Full opinion text
OPINION AND ORDER LYNCH, District Judge. Plaintiffs A1 Pineiro, Richard Brooks, and Leonard Beaumont (collectively, “plaintiffs”) are participants in the Cooperative Retirement Income Plan (the “Plan”) that was maintained by Pan American World Airways (“Pan Am”) until it was terminated in 1991 as a result of Pan Am’s bankruptcy. They bring this action against defendant Pension Benefit Guaranty Corporation (“defendant” or “PBGC”), alleging that, after it was appointed to serve as trustee for the Plan and to oversee its termination, it breached its fiduciary duty to plaintiffs by taking a number of actions that were not in their best interests, and by failing to act with due care. Plaintiffs bring this suit pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., seeking removal of PBGC as trustee and other equitable relief, and under the Administrative Procedure Act, 5 U.S.C. § 706(1), seeking an order compelling PBGC to complete its process of issuing benefit determinations to Plan participants. Both parties now move for summary judgment. For the reasons discussed below, both motions will be granted in part and denied in part. BACKGROUND I. The Statutory Framework ERISA was enacted in 1974 to regulate the nation’s employee retirement plans, after Congress concluded that “the continued well-being and security of millions of employees and their dependents are directly affected by these plans; [and] that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits.” 29 U.S.C. § 1001(a). Thus, in addition to establishing the standards for ongoing pension plans, ERISA regulates the process by which plans are terminated, in order to ensure that beneficiaries of terminated plans receive the benefits to which they are entitled. To this end, Title IV of ERISA, which governs plans subject to termination,, provides that PBGC, a wholly-owned government corporation, will insure certain benefits provided by all employer-sponsored defined benefit plans, so that employees will receive them even when the plan itself does not have enough assets to cover its benefit liabilities. PBGC v. LTV Corp., 496 U.S. 633, 636-37, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). When an employer is no longer financially able to sponsor its retirement plan, PBGC may apply to a court for a decree of termination, in order to prevent the continued accrual of benefits from exponentially increasing PBGC’s liability for insured benefits. 29 U.S.C. §§ 1341, 1342(a), (c). When the court finds that a plan must be terminated, Title IV mandates that the court appoint a trustee “to terminate” the plan, and to replace the plan administrator, which oversaw the plan while it was ongoing. Id. § 1342(c). • In practice, PBGC has always applied to be appointed the trustee of terminated plans, and courts have invariably granted its application. LTV Corp., 496 U.S. at 637, .110 S.Ct. 2668. The trustee is given a number of powers that, combined, allow it to invest or liquidate plan assets, pay benefits, litigate, and generally perform any necessary task in administering the plan. Id. § 1342(d). The trustee is a fiduciary within the meaning of ERISA, id. § 1342(d)(3); id. § 1002(21), and therefore owes the plan and its beneficiaries duties of care and loyalty. The trustee must exercise its various powers for the exclusive purpose of providing benefits to participants and their beneficiaries, with the “care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity ... would use.” Id. § 1104(a)(l)(A)(i), (B). In addition, the trustee is given the same duties given to Chapter 7 bankruptcy trustees, id. § 1342(d)(3), including “closing] such estate as expeditiously as is compatible with the best interests of the parties in interest,” and “furnishing] such information concerning the estate and the estate’s administration as is requested by a party in interest,” 11 U.S.C. § 704. The trustee’s fiduciary duties are not absolute, however. Since terminating a plan usually involves allocating assets that are insufficient to cover the plan’s benefit obligations, the trustee is explicitly authorized to take a number of actions that might otherwise violate its fiduciary duties, such as recovering benefits paid to participants shortly before the plan was terminated, 29 U.S.C. § 1345(a), and limiting the payment of benefits to guaranteed benefits, id. § 1342(d)(l)(A)(iv). When the court issues a decree of termination, it sets a “termination date” as the date on which all benefits under the plan cease to accrue. Id. § 1348. Thereafter, the trustee notifies all plan participants and employers involved in the plan that it will be terminated. Id. § 1342(d)(2). As necessary, the trustee may recover debts to the plan, including benefit overpay-ments, and may liquidate the plan’s assets. Id. § 1342(d)(1)(B). Then the “plan administrator” (in practice, the trustee) must allocate the plan’s existing assets among those entitled to benefits, in the priority specified by § 1344(a). This may involve undertaking an intensive review of the plan documents, auditing its assets, and determining actuarial values in order to calculate the amount of benefits to which each participant is entitled under the plan. To assist in the calculations, PBGC and the plan administrator are required to provide a variety of plan information to the trustee. Id. § 1346. If the plan’s current assets are insufficient to cover its liabilities — in other words, if the plan is underfunded — PBGC, as the guarantor of pension benefits,' uses its own funds to pay those benefits that are “nonforfeitable” because participants’ entitlement to them has vested by the date of termination. LTV Corp., 496 U.S. at 637, 110 S.Ct. 2668. The process of determining which benefits are insured by PBGC can itself be complex, as PBGC must determine which benefits are nonforfeitable under the terms of the plan, and are not subject to the lengthy list of exceptions enumerated in § 1322(b). To this end, PBGC has promulgated a number of regulations that interpret the relevant statutory provisions and specify what types of benefits are guaranteed. See 29 C.F.R. pt. 4022. Because PBGC has always had itself appointed trustee of the plans it seeks to terminate, it must fulfill all of the functions of both trustee and guarantor with respect to all plans subject to termination. The termination framework ensures that those who are already receiving benefits at the time of the plan’s termination continue to receive them, and that those who have earned benefits receive some proportion of what they were expecting. LTV Corp., 496 U.S. at 636-37, 110 S.Ct. 2668. At the same time, however, the termination of an underfunded plan inevitably creates hardship for plan beneficiaries, as the termination often occurs concurrently with the employer’s bankruptcy and the loss of all of its employees’ jobs, and only limited benefits will be guaranteed and paid by PBGC. Moreover, plans involving thousands of participants necessarily require extended research into plan documents and practice, and the actuarial calculations and determinations as to whether a particular participant’s benefits are guaranteed can take years, subjecting the participants to financial uncertainty even as they approach the age at which they expected to retire. II. Pan Am’s Retirement Plan The following paragraphs summarize the facts asserted by the parties, indicating the areas in which disputes exist. Plaintiffs were employed as Pan Am ground personnel until they were involuntarily terminated on December 4, 1991, as a result of Pan Am’s bankruptcy and liquidation. (Pl.Mem.7.) All three had worked for Pan Am for at least 25 years when their jobs disappeared, and all were a few years short of 55, the age at which they would have become eligible for subsidized early retirement benefits. (Pl.Mem.7-8; Am. Compl. ¶¶ 8-10.) As employees, they were participants in Pan Am’s Cooperative Retirement Income Plan (the “Plan”), a defined benefit plan governed by ERISA. The plan was sponsored and administered by Pan Am, and covered over 39,000 employees. (Def.Mem.3.) Beginning in the 1980s, Pan Am’s increasing financial difficulties led it to seek, and obtain, a series of minimum funding waivers that allowed it to contribute less to the Plan that otherwise required by law. (Katz Aff. Ex. 37 at 4.) By 1991, the Plan was so severely underfunded that PBGC instituted proceedings to terminate it, pursuant to 29 U.S.C. § 1342(c), on the grounds that if the plan were allowed to continue, PBGC would have to “disburse substantial sums in order to provide plan benefits to plan beneficiaries.” In re Pan Am. World, Airways, Inc., Cooperative Retirement Income Plan, 777 F.Supp. 1179, 1181 (S.D.N.Y.1991). On November 25, 1991, this Court (the Hon. Michael B. Mukasey, U.S.D.J.) ordered the Plan terminated as of July 31,1991, the date at which Pan Am employees had constructive notice of the termination. Id. Pan Am and PBGC later agreed that PBGC should be appointed as trustee to terminate the Plan. (Def.Ex. 15.) Upon termination, PBGC began the process of recovering and valuing the Plan’s assets, receiving $110 million from the Pan Am bankruptcy estate in settlement of its claims in 1994. (Def. R. 56.1 Statement ¶ 29.) The process of valuation was complete by 1996. (Id.) At the same time, PBGC collected and audited participant data, an endeavor that was hindered by Pan Am’s allegedly “mislabeled and insufficient” records. (Def.Mem.9; Def. R. 56.1 Statement ¶ 23.) Thus, PBGC was forced to review every individual personnel file, collect and catalog missing information, and reconcile Pan Am’s information with that submitted by participants. PBGC completed its audit for participants who it had determined were not eligible for benefits because they were not Plan participants by early 1995, but did not complete its audit of non-vested participants until over a year later. (Def. R. 56.1 Statement ¶¶ 32, 35.) It finally produced a master database of all participant data in August 1997. (Id. ¶ 38.) Meanwhile, after valuing the Plan’s existing assets, PBGC began allocating the assets according to categories of benefit liabilities, as provided in § 1344. (Id. ¶¶ 29, 42.) This involved locating and collecting Plan documents in New York, New Jersey, and Florida, and auditing them to determine which ones actually governed the Plan. (Id. ¶ 41.) By March 1998, PBGC had finalized its collection of Plan documents, which consisted of 102 documents totaling 2,600 pages. (Id.) Even before it had finished collecting the Plan documents, PBGC had begun to issue benefit determination letters (“BDLs”), as it determined participants’ entitlement to benefits under the Plan and whether their benefits were guaranteed. (Id. ¶¶ 32-34.) In 1995, PBGC issued roughly 18,000 BDLs to Pan Am employees who were not entitled to benefits because they were not participants in the Plan, as well as those participants whose entitlements had not yet vested at the time of termination. (Def. R. 56.1 ¶ 52.) By May 1999, PBGC had issued all of the BDLs for which it had sufficient information to make a determination. As of April 2003, only 205 determinations remained to be made, 127 of which involved missing participants, and 78 of which involved recently discovered participants. (Id. ¶ 54.) Of the 49,459 BDLs issued, 4,161 were appealed, and PBGC’s Appeals Board has completed its review of all but 22 of the appeals. (Def.Mem.28.) Thus, PBGC took roughly eight years from its appointment as trustee of the Plan to finish issuing the bulk of its BDLs, a result that is perhaps not surprising in light of the limited resources that it was able to devote to the Plan. Upon being appointed trustee, PBGC assigned the administration of the Plan to its Trusteeship Processing Division 5 (“TPD 5”), which devoted between three and six employees to the Plan at all relevant times. (LaPiana Dep. I at 35-39.) In addition, PBGC hired outside contractors to assist with the workload. Office Specialists served as the Plan’s field benefits administrator, maintaining between two and ten auditors in a Rosedale, New York, office for the purposes of answering participant questions, collecting participant information, and reviewing participant and plan data. (Def. R. 56.1 Statement ¶ 19.) Office Specialists hired several former employees from Pan Am’s pension department to assist it in collecting Plan documents and interpreting Plan practices. (Id.) In 1995, PBGC relocated the Office Specialists group to Atlanta in order to reduce its operating costs, over the objections of Suzanne LaPiana, the Manager of TPD 5, who felt that the move would severely reduce the quality and timeliness of Plan servicing. (Katz Aff. Ex. 32.) PBGC also employed Milli-man USA as its actuarial contractor, to create a master list of all Plan participants, to calculate various benefit amounts and plan liabilities, and to create a computer program to calculate benefits. (Def. R. 56.1 Statement ¶¶ 22, 24.) By 1995, Plan participants were beginning to question PBGC’s administration of the Plan. In 1993, plaintiffs had formed the Association of Former Pan Am Employees, Inc. (“AFPAE”), to advocate on behalf of former Pan Am employees with respect to PBGC. (PI. R. 56.1 Statement ¶ 21; Def. Ex. 63.) AFPAE made the first of several Freedom of Information Act (“FOIA”) requests for information from PBGC in August 1995, seeking all documents relating to the decision to terminate the Plan and all records of PBGC’s actions as the Plan’s trustee. (Def. R. 56.1 Statement ¶ 67.) PBGC was apparently adequately responsive to this and subsequent AFPAE FOIA requests, as plaintiffs do not allege that they failed to receive any of the information requested in this manner. After plaintiff Brooks was denied subsidized early retirement benefits in 1997, he requested documents related to PBGC’s calculation of his benefits in order to facilitate his appeal. (Brooks Dep. at 126-27.) PBGC allegedly refused to provide this information except pursuant to a FOIA request (id.), although it waived the associated fees (Def.Mem.39 n. 18), because it viewed all Plan documents as “agency records” that could only be obtained through FOIA. Plaintiffs assert that they made other requests and were told to use FOIA (Katz Aff. Ex. 42), despite their lawyers’ repeated assertions that PBGC’s insistence on FOIA procedures was improper, since PBGC had an independent legal duty, as trustee of the Plan, to provide requested information to Plan participants. (Id.) III. The History of This Litigation This case has been litigated for almost as many years as it took PBGC to issue its benefit determinations. Plaintiffs filed suit in September 1996, before PBGC had issued BDLs for the bulk of the Plan participants, and before any of the plaintiffs had received their BDLs. The initial Complaint alleged that PBGC had breached its fiduciary duty as the Plan trustee by refusing to issue BDLs for five and a half years after being appointed trustee, delaying responses to FOIA requests, commingling Plan assets, and acting in its own financial interest to minimize guaranteed benefits, rather than in the interests of Plan participants. (Compilé 4, 12.) The case was assigned to Judge Preska, who then decided three motions to dismiss by PBGC, all centered on the issue of whether. PBGC acts in its capacity as trustee when it calculates benefits, and therefore owes fiduciary duties to the Plan and its participants. In November 1997, Judge Preska ruled on PBGC’s initial motion to dismiss the Complaint. Pineiro v. PBGC (“Pineiro I”), No. 96 Civ. 7392(LAP), 1997 WL 739581 (S.D.N.Y. Nov.26, 1997). She held that PBGC acted as guarantor in calculating benefit amounts, and that therefore its actions related to this function could not give rise to a claim for breach of fiduciary duty. Because 29 U.S.C. § 1346, which provides that PBGC or the plan administrator “shall furnish to the trustee” information regarding “the amount of benefits payable with respect to each participant,” applies even when PBGC is not appointed the trustee of a terminated plan, she concluded that PBGC must act as guarantor when it calculates benefits. Id. at *9-*10. In contrast, the issuance of benefit determinations, after the amounts had been calculated, appeared to be a trustee function, as Title IV gives the trustee the power to pay benefits, 29 U.S.C. § 1342(d)(l)(B)(i). Pineiro I, 1997 WL 739581, at *10-*11. Therefore, plaintiffs’ claim that PBGC violated fiduciary duties in calculating benefits necessarily failed, while their claim that the agency was dilatory in issuing BDLs could go forward. Judge Preska also suggested that plaintiffs amend their complaint to allege that, insofar as the delay in benefit calculations and the issuance of BDLs was due to PBGC’s actions as guarantor, PBGC had “unreasonably delayed” action and should be compelled to act, pursuant to § 706(1) of the Administrative Procedure Act (“APA”). Id. at *19 & n. 16; see also 5 U.S.C. § 706(1) (providing that federal courts may compel “unlawfully withheld or unreasonably delayed” agency action). Finally, Judge Preska resolved several other issues against the plaintiffs, finding that the trustee of a terminated plan had no duty to police PBGC’s actions as guarantor, that FOIA was the sole means by which Plan participants could obtain information about their benefits, and that as § 1342(a) specifically permitted PBGC to commingle plan assets, plaintiffs could not base a breach of duty claim on such commingling. Pineiro I, 1997 WL 739581, at *12-*18. Plaintiffs filed their second amended complaint on January 15, 1998, alleging once again that PBGC had acted as trustee in calculating benefits, and had violated its fiduciary duties. (Am.CompLIffl 39-41.) In support of this assertion, plaintiffs attached to the Amended Complaint an internal PBGC memorandum that suggested that PBGC itself viewed benefit calculation as a trustee function. (Id. Ex A.) The Amended Complaint also sought relief under 5 U.S.C. § 706(1) for PBGC’s unreasonable delay in issuing BDLs, to the extent that PBGC acted as guarantor. (Id. ¶¶ 85-86.) Finally, plaintiffs modified their allegations that PBGC had breached its fiduciary duty by failing to disclose information, claiming that PBGC had insisted that plaintiffs use FOIA to obtain benefits-related information that, as trustee, it was obligated to disclose under 11 U.S.C. § 704. (Id. ¶ 73.) A month later, PBGC filed its second motion to dismiss, arguing that the amended complaint simply re-alleged claims that had been dismissed as a result of its first motion. In Pineiro v. PBGC (“Pineiro II”), No. 96 Civ. 7392(LAP), 1999 WL 195131 (S.D.N.Y. Apr.7, 1999), Judge Pres-ka acknowledged that the law of the case doctrine would ordinarily preclude plaintiffs from raising the same claims that she had already dismissed, but found that the Amended Complaint and its attached exhibit “prompted a fresh look” at ERISA and her interpretation of its relevant provisions. Id. at *l-*2. She noted that § 1346, on which she had relied in Pineiro I in concluding that the calculation of benefits was a guarantor function, did .not “expressly forbid the trustee from calculating benefits,” and that “if the trustee were to carry out that responsibility, that would not be inconsistent with any provision of Title IV.” Id. at *2. Thus, in Pineiro II Judge Preska held that plaintiffs might be able to prove facts that would support their theory that PBGC had acted as trustee in calculating benefits, and denied PBGC’s motion to dismiss “as premature.” Id. PBGC then moved for reconsideration, and to certify the issue for interlocutory appeal to the Second Circuit; Judge Pres-ka denied both motions. In May 1999, PBGC renewed its motion to dismiss the Amended Complaint, and iii March 2000, Judge Preska issued a third opinion, denying the motion and expanding on her reasoning in Pineiro II. Pineiro v. PBGC Pineiro III”), No. 96 Civ. 7392 (LAP), 2000 WL 282894 (S.D.N.Y. Mar.15, 2000). She reiterated her conclusion that, taking the provisions of Title IV together, the statute does not expressly prohibit the trustee from calculating benefits, and that therefore plaintiffs must be given the opportunity to prove that PBGC acted as trustee in calculating benefits. Id. at *2. She vacated that portion of Pineiro I that had held that PBGC as trustee had no duty to police the actions of PBGC as guarantor, finding that because § 1303(f)(1) allows the trustee to sue PBGC, “plaintiffs may state a claim for breach of fiduciary duty in cases where the PBGC takes actions as a guarantor that are uncontested by the PBGC as trustee due to conflicting interests.” Id. at *3. Judge Preska also held that, insofar as PBGC, in its capacity as trustee, was obligated to provide information about the Plan upon request, see 11 U.S.C. § 704, its refusal to do so except pursuant to FOIA’s burdensome procedures could constitute a breach of fiduciary duty. Pineiro III, 2000 WL 282894, at *5-*6. Finally, she dismissed plaintiffs’ claim of breach of fiduciary duty arising from PBGC’s alleged mishandling of Plan participants’ appeals of their BDLs, ruling that PBGC’s administrative review process was a governmental function that was not subject to a fiduciary duty. Id. at *4. Not content to proceed with discovery on plaintiffs’ alternate theories of breach of fiduciary duty and unreasonable delay of agency action, PBGC sought, and obtained, certification for an interlocutory appeal to the Second Circuit Court of Appeals. Judge Preska then stayed all further proceedings, pending the Circuit’s review; the case was consequently stayed from April 2000 until November 2001. Although the Court of Appeals had granted PBGC’s motion for leave to appeal, it later issued a summary order dismissing the appeal because the certification was improvidently granted. Pineiro v. PBGC, 22 Fed.Appx. 47 (2d Cir.2001) (unpublished opinion). The panel reasoned that its decision on the fiduciary duty issue would not terminate the case, since if it found that PBGC acted as guarantor in calculating benefits, plaintiffs would simply proceed with their APA claim. Id. at 49. Moreover, a more developed record would help the court to resolve the “complicated questions of statutory interpretation,” which the panel would be “unwilling to decide ... without first soliciting an amicus brief from the Department of Labor, and perhaps ... from others as well.” Id. The case was reassigned to me in September 2000, while district court proceedings were stayed pending the Circuit’s decision. Following the return of the case from the Court of Appeals at the end of 2001, discovery finally began in earnest in early 2002. Having now completed discovery, the parties cross-move for summary judgment. DISCUSSION I. The Parties’ Contentions Both parties’ summary judgment papers are primarily devoted to re-arguing the merits of Pineiro III, focusing on whether PBGC is subject to a fiduciary duty to Plan participants. Although both Judge Preska and the Second Circuit believed that discovery would clarify the questions of statutory interpretation that are fundamental to this case, neither party relies on facts learned in discovery in making their arguments as to what are essentially legal, not factual, issues. Resolving the question of PBGC’s fiduciary duty entails discerning the statute’s direction as to how PBGC should divide its functions when it serves as trustee and guarantor for a single plan, so that even if discovery revealed that PBGC in fact internally distinguished between its guarantor and trustee functions, or promulgated regulations on the subject, the question would remain whether PBGC’s actions in this respect were consistent with the statute. Thus, even after a year of discovery, determining whether PBGC acts as trustee in calculating benefits, and is therefore subject to fiduciary duties, involves extrapolating from the powers and duties given to the trustee by Title IV, as well as the statute’s structure and legislative history. It is also striking, in view of the multiplicity of judicial opinions that this case has already occasioned, that neither party attempts to invoke the law of the case doctrine. This is perhaps understandable since, even after four decisions, very few legal issues have been authoritatively decided. Judge Preska herself vacated most of Pineiro I, and Pineiro III was considered by the Second Circuit but neither approved nor disapproved. The Court of Appeals’ opinion itself did not establish any principles of law to guide the parties. Thus, notwithstanding the amount of judicial and attorney effort that has gone into this case, both parties are, in a sense, starting from scratch, and their legal arguments reflect the fact that the past seven years of litigation have yielded little progress. Plaintiffs argue that, as Judge Preska concluded in Pineiro III, the broad powers given to the trustee include the power to calculate benefits. Moreover, the fact that the trustee must be provided with information regarding a plan’s asset value and present liabilities, and is specifically given the power to hire actuaries, indicates congressional intent to place the responsibility for benefit calculations with the trustee. (Pl.Mem.35-38.) PBGC was therefore subject to the trustee’s fiduciary duties in taking over the Plan and issuing BDLs. It allegedly breached its duty of loyalty by failing to separate its trustee and guarantor functions, and by taking actions in its own interest rather than in the interests of Plan participants. It also allegedly breached its duties of care and loyalty in taking an unreasonable amount of time to calculate and issue benefits, inadequately staffing the Plan, employing inadequate contractors, failing to properly interpret Plan documents, failing to disclose participant documents except through FOIA, and failing to provide an adequate appeals procedure. (Pl.Mem.44^18.) Plaintiffs argue that they have established these breaches as a matter of law, and are therefore entitled summary judgment and to “appropriate equitable relief’ under § 1303(f), including the removal of PBGC as trustee and the appointment of a private trustee. (Am. Compl. ¶ 83; Pl.Mem.44.) PBGC argues that Judge Preska was right the first time, and seeks a return to the holding of Pineiro I, contending that Pineiro III incorrectly held that Title TV allows the trustee to calculate benefits. PBGC contends that the trustee’s duties with respect to a terminated plan are essentially ministerial. Because the statutory trustee is appointed “to terminate” a plan, 29 U.S.C. § 1342(c), the trustee’s participation ends relatively soon after the termination date set by the court. (Def.Mem.23; Def. Opp. 6.) Thus, once PBGC had collected the assets of the Plan, it ceased to function as trustee, and took all subsequent actions in its governmental, guarantor capacity. (Def.Mem.23.) In addition, defendant argues that even had it been subject to a fiduciary duty, plaintiffs have proffered no facts that could establish that defendant breached that duty. (Id. 27-34.) II. Summary Judgment Standard When adjudicating motions for summary judgment, a court must resolve all ambiguities in favor of the nonmoving party, although “the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). Summary judgment is then appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). To establish a genuine issue of material fact, the opposing party “ ‘must produce specific facts indicating’ that a genuine factual issue exists.” Scotto, 143 F.3d at 114 (quoting Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations omitted). “The mere existence of a scintilla of evidence in support of the [non-mov-ant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Pocchia v. NYNEX Corp., 81 F.3d 275, 277 (2d Cir.1996) (quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505). III. The Trustee’s Role in Terminating a Plan Title IV is designed to protect the interests of retirement plan beneficiaries when the employer is no longer able to sponsor the plan, and the plan has insufficient assets to cover its liabilities. These beneficiaries are unquestionably the most vulnerable of those protected by ERISA, as they often lose their jobs as a result of their employer’s financial difficulties, even as they face the possibility that their expected pension benefits will be severely reduced or lost altogether. S.Rep. No. 93-383 (1973), reprinted in 1974 USCCAN 4889, 4892. Thus, Title IV provides two protections for participants in terminated plans: mandatory benefits insurance administered by PBGC, and the appointment of a trustee to ensure that the termination of the plan is carried out in the best interests of the beneficiaries. Congress could have assigned sole responsibility for plan terminations to PBGC in its capacity as agency and guarantor; instead, it provided that a trustee subject to duties of care and loyalty should oversee each termination. This represents a judgment that simply providing the insurance and assigning the guarantor sole responsibility for terminating a plan would not sufficiently protect beneficiaries’ rights and interests. Thus, Title IV must be interpreted in light of the fact that Congress expected the termination process to be regulated by the fiduciary-beneficiary relationship. It is also clear, however, that Congress could not have intended the trustee to be bound to unmodified traditional fiduciary standards of conduct. Most fundamentally, Congress provided that PBGC, always the guarantor of terminated plan benefits, could also act as trustee, 29 U.S.C. § 1342(b), allowing the agency dual roles that, to some extent, create an inherent conflict of interest. While PBGC need not always serve as trustee, a fact that in itself renders the statute’s provisions somewhat indeterminate, the statute’s contemplation of PBGC’s performing dual roles colors its conception of the trustee as a fiduciary, because it establishes that the trustee, unlike common law trustees, may have multiple fiduciary obligations to different plans, and thus conflicting responsibilities. Title IV also makes the trustee’s fiduciary duty subject to the duties involved in termination, and authorizes the trustee to take various actions that, if performed by a traditional fiduciary, would constitute breaches of duty. For a striking instance, PBGC, in its capacity as trustee, is permitted to commingle the assets of the plans it trustees. Id. § 1342(a). Thus, Congress clearly envisioned the trustee, at least when PBGC plays the role, as having somewhat different responsibilities than a traditional, common law fiduciary or even a Title I fiduciary of an ongoing plan. Plaintiffs envision PBGC in its trustee role as a traditional fiduciary, bound to the standard of “the punctilio of an honor the most sensitive,” Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928) (Cardozo, C.J.), and conclude that the agency is obliged to maintain absolute separation between its functions, to act as trustee solely in the interests of the plan, and even under some circumstances to sue itself. (Pl.Mem.39-41.) But because Congress deliberately assigned PBGC the possibility of inhabiting dual roles, with potentially conflicting obligations, it is difficult to determine the boundaries of the trustee’s fiduciary obligations. Nonetheless, Title TV’s language, structure, and legislative history indicate that Congress intended that the trustee, not PBGC as guarantor, would have responsibility for reconstructing the plan’s documents, as well as calculating and paying benefits. Subject to the limitations inherent in the statute, when PBGC serves as trustee, it performs these functions as a fiduciary to the plan’s beneficiaries. Title IV provides that, after PBGC has sought and obtained the termination of an underfunded plan, the court appoints a trustee, and “authorize^] him[] to terminate the plan in accordance with the provisions of this subtitle.” 29 U.S.C. § 1342(c). As an initial matter, the parties disagree on what it means to “terminate” a plan, what tasks and functions termination entails, and when termination is complete. PBGC argues that terminating a plan involves merely collecting its assets, recovering amounts owed to the plan, and turning those assets over to PBGC for payment of benefits. (Def.Mem.23.) Only then does PBGC, as guarantor, begin to calculate benefit amounts. (Id.) This theory is belied, however, by the broad powers granted to the trustee. The fact that the trustee may “do any act authorized by the plan or this subchapter to be done by the plan administrator,” 29 U.S.C. § 1342(d)(l)(A)(i), suggests that terminating a plan is more akin to administering an ongoing plan than PBGC asserts (Def.Opp. 2-4). If terminating a plan consisted merely of rounding up the assets and transferring them to PBGC, there would be no need for the trustee to perform the functions of the former plan administrator, which could include interpreting the plan and doing any other act authorized by the plan itself. Other powers given to the trustee, such as litigating on behalf of the plan, 29 U.S.C. § 1342(d)(l)(B)(iv), and investing the plan’s assets, id. § 1342(d)(l)(A)(iii), also indicate that plan termination can be a long-term process involving ongoing oversight of the plan as a whole. PBGC argues that the fact that the trustee’s fiduciary duties are expressly made subject to the provisions of Title TV, id. § 1342(d)(3), indicates that a Title IV trustee’s fiduciary duties are so limited that the trustee’s responsibilities in terminating a plan must be essentially ministerial. (Def.Mem.22-23.) Section 1342(d)(3) provides that a trustee has the same fiduciary duties of care and loyalty owed by fiduciaries of ongoing plans, as well as the specific duties of a Chapter 7 bankruptcy trustee, “[ejxcept to the extent inconsistent with the provisions of [Title TV].” There is no indication amongst the other provisions of Title IV, however, that the trustee’s fiduciary duties are drastically circumscribed, because the duties inhere in all discretionary actions taken by the trustee. 29 U.S.C. § 1002(21). As Judge Preska noted in Pineiro I, several of Title TV’s provisions mandate that the trustee take certain actions, including preventing the plan’s assets from injuring to the benefit of the employer, id. § 1103(c), avoiding increasing PBGC’s liability, id. § 1342(d)(l)(Á)(vi), and allocating the assets to some participants at the expense of others, id. § 1344. Pineiro I, 1997 WL 739581, at *2. These provisions supersede the trustee’s fiduciary duty because they require that certain actions be taken, even if such actions would normally be a breach of the duty of loyalty if taken by a traditional fiduciary. Id. Aside from these mandatory provisions, the trustee is given a number of discretionary powers that allow it to administer the plan and manage its assets. Since the trustee’s discretion with respect to these powers, which provide the bulk of its oversight authority, is not limited, and plan trustees are bound by fiduciary duty to the extent that they exercise discretionary authority with respect to the plan, 29 U.S.C. § 1002(21), 1104(a), the trustee’s fiduciary duties inhere in its general oversight of the plan. While the scope of the duties must be determined in light of the fact that the trustee is not a traditional fiduciary, and the needs of participants of terminated plans are often different from the needs of ongoing plan participants, the “provisions of [Title IV]” are certainly not so inconsistent with fiduciary duties as to render them meaningless, as PBGC appears to argue. (Def.Mem.23.) PBGC’s interpretation would render § 1342(d)(3)’s explicit imposition of the general duties of care and loyalty on Title TV trustees superfluous. Thus, there is no basis to believe that the trustee’s responsibilities and fiduciary duties are so limited that terminating a plan involves only ministerial functions. This interpretation is supported by the fact that the statute does not provide an endpoint at which the plan is completely terminated and the trustee’s tasks are complete. Section 1348 provides that the court shall set a “termination date” as the date on which benefits stop accruing. This date is the date on which all participants had constructive notice that the plan might be terminated. In re Pan Am. World Airways, 777 F.Supp. at 1184. The trustee who is authorized “to terminate” the plan under § 1342(c) is often not appointed until after the termination date, however, indicating that the termination date is relevant only to accrual of benefits. Accordingly, both parties appear to agree that it is not the date as of which the plan is “terminated” for purposes of the trustee’s functions. (Def.Opp. 6-7.) Here, the Plan’s termination date was July 31, 1991, but PBGC did not become trustee until December 1991. (Def.Ex.15.) Plan “termination” is not defined in the statute, but there is evidence that terminating a plan is an extended process. The trustee is given the power to pay benefits, and to receive payments for guaranteed benefits from PBGC, 29 U.S.C. § 1342(d)(l)(b)(i), (iii), without any indication that these duties might end, suggesting that the trustee’s responsibilities continue as long as there are living participants and survivors entitled to monthly benefit payments. This in turn indicates that the plan remains in existence (since there could be no trustee without the plan) as long as there are benefits to be paid, even decades after the decree of termination. This is not as counterintuitive as it first appears, because the plan as an entity consists of more than just its assets. As long as there are participants receiving benefits, there is the possibility that the trustee will have to provide information about benefits and the plan’s provisions, even after participants die and their spouses become entitled to survivor benefits. In addition, litigation conducted by the trustee on behalf of the plan, see id. § 1342(d)(l)(B)(iv), could last for years after the decree of termination, as it has here. Thus, while the plan is no longer operative, in the sense that benefits are no longer accruing and new participants no longer coming in, the plan as a set of obligations and liabilities continues to exist as long as there are remaining participants. Since the trustee’s powers include duties that will continue throughout the plan’s existence, it is clear that the trustee remains involved with the plan long after benefits have been calculated and participants’ rights determined. Thus, PBGC’s emphasis on the distinctions between “terminated” and “ongoing” plans, and between trustee and plan administrator (Def.Mem.24), is somewhat exaggerated. While participants’ rights under a plan change drastically when the plan is subject to termination, there are fewer differences in the administrative needs of ongoing and Title IV plans than PBGC would suggest, since both require calculating and paying benefits, interacting with and giving information to participants, managing the plan’s assets, and litigating on behalf of the plan. See 29 U.S.C. § 1342(d). Thus, contrary to PBGC’s arguments (Def.Mem.24-25), considerable administration is involved in overseeing terminated plans, much of it discretionary. The scope and nature of the powers given to the trustee indicate that this day-to-day operation, including calculation of benefits under the plan, is part of the trustee’s responsibilities. The trustee’s power to “do any act” in the power of the plan administrator will often include the power to interpret the plan in order to determine eligibility for benefits and to calculate benefits, since these are the primary responsibilities of the plan administrator while the plan is ongoing. Dycus v. PBGC, 138 F.3d 1367,1369 (10th Cir.1998). This broad grant of responsibility suggests that Congress intended that the trustee, just like the plan administrator, would be in charge of the operation of the plan. Moreover, the trustee is explicitly given the power to pay benefits, 29 U.S.C. § 1342(d)(1)(B)®, which necessarily implies the power to calculate benefit amounts. To this end, Title IV provides the trustee with two types of assistance. First, § 1346 mandates that “the corporation [PBGC] and the plan administrator of any plan to be terminated ... shall furnish to the trustee such information as [they have] and ... can obtain,” with respect to the amount of benefits payable to each participant, the amount of guaranteed benefits, the present value of plan assets, and “any other information with respect to the plan the trustee may require in order to terminate the plan.” This provision ensures continuity between the plan administrator and the trustee, as the administrator is, at the time of the decree of termination, the party most knowledgeable about the specifics of the plan and participant entitlement under its terms. The fact that the trustee is presumed to need detailed information as to the plan’s assets, benefits payable, and amount of basic benefits guaranteed, indicates that the trustee is intended to be the entity responsible for calculating whether full benefits can be paid, or whether the plan will have to rely on PBGC’s guarantee. With this information, the trustee can ascertain the extent to which the plan is underfunded, which will influence whether it limits payment under the plan to basic benefits, as § 1342(d)(l)(A)(iv) allows it to do, or continues to pay full benefits. The trustee can also use the information to make the allocation of assets to pay certain types of benefits, as required by § 1344. These tasks necessarily require calculating actual benefit amounts and interpreting the plan to determine entitlements; thus, § 1346’s informational requirements further the conclusion that it is the trustee who is to calculate benefits. Second, the statute provides that the trustee may “appoint, retain, and compensate accountants, actuaries, and other professional service personnel,” and directs PBGC to promulgate regulations to govern this function. Id. § 1342(h)(2). The trustee would have no need to retain actuaries, who generally calculate benefits based on premiums paid and various actuarial factors, if it were not to calculate benefit amounts. Indeed, this provision would make little sense if PBGC were correct that the trustee’s role is essentially limited to collecting the plan’s assets and transferring them to PBGC. The trustee’s power to pay benefits is paired with the power to “receive any payment made by the corporation to the plan under this subchapter.” Id. § 1342(d)(l)(B)(iii). These powers, taken together, suggest that the trustee calculates the benefits to which plan participants are entitled, PBGC as guarantor then calculates the proportion of those amounts that is guaranteed under § 1322(a) and pays that amount to the trustee, and the trustee in turn pays the guaranteed amount to each participant. See Pineiro I, 1997 WL 739581, at *10-*11. Indeed, this is exactly the division of labor that the legislative history envisions for the trustee and PBGC as guarantor: “After a final decree that a plan should be terminated, the trustee is to collect amounts due the plan, pay benefits in accordance with the allocation rules already discussed, and receive payments from the insurance Corporation for funding of guaranteed benefits.” S.Rep. No. 93-383, 1974 USCCAN at 4976. This statement is yet another indication that Congress intended that the trustee would oversee the operation of the plan, with all its attendant responsibilities, while PBGC in its capacity as guarantor would have the comparatively limited role of determining which benefits were guaranteed, and paying the guaranteed portion of each individual’s benefits. Thus, Title IV envisions a broad role for the trustee that includes the powers formerly held by the plan administrator, the power to hire actuaries, the power to calculate and pay benefits, and to litigate on behalf of the plan. These broad powers in themselves suggest that PBGC’s responsibility for plan termination, in its capacity as guarantor, is proportionately limited. Moreover, the statute does not contain any provisions that suggest a broader role for PBGC as guarantor. The bulk of PBGC’s statutory powers concern imposing and collecting premiums, 29 U.S.C. § 1307, determining whether a plan should be terminated, and seeking a decree of termination, id. §§ 1341-42. PBGC is also given the power to litigate to enforce the provisions of Title IV, id. § 1303(e), to audit terminating plans, id. § 1303(a), to calculate the amount of benefits that are guaranteed, id. § 1322, and to promulgate regulations to carry out Title IV’s purposes, id. § 1302(b)(3). Thus, PBGC in its capacity as guarantor is not specifically given any powers of plan administration or benefits calculation. Rather, these powers are given to the “trustee,” indicating that these functions are to be performed by the plan fiduciary. Had Congress wished to allow PBGC to perform benefits administration functions free of any fiduciary duty, it would have imbued the corporation with these powers, independently of, and in addition or in place of, the trustee. Accordingly, when PBGC calculates and pays benefits, it does so as trustee. The fact that “[n]otwithstanding any other provision of [Title TV], the corporation is authorized to pool assets of terminated plans for purposes of administration, investment, [and] payment of liabilities of all such terminated plans,” id. § 1342(a), does not affect this conclusion. PBGC argues that the fact that “the corporation” is given this power means that PBGC controls plan assets in its capacity as guarantor, which in turn indicates that PBGC calculates benefits and administers the plan as guarantor rather than as trustee. (Def.Opp. 7.) The language is at best ambiguous. PBGC argues that when the statute refers to “the corporation,” it means “the corporation in its capacity as guarantor,” because it uses “the trustee” when it means to refer to the trustee. (Def.Mem.20.) There is no indication that the references to “the corporation” are anything more than references to PBGC as an entity, however. The statute defines “corporation” simply as “the Pension Benefit Guaranty Corporation,” 29 U.S.C. § 1301(a)(4), without any mention of its various functions, and given the statute’s authorization for PBGC to serve as trustee, id. § 1342(b), nothing in the statute warrants reading “the corporation” to entail PBGC’s guarantor function to the exclusion of its other responsibilities. Notwithstanding the indeterminacy of the pooling language, other Title IV provisions and the legislative history establish that the pooling provision is simply a clarification that PBGC, as the trustee of multiple plans, may pool plan assets as trustee, unlike private trustees, who were probably not expected to trustee multiple plans, and would not be entitled to pool plan assets in any event. First, § 1350 provides that the plan administrator (or the trustee) shall transfer the assets representing benefits due to missing participants to PBGC, so that it can hold them until the participant is found. Such a transfer “shall be treated as a transfer of assets from a terminated plan to the corporation as trustee, and shall be held with assets of terminated plans for which the corporation is trustee under section 1312.” Id. § 1350(a)(2) (emphasis added). Thus, PBGC pools and manages both missing participant assets and the assets of certain terminated plans, in its capacity as trustee. By referring to the assets of “terminated plans for which the corporation is trustee,” § 1350 also makes clear that the only plan assets that PBGC exercises control over, and can pool under § 1342(a), are those of plans “for which the corporation is trustee.” Thus, PBGC as guarantor has no general power over the assets of terminated plans; if a private trustee were to oversee a plan’s termination, that trustee, not PBGC, would hold and control the plan’s assets. Section 1350 also indicates that PBGC acts in its capacity as trustee in managing all of the assets that it pools, as it would not make sense for PBGC to pool the missing participants’ assets with the plan assets, while holding the missing participant assets as trustee and the plan assets as guarantor. This differentiation in PBGC’s capacities with respect to pooled assets from different sources would defeat the efficiency gained from pooling. Second, the legislative history establishes that PBGC is to manage pooled assets as trustee. PBGC argues that, pri- or to 1987, the wording of the pooling provision strongly suggested that PBGC’s control over plan assets was subject to a fiduciary duty, but was modified in 1987 to remove that language. (Def.Opp. 7-8.) The pre-1987 provision stated, “[PBGC] is authorized to pool the assets of terminated plans for purposes of administration ... not inconsistent with its duties to the plan participants.” 29 U.S.C. § 1342(a) (1986) (superseded). The fact that the current statutory language does not mention PBGC’s duty to plan participants, PBGC argues, reflects congressional intent that PBGC should manage assets in its guarantor capacity. The legislative history of the 1987 amendment indicates the contrary, however, stating that the amendment was not meant to change existing law in any way, but simply to “recognize[ ] in a more explicit way the long-standing practice of the PBGC of treating all pooled assets of terminated plans as available for the payment of obligations of any plan.” H.R. Rep. 100-391(1) (1987), reprinted in 1987 USCCAN 2313-1, 2313-127. The same report states that PBGC holds these assets “as trustee,” id. at 2313-79, and that it may use the assets for investments and payment of benefits, id. at 2313-127, which are powers that Title IV gives to the trustee. Thus, the purpose of removing the language, “not inconsistent with its duties to the plan participants” from the pooling provision was apparently to clarify that PBGC’s pooling assets would not be a breach of its fiduciary duties to any one plan, despite the traditional fiduciary rule that pooling would be a per se breach of duty. Id. Read as a whole, the legislative history of the provision’s current language indicates congressional intent to have PBGC manage pooled assets as trustee, just as was reflected in the pre-1987 language. Finally, PBGC argues that if Congress meant the trustee to calculate benefits, it would have provided for the possibility that PBGC would disagree with the trustee’s calculation of benefits, and the lack of a procedure for resolving such conflicts therefore indicates that PBGC alone is to calculate benefits, in its capacity as guarantor. (Def.Mem.21.) Title IV does provide a procedure for resolving these conflicts, however, when the trustee is a separate entity from PBGC. If PBGC were to disagree with the trustee’s calculations, it could simply pay the trustee for guaranteed benefits based on its own calculations of benefit amounts. The trustee could then sue PBGC to resolve the conflicting interpretations of the plan and recover any amounts wrongfully withheld. 29 U.S.C. § 1303(f). Conversely, when PBGC serves as both trustee and guarantor, this type of conflict simply will not arise; given PBGC’s statutory authorization to perform both roles without separating its functions (see infra Part IV.A), it is highly unlikely that PBGC would be calculating benefits twice, in each of its two roles. While Title IV does not explicitly provide that the trustee must calculate benefits, it is replete with indications that Congress intended that the trustee would be responsible for collecting plan documents and participant data, interpreting the plan’s provisions, and calculating benefits. This interpretation gives full effect to Congress’s purpose in creating the trustee to oversee plan terminations, while PBGC’s view of the trustee as passive and ministerial would render the trustee’s inclusion in Title IV essentially meaningless. The statute’s purpose of protecting employees whose benefits are threatened by their pension plan’s financial instability is best farthered by placing the functions most vital to participants’ well-being, interpreting the plan and determining benefits, with a fiduciary that is bound to act in their best interests. Taken together, the provisions of Title IV establish that, when PBGC is appointed a plan’s trustee following a decree of termination, it is subject to a fiduciary duty in all actions except those involving the function, statutorily reserved to the agency, of calculating the amount of benefits that are guaranteed under § 1322. Burstein v. Ret Account Plan for Employees of Allegheny Health Ed. and Res. Found., 334 F.3d 365, 381-82 & n. 23 (3d Cir.2003) (holding that PBGC acts as trustee for plans subject to termination except when it calculates guaranteed amounts under § 1322). Thus, plaintiffs may maintain their claims for breach of fiduciary duty based on PBGC’s calculation of benefit entitlements under the terms of the Plan, its issuance of BDLs, its general management of the Plan, and its interactions with Plan participants that related to its actions as trustee. Id. at 382 (stating that plaintiff had stated a claim “against the PBGC as administrator” for plan benefits based on its actions as trustee); Burstein v. Ret. Account Plan for Employees of Allegheny Health Ed. and Res. Found., 2003 WL 21771918 (3d Cir. Aug.l, 2003) (clarifying that in referring to PBGC “as administrator,” the court was using shorthand for PBGC’s functions as “statutory trustee”). IV. PBGC’s Alleged Breaches of Fiduciary Duty Plaintiffs allege that PBGC breached its fiduciary duties in a variety of ways. First, plaintiffs claim that PBGC has breached its duty of loyalty by failing to separate its trustee and guarantor functions. (Pl.Mem.46.) Second, they assert that PBGC’s management of the process of gathering Plan documents and information, calculating benefit amounts, and issuing BDLs, was so inadequate that it resulted in inordinate delays in issuing final benefit determinations, and was not carried out in the exclusive interests of Plan participants. (Am. Compl. ¶¶ 62-63; PI. Mem.11-25.) Third, PBGC allegedly failed to consider and honor relevant Plan documents and practices, resulting in plaintiffs’ receiving lower benefits (Am. Compl. ¶¶ 67; Pl.Mem.20-23), and wrongfully refused to reconsider its benefit calculations after discovering new data in 2001 (Pl.Mem.22). Fourth, plaintiffs allege that PBGC breached its duty to disclose information, by insisting that they use FOIA procedures to obtain Plan documents, in violation of 11 U.S.C. § 704(7), by issuing BDLs containing insufficient information, and by failing to disclose various decisionmaking processes. (Am Compl. ¶¶ 72-73; Pl.Mem.47-48.) Fifth, plaintiffs claim that PBGC acted to limit the survivorship benefits of spouses of deceased participants. (Pl.Mem.24-25.) Sixth, plaintiffs assert that PBGC denied them them right to appeal their BDLs by maintaining overly harsh procedural rules. (Am. Compl. ¶¶ 62; Pl.Mem.45.) Finally, PBGC allegedly attempted to interfere with plaintiffs’ source of funding for this litigation. (Pl.Mem.25.) A. Structural Conflict of Interest Plaintiffs assert that PBGC has failed to remedy the inherent, structural conflict of interest created by its performing the dual roles of trustee and guarantor. (Pl.Mem.44-46.) PBGC does act under an inherent conflict of interest, since PBGC-as-trustee, acting with participants’ interests in mind, presumably seeks the highest allowed benefits for each, while PBGC-as-guarantor must closely scrutinize the plan in light of the statute in order to determine which benefits are guaranteed, and to what extent. Plaintiffs concede that this inherent conflict cannot constitute a breach of the trustee’s fiduciary duty, however, as Congress has explicitly provided that PBGC may perform both functions for plans subject to termination, 29 U.S.C. § 1342(b); Pineiro I, 1997 WL 739581, at *7. (Pl.Opp. 19-20.) Yet they argue, somewhat circularly, that because PBGC has an inherently “conflicted decision-making process,” (Pl.Mem.39), it has therefore breached its duty of loyalty by not keeping its trustee and guarantor functions separate, maintaining separate legal counsel, maintaining procedures and guidelines separating the functions, or instructing its employees on the different functions. (Id. at 46.) Essentially, plaintiffs argue that PBGC should maintain two entirely separate bureaucracies to ensure that no conflict of interest ever arises. While giving lip service to the notion that they cannot claim that PBGC inherently breaches its fiduciary duty whenever it acts as trustee (Pl.Opp. 19-20), plaintiffs’ arguments ignore the implications of PBGC’s explicit statutory authorization to act in both capacities. While a traditional trustee is subject to an absolute fiduciary duty to act solely in the interests of its beneficiaries in all circumstances, Title IV explicitly qualifies the termination trustee’s duty by making it subject to the necessities of terminating the plan. 29 U.S.C. § 1342(d)(3). In addition, PBGC, when acting as trustee, is authorized to take actions, such as commingling the assets of the plans it administers as trustee, id. § 1342(a), that would almost certainly be per se breaches of fiduciary duty if done by traditional trustee. At the same time, Title IV nowhere provides that PBGC must separate its functions or maintain separate bureaucracies when it chooses to serve as trustee for a terminated plan. Cf. Pegram v. Herdrich, 530 U.S. 211, 225, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) (holding that as to Title I fiduciaries, “ERISA ... require[s] ... that the fiduciary with two hats wear only one at a time, and wear the fiduciary hat when making fiduciary decisions”). Congress specifically authorized a single agency, PBGC, to act in both capacities. If it intended to require such an unusual dual structure for the agency, it would surely have so specified. In light of PBGC’s authorization to take actions that might otherwise constitute fiduciary breaches, without requiring any separation of functions, there is no basis for construing its general duty of loyalty, 29 U.S.C. § 1104(a)(l)(A)(i), to include the duty to separate its functions. The statute contemplates that PBGC will have to balance its trus