Full opinion text
MEMORANDUM AND ORDER P. KEVIN CASTEL, District Judge: This is a putative class action for damages and injunctive relief brought pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, et seq. Plaintiffs are participants in four plans covered by ERISA: the Bank of America 401(k) Plan (the “BofA 401(k) Plan”), the Bank of America 401(k) Plan for Legacy Companies (the “Legacy Plan”), the Countrywide 401(k) Plan (the “Countrywide Plan”), and the Bank of America Pension Plan, (the “Pension Plan”) (collectively referred to as the “Plans”). Plaintiffs allege that defendants were fiduciaries of the Plans and that, from January 11, 2008 through January 21, 2009 (the “Class Period”), defendants breached various fiduciary duties they owed to the Plans in violation of ERISA. (See Consolidated Amended Complaint (the “Complaint”) ¶ 5.) Principally, plaintiffs allege that defendants allowed the imprudent investment of 401(k) plan assets in Bank of America (“BofA” or the “Company”) stock, failed to eliminate the Company Stock Option, a fund invested primarily in BofA stock, as an investment choice for the 401(k) and Countrywide Plans and offered BofA stock as an investment measure for Pension Plan participants. Plaintiffs allege that such actions were imprudent because defendants knew or should have known that BofA had recently engaged in several acquisitions that compromised the Company, including the acquisitions of Countrywide Financial Corporation (“Countrywide”) and Merrill Lynch & Co., Inc. (“Merrill”). In addition, plaintiffs allege that defendants failed to disclose the risks that BofA shareholders would assume as a result of these acquisitions. According to plaintiffs, these actions transformed the character of BofA stock, making it an imprudent investment. Plaintiffs also assert claims for failure to monitor, claiming that defendants failed to remove fiduciaries who breached their duties of loyalty and prudence by investing in BofA stock and continuing to offer Plan Participants the option of investing in the Common Stock Fund. Plaintiffs filed the Complaint on October 9, 2009. (Docket No. 35.) Defendants move to dismiss the Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief may be granted. For reasons more fully explained, defendants’ motion is granted. Plaintiffs have failed to adequately and plausibly allege that defendants, other than the Benefits Committee, acted as fiduciaries, that the decision to allow the Company Stock Fund to remain as an investment option for the 401(k) Plans, as required by the Plan documents, and as an investment measure for the Pension Plan, was imprudent, that defendants breached a fiduciary duty to monitor the appointed trustees and administrators of the Plans or that defendants breached a fiduciary duty by failing to disclose material information to Plan Participants. The Complaint, viewed in the light most favorable to plaintiffs, does not plausibly allege that the Benefits Committee breached its duty of prudence when it followed Plan documents and continued to offer the Company Stock Fund as an investment option for Plan Participants. Because the Complaint does not plausibly allege a breach of the duty of prudence or loyalty, it also fails to plausibly allege a breach of the duty to monitor. Furthermore, the Complaint fails to plausibly allege a breach of the duty to disclose. Because the Complaint fails to plausibly allege a claim for breach of fiduciary duty, the claims based on a theory of co-fiduciary liability are also dismissed. I. Procedural History Multiple actions relating to the claims asserted in the Complaint were filed against the defendants in various districts. Upon BofA’s application, the Judicial Panel on Multidistrict Litigation consolidated the related actions for coordinated pretrial purposes and, on June 11, 2009 assigned them to the Honorable Denny Chin pursuant to 28 U.S.C. § 1407. The Complaint was filed on October 9, 2009. (Docket No. 35) Upon Judge Chin’s elevation to the Second Circuit, the consolidated action was reassigned to the undersigned on April 28, 2010. (Docket No. 250.) Defendants now move to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P. (Docket No. 119.) For the purposes of this motion, the allegations set forth in the Complaint are accepted as true, with the exception of legal conclusions couched as factual allegations. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). All reasonable inferences are drawn in the plaintiffs’ favor as the nonmovants. United States v. City of New York, 359 F.3d 83, 91 (2d Cir.2004). Certain materials, including the Plan documents, are properly considered on the motion because, as will be explained, they are incorporated by reference into the Complaint. II. The Parties. Plaintiffs are individuals who are “participants” in the BofA 401(k) Plan, the Legacy 401(k) Plan, the Countrywide 401(k) Plan or the Pension Plan (the “Plan Participants”). (Compl. ¶ 27-33,162.) Defendant BofA is a Delaware corporation with headquarters in North Carolina. (Id. ¶ 35.) BofA “provides a diverse range of banking and non-banking financial services and products domestically and internationally.” (Id.) The Bank of America Corporation Corporate Benefits Committee (the “Benefits Committee”) is the administrator for each Plan. (Id. ¶ 36.) The Complaint names as defendants individuals who served as members of the Benefits Committee during the Class Period: J. Steele Alphin, Amy Woods Brinkley, Barbara J. Desoer, Liam E. McGee, Timothy J. Mayopoulos, Brian T. Moynihan, Bruce L. Hammonds, and Richard K. Struthers. {Id. ¶¶ 37-45.) The Bank of America Compensation and Benefits Committee (the “Compensation Committee”) is a committee composed of members of BofA’s board of directors. {Id. ¶ 46.) The Compensation Committee “provid[es] overall guidance with respect to the establishment, maintenance and administration of [BofA’s] compensation programs and employee benefits plans.” {Id. ¶ 47.) The Compensation Committee also had the authority to delegate its discretionary duties and responsibilities with respect to the adoption, amendment, modification or termination of benefit plans. {Id. ¶ 49.) The Complaint names individuals who served as members of the Compensation Committee during the Class Period as defendants: 0. Temple Sloan, Jr., Thomas M. Ryan, Patricia Mitchell, and Meredith R. Spangler. {Id. ¶ 51.) The Complaint also names as defendants the other individual BofA directors during the Class Period. {Id. ¶ 52.) The board defendants include the individuals who were members of the Compensation Committee, as well as individuals Kenneth D. Lewis, Jackie M. Ward, Thomas May, Walter E, Massey, Charles Gifford, William Barnet III, John Collins, Robert Tillman, Frank Bramble, Sr., Monica Lozano, Tommy Franks, and Gary Countryman. {Id. ¶ 55.) Defendant Kenneth Lewis (“Lewis”) was Chairman of the board of directors from February 2005 until 2009. {Id. ¶ 55(a).) Lewis has been President of BofA since July 2004 and Chief Executive Officer (“CEO”) since April 2001. {Id.) III. Jurisdiction Federal question jurisdiction is properly invoked because plaintiffs’ claims arise under ERISA, 29 U.S.C. § 1132, et seq. 28 U.S.C. § 1331. IV. This Action Plaintiffs claim that defendants BofA and the Benefits Committee (together, the “Prudence Defendants”) breached their fiduciaries duties of loyalty and prudence to the Plans by continuing to offer the Company Stock Option as an investment choice to Plan Participants when they knew, or should have known, that the Company Stock Option was no longer a prudent investment (Counts I and V). Plaintiffs also assert claims against defendants BofA, the Compensation Committee, and the board (the “Monitoring Defendants”) for failure to monitor the Prudence Defendants, which plaintiffs allege enabled the breach of the duties of prudence and loyalty (Counts II and VI). Plaintiffs further claim that defendants BofA, the Benefits Committee, and Lewis, (the “Communications Defendants”) breached their fiduciary duties by failing to provide “complete and accurate information” to Plan Participants (Counts III and VII), Finally, plaintiffs assert claims for breach of fiduciary duty against all defendants on a theory of co-fiduciary liability (Counts IV and VIII). V. Background The facts below are taken from the Complaint. Non-conclusory factual allegations are taken as true for purposes of this motion. See Iqbal, 129 S.Ct. at 1949-50. Plaintiffs claim that as a result of ill-conceived acquisitions and business decisions, BofA, which was once “perceived as a ‘financial stalwart,’ with diverse and safe income streams, [became] a repository for some of the most toxic assets ever assembled,” causing a “devastating impact” on the value of BofA stock. (Compl. ¶ 235.) In 2005, BofA acquired MBNA, the country’s largest credit card issuer at the time. (Id. ¶ 178.) As a result of the acquisition, BofA’s consumer and small business division grew and accounted for 48% of BofA’s net income. (Id. ¶ 179.) Approximately two years later, on October 1, 2007, BofA acquired LaSalle Bank (“LaSalle”). (Id. ¶ 180.) LaSalle was a Midwestern commercial bank that was “heavily invested in the consumer credit and housing credit markets.” (Id.) In 2007, as a global credit crisis began to unfold, “[s]everal major mortgage lenders disclosed extraordinary loan default rates.” (Id. ¶ 182.) Between April 2007 and January 2008, several subprime lenders filed for bankruptcy, including New Century Financial Corporation on April 2, 2007 and American Home Mortgage in August 2007. (Id. ¶ 182.) Countrywide, “the nation’s largest mortgage lender and home loan service provider,” (id. ¶ 236), “narrowly avoided bankruptcy with $13 billion in emergency loans” (id. ¶ 182). On August 21, 2007, BofA invested $2 billion in Countrywide. (Id. ¶ 222.) The value of mortgage securities “plunged from the third quarter of 2007 through mid-2008.” (Id. ¶ 184.) BofA reported in its September 2007 10-Q that it was exposed to over $12.1 billion in credit derivative obligations backed by subprime residential mortgages. (Id. ¶ 185.) As the credit market continued to decline, BofA reported additional losses. “By the end of 2007, as a result of several ill-timed acquisitions, [BofA] found itself with a heavy and dangerous exposure to the quickly deteriorating consumer and housing credit markets.... ” (Id. ¶ 177.) BofA’s Chief Financial Officer, Joe Price, informed investors that BofA “expect[ed] a meaningful impact on global corporate and investment banking’s third quarter results.” (Id. ¶ 187.) On October 18, 2007, BofA announced that its third quarter earnings per share declined 31% to 82 cents and BofA reported that it had increased its provision for credit losses as a result of the weak housing market. (Id. ¶¶ 188-89.) On January 22, 2008, BofA reported that its net income for 2007 declined 29% and earnings per share dropped 28%. (Id. ¶ 192.) The poor results from LaSalle contributed to the fourth quarter decline. (Id.) As a result, BofA’s increased exposure to risks in the credit market stemming from its acquisition of “failed banks and toxic assets,” (id. ¶¶ 186-213), “even before the ill-fated decision to acquire Countrywide at the start of the Class Period, [caused BofA to be] severely compromised” (id. ¶ 214). Despite this compromised position, “[defendants painted a misleadingly rosy picture of the Company, its condition and its prospects.” (Id. ¶ 215.) Plaintiffs cite statements in the 2007 Annual Report in support of this allegation. (Id. ¶¶ 216-218.) BofA decided to acquire Countrywide on January 11, 2008. (Id. ¶ 225.) One day before BofA made the acquisition public, Countrywide “disclosed that 7.2 percent of the loans in its servicing portfolio were delinquent in December of 200[7].” (Id. ¶226.) The Complaint alleges that “the Countrywide acquisition greatly increased [BofA]’s sensitivity to what [BofA] should have known would be a prolonged housing market downturn.” (Id. ¶229.) This was especially true, according to the Complaint, because the Countrywide acquisition “exacerbated” BofA’s exposure to the deteriorating California and Florida residential mortgages. (See id. ¶¶ 230-233.) BofA “knew of [Countrywide’s] exposure [to impaired subprime and Option ARM loans], but failed to, in any meaningful way, manage the risk it presented to [BofA] and to the Plans’ huge exposure to Company stock.” (Id. ¶ 262.) Furthermore, Countrywide’s problematic accounting “masked the extent of its problems.” (Id. ¶¶ 264-308.) In 2008, reports from other financial institutions predicted that BofA would face write-downs in the coming months and expressed concerns about BofA’s portfolios. (See id. ¶¶ 311-15.) Countrywide’s financial health continued to deteriorate throughout 2008. (See id. ¶¶ 317-20.) Although there was speculation that the acquisition might be in danger, Lewis reaffirmed BofA’s commitment to the deal in June 2008. (Id. ¶¶ 320-21.) “Also in June of 2008, equity analysts at Standard and Poors slashed their rating of [BofA] stock to ‘sell’ on fears that [BofA] underestimated the impact of rising consumer defaults and delinquencies at Countrywide.... ” (Id. ¶ 323.) On or about June 24, 2008, Countrywide shareholders approved the deal, which closed on or about July 1, 2008. (Id. ¶ 324.) Plaintiffs complain that “[d]espite the precarious state of Countrywide’s assets, and the evidence concerning Countrywide’s unethical and improper practices of which [BofA] must have been aware as a result of its due diligence, [BofA] purchased the biggest seller of toxic and risky mortgage products and raved about the benefits of the acquisition.” (Id. ¶ 328.) Plaintiffs allege that defendants made misleading statements to shareholders about the Countrywide acquisition. (Id. ¶¶ 326-35.) Specifically, the Complaint points to Lewis’s statement in the January 2008 Form 8-K that “Countrywide presents a rare opportunity for [BofA] to add what we believe is the best domestic mortgage platform at an attractive price and to affirm our position as the nation’s premier lender to consumers [because] ... home ownership is a fundamental pillar of the U.S. economy and over time it will be a key area of growth for [BofA].” (Id. ¶ 329.) Lewis also made statements about BofA’s market position and stated that the “Countrywide acquisition will create a leading position in home financing.” (Id.) Following the Countrywide acquisition, BofA’s net income “declined substantially,” yet Lewis “promised” in the April 21, 2008 Form 8-K filing “that [BofA] was in a ‘strong position to withstand the jolts to the system.’ ” (Id. ¶ 331.) Lewis also stated that BofA’s “earnings power from our core business activities is strong and growing. ... We are bringing innovative new products to market, taking market share and expanding customer relationships across the company.” (Id. ¶ 332.) Despite Lewis’s optimistic views, BofA’s earnings continued to fall and its credit quality “weakened substantially.” (Id. ¶ 333.) Nevertheless, Lewis continued to make public statements touting the benefits of the Countrywide acquisition. (/¿.¶¶ 333-34.) On September 15, 2008, approximately two months after the Countrywide acquisition, BofA publicly announced its intention to acquire Merrill. (Id. ¶¶ 339, 355.) The Complaint alleges that the collapse of Bear Sterns in March 2008, and then Lehman Brothers just days before the announcement of the Merrill acquisition, affected the value of Merrill, given the similarities in the investment banks’ exposures. (Id. ¶¶ 342-45.) The stock price for Merrill dropped approximately 24% during the week ending on September 12, 2008, three days before the Merrill acquisition was announced. (Id. ¶¶ 345, 355.) BofA offered $29 per share to purchase Merrill even though the most recent closing price had fallen to $12.59. (Id. ¶¶ 345, 353-54.) BofA’s stock price fell approximately 21.3% after news of the acquisition became public. (Id. ¶ 363.) Merrill later reported a net loss of $5.1 billion for the third quarter of 2008. (Id. ¶ 370.) BofA’s stock price continued to decline. On October 6, 2008, BofA announced its third quarter 2008 results, which included a cut to quarterly dividends, plans to raise $10 billion in new capital, an increase in the level of nonperforming assets, and a provision for credit card losses of $6.45 billion. (Id. ¶¶ 389-90.) At the same time, BofA also announced that it had agreed to an $8.4 billion settlement of predatory lending claims against Countrywide. (Id. ¶ 387.) In light of the news, BofA stock fell 26% to $23.77 per share. (Id. ¶ 391.) On November 3, 2008, BofA filed a proxy statement purporting to disclose the terms of the Merrill acquisition. (Id. ¶ 379.) The Complaint alleges that the proxy statement contained misrepresentations and omitted material information, including that BofA authorized Merrill to award bonuses to its employees in an amount up to $5.8 billion. (Id. ¶ 417-25.) Those alleged misrepresentations and omissions are the subject of related securities and derivative actions. (See Docket Nos. 29, 39.) According to the Complaint, BofA considered, on several occasions, whether it should invoke the material adverse event clause of the acquisition agreement based on the material losses Merrill was suffering. (See Compl. ¶ 415.) Despite its knowledge of Merrill’s financial information, BofA decided to proceed with the acquisition. (See id. ¶¶ 409-13.) At a special meeting held on or about December 5, 2008, 82% of BofA shareholders voted and approved the acquisition of Merrill. (Id. ¶ 405.) BofA’s acquisition of Merrill closed on January 1, 2009. (Id. ¶ 429.) BofA’s stock price fell further after it released a press statement on January 16, 2009 announcing a fourth-quarter loss of $1.7 billion and reported that Merrill had a fourth-quarter loss of $15.3 billion, (id. ¶ 432.), and detailing federal capital support, which included $20 billion in cash and a $118 billion guarantee on loans BofA held. (Id. ¶¶ 431-35.) BofA also disclosed that it had “informed the federal government in mid-December that, without billions in additional aid, [BofA] would be unable to consummate the acquisition.” (Id. ¶438.) At that time, BofA announced that it would cut quarterly dividends from 32 cents per share to a 1 cent per share in order to raise capital. (Id. ¶433.) BofA’s stock price fell to $10.20 on January 14, 2009 and then to $6.68 on January 21, 2009. (Id. ¶¶ 82, 447-48.) A. The Plans I. Bank of America 4-01(k) Plan It is undisputed that the BofA 401(k) Plan is an “employee pension benefit plan,” as defined by § 3(2)(A) of ERISA, 29 U.S.C. § 1002(2)(A), and is a “defined contribution plan” within the meaning of § 3(34) of ERISA, 29 U.S.C. § 1002(34). Under ERISA, the BofA 401(k) Plan is a legal entity that can sue and be sued. ERISA § 502(d)(1), 29 U.S.C. § 1132(d)(1). Claims of breach of fiduciary duty under ERISA are not asserted against or on behalf of the Plan itself; instead, the relief sought is for the benefit of the 401(k) Plan and its participants and beneficiaries. See ERISA § 409, 29 U.S.C. § 1109. Under ERISA, the assets of employee benefits plans, including the Plans at issue here, must be “held in trust by one or more trustees.” ERISA § 403, 29 U.S.C. § 1103(a). The assets of the 401(k) Plan are held in a trust fund administered by Bank of America, N.A. (Compl. ¶ 60.) The 401 (k) Plan’s stated purpose is “to provide a program through which Participants may achieve additional financial security during their working years and in retirement and participate in the growth of the Participating Employers through ownership of Common Stock” in the Company. {Id. ¶ 61.) Under the Plan, “Participating Employers” include the Company and its Subsidiaries, and “Covered Employees” include any U.S.-based person who is identified as an Employee in the personnel records of his or her Participating Employer. {Id. ¶ 62.) The 401(k) Plan has two components: the Employee Stock Ownership Plan (the “ESOP”) and the “Profit-sharing portion.” {Id. ¶ 63.) The ESOP includes the Common Stock Fund and the “Profit-sharing portion” is defined as “the portion of the Plan that is not the ESOP.” (Id.) The Complaint states that the 401(k) Plan provides that the “ESOP assets shall include the Common Stock Fund.... ” {Id. ¶ 64.) The Common Stock Fund is a “Fund that invests primarily in Common Stock” of BofA. {Id. ¶ 65; see 401(k) Plan at 2.1(c)(15) at 6.) Throughout the Class Period, the 401(k) Plan offered 26 investment alternatives to Plan Participants, including, among others, the Common Stock Fund, the Stable Capital Fund, and 14 mutual funds. (Compl. ¶ 66.) The Common Stock Fund invested “all or nearly all” of its assets in BofA stock throughout the Class Period. {Id. ¶ 67.) The Summary Plan Description (“SPD”) is a document summarizing the Plans, their various terms and the available investment options. ERISA requires plan administrators to distribute the information contained in the SPD to Plan Participants. With respect to the Common Stock Fund, the SPD states that “[u]nder normal circumstances [the fund] invests primarily in common stock of Bank of America Corporation, and also invests in short-term investments.” {Id. ¶ 70.) The 401 (k) Plan gives “complete responsibility for the operation and administration of the Plan ... excluding those areas specifically or by necessary implication allocated in the Plan to the Compensation Committee, the Trustee, or the Board of Directors” to the Benefits Committee. (Compl. ¶ 71; 401(k) Plan § 8.2(a) at 52.) The Plan delegates to the Benefits Committee all of the general “powers necessary to enable it to properly carry out its duties under the Plan and Trust” as well as specific powers and duties to: (i) construe and interpret the Plan and to determine all questions that arise thereunder; (ii) decide all questions relating to the eligibility of employees to participate in the Plan as well as to receive benefits under the Plan; (iii) establish rules and procedures relating to Participant elections under the Plan, including Compensation reduction elections under Article IV, Distribution elections under Article VII and investment elections under Article XII, and the Committee in its discretion may employ one or more persons or entities to provide advice or other assistance to Participants in making their said investment elections; (v) authorize all disbursements by the Trustee except for the ordinary expenses of administration of the Trust (ix) modify or supplement any Plan accounting method, practice or procedure, make any adjustments to Accounts or modify or supplement any other aspect of the operation or administration of the Plan in such manner and to such extent consistent with and permitted by [ERISA] and the [Tax] Code that the Committee deems necessary or appropriate to correct errors and mistakes, to effect proper and equitable Account adjustments or otherwise to ensure the proper and appropriate administration and operation of the Plan; and (x) carry out such other and further specific duties, and exercise such other and further specific powers authority and discretion, as are elsewhere in the Plan or the Trust either expressly or by necessary implication conferred upon it. (Compl. ¶ 72; 401(k) Plan § 9.3, at 55-56.) The Benefits Committee is responsible for prescribing rules and procedures and is specifically given the discretion to [prescribe restrictions as to time, frequency and amount of permitted investment changes. Such restrictions may include, without limitation, rules that limit or otherwise restrict transfer to or from some or all of the Funds to particular Valuation Date(s) during particular period(s) of time, including rules that in the Committee’s judgment are appropriate to deter, restrict, or eliminate transfers to, from or among Funds by Participants that because of frequency, timing or amount may be to the direct or indirect detriment of other Participants or the Plan, and such rules may include the imposition of redemption or similar fees on transfers from particular Fund. Such restriction may include, without limitation, restrictions regarding transfers to or from a Fund whose investments are not highly liquid. (Compl. ¶ 73; 401(k) Plan § 12.1(b)(v).) a. Contributions to the k01 (k) Plans Each 401(k) Plan Participant has an individual account that is credited with Employer and Participant-directed contributions and earnings, expenses, gains and losses. (Compl. ¶ 74.) All Covered Employees are eligible to make contributions as soon as they are employed by a Participating Employer. (Id. ¶ 75.) During the Class Period, Plan Participants were permitted to contribute between 1% and 30% of their compensation, up to the annual maximum permitted under the Internal Revenue Code. (Id. ¶ 76.) BofA provides a matching contribution for all employees who have completed 12 months of service. (Id. ¶ 77.) “Plan Participants are authorized to direct the investment of their contributions and the Company Matching Contributions among the various options in the 401(k) Plan.” (Id. ¶ 79.) “If a participant does not initially direct his or her investment, the participant’s contribution [is] invested in the Stable Capital Fund or if not in existence, a fund the Committee determines to pose the least risk to principal.” (Id. ¶ 80.) b. Losses to the I01(k) Plan As of December 31, 2007, the 401(k) Plan held about 75 million shares of BofA common stock, which at that time had a market value of approximately $3 billion and amounted to about 31.5% of the total assets of the 401(k) Plan. (Compl. ¶ 81.) As of December 31, 2008, the 401(k) Plan held over 81 million shares of BofA stock, which had a market value of approximately $1.15 billion and constituted approximately 19% of the total assets of the 401(k) Plan. (Id.) II. The BofA k01(k) Plan for Legacy Companies The Legacy 401(k) Plan Participating Employers include BofA and its principal subsidiaries. (Compl. ¶ 85.) The Legacy Plan’s participants include current and former employees of certain acquired companies, such as MBNA and Fleet Bank. (Id. ¶ 86.) During the Class Period, the Legacy Plan provided participants with 26 investment options, including, among others, the BofA Common Stock Fund and 14 mutual funds. (Id. ¶ 88.) a. Contributions to the JpOlQc) Legacy Plan The employee contribution rules and the contribution matching policy for the Legacy 401(k) Plan are similar to those for the 401(k) Plan. See supra V(A)(I)(a); (Compl. ¶ 87). b. Losses to the I01(k) Legacy Plan As of December 31, 2007, the Legacy 401(k) Plan held approximately 20 million shares of BofA common stock, which had a market value of approximately $845 million. (Compl. ¶ 90.) At that time, BofA common stock accounted for approximately 18% of the Legacy 401 (k) Plan’s total assets. (Id.) One year later, the Legacy 401(k) Plan held almost 25 million shares of BofA common stock, which had a market value of approximately $351 million and constituted about 10% of the Legacy 401 (k) Plan’s total assets. (Id.) III. Countrywide i01(k) Plan BofA acquired Countrywide and it became a wholly-owned subsidiary of BofA on July 1, 2008. (Compl. ¶ 92.) The Countrywide 401(k) Plan covers eligible employees of Countrywide as of the date of the acquisition. (Id. ¶ 95.) On July 1, 2008, Countrywide common stock was converted into BofA shares at a rate of .1822 BofA shares for each share of Countrywide common stock. (Id. ¶ 96.) The Countrywide 401(k) Plan’s investment options include 19 mutual funds, a money market mutual fund and an employer common stock fund. (Id. ¶ 97.) a. Contributions to the Countrywide I01(k) Plan Eligible employees could contribute up to 40% of their pretax annual compensation to the Countrywide 401(k) Plan. (Id. ¶ 98.) The employer matching contributions for the Countrywide 401(k) Plan were governed by a different scheme than the other 401(k) plans. Countrywide made quarterly, discretionary matching contributions equal to 50% of the first six percent of eligible participant contributions. (Id. ¶ 99.) Before April 1, 2008, Countrywide’s discretionary matching contributions were made entirely in Countrywide common stock and plan participants had the option of re-directing the contributions. (Id.) The value of Countrywide common stock was based on the closing price for the last business day of the quarter for which the contributions were made. (Id.) As of April 1, 2008, Countrywide made the matching contributions in cash and directed the contributions to the same investment choices as the pre-tax contributions. (Id.) b. Losses to the Countrywide I01(k) Plan As of December 31, 2007, the Countrywide 401 (k) Plan held shares of Countrywide common stock with a market value of approximately $83 million, which constituted approximately 9% of Countrywide 401(k) Plan’s total assets. (Id. ¶ 102.) As discussed above, Countrywide common stock was converted to BofA stock on July 1, 2008. As of December 31, 2008, the Countrywide 401(k) Plan held shares of BofA stock with a market value of approximately $40 million, which was approximately 7% of its total assets. (Id.) The Complaint alleges that the significant decrease in the value of the BofA stock led to a loss in value of the Countrywide 401 (k) Plan. (Id. ¶ 103.) IV. The BofA Pension Plan The Pension Plan is a cash balance “defined benefit” plan within the meaning of ERISA. See ERISA § 3(35), 29 U.S.C. § 1002(35); (Compl. ¶ 104). The Pension Plan maintains a hypothetical account in the name of each participant. (Compl. ¶¶ 104-05.) The individual accounts receive compensation credits at the end of each pay period, and Pension Plan participants select investment choices for their accounts. (Id. ¶ 105.) Unlike the 401(k) Plans, the individual Pension Plan account is not actually invested in Plan Participants’ investment choices. The investments are hypothetical in that the amount Plan Participants direct to each investment choice is credited with the same return that would be received if the account were actually invested in the investment choice. (Id. ¶ 110.) a. Contributions to the Pension Plan The Pension Plan is funded solely by BofA contributions. (Id. ¶ 114.) b. Losses to the Pension Plan The Complaint alleges that “[t]o the extent that the actual investment return on Pension Plan assets exceeded the return on the Investment Measures selected by participants, the difference is an arbitrage gain for [BofA]” and those gains “are used to offset contributions [BofA] would otherwise be required to make to the Pension Plan to fund benefit payments.” (Id. ¶ 115.) Plaintiffs allege that “to the extent [BofA] stock underperformed [in] the vehicles in which Pension Plan assets were actually invested, [BofA] benefits” and this is an “inherent conflict of interest” for fiduciaries. (Id. ¶ 116.) Plaintiffs do not seek redress for losses to the Pension Plan as a whole, but rather a recalculation of their individual benefits. Indeed, the Complaint, viewed most favorably, does not allege a loss to the Pension Plan. Plaintiffs allege that the Pension Plan may have received an “arbitrage gain.” (Compl. ¶ 115.) V. Standard Governing a Motion to Dismiss Rule 8(a)(2), Fed.R.Civ.P., requires “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (ellipsis in original). In Twombly, the Supreme Court held that in order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff must provide the grounds upon which the claims rest, through factual allegations sufficient to raise a right to relief above the speculative level. 550 U.S. at 555, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action” do not suffice to state a claim, as “Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1949-50. The Supreme Court has described the motion to dismiss standard as encompassing a “two-pronged approach” that requires a court first to construe a complaint’s allegations as true, while not bound to accept the veracity of a legal conclusion couched as a factual allegation. Id. Second, a court must then consider whether the complaint “states a plausible claim for relief,” which is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Although the Court is limited to facts as stated in the complaint, it may consider “any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, legally required public disclosure documents filed with the SEC, and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). “Where the plaintiff has actual notice of all the information in the movant’s papers and has relied upon these documents in framing the complaint, the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.” Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991). Here, the Complaint incorporates the Plan documents, the SPD, and various corporate SEC filings by reference and they are appropriately considered on this motion. See ATSI, 493 F.3d at 87. VI. Discussion ERISA was enacted “to provide a uniform regulatory regime over employee benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). It is designed to protect employee benefit and pension plans by, among other things, “setting forth certain general fiduciary duties applicable to the management of both pension and nonpension benefit plans.” Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). The fiduciary duties imposed under ERISA are derived from the common law of trusts. Id. The written instrument governing an employee benefit or pension plan, known as the plan agreement, describes the plan and names one or more fiduciaries who are responsible for making discretionary decisions on behalf of the plan. See 29 U.S.C. § 1102. An employer, as plan sponsor, is similar to the settlor in the trust context in that it does not act in a fiduciary capacity with respect to its decisions regarding the plan design, or its decisions to “adopt, modify, or terminate” the ERISA plan. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). ERISA imposes fiduciary duties on plan administrators and managers. See Varity, 516 U.S. at 496, 116 S.Ct. 1065 (ERISA “set[s] forth certain general fiduciary duties.”); 29 U.S.C. § 1104(a)(1) (describing ERISA duties of prudence, loyalty, and diversification of investments). Fiduciaries are defined under ERISA to include those named in the plan documents as fiduciaries as well as anyone who functions as a fiduciary by means of exercising control and authority over the plan. See Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). Under ERISA, a person functions as “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 ... or (Hi) he has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A). In this respect, “Congress intended ERISA’s definition of fiduciary to be broadly construed.” See LoPresti v. Terwilliger, 126 F.3d 34, 40 (2d Cir.1997). If a fiduciary breaches one or more duties, he “shall be personally liable to make good to such plan any losses to the plan resulting from each such breach ... and shall be subject to such other equitable or remedial relief as the court may deem appropriate.... ” 29 U.S.C. § 1109(a). Defendants argue that the Complaint, construed in the light most favorable to plaintiffs, fails to establish that the defendants were functioning as fiduciaries with respect to the actions at issue. A. Fiduciary Status A threshold question is whether each defendant acted as a plan fiduciary. Pegram v. Herdrich, 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). An individual may be an ERISA fiduciary for one purpose, but is not necessarily a fiduciary for other purposes. See Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins. Co., 302 F.3d 18, 28 (2d Cir.2002). As discussed above, ERISA imposes fiduciary duties upon individuals to the extent that they act with discretionary authority and control over the plan. I. Named Fiduciary The Benefits Committee is the administrator and named fiduciary for the Plans. See ERISA § 402(a)(1), 29 U.S.C. § 1102(a)(1) (every ERISA plan must have one or more named fiduciaries); ERISA § 3(16)(A), 29 U.S.C. § 1002(16)(A); (Compl. ¶¶ 137, 144, 148, 151). The Plans give the Benefits Committee “complete responsibility for the operation and administration of the Plan ... excluding those areas specifically or by necessary implication allocated in the Plan to the Compensation Committee, the Trustee or the Board of Directors.” (Compl. ¶ 138.) It is undisputed that the Benefits Committee is a Plan fiduciary. The Complaint does not allege that any other defendants are named fiduciaries, but claims that the remaining defendants were de facto fiduciaries by virtue of their actions with respect to the Plan and the Plan Participants. II. De Facto Fiduciary Status a. BofA Actions that BofA took as plan sponsor, such as the acts of creating the Plans and the selection of their terms, were not taken in a fiduciary capacity. See Lockheed Corp. v. Spink, 517 U.S. 882, 890, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). Furthermore, BofA’s status as an employer, including its ability to terminate the employment of members of the Benefits Committee is, alone, insufficient to render BofA an ERISA fiduciary. See Crocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir.1998). Viewed in the light most favorable to plaintiffs, the Complaint does not plausibly allege that BofA exercised authority over the administration of the Plans. See 29 U.S.C. § 1002(21)(A). The allegation that “[o]n information and belief BofA “executed the Trust documents with the Trustee to provide for the investment, management, and control of the assets of the Plans” is not supported by any factual allegations. (See Compl. ¶ 128.) As such, it is insufficient to state a plausible claim for relief. See Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Plaintiffs also claim that BofA is liable as an ERISA fiduciary based on the doctrine of respondeat superior. (See Compl. ¶ 131) (BofA exercised authority and control over the activities of its employees and directors). There is a split of authority regarding whether the doctrine of respondeat superior provides an independently viable theory of recovery in the ERISA context. Compare Bannistor v. Ullman, 287 F.3d 394, 408 (5th Cir.2002) (“[N]on-fiduciary respondeat superior liability attache[s] under ERISA only when the principal ‘actively and knowingly’ participated in the agent’s breach.”) with Hamilton v. Carell, 243 F.3d 992, 1001-02 (6th Cir.2001) (rejecting the Fifth Circuit’s “actively and knowingly” requirement and noting that “[ajlthough some courts have recognized that respondeat superior liability may apply in cases arising under ERISA alleging breach of fiduciary duties, this area of the law has been muddled by the fact that many of those courts consistently have confused respondeat superior liability with direct liability.”). Although the Second Circuit has not spoken on this issue, several district courts in this circuit have declined to apply respondeat superior in the ERISA context as an independent theory of liability. See In re Morgan Stanley ERISA Litig., 696 F.Supp.2d 345, 355 (S.D.N.Y.2009) (“[F]iduciary responsibility ... based on a respondeat superior theory is not established in view of the split of authority over whether ERISA provides for such a cause of action.”); Harris v. Finch, Pruyn & Co., Inc., 2008 WL 2064972, at *7 (N.D.N.Y. May 13, 2008) (“Respondeat superior liability does not exist under ERISA’s fiduciary liability scheme.”); In re AOL Time Warner, Inc. Sec. & ERISA Litig., 2005 WL 563166, at *4 n. 5 (S.D.N.Y.2005) (holding that ERISA does not contain a provision which “permits a non-fiduciary to be held liable for breaches of fiduciary duties by others”). Courts that have recognized claims based on a theory of respondeat superior tend to require factual allegations that support a claim that the corporation exercised de facto control over ERISA fiduciary employees. See, e.g., Bannistor, 287 F.3d at 408 (requiring de facto control and “active and knowing” participation in the breach for liability to attach to the employer); Am. Fed. of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Society, 841 F.2d 658, 665 (5th Cir. 1988) (The employer “never actively and knowingly participated in [the employee’s] breach of duty to the Fund, as is required for a finding of respondeat superior liability.”); Crowley ex rel. Corning, Inc., Inv. Plan v. Corning, Inc., 234 F.Supp.2d 222, 228 (W.D.NY.2002) (rejecting respondeat superior theory where there were no factual allegations to support a claim that the employer exercised defacto control). The Complaint, in a conclusory fashion, alleges that BofA, “at all applicable times, on information and belief, has exercised control over the activities of its employees and directors that performed fiduciary functions with respect to the Plans, including the Committee Defendants, and, on information and belief, can hire or appoint, terminate, and replace such employees at will. [BofA] is, thus, responsible for the activities of its employees through traditional principles of agency and respondeat superior liability.” (Compl. ¶ 131.) Here, the Complaint, viewed most favorably, does not plausibly allege facts to support the conclusory allegation that BofA, as employer, exercised authority and control over plan fiduciaries such that it qualifies as a defacto fiduciary under ERISA. Finally, the Complaint alleges that BofA was a Plan fiduciary because the Plans gave BofA the responsibility to appoint the Trustee, and by virtue thereof, the duty to monitor and remove the Trustee as necessary. (Id. ¶ 128.) The Complaint alleges, on information and belief, that BofA “had the responsibility to execute the Trust documents with the Trustee to provide for the investment, management and control of the assets of the Plans.” (Id.) Furthermore, the Complaint alleges, on information and belief, that BofA “exercised de facto authority and control with respect to the de jure responsibilities of the Committee Defendants,” (Id. ¶ 129.) The Complaint does not allege facts that support the conclusory allegation that BofA exercised de facto authority and control over the Committee Defendants. The Complaint also alleges that BofA exercised discretionary control and authority in a fiduciary capacity by communicating with Plan Participants regarding the Plans by, together with the Benefits Committee, disseminating the Plans’ documents and related materials, which incorporated by reference BofA’s SEC filings. (Id. ¶ 130.) Plaintiffs claim that the reference to BofA’s SEC filings converted all such materials into fiduciary communications and assert that because these statements were made by BofA, BofA communicated with Plan Participants as a fiduciary. (See id. ¶ 130.) As described below, see infra, III, communications made by a company in SEC filings do not become fiduciary statements for ERISA plans unless they are “intentionally connected ... to statements ... about the future of benefits, so that its intended communication about the security of benefits was rendered materially misleading.” Vanity, 516 U.S. at 505, 116 S.Ct. 1065 (emphasis in original). The Complaint, construed most favorably, does not sufficiently allege that BofA intentionally connected statements made in SEC filings about the company’s financial condition and, specifically, benefits of the Countrywide and Merrill acquisitions, to the future of plan benefits. The Complaint, therefore, fails to allege that BofA acted in a fiduciary capacity when it made the allegedly misleading statements in its SEC filings. b. BofA Board of Directors The Complaint names the BofA board of directors as defendants because BofA, “as a corporation, cannot act except through its human counterparts.” (Compl. ¶ 157.) The Complaint alleges that because individuals serving on the board “exercised discretionary authority or discretionary control respecting the management of the Plans, exercised authority or control respecting the management or disposition of the Plans’ assets, and/or had discretionary authority or discretionary responsibility in the administration of the plans,” they were de facto fiduciaries under ERISA. (Id. ¶¶ 158-161.) The Complaint does not contain factual allegations regarding any actions taken by the board to add support to the conclusory assertion that the board was a fiduciary with respect to the management of the Plans’ assets or administration of the Plans. Therefore, the Complaint does not allege that the individuals comprising the board of directors were plan fiduciaries with respect to the management of the Plans’ assets. The board had the authority to appoint and/or remove members of the Benefits Committee and the Compensation Committee. (Id. ¶ 159.) Plaintiffs allege that this ability gave rise to the duty to monitor the members of the Benefits Committee and the Compensation Committee. (Id. ¶ 160.) To the extent that the ability to appoint members gave rise to a duty to monitor, see infra at IV, the Complaint asserts that the members of the board of directors were acting as plan fiduciaries with respect to their alleged failure to monitor the appointees. c. Defendant Lewis The Complaint alleges that Lewis, as a member of the board of directors, participated in the appointment of members of the Benefits Committee. (Compl. ¶ 134.) Plaintiffs assert that Lewis’s status as a member of the board imposed a duty upon him to monitor the activities of the Benefits Committee and to ensure that the Committee was fully informed of all information needed to perform its duties under ERISA. (Id.) The Complaint also alleges that Lewis breached a fiduciary duty to Plan Participants when he made “numerous ... incomplete and inaccurate” statements to Plan Participants regarding the status of BofA and its future prospects. (Id. ¶ 135.) According to the Complaint, Lewis made the statements “via internal ‘talking points’ disseminated to employee Plan Participants.” (Id.) The Complaint alleges that the statements “were made in an ERISA fiduciary capacity because they contained information about the likely future of the Plans’ benefits, in particular the value and prudence of [an investment in BofA stock].” (Id.) The Complaint further alleges that “Lewis made these statements knowing that, due to his position as CEO, employees would view him as a fully informed, knowledgeable, and trustworthy source of information regarding [BofA’s] financial condition and future prospects.” (Id.) The Complaint fails to plausibly allege that Lewis made the purported statements in a fiduciary capacity in relation to Plan Participants. In essence, the Complaint alleges that defendant Lewis made certain statements in his role as CEO, and that because such statements reflected his views on the financial condition of BofA, Plan Participants relied on that information. Plaintiffs claim that this reliance made the statements fiduciary communications. “The flaw in this argument, however, is that there is no basis for the assumption that [Lewis] acted in an ERISA fiduciary capacity when making these statements. [His] limited Plan responsibilities did not include communicating with participants.” See In re Lehman Sec. & ERISA Litig., 683 F.Supp.2d 294, 300 (S.D.N.Y.2010). Furthermore, under plaintiffs’ theory, any communication by a company regarding its financial condition could become an ERISA fiduciary communication. d. The Compensation and Benefits Committee The Compensation Committee “has responsibility for substantially all of [BofA’s] employee benefit plans.” (Id. ¶ 154.) The Compensation Committee has the ability to delegate its authority, including its responsibilities for “the adoption, amendment, modification, or termination of benefit plans and ... the awards of stock options.” (Id. ¶ 155.) The Complaint, generously construed, does not contain factual allegations with respect to actions by the Compensation Committee to support its conclusory allegation that the Compensation Committee was a fiduciary in that it “exercised discretionary authority or discretionary control respecting the management of the Plans, exercised authority or control respecting management of disposition of the Plans’ assets, and/or had discretionary authority or discretionary responsibility in the administration of the plans.” (Id. ¶ 156.) B. Fiduciary Duties ERISA imposes upon fiduciaries “a number of detailed duties and responsibilities, which include the 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, 508 U.S. at 262, 113 S.Ct. 2063 (internal quotations and citations omitted) (alteration in original). ERISA is a “comprehensive and reticulated statute” which statutorily defines these duties. Id. at 251, 113 S.Ct. 2063. An ERISA fiduciary has a duty of loyalty, which requires that he “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries.” 29 U.S.C. § 1104(a)(1). An ERISA fiduciary also has a duty of prudence, which requires that the fiduciary act “with the 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.” 29 U.S.C. § 1104(a)(1)(B). ERISA fiduciaries must act “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with” various ERISA provisions. 29 U.S.C. § 1104(a)(1)(D). ERISA also requires that fiduciaries diversify the investments of the plan in order to minimize the risk of large losses, but this duty does not apply to plans that qualify as “eligible individual account plans” (“EIAPs”) or employee stock ownership plans (“ESOPs”). 29 U.S.C. §§ 1104(a)(1)(C), 1104(a)(2), 1107(d)(3)(A). For EIAPs and ESOPs, “the diversification requirement ... and the prudence requirement (only to the extent that it requires diversification) ... is not violated by acquisition or holding of qualifying employer real property or qualifying employer securities.” 29 U.S.C. § 1104(a)(2); see also Wright v. Or. Metallurgical Corp., 360 F.3d 1090, 1097 (9th Cir.2004). To state a claim for breach of fiduciary duty, a complaint must allege that (1) the defendant was a fiduciary who (2) was acting in a fiduciary capacity, and (3) breached his fiduciary duty. See 29 U.S.C. § 1109. As discussed, supra, the Complaint does not plausibly allege the fiduciary status of any defendant other than the Benefits Committee and, to the extent that a duty to monitor claim exists, BofA and the board of directors. There can, therefore, be no breach of fiduciary claim against the remaining defendants because they are not alleged to be Plan fiduciaries. Furthermore, even if there were allegations sufficient to convey de facto fiduciary status upon defendants, the Complaint fails to allege breach of any fiduciary duty. I. Duty of Prudence ERISA imposes a duty on plan fiduciaries to manage plan assets with prudence. 29 U.S.C. § 1104(a)(1)(B). Count I alleges that the Prudence Defendants breached their duties of prudence and loyalty by offering BofA stock as an investment option for participant contributions and by continuing to make and maintain investment in BofA stock. (Compl. ¶¶ 468-487.) As explained above, an individual acts as a fiduciary to the extent that he or she has discretion over the plan function in question. See 29 U.S.C. § 1002(21)(A); Pegram, 530 U.S. at 225-26, 120 S.Ct. 2143; Harris Trust, 302 F.3d at 28. The defendants argue that although the Benefits Committee is a named Plan fiduciary, it was not acting in a fiduciary capacity when it continued to offer the Company Stock Fund as an investment option because the Plan documents themselves required that the Company Stock Fund be offered, thereby depriving the Benefits Committee of the authority to remove it from the list of possible investments. Defendants argue that because the Benefits Committee lacked authority or discretion to remove the Company Stock Option, it did not act in a fiduciary capacity. Defendants argue that the failure to remove the Company Stock Option is conduct immune from judicial review because the defendants lawfully followed plan requirements. See Harris Trust, 302 F.3d at 29 (“[A]dherenee to [plan] terms by a plan administrator cannot constitute a breach of its fiduciary duties, barring a grant of discretionary authority to the fiduciary”); but see ERISA 29 U.S.C. § 1104(a)(1)(D) (plan fiduciaries are required to follow plan documents only “insofar as such documents and provisions are consistent with the provisions” of ERISA). Defendants support their argument that they lacked discretion or authority to remove the BofA Common Stock Fund from the list of available investment options by pointing to sections 11.1(b) and 11(d) in the Plan documents. Section 11.1(b) states that: The Funds shall include the Common Stock Fund. This fund shall be invested primarily in [BofA] Common Stock. The Common Stock Fund may also be invested in such cash or cash equivalent investments and other types of investments, as the Committee determines is appropriate to provide liquidity for cash benefit payments and transfers, the payments of administrative expenses, and such Fund’s other expected cash requirements. (Declaration of Rodman K. Forter in Support of Defendants’ Motion to Dismiss (“Forter Deck”) Ex. 2 at 58 (emphasis added).) Section 11.1(d) indicates an expectation that the Common Stock Fund would always be one of the many investment options available: From time to time after the Restatement Date, the Committee in its discretion may increase or decrease the number of Funds other than the Common Stock Fund, and in such regard may direct the Trustee to add or terminate specific Funds or modify existing Funds. (Id. at 59 (emphasis added).) Also, section 11.2 describes the intended investments of the ESOP: The assets of the ESOP shall be invested primarily in Common Stock. In such regard, the ESOP assets shall include the Common Stock Fund in its entirety. ESOP assets may also be invested, directly or indirectly, in cash or cash equivalent investments and other types of investments pending use to purchase Common Stock. (Id. at 61 (emphasis added).) In support of their claims that defendants should have, in the exercise of prudence, removed the Company Stock Fund from the list of available investment options and discontinued investment in BofA stock, plaintiffs point to sections 8.2(a) and 12.1(b)(v), which outline the Benefits Committee’s responsibilities. Section 8.2(a) states: The Committee shall be the general administrator of the Plan and shall have complete responsibility for the operation and administration of the Plan, including those powers and duties set forth in Section 9.3, but excluding those areas of responsibility specifically or by necessary implication allocated in the Plan to the Compensation Committee, the Trustee or the Board of Directors. (Id. at 52.) Section 12.1(b)(v) states: The Committee may prescribe restrictions as to the time, frequency and amount of permitted investment changes. Such restrictions may include, without limitation, rules that limit or otherwise restrict transfers to or from some or all of the Funds to particular Valuation Date(s) during particular period(s) of time, including rules that in the Committee’s judgment are appropriate to deter, restrict or eliminate transfers to, from or among Funds by Participants that because of frequency, timing or amount may be to the direct or indirect detriment of other Participants or the Plan, and such rules may include the imposition of redemption or similar fees on transfers from particular Fund. Such restrictions may include, without limitation, restrictions regarding transfers to or from a Fund whose investments are not highly liquid. (Id. at 66-67.) Broad plan language must yield to specific contractual provisions. See Aramony v. United Way of Am., 254 F.3d 403, 413 (2d Cir.2001); see also Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 250 (5th Cir.2008) (holding that general plan language did not make investment in employer stock merely permissible where specific plan provisions required that such an option be offered). The Plan gave the Benefits Committee discretion to prescribe rules governing Plan Participants’ investment selections but the provision does not override other specific provisions requiring that the Common Stock Fund be available for Plan Participants’ investments. Plaintiffs argue that even if the Plan documents indicate an intention that the Common Stock Fund must remain an available investment option, plan fiduciaries were bound by the duty of prudence to override such provisions to the extent that they required fiduciaries to take an objectively imprudent action. The Second Circuit has not determined whether there are circumstances in which a fiduciary is required to override plan terms. For instance, it has not addressed a situation in which plan terms require the fiduciary to offer employer stock that would otherwise be considered an imprudent investment. District courts have split on the issue. Compare In re Citigroup ERISA Litig., 2009 WL 2762708, at *14 (S.D.N.Y. Aug. 31, 2009) (holding that there is no duty to override a plan’s mandate that company stock be offered as an investment option) with Gearren v. McGraw-Hill Cos., Inc., 690 F.Supp.2d 254, 264 (S.D.N.Y.2010) (“[A] plan agreement cannot extinguish the fiduciary status of a named fiduciary simply by commanding him to take certain actions.”). As I next explain, I need not reach the issue of whether defendants’ decision to continue offering the Company Stock Option is immune from judicial review because, given the presumption of prudence that applies to the decision to invest ESOP or EIAP assets in company stock, the Complaint fails to plausibly allege facts that the defendants’ decision was imprudent. The allegations in this respect are conclusory. a. Presumption of Prudence The Third Circuit has held that a plan fiduciary who invests in