Full opinion text
ORDER STORY, District Judge. This case comes before the Court on the Southern Company Defendants’ Motion to Dismiss Plaintiffs Amended Complaint [27] and Plaintiffs Motion for Leave to File Supplemental Brief [58]. Plaintiffs Motion for Leave to File Supplemental Brief [58] is GRANTED nunc pro tunc. For the reasons that follow, the Southern Company Defendants’ Motion to Dismiss [27] is GRANTED in part and DENIED in part. Background Plaintiff, a former employee of the Southern Company and a participant in the Southern Company Employee Savings Plan (the “Plan”), initiated this putative class action on June 30, 2004. He alleges that Defendants, in their capacities as fiduciaries of the Plan, violated the duties imposed on them by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132. The factual allegations underlying this controversy, taken from the Complaint and presumed true at this stage of the litigation, are as follows: I. Defendants, and their Roles vis-a-vis the Plan Plaintiff brings this action against, inter alia, the Southern Company (“Southern”), Southern Company Services, Inc. (“SCS”), the SCS Board of Directors (the “Director Defendants”), the Southern Company Employee Savings Plan Committee (the “ESP Committee”), and the Pension Fund Investment Review Committee (the “PFIRC”). Southern, according to the Complaint, exercised responsibility for the management of the Plan’s assets, as well as the appointment of Plan fiduciaries, including the Employee Savings Plan Committee (“ESP Committee”) members. (See Am. Compl. ¶¶ 14-15, 76-77.) Plaintiff further alleges that Southern was charged with communicating with Plan participants about the Plan. (Id. ¶ 78.) By virtue of the foregoing, Plaintiff contends that “Southern exercise[d] discretionary authority with respect to management and administration of the Plan and/or management and disposition of the Plan’s assets.” (Id. ¶ 15.) SCS, a Southern subsidiary and the Plan’s Sponsor, is alleged to have exercised responsibility for the management of the Plan’s assets, and the appointment of Plan fiduciaries, including the Trustee. (Id. ¶¶ 16-18.) Furthermore, Plaintiff alleges that at least some Plan documents indicate that SCS is the Plan’s Named Investment Fiduciary. (Id. ¶¶ 80-81.) Plaintiff likewise asserts claims against the SCS Directors, whom Plaintiff alleges were responsible for the appointment, supervision, and removal of other Plan fiduciaries, and were the actors through which SCS carried out its Plan duties. (Id. ¶¶ 19-25, 82-84.) According to the Complaint, SCS and its Directors were able to “exercise[] discretionary authority with respect to management and administration of the Plan and/or management and disposition of the Plan’s assets.” (See id. ¶¶ 18-19.) The ESP Committee, Plaintiff alleges, was a named fiduciary of the Plan, and was tasked with the “duty to administer the Plan[.]” (Id. ¶¶ 26-31, 85-88.) In particular, the Plan vested the ESP Committee with the “discretionary authority, power, and duty to[, inter alia,] take all actions and to make all decisions necessary or proper to carry out the Plan and to control and manage the operation and administration of the Plan.” (Id. ¶ 85.) The ESP Committee was also responsible for communicating with participants, and providing participants with the information and materials required by the Plan and/or ERISA. (Id. ¶ 87.) By virtue of these powers, Plaintiff contends that the ESP Committee “exercised discretionary authority or management of the administration of the Plan.” (Id. ¶ 88.) In addition, Plaintiff brings suit against the PFIRC — a Committee established by the SCS Board, comprising select senior officers of companies within the “Southern family.” (Id. ¶ 32.) According to the Complaint, the PFIRC had responsibility under the Plan for selection and elimination of Plan options, and investment and management of the Plan’s assets. (Id.) II. The Naturé of the Plan The Southern Company Employee Savings Plan is, according to the Company’s Form 11-K, a “defined contribution plan” designed to serve the retirement needs of its full and part-time employees. (Id. ¶¶ 49-52.) The Plan is funded by employee contributions (in the form of reductions to their salary and/or additional, voluntary contributions), which the employees may direct into one or more of the Investment Funds selected and provided by the PFIRC, and “Employer Matching Contributions,” which are invested in the Southern Company Stock Fund. (Id. ¶¶ 53-55.) III. The Establishment and Decline of the Mirant Stock Fund Mirant Corporation (“Mirant”), a long time subsidiary of the Southern Company, is a business engaged in unregulated energy trading. (Id. ¶¶ 101-03.) Mirant became a publicly traded company in 2000 by offering approximately 20% of its stock in an initial public offering (“IPO”). (Id. ¶¶ 102-04.) The following year, Southern “spun-off’ its remaining interest in Mirant by providing existing Southern shareholders with fractional shares of Mirant stock. (Id. ¶¶ 56, 106.) Because the Plan held a considerable amount of Southern stock, it, by virtue of the spin-off, acquired a significant interest in Mirant. (Id.) This newly acquired Mirant stock was held by the Plan in the “Mirant Stock Fund.” (Id.; see also id. Ex. C, at § 8.8 (“All Mirant stock received by the Plan pursuant to sections 9.1(c) and 9.1(d) shall be held in a ‘Mirant Stock Fund.’ ”).) Participants in the Plan were permitted to transfer funds out of the Mirant Stock Fund and into other investment vehicles offered by the Plan. (Id. ¶ 59.) At least initially, however, they were not permitted to acquire additional shares of Mirant stock. (See id. Ex. C, at § 8.8; compare Am. Compl. ¶ 143.) Furthermore, the Plan, in a so-called “sunset” provision, required that the investment in the Mirant Stock Fund end by no later than the fifth anniversary of the date the stock was first acquired by the Plan. (Id. Ex. C, at § 8.8.) Although Plaintiffs estimate regarding the exact value of the Plan’s investment in Mirant has varied throughout this litigation, he has consistently alleged that the Plan’s initial Mirant holdings were worth hundreds of millions of dollars. (See, e.g., id. ¶ 8.) Due to a public scandal involving allegations of illegal manipulation of the unregulated energy market and unlawful trading and accounting practices, however, the value of Mirant’s stock, and thus, the value of shares within the Mirant Stock Fund, suffered a serious decline. In May of 2003, Mirant released year-end financial results for 2002, posting a loss of $2.44 billion. (Id. ¶ 138.) Following public commentary questioning the viability of the company, moreover, Mirant’s stock price fell to $2.01 per share (off a one-time high of $47 per share), and on July 14, 2003, Mirant announced that it would file for Chapter 11 bankruptcy protection. (Id. ¶¶ 138-40, 148.) The value of the stock continued to decline following this announcement, and in July 2003, dipped below $0.25 per share. (Id. ¶ 141.) At that point, fiduciaries overseeing Mirant’s own defined contribution savings plan informed plan participants that the plan’s holdings in Mirant stock were going to be liquidated. The Southern Plan, however, continued to hold its investment. (Id.) IV. Defendants’ Alleged Wrongs Plaintiff contends that Defendants were aware (or, through a reasonable investigation, should and would have been aware) of the scandalous activities taking place at Mirant by virtue of the longstanding relationship between Mirant and Southern, including during times when such illicit activities were taking place; Southern’s provision of various services to Mirant while the spin-off was effectuated; ongoing interaction between the companies following the spin-off; and various public reports concerning the allegedly unlawful practices within Mirant. (Id. ¶¶ 7, 110, 123-24, 147-49, 152, 183-85.) Notwithstanding this awareness of improprieties, Plaintiff asserts that Defendants continued to allow the Plan to maintain its significant investment in Mirant stock, and failed to communicate their knowledge to other Plan actors and participants. In particular, Plaintiffs Complaint asserts three causes of action against Defendants. In Count I, he alleges, inter alia, that the ESP Committee, the PFIRC, SCS and Southern failed to prudently and loyally manage Plan assets by maintaining the Plan’s investment in Mirant stock when it no longer was prudent to do so, or to conduct an appropriate investigation into the merits of continued investment in the stock even in the face of obvious “red flags.” (Id. ¶¶ 150-155,180-185.) In Count II, he alleges that Southern, SCS, the Director Defendants, and the PFIRC breached their monitoring duties under ERISA by failing to adequately supervise their appointees and ensure that they prudently managed the Plan’s investment in Mirant stock, and also by failing to provide their appointees with critical information regarding Mirant’s financial condition. (Id. ¶¶ 167-169,193-203.) Finally, in Count III, Plaintiff alleges that Southern, SCS, the ESP Committee and the PFIRC failed to provide Plan participants with complete and accurate information regarding the true risks of investing in Mirant stock as a result of Mirant’s illegal practices, as well as regarding Mir-ant’s true financial condition, and, instead, provided inaccurate information, which Defendants knew or should have known would have an extreme impact on the Plan and participants’ retirement assets. (Id. ¶¶ 156-161, 205-209.) In addition to requesting declaratory relief, costs, and fees, Plaintiff asks that Defendants be compelled to “make good to the Plan all losses to the Plan resulting from Defendants’ breaches of their fiduciary duties ... and to restore to the Plan all profits the Defendants made through use of the Plan’s assets, and to restore to the Plan all profits which the Participants would have made if the Defendants had fulfilled their fiduciary obligationsf,]” and seeks “[a]ctual damages in the amount of any losses the Plan suffered, to be apportioned among the Participants’ individual accounts in proportion to the accounts’ losses[.]” (Id. at Prayer for Relief §§ C & F.) Furthermore, he requests the imposition of a constructive trust, restitution, and an “Order enjoining defendants, and each of them, from any further violations of their ERISA fiduciary obligations.” (Id. at §§ D, E & I.) On February 7, 2005, the Southern Defendants moved to dismiss the Amended Complaint. Both sides have now submitted well-prepared briefs respecting various aspects of Plaintiffs claims. For the reasons that follow, the Court finds that, although certain facets of Plaintiffs claims are not viable, he is entitled to pursue each of the Counts alleged in the Complaint through discovery. Discussion I. Procedural Standard A. Generally Federal Rule of Civil Procedure 12(b)(6) empowers the Court to grant a defendant’s motion to dismiss when a complaint fails to state a claim upon which relief can be granted. The pleadings are construed broadly so that all facts pleaded therein are accepted as true, and all inferences are viewed in a light most favorable to the plaintiff. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Conner v. Tate, 130 F.Supp.2d 1370, 1373 (N.D.Ga.2001). A motion to dismiss should only be granted when “it' appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Linder v. Porto-carrero, 963 F.2d 332 (11th Cir.1992). When resolving such a motion, the Court is typically constrained to look only to the pleadings and exhibits incorporated therein. Fed.R.Civ.P. 10(c), 12(b). The Eleventh Circuit, however, has additionally permitted reference to a document attached to a motion to dismiss, but only where the attached document is “central to the plaintiffs claim” and is “undisputed” in the sense that “the authenticity of the document is not challenged.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.2002); see also Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.2005) (same). B. Pleading Under ERISA Notwithstanding ERISA defendants’ repeated protestations to the contrary, the prevailing view is that, as a general rule, a plaintiff need not meet some heightened pleading requirement when bringing an ERISA claim. See, e.g., In re Dynegy, Inc. ERISA Litig., 309 F.Supp.2d 861, 867 (S.D.Tex.2004) (no heightened pleading requirement under ERISA); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 284 F.Supp.2d 511, 652 (S.D.Tex.2003) (same); Rankin v. Rotts, 278 F.Supp.2d 853, 868 (E.D.Mich. 2003) (“Overall, [defendants’] motion to dismiss is really an attempt to obtain summary judgment and require [plaintiff] to state her claims with a level of particularity not called out in ERISA and not within her ability at this stage in the case.”). Rather, he need only meet the low pleading threshold of Rule 8(a), which requires “a short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.CivP. 8(a). That is the standard against which Plaintiffs allegations will be measured in this case. II. A Brief Overview of ERISA and Relevant Remedial Provisions Congress enacted ERISA in 1974 in order to “assur[e] the equitable character of [employee benefit plans] and their financial soundness.” Cent. States, S.E. & S.W. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 570, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985). In furtherance of this objective, ERISA imposes upon those who manage the operation and administration of covered plans strict fiduciary duties — duties that the Eleventh Circuit has characterized as “the highest known to law.” Herman v. NationsBank Trust Co., 126 F.3d 1354, 1361 (11th Cir.1997) (quoting Donovan v. Bierwirth, 680 F.2d 263, 272 n. 8 (2d Cir.1982)). Among other things, ERISA fiduciaries are charged with “proper management, administration, and investment of plan assets, the maintenance of proper records, the disclosure of specified information and the avoidance of conflicts of interest.” Mertens v. Hewitt Assocs., 508 U.S. 248, 251-52, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); see also 29 U.S.C. § 1104(a) (enumerating duties of ERISA fiduciaries). A fiduciary who deviates from the responsibilities imposed by the statute is, pursuant to ERISA § 409(a), subject to being held “personally liable to make good to [the] plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary....” 29 U.S.C. § 1109(a). Section 502(a)(2) authorizes participants of the plan, among others, to seek “appropriate relief’ under that subsection through civil actions. 29 U.S.C. § 1132(a)(2). In addition, § 502(a)(3) creates a private right action for participants “to enjoin any act or practice which violates any provisions of this title or the terms of the plan, or ... to obtain other appropriate equitable relief ... to redress such violations or ... to enforce any provisions of this title or the terms of the plan.... ” 29 U.S.C. § 1132(a)(3). III. Overarching Challenges to the Complaint In their Motion to Dismiss, Defendants challenge the soundness of Plaintiffs claims in several particulars. Two of their arguments, however, have implications on the viability of his entire case. First, Defendants argue that the relief Plaintiff seeks is unavailable under ERISA. Second, they contend that Plaintiffs allegations regarding select Defendants’ roles as ERISA fiduciaries are inadequate. The Court addresses these two overarching challenges at the outset, before delving into the more nuanced objections to Plaintiffs claims. A. Purported Absence of a Cognizable Claim for Relief 1. Purported Absence of Request for Relief on Behalf of the “Plan” Defendants first and most forceful argument is that Plaintiff fails to state a claim for relief under ERISA § 502(a)(2). As related above, that subsection permits a plan participant to seek “appropriate relief’ under § 409(a). 29 U.S.C. § 1132(a)(2). Section 409(a), in turn, provides that on an action for breach of fiduciary duty, a fiduciary may be held liable to “make good to [the] plan any losses to the plan resulting from each such breach....” 29 U.S.C. § 1109(a) (emphases supplied). Courts have consistently read the italicized language as requiring that a plaintiff pursuing § 502(a)(2) relief do so on behalf of the plan itself, and not on behalf of an individual recipient or recipients. See, e.g., Mass. Mut. Life Ins. Co. v. Rtissell, 473 U.S. 134, 142, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) (“A fair contextual reading of the statute makes it abundantly clear that its draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of an individual beneficiary.”); Simmons v. S. Bell Tel. & Tel. Co., 940 F.2d 614, 617 (11th Cir.1991), abrogated on other grounds, Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (“The plain language of § 1109(a) makes it clear that only the plan, and not an individual beneficiary, may recover damages for a breach of fiduciary duties.”); Bryars v. Coca-Cola Co., 1:01-CV-3124-TWT, 2004 U.S. Dist. LEXIS 14362, at *22 (N.D.Ga. Mar. 18, 2004) (“This section of ERISA was interpreted by the Supreme Court as providing ‘relief singularly to the plan’ and ‘remedies that would protect the entire plan,’ rather than the rights of an individual beneficiary. [Cit.] Accordingly, for relief to be available under section 409, the ... Plan itself must have suffered a loss.”). In the instant litigation, Plaintiff ■ seeks “[a]ctual damages in the amount of any losses the Plan suffered, to be apportioned among the Participants’ individual accounts in proportion to the accounts’ losses[.]” (Id. at Prayer for Relief § F.) Defendants insist that, notwithstanding this nominal focus on “the Plan,” the requested relief is ultimately designed to compensate individuals, and because not every participant in the plan will benefit from the sought-after recovery, this action is not fairly within the ambit of § 502(a)(2). The Court is mindful that ERISA is a comprehensive and detailed statute, and is accordingly sensitive to any argument that the relief sought by a litigant falls outside that contemplated by Congress. See, e.g., Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (“We have observed repeatedly that ERISA is a comprehensive and reticulated statute, the product of a decade of congressional study of the Nation’s private' employee benefit system. [Cits.] We have therefore been especially reluctant to tamper with the enforcement scheme embodied in the statute by extending remedies not specifically authorized by its text.”) (internal quotations omitted). Furthermore, the Court is aware that an argument similar to that presented by Defendants here has enjoyed some, albeit ephemeral success in other venues. See, e.g., Milofsky v. Am. Airlines, Inc', 404 F.3d 338, 344 (5th Cir.2005), reh’g granted 418 F.3d 429 (5th Cir.2005) (en banc) (“We cannot adopt an interpretation that would allow a plaintiff, merely by praying that relief pass through the plan into individual accounts, to eviscerate the standing requirement imposed by § 502(a)(2) by engaging in a legal fiction that the suit benefits the plan as a whole.”) (split panel); In re Schering-Plough Corp. Erisa Litig., 387 F.Supp.2d 392, 398-99 (D.N.J.2004), rev’d 420 F.3d 231 (3d Cir.2005) (holding that plaintiffs lacked standing because the complaint alleged only “harm suffered by the individual Plan Participants and not the Savings Plan, and seeks relief measured by the harm to individuals and tailored for the benefit of individuals, and not the Savings Plan”). That said, the Court joins the majority of courts that have addressed the issue, and rejects Defendants’ assertion that a participant cannot be said to seek redress for “losses to the plan” unless every participant in the Plan was affected by the challenged breach of fiduciary duty, and would therefore directly benefit from any potential recovery. See, e.g., In re Schering-Plough Corp. Erisa Litig., 420 F.3d 231, 235 (3d Cir.2005) (“The fiduciary’s liability [under § 502(a)(2)] is not limited to plan ‘losses that will ultimately redound to the benefit of all participants.’ The Plan held Schering-Plough stock as an asset and. that asset was greatly, reduced in value allegedly because of breaches of fiduciary duty. This clearly was a ‘loss’ to the Plan within the meaning of § 1109.”); Kuper v. Iovenko, 66 F.3d 1447, 1453 (6th Cir.1995) (holding that subset of plan participants can sue for breach of fiduciary duty because, inter alia, “the ruling that plaintiffs seek would benefit the Plan as a whole and would foreclose any subsequent litigation because it would cure any harm that the Plan suffered”); In re CMS Energy ERISA Litig., 312 F.Supp.2d 898, 912-13 (E.D.Mich.2004) (rejecting defendants’ argument that plaintiffs could not bring suit under § 502(a)(2) because, although ostensibly bringing suit on behalf of the plan, recovery would benefit only a subset of individual participants’ accounts); In re Honeywell Int’l ERISA Litig., Civ. Ño. 03-1214(DRD), 2004 WL 3245931, *15, 2004 U.S. Dist. LEXIS 21585, at *51-52 (D.N.J. Sept. 14, 2004) (same). ERISA § 409(a), by its terms, permits a suit against a plan fiduciary to recover “any losses to the plan resulting from [a] breach...:” 29 U.S.C. § 1109(a). Although that language clearly indicates that Congress wanted to ensure that any claims for fiduciary breach would seek to enrich the plan, rather than an individual participant, see, e.g., Bryars, 2004 U.S. Dist. LEXIS 14362, at *22, it does not purport to limit suits to circumstances where the recovery would necessarily and without exception inure to the benefit of all plan participants. The Court perceives a real, qualitative difference between the language Congress selected, which requires that suit be brought on behalf of the “plan as a whole,” Mass. Mut. Life Ins. Co., 473 U.S. at 140, 105 S.Ct. 3085, and a requirement that, in a highly participant-focused manner, insists on a benefit to every employee participating in the plan. See Mi-lofsky, 404 F.3d at 349 n. 4 (Massachusetts Mutual Life Insurance Co. “does not, however, stand for the proposition that the ‘plan as a whole’ is synonymous with ‘all participants of the plan,’ and several courts have rejected this definition of the ‘plan as a whole[]’ ”) (King, C. J., concurring in part and dissenting in part). Moreover, the Court finds any distinction between a loss to “the plan” and that to a large subset of participants unsus-tainably artificial. The District Court for the District of New Jersey explained it well in In re Honeywell International Erisa Litigation, where it stated: Plaintiffs seek relief on behalf of the Plan, and therefore seek relief available under § 1132(a)(2). Defendants contend that because Plaintiffs seek to recover losses incurred by their accounts within the Plan, they actually seek relief only on their own behalf.... Defendants also argue that in order to prove the losses for which they seek to be compensated Plaintiffs will have to [make individual showings of causation]; and they contend that this feature of the claims indicates that they are claims asserted on behalf of individual participants rather than on behalf of the Plan. These arguments, though not by any means unreasonable, are ultimately unpersuasive. The funds from which the losses at issue came were held by the Plan at the time those losses were incurred. Plaintiffs contributed funds to the general trust fund held by the Plan, and those funds were allocated to subfunds within the Plan’s holdings in accordance with Plaintiffs’ investment decisions.... The fact that the assets at issue were earmarked or held for individual Plaintiffs does not alter the fact that they were held by the Plan.... ' 2004 WL 3245931, *15, 2004 Dist. LEXIS 21585, at *51-52. The Court finds such reasoning persuasive. Plaintiffs § 502(a)(2) claims will not be dismissed. 2. Purported Absence of Request for Cognizable Equitable Remedy Conversely, the Court concludes that at least four aspects of the “equitable” relief Plaintiff seeks under § 502(a)(3) are unobtainable. First, to the extent that Plaintiff seeks monetary damages under that subsection, the Complaint alleges no set of facts that would support such an award. The Supreme Court recently reiterated that “the term ‘equitable relief in § 502(a)(3) must refer to ‘those categories of relief that were typically available in equity[,]’ ” and that money damages “are the classic form of legal relief.” Great-West, 534 U.S. at 210, 122 S.Ct. 708 (emphases in original). It emphasized that a monetary award under ERISA would fall within the scope of § 502(a)(3) only in the limited circumstance where the Plaintiff shows that he is entitled to be restored particular funds or property improperly in the defendant’s possession. Id. at 210-14, 122 S.Ct. 708; see also In re Enron Corp. Sec., Derivative & “ERISA” Litig., 284 F.Supp.2d at 605-06, 612 (collecting cases where claims for monetary relief under § 502(a)(3) were rejected on this ground). The Court has found no factual allegations in the Complaint even suggesting that such is the case here. See In re Honeywell Int’l ERISA Litig., 2004 WL 3245931, *17, 2004 Dist. LEXIS 21585, at *56 (dismissing claim upon similar allegations); In re Schering-Plough Corp. Erisa Litig., 387 F.Supp.2d at 404-05, rev’d on other grounds, 420 F.3d 231 (3d Cir.2005) (same). Thus, Plaintiffs request for “equitable” monetary relief is dismissed. For precisely the same reasons, Plaintiffs request for the imposition of a constructive trust is not viable. See, e.g., In re Schering-Plough Corp. Erisa Litig., 387 F.Supp.2d at 404-05, rev’d on other grounds, 420 F.3d 231 (3d Cir.2005) (rejecting request for constructive trust on similar allegations). Absent an allegation that particular property of the plaintiff has inequitably found its way into the hands of the defendant—an allegation that is, again, absent in this case—such a trust is not an available remedy under § 502(a)(3). Great-West, 534 U.S. at 213, 122 S.Ct. 708. Third, the Court finds improper Plaintiffs request for “[a]n Order enjoining Defendants, and each of them, from any further violations of their ERISA fiduciary obligations.” (Am. Compl. at Prayer for Relief, § E.) ERISA itself demands that Defendants comply with its prescriptions. “[C]ourts will not countenance injunctions that merely require someone to ‘obey the law.’ ” Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th Cir.1996). Finally, Plaintiff seeks “[a] declaration that the Defendants, and each of them, are not entitled to the protections of ERISA § 404(c)(l)(B)[.]” (Am. Compl. at Prayer for Relief, § B.) Defendants point out, correctly, that “[t]his request for declaratory relief is neither equitable nor remedial, but preemptively defensive.” In re Schering-Plough Cot-p. ERISA Litig., 387 F.Supp.2d at 403, rev’d on other grounds, 420 F.3d 231 (3d Cir.2005). Plaintiffs request for a declaration undermining the invocation of the § 404(c) defense will likewise be dismissed. B. Alleged Insufficiency of Aver-ments Regarding Fiduciary Status ERISA § 409 imposes personal liability only on “fiduciaries.” Generally speaking, “[a] person or entity becomes an ERISA fiduciary either by being named as a fiduciary in written instruments that govern how an employee benefit plan is established or maintained [i.e., a ‘named fiduciary’], or by exercising discretionary authority or control over the management, administration, or assets of a plan [i.e., a ‘functional fiduciary’].” In re Dynegy, Inc. ERISA Litig., 309 F.Supp.2d at 872; see also In re Polaroid Erisa Litig., 362 F.Supp.2d 461, 472 (S.D.N.Y.2005) (“An individual may be a fiduciary for ERISA purposes either because the plan documents explicitly describe fiduciary responsibilities or because that person functions as a fiduciary.”); In re Enron Corp. Sec., Derivative & “ERISA" Litig., 284 F.Supp.2d at 543 (“under ERISA, a person or entity may be deemed a fiduciary either by assumption of the fiduciary obligations (the functional of de facto method) or by express designation of the ERISA plan documents”). With respect to the latter, ERISA provides: a person is a fiduciary with respect to a plan 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 discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A) (emphasis supplied). Although this “to the. extent” qualifier imposes a critical limitation on the scope of the fiduciary concept under ERISA, see Local Union 2131, United Mine Workers of Am. v. Powhatan Fuel, Inc., 828 F.2d 710, 714 (11th Cir.1987) (“[o]ne assumes fiduciary status ‘only when and to the extent’ that they function in their capacity as ... plan fiduciary”), the “fiduciary” definition remains fact-intensive and broad, “construed liberally, consistent with ERISA’s policies and objectives!.]” In re Enron Corp. Sec., Derivative & “ERISA" Litig., 284 F.Supp.2d at 544 (quotations omitted); cf. also Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 418 (5th Cir.1990) (“fiduciary status is to be determined by looking at the actual authority or power demonstrated, as well as the formal title and duties of the parties at issue”) (emphasis in original). ■ Defendants, throughout their papers, repeatedly assert that Plaintiffs allegations respecting their status as fiduciaries, 'and his assertions that certain acts were undertaken in their fiduciary capacities, are impermissibly vague. The Court addresses the more nuanced aspects of these arguments below. It takes the opportunity here, however, to decline the invitation to require the level of specificity and detail that Defendants insist must be present in order for Plaintiff to state a claim. There may indeed be instances in which an ERISA plaintiffs allegations respecting a particular defendant’s fiduciary status are so “conclusory” that a court need not afford them credence when determining whether the plaintiff has stated a claim for relief. Nevertheless, in light of the flexible and fact-intensive concept of a “functional fiduciary” under ERISA, the Federal Rules’ adoption of liberal “notice pleading,” and the infant stage of this litigation, the Court is reluctant to dispose of Plaintiffs ERISA claims based on the absence of exacting factual averments respecting the existence of Defendants’ fiduciary status or the outer contours of their fiduciary capacities. See In re Polaroid Erisa Litig., 362 F.Supp.2d at 470 (“an ERISA complaint need do little more than track the statutory definition to establish a defendant’s fiduciary status in compliance with Rule 8”) (internal quotations omitted); In re AEP ERISA Litig., 327 F.Supp.2d 812, 827 (S.D.Ohio 2004) (“[T]his Court subscribes to the view that fiduciary status is a fact-intensive inquiry, making the resolution of that issue inappropriate for a motion to dismiss.”); In re Xcel Energy, Inc., Sec., Derivative & ‘ERISA” Litig., 312 F.Supp.2d 1165, 1180-81 (D.Minn.2004) (questions -of fiduciary status and capacity are ill-suited to resolution on Rule 12(b)(6) motion); In re Elec. Data Sys. Corp. “ERISA” Litig., 305 F.Supp.2d 658, 665 (E.D.Tex.2004) (“It is typically premature to determine a defendant’s fiduciary status at the motion to dismiss stage of the proceedings.”); In re Sprint Corp. ERISA Litig., 388 F.Supp.2d 1207, 1227 (D.Kan.2004) (it is premature to determine scope of fiduciary duties and whether particular defendant acted in fiduciary capacity on motion to dismiss); In re WorldCom, Inc., 263 F.Supp.2d 745, 759-60 (S.D.N.Y.2003) (holding sufficient allegations of fiduciary status that did “little more than track the statutory definition of a fiduciaryU” and rejected defendant’s argument that “boilerplate and conclusory allegations” of fiduciary status were insufficient to state a claim under Rule 8). While the Court addresses Defendants’ more pointed objections below, it declines to dismiss any Defendant from the case based on a contention that Plaintiffs Complaint is impermissibly “vague” or “unclear” about such Defendant’s fiduciary status. After reviewing the actual aver-ments of the Complaint and the authorities cited supra, it finds that argument to lack merit. (See Am. Compl. ¶¶ 14-46, 76-93.) IV. Fiduciary Breach: Claim-Specific Challenges A. Count I: Management of Assets In Count I of the Complaint, Plaintiff alleges that the ESP Committee, the PFIRC, SCS and Southern, among others, failed to. prudently and loyally manage Plan assets by maintaining the Plan’s investment in Mirant stock when it was no longer prudent to do so, or to conduct an appropriate investigation into the merits of continued investment in the stock even in the face of obvious “red flags.” (Id. ¶¶ 150-155, 180-185.) Defendants contend that this claim should be dismissed for four reasons. Although some of the principles Defendants invoke to support their position have merit, they do not justify the wholesale dismissal of Plaintiffs claim at this point in the litigation. 1. Characterization of Wrongs as Non-Fiduciary Acts First, Defendants argue that Plaintiff, through Count I of his Complaint, is improperly attempting to challenge Southern’s decision to “spin-off’ Mir-ant and the decision to make Mirant stock an investment option under the Plan. The Court finds this challenge to Count I of the Complaint unavailing. Without question, Southern’s election to “spin-off’ Mirant was not a fiduciary act, and thus, cannot subject Southern to ERISA liability. See Local Union 213k, United Mine Workers of Am., 828 F.2d at 714 (“[o]ne assumes fiduciary status ‘only when and to the extent’ that they function in their capacity as ... plan fiduciary”); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1471 (11th Cir.1986) (discussing “two hat” doctrine as it applied to plaintiffs’ challenge to sale of a business; held: “ERISA does not prohibit an employer from acting in accordance with its interests as employer when not administering the plan or investing its assets”). Likewise, any decision to include the Mirant Stock Fund in the Plan portfolio, or whether to amend the Plan in connection with the Mirant investment cannot properly be challenged as a breach of fiduciary duty. See Lockheed Corp. v. Spink, 517 U.S. 882, 891, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996) (“Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs.”); In re Syncor ERISA Litig., 351 F.Supp.2d at 980 (“To the extent Plaintiffs allege the defendants breached their fiduciary duties by not amending the plans, Plaintiffs’ claims cannot stand because Defendants are not acting as fiduciaries in that context.”); In re CMS Energy ERISA Litig., 312 F.Supp.2d at 907 (plaintiff cannot challenge as a fiduciary breach the failure to amend an ERISA plan); In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 312 F.Supp.2d at 1181 (“It is well settled that plan design, as opposed to plan administration, is not a fiduciary function.... [T]he company was free to design the plan in any manner consistent with ERISA.”). These limitations, to be sure, significantly reign in the theories Plaintiff may employ to prove a deviation from ERISA’s duty of prudence in this case. That said, the fact remains that these non-fiduciary decisions are not the only aspects of Defendants’ conduct that Plaintiff challenges in Count I of his Complaint. Rather, the thrust of his claim appears to be that Defendants failed to properly manage the Plan’s investment in Mirant stock after it became a part of the Plan’s portfolio. The facts alleged in the Complaint more than sufficiently articulate facts suggesting that continuing to maintain the investment in Mirant was imprudent. Although Defendants may ultimately prove that their decision to nevertheless hold onto the stock was in complete accord with, or indeed, compelled by the terms of the Plan, that does not necessarily shield them from liability. “While normally fiduciaries are to follow the requirements set forth in governing plan documents, fiduciaries must exercise their judgment and refuse to do so if their analysis leads them to believe that the plan-directed investment would be imprudent and inconsistent with ERISA.” Hill, 313 F.Supp.2d at 1367; see also 29 U.S.C. § 1104(a)(1)(D) (fiduciary must act prudently and “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with ERISA ”) (emphasis supplied); Herman, 126 F.3d at 1361 (“If NationsBank determined, or should have determined, that [following the Plan] provision w[as] imprudent, then NationsBank was required to ignore that provision and [act] notwithstanding it.”); In re Polaroid Erisa Litig., 362 F.Supp.2d at 474 (“Thus, the fact that the Plan required investments in Polaroid stock does not ipso facto relieve Defendants of their fiduciary obligations.... By force of statute, Defendants had the fiduciary responsibility to disregard the Plan and eliminate Plan investments in Polaroid stock if the circumstances warranted.”) (internal quotations omitted). 2. The Section 101(c) Defense Defendants next urge that “Count I should be dismissed because individual plan participants controlled their own investment decisions.” (See Mem. of Law. in Supp. of the S. Co. Defs.’ Mot. to Dismiss [27] at 27.) They explain that the Plan was designed to satisfy the requirements of § 404(c), and that, accordingly, no person who would otherwise be a fiduciary can be liable for any loss that resulted from an individual participant’s exercise of control over her own account. See ERISA § 404(c), 29 U.S.C. § 1104(c) (“In the case of a pension plan which provides for individual accounts and permits a participant or beneficiary to exercise control over assets in his account, if a participant or beneficiary exercises control over the assets in his account (as determined under regulations of the Secretary) ... no person who is otherwise a fiduciary shall be hable under this part for any loss, or by reason of any breach, which results from such participant’s or beneficiary’s exercise of control.”). The Court declines to accept this argument. Reliance on § 404(c), which is in the nature of an affirmative defense, is necessarily misplaced at this stage of the litigation. See In re AEP ERISA Litig., 327 F.Supp.2d at 829-30 (“[C]ourts routinely refuse to dismiss an ERISA action because the defendant argues § 404(c) applies .... [Section] 404(c) is in the nature of an affirmative defense, which generally is not an appropriate consideration on a motion to dismiss.”); In re Reliant Energy ERISA Litig., 336 F.Supp.2d 646, 669 (S.D.Tex.2004) (“The § 404(c) provision is a safe harbor provision on which defendant bears the burden of pleading and proof. [Cit.] Section 404(c) does not provide a basis for dismissal of the Complaint at this time.”); In re Sprint Corp. ERISA Litig., 388 F.Supp.2d at 1234-35 (“[T]he Sprint defendants contend, that liability against them is precluded by ERISA § 404(c).... Defendants will need to prove they are entitled to invoke this defense on the facts of the case. Resolution of this issue on a motion to dismiss is premature.”); Rankin, 278 F.Supp.2d at 873 (“There simply are factual issues implicit in section 404(c), including whether or not a participant actually exercised independent control with respect to a transaction. Dismissal is not appropriate.”); In re WorldCom, Inc., 263 F.Supp.2d at 764 n. 12 (rejecting argument that assertion of § 404(c) defense is proper on motion to dismiss). The Court will not dismiss Count I of the Complaint on this ground. 3. Alleged Insufficiency of Allegations Respecting Conflict-of-interest Next, Defendants argue that Count I of the Complaint, insofar as it relies on a purported breach of the duty of loyalty, fails to state a claim. ERISA requires that plan fiduciaries discharge their duties “solely in the interests of the participants and beneficiaries[,]” and “for the exclusive purpose” of providing benefits to them. 29 U.S.C. § 1104(a)(1). Defendants contend that Plaintiff has failed to articulate a claim for breach of this duty, citing three perceived deficiencies in Plaintiffs allegations. First, they urge, generally, that the allegations supporting the claim are too “conclusory.” Second, they state that such allegations “make no sense” in this case, because Southern “spun-off’ all its interest in Mirant concomitant with the Plan’s acquisition of Mir-ant shares, while SCS never held Mirant stock. Third, Defendants insist that this case is uniquely ill-suited to a conflict-of-interest theory because Mirant was a “separate company” from Southern and SCS, and participants in the Southern Plan were precluded from acquiring new shares of Mirant during the relevant time period. The Court finds none of these arguments availing at this stage of the case. Initially, with respect to' the argument that Plaintiffs allegations are too “conclu-sory,” the Court finds that Plaintiff has satisfied the low pleading threshold of Rule 8 by averring that Defendants held interests in Mirant during the relevant time period, and engaged in imprudent acts and omissions with respect the Plan to protect the value of their own investment or to shield themselves from liability vis-a-vis Mirant’s illict activities while it was a Southern subsidiary. See Am. Compl. ¶¶ 142-55, 162-66; see also In re Elec. Data Sys. Corp. “ERISA” Litig., 305 F.Supp.2d at 673 (upholding breach of loyalty claim in view of similar allegations); In re Honeywell Int'l ERISA Litig., 2004 WL 3245931, **12-13, 2004 U.S. Dist. LEXIS 21585, at *44-46 (same); Herrinton, 2004 WL 719355, **6-7, 2004 U.S. Dist. LEXIS 5461, at *17-18 (same). This is simply not a case where the allegation of an identifiable conflict is absent, or where the plaintiff has failed to allege any malfeasance on the part of the alleged fiduciary motivated by such a divided loyalty. Compare In re Dynegy, Inc. ERISA Litig., 309 F.Supp.2d at 896-98 (conflict-of-interest claim failed where plaintiff neglected to identify source of any conflict); In re WorldCom, Inc., 263 F.Supp.2d at 768 (no breach of duty of loyalty alleged where plaintiff, despite identifying source of conflict, failed to allege that defendant took any action based on personal interest while wearing his “fiduciary hat”). In the view of this Court, with both the source of the conflict and improper fiduciary acts inspired by that conflict alleged, the Complaint states a claim for breach of the duty of loyalty. Defendants argue, however, that the claim still must fail against Southern and SCS because neither of those entities held Mirant stock during the relevant time period. That argument fails for two reasons. First, it essentially challenges the accuracy of Plaintiffs factual allegations, which must be presumed true at this stage of the proceeding. Cooper v. Pate, 378 U.S. at 546, 84 S.Ct. 1733. And second, Plaintiff describes the source of the conflict as not simply an incentive to keep the price of Mirant stock high for Defendants’ own pecuniary gain, but also their desire to avoid prosecution and/or civil liability as a consequence of Mirant’s malfeasance while it remained a part of the Southern/SCS “family.” (Am.Compl.ini 164-65.) The fact that neither Southern nor SCS actually owned shares of Mirant following the “spin-off’ does little to impact this latter source of alleged conflict. In addition, Defendants try to distinguish this case from that in which conflict-of-interest claims withstood dismissal by emphasizing two uncharacteristic attributes of the alleged conflict. First, they point out that most of the authorities upholding a “conflict-of-interest” theory dealt with allegations of impropriety surrounding a plan’s investment in a defendant-company’s own stock (i.e., “company stock”). Although that distinction may prove problematic for Plaintiff when it comes to issues of proof (e.g., of Defendants’ financial incentives, knowledge respecting the imprudence of the investment), the Court finds that it is entitled to little weight at this stage of the litigation, especially in view of Plaintiffs allegations concerning the interrelationship of Mirant and Defendants both preceding and immediately after the Mirant “spin-off.” Simply stated, Mirant’s status as a “separate company” neither erases the obligation of the (alleged) Defendant-fiduciaries to act “solely in the interests of the participants and beneficiaries[,]” 29 U.S.C. § 1104(a)(1), nor belies the allegations of competing interests and resulting malfeasance found in the Complaint. Likewise, Defendants’ attempt to distinguish this case by arguing that the Mirant Stock Fund was a “closed fund” — precluding investment in Mirant by plan participants following the spin-off — is ineffective. To be sure, Defendants could not advance their own interests here by encouraging participants to acquire additional shares of mutually held securities. Compare In re Enron Corp. Sec., Derivative & “ERISA” Litig., 284 F.Supp.2d at 561-63 (describing how fiduciaries encouraged participants to acquire more Enron stock while selling off their own shares). But nothing in the Plan prevented Defendants from protecting their alleged investment in Mirant, through the acts and omissions alleged in the Complaint, by ensuring that the market was not “flooded” by the Plan’s mass-divestiture of Mirant stock. Again, this feature of the Plan merely restricts the theories upon which Plaintiff may rely in his prosecution of this case — it does not foreclose the legal viability of his claim on a 12(b)(6) motion. 4. Southern, SCS, and the ESP Committee Finally, Defendants argue that Count I of the Complaint fails vis-a-vis Southern, SCS, and the ESP Committee. They argue Southern and SCS were not fiduciaries within the meaning of ERISA, while the ESP Committee was not a fiduciary with respect to the selection of investment fund options for the Plan. As discussed supra, the Court is strongly disinclined, at this stage of the litigation, to dismiss parties based on an argument that they either were not fiduciaries or were acting outside of their fiduciary capacities with respect to certain acts or omissions. (See supra Part III.B.) Although Plaintiffs allegations of fiduciary status vis-a-vis Southern and SCS are indeed austere, the Court is of the view that these minimal allegations of discretionary control over the Plan’s assets (and ambiguity respecting whether SCS is a named fiduciary under the Trust Agreement) are sufficient to survive a Rule 12(b)(6) motion. See Am. Compl. ¶¶ 15, 18, 76-81; see also See In re Polaroid Erisa Litig., 362 F.Supp.2d at 470 (“an ERISA complaint need do little more than track the statutory definition to establish a defendant’s fiduciary status in compliance with Rule 8”) (internal quotations omitted); In re World-Com, Inc., 263 F.Supp.2d at 759-60 (holding sufficient allegations of fiduciary status that did “little more than track the statutory definition of a fiduciary[,]” and rejected defendant’s argument that “boilerplate and conclusory allegations” of fiduciary status were insufficient to state a claim under Rule 8). His claims against Southern and SCS will not be dismissed on the ground that these entities were not fiduciaries within the meaning of ERISA. Likewise, the Court declines to hold that the ESP Committee is not a proper defendant as it relates to Count I of the Complaint. Defendants concede that the ESP Committee, as the Plan administrator, is a fiduciary, and is vested with the sweeping authority “to take all actions and to make all decisions necessary or proper to carry out the Plan and to control and manage the operation and administration of the Plan.... ” (See Am. Compl. Ex. C at § 13.4.) Nevertheless, they point out that it was the PFIRC that “possessed and exercised responsibility for prudently selecting investment fund options for the Plan[,]” (id. ¶ 32), and insist that, accordingly, only the PFIRC can be liable for an alleged breach of the duty to prudently manage the Plan’s investments. The fact that the PFIRC was specifically tasked with managing the Plan’s assets does not, in the view of this Court, answer the question whether the ESP Committee may also be liable for failing to prudently manage Plan holdings. Cf. In re Polaroid Erisa Litig., 362 F.Supp.2d at 473 (holding that defendant who was alleged to be a functional fiduciary could still be liable for breaching the duty of prudence notwithstanding the fact that the Plan expressly provided him only with powers of appointment and removal); In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 312 F.Supp.2d at 1180-81 (questions of fiduciary status and capacity are ill-suited to resolution on Rule 12(b)(6) motion); In re Elec. Data Sys. Corp. “ERISA” Litig., 305 F.Supp.2d at 672-73 (“Defendants argue that they have no duty to communicate with Plan beneficiaries because the Plan allocated the duty to communicate to BAC. Against Defendants’ argument, the Court considers Plaintiffs’ allegations that ... Defendants are de facto fiduciaries who were all responsible for the selection and monitoring of the Plan’s investment options.... Considering Plaintiffs’ allegations as true, the Court cannot hold that Plaintiffs can prove no set of facts consistent with the allegations that would establish a duty to communicate with Plan beneficiaries.”) (internal footnotes and quotations omitted). Given the exceptionally broad authority conferred on the ESP Committee by the Plan documents and Plaintiffs allegations of de facto control, it would be improper to dismiss it from Count I of the Complaint for failure to state a claim. In sum, Count I of Plaintiffs Complaint states a claim upon which relief may be granted. Although the authorities and principles cited by Defendants may constrain Plaintiffs ability to prove his case, they do not justify dismissing it. B. Count II: Failure to Monitor In Count II, Plaintiff alleges that Southern, SCS, the Director Defendants, and the PFIRC breached their monitoring duties under ERISA by failing to adequately supervise their appointees and ensure that they prudently managed the Plan’s investment in Mirant stock, and also by failing to provide their appointees with critical information regarding Mirant’s financial condition. See, e.g., In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 312 F.Supp.2d at 1176 (“A person with discretionary authority to appoint, maintain and remove plan fiduciaries is himself deemed a fiduciary with respect to the exercise of that authority. [Cit.] Implicit in the fiduciary duties attaching to persons empowered to appoint and remove plan fiduciaries is the duty to monitor appointees.”); In re Sprint Corp. ERISA Litig., 388 F.Supp.2d at 1231-32 (“[C]ourts have widely held that an appointing fiduciary has an ongoing duty to monitor its fiduciary appointees.”). Defendants challenge both the sufficiency of the allegations supporting this Count and the contours of the legal theory upon which the claim is predicated. For the reasons that follow, the Court finds Defendants’ arguments do not warrant dismissal. 1. Purported Absence of an Underlying Breach Defendants’ first argument is that “[a] breach of fiduciary claim for failure to monitor the fiduciaries that such defendant appointed is premised on a finding that the appointed fiduciary breached his duties.” (Mem. of Law in Supp. of the S. Co. Defs.’ Mot. to Dismiss [27] at 35.) Because there has been no “primary” breach, Defendants argue, Count II necessarily fails. The Court finds the underlying assumption supporting Defendants’ argument to be flawed. Counts I and III of the Complaint state claims for relief. Defendants’ first objection to Count II, therefore, is unavailing. 2. Liability of the PFIRC, Southern, and SCS Defendants next take issue with Count II of the Complaint insofar as it attempts to assert a claim against the PFIRC, Southern, and SCS. They point out, correctly, that a party’s duty to monitor can extend only to those fiduciaries that the party appointed, and insist that none of the foregoing Defendants- appointed the persons whom Plaintiff alleges acted improperly. The Court addresses each Defendant in turn. First, as it relates to the PFIRC, Plaintiff admits that he is unaware, at this point, whether the PFIRC actually exercised its power of appointment with respect to the Mirant Stock Fund. He has therefore chosen to voluntarily dismiss his duty to monitor claim against the PFIRC without prejudice, making further evaluation of Defendants’ argument vis-a-vis the PFIRC unnecessary. ■ With respect to- Southern, Plaintiff alleges that the company “appointed the persons who served in [certain] high-level corporate positions ... on the [sic] either the ESP Committee or PFIRC.... ” (Am. ComplJ 76.) - Defendants contend that this allegation is contradicted by the “First Amendment” to the Plan. That Amendment provides that the SCS Board of Directors, not Southern, amended the Plan to identify the positions within Southern whose occupants would serve on the Committee. (See Reply Br. in Supp. of Defs.’ Mot. to Dismiss Pl.’s Am. Compl. [55] at Ex. 3.) The Court finds this to present a close and somewhat novel question. It has found nothing in the case law discussing the apparent division of “appointment power” seemingly contemplated by the Plan here — -with the SCS Board selecting the positions at Southern that the ESP Committee comprises, and Southern apparently retaining the power to decide which individuals are placed into those positions (e.g., Vice-President, Human Resources of the Southern Company). Defendants insist that Southern’s decision to appoint certain individuals to those positions was undertaken in its capacity as an “employer,” not a Plan fiduciary, citing Sutton v. BellSouth Telecomm., Inc., 189 F.3d 1318, 1321 (11th Cir.1999) (recognizing “the general proposition that corporate managerial decisions are not governed by ERISA because they do not involve discretionary acts regarding plan administration”). Sutton, however, dealt with an employee attempting to challenge his termination from employment under ERISA, and does little to 'inform the Court’s analysis here. Indeed, saying that the “managerial decisions” at issue here were undertaken solely in Southern’s capacity as employer, and did “not involve discretionary acts regarding plan administration[,]” seems to ignore the fact that an important element of any personnel decision vis-a-vis these positions was the ability of the selected individual to serve as an ERlSA fiduciary on the ESP Committee. In the view of this Court, although the SCS Board indeed played a role in determining which corporate positions the ESP Committee comprised, Southern’s (apparent) ultimate ability to select which persons would fill the designated, fiduciary positions imposed upon it the duty to monitor such persons. See, e.g., In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 312 F.Supp.2d at 1176 (“A person with discretionary authority to appoint, maintain and remove plan fiduciaries is himself deemed a fiduciary with respect to the exercise of that authority. [Cit.] Implicit in the fiduciary duties attaching to persons empowered to appoint and remove plan fiduciaries is the duty to monitor appointees.”). The Court will not dismiss Southern from Count II of the Complaint on this ground. With respect to SCS, Defendants argue that “[t]he Complaint does not allege that SCS made any fiduciary appointments, only that the SCS Board of Directors did.” (See Mem. of Law in Supp. of the S. Co. Defs.’ Mot. to Dismiss [27] at 37.) The Court finds this attempt to exempt a corporation from liability for the acts of its Board ineffective. While the Court, as mentioned supra, is reluctant to impose ERISA liability under a theory of respon-deat superior, it has been unable to find any support for the proposition that a meaningful distinction can be drawn between a “corporation” and the directors through whom it must act. Cfi Del.Code AnN. tit. 8, § 141(a) (2001) (“The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors .... ”); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 284 F.Supp.2d at 660 (“as a matter of established law, a corporation acts through its board of directors to effectuate its corporate duties”). Accordingly, the Court will not dismiss SCS from Count II on the basis of this argument. 3. The Existence of a Duty to Inform ■ Attendant to the Duty to Monitor More fundamentally, Defendants argue that Plaintiffs theory is flawed in that it seeks to construe the duty to monitor appointed fiduciaries to encompass a duty to apprise such appointees of pertinent information. They argue that such a duty does not exist, and that, even if it did, the Complaint fails to allege that Defendants had knowledge of material, non-public information that they were purportedly required to share with the appointed fiduciaries. The Court disagrees. First, the duty to keep appointees informed has gained reasonably wide acceptance as an inherent facet of the more general “duty to monitor.” See In re Polaroid Erisa Litig., 362 F.Supp.2d at 477 (“Plaintiffs’ allegation that DiCamillo failed to adequately monitor or keep the Plan Administrators and Fund Managers informed states a claim for breach of fiduciary duty.”); In re Syncor ERISA Litig., 351 F.Supp.2d at 986 (“Courts have repeatedly acknowledged that a board of directors may have a duty to monitor investments, and that the duty sometimes includes a duty to disclose information to committee members.”); In re Sears, Roebuck & Co. ERISA Litig., 2004 WL 407007, *8, 2004 U.S. Dist. LEXIS 3241, at *23 (N.D.Ill. Mar. 2, 2004) (rejecting argument that duty to monitor does not include duty to keep appointees informed of material non-public information); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 284 F.Supp.2d at 657 (“A claim has also been stated in Count I against Enron and the Compensation Committee for breach of their fiduciary duty of providing information necessary for Plan Administration because they allegedly withheld from the Administrative Committee ... material information regarding the actual financial condition of Enron.”); In re WorldCom, Inc., 263 F.Supp.2d at 765 (discussing plaintiffs’ failure to monitor claim; held: “When a corporate insider puts on his ERISA hat, he is not assumed to have forgotten adverse information he may have acquired while acting in his corporate capacity. Plaintiffs’ allegation that Ebbers failed to disclose to the Investment Fiduciary and the other investing fiduciaries material information he had regarding the prudence of investing- in WorldCom stock is sufficient to state a, claim.”); see also Hill> 313 F.Supp.2d at 1370 (appearing to recognize that