air Group shares, the Company Stock Fund’s percentage stake in U.S. Air Group shares rose to roughly 33% of the total number of U.S. Air Group shares outstanding as of June 30, 2002. Roughly 31% of these shares were held for the benefit' of the Plan. When U.S. Air Group and its subsidiaries filed for bankruptcy, trading by Plan participants into and out of the Company Stock Fund was suspended. By order of the bankruptcy court, the Plan fiduciaries were prevented from selling the Company Stock Fund’s holdings of U.S. Air Group stock without U.S. Air Group’s consent. What little value that remained of the Company Stock Fund’s holdings was eliminated by the bankruptcy plan reorganization.
US Airways had remained the Plan administrator with responsibility for selecting and terminating the investment options available to Plan participants until June 27, 2002 when it appointed Fiduciary Counselors as an independent fiduciary with responsibility for making investment decisions with respect to the Company Stock Fund. This occurred approximately seven weeks prior to U.S. Airways’ bankruptcy filing.
The agreement between U.S. Airways and Fiduciary Counselors set forth the following terms of the engagement:
Scope of the Engagement [T]he Independent Fiduciary shall be appointed as named fiduciary in the Company’s stead with full authority and responsibility on behalf of each Plan to exercise all authority to:
(i) Continue to offer the [Company Stock] Fund as an investment optionunder each such Plan on such terms and conditions as the Independent Fiduciary shall deem prudent and in the interests of the Plan and its participants and beneficiaries, including without restriction prohibiting or limiting ... further purchases or holdings of Fund units or increasing the [Company Stock] Fund’s holding of cash or cash equivalent investments; or
(ii) Terminate the availability of the [Company Stock] Fund as an investment option on such terms and conditions as the Independent Fiduciary shall deem prudent and in the interests of the Plan and its participants and beneficiaries....
The Agreement also granted to Fiduciary Counselors the authority to make communications to participants it deemed “to be necessary in connection with the exercise of its responsibilities” with the condition that those communications were “subject to [US Airways’] right to reasonable notice and opportunity to review and comment....” The Plan and the Trust Agreement were accordingly amended to reflect Fiduciary Counselor’s appointment as independent fiduciary.
In a letter dated June 27, 2002, U.S. Airways informed Plan participants of the appointment of Fiduciary Counselors with authority to make investment decisions regarding the Company Stock Fund. 3 Under the subheading “Why appoint an independent fiduciary now?” the letter explained the following:
President and CEO Dave Siegel has said on several occasions that we must restructure this Company either outside of a Chapter 11 reorganization or through a judicial restructuring. Our future path will clearly have an impact upon the value of U.S. Airways common stock. The appointment of an independent fiduciary ensures that decisions regarding the U.S. Airways stock held by retirement plans are made solely in the interests of plan participants and beneficiaries and avoids any real or perceived conflict of interest in connection with these decisions.
The letter further stated that U.S. Airways believed the appointment of Fiduciary Counselors was “the most prudent course of action given our current challenges and the uncertainties facing us.”
Pursuant to its authority, Fiduciary Counselors directed Fidelity to increase the cash target range of the Company Stock Fund from 10% to 20% effective June 27, 2002, and on July 3, 2002 directed Fidelity to cease purchases of U.S. Air Group stock for the Company Stock Fund. Fiduciary Counselors informed Plan participants of these directions in a letter received by participants in early August. 4 The letter further informed participants that:
Over the next few months, we may also direct the Trustee to sell more shares of Common Stock than would occur automatically as a result of participant direction. Our authority further allows us to prohibit or limit additional purchases or holdings of units of the Stock Fund or even to discontinue the Stock Fund asan investment option available to you under the Savings Plan. Pleas be aware that we may take these or other actions in the future that may affect the relative proportions of Common Stock and cash investments held by the Stock Fund as we deem prudent, without notifying you.
This letter represented the sole communication between Fiduciary Counselors and Plan participants that occurred before U.S. Air Group’s and U.S. Airways’ bankruptcy filing.
In a letter sent to participants subsequent to the bankruptcy filing, dated August 13, 2002, 5 Fiduciary Counselors explained that its decision to prohibit further purchases of U.S. Air Group shares was based on the fact that “US Airways had publicly announced that it might file bankruptcy or take other actions that would reduce or eliminate the value of outstanding stock in the Company.” Yet, apart from these public announcements, Fiduciary Counselors “had no other advance notice of the timing of the bankruptcy filing.” Fiduciary Counselors stated that in its capacity as independent fiduciary it had sold shares of U.S. Air Group held by the Company stock fund “to the extent that sales could be made without adversely affecting the market and the value of the rest of the U.S. Airways stock held by the [Company] Stock Fund.”
In addition to market constraints, Fiduciary Counselors’ ability to sell U.S. Air Group stock out of the Company Stock Fund was constrained by the relatively small trading volume in shares in relation to the substantial concentration of shares in the Company Stock Fund. In addition, Fiduciary Counselors was aware by July 2002 that SEC Rule 144 significantly limited the amount of U.S. Air Group shares Fiduciary Counselors could sell at one time. This Rule provides, in pertinent part:
If restricted or other securities are sold for the account of an affiliate of the issuer, the amount of securities sold, together with sales of restricted and other securities of the same class for the account of such person within the preceding three months, shall not exceed the greater of (i) One percent of the class outstanding as shown by the most recent report or statement published by the issuer....
17 C.F.R. § 230.144(e)(1)®. Fiduciary Counselors was also aware that these restrictions did not apply to sales of U.S. Air Group stock made at the direction of Plan participants.
This action was filed by plaintiff on June 27, 2005, pursuant to ERISA § 502(a)(2) on behalf of the Plan to recover losses to the Plan which occurred as a result of Fiduciary Counselor’s alleged breaches.
6
In a related suit, plaintiff had alleged breaches of fiduciary duty by both Fidelity and U.S. Airways. Fidelity’s subsequent motion to dismiss was granted on the basis of its limited duties as a directed trustee.
See DiFelice v. U.S. Airways, Inc.,
397
(i) Failing to inform Participants that it had determined, on or prior to the inception of the Class Period, that Group stock was an imprudent investment;
(ii) Failing to close the [Company] Stock Fund to new investments;
(in) Failing to inform Participants that market and legal restrictions prevented it from liquidating more than a small portion of Stock Fund’s Group stock holdings at any given time;
(iv) Failing to timely inform Participants that it had instructed Fidelity Trust not to purchase additional shares of [US Air] Group stock for the [Company] Stock Fund or inform them that it had instructed Fidelity Trust to increase the cash target of the [Company] Stock Fund from 10% to 20%; and
(v) Failing to instruct Fidelity Trust to sell as much [US Air] Group as could be sold subject to market and legal limitations, rather than simply setting a 20% cash target.
Plaintiff alleges that these breaches resulted in losses suffered by the Plan. Fiduciary Counselors has moved to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., arguing that plaintiffs Complaint fails to state a claim as a matter of law.
II.
A motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., tests the legal sufficiency of a plaintiffs claims, and should not be granted unless it appears that the plaintiff can prove no set of facts that would entitle him to relief.
See Randall v. United States,
III.
Before the plaintiff can state a claim for Fiduciary Counselor’s breach of its fiduciary duty, plaintiff must demonstrate that Fiduciary Counselors is a fiduciary as that term is defined by ERISA.
See Baker v. Kingsley,
As an ERISA fiduciary, Fiduciary Counselors was bound by ERISA to exercise its authority with respect to the Plan “solely in the interests of the participants and beneficiaries” and “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” ERISA § 404(a), 29 U.S.C. § 1104(a). Because Fiduciary Counselors assumed U.S. Airway’s responsibilities as the fiduciary with control over the management of the Company Stock Fund, and because of the similarity between the claims against U.S. Arways and Fiduciary Counselors, the legal principles governing plaintiffs allegations are essentially the same. As was true of plaintiffs claims against U.S. Airways, plaintiffs claims against Fiduciary Counselors fall into two general categories: (i) claims alleging the fiduciary’s failure to inform plan participants, and (ii) claims alleging a failure to exercise prudence in the management of plan assets.
See Difelice v. U.S. Airways, Inc., et al.,
A.
Analysis of plaintiffs failure to inform claims must begin with ERISA’s “comprehensive set of reporting and disclosure requirements” set forth in Part I of ERISA.
See Curtiss-Wright Corp. v. Schoonejongen,
Plaintiff does not contend that Fiduciary Counselors failed to comply with these explicit requirements, but argues instead that ERISA § 404(a)’s standard of prudence creates further obligations for the disclosure of information to participants. In view of the substantial disclosure obligations imposed expressly by ERISA, courts, in general, have been unwilling to read other provisions of ERISA, including § 404(a), as creating an implicit duty to disclose additional information. As the Supreme Court has noted, the disclosure requirements of ERISA Part I “may not be a foolproof informational scheme, although it is quite thorough. Either way, it is the scheme that Congress devised. And we do not think Congress intended it to be supplemented by a faraway provision in another part of the statute.... ”
Schoonejongen,
There are, however, narrow circumstances in which a fiduciary’s general obligations under § 404(a) will trigger a further obligation to disclose information. For example, courts generally recognize that a fiduciary is required to disclose information it possesses upon a participant’s request.
See Griggs v. E.I. DuPont de Nemours,
In addition, an affirmative duty to disclose information arises when a fiduciary is aware that participants are laboring under a material misunderstanding concerning the Plan or its benefits.
8
This duty is derived from the common law of trusts, which ERISA’s fiduciary duty provisions incorporate,
9
and which imposes upon fiduciaries “a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which [the fiduciary] knows the beneficiary does not know and which the beneficiary needs to know for his protection____”
See
Restatement (Second) of Trusts § 173 cmt. d (1959). Read expansively, this principle could require fiduciaries to disclose every piece of information that it is privy to which a participant could later claim would have been material to his investment decisions. To interpret this trust principle in such a way, however, would be to render meaningless the detailed disclosure requirements of ERISA, and to subject fiduciaries to the onerous duty of disclosing every
Therefore, the affirmative duty to provide information to participants of an ERISA plan arises only when the fiduciary has fostered the misunderstanding of facts material to participants’ investment decisions. Limiting § 404(a)’s disclosure requirements to instances in which the fiduciary is correcting a misunderstanding it has fostered strikes the appropriate balance between a fiduciary’s duty of loyalty to plan participants with its need to clearly understand and comply with ERISA’s disclosure requirements. Thus, in
Griggs v. E.I. DuPont de Nemours & Co.,
Yet this case is far from
Griggs,
for here plaintiff does not allege that Fiduciary Counselors had fostered any material misunderstanding among Plan participants. The financial difficulties facing U.S. Airways were well known to the investing public at large, and U.S. Airways had repeatedly informed its employees of the possibility of a bankruptcy filing. In fact, U.S. Airways explained in a letter to participants that the appointment of Fiduciary Counselors was in contemplation of a possible bankruptcy filing’s “impact upon the value of U.S. Airways common stock.” Thus, Fiduciary Counselors had no reason to suspect that Plan participants were unaware of the risks of investing in U.S. Air Group stock, nor did Fiduciary Counselors misrepresent the risks of investing in U.S. Air Group stock. In its letter of August 1, 2002, Fiduciary Counselors informed par
Nor did Fiduciary Counselors mislead plan participants in regard to its ability to sell shares of U.S. Air Group on the open market in the absence of participant direction. Sales of stock are subject to numerous legal constraints, which are a matter of public record. To require disclosure to participants of every possible legal consideration faced by a fiduciary would be to risk confusing participants by burying a fiduciary’s truly important disclosures in a mass of legal disclosures. ERISA plainly does not require such disclosures.
Finally, plaintiff contends that Fiduciary Counselors breached its fiduciary duty by “failing to timely inform Participants that it had instructed Fidelity Trust not to purchase additional shares of [US Air] Group stock for the [Company] Stock Fund or inform them that it had instructed Fidelity to increase the cash target of the [Company] Stock Fund from 10% to 20%.” The allegation, therefore, is not that Fiduciary Counselors provided misleading information, but that they failed to inform participants of this instruction in a timely manner. The complaint admits, however, that participants received this information by August 1, 2002 or roughly five weeks after its direction to Fidelity. Several considerations compel the conclusion that this lag in time is not sufficient to state a claim for breach of fiduciary duty to disclose information. First, ERISA’s express provisions require disclosure of any “material modifications in the terms of the plan” or any changes in the information required by the Summary Plan description within 60 days of the modification. 29 U.S.C. § 1024(a)(2)(D). Assuming that Fiduciary Counselors’ direction to Fidelity represented a “material modification” of the Plan, the disclosure was well within the 60 days required by ERISA.
See Porto v. Armco, Inc.,
In summary, Fiduciary Counselor’s duty to disclose information beyond that specifically required by ERISA is limited to instances in which they have fostered a material misunderstanding of Plan benefits or investment options and then failed to correct that understanding. No such facts are alleged here. Given this and because Fiduciary Counselors’ disclosure to partici
B.
Plaintiffs remaining allegations charge that Fiduciary Counselors acted imprudently with respect to the Company Stock Fund after it assumed responsibility for its management. Specifically, plaintiff alleges that Fiduciary Counselors failed to act “with the care, skill, prudence and diligence” of “a prudent man acting in like capacity and familiar with such matters,” ERISA § 404(a), by: (i) failing to instruct Fidelity to close the Company Stock Fund to new investments, and by (ii) failing to instruct Fidelity Trust to sell as much stock as could be sold subject to market and legal restrictions.
Courts considering ERISA’s standard of prudence in the context of a fiduciary’s investment decisions have appropriately held that the general fiduciary obligation of § 404(a) does not require prescience of fiduciaries, but instead measures a fiduciary’s performance based on the facts then at their disposal.
11
Thus, the appropriate benchmark with which to judge a fiduciary’s behavior is an objective one “measured against the standards of the investment industry.”
Ulico Casualty Co. v. Clover Capital Mgmt., Inc.,
The Department of Labor (“DOL”) has provided further guidance on the application of the § 404(a) prudent man standard to a fiduciary’s investment decisions. According to the DOL, a fiduciary has satisfied “the prudent man” standard in relation to its investment duties if it:
[h]as given .appropriate consideration to those facts and circumstances that, given the scope of such fiduciary’s investment duties, the fiduciary knows or should know are relevant to the particular investment or investment course of action involved, including the role the investment or investment course of action plays in the that portion of the plan’s investment portfolio with respect to which the fiduciary has investment duties; and ... has acted accordingly.
29 C.F.R. § 2550.404a-l (emphasis added). And according to the DOL, “[appropriate consideration” includes a “determination by the fiduciary that the particular investment course of action is reasonably de
(i) the composition of the portfolio with regard to diversification; (ii) the liquidity and current return of the portfolio relative to the anticipated cash flow requirements of the plan; and (iii) the projected return of the portfolio relative to the funding objectives of the plan.
Id. Thus, although a named fiduciary is not required to ensure the performance of a given plan investment, a named fiduciary is required, at a minimum, to examine the characteristics of an investment, including its risk characteristics and its liquidity, to ensure that it is an appropriate plan investment, and that it is in the best interests of the plan participants.
Judged by this standard, Fiduciary Counselors’ actions upon appointment as fiduciary as alleged in the complaint cannot be held as imprudent. The facts alleged in the complaint reflect that Fiduciary Counselors appropriately considered the relevant facts available at the time and acted accordingly. At the time of Fiduciary Counselors’ appointment, the shares of U.S. Airways, valued at $3.72 by the market, already reflected the significant risk of U.S. Airways’ bankruptcy.
See Basic, Inc. v. Levinson,
More importantly, Fiduciary Counselors did act promptly to mitigate the risks of a potential bankruptcy filing to the value of Plan assets held in the Company Stock Fund by directing Fidelity to cease purchasing shares of U.S. Air Group stock on the public market for the Company Stock Fund and to begin gradually increasing the percentage of cash in the Company Stock Fund by selling U.S. Air Group shares. Thus, Fiduciary Counselors’ decision to retain the Company Stock Fund as a Plan investment option did not increase the Plan’s exposure to the risks of U.S. Air Group stock. Any additional investments in the Company Stock Fund by Plan participants during the proposed class period were simply held as cash. In addition, closing the Company Stock Fund to new investments would not have affected the huge concentration of U.S. Air Group shares already held by the Company Stock Fund. Therefore, Fiduciary Counselors’ decision to retain the Company Stock Fund as a Plan investment option did not directly contribute to any losses incurred by the Plan.
Furthermore, Plaintiffs allegation that Fiduciary Counselors acted imprudently by not directing Fidelity Trust to sell as many shares as possible ignores the likely negative impact such a dramatic sell-off would have on the price of the stock. The daily trading volume during the roughly seven weeks between Fiduciary Counselors’ appointment and U.S. Air Group’s bankruptcy announcement ranged from 285,500 shares per day to 1,980,000 shares per day. The Complaint reflects the fact
Thus, the actions of Fiduciary Counselors in its capacity as independent fiduciary for the Company Stock Fund differ markedly both in degree and in kind from those taken (or not taken) by U.S. Airways in the months prior to its appointment of Fiduciary Counselors. US Airways was the fiduciary with respect to the Company Stock Fund for the many months preceding the appointment of Fiduciary Counselors and took no action as the Company Stock Fund accumulated nearly a third of U.S. Air Group’s outstanding shares despite the airline’s well known business and financial difficulties. In those circumstances, a jury could find that U.S. Airways had failed to perform its duty with the care, skill, diligence and prudence of a prudent man.
See Difelice v. U.S. Airways, Inc., et al.,
Notes
. Because the motion at bar is a motion to dismiss for failure to state a claim on which relief can be granted, the facts recited here are derived from plaintiff’s complaint.
See Randall v. United States,
. Because plaintiffs Amended Complaint refers extensively to the Plan, it is appropriate to consider the Plan and its provisions when ruling on the motion to dismiss, and doing so does not convert the motion into one for summary judgment.
See Phillips
v.
LCI Int'l, Inc.,
. The letter is attached as exhibit D to plaintiff's complaint and is therefore properly considered by the Court.
See
Rule 10(c), Fed.R.Civ.P. ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.'').
See also Davis v. Cole,
. This letter was attached to the complaint as Exhibit F and is thus properly before the Court on the motion to dismiss. See supra note 3.
. This letter was attached to the complaint as Exhibit E and is thus properly before the Court on the motion to dismiss. See supra note 3.
. ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2), provides that “a civil action may be brought— by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title.” ERISA § 409(a), 29 U.S.C. § 1109(a), provides, in pertinent part, that—
Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach....
ERISA § 409(a), 29 U.S.C. § 1109(a)
.See, e.g., Watson v. Deaconess Waltham Hosp.,
.
Watson v. Deaconess Waltham Hosp.,
.
See Firestone Tire & Rubber Co. v. Bruch,
.
See, e.g., In re Polaroid ERISA Litig.,
.
See Roth v. Sawyer-Cleator Lumber Co.,