                    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” or “the Company”)1 and participants in

the Waste Management Profit Sharing and Savings Plan (“Old Waste

Plan” or “Plan”).         They bring this action under the Employee

Retirement   Income      Security   Act   of   1974   (“ERISA”),   29   U.S.C.

§§ 1001, et seq., on behalf of the approximately 30,000 Plan

participants seeking to recoup losses suffered by the Plan related

to the purchase of Old Waste common stock (“Company Stock”) between

January 1, 1990 and July 15, 2002 at prices “artificially inflated”

by   material    undisclosed     information    about   Old   Waste’s    “true

financial condition.”        Third Am. Compl. ¶ 1.         Plaintiffs allege

three separate claims periods –- (1) January 1, 1990 through



      1
       “At all relevant times, Old Waste operated in the District
of Columbia and provided, through its subsidiaries, integrated
solid waste and hazardous waste management services, energy
recovery services, and environmental technologies, engineering and
consulting services.” Third Am. Compl. ¶ 20.
February 24, 1998 (“First Claim Period”); (2) July 15, 1999 through

December 1, 1999 (“Second Claim Period”); and (3) February 7, 2002

through July 15, 2002 (“Third Claim Period”) -- and separate ERISA

violations during each of those periods.       Id.

      Defendants are the “Old Waste Fiduciaries,” which include Old

Waste (the Plan’s sponsor); the Old Waste executives who allegedly

administered the Old Waste Plan, including the Waste Management,

Inc. Profit Sharing and Savings Plan Investment Committee (“Old

Waste Investment Committee”); the individual Trustee Members of the

Old Waste Investment Committee;2 the Waste Management, Inc. Profit

Sharing and Savings Plan Administrative Committee (“Old Waste

Administrative Committee”); the individual Trustee Members of the

Old   Waste   Administrative   Committee;3   the   Old   Waste   Board   of




      2
       The individual Trustee Members of the Old Waste Investment
Committee include James E. Koenig, Herbert A. Getz, Bruce D.
Tobecksen, Joseph M. Holsten, Edward C. Kalebich, Thomas R. Frank,
and Peter H. Huizenga.
      3
        The individual Trustee Members of the Old Waste
Administrative Committee include J. Steven Bergerson, William P.
Hulligan, John J. Machota, and D.P. Payne.

                                   2
Directors;      the     individual     Members   of   the   Old   Waste    Board   of

Directors;4 and DOES 1-15.5

     Defendants are also the “New Waste Fiduciaries,” which include

the Waste Management Retirement Savings Plan (“New Waste Plan”);

and the New Waste executives who allegedly administered the New

Waste       Plan,    including   the    Investment    Committee    of     the   Waste

Management          Retirement   Savings       Plan   (“New   Waste       Investment

Committee”); the individual Trustee Members of the New Waste

Investment Committee;6 the State Street Bank and Trust Company

(“State Street”); and DOES 16-30.7

     This matter is before the Court on Defendants’ Omnibus Motion

to Dismiss the Third Amended Complaint [#186] (“Defs.’ Omnibus

Mot.”) and State Street Bank and Trust Company’s Motion to Dismiss




        4
       The individual Members of the Old Waste Board of Directors
include Dean L. Buntrock, Phillip B. Rooney, Robert S. Miller, John
C. Pope, James R. Peterson, H. Jesse Arnelle, James Edwards, Donald
F. Flynn, Roderick M. Hills, Steven G. Rothmeier, Alexander B.
Trowbridge, Peer Pederson, Jerry E. Dempsey, Howard H. Baker, Jr.,
Dr. Pastora San Juan Cafferty, and Paul M. Montrone.
     5
       DOES 1-15 are fiduciaries of the Old Waste Plan whose exact
identities will, according to Plaintiffs, be ascertained through
discovery.
        6
       The individual Trustee Members of the New Waste Investment
Committee include Patricia McCann, Susan J. Piller, Ron Jones, Bob
Simpson, and Don Chappel.
        7
      DOES 16-30 are fiduciaries of the New Waste Plan whose exact
identities will, according to Plaintiffs, be ascertained through
discovery.

                                           3
the Third Amended Complaint [#183] (“State Street’s Mot.”).8                   Upon

consideration of the Motions, Oppositions, Replies, and the entire

record herein, and for the reasons stated below, Defendants’

Omnibus Motion to Dismiss is granted in part and denied in part and

State Street’s Motion to Dismiss is denied.

I.    BACKGROUND9

      A.    Factual History

      The Old Waste Plan is an “individual account” or “defined

contribution” employee pension plan.                See Defs.’ Ex. 22 (1999

Summary Plan Description) at 25.              An individual account or defined

contribution    plan    is   “one   where       employees    and   employers   may

contribute to the plan, and the employer’s contribution is fixed

and the employee receives whatever level of benefits the amount

contributed on his behalf will provide.”               Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 439 (1999) (internal quotations omitted).

See   29   U.S.C.   §   1002(34)    (an       individual    account   or   defined

contribution plan “provides for an individual account for each




      8
           State Street joined in the Omnibus Motion, in part, and
filed its own separate Motion presenting additional grounds for
dismissal.
      9
       For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed true and liberally
construed in favor of the plaintiff. Shear v. Nat’l Rifle Ass’n of
Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979).     Therefore, the facts
set forth herein are taken from Plaintiffs’ Third Amended Complaint
or from the undisputed facts presented in the parties’ briefs.

                                          4
participant     and    for   benefits     based    solely     upon    the   amount

contributed to the participant’s account”).

     Old Waste Plan participants may invest in any of the Plan’s

ten investment options, including the Waste Management Inc., Stock

Fund which is invested primarily in Company Stock (“Stock Fund”) as

well as cash.    See Defs.’ Omnibus Mot., Ex. 22 (1999 Summary Plan

Description at 3, 11).        See Third Am. Compl. ¶ 40.

     On January 16, 1998, Old Waste and Waste Services, Inc.,

merged to become New Waste.        On January 1, 1999, the Old Waste Plan

was merged with the USA Waste Services, Inc. Employee’s Savings

Plan to become the Waste Management Retirement Savings Plan (“New

Waste Plan”).     On the same date, State Street was appointed to

serve as the 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 Company Stock assets.                        See

Third   Am.   Compl.   ¶¶    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 Company Stock assets.”               Id. ¶ 50.

     The State Street appointments were made after the July 24,

1998 filing of the Complaint in the Illinois Securities Litigation,

discussed infra.




                                         5
           1.   The Illinois Securities Litigation

     On October 10, 1997, Old Waste announced in a press release

that the prior reports of its earnings from continuing operations

for the third quarter of 1996 were overstated.         See id. ¶ 88.         It

also cautioned “that earnings for the third quarter of 1997 were

expected to be below analysts’ expectations and that [Old Waste’s]

fourth Quarter 1997 results might be reduced by a charge to income

that could be material to its results of operations for the year.”

See id.

     By   December   18,   1997,   various   purchasers      of   Old    Waste

securities had filed fourteen securities fraud class actions in the

United States District Court for the Northern District of Illinois

(“Illinois district court”) alleging, in relevant part, that Old

Waste, certain of its officers and directors and its auditor,

Arthur Andersen, LLP, had violated Section 10(b) of the Securities

Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities and

Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5.            See In re

Waste Mgmt., Inc. Sec. Litig., CA 97-7709 (N.D. Ill.) (“Illinois

Securities Litigation”).

     On   February   24,   1998,   Old   Waste   announced    that      it   was

restating its financial statements for 1991 and prior periods,

including the periods 1992 through 1996, and the first three

quarters of 1997 (“Restatement”).        It also admitted that prior to

1992 and continuing through the first three quarters of 1997, it


                                    6
had materially overstated its reported income by $1.43 billion.

See Third Am. Compl. ¶ 89.

      On   July   24,    1998,     the   Illinois    Securities    Litigation

plaintiffs filed a consolidated amended complaint claiming that the

Old   Waste   Fiduciaries      “had   engaged   in   potential    breaches   of

fiduciary obligations with respect to the Old Waste Plan by causing

it to acquire shares of Old Waste Stock between January 1, 1990

[and] February 24, 1998, when they knew that such stock was not a

prudent Plan investment because its price exceeded fair market

value.”    Id. ¶ 110.

      As already noted, on January 1, 1999, State Street Bank was

appointed Trustee of the New Waste Plan, after its merger with the

Old Waste Plan, and on February 1, 1999, State Street was appointed

Investment Manager for Company Stock assets.

      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 Company Stock between November 3, 1994 and February 24,

1998.   See id. ¶ 111.        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


                                         7
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.

      On September 17, 1999, the Illinois district court entered a

Final Judgment and Order of Dismissal endorsing the proposed

settlement (“Illinois Securities Settlement”).              See id. ¶ 116.

           2.     The Texas Securities Litigation

      On July 6, 1999, New Waste “issued a press release reporting

a $250 million projected revenue shortfall for the second quarter

of 1999 and sharply lower earnings.”             Id. ¶ 102.      On November 9,

1999, after a subsequent review of its books and records, New Waste

announced after-tax charges and adjustments of $1.23 billion.                See

id. ¶ 105.

      On July 7, 1999, the first of over thirty securities class

action complaints was filed against New Waste and certain of its

officers and directors in In re Waste Mgmt., Inc. Sec. Litig., H-

99-2183 (S.D. Texas), in the United States District Court for the

Southern   District    of   Texas    (“Texas     district     court”)   (“Texas

Securities Litigation”).       See id. ¶ 125.      According to Plaintiffs,

the complaint placed State Street on notice that “senior management

of New Waste had engaged in alleged securities violations in

connection with the [July 1998] Merger as a result of public

representations    they     made    regarding     New   Waste’s     competitive


                                       8
position,    its   cash   flow   from       operations   and   the   successful

integration of Old Waste and USA Waste.”              Id. ¶ 125.

      On July 14, 2000, the plaintiffs in the Texas Securities

Litigation filed their amended consolidated class action complaint.

According to Plaintiffs, that filing placed State Street on notice

that former Old Waste fiduciaries had engaged in potential breaches

of fiduciary duties with respect to the Old Waste Plan including

“concealing from other Old Waste Plan Committees and participants

the fact that Old Waste had not done adequate due diligence of the

proposed corporate Merger, [had] not conduct[ed] a prudency review

of   the   proposed   Merger    themselves,     and    caus[ed]    the   Plan   to

acquiesce in the Merger, which was not in the best interest[s] of

the Plan and its participants.”         Id. ¶ 127.

      On February 7, 2002, the Texas 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 Company Stock between June 11, 1998 and November 9, 1999.

See id. ¶ 128.        Pursuant to the Preliminary Approval Order, “a

Notice of Proposed Class Action Settlement (the ‘Texas Notice’) was

sent to members of the [Texas settlement class], including the Plan

and its fiduciaries[.]”        Id.   The Texas Notice described the scope

of the release that would be given by members of the Texas

settlement class in exchange for the settlement consideration,


                                        9
advised class members of their right to object to or opt out of the

proposed settlement by April 19, 2002.            It also required a class

member to submit a Proof of Claim and Release on or before July 15,

2002 in order for a class member to participate in the settlement.

See id.

      On April 29, 2002, the Texas district court entered a Final

Judgment     and   Order   endorsing   the   proposed   settlement    (“Texas

Securities Settlement”).       On July 15, 2002, State Street submitted

a Proof of Claim and Release on behalf of the Plan.           See id. ¶ 140.

      B.     The ERISA Litigation in the District of Columbia

      On April 1, 2002, Plaintiffs filed the instant action in this

Court.

             1.    The Illinois Motion to Enforce

      On June 7, 2002, Old Waste filed a motion to enforce the

Illinois Securities Settlement in the Illinois district court.            In

the motion, it argued that Plaintiffs in the instant action 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   Securities

Settlement from asserting any released claims in this or any other

action.     See Defs.’ Omnibus Mot. Ex. 11.       On December 3, 2002, this

Court granted Defendants’ motion for a stay of proceedings in the


                                       10
instant action pending a ruling by the Illinois district court on

their motion to enforce.

      On   March   11,   2003,   the   Illinois    district   court   denied

Defendants’ motion to enforce on the ground that the alleged class

period in the instant action spans a broader period than the

November 3, 1994 through February 24, 1998 period at issue in the

Illinois Securities Litigation.             It explained that although it

could have interpreted and applied the relevant terms of the Old

Waste Plan “in order to determine whether a release from liability

for   securities     law   violations       encompasses   potential   ERISA

liability,” its resolution of that matter would not relieve this

Court of its obligation to make that same assessment, “because the

time span of the D.C. suit exceeds that covered by” the Illinois

Securities Settlement.      Defs.’ Omnibus Mot., Ex. 12 at 2-3.

            2.     The Texas Settlement Proceedings

      On April 19, 2002, Plaintiff Harris, who was not a member of

the Texas settlement class, objected to the proposed settlement of

the Texas Securities Litigation on the ground that the New Waste

Plan’s decision to participate in the settlement constituted a

breach of ERISA-imposed duties.         On April 29, 2002, Harris filed a

motion to intervene, which the Texas district court denied.             See

Defs.’ Ex. 14.      Following the Texas district court’s approval of

the Texas Securities Settlement, Harris filed a Federal Rule of

Civil Procedure 59(e) motion to alter or amend the judgment.


                                       11
     Thereafter,   “counsel   for   Lead   Plaintiff   and   counsel   for

Harris, after arm’s-length negotiations regarding issues relating

to Harris’s objection, . . . reached a Stipulation of Settlement

Modifying Plan of Allocation,” which the Texas district court

approved (“Texas Amending Order”).       Defs.’ Omnibus Mot., Ex. 16 at

4. Under the Texas Amending Order, the original Plan of Allocation

entered in connection with the Texas Securities Settlement was

modified “so that $4.5 million (less Harris’s Counsel’s attorneys

fees, costs and expenses) [was] set aside from the Net Settlement

Fund and . . . allocated to the Waste Management Retirement Savings

Plan [the New Waste Plan], such allocation being in addition to the

approximately $2 million that the participants of the Plan would

otherwise be entitled to receive under the Plan of Allocation.”

Id. at 5-6.

          3.   Plaintiffs’ Claims in the Instant Litigation

     On April 26, 2002, Plaintiffs in the instant action filed

their First Amended Complaint.       On October 24, 2003, they filed

their Second Amended Complaint.      On November 12, 2003, they filed

their Substitute Second Amended Complaint.        On February 7, 2005,

they filed their Third (and final) Amended Complaint.

     The conduct alleged in the first five Counts of the Third

Amended Complaint occurred during the First Claim Period (January

1, 1990 through February 24, 1998) and arose out of alleged

accounting irregularities engaged in by the Old Waste Fiduciaries.


                                    12
According to Plaintiffs, during the First Claim Period, the Old

Waste Fiduciaries caused or allowed the Old Waste Plan to acquire

approximately $128 million worth of unit shares in the Stock Fund,

which is invested primarily in Company Stock.             They argue that the

Old Waste Fiduciaries “knew or should have known that [Company

Stock] was an imprudent pension plan investment because the Old

Waste Fiduciaries participated in, knew of, or should have known of

Old Waste’s massive and widespread accounting irregularities during

the   First   Claim   Period,   which       caused   [Company    Stock]    to   be

significantly overvalued.        When the full extent of Old Waste’s

earnings misstatements was revealed, the Plan lost tens of millions

of dollars on its investment in the Stock Fund.”                Pls.’ Opp’n to

Defs.’ Omnibus Mot. at 3-4.

      In Count I, Plaintiffs claim that the Old Waste Investment

Committee     and   its   individual    Trustee      Members    breached    their

fiduciary duties of loyalty and prudence under ERISA Section 404,

29 U.S.C. § 1104, by (1) failing to conduct an adequate fiduciary

review   to    determine    whether    the     Stock   Fund     was   a   prudent

investment; (2) causing the Old Waste Plan to maintain the Stock

Fund as a Plan investment when they knew the unit shares were

inflated in value and not a prudent investment; (3) causing the Old

Waste Plan to make new investments in unit shares of the Stock Fund

when they knew the unit shares were inflated in value and not a

prudent investment; and (4) failing to take steps to prevent losses


                                       13
in   the   Stock   Fund   resulting        from   the   investment    of    Plan

participants’ contributions to the Stock Fund.

     In    Count    II,   Plaintiffs        claim   that    the   Old      Waste

Administrative     Committee   and    its     individual    Trustee     Members

breached their fiduciary duty of loyalty under ERISA Section 404 by

(1) failing to adequately inform Plan participants of the true

risks of investing in the Stock Fund; (2) conveying inaccurate

information about the risks associated with investing in the Stock

Fund; (3) concealing from Plan participants facts regarding Old

Waste’s true financial condition; and (4) failing to disclose to

Plan participants that purchases of unit shares in the Stock Fund

and of Company Stock by the Stock Fund were at inflated prices.

     In Count III, Plaintiffs allege that, to the extent Old Waste,

the Old Waste Committees, and their individual Trustee Members

contributed shares of Company Stock to the Old Waste Plan which

were artificially inflated in value, the Plan acquired such shares

for more than fair market value, and therefore, such contributions

constituted prohibited exchanges of stock between the Plan and Old

Waste, a party in interest with respect to the Plan, in violation

of ERISA Section 406(a)(1)(A), 29 U.S.C. § 1106(a)(1)(A).

     In Count IV, Plaintiffs maintain that Old Waste, the Old Waste

Board of Directors, and its individual Members breached their

fiduciary duties of loyalty and prudence under ERISA Section 404 by

(1) failing to adequately monitor the performance of the Old Waste


                                      14
Committees;   (2)    failing    to   prevent     the   Old   Waste   Investment

Committee from offering the Stock Fund as an investment option when

they knew or should have known that it was not a prudent investment

because Old Waste’s financial statements did not report Old Waste’s

true financial condition; (3) failing to prevent the Old Waste Plan

from engaging in prohibited transactions under ERISA involving

Company Stock and unit shares of the Stock Fund; and (4) failing to

provide the individual Trustee Members of the Old Waste Committees

with    accurate    information      regarding    Old    Waste’s     accounting

irregularities.

       In Count V, Plaintiffs contend that the Old Waste Fiduciaries

further    breached    their      fiduciary      obligations     under    ERISA

Sections 405(a)(2) and (3), 29 U.S.C. §§ 1105(a)(2) and (3), by

enabling their co-fiduciaries to commit violations of ERISA as

described in Counts I-IV and, with knowledge of such breaches,

failing to make reasonable efforts to remedy them.

       The next four Counts (VI-IX) of the Third Amended Complaint

allege fiduciary breaches occurring in the Second Claim Period

(July 15, 1999 through December 1, 1999) against Old Waste and the

New Waste Fiduciaries, which include State Street.                 According to

Plaintiffs,   during    the    Second    Claim   Period,     these   Defendants

“caused or permitted the Old Waste Plan to participate in the

settlement of a securities class action in Illinois federal court

that, according to Defendants, released all of the Plan’s claims,


                                        15
including ERISA claims, arising from acquisitions of [Company

Stock] during part of the First Claim Period.             In so doing, Old

Waste and the New Waste Fiduciaries breached their duties of

loyalty and prudence and engaged in a prohibited transaction under

ERISA by failing to conduct an adequate review and evaluation of

the fairness of the Illinois settlement to the Old Waste Plan in

light of the Plan’s unique ERISA claims and the fact that the vast

majority of the Plan’s purchase transactions in the [Stock Fund]

were   not   open-market   transactions   covered    by    the   securities

claims.”     Pls.’ Opp’n to Defs.’ Omnibus Mot. at 3.

       In Count VI, Plaintiffs claim that State Street breached its

fiduciary duties of loyalty and prudence under ERISA Section 404 by

failing to adequately investigate and preserve the fiduciary breach

claims alleged in Counts I through V. According to Plaintiffs,

“[i]nstead of protecting those potential ERISA claims, which might

have been asserted against the former fiduciaries of the Plan,

State Street Bank caused the claims to be released in the Illinois

Securities Litigation without investigating the value or viability

of those claims, without determining whether the settlement was

fair to the Plan and without obtaining consideration for the

release of the Plan’s unique ERISA claims.”         Pls.’ Opp’n to State

Street’s Mot. at 15.

       In Count VII, Plaintiffs allege that Old Waste and State

Street, by approving the Plan’s participation in the Illinois


                                  16
Securities Settlement, caused the New Waste Plan to engage in a

prohibited exchange with Old Waste of securities and ERISA claims

that the Plan had against Old Waste and its officers and directors,

all of whom were parties in interest with respect to the Plan, in

violation of ERISA Section 406(a)(1)(A). They claim that Old Waste

is also liable for this violation because it was the party in

interest which engaged in the prohibited exchange with the pension

plan it sponsored.

     In Count VIII, Plaintiffs claim that the New Waste Investment

Committee   and   its   individual   Trustee   Members   breached   their

fiduciary duties of prudence and loyalty under ERISA Section 404 by

failing to adequately monitor the performance of State Street in

connection with its decision to have the Plan participate in the

Illinois Securities Settlement.

     In Count IX, Plaintiffs contend that State Street, Old Waste,

the New Waste Investment Committee, and its individual Trustee

Members further breached their fiduciary obligations under ERISA

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

commit violations of ERISA as described in Counts VI-VIII and, with

knowledge of such breaches, failing to make reasonable efforts to

remedy such breaches.

     In Count X of the Third Amended Complaint, Plaintiffs allege

fiduciary breaches occurring in the Third Claim Period (February 7,

2002 through July 15, 2002) against State Street.          According to


                                     17
Plaintiffs, State Street breached its fiduciary duty of care and

loyalty    under   ERISA   Section    404    by     approving   the    Plan’s

participation in the Texas Securities Settlement.               According to

Plaintiffs, State Street failed to conduct an adequate review of

potential fiduciary breach claims that might have been asserted

against the Old Waste Fiduciaries and released such claims in the

Texas     Securities   Settlement         without     obtaining       adequate

consideration.

      Plaintiffs seek (1) certification of this action as a class

action; (2) judgment in their favor for breach of fiduciary duty

and/or co-fiduciary breach of duty against all Defendants; (3) an

order requiring Defendants to restore to the New Waste Plan all

losses occasioned by their breach of fiduciary duty and/or co-

fiduciary breach of duty; (4) an order for appropriate relief to

correct the prohibited transactions Defendants engaged in; (5) an

order for appropriate relief to enjoin the acts and practices of

Defendants alleged herein which violate ERISA; and (6) reasonable

attorneys’ fees and costs.

      On March 31, 2005, Defendants filed the instant Omnibus Motion

to Dismiss.      On that same day, State Street filed the instant

Motion to Dismiss.

II.   STANDARD OF REVIEW

      “A motion to dismiss for failure to state a claim upon which

relief can be granted is generally viewed with disfavor and rarely


                                     18
granted.        For    the   purposes    of       such   a   motion,    the   factual

allegations of the complaint must be taken as true, and any

ambiguities or doubts concerning the sufficiency of the claim must

be resolved in favor of the pleader.”                Doe v. United States Dep’t

of   Justice,    753    F.2d   1092,    1102       (D.C.     Cir.   1985)   (internal

citations omitted) (emphasis in original).

       To survive a motion to dismiss, a plaintiff need only plead

“enough facts to state a claim to relief that is plausible on its

face” and to “nudge[] [his or her] claims across the line from

conceivable to plausible.” Bell Atl. Corp. v. Twombly, __ U.S. __,

127 S. Ct. 1955, 1974 (2007).                “[O]nce a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.”                     Id. at 1969.

       Under the standard set out in Twombly, a “court deciding a

motion to dismiss must not make any judgment about the probability

of the plaintiff’s success . . . must assume all the allegations in

the complaint are true (even if doubtful in fact) . . . [and] must

give the plaintiff the benefit of all reasonable inferences derived

from the facts alleged.”         Aktieselskabet AF 21. November 2001 v.

Fame   Jeans    Inc.,    525   F.3d    8,    17    (D.C.     Cir.   2008)   (internal

quotation marks and citations omitted).




                                            19
III. ANALYSIS

     A.     Plaintiffs Have Stated a Valid Claim under ERISA Section
            502(a)(2) for Plan-Wide Relief

     Plaintiffs’ Third Amended Complaint states that this action

was brought “pursuant to § 502(a)(2) and (3) of ERISA, 29 U.S.C.

§ 1132(a)(2) and (3) to obtain appropriate relief on behalf of the

plan,” Third Am. Compl. ¶ 17, and seeks a judgment that will

“restore    to   the   New      Waste   Plan   all   losses   occasioned   by

[Defendants’] breaches of fiduciary duties.”            Id. ¶ 211(3).

     Defendants contend that, despite Plaintiffs’ contrary claims,

this suit concerns individualized relief for the particularized

harm suffered by a subset of Plan participants and does not seek to

vindicate the rights or interests of the Plan as a whole.                  See

Defs.’    Omnibus   Mot.   at    42.    Defendants   specifically   cite   to

Plaintiffs’ request for relief to be “allocated to the accounts of

participants of the Old Waste Plan who invested in Company Stock

during the Class Period.”          Third Am. Compl. ¶ 30.      According to

Defendants, “[b]ecause [Plaintiffs] seek relief only on behalf of

those participants who elected to invest in the Stock Fund, and

because Plaintiffs’ requested relief would result in no benefit for

those Plan participants who did not elect to invest in the Stock

Fund, Plaintiffs are not seeking Plan-wide relief.              Accordingly,

ERISA § 502(a)(2) provides them with no basis to bring their

claims.”    Defs.’ Omnibus Mot. at 46.



                                        20
      ERISA Section 502(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 Section 409].”     29 U.S.C. § 1132(a)(2).        ERISA Section 409

states, in relevant part, that a fiduciary who breaches ERISA

duties is “personally liable to make good to such plan any losses

to   the   plan   resulting   from   each   such   breach[.]”   29   U.S.C.

§ 1109(a).    In Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134

(1985), the Supreme Court interpreted the language of Section 409

to permit only those actions in which the sought-after recovery

benefits the plan as a whole, as distinguished from those which

benefit an individual beneficiary.10         Therefore, any recovery for

a violation of Sections 409 and 502(a)(2) “must be on behalf of the

plan as a whole, rather than inuring to individual beneficiaries.”

Horan v. Kaiser Steel Ret. Plan, 947 F.2d 1412, 1418 (9th Cir.

1991) (citing Russell, 473 U.S. at 140); Plumb v. Fluid Pump Serv.,

Inc., 124 F.3d 849, 863 (7th Cir. 1997) (same); see Kuper v.

Iovenko, 66 F.3d 1447, 1452-53 (6th Cir. 1995) (same); Drinkwater

v. Metro. Life Ins. Co., 846 F.2d 821, 825 (1st Cir. 1988) (same).


      10
        See Russell, 473 U.S. at 140 (“[R]ecovery for a violation
of § 409 inures to the benefit of the plan as a whole.”); id. at
142 (“A fair contextual reading of the statute makes it abundantly
clear that its draftsmen were primarily concerned . . . with
remedies that would protect the entire plan, rather than with the
rights of an individual beneficiary.”); see also Varity Corp. v.
Howe, 516 U.S. 489, 515 (1996) (noting that plaintiff could not
proceed under ERISA Section 502(a)(2) because “that provision, tied
to § 409, does not provide a remedy for individual beneficiaries”).

                                      21
     For the following reasons, the Court concludes that Plaintiffs

are suing on behalf of the Plan as a whole, and thus meet the

requirements of ERISA Sections 409 and 502(a)(2).           First, the

entire Plan is in fact impacted by the alleged fiduciary and co-

fiduciary breaches because all Plan beneficiaries have Company

Stock.    Plan beneficiaries acquire their assets either through

their individual investments in the Stock Fund or through the

Company’s   matching   contributions,   which   consist   primarily   of

Company Stock.    Second, most of the Plan’s assets are composed of

Company Stock.    Defendants allegedly retained Company Stock as an

investment alternative even though they knew that the Company’s

financial status was not accurately reflected in its financial

statements.11    Thus, all Plan members would benefit if Plaintiffs



     11
          Defendants cite Milofsky v. Am. Airlines, Inc., 404 F.3d
338 (5th Cir. 2005) and In re Schering-Plough Corp. ERISA
Litig.,387 F. Supp. 2d 392 (D.N.J. 2004) in support of their claim
that Plaintiffs are seeking individual relief, rather than relief
on behalf of the Plan.      Both cases are distinguishable.      In
Milofsky, the plaintiffs did not seek relief on behalf of the plan,
and there was no indication that the entire plan was impacted. In
this case, Old Waste made matching contributions in the Stock Fund
on behalf of every participant in the Old Waste Plan. See In re
Syncor ERISA Litig., 351 F.Supp.2d 970, 990 (C.D. Cal. 2004)
(distinguishing Milofsky on this ground); In re Enron Corp. Sec.,
Derivative & ERISA Litig., 228 F.R.D. 541, 557-58 (S.D. Tex. 2005)
(distinguishing Milofsky and finding that, under circumstances
similar to those of the instant case, the relief sought would
benefit the plan). As to In re Schering-Plough Corp., the company,
unlike Old Waste, did not make matching contributions to its plan
in the form of company stock.     See In re Schering-Plough Corp.
ERISA Litig., 387 F. Supp. 2d at 400 (noting that this is
“critical” in assessing whether the relief sought would benefit the
plan).

                                 22
succeed on this claim.

     Accordingly, Plaintiffs have stated a valid claim under ERISA

Section 502(a)(2) for Plan-wide relief.12

     B.    Plaintiffs’ First Period Claims (Counts I-V) Are Time-
           Barred under ERISA Section 413

     Defendants move to dismiss Counts I - V of Plaintiffs’ Third

Amended Complaint on the ground that Plaintiffs’ First Period

claims, which are alleged to have occurred between January 1, 1990

and February 24, 1998, are time-barred.     The limitation period for

ERISA breach of fiduciary duty claims is governed by ERISA Section

413, 29 U.S.C. § 1113, which provides, in pertinent part:

     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 of this part, 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.




     12
       Because the instant action may be brought to recover Plan
losses under ERISA Section 502(a)(2), it is unnecessary for the
Court to address Defendants’ argument that ERISA Section 502(a)(3)
provides no basis for Plaintiffs to obtain the relief they seek.

                                23
            1.   ERISA’s three-year limitations period applies to
                 Plaintiffs’ First Period claims because Plaintiffs
                 had “actual knowledge of the breach or violation”

     Defendants argue that all of Plaintiffs’ First Period claims

are time-barred under ERISA’s three-year limitations period because

Plaintiffs had “actual knowledge of the breach or violation” as of

February 24, 1998 (i.e., more than three years before they filed

the instant action on April 1, 2002).     In support of this claim,

Defendants point out that Plaintiffs have acknowledged that “[t]he

full extent of Old Waste’s financial problems” was revealed on

February 24, 1998 “at which time Old Waste issued a press release

reporting [its] financial results for the fourth quarter and full

year 1997, which disclosed special charges and adjustments to

expenses in the fourth quarter, and restatements of prior period

earnings for 1992 through 1996 and the first three quarters of

1997.”    Third Am. Compl. ¶ 89.

     There is substantial case law from other circuits discussing

the precise meaning of the phrase “actual knowledge” in Section

413(2).13   While all the circuits differ somewhat in their detailed




     13
          In Fink v. National Savings & Trust Co., 772 F.2d 951,
956-58 (D.C. Cir. 1985), our Court of Appeals considered an earlier
and substantially different version of ERISA Section 413. More
recently, two judges in this District have had an opportunity to
address the issue of “actual knowledge” under the present statute.
See Walker v. Pharmaceutical Research and Manufacturers of America,
461 F. Supp.2d 52, 59-60 (D.D.C. 2006); Larson v. Northrop Corp.,
1992 WL 24970, *4 (D.D.C. Mar. 30, 1992), rev’d on other grounds,
21 F.3d 1164 (D.C. Cir. 1994).

                                   24
analyses of the phrase,14 the Court concludes that the facts alleged

in this case clearly establish, under any of the definitions of

“actual    knowledge,”        that    Plaintiff     did    in   fact   have    “actual

knowledge” of sufficient facts to establish the existence of a

violation of ERISA more than three years before they filed the

instant action on April 1, 2002.

     In the instant case, as Defendants correctly point out, as of

February   24,    1998,   the        day   Old   Waste    publicly     announced   its

restatement      of   prior    period      earnings,      Plaintiffs    “had   actual



     14
         For example, in the Third and Fifth Circuits, “‘actual
knowledge of a breach or violation’ requires that a plaintiff have
actual knowledge of all material facts necessary to understand that
some claim exists[.]” Gluck v. Unisys Corp., 960 F.2d 1168, 1177
(3d Cir. 1992); see Reich v. Lancaster, 55 F.3d 1034, 1057 (5th
Cir. 1995) (adopting and applying the Third Circuit’s definition of
“actual knowledge”). Under this approach, sometimes referred to as
the “legal claims” approach, it must be established that a
plaintiff actually knew not only of the events that occurred but
also that those events supported a claim of breach of fiduciary
duty or violation under ERISA.

     In the Sixth, Seventh, Ninth, and Eleventh Circuits, “actual
knowledge” requires knowledge only of the underlying facts that
form the basis for the claim.      Under this approach, sometimes
referred to as the “underlying facts” approach, “[t]he relevant
knowledge for triggering the statute of limitations is knowledge of
the facts or transaction that constituted the alleged violation.
Consequently, it is not necessary for a potential plaintiff to have
knowledge of every last detail of a transaction, or knowledge of
its illegality.” Martin v. Consultants & Adm’rs, Inc., 966 F.2d
1078, 1086 (7th Cir. 1992) (emphasis in original); see Wright v.
Heyne, 349 F.3d 321, 330 (6th Cir. 2003) (“‘actual knowledge’
requires only knowledge of all the relevant facts, not that the
facts establish a cognizable legal claim under ERISA”) (internal
citations omitted); Blanton v. Anzalone, 760 F.2d 989, 992 (9th
Cir. 1985) (same); Brock v. Nellis, 809 F.2d 753, 755 (11th Cir.
1987) (same).

                                            25
knowledge of all of the essential facts necessary to bring their

First Period claims.”       Defs.’ Omnibus Mot. at 28.      As of that date,

Plaintiffs    knew   that   “(a)   they   had    acquired   their   shares    of

[Company Stock] through the Plan; (b) the price at which they had

acquired their stock allegedly had been ‘artificially inflated’ by

material     undisclosed    information     about    the    Company’s      ‘true

financial condition’ and widespread ‘accounting irregularities;’

(c) Plan fiduciaries either had failed to discover or to disclose

such information to participants prior to February 24, 1998; and

(d) [they] allegedly were damaged by the non-disclosures.”              Id. at

28-29.       As   Plaintiffs   themselves       admit,   “[b]ased   upon     the

information set out in the restated financial statements,” it was

clear that “the shares of Company Stock acquired by the predecessor

Old Waste Plan between 1990 [and] February 24, 1998, had been

acquired by the Old Waste Plan Committees and the Individual Old

Waste Plan Trustees at inflated prices exceeding fair market

value.”    Third Am. Compl. ¶ 109.

     Plaintiffs’ First Period claims are, therefore, time-barred

under ERISA’s three-year limitations period because Plaintiffs had

“actual knowledge of the breach or violation” more than three years

before they filed the instant action on April 1, 2002.15


     15
        Since the Court concludes that Plaintiffs’ First Period
claims are subject to ERISA’s three-year limitations period because
Plaintiffs had “actual knowledge of the breach or violation,” it is
unnecessary to address Defendants’ alternative argument that those
                                                     (continued...)

                                     26
          2.     Plaintiffs’ allegations of “fraud or concealment”
                 are insufficient to invoke ERISA’s six-year
                 limitations period

     Plaintiffs claim that even if their First Period claims are

time-barred    under   ERISA’s   three-year   limitations   period,   that

limitation period is tolled in cases such as this “where Plaintiffs

have alleged ‘fraudulent concealment.’” Pls.’ Opp’n to Defs.’

Omnibus Mot. at 53.     “[T]he fraudulent concealment doctrine . . .

requires that the defendant engage in active concealment –- it must

undertake some ‘trick or contrivance’ to ‘exclude suspicion and

prevent inquiry.’      Such concealment must rise to something ‘more

than merely a failure to disclose.’”          Larson, 21 F.3d at 1174

(emphasis in original) (quoting Shaefer v. Arkansas Med. Soc’y and

Tr. of the Arkansas Med. Soc’y Pension Trust, 853 F.2d 1487, 1491

(8th Cir. 1988) (internal citation omitted)). See Shaefer, 853 F.2d

at 1492 (“failure to investigate adequately and relay warnings

. . . does not rise to the level of active concealment, which is

more than merely a failure to disclose”) (citing Hobson v. Wilson,

737 F.2d 1, 33-34 & nn.102-03 (D.C. Cir. 1982)); Martin, 966 F.2d

at 1094 (“Concealment by mere silence is not enough.”) (internal

quotation omitted).




     15
      (...continued)
claims which are based on alleged breaches of fiduciary duty that
occurred prior to April 1, 1996 are time-barred under ERISA’s six-
year limitations period.

                                    27
     Plaintiffs have failed to show fraud or concealment sufficient

to invoke ERISA’s six-year limitations period because they have

pointed to no evidence showing that Defendants actively concealed

“the true financial condition of the company as well as the fact

that unit shares in the Stock Fund were inflated in value and no

longer a prudent investment option for participants.”               Pls.’ Opp’n

to Defs.’ Omnibus Mot. at 54 (internal citations omitted).

     Plaintiffs     claim    that    Defendants      “fail[ed]   to    disclose

information regarding Old Waste’s true financial condition[,]” id.

at 55, and “affirmatively misrepresented to participants the true

value of their investments in the Stock Fund each time they

provided participants with an account statement[] and thereby

deflected suspicion and inquiries from participants regarding the

fiduciaries’ breaches alleged in the First Claim Period.”                Id.

     As Defendants point out, however, “[b]ecause the Company

initiated      an   investigation       of     the     alleged      ‘accounting

irregularities’ and then, on February 24, 1998, publicly announced

its restatement of prior period earnings and its reasons for the

restatement,    Plaintiffs    have    no     basis   to   suggest     that   Plan

fiduciaries ‘took affirmative steps to hide [their] breach[es]’

until the limitations period had run.”           Defs.’ Omnibus Reply at 8

(quoting Kurz v. Philadelphia Elec. Co., 96 F.3d 1544, 1552 (3d

Cir. 1996)).




                                      28
     In addition, “allegations of fraudulent concealment . . . must

meet the requirements of Fed. R. Civ. P. 9(b).”16           Larson, 21 F.3d

at 1173 (internal citations omitted).         Rule 9(b) does not permit a

plaintiff to rely, as do Plaintiffs in the instant case, on “wholly

conclusory allegations of fraud, or contentions that [D]efendants

‘knew     or   should   have    known’    facts    that    were   supposedly

misrepresented or not disclosed.          Rather, it requires a plaintiff

accusing a defendant of fraud to set forth specific facts that will

support    the   accusation.”     Bender    v.    Rocky   Mountain   Drilling

Assocs., 648 F.Supp. 330, 336 (D.D.C. 1986) (internal citation

omitted); see Third Am. Compl. ¶¶ 79-87, 108-113, 129, 147, 166.

     Thus, for the foregoing reasons, Plaintiffs’ allegations of

“fraud or concealment” are insufficient to invoke ERISA’s six-year

limitations period.17




     16
          Rule 9(b) requires that “in all averments of fraud ...
the circumstances constituting fraud . . . shall be stated with
particularity.” Fed. R. Civ. P. 9(b).
     17
          Since   the   Court  has   concluded   that   Plaintiffs’
allegations of “fraud or concealment” are insufficient to invoke
ERISA’s six-year limitations period, and thus that Plaintiffs’
First Period claims are time-barred under ERISA Section 413, it is
unnecessary for the Court to address Defendants’ argument that
Plaintiffs are estopped by the Illinois Securities Settlement from
raising ERISA-based claims that arose during the Illinois
Securities Litigation period (November 3, 1994 through February 24,
1998).

                                     29
     C.     Plaintiffs Have        Stated   Viable   Second   Period    Claims
            (Counts VI - IX)

            1.      Plaintiffs’ Second Period claims are not improper
                    collateral attacks on the fairness and adequacy of
                    the Illinois Securities Settlement

     Defendants argue that Plaintiffs’ Second Period claims “must

be dismissed as improper collateral attacks on the fairness of the

Illinois Settlement and the adequacy of class representation.”

Defs.’    Omnibus    Mot.   at   30.   According     to   Defendants,   “Judge

Andersen adopted a variety of procedures designed to protect the

rights of unnamed class members –- including those of the Plan and,

by extension, Plan participants -– and then made express findings

regarding their adequacy.” Id. at 31 (internal citations omitted).

     As Plaintiffs point out, however, at this early stage of the

case, “[t]here are at the very least factual disputes as to whether

Plaintiffs and other Plan participants were represented adequately

by either the lead plaintiffs or the Plan fiduciaries and received

adequate notice that valuable ERISA claims were being released in

the Illinois settlement.”18        Pls.’ Opp’n to Defs.’ Omnibus Mot. at




     18
          Defendants argue that “the sweeping language of the
Illinois Settlement demonstrates an absolute intent to settle and
release all disputes that were or might have been raised in
connection with the transactions, acts, and omissions related to
that litigation . . . . This, of course, includes any and all
ERISA claims that could have been brought by the Plan against
Defendants here.”    Defs.’ Omnibus Reply at 12.     The Illinois
Securities Settlement, however, referenced neither the Plan, nor
any ERISA claims. See Defs.’ Ex. 6.

                                       30
49.   Moreover, there are factual and legal disputes “as to whether

the release even applies to Plaintiffs’ ERISA claims.”                   Id. at 51.

      Thus, as Plaintiffs correctly argue, “[e]ven if Defendants

could   shoulder    their    burden    of    establishing      this   affirmative

defense of release, they cannot do so through [the instant] motion

to dismiss.      Defendants must plead, and attempt to prove, after a

full record has been made, that they were entitled to involuntarily

release    Plaintiffs’      claims.”        Id.    at   53   (internal    citation

omitted).

            2.     Count VI states a valid claim for relief against
                   State Street for failing to investigate and
                   preserve its potential ERISA claims in the Illinois
                   Securities Litigation in violation of ERISA
                   Section 404

      In Count VI, Plaintiffs allege that State Street breached its

fiduciary duty under ERISA Section 404 because it did not act

prudently during settlement of the Illinois Securities Litigation.

Specifically, Plaintiffs claim that State Street breached its

fiduciary duties of loyalty and prudence by failing to adequately

investigate and preserve the fiduciary breach of claims alleged in

Counts I through V.      Plaintiffs argue that State Street failed to

protect     potential    ERISA   claims       by    releasing    them     “without

investigating the value or viability of those claims, without

determining whether the settlement was fair to the Plan and without

obtaining consideration for release of the Plan’s unique ERISA

claims.”    Pls.’ Opp’n to State Street’s Mot. at 15.


                                       31
     The duties of loyalty and prudence mandated in Section 404(a)

of ERISA include the “duty to take reasonable steps to realize on

claims held in trust.”         Donovan      v. Bryans, 566 F. Supp. 1258, 1262

(E.D. Pa. 1983).           When, as in this case, a plan has potential

claims    against     a    third   party,    the   “trustees   have   a   duty   to

investigate the relevant facts, to explore alternative courses of

action and, if in the best interests of the plan participants, to

bring suit . . . .”           McMahon v. McDowell, 794 F.2d 100, 112 (3d

Cir. 1986).

     Once State Street learned that Plan fiduciaries had caused the

Plan to acquire Old Waste stock at inflated prices and were trying

to obtain a release of all the Plan’s claims against them without

payment    of   any       consideration,      State   Street   had    a   duty   to

investigate whether there was any merit to the Plan’s potential

ERISA claims. Depending on the result of that investigation, State

Street then had the duty to pursue one of three courses of action:

do nothing, object to the proposed settlement unless the Plan was

given adequate consideration for release of those potential ERISA

claims, or opt out of the Illinois Securities Litigation and file

a separate ERISA action.




                                         32
     Plaintiffs allege that State Street did no investigation of

any kind and therefore had no basis on which to take no action when

it learned of the proposed settlement.19

     In its Motion to Dismiss, State Street argues that these

“potential” ERISA claims “are on their face weak” and have no

“merit”   because   the   Plan’s   acquisition   of   Old   Waste   stock

“implicated issues of plan design rather than fiduciary discretion”

for which the Old Waste Defendants could not be sued.       State Street

Mot. at 5.   However, as noted, infra, in Section III.C.4, State

Street, as Trustee, had a duty under Section 404(a) of ERISA to

ignore the terms of the Plan document if it knew that investment in




     19
          The Department of Labor (“DOL”), in a ruling allowing
fiduciaries to enter into settlements of plan claims against plan
sponsors in securities class action litigation, where prudent,
emphasized that the “fiduciary’s decisions in authorizing a
[securities] settlement are subject to the fiduciary responsibility
provisions” under § 404(a) of ERISA . . . and require that such a
decision be arrived at through a “prudent decision-making process”
(see Prohibited Transaction Exemption 2003-39; Class Exemption for
the Release of Claims and Extensions of Credit in Connection with
Litigation, 68 Fed. Reg. 75,632 (Dec. 31, 2003) (“PTE 2003-39") at
75,635. That decision includes consideration of: (i) whether the
“plan may [under ERISA] have another avenue of recovery not
available to other shareholders,” id. at 75,637, (ii) the “legal
effect that a settlement agreement may have on all claims
[including potential ERISA claims] that might be brought on behalf
of the plan,” id., (iii) “the value of these additional claims,”
id. at 75,638, and (iv) “whether additional relief may be available
for the ERISA claims before agreeing to a broad release,” id. at
75,637. Moreover, if after considering these factors the fiduciary
determines that the settlement is not fair to the plan, the
fiduciary should object to the settlement and, if possible, opt
out. Id. at 75,635-36.

                                   33
unit shares of the Stock Fund were no longer a prudent investment.20

     Finally, State Street asks for a ruling on the merits that its

actions were not imprudent because the Complaint’s allegations do

not establish a “causal connection” between its actions and any

loss.     In Section III.E., infra, the Court notes that it is not

Plaintiffs’ burden to plead causation, once they prove a breach of

fiduciary duty by Defendants.    See Chao v. Trust Fund Advisors,

2004 WL 444029, at *6 (D.D.C. Jan. 20, 2004).        Moreover, any

“causal connection between breach and loss, like breach itself, is

a fact-intensive inquiry . . .” to be decided at trial.     Roth v.

Sawyer-Cleator Lumber Co., 16 F.3d 915, 919 (8th Cir. 1994).




     20
          In language that is particularly applicable to this case,
the Department cautioned that,


     a fiduciary should understand, in advance of signing, the
     legal effect that a settlement agreement may have on all
     claims that might be brought by or on behalf of the plan.
     . . . It is not uncommon for the same transactions to
     give rise to both ERISA and securities fraud claims. The
     plan,   and   by   extension,    the   participants   and
     beneficiaries of the plan, are entitled to the same
     recovery as other shareholders in the securities fraud
     settlement. However, the participants and beneficiaries
     may have another avenue of recovery not available to
     other shareholders. They are authorized, under ERISA,
     . . . to bring suit to make the plan whole for all losses
     caused by a breach of fiduciary duty. . . .        [P]lan
     fiduciaries should consider whether additional relief may
     be available for the ERISA claims before agreeing to a
     broad release.

PTE 2003-39, 68 Fed. Reg. 75,632.

                                 34
     For all these reasons, the Court concludes that Count VI

states a valid cause of action against State Street for failing to

adequately investigate and protect its potential ERISA claims in

the Illinois Securities Ligitation.

             3.     Count VII states a valid claim for relief against
                    State Street and Old Waste for engaging in a
                    prohibited transaction in violation of ERISA
                    Section 406

     In Count VII, Plaintiffs allege that Old Waste and State

Street, by approving the Old Waste Plan’s participation in the

Illinois Securities Settlement, caused the New Waste Plan to engage

in a prohibited exchange with Old Waste of securities and ERISA

claims that the Old Waste Plan had against Old Waste and its

officers and directors, all of whom were parties in interest with

respect to the Plan, in violation of ERISA Section 406(a)(1)(A).

Plaintiffs claim that Old Waste is also liable for this violation

because it was the party in interest that engaged in the prohibited

exchange (the release of a chose in action) with the Old Waste

pension Plan it sponsored.

     ERISA        Section   406(a)(1)    “categorically   bar[s]   certain

transactions deemed likely to injure the pension plan.”             Harris

Trust & Sav. Bank. v. Salomon Smith Barney, Inc., 530 U.S. 238, 242

(2000) (internal quotation omitted).           It provides, in relevant

part, that “[a] fiduciary with respect to a plan shall not cause

the plan to engage in a transaction, if he knows or should know

that such transaction constitutes a direct or indirect . . .

                                        35
exchange . . . of any property between the plan and a party in

interest.”    29 U.S.C. § 1106(a)(1)(A).

      Defendants move to dismiss Count VII on two grounds.           First,

they claim that their participation in the Illinois Securities

Settlement is not a prohibited transaction.             See Defs.’ Omnibus

Mot. at 37.     Specifically, they argue that “[i]t is indisputable

that the Plan’s original decision to offer [Company Stock] as an

investment option under the Plan is not prohibited by ERISA § 407

and § 408(e).    See 29 U.S.C. §§ 1107, 1108(e).         The same statutory

framework     that    permits   investment     in     ‘qualifying   employer

securities,’    and    that   exempts    a   plan’s   acquisition   of   such

securities for ‘adequate consideration,’ necessarily includes the

authority to settle claims relating to such investments.”            Id. at

38.

      Defendants seek to rely on a DoL Advisory Opinion Letter, No.

95-26A, 1995 WL 614557.          However, it does not support their

position.    According to the DoL Advisory Opinion, “the settlement

of [a] lawsuit would be an exchange of property (a chose in action)

between such Plans and parties in interest as described in section

406(a)(1)(A).”       DoL Opinion Letter at 2.          Thus, as Plaintiffs

contend, it is a prohibited exchange of property under ERISA

Section 406 for State Street, a Plan fiduciary, to enter into the

Illinois Securities Settlement on behalf of the New Waste Plan

against Old Waste, the Plan sponsor and a party in interest, unless


                                    36
the transaction is exempted from the proscriptions of ERISA Section

406.

       Second, Defendants claim that, even if the Court finds that

their participation in the Illinois Securities Settlement is a

prohibited    transaction,       such    participation        is     retroactively

exempted from ERISA’s restrictions on prohibited transactions by

PTE 2003-39, 68 Fed. Reg. 75,632.

       To qualify for PTE 2003-39, Defendants must show, among other

things, that before approving the settlement, the Plan fiduciaries

engaged in a “prudent decision-making process” which included

considering “whether additional relief may be available for the

ERISA claims before agreeing to a broad release.”                  Id. at 75,636,

75,637.      Defendants   also    must       show   that    “the   settlement   is

reasonable in light of the plan’s likelihood of full recovery, the

risks and costs of litigation, and the value of claims foregone,”

id. at 75,636, 75,639, and that “the terms and conditions of the

transaction are no less favorable to the plan than comparable arms-

length terms and conditions that would have been agreed to by

unrelated parties under similar circumstances.”                Id. at 75,639.

       Plaintiffs respond that Defendants are not covered by PTE

2003-39 because the challenged settlement is not reasonable.                    To

meet this reasonableness standard, Defendants must show that before

approving    the   challenged      settlement,        the     Plan     fiduciaries

“consider[ed] whether additional relief may be available for the


                                        37
ERISA claims[.]”   Id. at 75,637.    If, as Plaintiffs allege in the

Third Amended Complaint, State Street approved the challenged

settlement without giving proper consideration to “the availability

of additional relief,” the settlement is not reasonable and PTE

2003-39 does not retroactively exempt the transaction from the

proscriptions of ERISA Section 406.    These factual issues can only

be resolved at trial after full discovery.

     Defendants also rely on the “fairness” findings by Judge

Anderson in the Illinois Securities Litigation to demonstrate that

the Plan’s participation in that settlement was not a prohibited

transaction under ERISA Section 406(a)(1)(A).      All his findings

related to the fairness and reasonableness of the settlement as to

the members of the securities class, and as to their claims under

the securities laws.   As Plaintiffs accurately note, he made no

findings as to members of any ERISA class, or ERISA claims which

were supposedly being released in the Settlement Agreement on

behalf of the members of the securities class.

     Thus, for the foregoing reasons, Count VII states a valid

claim for relief against State Street and Old Waste for engaging in

a prohibited transaction in violation of ERISA Section 406.

          4.   Plaintiffs’ Second Period claims against       State
               Street state valid claims for relief

     State Street argues that Plaintiffs fail to allege that it

acted imprudently to the detriment of the Plan in connection with

the Illinois Securities Settlement, and thus, that Plaintiffs’

                                38
Second Period claims should be dismissed.       Specifically, State

Street claims that “the ‘potential’ ERISA claims that plaintiffs

fault [it] for releasing in the Illinois Settlement were not viable

to begin with” because “all of the allegations about company stock

in the Plan implicate issues of plan design rather than fiduciary

discretion, and none of the defendants named in Counts 1-5 can

properly be sued for breach of ERISA fiduciary duties in connection

with investments in company stock funds during the First Claim

Period.”   State Street’s Mot. at 5, 6.

     According to State Street, the decision of the Old Waste

Fiduciaries to offer the Stock Fund as an investment option does

not implicate fiduciary duties because the Plan required the

establishment and maintenance of the Stock Fund and precluded the

elimination of that Fund.   See Defs.’ Omnibus Mot. at 56 (citing

Defs.’ Omnibus Mot., Ex. 21, §§ 5.2(b)(i), 9.3(b)(i)).

     However, this does “‘not ipso facto relieve [Defendants] of

their fiduciary obligations.’”     In re Polaroid Erisa Litig., 362

F.Supp.2d 461, 474 (S.D.N.Y. 2005) (quoting Rankin v. Rots, 278

F. Supp. 2d 853, 879 (E.D. Mich. 2003)).   The Old Waste Fiduciaries

had discretionary authority over the Stock Fund.       “By force of

statute,   [the   Old   Waste    Fiduciaries]   had   the    fiduciary

responsibility to disregard the Plan and eliminate [the Stock Fund]

if the circumstances warranted.”    In re Polaroid Erisa Litig., 362

F.Supp.2d at 474 (citing 29 U.S.C. § 1104(a)(1)(D)).        As such, to


                                  39
the extent the Stock Fund was an imprudent investment, as alleged

by Plaintiffs, the Old Waste Fiduciaries possessed the authority as

a matter of law to exclude the Stock Fund as an investment option,

regardless of the Plan’s dictates.            See id. at 474-75.

      In addition, the Plan does not require that the assets in the

Stock Fund be invested exclusively in Company Stock.               Rather, it

provides that the Stock Fund is to “consist primarily of shares of

common   stock    of    the   Company,”     Defs.’   Omnibus   Mot.,   Ex.   21,

§ 5.2(b)(i) (emphasis added). It also provides that the Stock Fund

“shall be invested at the discretion of the Investment Committee.”

Id. § 5.2(a).          Such language allows the Old Waste Fiduciaries

considerable discretion regarding the extent to which the Stock

Fund is invested in Company Stock.             See In re Enron Corp. Sec.,

Derivative & ERISA Litig., 284 F. Supp. 2d 511, 670 (S.D. Tex.

2003) (“‘primarily’ means ‘for the most part,’ not ‘all,’ and []

the   leeway     provides     the   plan    fiduciaries   with   considerable

discretion”); In re Sprint Corp. ERISA Litig., 388 F. Supp. 2d

1207, 1220 (D. Kan. 2004) (same); In re McKesson HBOC, Inc., ERISA

Litig., 2002 WL 31431588, at *4-5 (N.D. Cal.) (same).

      Moreover, the fact that the Plan document directed the Old

Waste Fiduciaries to invest “primarily” in Company Stock did not

require them to continue to invest in such stock if they knew it




                                       40
was no longer a prudent investment, as alleged by Plaintiffs.21 See

29 U.S.C. § 1104(a)(1)(D) (a fiduciary may only follow plan terms

to the extent that the terms are consistent with ERISA).   See also

Cokenour v. Household Int’l, Inc., 2004 WL 725973, at *5 (N.D.

Ill.) (“No section in ERISA [can] be read to require fiduciaries to

make investments for a plan if the fiduciary has information that

shows that the investment is a poor one.”); Hill v. Bellsouth



     21
        Defendants claim that Plaintiffs fail to plead facts
sufficient to rebut the so-called ESOP presumption (Employee Stock
Ownership Plan presumption) articulated in Moench v. Robertson, 62
F.3d 553, 571 (3d Cir. 1995) and adopted by Kuper, 66 F.3d at 1459,
that an ESOP fiduciary is entitled to a presumption that its
decision to remain invested in company stock was reasonable. See
State Street’s Reply at 8.

     Even if our Circuit were to adopt the ESOP presumption, which
it has not, its application at the motion to dismiss stage would be
premature. See In re Enron Corp. Sec., Derivative & ERISA Litig.,
284 F. Supp. 2d at 534, n.3 (“[a] determination as to whether an
ESOP fiduciary breached its fiduciary duty should not be made on a
motion to dismiss, but only after discovery develops a factual
record”); Stein v. Smith, 270 F.Supp.2d 157, 171-72 (D. Mass. 2003)
(plaintiffs need not plead facts rebutting the ESOP presumption);
In re Xcel Energy, Inc. Sec., Derivative & ERISA Litig., 312
F.Supp.2d 1165, 1180 (D. Minn. 2004) (declining to apply ESOP
presumption on a motion to dismiss); In re Elect. Data Sys. Corp.
ERISA Litig., 305 F.Supp.2d 658, 670 (E.D. Tex. 2004) (same); Pa.
Fed’n v. Norfolk S. Corp. Thoroughbred Ret. Inv. Plan, 2004 WL
228685 at *7 (E.D. Pa.) (same); Rankin, 278 F.Supp.2d at 879)
(declining to rely on the ESOP presumption because whether the
defendants breached their fiduciary obligations required the
development of the facts of the case, and plaintiff stated a claim
in that respect); In re Ikon Office Solutions, Inc. Sec. Litig., 86
F.Supp.2d 481, 492 (E.D. Pa. 2000) (denying motion to dismiss
because “it would be premature to dismiss [the complaint] without
giving plaintiffs an opportunity to overcome the presumption”); see
also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-14 (2002)
(presumptions are evidentiary standards that should not be applied
to motions to dismiss).

                                41
Corp., 313 F. Supp. 2d 1361, 1367 (N.D. Ga. 2004) (same) (citing

Herman v. NationsBank Trust Co., 126 F.3d 1354, 1369 (11th Cir.

1997); In re Enron Corp. Sec., Derivative & ERISA Litig., 284

F.Supp.2d at 549; Moench, 62 F.3d at 567 (defendants were required

to exercise discretionary judgment as to investment decisions and

such decisions were subject to ERISA’s fiduciary standards because

the plan directed only that funds would be invested ‘primarily’ in

the employer’s stock); Kuper, 66 F.3d at 1457 (same); Cent. States,

Southeast and Southwest Areas Pension Fund v. Cent. Transp., Inc.,

472 U.S. 559, 568 (1985) (“trust documents cannot excuse trustees

from their duties under ERISA”).

     State Street also claims that “plaintiffs allege no facts from

which it is possible to infer that the Illinois settlement did not

adequately and fairly compensate the Plan” and that, therefore, the

Plan has not suffered “any meaningful prejudice.”         State Street’s

Mot. at 6, 7.     As discussed supra, however, PTE 2003-39 requires

Defendants to show that, among other things, before approving the

settlement,   the   Old   Waste   Fiduciaries   engaged   in   a   “prudent

decision-making     process”   which     included   considering    “whether

additional relief may be available for the ERISA claims before

agreeing to a broad release.”      PTE 2003-39 at 75,636, 75,637.       In

light of PTE 2003-39, Plaintiffs are correct that if, as alleged in

the Third Amended Complaint, State Street approved a broad release

in the Illinois Securities Litigation which included ERISA claims


                                    42
without giving proper consideration to “whether additional relief

may be available for the ERISA claims,” it clearly breached its

fiduciary obligations under ERISA and Plaintiffs’ Second Period

claims against State Street state valid claims for relief.

          5.   Count VIII states a valid cause of action against
               New Waste Investment Committee and its individual
               members for failing to adequately monitor State
               Street’s decision to participate in the Illinois
               Securities Litigation

     In Count VIII, Plaintiffs contend that the New Waste Plan

Investment Committee and its individual members violated Section

404(a)(1)(A) and (B) of ERISA, 29 U.S.C. § 1104(a)(1)(A) and (B),

by failing to “discharge their duties with respect to the [New

Waste] Plan solely in the interest of the participants and their

beneficiaries and for the exclusive purpose of providing benefits

to participants and their beneficiaries and defraying reasonable

expenses of administering the Plan and with the care, skill,

prudence and diligence” that a “prudent man . . . would use.”

Third Am. Compl. ¶ 188.

     Specifically, Plaintiffs allege that because the New Waste

Plan Investment Committee and its individual members appointed

State Street to be the Trustee of that Plan and the Investment

Manager of the Stock Plan, they possessed a duty to “periodically

review [State Street’s] performance.” Pls.’ Opp’n to Defs. Omnibus

Mot. at 33-34.    They further allege that the New Waste Plan

Investment Committee and its individual members failed to discharge


                                43
this duty because they did not “adequately monitor” State Street in

its     decision      to   have   the   New    Waste    Plan   participate     in   the

settlement of the Illinois Securities Litigation. Third Am. Compl.

¶ 188.

        Plaintiffs state that the New Waste Plan Investment Committee

and its individual members “knew or should have known that State

Street       Bank’s    actions     in   this       regard   constituted   an   ERISA-

prohibited transaction, breached fiduciary duties, and were not in

the Plan’s interest.”             Id.   Plaintiffs state that the New Waste

Plan Investment Committee and its individual members “failed to

undertake any review or oversight of State Street’s conduct or

decision-making” in the Illinois Securities Litigation.                         Pls.’

Opp’n to Defs.’ Omnibus Mot. at 34 (emphasis in original).

        While not denying this factual allegation, Defendants argue

that it is an “improper collateral attack[] on the fairness of the

Illinois Settlement and the adequacy of class representation.”

Defs.’ Omnibus Mot. at 30. They argue that Judge Andersen employed

the proper “safeguards” in approving of the settlement as fair and

adequate.       Id. at 31.         Specifically, he “adopted a variety of

procedures designed to protect the rights of unnamed class members

. . . and then made express findings regarding their adequacy.”

Id.22    He also determined that “a full opportunity had been offered



        22
          It should be noted that Judge Anderson found                              the
Settlement to be fair and reasonable to “shareholders.”

                                              44
to members of the Class to object to the proposed Settlement, to

participate in the hearing thereon, or to opt out.”                 Id. (quoting

Defs.’ Omnibus Mot., Ex. 6, ¶ 15.

       Finally,    they   argue    that    the   New   Waste   Plan      Investment

Committee and its individual members “acted prudently by recusing

themselves from matters related to the litigation and settlement of

the Illinois Securities Litigation.”              Defs.’ Omnibus Mot. at 34.

They point out that Plaintiffs have not argued that the recusal

decision was “imprudent or unreasonable.”              Defs.’ Omnibus Reply at

32.

       As Plaintiffs correctly state, the “monitoring duties of

appointing fiduciaries under ERISA . . . are well established in

the case law.”         Pls.’ Opp’n to Defs.’ Omnibus Mot. at 20.                  “The

power    to     appoint   and   remove     trustees     carries     with    it     the

concomitant duty to monitor those trustees’ performance.”                   Liss v.

Smith, 991 F. Supp. 278, 311 (S.D.N.Y. 1998); Chao, 2004 WL 444029,

at *4 (“a fiduciary ‘had a duty to monitor performance with

reasonable diligence’”) (quoting Whitfield v. Cohen, 682 F. Supp.

188, 196 (S.D.N.Y. 1998)); see also Baker v. Kingsley, 387 F.3d

649, 663-64 (7th Cir. 2004) (discussing the duty to monitor); In re

Ford    Motor    Co.   ERISA    Litigation,      590   F.   Supp.   2d     883,    919

(E.D.Mich. 2008) (finding that the Complaint adequately stated a

claim for breach of the “fiduciary duty to monitor”).

       Defendants do not argue that neither New Waste Plan Investment


                                          45
Committee nor its individual members had a duty to monitor its

appointees.     Instead, they argue that the settlement was fair and

adequate, and even if it was not, the duty to monitor yields in the

face   of   a   fiduciary’s   obligation   to   be   independent.   While

Defendants properly cite to Leigh v. Engle, 727 F.2d 113, 125, 132

(7th Cir. 1984), to support their claim that it may sometimes be

prudent for a fiduciary to “step aside” in order to preserve its

independence in the face of a potential conflict of interest, they

provide no case law to support their assertion that the duty to

monitor must yield to the obligation to be independent.

       As noted, supra, in Sections III.C.1-3, Plaintiffs have stated

valid claims for relief with regard to the Illinois Securities

Settlement.      At this stage of the litigation, there are factual

disputes about whether the Settlement was fair and adequate.

       Moreover, the question of what the prudent course of action

was in this particular case is a factual one.         At this early stage

of the litigation, it is not proper to speculate about whether

prudence required recusal or more intensive monitoring.         As noted,

supra, in Section III.C.1, 2, and 3, such factual issues can only

be resolved at trial after full discovery.

       For all these reasons, the Court concludes that Count VIII

states a valid cause of action against New Waste Plan Investment

Committee and its individual members for failing to adequately

monitor State Street’s decision to participate in the Illinois


                                    46
Securities Settlement.

          6.   Count IX states a valid claim for co-fiduciary
               breach

     In Count IX, Plaintiffs contend that State Street, Old Waste,

the New Waste Investment Committee and its individual Trustee

Members further breached their fiduciary obligations under ERISA

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

commit violations of ERISA as described in Counts VI-VIII and, with

knowledge of such breaches, failing to make reasonable efforts to

remedy such breaches.

     Defendants move to dismiss Count IX on four grounds.   First,

they claim that because Plaintiffs “have failed to allege any

principal breaches of fiduciary responsibility by any of the

Defendants[,] . . . there can be no collateral claims of co-

fiduciary liability.”    Defs.’ Omnibus Mot. at 62.     The Court,

however, has already determined that the primary breaches alleged

against Defendants in Counts VI-VIII should not be dismissed.

     Second, Defendants claim that, “[i]n connection with the

Illinois Securities Settlement, the [Old Waste] Plan released any

claim it could have raised, whether known or unknown, relating

directly or indirectly to ‘any alleged act, misrepresentation, or

omission occurring on or before February 24, 1998[,] regarding the

financial condition, results of operations, financial statements,

press releases, public filings, or other public disclosures of’ Old

Waste Management.”   Defs.’ Omnibus Mot. at 63 (internal citations

                                47
omitted).     According to Defendants, “[t]his includes any claim of

co-fiduciary liability that the Plan might have asserted against

[them] in this action.”        Id.

     However, neither the New Waste Plan Investment Committee nor

State Street were among the settling Defendants or “Released

Parties” in the Illinois Securities Settlement. See Defs.’ Omnibus

Mot., Ex. 5, ¶ 2(l) (defining “Released Parties” as “each and every

one of the following: [Old Waste] and all of its predecessors and

present and former parents, subsidiaries, affiliates, directors,

officers,      employees,      agents,        attorneys,         advisors,      and

representatives; Arthur Andersen & Co., Arthur Andersen LLP, all of

their affiliated entities, and all of the present and former

partners,      employees,      agents,        attorneys,         advisors,      and

representatives of Arthur Andersen & Co., Arthur Andersen LLP or

any of their affiliated entities.”), and ¶ 2(q) (defining “Settling

Defendants” as “[Old Waste] and Arthur Andersen, LLP”).                      Thus,

neither the New Waste Plan Investment Committee nor State Street is

bound by the Illinois Securities Settlement.

     Third,     Defendants     maintain       that     because     the   Illinois

Securities Settlement provided fair compensation for the harms

alleged,    they    breached   no    duties    in    permitting    the   Plan    to

participate    in    that   Settlement,       and    Plaintiffs’    co-fiduciary

liability claims should be dismissed. In support of this argument,

Defendants point to the Illinois district court’s finding that the


                                       48
Settlement was “‘in all respects fair, reasonable, and adequate to

each of the Settling Parties and each Member’ of the Illinois

Settlement Class, including the Plan.”           Defs.’ Omnibus Mot. at 63

(internal quotation omitted).

     As discussed supra, however, the Illinois district court

expressly declined to determine whether the Plan’s fiduciaries

properly accepted the Settlement      because the two lawsuits covered

different time periods. Moreover, at this early stage of the case,

there are, at the very least, factual disputes as to whether

Plaintiffs and other Plan participants were represented adequately

in the Illinois litigation by either the lead plaintiffs or the

Plan fiduciaries and whether they received adequate notice that

ERISA   claims   were   being   released    in   the    Settlement.      Thus,

Defendants cannot prevail on the affirmative defense of release

through the instant Motion to Dismiss.

     Fourth, Defendants argue that “ERISA § 405(a)(3) requires a

co-fiduciary’s    actual     knowledge      of    the    principal     breach.

Consequently, allegations such as those raised here -– that a

fiduciary ‘should have known’ –- are insufficient, and claims of

‘actual knowledge’ are belied by the allegations in Plaintiffs’ own

Complaint.”      Defs.’    Omnibus   Mot.   at    64    (internal    citations

omitted).

     Under ERISA Section 405(a)(3), a co-fiduciary is liable for

the other fiduciary’s breach of fiduciary duty when: “(1) the


                                     49
co-fiduciary has actual knowledge of the other fiduciary’s breach;

(2) the co-fiduciary failed to make reasonable efforts to remedy

the other fiduciary’s breach; and (3) damages resulted therefrom.”23

In re Sprint Corp. ERISA Litig., 388 F. Supp. 2d at 1220 (internal

citations omitted).     In this case, Section 405(a)(3) is satisfied

insofar as Plaintiffs allege that State Street, Old Waste, the New

Waste Investment Committee, and its individual Trustee Members did

have actual knowledge of breaches of fiduciary duties by the other

Defendants, yet failed to make reasonable efforts to remedy those

other Defendants’ breaches of fiduciary duties.            See Third Am.

Compl. ¶ 192.

     Accordingly, for all the foregoing reasons, Count IX states a

valid claim for co-fiduciary liability against State Street, Old

Waste, the New Waste Investment Committee, and its individual

Trustee Members.

     D.    Count X States a Valid Claim for Fiduciary Breach against
           State Street

     Count X of the Third Amended Complaint alleges fiduciary

breaches occurring during the Third Claim Period (February 7, 2002

through   July   15,   2002)   against   State   Street.   According   to

Plaintiffs, State Street failed to conduct an adequate review of

potential fiduciary breach claims that might have been asserted



     23
          An additional necessary predicate for co-fiduciary
liability under this subsection is that another fiduciary have
committed a breach of fiduciary duty.

                                    50
against the Old Waste Fiduciaries and released such claims in the

Texas      Securities       Settlement         without     obtaining       adequate

consideration.

     State Street moves to dismiss Count X on three grounds.

First, it argues that this Count is barred by the Texas Securities

Settlement.    Specifically, State Street points out that “plaintiff

Harris,    represented      by    the    same    counsel    appearing     for   all

plaintiffs    in     this   case,       appeared   in    the     Texas   Securities

Litigation    and     objected     to    the    adequacy    of    the    settlement

specifically for Plan participants holding potential ERISA claims.

Plaintiff Harris and his lawyers ultimately reached a settlement

with the lead plaintiffs, pursuant to which the recovery for plan

participants was changed (to get the settlement concluded without

further delay) and pursuant to which Harris withdrew his objection

with prejudice.”      State Street’s Mot. at 8 (emphasis in original).

According to State Street, “[h]aving withdrawn an objection to the

settlement in Texas, plaintiffs cannot now be heard to argue that

the final version of the Texas Settlement was not adequate for Plan

participants and that they can now sue State Street for not

pursuing     claims     that     plaintiffs     raised     in    Texas   and    then

abandoned.”    Id.

     As Plaintiffs correctly point out, however, State Street was

not a party to the Texas Securities Settlement. See Defs.’ Omnibus

Mot., Ex. 8, ¶ A.3 (defining “Releases” as “Waste Management and


                                          51
all   of   its     predecessors     and      present   and     former   parents,

subsidiaries and affiliates, and each of their respective past and

present    directors,     officers,   employees,       partners,     principals,

agents,    attorneys,       advisors,        consultants,      representatives,

accountants      and   auditors   (including     without     limitation   Arthur

Andersen LLP and PricewaterhouseCoopers LLP), and the Individual

Defendants and each of their heirs, executors, administrators and

assigns.”).       Thus, the Texas Securities Settlement cannot bind

Plaintiffs as to claims against State Street because it was a non-

party to the Settlement and the litigation.24

      Second,     State   Street    maintains      that      “the   obvious   and

dispositive problem with plaintiffs’ alleged ‘potential’ ERISA

claim[s] is that actions by corporate officers in the evaluation

and pursuit of a corporate merger are not fiduciary acts for which

a claim may be made under ERISA.”                State Street’s Mot. at 9

(internal citations omitted).             It argues, therefore, that the

decisions it made in connection with the Merger are not subject to


      24
          Plaintiffs also argue that because “Plaintiff Harris may
have effectuated a partial recovery from Old Waste in the Texas
securities settlement does not prevent him from continuing to
pursue the allegations in Count Ten to restore to the Old Waste
Plan additional losses resulting from the acts and omissions of
State Street, which is jointly and severally liable along with
other fiduciaries of the Plan for its breaches.” Pls.’ Opp’n to
State Street’s Mot. at 27-28. As State Street points out, however,
“the fiduciary breach alleged against State Street, about released
claims, is distinct from the alleged fiduciary breaches by the
other defendants. Because State Street and the released parties
did different things, their exposure to liability could in no sense
be ‘joint and several.’” State Street’s Reply at 16 n.8.

                                        52
ERISA’s fiduciary requirements.

     As discussed, infra, however, “[i]t is typically premature to

determine a defendant’s fiduciary status at the motion to dismiss

stage of the proceedings.”         In re Elec. Data Sys. Corp. “ERISA”

Litig., 305 F.Supp.2d at 665.       In the instant case, it is not hard

to imagine a set of facts that would justify a conclusion that

State Street was performing fiduciary functions when it made

decisions in connection with the July 1998 Merger.                     Accordingly,

State Street’s argument regarding its fiduciary status is premature

and, therefore, unpersuasive.

     Third, State Street argues that the finding of the Texas

district court in the Texas Securities Litigation that “substantial

due diligence was performed . . . on behalf of Old Waste before the

merger,”      Defs.’    Omnibus    Mot.,     Ex.    G    at    183,     “completely

undermine[s] the factual basis of liability asserted against State

Street -- that viable ERISA claims about due diligence should have

been apparent to State Street and were imprudently released, and

that the Plan thereby suffered loss in the Texas settlement.”

State Street’s Reply at 15.

     As Plaintiffs point out, however, the Texas district court’s

finding was directed exclusively at the question of whether the

allegations in the Texas Securities Litigation were adequate to

“raise   a   strong    inference   of    scienter       to    support    claims   of

fraudulent     misrepresentation”        under     the        Public     Securities


                                        53
Litigation Reform Act.      Defs.’ Ex. G at 184.     That finding did “not

even address, much less conclusively establish, that the Plan did

not   have   viable   potential   causes   of   action   under   ERISA   not

available to the plaintiffs in the Texas Securities Litigation

against the Old Waste Fiduciaries for not conducting a prudency

review of the proposed Merger or for causing the Plan to acquiesce

in a Merger that was not in the best interest of the Plan and its

participants, as Plaintiffs allege.”        Pls.’ Opp. to State Street’s

Mot. at 30 (internal quotations omitted).

      Accordingly,    for   all   the    foregoing   reasons,    the   Court

concludes that Count X states a valid claim for fiduciary breach

against State Street.

      E.     Plaintiffs Need Not Show an Identifiable Loss Resulting
             Directly from State Street’s Allegedly Imprudent Actions

      State Street moves to dismiss Counts VI - X on the ground that

Plaintiffs have failed to plead facts which, if proven, would

properly support a conclusion that the Plan incurred a loss as a

result of its decision to secure recoveries by participating in the

Illinois and Texas Securities Settlements. See State Street’s Mot.

at 3-4.      As this Court has previously held, however, Plaintiffs

need not plead causation. See Chao v. Trust Fund Advisors, 2004 WL

444029, at *6 (“[O]nce [Plaintiffs] ha[ve] proven a breach of

fiduciary duty and a prima facie case of loss to the plan,

Defendants must then prove that the loss was not caused by their

breach of fiduciary duty.”) (citing Martin v. Feilin, 965 F.2d 660,

                                    54
671 (8th Cir. 1992), and Whitfield v. Lindemann, 853 F.2d 1298,

1304-05 (5th Cir. 1988)); Roth v. Sawyer-Cleator Lumber Co., 16

F.3d 915, 917 (8th Cir. 1994) (same); In re Enron Corp. Sec.,

Derivative & ERISA Litig., 284 F.Supp.2d at 579-80 (same), and

cases cited therein.

       Accordingly,     because     Plaintiffs       have   pled     both   fiduciary

breach and injury, the Court will not dismiss Counts VI-X on the

ground that they have failed to show an identifiable loss resulting

directly from State Street’s allegedly imprudent actions.25

       F.     It Is Premature for the Court to Rule as a Matter of Law
              Whether Old Waste Acted in a Fiduciary Capacity in Taking
              the Actions at Issue in This Case

       Defendants argue that Plaintiffs’ First and Second Period

fiduciary and co-fiduciary breach claims against Old Waste fail

because Plaintiffs cannot show that Old Waste acted in a fiduciary

capacity      in     taking   the      actions      at    issue     in    this     case.

Specifically,        Defendants     claim    that    “[t]he     Plan     documents    []

demonstrate that [Old Waste] is not the Plan’s named fiduciary, nor

does    the   Plan    allocate    to   [Old      Waste]   any     fiduciary      duties.

Rather, at all times pertinent to the allegations raised in the

Complaint, the Plan[] provide[s] for an Administrative Committee



       25
       Defendants cite Dura Pharm., Inc. v. Broudo, 544 U.S. 336
(2005) in support of their argument that Counts VI - X should be
dismissed on the ground that Plaintiffs cannot show that State
Street directly caused a loss to the Plan. Dura Pharm., Inc. is,
however, inapposite, because it relates to the Securities Exchange
Act of 1934, not ERISA.

                                            55
and an Investment Committee, and specifically identifie[s] the

duties and responsibilities of each.        [In addition,] [t]he Plan

allocate[s] to [Old Waste] no authority or duty to appoint, remove,

or monitor members of those Committees.”         Id.   Plaintiffs contend

that “[a]lthough Old Waste was not named as a fiduciary in the

governing plan documents, . . . Old Waste functioned as a fiduciary

and . . . is liable under the principles of respondeat superior in

any event.”     Pls.’ Opp’n to Defs.’ Omnibus Mot. at 23.

     “It cannot be seriously disputed that, under ERISA, [Old

Waste] . . . is subject to ERISA’s fiduciary standards only when it

acts in a fiduciary capacity.”       Sys. Council EM-3 v. AT&T Corp.,

159 F.3d 1376, 1379 (D.C. Cir. 1998) (internal citation omitted).

“[W]hether [a party] is an ERISA fiduciary turns upon whether [that

party]    has   discretionary   authority   or   responsibility   in   the

administration of a plan or regarding the disposition of plan

assets.” Int’l Bhd. of Painters and Allied Trades Union and Indus.

Pension Fund v. Duval, 925 F.Supp. 815, 828 (D.D.C. 1996) (citing

29 U.S.C. § 1002(21)(A).26       “Mere influence over a fiduciary’s


     26
          Under ERISA, a party is a fiduciary

     to the extent (i) he exercises any discretionary
     authority or discretionary control respecting management
     of such plan or exercises any authority or control
     respecting management or disposition of its assets,
     (ii) he renders investment advice for a fee or other
     compensation, direct or indirect, with respect to any
     moneys or other property of such plan, or has any
     authority or responsibility to do so, or (iii) he has any
                                                     (continued...)

                                   56
decisions        regarding    a   plan   is         not   enough    to    constitute

discretionary control, triggering ERISA liability.”                   Int’l Bhd. of

Painters and Allied Trades Union and Indus. Pension Fund, 925

F.Supp. at 828 (citing Fink, 772 F.2d at 958).

       “Whether a [party] is a fiduciary is a fact-bound inquiry

depending upon the degree of [the party’s] discretion or control

that is vested in the [party].”               Int’l Bhd. of Painters & Allied

Trades Union & Indus. Pension Fund, 925 F.Supp. at 828 (citing

Mertens v. Hewitt Assocs., 508 U.S. 248, 260 (1993) and Schloegel

v. Boswell, 994 F.2d 266, 271 (5th Cir. 1993)); see Varity, 516

U.S.        at   502-03   (emphasizing        the     fact-specific       nature   of

ascertaining whether a plan administrator is acting in a fiduciary

capacity).         Moreover, “fiduciary status under ERISA is to be

construed        liberally,   consistent        with      ERISA’s    policies      and

objectives.”        In re Enron Corp. Sec., Derivative & ERISA Litig.,

284 F.Supp.2d at 544 (internal quotation omitted).                  Thus, “[i]t is

typically premature to determine a defendant’s fiduciary status at

the motion to dismiss stage of the proceedings.”                   In re Elec. Data

Sys. Corp. “ERISA” Litig., 305 F.Supp.2d at 665.                         See Bell v.

Executive Comm. of United Food & Commercial Workers Pension Plan

For Employees, 191 F. Supp. 2d 10, 16 (D.D.C. 2002) (same).


       26
        (...continued)
       discretionary authority or discretionary responsibility
       in the administration of such plan.

29 U.S.C. § 1002(21)(A).

                                         57
58
       Plaintiffs allege that Old Waste, “acting through the Old

Waste Board,” acted as a fiduciary with respect to the Plan because

it was “charged with, responsibility for, and otherwise assumed the

duty    of   appointing,     monitoring,       and,       when    and    if     necessary,

removing other Plan fiduciaries, including, but not limited to,

Members of the Old Waste Plan Committees, and the Trustees of the

Old    Waste   Plan.”       Third   Am.   Compl.      ¶    164.         Based       on   these

allegations, Defendants could prevail “only if the Court could rule

as a matter of law that [Old Waste] could never qualify as [a]

fiduciar[y] under ERISA.”           Bell, 191 F. Supp. 2d at 16.                    However,

“‘[d]etermining whether someone is a fiduciary is a very fact

specific inquiry which is difficult to resolve on a motion to

dismiss.’”         Id. (quoting In re Fruehauf Trailer Corp., 250 B.R.

168, 204 (D. Del. 2000)).           Thus, at this stage, the Court cannot

make such a ruling, for the Third Amended Complaint sufficiently

pleads facts that could ultimately entitle Plaintiffs to relief

against      Old   Waste.     Accordingly,      the       Court    will       not    dismiss

Plaintiffs’ claims against Old Waste on this ground.27




       27
        Defendants also argue that Plaintiffs’ First Period
fiduciary and co-fiduciary breach claims against the other Old
Waste Fiduciaries fail because Plaintiffs have failed to show that
they acted in a fiduciary capacity in taking the actions at issue
in this case. See Defs.’ Omnibus Mot. at 53-62. It is unnecessary
to address these arguments, however, because, as discussed supra,
those claims are time-barred under ERISA Section 413.

                                          59
IV.   CONCLUSION

      For the reasons stated, Defendants’ Omnibus Motion to Dismiss

the Third Amended Complaint is granted in part and denied in part

and State Street Bank and Trust Company’s Motion to Dismiss the

Third Amended Complaint is denied.

      An Order will issue with this Memorandum Opinion.28




                                          /s/
March 12, 2009                           GLADYS KESSLER
                                         U.S. DISTRICT JUDGE




      28
          The parties are cautioned, in the strongest possible
terms, to abide by the provisions of Fed. R. Civ. P. 59 and 60. As
the parties can observe, an enormous amount of research, analysis,
time, and effort has gone into the present Opinion and accompanying
Order. It is now time to proceed to discovery and the merits of
this case. Parties shall under no circumstances file motions for
reconsideration which merely repeat arguments made in the lengthy
briefs they have submitted for these Motions, and which fail to
meet the requirements of Fed. R. Civ. P. 59 and 60. See New York
v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995).         In the
unlikely event that any party, after careful consideration,
determines that such a motion is necessary, such motion shall not
exceed 10 pages and shall be filed within ten days of the date of
this Opinion; oppositions shall not exceed 10 pages and shall be
filed within ten days of the motion, and replies shall not exceed
5 pages and shall be filed within five days of the oppositions.

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