Full opinion text
ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN PART [143][145][146][147][156][186][188] STEPHEN V. WILSON, District Judge. I. INTRODUCTION Plaintiffs filed this Motion for Partial Summary Judgment seeking a judgment in their favor with regard to certain alleged prohibited transactions and alleged violations of the Plan documents. In response, Defendants have moved for Summary Judgment as to all of Plaintiffs’ claims. For the reasons stated below, Plaintiffs’ Motion is DENIED, and Defendants’ Motion is GRANTED with regard to several claims. The Court finds that triable issues remain with regard to whether certain fiduciaries breached their duty of loyalty by choosing mutual funds in order to maximize the amount of revenue sharing for SCE’s benefit, instead of for the benefit of the Plan participants. In addition, because Plaintiffs have not adequately described their prohibited transaction claims arising out of State Street’s retention of float, the Court ORDERS further briefing on those issues. II. FACTS Plaintiffs Glenn Tibbie, William Bauer, William Izral, Henry Runowiecki, Frederick Sohadolc, and Hugh Tinman, Jr. (“Plaintiffs”) are current or former employees and participants in the Edison 401(k) Savings Plan (the “Plan”). The Plan is a “defined contribution plan” within the meaning of 29 U.S.C. § 1002(34). (Def.’s Statement of Uncontroverted Facts (“SUF”) ¶ 1.) As of 2007, the Plan held $3.8 billion in assets for the benefit of approximately 20,000 participants. (Pl.’s Statement of Uncontroverted Facts (“PSUF”) ¶ 7.) Plaintiffs have named as defendants in this action several different entities and individuals, all of whom are alleged to have been Plan fiduciaries during the relevant time period. Defendant Edison International (“Edison”) is the parent corporation of Defendant Southern California Edison (“SCE”). (SUF ¶ 5.) Plaintiffs allege that Edison and SCE are the Plan sponsors. (Second Am. Compl. (“SAC”) ¶ 12.) Another Defendant is the SCE Benefits Committee (“Benefits Committee”), which is a named fiduciary under the Plan, the Plan Administrator, and comprised of individuals appointed by SCE’s Chief Executive Officer (“CEO”). {Id. ¶ 15.) Also named as a Defendant is the Edison International Trust Investment Committee (“TIC”), which is a named fiduciary under the Plan and is comprised of individuals also appointed by SCE’s CEO. {Id. ¶ 16.) The Secretary of the Benefits Committee, who as of 2005 was Aaron Whitely, is a named defendant. {Id. ¶ 17.) Plaintiffs also name SCE’s Vice President of Human Resources as a defendant. {Id. ¶ 18.) Finally, Plaintiffs name SCE’s Manager of the Human Resource Service Center as a defendant given her position as a named fiduciary of the Plan. {Id. ¶ 19.) In 1998, SCE and the unions representing SCE employees began collective bargaining negotiations. (SUF ¶ 10.) As a result of these negotiations, the investment options included in the Plan were altered significantly. {Id. ¶ 12.) Before these changes occurred, the Plan offered employees the following six investment options: (1) Bond Fund, (2) Balanced Fund, (3) Global Stock Fund, (4) Money Market Fund, (5) Common Stock Fund, and (6) the Edison Stock Fund. {Id. ¶ 6.) After the negotiations were completed, however, and changes were made to the Plan, it offered a much broader array of up to fifty investment options including the following: (1) Edison Stock Fund; (2) Conservative Growth Fund; (3) Balanced Moderate Growth Fund; (4) Aggressive Growth Fund; (5) Money Market Fund; (6) Bond Fund; (7) U.S. Stock Index Fund; (8) U.S. Large Company Stock Fund; (9) International Stock Fund; and (10) the Mutual Fund Menu, which included approximately forty “retail” mutual funds. (Decker Deck, Ex. N.) The Conservative Growth Fund, the Balanced Moderate Growth Fund, and the Aggressive Growth Fund were “premixed” portfolios consisting of a combination of stocks and bonds, which allow the participants to diversify within one investment option. (SUF ¶ 24.) The U.S. Stock Index Fund, U.S. Large Company Stock Fund, and International Stock Fund were low-cost index funds provided by the Frank Russell Trust Company (“Russell”). {See Niden Rep., Ex. C.) The Mutual Fund Menu consisted of so-called “retail” mutual funds — that is, mutual funds that were also available to the general public — such as Vanguard, T. Rowe Price, and Fidelity. {Id.) In February 2000, as a result of the collective bargaining process, the Plan was amended to reflect the agreement reached between the parties. (Decker Deck, Ex. K.) One component of this amendment was that SCE agreed to provide a “[bjroader range of investment options,” including “a mutual fund window with access to 40 additional funds.” {Id.) The amendment also provided that SCE would allow for “[m]ore frequent and timely transactions,” including the ability to make daily fund transfers. {Id.) The Benefits Committee and TIC perform defined roles with respect to the Plan. The Benefits Committee is responsible for overseeing how the Plan is operated and administered, and is responsible for adopting Plan amendments. (SUF ¶¶ 41-42.) The TIC is responsible for establishing investment guidelines and for making other investment decisions for the Plan. (Id. ¶ 45.) The TIC has also delegated certain investment responsibilities to the TIC Chairman’s Subcommittee (“Sub-TIC”), which focuses on the selection of specific investment options. (Id. ¶ 47.) The Sub-TIC also receives advice on investment options and their performance from the Investments Staff. (Id. ¶ 49.) A. Hewitt Even before the changes to the Plan in 1999, the Plan’s recordkeeping services had been provided by Hewitt Associates LLC (“Hewitt”). (PSUF ¶14.) Beginning in at least 1997, the Plan stated that SCE would pay “the cost of the administration of the Plan.” (See Pl.’s, Ex. 1, at 48.) This language remained in the Plan until 2006, when the Plan was amended to state that SCE would pay “the cost of the administration of the Plan, net of any adjustments by service providers.” (Decker Deck, Ex. MM, at 33 (emphasis added).) Before the addition of the mutual funds in 1999, SCE paid the entire cost of Hewitt’s recordkeeping services. With the addition of the retail mutual funds to the Plan, however, certain “revenue sharing” was made available that could be used in order to pay for part of Hewitt’s reeordkeeping expenses. Revenue sharing is a general term that refers to the practice by which mutual funds collect fees from mutual fund assets and distribute them to service providers, such as recordkeepers and trustees — services that the mutual funds would otherwise provide themselves. (See Niden Rep. ¶ 18.) Revenue sharing comes from so-called “12b-l” fees, which are fees that mutual fund investment managers charge to investors in order to pay for distribution expenses and shareholder service expenses. See Meyer v. Oppenheimer Mgmt. Corp., 895 F.2d 861, 863 (2d Cir.1990). 12b-l fees receive their name from SEC Rule 12b-l, which was promulgated pursuant to the Investment Company Act of 1940 (“ICA”). See 17 C.F.R. § 270.12b-l(b). The ICA generally bans the use of fund assets to pay the costs of fund distribution. In 1980, however, the SEC adopted Rule 12b-l which specifies certain conditions that must be met in order for mutual fund advisers to be able to make payments from fund assets for the costs of marketing and distributing fund shares. See Meyer, 895 F.2d at 863. Other fees included under the umbrella of revenue sharing are “sub-transfer agency” fees. These fees are similar in many respects to 12b-l fees but are paid to third parties in order to track the accounts of individual participants. (Niden Rep. ¶ 18.) Each type of fee is collected out of the mutual fund assets, and is included as a part of the mutual fund’s overall expense ratio. (See Pomerantz Rep. ¶ 2.) The expense ratio is the overall fee that the mutual fund charges to investors for investing in that particular fund. The expense ratio is essentially a flat fee, which has a component for 12b-l or sub-transfer agency fees, as well as other aspects such as a management fee, which is essentially the fee investors pay for the manager’s expertise. (Pomerantz Rep. ¶ 2.) These fees are deducted from the mutual fund assets before any returns are paid out to the investors. In 1999, when retail mutual funds were added to the Plan, Hewitt already had contracts with certain mutual fund companies, whereby Hewitt received a portion of the revenue sharing to pay for Hewitt’s recordkeeping services. As a result, when the retail mutual funds were added to the Plan, some of the revenue sharing was used to pay for Hewitt’s recordkeeping costs. (SUF ¶ 30.) Hewitt then billed SCE for Hewitt’s services after having deducted the amount received from the mutual funds from revenue sharing. (See PL’s Ex. BB.) Hewitt did not have preexisting relationships with certain mutual funds, however, and as a result, contracts were entered into so that the revenue sharing could be captured from the mutual funds and be directed to offset the cost of Hewitt’s services. (See PL’s Ex. P.) Oftentimes, these contracts provided that an increasing percentage of revenue sharing would be paid to Hewitt, if the Plan invested increasing assets in mutual funds provided by that specific company. (Id.) The use of revenue sharing to offset Hewitt’s recordkeeping costs was discussed during the collective bargaining with the employee unions. (SUF ¶ 38.) Furthermore, this arrangement was disclosed to the Plan participants on approximately seventeen occasions after the practice began in 1999. (See id. ¶ 32.) B. State Street State Street Bank (“State Street”) became the Plan trustee in 1999. (SUF ¶ 85.) The “Trust Agreement” entered into between State Street and SCE provided that State Street would be compensated at a flat rate of $150,000 per year for its services. (Id. ¶ 89.) As part of its duties, State Street was responsible for making disbursements to the Plan participants when they sought to remove assets from the Plan. (See Ertel Deck, Ex. J, at 6.) In the time between when the cash was sent to State Street for disbursement, and when the Plan participant actually deposited the check, State Street earned interest on the cash in its possession. (SUF ¶ 91.) This interest is referred to as “float.” The Trust Agreement did not expressly address who should receive the benefit of such float. (See Ertel Deck, Ex. J.) In 2006 alone, State Street retained $383,637 from float on cash from the Plan. III. ANALYSIS A. Legal Standard Rule 56(c) requires summary judgment for the moving party when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify specific facts that show a genuine issue for trial. See id. at 323-34, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir.2000). Only genuine disputes — where the evidence is such that a reasonable jury could return a verdict for the nonmoving party — over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) (the nonmoving party must identify specific evidence from which a reasonable jury could return a verdict in its favor). B. ERISA’s Fiduciary Duties Plaintiffs bring this action pursuant to § 502(a) of ERISA, which allows “a participant, beneficiary or fiduciary” to bring an action for breach of fiduciary duty. 29 U.S.C. § 1132(a)(2). Specifically, the statute provides: Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets by the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. Id. § 1109(a). ERISA details the general duty of loyalty and care owed by a plan fiduciary to its participants. See 29 U.S.C. § 1104. The statute requires a plan fiduciary to discharge his duties solely in the interest of the plan participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries, and defraying reasonable expenses of administering the plan. Id. § 1104(a)(1)(A). The fiduciary shall use the amount of “care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” Id. § 1104(a)(1)(B). Furthermore, a plan fiduciary must discharge his duties “in accordance with the documents and instruments governing the plan.” Id. § 1104(a)(1)(D). ERISA also lists a number of “prohibited transactions,” which are pre se prohibited. See id. § 1106. The statute provides: (a) Except as provided in section 1108 of this title: (1) A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he or she knows or should know such transaction constitutes a direct or indirect— (A) sale or exchange, or leasing, of any property between the plan and a party in interest; (B) lending of money or other extension of credit between the plan and a party in interest: (C) furnishing of goods, services, or facilities between the plan and a party in interest; (D) transfer to, or use by or for the benefit of a party in interest, of any assets of the plan; or ... (b) A fiduciary with respect to a plan shall not — ■ (1) deal with the assets of the plan in his own interest or for his own account, (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries, or (3) receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan. Id. § 1106(a)-(b). A “party in interest” is defined broadly to include “any fiduciary, a person providing services to the plan, an employer whose employees are covered by the plan, and certain shareholders and relatives.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002); Kanawi v. Bechtel Corp., 590 F.Supp.2d 1213, 1222 (N.D.Cal.2008) (Citing Hall). Section 1106(b) “creates a per se ERISA violation; even the absence of bad faith, or in the presence of a fair and reasonable transaction, [§ 1106(b) ] establishes a blanket prohibition of certain acts, easily applied, in order to facilitate Congress’ remedial interest in protecting employee benefit plans.” Patelco Credit Union v. Sahni, 262 F.3d 897, 911 (9th Cir.2001). With regard to certain prohibited transactions, ERISA includes a number of different exemptions from liability, which are found at § 1108(b). See id. These exemptions include one for “reasonable arrangements with a party in interest” for “services necessary for the establishment or operation of the plan” so long as “no more than reasonable compensation is paid therefor.” 29 U.S.C. § 1108(b)(2). C. Statute of Limitations A brief discussion of the statute of limitations is necessary as a preliminary matter because it is relevant to many of Plaintiffs’ claims. For claims alleging breach of fiduciary duty, ERISA provides: No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of— (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of a breach or violation; except that in the case of fraud or concealment, such action may be commenced no later than six years after the date of discovery for such breach or violation. 29 U.S.C. § 1113. Under this framework, the default statute of limitations is six years. In order to extend the statute of limitations beyond six years, the plaintiff must prove that the defendant “made knowingly false misrepresentations with the intent to defraud the plaintiffs,” or took “affirmative steps” to conceal its own alleged breaches. Barker v. Am. Mobil Power Corp., 64 F.3d 1397, 1401 (9th Cir.1995) (per curiam). On the other hand, in order to shorten the statute of limitations to three years, the defendant has to prove that the plaintiff had “actual knowledge” of the violation. Under this actual knowledge standard, “[t]he statute of limitations is triggered by defendants’ knowledge of the transaction that constituted the alleged violation, not by their knowledge of the law.” Blanton v. Anzalone, 760 F.2d 989, 992 (9th Cir.1985). There is no “continuing violation” theory to claims subject to ERISA’s statute of limitations. Phillips v. Alaska Hotel & Rest. Employees Pension Fund, 944 F.2d 509, 520 (9th Cir.1991). In Phillips, the court rejected the notion that after the first alleged breach of fiduciary duty, that any failure to rectify the breach constituted another discrete breach. Id. The court said that although the trustee’s conduct could be viewed as a series of breaches, the statute of limitations did not begin anew because each breach was “of the same character.” Id. Here, neither party has satisfied its burden to alter the statute of limitations from the standard six year time limit. Plaintiffs have not shown that Defendants made any misstatements or actively concealed any breaches of fiduciary duty, which would toll the statute beyond six years. In fact, the evidence shows that Defendants disclosed the existence of the revenue sharing with Plaintiffs on several occasions. (See SUF ¶ 32.) With regard to Plaintiffs’ claims for breach of the duty of loyalty, Plaintiffs have not presented evidence that Defendants actively concealed such breaches. See Kanawi, 590 F.Supp.2d at 1226 (“The failure of a fiduciary to disclose a self-interest in transactions that were allegedly harmful to a plan ‘does not rise to the level of active concealment, which is more than merely a failure to disclose.’ ”) (quoting Schaefer v. Arkansas Med. Soc., 853 F.2d 1487, 1491 (8th Cir.1988)). Defendants have similarly failed to present undisputed evidence that Plaintiffs had actual knowledge of the alleged breaches of fiduciary duty. As a result, for the most part, Plaintiffs’ claims will be limited to those that accrued within six years of the filing of this suit, which was August 16, 2001. In the context of a prohibited transactions, the statute of limitations typically begins when the “transaction” takes place. See Martin, 828 F.Supp. at 1431. The Court will address statute of limitations issues as they arise in the following analysis of Plaintiffs’ claims. D. Prohibited Transactions — Hewitt Plaintiffs argue that Defendants’ fee arrangement with Hewitt amounted to a prohibited transaction under § 1106(b) in two ways. First, Plaintiffs argue that Defendants violated § 1106(b)(3) by receiving consideration on Defendants’ personal account from a party dealing with such plan in connection with a transaction involving the assets of the Plan. Second, Plaintiffs argue that Defendants violated § 1106(b)(2) by acting in a transaction involving the Plan on behalf of a party whose interests are adverse to the interests of the plan. 1. § 1106(b)(3) The statute makes it per se illegal for any fiduciary to “receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan.” 29 U.S.C. § 1106(b)(3). Plaintiffs contend that SCE, as a fiduciary, was receiving consideration from the mutual funds in the form of a credit to SCE’s monthly account with Hewitt. In the language of the statute therefore, Plaintiffs allege that SCE (the “fiduciary”) was receiving revenue sharing offsets (“consideration”) from the mutual funds (“party dealing with such plan”). With regard to the “transaction” involving assets of the plan, Plaintiffs propose two possible transactions: (1) the contracts between the Plan and the mutual funds directing the mutual funds to pay revenue sharing to Hewitt, or (2) the transactions whereby the mutual funds were added as investment options in the Plan. Plaintiffs theory fails, however, because in order to be liable for a violation of § 1106(b)(3), the fiduciary receiving the “consideration” must have had control over the “transaction” in question. See Lockheed Cotp. v. Spink, 517 U.S. 882, 888, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996) (noting that in order for there to be a violation of § 1106, “a plaintiff must show that a fiduciary caused the plan to engage in the allegedly unlawful transaction”); Wright v. Oregon Metallurgical Corp., 360 F.3d 1090, 1101 (9th Cir.2004) (citing Spink and rejecting prohibited transaction claim because the defendant’s actions did “not constitute those of a fiduciary or even a de facto fiduciary”). For example, in Martin v. National Bank of Alaska, 828 F.Supp. 1427 (D.Alaska 1992), the plaintiff alleged that the defendant fiduciary, a bank, was receiving loan origination fees from loans to third parties made out of the plan assets. Id. at 1437. The court had little trouble finding that the loans were transactions involving assets of the plan because the fiduciary bank was making the loans out of the plan assets. Id. at 1438. Moreover, the fiduciary bank was receiving consideration— the loan origination fees — in connection with making the loans out of the plan assets to the third parties. Id. Since there was no applicable exemption, the court found that the fiduciary bank had violated § 1106(b)(3). Id. Similarly, in Stuart Park Associates L.P. v. Ameritech Pension Trust, 846 F.Supp. 701 (N.D.Ill.1994), the issue was whether the plan fiduciary, Thompson, was personally receiving fees from Bennett in exchange for Thompson’s influencing the plan to invest in a real estate project promoted by Bennett. Id. at 706. The court found that there was “an illegal kickback scheme” whereby Thompson exercised his influence to get the plan to invest in transactions involving Bennett and, in exchange, Bennett paid Thompson approximately $40,000. Id. Thus, the court found that Thompson had violated § 1106(b)(3) by receiving consideration for his influence from a party dealing with the plan. Id Martin and Stuart Park are classic examples of a fiduciary exercising his control over the assets of the plan, and, as a direct result, receiving consideration from a third party. These cases fall squarely within the scope of the statute, which prohibits fiduciaries from “receiving] any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan.” 29 U.S.C. § 1106(b)(3). Indeed, such a self-dealing transaction is precisely the type of transaction that § 1106(b)(3) was designed to prevent. See Lowen v. Tower Asset Management, Inc., 829 F.2d 1209, 1212 (2d Cir.1987); Patelco, 262 F.3d at 909. Here, however, unlike the defendants in both Martin and Stuart Park, the party receiving the benefit from the transaction was SCE. Yet SCE was not the party engaging in the transactions that resulted in the “consideration” (revenue sharing) being generated. Plaintiffs have presented no evidence that SCE made the decisions that resulted in the generation of revenue sharing from the mutual funds. There is no evidence, for example, that SCE itself influenced whether to enter into the service contracts with the mutual funds or whether certain mutual funds would become investment options for the fund. Rather, the evidence presented indicates that these decisions were made by the TIC or the Benefits Committee, both of which were independent committees whose purpose was to provide prudent and wise investment options for the exclusive benefit of the Plan participants. (See Pl.’s Exs. N & P; SUF ¶ 45.) Thus, because Plaintiffs have not presented any evidence that SCE made the decisions that brought about the revenue sharing, Plaintiffs are not entitled to summary judgment on this claim. Both Martin and Stuart Park relied on an earlier Second Circuit opinion Lowen, 829 F.2d 1209. There, the court found that a group of related companies (Tower Asset, Tower Capital, and Tower Securities (collectively, the “Tower entities”)), along with their principals, had engaged in numerous prohibited transactions in violation of § 1106(b)(3). Id. at 1213. Tower Asset was a fiduciary to the plan and provided the plan with investment advice. Id. at 1219. The prohibited transactions typically involved one of the sister companies, either Tower Capital or Tower Securities, which entered into a contract with new company to advise the company and to provide the start-up capital that the company needed. Id. at 1214. These new companies were typically also owned either in whole or in part by the principals of the Tower entities. Id. Tower Capital or Tower Securities then arranged for Tower Assets to invest the assets of the plan in the start-up company, thereby generating fees and commissions for Tower Capital and Tower Securities. Id. The court declined to decide whether Tower Asset’s sister companies were fiduciaries of the plan, because the court simply disregarded the corporate form of the separate companies. Id. at 1220-21. The court found that “[t]he record demonstrates beyond dispute extensive intermixing of assets among the corporations, and among the corporations and individual defendants, without observing the appropriate formalities.” Id. at 1221. Thus, the court found that all of the defendants were effectively liable for breach of § 1106(b)(3) because they all received consideration in the form of fees, commissions, and stock from the companies who were using the plan assets as start-up capital. See id. Much like the defendants in Martin and Stuart Park, in Lowen, the defendants who received the benefits from the transactions involving the plan were also the entities that were exerting influence on the plan to enter into those transactions. Although Tower Capital and Tower Securities were typically the entities orchestrating the transaction, Tower Asset was deeply involved as well. Furthermore, the court disregarded the distinctions between the different entities and essentially consolidated the entities into one by virtue of the complete overlap between them and the fact that the individual defendants “personally and actively dominated those firms.” As a result, the court found that the Tower entities were collectively engaging in the transactions with the plan assets, while at the same time benefitting from those transactions. Loioen supports a finding that SCE is not liable for violating § 1106(b)(3) because, on the evidence presented by Plaintiffs, SCE was simply a recipient of the benefit from the revenue sharing, but it was the Benefits Committee and the TIC that caused the Plan to transact with the mutual funds. Plaintiffs have not pointed to any evidence similar to that in Lowen that would justify disregarding the separate legal structures of SCE, the TIC, the Sub-TIC, and/or the Benefits Committee. See Collins v. Pension & Ins. Comm. of S. Cal. Rock Prods. & Ready Mixed Concrete Ass’ns, 144 F.3d 1279, 1282 (9th Cir.1998) (“The existence of an alter ego relationship ... is not presumed without proof of specific facts to support these theories.”). The requirement that the fiduciary receiving the benefit from the transaction also be the fiduciary exercising control over the transaction is also supported by Department of Labor (“DOL”) Advisory Opinions interpreting the scope of § 1106(b)(3). The DOL issued two Advisory Opinions in 1997 involving the question of whether a fiduciary receiving revenue sharing from mutual funds violated § 1106(b)(3). In the first, the party seeking advice was a company called ALIAC, which provided recordkeeping services for pension plans that received 12b-l fees from the mutual funds that ALIAC made available to the plan participants for investment. See DOL Advisory Opinion 97-16A (May 22, 1997). ALIAC represented that the plan fiduciaries were completely independent from ALIAC, and that the plan fiduciaries made the ultimate decisions regarding what mutual funds would be made available to the plan participants. Id. The Secretary noted that the first question that must be answered is whether ALIAC was a fiduciary. Id. The Secretary said that “whether a person is a fiduciary with respect to a plan requires an analysis of the types of functions performed and the actions taken by the person on behalf of the plan to determine whether particular functions or actions are fiduciary in nature and therefore subject to ERISA’s fiduciary responsibility provisions.” Id. As a result, whether a person is a “fiduciary” is “inherently factual and will depend on the particular actions or functions ALIAC performs on behalf of the Plans.” Id. The Secretary opined that ALIAC would not be a fiduciary with respect to the selection of the mutual funds “provided that the appropriate plan fiduciary in fact makes the decision to accept or reject the change.” Id. In another Advisory Opinion, the Secretary opined that a similar arrangement did not violate § 1106(b)(3). See DOL Advisory Opinion 97-15A (May 22, 1997). The party requesting advice was a trustee company named Frost, which provided various administrative services to pension plan clients. Id. Frost had also entered into arrangements with mutual funds whereby Frost made the mutual funds available to the plans, and, in return, received 12b-l fees. Id. The Secretary said that so long as the trustee “does not exercise any authority or control to cause a plan to invest in a mutual fund, the mere receipt by the trustee of a fee or other compensation from a mutual fund in connection with such investment would not in and of itself violate section 406(b)(3).” Id. However, because Frost had some ability to add or remove mutual funds from the plan lineup, the Secretary was unable to conclude that it “would not exercise any discretionary authority or control to cause the Plans to invest in mutual funds that pay a fee or other compensation to Frost.” Id. Nonetheless, because Frost’s trustee agreements were structured so that the 12b-l fees were used to offset the costs that the plans would be obligated to pay for Frost’s services, the Secretary opined that Frost was not receiving payments for its own personal account in violation of § 1106(b)(3). Id. Finally, in a 2003 Advisory Opinion, the Secretary again addressed whether a trust company violated § 1106(b)(3) by offering bundled services which included certain mutual funds. See DOL Advisory Opinion 2003-09A (June 25, 2003). The trust company involved was called AATSC that provided “bundled service” arrangement to its clients, which included trustee service, recordkeeping, tax compliance, and participant communications. Id. AATSC stated that it made certain mutual funds available to the plan participants and that those mutual funds then paid AATSC a portion of the 12b-l fees that were generated from the plan participants’ investments in those funds. Id. Consistent with its earlier opinions, the Secretary wrote that AATSC’s receipt of 12b-l fees from the mutual funds would not violate § 1106(b)(3) “when the decision to invest in such funds is made by a fiduciary who is independent of AATSC and its affiliates, or by participants of such employee benefit plans.” Id. All three Advisory Opinions suggest that SCE should not be liable merely for receiving some benefit from revenue sharing from the mutual funds, because Plaintiffs have not presented evidence that SCE made the decisions to invest in those mutual funds. These Advisory Opinions emphasize that it is permissible for an entity to receive some compensation in the form of revenue sharing so long as that entity is not the one deciding whether to add or delete certain mutual funds. Here, the evidence reveals that the decisions to invest in the mutual funds were made by fiduciaries other than SCE. Thus, SCE cannot be liable for violating § 1106(b)(3). The fact that a fiduciary must be involved in the transaction in order to be liable under § 1106(b)(3) stems from the fundamental question here, which is whether SCE is in fact a fiduciary with respect to the transactions that generated the revenue sharing. As courts have repeatedly recognized, just because a person is a fiduciary in one respect, does not mean that the person is a fiduciary in all respects. See Acosta v. Pacific Enters., 950 F.2d 611, 618 (9th Cir.1991) (“[A] person’s actions, not the official designation of his role, determine whether he enjoys fiduciary status.”). ERISA “does not make a person who is a fiduciary for one purpose a fiduciary for every purpose.” Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1188 (7th Cir.1994). The statute 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 added). The key part of this statutory provision is the phrase “to the extent.” The inclusion of this phrase “means that a party is a fiduciary only as to the activities which bring the person within the definition.” Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 61 (4th Cir.1992). “The statutory language plainly indicates that the fiduciary function is not an indivisible one. In other words, a court must ask whether a person is a fiduciary with respect to the particular activity at issue.” Id.; see 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 party at issue.”). Here, Plaintiffs have not presented evidence that SCE had control over the decisions that resulted in the generation of the revenue sharing. Instead, the evidence presented by the Plaintiffs shows that different fiduciaries, the TIC or Benefits Committee, conducted the transactions in question. Plaintiffs have not pointed to evidence showing that these committees were somehow controlled by SCE. In fact, the evidence shows that the TIC and Benefits Committee were separate entities who performed their fiduciary function independently from SCE. (See Decker Deck, Exs. M & DD.) Without the necessary control, SCE cannot be a fiduciary with respect to those decisions, and therefore, cannot be liable for simply receiving the consideration from those transactions. Plaintiffs mention that the individual members of the TIC and Benefits Committee are appointed by the SCE CEO. However, merely appointing individuals to be members of the Committees is insufficient evidence to show that SCE exercised the requisite control over specific transactions involved in the alleged prohibited transactions. For example, in Kanawi v. Bechtel Corp., 590 F.Supp.2d 1213 (N.D.Cal.2008), the analogous company to SCE here, Bechtel, argued that it was not a fiduciary with respect to the specific investment decisions that were made on behalf of the plan. Id. at 1224. The court noted that “[fjiduciaries can be held liable only for claims arising out of the exercise of their fiduciary duties.” Id. (citing Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1325 (9th Cir.1985)). The court found no evidence that Bechtel had placed people on the investment committee who would serve Bechtel’s interest. Id. “Furthermore, the evidence does not suggest that Bechtel itself exercised power over the investment decisions related to the Plan.” Id. (emphasis added). Thus, the court found that Bechtel could only be liable on a theory of co-fiduciary liability under § 1105(a). Much like Kanawi, here, there is no evidence that SCE placed people on the Benefits Committee or TIC in order to serve SCE’s interests. Nor is there evidence that SCE itself exercised power over the investment decisions. In light of the absence of evidence that SCE had any control over the transactions that generated the revenue sharing, SCE cannot be liable for violating § 1106(b)(3). Plaintiffs’ motion for summary judgment on this claim is therefore denied. The Court will also enter judgment in favor of Defendants on this claim because the undisputed evidence shows that the transactions in question were executed by the Benefits Committee or the TIC, yet neither received consideration as a result of those transactions. As discussed infra, while there may be some ambiguity with regard to the role that the Investments Staff played in the decisions of which mutual funds to add as options in the Plan, Plaintiffs have not sustained their burden of producing evidence that the actions of the Investments Staff can be attributed to SCE generally. Furthermore, even if the Investments Staff had significant control over those decisions, Plaintiffs have identified no evidence that the Investments Staff, either collectively or individually, received consideration in exchange for the decisions they made. Without some evidence that the relevant fiduciaries received consideration for decisions made with respect to the Plan, there can be no violation of § 1106(b)(3). Thus, summary judgment will be granted for Defendants on this claim. As an independent basis, Plaintiffs’ claim for violation of § 1106(b)(3) is barred, at least in part, by the statute of limitations. To some extent, Plaintiffs’ claim is premised on the contracts between the Plan and the mutual funds, which were entered into before August 16,-2001. (See Pl.’s Exs. N & P.) By contrast, however, some of the transactions whereby the mutual funds were selected for inclusion in the Plan occurred after August 16, 2001. Thus, to the extent that these transactions occurred before August 16, 2001, Plaintiffs’ claim are barred by the statute of limitations. 2. § 1106(b)(2) Plaintiffs move for summary judgment on the basis that SCE’s arrangement with Hewitt was a prohibited transaction pursuant to § 1106(b)(2). This section states that a fiduciary shall not “act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.” Id. Specifically with regard to this allegation, Plaintiffs contend that the TIC, a named Plan fiduciary, was also acting on behalf of SCE when deciding which mutual funds to include among the menu of options for the Plan. Plaintiffs argue that SCE’s interests were directly adverse to the Plan’s interests because the amount of money that SCE was obligated to pay for Hewitt’s recordkeeping service depended on how much revenue sharing was received from the mutual funds. Under the language of the statute therefore, Plaintiffs’ theory is that the TIC (“a fiduciary”) was choosing mutual funds that generated revenue sharing for inclusion in the investment menu (“act[ing] in any transaction involving the plan”) for the benefit of the parent corporation SCE (“on behalf of a party (or represent a party)”) who stood to benefit from the revenue sharing that originally came from.the assets of the plan (“whose interests are adverse to the interests of the plan”). The operative transactions that Plaintiffs identify are the decisions whereby the TIC selected the mutual funds for inclusion as an investment option for the Plan participants. These transactions involved the TIC (on behalf of the Plan) on one side, and the mutual funds on the other side of the transaction. However, there is no allegation that the TIC represented the mutual funds in those transactions; that is, there is no allegation that the fiduciary was acting on both sides of the transaction. In fact, the adverse party which the TIC was alleged to have represented — SCE— was not involved in those transactions at all. Rather, Plaintiffs’ theory appears to be that although the TIC was acting in the transactions with the mutual funds purportedly on the Plan’s behalf, in reality (and secretly), the TIC was acting on behalf of SCE. This, however, is not a prohibited transaction under § 1106(b)(2), but more accurately characterized as a claim for breach of the duty of loyalty under § 1104(a)(1)(A). Section 1106(b)(2) is commonly understood to “prohibit[] a fiduciary from engaging in a self-dealing transaction.” Wilson v. Perry, 470 F.Supp.2d 610, 623 (E.D.Va.2007). Indeed, in each of the cases Plaintiffs cite where a violation of § 1106(b)(2) was found, the defendant fiduciary was acting on behalf of a party standing on the other side of the transaction. In Donovan v. Mazzola, 716 F.2d 1226 (9th Cir.1983), for example, there were two funds, the Convalescent Fund and the Pension Fund, both of which shared the same trustees. Id. at 1237. The plaintiffs alleged that the trustees had engaged in a prohibited transaction under § 1106(b)(2) by making loans between the two funds. Id. The Ninth Circuit found a violation of § 1106(b)(2) because “ ‘[fiduciaries acting on both sides of a loan transaction cannot negotiate the best terms for either plan.... Each plan must be represented by trustees who are free to exert the maximum economic power manifested by their fund whenever they are negotiating a commercial transaction.’ ” Id. at 1238 (quoting Cutaiar v. Marshall, 590 F.2d 523 (3rd Cir.1979)). Similarly, in Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629 (W.D.Wis.1979), the court found that fiduciaries for the plan had engaged in a prohibited transaction by loaning money from the plan to the sponsoring companies, where the fiduciaries were members of the top management of the sponsoring companies. Id. at 638. The court said that “because the interests of a lender and a borrower are, by definition, adverse, a fiduciary cannot act in a loan transaction on behalf of a party borrowing from the plan without violating § [1106(b)(2) ].” Id. at 637-38. In making the loans from the pension plan to the companies, the plan documents required the trustees to approve the transaction, resulting in the trustees acting on behalf of the plan in the transaction. Id. at 638. Furthermore, the evidence showed that certain trustees were also members of the top management of the sponsor companies, and those trustees had been involved in the approval process for the transaction on behalf of the companies. Id. Thus, the court found that the trustees had “in effect, represented both sides of the transaction,” and therefore violated § 1106(b)(2). Id. In Parker v. Bain, 68 F.3d 1131 (9th Cir.1995), the court found that Parker, the vice president of the sponsoring company Pac Ship, was a fiduciary of the company pension plan because he exercised “discretionary authority” over plan assets. Id. at 1139. During a period of financial difficulty for Pac Ship, Parker transferred money from the funds of the pension plan to the company’s general account. Id. at 1140. The court found a prohibited transaction in violation of § 1106(b)(2) because “[i]n transferring those funds into Pac Ship’s account, Parker acted on behalf of Pac Ship in a transaction in which Pac Ship’s interests were clearly adverse to the interests of the Plan.” Id. Unlike these cases, here, Plaintiffs do not allege that the TIC stood on both sides of the transaction by representing the mutual funds in connection with the transactions whereby the mutual funds became investment options for the Plan participants. Instead, Plaintiffs allege that TIC represented SCE — yet SCE was not engaged in any of the transactions between the Plan and the mutual funds. Although SCE may have had an interest adverse to the Plan in connection with those transactions, SCE was not a party to those transactions. In Donovan v. Bierwirth, 680 F.2d 263 (2d Cir.1982), the Second Circuit declined to apply § 1106(b)(2) in a case similar to ours. There, a company made a tender offer in an attempt to buy out the plan sponsor, a company named Grumman. Id. at 266. The plan trustees voted not to tender the plan’s Grumman shares and, in fact, even decided to purchase more Grumman stock in the face of the tender offer. Id. at 268-69. The plaintiffs alleged that the trustees of the Grumman pension plan had engaged in a § 1106(b)(2) prohibited transaction in connection with these decisions because the trustees had acted on Grumman’s behalf in an effort to defeat the tender offer in connection with the additional purchase of stock. Id. at 270. The Second Circuit found § 1106(b)(2) inapplicable, however, stating that “[w]e read this section of the statute as requiring a transaction between the plan and a party having an adverse interest.” Id. Thus, presumably, since the transactions at issue — the purchase of stock — were between the plan and an individual stockholder, not the plan and Grumman, whom the trustees were alleged to have been representing, there was no § 1106(b)(2) violation. See id. The court further noted that the cases cited by the plaintiff involved “self-dealing clearly prohibited” by the statute. Id. Thus, the court declined to extend § 1106(b)(2) to the facts of the case “particularly in light of the inclusion of the sweeping requirements of prudence and loyalty contained in [§ 1104].” Id. Similarly, here, the transactions at issue do not involve a transaction between the Plan and SCE, on who’s behalf the TIC is alleged to have been acting. Thus, § 1106(b)(2) does not apply. As recognized by the Second Circuit in Bierwirth, Plaintiffs’ claim is one for breach of the duty of loyalty under § 1104(a)(1)(A), but is not a per se prohibited transaction. As discussed infra, to the extent there is evidence to suggest that the TIC chose mutual funds depending on the amount of revenue sharing that they offered, Plaintiffs may have a claim for breaching their duty of loyalty by not acting exclusively in the interests of the Plan participants. Plaintiffs’ § 1106(b)(2) claim fails for an additional reason as well. As part of their claim, Plaintiffs would have to prove that the TIC acted “on behalf of’ or “represented” SCE in connection with the mutual fund transactions. See id. In each of the cases applying § 1106(b)(2), the required relationship between the fiduciary and the adverse party has been more than a secret loyalty to the adverse party, but rather, has consisted of a formal employer-employee or agency-type relationship. In Mazzola, the fiduciaries were also trustees of a different pension plan, 716 F.2d at 1237; in Freund, the fiduciaries were upper-level managers at the adverse company, 485 F.Supp. at 638; and in Parker, the fiduciary was the vice president of the adverse company, 68 F.3d at 1139. Each of these fiduciaries held an official position with the adverse party, which allowed each court to find that the fiduciary was acting “on behalf of’ or “representing” the adverse party. Here, however, Plaintiffs have identified no evidence that the TIC had a similar formal role with SCE. Plaintiffs mention that some of the members of the TIC were appointed by SCE’s CEO, but Plaintiffs do not point to evidence that would support a formal relationship similar to those present in the cases cited above. Furthermore, even in those cases where the fiduciary held an official position in an adverse party, the plaintiff was required to prove that the fiduciary was actually acting on behalf of the adverse party in connection with that transaction. For example, in Reich v. Compton, 57 F.3d 270 (3rd Cir.1995), the Third Circuit remanded the case to the district court to determine whether certain plan fiduciaries who also had positions in the adverse parties to a loan transaction “acted on behalf of or represented” the adverse parties in connection with that transaction. Id. at 290. The court noted that the fiduciaries could have acted on behalf of the adverse parties because the fiduciaries were also officers in the adverse parties, they did not recuse themselves when the transaction was being considered by the adverse parties, and they actually participated in the discussions among officers of the adverse parties with respect to the transactions. Id. The court suggested that these facts in themselves may have actually been sufficient to justify summary judgment for the plaintiffs, but remanded to the district court to determine whether, during the adverse parties’ deliberations concerning the transactions, the “trustees took any action” in their capacities as officers for the adverse parties. Id. “If they did, then they took actions in this transaction on behalf of ... parties with interests adverse to the Plan, and they therefore violated section [1106(b)(2)].” Id. Here, Plaintiffs have not produced sufficient evidence that the TIC actually acted on SCE’s behalf in selecting the mutual funds. Plaintiffs point to no evidence, for example, that the members of the TIC were also officers of SCE, or that they played any role on behalf of SCE in connection with the mutual fund selection process. Thus, for this separate reason, Plaintiffs’ are not entitled to summary judgment on this claim. The plaintiff in Compton advanced a theory that is nearly identical to the theory advance by Plaintiffs’ in this case. The court noted that the plaintiff argued that the trustees had violated § 1106(b)(2) because, “while acting in their capacities as plan trustees during the consideration of the [transaction], they were actually serving the interests of the [adverse parties].” Id. at 290 n. 29. In essence, the plaintiff in Compton argued the exact same “secret loyalty” theory that Plaintiffs advance here — that even though the fiduciaries were purportedly acting on behalf of the Plan when selecting the mutual funds for inclusion as investment options, in reality they were acting on behalf of a party with an adverse interest. The Third Circuit noted that “[t]his theory, although based on section [1106(b)(2) ], seems to resemble the [plaintiffs] claim against all the trustees under section [1104(a)(1)(A)],” for breach of the duty of loyalty. Id. Thus, the court declined to address such a theory within the context of the § 1106(b)(2) framework. Id. Similarly, here, as the Third Circuit noted in Compton, while Plaintiffs’ theory based on a secret loyalty to SCE in connection with the selection of the mutual funds could be considered a claim for breach of the duty of loyalty under § 1104(a)(1)(A), such a theory does not form the basis for a per se prohibited transaction. Thus, the Court finds Plaintiffs’ § 1106(b)(2) theory inapplicable as a matter of law and grants summary judgment for Defendants on this claim. E. Violation of the Plan Document— § 1104(a)(1)(D) Plaintiffs move for summary judgment on the basis that SCE violated the terms of the Plan by failing to pay the full extent of Hewitt’s recordkeeping costs, and instead, allowed revenue sharing to be used to offset the costs of Hewitt’s recordkeeping service. The statute requires a fiduciary to “discharge his duties with respect to a plan ... in accordance with the documents and instruments governing the plan.” 29 U.S.C. § 1104(a)(1)(D). Before addressing the merits of Plaintiffs’ claim, a brief recap of the relevant facts may be helpful. The Master Plan document provided that “[t]he cost of the administration of the Plan will be paid by [SCE].” (Decker Deck, Ex. GG, at 48.) Plaintiffs contend, however, that SCE did not pay the costs of administering the Plan because some of Hewitt’s recordkeeping costs were offset with fees that Hewitt received directly from certain mutual funds. When retail mutual funds were added to the Plan in 1999, Hewitt already had preexisting contractual relationships with certain retail mutual funds whereby, if one of Hewitt’s pension plan clients invested in those mutual funds, then Hewitt would receive a proportion of the revenue sharing that was generated as a result of those investments. To the extent that Hewitt received revenue sharing as a result of the Plan investing in those retail mutual funds, Hewitt used at least 80% of those fees to offset the amount that SCE owed Hewitt for Hewitt’s recordkeeping services. Hewitt did not have revenue sharing arrangements with all retail mutual funds however, and as a result, contractual arrangements were made whereby the revenue sharing that was generated as a result of Plan assets being invested in those mutual funds was to be passed along to Hewitt, and used to offset the amount that SCE owed Hewitt for Hewitt’s recordkeeping service. One important fact, however, is that the amount of fees actually charged to the Plan participants in connection with their investment in the retail mutual funds was not connected to the proportion of the revenue sharing that was paid to Hewitt. Rather, the mutual funds charged individual investors a fee, which was characterized as the overall expense ratio for the mutual fund. The expense ratio was charged to all investors that invested in the mutual fund and was deducted before any returns were actually paid to the investor. As a result, even if Hewitt had not received any portion of the fees from the mutual funds, the individual Plan participant would have been charged the same fee for investing with that mutual fund. If a portion of that fee had not gone to Hewitt for its record-keeping services, then presumably it would have gone somewhere else, but there is no indication that the mutual funds would have refunded the fee back to the Plan participants. The result therefore is that even though SCE may not have paid the full cost of Hewitt’s services due to the offsets from revenue sharing, even if SCE had paid the full amount of Hewitt’s recordkeeping services before the revenue sharing offsets, the Plan participants would not have realized any savings. In light of this factual summary, the Court must decide whether Defendants violated the Plan documents by using revenue sharing from the mutual funds to offset Hewitt’s recordkeeping costs. At first blush, it seems somewhat peculiar that Plaintiffs would be able to bring this claim given that the Plan has suffered no economic loss simply because revenue sharing was used to pay for the cost of Hewitt’s recordkeeping service. Courts, however, have allowed plaintiffs to bring suits for violation of the plan documents by a fiduciary even in the absence of damage to the plan. In LaScala v. Scrufari 479 F.3d 213 (2d Cir.2007), the Second Circuit reversed the district court’s decision that there could be no § 1104(a)(1)(D) violation because the plan suffered no loss. Id. at 221. The defendant fiduciary had violated the terms of the plan by giving his son a raise without the proper approval from the other plan trustees. Id. The court said that “[t]he fact that the Funds may not have suffered any loss as a result of Russell’s salary increases may bear on the question of damages, but has no bearing on whether [the defendant] breached his fiduciary duties in the first place.” Id. Thus, the court held that a claim for violation of § 1104(a)(1)(D) can be brought even in the absence of a loss to the plan. Furthermore, the statute provides that injunctive relief may be an appropriate remedy for such a breach of fiduciary duty. 29 U.S.C. § 1109(a) provides that “[a]ny person who is a fiduciary with respect to the plan who breaches any of the responsibilities, obligations, or duties imposed by this subchapter shall be ... subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.” Id. (emphasis added). Similarly, § 1132(a)(3) allows a participant to bring an action “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or ... to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any ... terms of the plan.” Id. (emphasis added). These provisions contemplate that declaratory or injunctive relief may be appropriate even in the absence of any economic loss to the plan. Indeed, the Ninth Circuit has rejected the argument that there must be a loss to the plan in order to bring an action for breach of fiduciary duty seeking injunctive relief. See Shaver v. Operating Eng’r Local 428 Pension Trust Fund, 332 F.3d 1198, 1203 (9th Cir.2003). In Shaver, the Ninth Circuit noted that some courts have required the plaintiff to show a loss to the plan. Id. The Ninth Circuit, however, limited the loss requirement to cases where the plaintiff was seeking monetary relief. Id. (citing Friend v. Sanwa Bank of California, 35 F.3d 466, 469 (9th Cir.1994)). The court noted that the plaintiff was seeking injunctive relief in the form of enjoining future misconduct or having the trustees removed. Id. The court concluded: Requiring a showing of loss in such a case would be to say that the fiduciaries are free to ignore their duties so long as they do no tangible harm, and that the beneficiaries are powerless to rein in the fiduciaries’ imprudent behavior until some actual damage has been done. This result is not supported by the language of ERISA, the common law, or common sense. Id. Here, Plaintiffs seek injunctive relief for the alleged violations of the Plan documents. Thus, in light of Shaver, the Court finds that Plaintiffs are not barred from pursuing their claim for breach of the Plan documents even in the absence of some loss to the Plan. A fiduciary’s failure to discharge its duties in accordance with the plan documents is an independent basis for finding a breach of fiduciary duty under § 1104(a)(1). See Dardaganis v. Grace Capital Inc., 889 F.2d 1237, 1241 (2d Cir.1989). Indeed, “[a] fiduciary’s failure to meet the[ ] specific requirements of section 1104(a)(1) is not merely evidence of imprudent action but may, in itself, be a basis for liability under section 1109.