                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
WILLIAM S. HARRIS, et al.,     )
                               )
                               )
          Plaintiffs,          )
                               )
     v.                        )    Civil Action No. 02-618 (GK)
                               )
JAMES E. KOENIG, et al.,       )
                               )
          Defendants.          )
______________________________)


                              MEMORANDUM OPINION


       Plaintiffs William S. Harris, Reginald E. Howard, and Peter M.

Thornton, Sr. are former employees of Waste Management Holdings,

Inc. (“Old Waste”) and participants in the Waste Management Profit

Sharing and Savings Plan (“Old Waste Plan” or “Plan”). They bring

this       action   on   behalf   of   the   Plan’s   approximately   30,000

participants under the Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq., against Defendants,1



       1
       Defendants include the “Old Waste Fiduciaries,” which are
Old Waste (the Plan’s sponsor), the Waste Management, Inc. Profit
Sharing and Savings Plan Investment Committee (“Old Waste
Investment Committee”), the Waste Management, Inc. Profit Sharing
and   Savings   Plan   Administrative   Committee   (“Old   Waste
Administrative Committee”), the individual Trustee Members of the
Committees, the Old Waste Board of Directors and its individual
members, and fifteen unidentified fiduciaries; and the “New Waste
Fiduciaries,” which are the Waste Management Retirement Savings
Plan (“New Waste Plan”), the Investment Committee of the Waste
Management Retirement Savings Plan (“New Waste Investment
Committee”) and its individual Trustee Members, the State Street
Bank and Trust Company (“State Street”), and fifteen unidentified
fiduciaries.
all of whom were fiduciaries of the Old Waste Plan2 or of its

successor plan, the Waste Management Retirement Savings Plan (“New

Waste Plan”).3

     This      matter is     presently    before   the   Court    on    the   Waste

Management Defendants’4 Motion for Summary Judgment Based on the

Statute of Limitations (“WM Mot.”) [Dkt. No. 446], Defendants

Koenig and Tobecksen’s Motion for Summary Judgment (“Koenig Mot.”)

[Dkt.    No.   439],   and    Plaintiffs’      Cross   Motion    on    Statute   of

Limitations and Release and in Opposition to Defendants’ Motions

for Summary Judgment on These Defenses (“Pls.’ Mot.”) [Dkt. No.

471-1]. Upon consideration of the Motions, Oppositions, Replies,

and the entire record herein, the Court concludes that Defendants’

Motions for summary judgment are granted in part and denied in

part. Plaintiffs’ summary judgment Motion is denied.




     2
       From at least January 1, 1989, Old Waste also sponsored an
employee stock ownership plan (the “ESOP”). In May 1998, the ESOP
was merged into the Old Waste Plan, and its assets were held by the
Old Waste Plan in a fund called the “ESOP Fund.”
     3
       On January 16, 1998, Old Waste and Waste Services, Inc.,
merged to become New Waste. On January 1, 1999, the Old Waste Plan
merged with the USA Waste Services, Inc. Employee’s Savings Plan to
become the New Waste Plan.
     4
       The term “Waste Management Defendants” refers to Defendants
Old Waste, Old Waste Investment Committee, Old Waste Administrative
Committee, New Waste Plan, and New Waste Investment Committee.

                                         -2-
I. Background5

     This action arises from Old Waste’s announcement on February

24, 1998, that it had materially overstated its reported income by

approximately $1.3 billion prior to 1992 and continuing through the

first three quarters of 1997, and that it was therefore restating

several of its financial statements for periods between 1991 and

1997. That announcement led to the filing of a securities class

action in    the   United    States   District Court        for   the    Northern

District    of   Illinois,    which   settled      on     September     17,   1999

(“Illinois   Litigation”).6     Under       the   terms    of   the   settlement

(“Illinois Settlement”), Old Waste and its agents were released

from liability for any claims--including unknown claims--brought by

members of the Illinois Settlement Class in exchange for $220

million, of which the New Waste Plan recovered $86,609.76. In 1999,


     5
      Unless otherwise noted, the facts set forth herein are drawn
from the several Statements of Material Facts Not in Dispute
submitted pursuant to Local Rule 7(h).
     6
       On July 15, 1999, the Illinois district court entered a
Preliminary Approval Order approving a proposed settlement and
provisionally certifying a class, for settlement purposes only, of
all persons (other than Defendants and their affiliates) who had
acquired Old Waste common stock (“Company Stock”) between November
3, 1994, and February 24, 1998. See Fifth Amended Complaint (“FAC”)
¶ 138 [Dkt. No. 408]. Pursuant to the Preliminary Approval Order,
“a Notice of Pendency and Proposed Settlement of Class Action,
dated July 20, 1999 (the ‘Illinois Notice’), was sent to [all]
members of the [Illinois settlement class], including the Plan and
its fiduciaries.” Id. The Illinois Notice described the scope of
the release that would be given by members of the Illinois
settlement class in exchange for the settlement consideration, and
advised class members of their right to object to or opt out of the
proposed settlement by September 2, 1999. See id.

                                      -3-
New Waste announced further after-tax charges and adjustments of

$1.23 billion. That announcement led to the filing of additional

securities class action complaints against New Waste and certain of

its officers and directors in the Southern District of Texas, which

settled on April 29, 2002 (“Texas Litigation”). Both settlements

included the Plan and its fiduciaries within the scope of the

class.

     On   April    1,   2002, Plaintiffs      filed   suit   in   this    Court,

alleging ten      counts   of   ERISA    violations   pursuant    to     ERISA   §

502(a)(2), codified as 29 U.S.C. § 1132(a)(2).7 Plaintiffs’ claims

were originally divided into three periods. First, Plaintiffs

alleged five ERISA violations related to the Plan’s purchase of

inflated shares of Company Stock in the first claim period between

January 1, 1990, and February 24, 1998 (Counts I-V, the “First

Period Claims”). Second, Plaintiffs alleged four ERISA violations



     7
       After the filing of this case, Defendant Old Waste filed a
motion in the Illinois district court to enforce the Illinois
Settlement in order to prevent this action from moving forward. In
that motion, Defendant Old Waste argued that Plaintiffs were barred
from prosecuting any ERISA claims relating to or arising out of Old
Waste’s February 24, 1998, Restatement because (1) the Old Waste
Plan had released all claims relating to the Restatement on behalf
of itself and Plan participants; and (2) the Old Waste Plan and its
participants were barred by the Illinois Settlement from asserting
any released claims in this or any other action. See Ex. 11 to
Defendants’ Omnibus Motion to Dismiss the Third Amended Complaint
[Dkt. No. 186-13]. On March 11, 2003, Judge Wayne R. Andersen, who
presided over the Illinois Litigation, denied Defendant Old Waste’s
motion on the ground of judicial economy. In re Waste Mgmt., Inc.
Sec. Litig., No. 97-C-7709, 2003 WL 1463585, at *2 (N.D. Ill. Mar.
19, 2003).

                                        -4-
related to the release of claims by the Plan’s fiduciaries in the

Illinois Litigation in the second claim period between July 15,

1999, and December 1, 1999 (Counts VI-IX, the “Second Period

Claims”). Third, Plaintiffs alleged one ERISA violation related to

the release of claims by the New Waste Plan’s Trustee--Defendant

State Street8–-in the Texas Litigation in the third claim period

between February 7, 2002, and July 15, 2002 (Count X).

     On March 12, 2009, this Court dismissed Counts I-V as time-

barred under ERISA § 413 because Plaintiffs had “actual knowledge

of the breach or violation” more than three years before filing the

original Complaint. Harris v. Koenig, 602 F. Supp. 2d 39, 52

(D.D.C.   2009)   (“Harris   I”).   At    that   time   and   based   on   the

allegations contained in the Third Amended Complaint, the Court

also rejected Plaintiffs’ argument that the three-year limitation

period should be tolled under the statute’s fraudulent concealment

provision, finding that Defendants’ failure to disclose material

information did not constitute an act of concealment under ERISA.

Id. at 52-53.




     8
       On January 1, 1999, State Street was appointed Trustee of
the New Waste Plan. Effective February 1, 1999, the New Waste
Investment Committee appointed State Street to serve as the
Investment Manager for the New Waste Plan. See FAC ¶¶ 47, 50.
Pursuant to the terms of the Investment Manager Agreement between
State Street and the New Waste Investment Committee, State Street
had “full discretionary authority to manage” the New Waste Plan’s
assets and funds. Id. ¶ 50.

                                    -5-
     On December 14, 2009, Plaintiffs were granted leave to file a

Substitute Fourth Amended Complaint (“4th Am. Compl.”) [Dkt. No.

280]. Harris v. Koenig, 673 F. Supp. 2d 8, 14-15 (D.D.C. 2009)

(“Harris   II”).    In   their   Fourth     Amended    Complaint,    Plaintiffs

amended Counts I-V to include new allegations which would establish

fraudulent      concealment--namely,        that   certain    Old   Waste       Plan

fiduciaries “fraudulently misstated, or caused to be fraudulently

misstated, material financial information contained in disclosures

required   by    ERISA   and   the   1934    Act.”    4th   Am.   Compl.    ¶   79.

Plaintiffs also added Counts XIII and XIV, which alleged Defendant

State Street’s violation of ERISA § 406(b)(2) in the Illinois and

Texas Litigations.9

     On January 15, 2010, the following Motions to Dismiss were

filed by Defendants pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6): (1) the Waste Management Defendants’ Motion

to Dismiss Counts I-V and Counts VII-IX [Dkt. No. 294]; (2) the

Individual Waste Management Defendants’10 Motion to Dismiss Counts

I-V [Dkt. No. 291]; and (3) Defendant State Street’s Motion to

Dismiss Counts XIII and XIV [Dkt. No. 292]. On June 10, 2010, the


     9
       The Court denied Plaintiffs leave to add Counts XI and XII,
which alleged additional ERISA violations in the third claim
period, because of Plaintiffs’ undue delay in bringing these
claims. Harris II, 673 F. Supp. 2d at 13-14.
     10
        These Defendants included the individual members of Old
Waste’s Board of Directors, the Old Waste Investment Committee, the
Old Waste Administrative Committee, the New Waste Investment
Committee, and the executives who administered the Old Waste Plan.

                                      -6-
Court denied the Waste Management Defendants’ Motion to Dismiss

Counts I-V and VII-IX, and granted in part and denied in part the

Individual Waste Defendants’ Motion to Dismiss.11 Harris v. Koenig,

722 F. Supp. 2d 44, 64-65 (D.D.C. 2010) (“Harris III”). Defendant

State Street’s Motion to Dismiss was granted with respect to Counts

XIII and XIV. Id.

      On   November      12,    2010,    Plaintiffs   filed    a   Fifth   Amended

Complaint (“FAC”). In this Complaint, Plaintiffs withdrew Count X

on   the   basis    that       the   evidence   obtained      in   discovery     was

insufficient to prove the claim. The Fifth--and final--Amended

Complaint now includes the following claims.

      In the first claim period, January 1, 1990, to February 24,

1998, Count I alleges that the Old Waste Investment Committee and

any remaining Individual Defendants who are or were members of that

Committee breached their fiduciary duties under ERISA § 404 by

failing to prudently manage the assets of the Plan; Count II

alleges    that    the   Old     Waste   Administrative    Committee       and   any

remaining Individual Defendants who are or were members of that



     11
        Counts I-V were dismissed against Defendants H. Jesse
Arnelle, J. Steven Bergerson, Dean L. Buntrock, Jerry E. Dempsey,
Dr. James Edwards, Donald F. Flynn, Herbert A. Getz, Roderick M.
Hills, Joseph M. Holsten, Peter H. Huizenga, William P. Hulligan,
Edward C. Kalebich, John J. Machota, Robert S. Miller, Peer
Pedersen, James R. Peterson, John C. Pope, and Phillip B. Rooney.
In addition, Defendants the Honorable Howard H. Baker, Jr., Dr.
Pastora San Juan Cafferty, Thomas R. Frank, Patricia McCann, Paul
M. Montrone, D.P. Payne, and Steven G. Rothmeier were dismissed
from the action.

                                          -7-
Committee breached their fiduciary duties under ERISA § 404 by

failing to provide complete and accurate information to Plan

participants and beneficiaries; Count III alleges that Old Waste,

the Old Waste Administrative Committee, the Old Waste Investment

Committee, and any remaining Individual Defendants who are or were

members of those Committees engaged in prohibited exchanges of

stock between the Plan and Old Waste in violation of ERISA §

406(a)(1)(A);   Count   IV    alleges    that   Old   Waste,   its    Board of

Directors, and any remaining Individual Defendants on the Old Waste

Board breached their fiduciary duties under ERISA § 404 by failing

to monitor the fiduciaries of the Plan; and Count V alleges that

all Old Waste Fiduciaries breached their fiduciary duties under

ERISA § 405(a)(2) and (3) by enabling their co-fiduciaries to

commit the ERISA violations in Counts I-IV, and by failing to

remedy them.

     In the second claim period, July 15, 1999, to December 1,

1999, Count VI alleges that Defendant State Street breached its

fiduciary   duty   under     ERISA   §   404    by   failing   to    adequately

investigate and preserve the claims in Counts I-V in the Illinois

Litigation and by causing the claims to be released; Count VII

alleges that Old Waste and State Street engaged in prohibited

exchanges of choses in action between the New Waste Plan and Old

Waste in violation of ERISA § 406(a)(1)(A) by releasing claims in

the Illinois Litigation; Count VIII alleges that the New Waste


                                     -8-
Investment Committee and any remaining Individual Defendants who

are or were members of that Committee breached their fiduciary

duties under ERISA § 404 by failing to adequately monitor State

Street’s performance in the Illinois Litigation; and Count IX

alleges that State Street, Old Waste, the New Waste Investment

Committee, and any remaining Individual Defendants who are or were

members of that Committee breached their fiduciary duties under

ERISA § 405(a)(2) and (a)(3) by enabling their co-fiduciaries to

commit the ERISA violations described in Counts VI-VIII, and by

failing to remedy them.

     On March 30, 2011, the Waste Management Defendants filed their

pending Motion    for    Summary    Judgment      Based   on    the    Statute   of

Limitations,   and     Defendants   Koenig     and    Tobecksen       filed   their

pending Motion for Summary Judgment.12 On May 2, 2011, Plaintiffs

filed their    Cross    Motion   for    Summary      Judgment   on     Statute   of

Limitations and Release and in Opposition to Defendants’ Motions

for Summary Judgment on These Defenses.13 On June 8, 2011, the Waste


     12
        The Waste Management Defendants also join in Defendants
Koenig and Tobecksen’s Summary Judgment Motion on statute of
limitations, release, and several other defenses. Waste Management
Defendants’ Notice of Joinder in Co-Defendants’ Motions for Summary
Judgment [Dkt. No. 443].
     13
       On July 18, 2011, this Court granted Defendants Koenig and
Tobecksen’s Motion to exclude various expert declarations submitted
by Plaintiffs [Dkt. No. 544]. Accordingly, the following
declarations have been stricken from the record and will not be
considered by the Court: (1) the Declaration of Bente Villadsen in
Support of Plaintiffs’ Opposition to Motions for Summary Judgment
                                                     (continued...)

                                       -9-
Management Defendants filed their Reply in Support of Their Motion

for    Summary       Judgment   (“WM    Reply”)      [Dkt.     No.   511]   and    their

Opposition to Plaintiffs’ Cross-Motion for Summary Judgment (“WM

Opp’n”) [Dkt. No. 508]. Defendants Koenig and Tobecksen also filed

their Opposition to Plaintiffs’ Cross Motion for Summary Judgment

and Reply in Support of Their Motion for Summary Judgment on June

8,    2011       (“Koenig   Reply”)    [Dkt.   No.     509].    On   June    30,   2011,

Plaintiffs filed their Reply to Defendants Koenig and Tobecksen’s

Response in Opposition to Plaintiffs’ Cross Motion for Summary

Judgment on Release [Dkt. No. 532]. On August 15, 2011, Plaintiffs

filed a Reply to Oppositions of Defendants James E. Koenig and

Bruce       D.    Tobecksen     and    of    Waste   Management       Defendants      to

Plaintiffs’         Cross   Motion    for    Summary    Judgment      on    Statute   of

Limitations (“Pls.’ Reply on SoL”) [Dkt. No. 552].

II. Standard of Review

       Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c), as amended Dec. 1, 2007; Arrington v. United


       13
      (...continued)
and Plaintiffs’ Cross Motion for Summary Judgment, Apr. 29, 2011
[Dkt. No. 471-3]; (2) Declaration of Henry R. Jaenicke in Support
of Plaintiffs’ Supplemental Statement of Undisputed Material Facts,
Apr. 30, 2011 [Dkt. No 471-9]; (3) Affidavit of Alan D. Biller,
Apr. 27, 2011 [Dkt. No. 473]; and (4) Declaration of Saul Solomon
in Opposition to Summary Judgment, Apr. 26, 2011 [Dkt. No. 474].

                                            -10-
States, 473 F.3d 329, 333 (D.C. Cir. 2006). In other words, the

moving party must satisfy two requirements: first, that there is no

“genuine” factual dispute and, second, if there is, that it is

“material”   to    the   case.   “A   dispute   over   a   material     fact   is

‘genuine’ if ‘the evidence is such that a reasonable jury could

return a verdict for the non-moving party.’” Arrington, 473 F.3d at

333 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A fact is “material” if it might affect the outcome of the

case under the substantive governing law. Liberty Lobby, 477 U.S.

at 248.

     As the Supreme Court stated in Celotex Corp. v. Catrett, “the

plain   language    of   Rule    56(c)   mandates   the    entry   of   summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.” 477 U.S.

317, 322 (1986). The Supreme Court has further explained,

           [a]s we have emphasized, “[w]hen the moving
           party has carried its burden under Rule 56(c),
           its opponent must do more than simply show
           that there is some metaphysical doubt as to
           the material facts. . . . Where the record
           taken as a whole could not lead a rational
           trier of fact to find for the nonmoving party,
           there is no ‘genuine issue for trial.’”
           Matsushita Elec. Industrial Co. v. Zenith
           Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct.
           1348, 89 L.Ed.2d 538 . . . (1986) (footnote
           omitted). “‘[T]he mere existence of some
           alleged factual dispute between the parties
           will   not  defeat   an   otherwise   properly

                                      -11-
          supported motion for summary judgment; the
          requirement is that there be no genuine issue
          of material fact.’”

Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Liberty Lobby,

477 U.S. at 247-48) (emphasis in original).

     However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is

not . . . to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for

trial.” Liberty Lobby, 477 U.S. at 249. In both Liberty Lobby and

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150

(2000),   the   Supreme   Court     cautioned   that   “[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts, are jury functions, not those

of a judge” deciding a motion for summary judgment. Liberty Lobby,

477 U.S. at 255.

III. Analysis

     Defendants and Plaintiffs move for summary judgment on the

First Period Claims based on ERISA’s statute of limitations.

Defendants argue that the undisputed evidence demonstrates that

Plaintiffs’ First Period Claims are barred by ERISA’s three-year

limitations period, while Plaintiffs argue that the First Period

Claims are timely under ERISA’s six-year statute of limitations.14


     14
        Additionally, Defendants Koenig and Tobecksen move for
summary judgment on Counts I - III and V of the First Period Claims
                                                     (continued...)

                                  -12-
      A.   Fraud or Concealment Under Section 413

      These cross-motions are the latest in several rounds of

lengthy briefing regarding the timeliness of Plaintiffs’ First

Period Claims. Initially, in considering the Motions to Dismiss the

Third Amended Complaint, this Court found that Plaintiffs had

actual knowledge of potential ERISA claims as of February 24, 1998,

found that Plaintiffs filed the instant action more than three-

years after that date, on April 1, 2002, and therefore dismissed

Counts I-V. Harris I, 602 F. Supp. 2d at 51-52; Harris III, 722 F.

Supp. 2d at 54-55.

      Subsequently, the Court denied Defendants’ Motion to Dismiss

the same counts as re-alleged in the Fourth Amended Complaint on

the ground that Plaintiffs could receive the benefit of a six-year

statute of limitations if they could prove that Defendants had

fraudulently concealed the alleged ERISA violations. Harris III,

722 F. Supp. 2d at 59-60. In that Opinion, the Court held that

Plaintiffs had sufficiently alleged, for purposes of a Motion to

Dismiss, that the six-year statute of limitations should apply

because Defendants “engaged in active concealment, separate from

the   underlying   breaches   of   fiduciary   duty,   to   prevent   Plan


      14
      (...continued)
based on several substantive grounds, and all Defendants argue that
the First Period Claims are precluded by the Release signed in the
Illinois Litigation. Because the Court finds that all First Period
Claims are barred by the statute of limitations, neither the
substantive arguments nor the Release issue will be reached in this
Opinion.

                                   -13-
participants and beneficiaries from discovering ERISA claims” by

submitting inaccurate management representation letters (“MRLs”) to

Arthur Andersen.15 Id.

     The collective result of these decisions is that the Court has

already determined that ERISA’s three-year statute of limitations

bars Plaintiffs’ claims, unless Plaintiffs can demonstrate that

Defendants engaged in acts of fraudulent concealment, as now

alleged in the Fifth Amended Complaint. Harris I, 602 F. Supp. 2d

at 51-52; Harris III, 722 F. Supp. 2d at 54-55. Therefore, the only

question presently before the Court relating to the statute of

limitations   is    whether   or   not,    now   that    discovery   has   been

completed,    the    undisputed    material      facts     demonstrate     that

Defendants engaged in active concealment.16


     15
        The only relevant allegation that survived Defendants’
Motions to Dismiss is Plaintiffs’ claim that the MRLs constituted
acts of fraudulent concealment. Harris III, 722 F. Supp. 2d at 57-
59. Neither the 1998 Restatement nor any other filing or statement
made by Defendants is at issue at this time.
     16
       To the extent that Plaintiffs attempt to relitigate whether
they had actual knowledge of their ERISA claims on February 24,
1998, they have provided no grounds for the Court to reconsider its
decision, nor have they even attempted to present their arguments
under a proper legal standard for reconsideration. See Pls.’ Mot.
4-5. Hence, the Court will not revisit the issue.

     For the same reasons, the Court will not consider a new
argument Plaintiffs now raise that, even if Koenig and Tobecksen
did not engage in fraud or concealment, Count V is still timely as
to Old Waste. Pls.’ Mot. 37-38. Plaintiffs contend that “[w]hen the
Court ruled that Plaintiffs had actual knowledge of the fiduciary
breach claims alleged in Counts One through Five, it did not
address whether Plaintiffs’ claims in Count Five that were brought
                                                     (continued...)

                                    -14-
     Under ERISA, the limitations period for breach of fiduciary

duties claims is governed by Section 413, which provides:

          No action may be commenced under this
          subchapter with respect to a fiduciary’s
          breach of any responsibility, duty, or
          obligation under this part or with respect to
          a violation, after the earlier of:

               (1) six years after (A) the date of the
               last action which constituted a part of
               the breach or violation, or (B) in the
               case of an omission the latest date on
               which the fiduciary could have cured the
               breach or violation, or

               (2) three years after the earliest date
               on which the plaintiff had actual
               knowledge of the breach or violation;

          except that in the          case of fraud or
          concealment such action     may be commenced not
          later than six years         after the date of
          discovery of such breach    or violation.


     16
      (...continued)
under ERISA § 405(a)(3) were subject to a different accrual date
than Counts One through Four.” Id. at 37. Plaintiffs argue that
Count V is timely because Old Waste is liable as a co-fiduciary for
failing to take reasonable steps to remedy Koenig and Tobecksen’s
fiduciary breaches. Plaintiffs further contend that their claim
against Old Waste did not accrue until the three years during which
Old Waste could have sued Koenig and Tobecksen elapsed, on February
23, 2011. Id. at 37-38.

     Since this argument was not made earlier, and Plaintiffs have
not addressed the issue of Count V’s timeliness under Federal Rule
of Civil Procedure 59 or raised any other legal justification for
reconsideration, the Court will not reopen the issue of ERISA’s
three-year statute of limitations. See, e.g., Fox v. Am. Airlines,
Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004) (affirming denial of
motion for reconsideration where moving party’s argument could have
been raised earlier); Estate of Gaither ex rel. Gaither v. District
of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (a motion for
reconsideration raising arguments “that should have been raised
earlier” was not “a bona fide motion for reconsideration.”).

                               -15-
29 U.S.C. § 1113. Section “413's fraud or concealment provision

sets forth a separate six-year statute of limitations” which

applies when a plaintiff demonstrates that a defendant actively

concealed evidence of its wrongdoing. Harris III, 722 F. Supp. 2d

at 57; Larson v. Northrop Corp., Civ. No. 88-899, 1992 WL 249790,

at *3 (D.D.C. March 30, 1992) (“Larson I”), aff’d on other grounds,

21 F.3d 1164 (D.C. Cir. 1994) (“Larson II”).

     In order to successfully invoke the six-year statute of

limitations, Plaintiffs bear the burden of proving “fraud or

concealment” under      29 U.S.C. § 1113. Larson II, 21 F.3d at 1172-

73; Folz v. U.S. News and World Report, Inc., 663 F. Supp. 1494,

1537 (D.D.C. 1987), aff’d 865 F.2d 364 (D.C. Cir. 1989), cert.

denied, 490 U.S. 1108 (1989); see also Abate v. District of

Columbia, 659 F. Supp. 2d 156, 160 (D.D.C. 2009) (“On summary

judgment, if the defendant has raised a statute of limitations

defense, the plaintiff must show that a genuine issue of fact

exists as to whether the discovery rule or equitable tolling

applies.”).

     As   our   Court   of   Appeals   has   explained,   “the   fraudulent

concealment doctrine of § 1113 requires that the defendant engage

in active concealment--it must undertake some trick or contrivance

to exclude suspicion and prevent inquiry.” Larson II, 21 F.3d at

1174 (emphasis in original) (internal quotations omitted). Since

the defendant must have engaged in active concealment, a plaintiff


                                   -16-
must also show that the defendant engaged in the concealment

intentionally and, of course, knowingly. Id. Further, “[s]uch

concealment must rise to something more than merely a failure to

disclose.” Id. (internal quotation omitted). Thus, plaintiffs must

“‘show (1) that defendants engaged in a course of conduct designed

to conceal evidence of their alleged wrong-doing and that (2) [the

plaintiffs] were not on actual or constructive notice of that

evidence, despite (3) their exercise of due diligence.’” Larson II,

21 F.3d at 1172 (quoting Folz, 663 F. Supp. at 1537).

     Plaintiffs argue that there is evidence demonstrating that

Defendants Koenig and Tobecksen purposefully misled Arthur Andersen

by submitting fraudulent MRLs. Under Section 103(a) of ERISA, plan

administrators   are   required   to   file   annual    reports    with   the

Department of Labor (“DoL”). 29 U.S.C. § 1023(a). In connection

with each annual report, plan administrators must also submit an

opinion   from   an    independent       qualified     public     accountant

(“independent accountant” or “independent auditor”) as to “whether

the financial statements and schedules required to be included in

the annual reports . . . are presented fairly in conformity with

generally accepted accounting principles [“GAAP”] . . . .” Id. §

1023(a)(3)(A). In connection with submitting these opinions, the

auditor is required to obtain MRLs from plan management.

     The following facts are undisputed. During the First Claim

Period, January 1, 1990, to February 24, 1998, Arthur Andersen


                                  -17-
served as the auditor of Old Waste’s financial statements as well

as the independent qualified accountant for the Plan. During the

preparation of its opinions on the Plan’s financial statements for

fiscal     years   1990-1996,   Arthur     Andersen   received    MRLs   from

Defendants Koenig and Tobecksen.17

      Plaintiffs claim that Defendants, acting in their roles as

Plan fiduciaries, concealed the accounting irregularities at Old

Waste and their failure to fairly value the Old Waste stock by

making false representations on each MRL for fiscal years 1990-

1996. FAC ¶¶ 88, 92-93. As a result of receiving these inaccurate

MRLs, Arthur Andersen submitted unqualified opinions on the Plan’s

financial statements to DoL. Id. ¶ 97. According to Plaintiffs,

Koenig and Tobecksen submitted these misrepresentations to Arthur

Andersen in order to prevent DoL, and ultimately the Plaintiffs,

from becoming aware of the underlying ERISA violations. Id. ¶¶ 90-

97.

      Defendants    argue   that    Plaintiffs    have   failed   to   adduce

evidence that Defendants engaged in a course of conduct designed to

conceal     evidence   of   their    alleged     wrong-doing   because    (1)

Plaintiffs have no evidence that Koenig or Tobecksen were aware of

Old Waste’s accounting errors before 1994, and (2) the evidence

demonstrates that Arthur Andersen was generally aware of the


      17
       Defendant Koenig signed the MRLs for fiscal years 1991-1993
and 1996 and Defendant Tobecksen signed the MRLs for fiscal years
1994-1995.

                                    -18-
accounting problems at Old Waste as early as 1993.18 In substance,

Defendants contend that Koenig and Tobecksen did not conceal

anything from Arthur Andersen because there was no time at which

they had knowledge of the accounting irregularities at Old Waste

and Arthur Andersen did not. Defendants further argue that, even if

Plaintiffs could make the necessary showing of knowledge, they have

provided no evidence that Defendants intended to use the MRLs to

conceal underlying ERISA violations. For the reasons given below,

the Court concludes that Plaintiffs have failed to set forth

material facts sufficient to find that Koenig and/or Tobecksen

engaged in specific acts of fraud or concealment.

               1.   Koenig and/or Tobecksen’s Knowledge

     Defendants argue that “Plaintiffs effectively have abandoned

any claim of active concealment during the 1990 through 1993 time

period” because they have put forth no “evidence that defendants

Koenig    or    Tobecksen   even   had   knowledge   about   the   Company’s

accounting errors before ‘the end of 1993.’” WM Mot. 15 (citing

Waste Management’s Statement of Facts ¶ 22 (“WM SOF”) [Dkt. No.

446-2]). Defendants contend that without any evidence of knowledge

during the 1990-1993 time period, Plaintiffs cannot show that

Koenig or Tobecksen made any misrepresentation before June 24,


     18
       The parties also engage in extensive argument over whether
the statements in the MRLs were themselves inaccurate. That issue,
which is definitely in dispute, need not be addressed because the
Court finds on other grounds that Plaintiffs have failed in their
burden to demonstrate fraudulent concealment.

                                     -19-
1994, the date Koenig submitted the first MRL after the end of

1993.

     Plaintiffs offer two responses. First, Plaintiffs argue that

“Koenig knew of the accounting errors at least as early as 1992.”

Pls.’ Mot. 30. Second, Plaintiffs argue that “the fact is that

those accounting errors were cumulative” so that “[c]oncealment of

the errors in 1993 necessarily involves concealment of the errors

from the preceding years.”19 Id. Regardless of the merit of this

“cumulative” theory, the sole piece of evidence Plaintiffs point to

for their contention that Defendants knew of accounting errors

prior to the end of 1993 is the completed jury verdict form from

SEC v. Koenig, No. 02C2180 (N.D. Ill. filed Mar. 26, 2002), which

indicates that the jury found Koenig guilty of violating Section

10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 in

1992. Pls.’ Mot. 30; Pls.’ Statement of Facts ¶¶ 144-48 (“Pls.’

SOF”) [Dkt. No. 435-2]; Veis Decl., Ex. 61 [Dkt. No. 437-34].

     As Defendants correctly point out, “the jury’s findings in SEC

v. Koenig are not evidence.” WM Reply 10. Further, Plaintiffs have

made no effort to even argue that collateral estoppel should apply.

And for good reason--fraudulent concealment under ERISA was neither

litigated nor adjudicated in that action. See Biton v. Palestinian


     19
       Plaintiffs also state that “Old Waste has admitted that the
errors go back at least as far as 1990.” Pls.’ Mot 30. Of course,
what Old Waste has admitted is simply irrelevant--the only relevant
inquiry here is what Koenig and Tobecksen knew when they signed the
MRLs.

                               -20-
Interim Self-Government Auth., 412 F. Supp. 2d 1, 4-5 (D.D.C. 2005)

(collateral estoppel applies only when: “(i) the issue previously

adjudicated is identical with that now present, (ii) that issue was

actually    litigated    in   the   prior    case,    (iii)        the    previous

determination of that issue was necessary to the end-decision then

made, and (iv) the party precluded was fully represented in the

prior action.”) (citing Thomas v. General Servs. Admin., 794 F.2d

661, 664 (Fed. Cir. 1986)).

     Moreover, Defendants emphasize that Plaintiffs’ own expert,

Henry R. Jaenicke, testified during discovery that Koenig and

Tobecksen knew about Old Waste’s accounting errors “at least as

early as the end of 1993” or “by at least 1994.” WM SOF ¶ 22; Pls.’

Counterstatement    to    Waste     Management     Defendants’           State   of

Undisputed Facts ¶ 22 (“Pls.’ WM CSOF”) [Dkt. No. 540]; Expert

Report of Henry R. Jaenicke 4, Nov. 23, 2010 (“Jaenicke Report”),

Pls.’ Mot., Ex. 1 [Dkt. No. 471-10]. In short, Plaintiffs have

pointed to no evidence suggesting that Koenig or Tobecksen had the

requisite    knowledge   to   engage    in   the     type     of     concealment

contemplated by Section 413 of ERISA prior to the end of 1993.

            2.   Arthur Andersen’s Knowledge

     The crux of Plaintiffs’ concealment theory is that Koenig and

Tobecksen used the MRLs to mislead Arthur Andersen and thereby dupe

the firm into submitting unqualified opinions, which, in turn, kept

Plaintiffs in the dark. Defendants argue that this theory is simply


                                    -21-
not plausible after 1993 because the “undisputed facts establish

that [as early as 1993] Andersen had knowledge of the accounting

issues that ultimately led to the February 1998 Restatement.” WM

Mot.        14;   Koenig    Reply   6.   Indeed,    Plaintiffs’      own   expert

“affirmatively asserted in his report that Andersen personnel knew

about the accounting errors at issue at least as early as the end

of 1993” and even that “Andersen was the source of the Action Steps

that        Jaenicke     contends   informed     Koenig   of   the    accounting

irregularities.” WM Reply 6 (emphasis in original); WM SOF ¶ 12.20

       In response, Plaintiffs argue that “although many of the

generic ‘issues’ were identified in the Summary of Action Steps, at

least       two   were     not,   ‘Mountain     Indemnity,’    and   ‘Geographic

Entries.’” Pls.’ Mot. 28. Plaintiffs further parse the information

included in the Action Steps by explaining that “awareness of

‘accounting issues’ is not the same as awareness of ‘accounting

errors.’” Pls.’ Reply on SoL 15. And finally, “the magnitude of the

ultimate restatement was far greater than the amounts Andersen had

been aware of at the time it proposed the Action Steps. Pls.’ Mot.



       20
        The “Action Steps” reference is to a document titled
“Summary of Action Steps,” dated December 31, 1993, generated by
Arthur Andersen in the course of its 1993 audit of Waste
Management’s financial statements. WM Mot., Ex. 12 [Dkt. No. 446-
15]. The document explains that “[i]mplementing the following
action steps will ensure WMX begins to move towards its desired
change in mindset resulting in more conservative accounting
practices.” Id. It then identifies thirteen specific issues of
concern, with corresponding columns for “Must Do,” “Reasonable,”
and “Conservative.” Id.

                                         -22-
28. Put simply, Plaintiffs contend that while Arthur Andersen may

well have been aware of accounting improprieties occurring at Old

Waste as early as 1993, the firm was not aware of all of the

errors, nor of their magnitude.21

     Although the precise extent to which Arthur Andersen was aware

of Old Waste’s accounting irregularities remains in dispute, it is

immaterial. As Defendants note, Plaintiffs’ theory of concealment

is not that “Old Waste Plan’s MRLs misrepresented the extent of Old

Waste’s accounting irregularities,” WM Reply 7, but rather that

“[i]t was critical to the Defendants’ success in concealing the


     21
       Plaintiffs also argue that “[t]he unwritten and unsupported
premise of [Defendants’] argument is that the Old Waste (company)
auditors would have informed the Old Waste Plan auditors of the
accounting problems at the company level.” Pls.’ Mot. 27. That is,
Plaintiffs argue that Defendants have not shown that the Plan
Auditors, as opposed to the Old Waste corporate Auditors, at Arthur
Andersen were aware of the Action Steps.

     But, Plaintiffs, who bear the burden of proving their
fraudulent concealment theory, have offered no direct evidence to
support their theory that the Old Waste corporate audit team
withheld information relevant to the Plan’s audit from the Plan’s
auditors. By contrast, the record contains undisputed evidence
supporting Defendants’ “premise” that Plan Auditors would have been
aware of Old Waste’s accounting errors. See Export Report of
Marilee Lau, Dec. 22, 2010, WM Mot., Ex. 10 [Dkt. No. 446-13]
(where an audit company has different teams auditing the financial
statements of a company and its employee retirement plan “there is
communication between the teams as to any factors encountered
during the corporate audit that would impact the opinion to be
rendered on the benefit plan’s financial statements or on the
disclosures included in the benefit plan’s financial statements.”).
Again, Plaintiffs’ own expert testified, “if the auditor of a plan
is also the auditor of the entity sponsoring the plan, many of the
auditing procedures required for the audit of a plan will be
performed as part of the audit of the sponsor’s financial
statements.” Jaenicke Dep., 80:9-19, Jan. 31, 2011 [Dkt No. 512-1].

                               -23-
underlying accounting irregularities in the Company’s financial

statements that the Plan’s financial statements also conceal the

accounting irregularities and fraud.” FAC ¶ 90. Indeed, there is

nothing about the MRLs that suggests Defendants sought to conceal

the magnitude of the accounting errors from Arthur Andersen.

     Further, Plaintiffs’ own expert debunked the theory that it

was Arthur Andersen’s ignorance of the extent of the irregularities

that produced unqualified opinions:

          I simply do not understand how [Arthur]
          Andersen could have written that [February 11,
          1994, memo] without issuing a qualified or
          adverse opinion on [Old Waste’s] financial
          statements. The [memo] indicates that [Old
          Waste] was not at the “minimum acceptable
          level of accounting,” but that is the level
          necessary   to   justify   Arthur   Andersen’s
          rendering of a standard, unqualified opinion .
          . . on the Company’s financial statements.

Jaenicke Dep., 80:15-20, Jan. 31, 2011 [Dkt. No. 512-1]. At best,

Plaintiffs have presented evidence that Arthur Andersen should

never have issued its unqualified opinions.22 They have not offered


     22
       In response to Defendants’ claim that there is no evidence
suggesting that Arthur Andersen relied on the Plan MRLs, Plaintiffs
argue that “if Arthur Andersen knew of [the MRLs’] falsity and,
notwithstanding that knowledge, issued unqualified opinions on the
Plan’s financial statements, there would still be a trick or
contrivance--active concealment, but Arthur Andersen would be a
facilitator instead of a dupe.” Pls.’ Reply on SoL 17. This purely
speculative argument does not constitute evidence and cannot rebut
the undisputed facts offered by Defendants. Kalekiristos v. CTF
Hotel Mgmt. Corp., 958 F. Supp. 641, 645 (D.D.C. 1997) (“‘[E]ven in
cases where elusive concepts such as motive or intent are at issue,
summary judgment may be appropriate if the nonmoving party rests
merely upon conclusory allegations, improbable inferences, and
                                                     (continued...)

                               -24-
any evidence that Arthur Andersen was unaware of the auditing

irregularities    and   therefore   was   misled   into   issuing   the

unqualified opinions. Quite to the contrary, the Action Steps sent

by Arthur Andersen demonstrate the firm’s detailed knowledge of Old

Waste’s accounting problems. In sum, Plaintiffs have not shown that

Arthur Andersen was ever misled by an MRL sent by Koenig or

Tobecksen.

          3.     Koenig and/or Tobecksen’s Intent

     Defendants alternatively argue that, even if Plaintiffs could

prove that Arthur Andersen had been misled by Koenig or Tobecksen,

they cannot prove that either Koenig or Tobecksen acted with intent

to fraudulently conceal. WM Mot. 12-15; WM Reply 8-12. Plaintiffs

respond first that “reckless disregard for the truth” satisfies the

fraud or concealment exception and second that, at least in the

case of Koenig, the jury findings in SEC v. Koenig, No. 02C2180

(N.D. Ill. filed Mar. 26, 2002), provide sufficient evidence of

intent. Pls.’ Mot. 31-33; Pls.’ Reply on SoL 19-21.

     Plaintiffs’ first argument is easily disposed of. Once again,

Larson II, as the controlling law in this Circuit, provides the

answer and clearly states that in order to demonstrate fraudulent

concealment, Plaintiffs must show “that [D]efendants engaged in a

course of conduct designed to conceal evidence of their alleged


     22
      (...continued)
unsupported speculation.’” (quoting Ayala-Gerena v. Bristol Myers-
Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996)).

                                -25-
wrong-doing” and that “[t]here must be actual concealment--i.e.,

some trick or contrivance intended to exclude suspicion and prevent

inquiry.” Larson II, 21 F.3d at 1172-73 (emphasis added) (internal

quotations omitted). Plaintiffs’ citations to cases discussing

types of fraud other than fraudulent concealment or to cases

outside of this Circuit are irrelevant in light of controlling

precedent.23 See Pls.’ Mot. 31-33. Plaintiffs must, therefore,

provide some evidence that Defendants intended to fraudulently

conceal the alleged wrongdoing in order to escape summary judgment

for Defendants. Celotex Corp., 477 U.S. at 322.

     The only “evidence” offered by Plaintiffs regarding intent

comes from the findings in SEC v. Koenig. Pls.’ Mot. 31; Pls.’

Reply     on   SoL   21.   As   discussed   above,   findings   in   SEC   v.

Koenig simply are not evidence, nor have Plaintiffs attempted to

argue for collateral estoppel. See Biton, 412 F. Supp. 2d at 4-5.

If anything, Plaintiffs’ argument is less convincing on the issue

of intent than knowledge, since whatever the jury or court in SEC

v. Koenig may have found regarding Koenig’s knowledge of certain

securities law violations, they certainly did not address whether




     23
        Plaintiffs’ citation to Caputo v. Pfizer, Inc., 267 F.3d
181, 191 (2d Cir. 2001), is particularly unconvincing since it is
unclear whether that court’s reference in that opinion to “reckless
disregard for the truth” was intended to describe an element of the
fraud or concealment exception or merely the pleading standard for
fraud under Fed. R. Civ. P. 9(b).

                                     -26-
Koenig intended to fraudulently conceal ERISA violations using the

MRLs.

      Accordingly, the Court concludes that Plaintiffs have failed

to   present   evidence   that   at   any   time   Koenig   or   Tobecksen

intentionally engaged in a course of conduct designed to conceal

evidence of their alleged wrong-doing. Larson II, 21 F.3 at 1172;

see also Maydak, et al. v. United States, et al., 630 F.3d 166, 181

(D.C. Cir. 2010) (arguments that defendants “must have known” and

that “intent could be inferred” were insufficient to show intent or

willfulness and fell “far short of what is required by Rule 56 to

defeat a motion for summary judgment.”) (emphasis in original).24

In sum, Plaintiffs have not shown that the MRLs were a fraudulent

device intended to forestall suspicion or prevent inquiry. Larson

II, 21 F.3d at 1174.

      Because Plaintiffs have failed to point to any evidence that

Arthur Andersen was ever misled by an MRL sent by Koenig or

Tobecksen or that Koenig or Tobecksen intended to conceal alleged

ERISA violations, Defendants’ Motions for Summary Judgment as to

Counts I-V are granted.




     24
        Maydak was decided under the Privacy Act, 5 U.S.C.
§ 552(a)(g)(1). 630 F.3d at 181. However, the principle it
establishes is applicable to this case.

                                  -27-
     B.     Second Period Claims

     Defendants also argue that “[b]ecause the First Period Claims

are time-barred, Plaintiffs have no basis for claiming that the

Plan’s release of those claims caused them to suffer any harm.” WM

Mot. 4. Defendants point out that all of the Second Period Claims

stem from the allegedly improper signing of the Release. Id. at 20.

Defendants reason that if this Court denies Plaintiffs’ First

Period Claims for any reason other than the Release, such as on the

basis of the statute of limitations, then the Release will have

done the Plaintiffs no harm, and all Second Period Claims can be

dismissed. Id. at 20.

     Defendants’ logic is unconvincing. First, Plaintiffs’ Second

Period claims do not merely allege that by signing the Release

State Street prevented Plaintiffs from bringing this lawsuit.

Rather, Plaintiffs allege that State Street breached its fiduciary

duty under ERISA § 404 by failing to adequately investigate and

preserve ERISA claims against the Illinois defendants. Plaintiffs

further allege that, by signing the Release, Old Waste and State

Street engaged in prohibited exchanges of choses in action between

the New Waste Plan and Old Waste, and that Defendants should have

monitored     State   Street’s   performance     during    the       Illinois

Litigation.    Plaintiffs   allege    that   Defendants   had    a   duty   to

investigate and protect their ERISA claims. Defendants provide no

authority for the theory that Plaintiffs’ failure to bring those


                                     -28-
ERISA   claims   in   a   timely   fashion   prevents   them   from   suing

Defendants for their own failure to properly investigate and

preserve them. Therefore, Defendants’ Motion for Summary Judgment

as to the Second Period Claims on the statute of limitations is

denied.




                                    /s/
October 3, 2011                    Gladys Kessler
                                   United States District Judge



Copies via ECF to all counsel of record




                                    -29-
