Full opinion text
ORDER DANIEL P. JORDAN III, District Judge. This ERISA dispute is before the Court for judgment following a 19-day bench' trial. For the reasons that follow, the Court concludes that judgment should be entered for Plaintiffs. Given the breadth of the record and the dispute, the Court will provide general findings of fact and procedural history before turning to more specific issues. I. General Findings of Fact and Procedural Overview The primary dispute is whether individual Defendants breached fiduciary duties under ERISA when acting as trustees for an Employee Stock Ownership Trust (“ESOT”) that purchased company stock for an Employee Stock Ownership Plan (“ESOP”). Plaintiffs claim Defendants paid too much for the stock. The transactions followed a somewhat familiar pattern, as described by the Fifth Circuit in Donovan v. Cunningham: An employer desiring to set up an ESOP will execute a written document to define the terms of the plan and the rights of beneficiaries under it. . 29 U.S.C. § 1102(a) (1976). The plan document must provide for one or more named fiduciaries “to control and manage the operation and administration of the plan.” Id., § 1102(a)(1). A trust will be established to hold the assets of the ESOP. Id., § 1103(a). The employer may then make tax-deductible contributions to the plan in the form of its own stock or cash. If cash is contributed, the ESOP then purchases stock in the sponsoring company, either from the company itself or from existing shareholders. Unlike other ERISA-covered plans, an ESOP may also borrow in order to invest in the employer’s stock. In that event, the employer’s cash contributions to the ESOP would be used to retire the debt. 716 F.2d 1455, 1459 (5th Cir.1983). This is essentially what happened in this ease. Employer Bruister and Associates, Inc. (“BAI”), was a Mississippi-based Home Service Provider (“HSP”) that installed and serviced satellite-television equipment for its sole client DirecTV (“DTV”). In a three-year period from 2002 to 2005, BAI’s owner Herbert C. Bruister sold 100% of BAI’s shares to its employees through a series of transactions with the BAI ESOP and an Eligible Individual Account Plan (“EIAP”). In the initial transactions, Bruister owned the stock he sold, but by the time the subject transactions occurred, he had transferred ownership in the outstanding BAI stock to the Bruister Family LLC (“BFLLC”) — which he'and his wife controlled. In all, five transactions occurred, the first two of which fell outside the applicable statute of repose and are no longer in dispute. The final three transactions closed December 21, 2004, September 13, 2005, and December 13, 2005. In each instance, the Plan acquired BAI stock through an ESOT, for which Defendants Bruister, Amy O. Smith, and Jonda C. Henry served as named trustees. Bruis-ter owned BAI and ran it, Smith worked for BAI, and Henry was BAI’s outside CPA. The BFLLC was an interested party and is a named Defendant. The Subject Transactions included a combination of cash-payment closings and closings with Transaction Loans. In basic terms, the December 2004 Transaction included cash plus a Transaction Loan from BFLLC to the ESOT for the purchase of Pledged Stock. Pledged Stock that was subject to the loan was held by BAI (not the owner BFLLC) in a suspense account. As BAI made Employer Contributions into the ESOT, those funds were used to make payments on the principal and interest, and at year’s end BAI would release a proportional amount of Pledged Stock from suspension. The December 2004 loan was refinanced the following year to reflect a “mirror” loan whereby BAI was substituted for BFLLC as creditor with a duty to repay BFLLC as BAI received payments from the ESOT. The September 2005 closing was all cash, and the December 2005 closing was another mirror loan with no cash. The following table summarizes the amounts: The trustees based the purchase price on valuations of BAI’s fair market value (“FMY”) performed by Matthew Donnelly. Donnelly was retained to serve as independent appraiser and financial advisor to the ESOT. The parties dispute whether he was truly independent and whether the trustees’ reliance on Donnelly was reasonably justified. In sum, Plaintiffs claim the valuations were inflated, causing the ESOP to pay too much, and Defendants claim the price paid was adequate. On April 29, 2010, the Secretary of the Department of Labor filed suit in Civil Action No. 4: 10cv77-DPJ-FKB, raising claims for breach of fiduciary duty under ERISA §§ 404(a)(1)(A), (B), and (D); for failure to monitor under ERISA §§ 404(a)(1)(A) and (B); and for engaging in prohibited transactions under ERISA §§ 406(a)(1)(A) and 406(b)(1) and (2). A separate suit was later filed by two plan participants, Joel D. Rader and Vincent Sealy. That suit (Civil Action No. 4:10cv95-DPJ-FKB) proceeded on a separate discovery track but was consolidated for trial on December 31, 2013. The Rad-er Plaintiffs raise generally the same claims as the Secretary and seek relief on behalf of the ESOP as a whole. The Court tried the matter without a jury from August 4 through August 28, 2014. Over fifty deposition transcripts were also submitted for the record. At the conclusion of trial, limited briefing followed, and the Court is now prepared to rule. II. Analysis Under Rule 52 of the Federal Rules of Civil Procedure, the Court normally provides separate findings of fact and conclusions of law. But this is not a normal case. It involves an enormous record and a large number of factual and legal disputes. Rather than provide an exhaustive list of factual findings without context followed by an equally long list of legal conclusions, the legal conclusions and factual findings will be organized by issue. A. Procedural and Preliminary Questions The Court entered numerous orders before trial, and those findings are incorporated herein by reference. See Orders [562, 573, 574, 601, 602], The following issues were deferred, and the Court is now prepared to rule on them: 1. Experts Both sides challenged the other’s experts in pretrial Daubert motions. Having now heard the qualifications-based challenges, the Court finds that all testifying experts possessed sufficient knowledge, skill, experience, training, or education to give their testimony consistent with Federal Rule of Evidence 702. As for other challenges, “[a trial judge] enjoy[s] wide latitude in determining the admissibility of expert testimony.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir.1997). This is especially true with respect to bench trials where “the importance of the trial court’s gatekeeper role is significantly diminished.” Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 330 (5th Cir.2010) (citing Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir.2000)). “It is settled law that the weight to be accorded expert opinion evidence is solely within the discretion of the judge sitting without a jury.” Pittman v. Gilmore, 556 F.2d 1259, 1261 (5th Cir.1977). Thus, “the district court is not obligated to accept or credit expert witness testimony.” Garcia v. Kerry, 557 Fed.Appx. 304, 309 (5th Cir.2014) (per curiam) (citing Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 894 (5th Cir.1991)). In the present case, the parties utilized two categories of experts — valuation experts and experts on the individual Defendants’ prudence while acting as fiduciaries. The valuation experts were subject to criticism on cross-examination related to their methods and certain alleged errors in their methodologies. This was especially true with respect to the Secretary’s expert Dana Messina and Defendants’ expert Gregory Range. But even in a jury trial — and especially in a bench trial — Daubert considerations should not supplant trial on the merits. “ ‘[Vjigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir.2002) (alteration in original) (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir.2002)). All experts were vigorously cross-examined for several days regarding their alleged deficiencies, and they provided adequate explanations to allow their testimony to remain in evidence for the Court to weigh. On the prudence issue, Defendants called Jared Kaplan, and the Secretary rebutted with Samuel Halpern. Though they approached the issues from differing perspectives, both experts were credible in their own way. The bigger issue, however, is whether their opinions assist the trier of fact. Kaplan is a highly experienced and knowledgeable lawyer in the ESOP community. Based on that knowledge, he was reluctant to offer legal opinions or opinions on whether Defendants breached fiduciary duties. His reluctance was well founded. In Askanase v. Fatjo, the Fifth Circuit affirmed the exclusion of an expert witness who was prepared to testify whether certain “ ‘officers and directors fulfilled their fiduciary duties.’ ” 130 F.3d 657, 673 (5th Cir.1997) (quoting expert report). The Fifth Circuit observed that “[w]hether the officers and directors breached their fiduciary duties is an issue for the trier of fact to decide.” Id. That said, there is no per se prohibition against lawyer testimony. The question is whether the expert “is testifying to purely legal matters or legal matters that involve questions of fact.” Id. Kaplan therefore stopped short of testifying whether Defendants fulfilled their fiduciary duty to act prudently and instead judged their conduct based on how it compared to similarly situated trustees he has witnessed in his legal practice. He then graded the performance on a letter-grade scale. Thus, Kaplan’s testimony regarding the Defendants’ actions was not tethered to an objective prudence standard; and, as the Secretary noted, just because most fiduciaries do something wrong does not mean that they satisfy the standard of care. Kaplan himself conceded that he would not necessarily equate some of the grades he gave Defendants to prudence, and he often noted that Defendants’ conduct fell short of what he would recommend. The Court concludes the experts’ testimony was in some ways related to underlying questions of fact and was helpful. Both offered a perspective on the structure of ESOP transactions and related fiduciary duties that assisted the trier of fact. While Kaplan’s testimony about community norms does not necessarily link to findings of prudence, it at least provided context. Accordingly, the Court will not strike the testimony. That said, the Court has not placed much weight on these experts unless it is specifically noted below. 2. Statute of Limitations The Secretary and Defendants entered into a tolling agreement on December 30, 2008, that preserved any statute-of-limitations defenses that existed as of that date. In a prior ruling, the Court misconstrued one of Defendants’ statute-,of-limitations arguments, concluding that the tolling agreement waived the defense. The Court noted this mistake during the pretrial conference, and the parties agreed that the issue would be preserved for trial. The question now is whether the defense existed when the tolling agreement was signed, a. Conclusions of Law ERISA provides a three-year statute of limitations from the date the plaintiff obtains “actual knowledge” of the alleged breach. 29 U.S.C. § 1113. The Fifth Circuit defines “actual knowledge” as requiring “‘that a plaintiff have actual knowledge of all material facts necessary to understand that some claim exists, which facts could include necessary opinions of experts, knowledge of a transaction’s harmful consequences, or even actual harm.’ ” Reich v. Lancaster, 55 F.3d 1034, 1057 (5th Cir.1995) (quoting Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir.1992)); see also Kling v. Fid. Mgmt. Trust Co., 323 F.Supp.2d 132, 136-37 (D.Mass.2004) (noting circuit split). This test further “ ‘requires a showing that plaintiffs actually knew not only of the events that occurred which constitute the breach or violation but also that those events supported a claim for breach of fiduciary duty or violation under ERISA.’ ” Maher v. Strachan Shipping Co., 68 F.3d 951, 954 (5th Cir.1995) (quoting Int’l Union of Elec., Electric, Salaried, Mach. & Furniture Workers, AFL-CIO v. Murata Erie N. Am., Inc., 980 F.2d 889, 900 (3d Cir.1992)). Defendants offer two general arguments, one legal and one factual. First, they contend that the actual-knowledge requirement for a claim under ERISA § 406 dealing with prohibited transactions is triggered with mere knowledge that a prohibited transaction has occurred. There is no apparent authority for this position, which appears contrary to the Fifth Circuit’s otherwise “narrow interpretation” of ERISA’s actual-knowledge requirement. Midgley v. Rayrock Mines, Inc., 374 F.Supp.2d 1039, 1045 (D.N.M.2005) (describing circuit split on statute-of-limitations interpretation). Instead, the Court believes the Fifth Circuit would follow the recent decision from the Seventh Circuit in which the court focused on the plaintiffs “actual knowledge of the procedures used or not used by the fiduciary” in the context of “a process-based claim under § 1104, § 1106(a), or both.” Fish v. GreatBanc Trust Co., 749 F.3d 671, 681 (7th Cir.2014); cf. Maher, 68 F.3d at 956 (“We also reject Strachan’s argument that knowledge of the transaction, ie. the purchase of Executive Life Annuities, is enough by itself to trigger the three-year statute of limitations.”). The Court concludes that “the three-year limit is not triggered by knowledge of the transaction terms alone.” Fish, 749 F.3d at 681. b. Findings of Fact Defendants contend that the Department of Labor (“DOL”) learned at some point that Matthew Donnelly had a felony conviction for fraud and that his appraisals were not credible. According to Defendants, this led DOL to consider Donnelly per se unfit to serve as an appraiser, and thus DOL had actual knowledge of its BAI-related claims as soon as it learned that Donnelly was working with BAI. All of this, they say, occurred before December 2005, so their statute-of-limitations defense was preserved in the December 30, 2008 tolling agreement. Defendants have failed to support this contention. While the Secretary may have had concerns about Donnelly’s valuation practice as early as 2005, that knowledge, standing alone, fails to establish sufficient notice of its BAI-related claims by December of that year. In reaching this conclusion, the Court credits the testimony of DOL investigator Jennifer Del Nero, who investigated the BAI ESOP. Her investigation eventually provided sufficient notice to trigger accrual, but that occurred well after the relevant date. Defendants’ witnesses also fall short of establishing earlier actual knowledge. Defendants first called DOL employee Holly Holman, who investigated ESOP plans unrelated to BAI for which Donnelly was the appraiser. But she was not aware of Don-nelly’s felony conviction until well after 2005. Holman Dep. [C-8] at 165-67. Defendants next called another HSP owner, Basil Mattingly, who attended a meeting in June or July 2005 with DOL investigator Theresa Schlecht. Mattingly testified that Schlecht asked about Donnelly, and Mat-tingly inferred that DOL was aware of Donnelly’s work for BAI. Schlecht confirmed as much in the portions of her deposition Defendants read at trial, but she was not involved in the BAI investigation and never investigated Donnelly’s background. And though she had concerns about his valuations in her case, she did not immediately review his documents. See Schlecht Dep. [C-9] at 124-27, 143-46, 245. In fact, she did not subpoena documents from Donnelly or interview him until 2006, and her investigation continued through 2007. Id. at 116, 166-68, 192. Even assuming the Secretary at some point considered Donnelly per se unemployable — something the Secretary denies — Defendants failed in their burden of showing that DOL had actual knowledge of its BAI-related claims by December 30, 2005, which is just days after the final transaction. Defendants have not established a statute-of-limitations defense. The record also fails to support a statute-of-limitations defense as to the Rader Plaintiffs. 3. Whether the Rader Plaintiffs Have Standing Rader and Sealy claim that as “participants” in the ESOP, they have standing to bring suit on behalf of the Plan as a whole. Defendants argue that neither Rader nor Sealy ever vested under the ESOP and therefore neither meet the statutory definition of “participant.” Absent participant status, they have no standing. a. Conclusions of Law ERISA permits “a participant” to seek relief on behalf of an ERISA plan. 29 U.S.C. § 1132(a)(2), (3); see Yancy v. Am. Petrofina, Inc., 768 F.2d 707, 708 (5th Cir.1985) (per curiam). The question is whether Rader or Sealy was a “participant” as defined in the statute. As the Fifth Circuit has frequently noted, “[w]here Congress has defined the parties who may bring a civil action founded on ERISA, we are loathe to ignore the legislature’s specificity. Moreover, our previous decisions have hewed to a literal construction of § 1132(a).” Coleman v. Champion Int’l Corp./Champion Forest Prods., 992 F.2d 530, 534 (5th Cir.1993) (footnote and internal quotation marks omitted). That construction begins with the plain text of ERISA, which defines “participant” to include “any ... former employee of an employer ... who is or may become eligible to receive a benefit of any type from an employee benefit plan.” 29 U.S.C. § 1002(7) (emphasis added). Former employees like Rader and Sealy are not “eligible” to receive benefits — i.e., are not “participants” — unless they have either “a reasonable expectation of returning to covered employment or a colorable claim to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Absent one of these, the former employee “simply does not fit within the [phrase] ‘may become eligible.’” Id. at 118, 109 S.Ct. 948 (alteration in original) (internal quotation marks omitted). In this case, neither Rader nor Sealy can expect to regain covered employment. So the question is whether they have “colorable claim[s] to vested benefits.” Id.; see also Yancy, 768 F.2d at 709 (“The term ‘participant’ encompasses only those former employees who are owed vested benefits.”). And absent proof of a vested interest under the ESOP, Radar and Sealy lack standing. Yancy, 768 F.2d at 709. Whether standing exists “under ERISA is assessed as of the time • the complaint is filed.” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1225 (10th Cir.2011); accord Washington v. Occidental Chem. Corp., 24 F.Supp.2d 713, 729 n. 15 (S.D.Tex.1998). And contrary to Plaintiffs’ arguments, it is their burden to meet. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“Since [the standing requirements] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”). Finally, Plaintiffs cannot contend that Defendants waived standing because “standing to bring an action founded on ERISA is a ‘jurisdictional’ matter.” Cobb v. Cent. States, Sw. & Se. Areas Pension Fund, 461 F.3d 632, 635 (5th Cir.2006) (vacating judgment for lack of standing and raising issue sua sponte on appeal); see also Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir.2014) (“[P]arties may not agree to confer subject matter jurisdiction that Congress has withheld.”). And while it is conceivable that a stipulation of under-lying facts could have established a vested benefit, Defendants’ answer contained no such admissions. More to the point, the Pretrial Order preserved a question of fact as to whether the Rader Plaintiffs had vested. So the question is whether Rader or Sealy vested under the ESOP, which handles vesting in different ways. An employee can vest during the life of the Plan or when the Plan terminates. At termination, the basis for vesting depends on whether the Participant was a current employee at that time. Both avenues for vesting raise factual questions in this case and will be treated separately. In addition, there are a few legal questions imbedded in this discussion.- i. Vesting Before Plan Termination ' Whether Rader or Sealy vested before the ESOP terminated turns on the Plan language and several amendments to it. To vest in ESOP benefits, an employee must first become a “Participant” as defined by the ESOP. The BAI ESOP defines “Participant” as “[a]ny Employee or former Employee who has met the applicable eligibility requirements of Section 3 [of the ESOP] and who has not yet received a complete distribution of his Capital Accu-mulatión [i. e., vested benefits].” J-120 at 22, 25. As originally drafted, the eligibility requirements of the ESOP’s Section 3.(a) stated that for employees hired in or after 2003 — like Rader and Sealy — “each Employee who has completed one full year of Service (in which he is credited with at least 1,000 Hours of Service) ... shall become a Participant on the January 1st of the Plan Year in which he satisfies these requirements.” Id. at 26. Section 3.(b) then allowed a Participant to “share in the allocation of Employer Contributions ... for each Plan Year in which he is credited with at least 1,000 Hours of Service and is an Employee.” Id. at 27 (emphasis added). Thus, an employee could “share” in allocations upon becoming an eligible Participant but would not then vest. Vesting under the ESOP occurred pursuant to Section 10.(a), which originally called for incremental or graduated vesting as the Participant acquired “Credited Service.” Credited Service is “[t]he number of Plan Years in which an Employee is credited with at least 1,000 Hours of Service.” J-120 at 23. The original version of Section 10.(a) provided that “[a] Participant shall become vested and nonforfeitable in his Accounts” under the following schedule: Credited Service Nonforfeitable Portion Less than one year 0% One Year ' 20% Two Years 40% Three Years 60% Four Years 80% Five Years or More 100% Id. at 46. Plaintiffs argue that they worked sufficient hours to vest under this schedule and now reference “records obtained from ADP.” Pis.’ Mem. [605] Ex. 3. But they never offered those records at trial and failed to attach the actual records to their post-trial briefing. There was no motion to reopen the case, so the Court will not consider this late evidence. Plaintiffs hope to overcome this deficiency in the record evidence by pointing to Amendments 2004-2 and 2008-1 to the ESOP, both of which impact Plan participation and vesting. But to understand those amendments, it is necessary to first review Amendment 2004-1. That amendment, adopted June 30, 2004, changed the original graduated vesting in Section 10.(a) to cliff vesting, whereby the Participant fully vested after five years Credited Service. J-120 at 5. Amendment 2004-1 was given a January 1, 2004 effective date, and there is no record evidence that either Rader or Sealy vested before this amendment took effect. About two months later, on September 15, 2004, Amendment 2004-2 was adopted, amending Section 3., again with a January 1, 2004 effective date. Id. at 7. It first amended Section 3.(a) by adding the following sentence: “For Plan Year 2003, each Employee shall become a Participant upon completion of at least one (1) Hour of Service.” Id. at 7. It then amended Section 3.(b) by adding: “For Plan Year 2003, a Participant is entitled to share in the allocation of Employer Contributions and Forfeitures in the event that he is credited with at least one (1) Hour of Service.” Id. Plaintiffs argue that Amendment 2004-2 applied to Sealy, who was hired in 2003. They further argue that “[t]his amendment-gave Plaintiff Sealy vesting credit for one full year in 2003 under the original Plan.” Pis.’ Mem.. [605] at 4 (emphasis added). They then contend that because he vested in 2003, ERISA’s anti-cutback provision prevented Amendment 2004-1’s cliff-vesting procedure because that amendment removed vested benefits. Pis.’ Mem. [605] at 6 (citing ERISA § 203(c)). The problem is that Amendment 2004-1 came first, so the original graduated vesting table was no longer in place when Amendment 2004-2 made Sealy eligible for participation in 2003. In other words, by the time Amendment 2004-2 made Sealy eligible for 2003, cliff vesting was already in place, and he needed five years of Credited Service to vest. And because there is no proof Rader or Sealy vested under the original table — that is, before Amendment 2004-1 — that amendment did not violate ERISA’s anti-cutback provision. There is, likewise, no record evidence that either Rader or Sealy eventually vested under cliff vesting. Plaintiffs alternatively argue that they vested under the final Plan amendment. On January 24, 2008, the Plan again altered Section 10.(a)’s vesting table by adopting Amendment 2008-1. J-120 at 12. That amendment provided two alternative tables that applied depending on a factual contingency the parties dispute. One table was graduated, and one table retained cliff vesting. According to Rader and Sealy, the graduated table applies, and under that table they would vest with as little as two years of Credited Service. But even assuming the graduated table applies and Sealy obtained one year of Credited Service due to Amendment 2004-2, there is still no record evidence of a second Credited Service year during which he worked at least 1,000 hours. Accordingly, based on the lack of record evidence, the Court finds that neither Rader nor Sealy vested before the plan terminated. ii. Vesting Upon Termination of the Plan Rader and Sealy alternatively argue that if they did not vest before the ESOP terminated, they vested when it did. Section 19. of the Plan states: If the Plan is terminated (or partially terminated), participation of Participants affected by the termination will end. If Employer Contributions are not replaced by contributions to a comparable plan which meets the requirements of Section 401(a) of the Code, the Account of only those Participants who are Employees on the effective date of the termination will become nonforfeitable as of that date. A complete discontinuance of Employer Contributions shall be deemed to be a termination of the Plan for this purpose. The Capital Accumulation of those Participants whose Service terminated prior to the effective date of the Plan’s termination will continue to be determined pursuant to Section 10.(a); and, to the extent that such Participants are not vested, the non-vested balance in their Accounts will be Forfeitures. J-120 at 66 (emphasis added). In other words, if there is a “complete discontinuance” of contributions, non-vested current employees will immediately vest, whereas former employees must look to the vesting table in Section 10.(a). These provisions raise two factual disputes: (1) when did the Plan terminate; and (2) was either Rader or Sealy an employee at that time. The final Employer Contribution occurred September 28, 2006. See D-183. But Defendants contend that this was a mere suspension of contributions and not a “complete discontinuance.” Though ERISA does not define these terms, the Treasury Department has provided guidance: General rule. For purposes of this section, a complete discontinuance of contributions under the plan is contrasted with a suspension of contributions under the plan which is merely a temporary cessation of contributions by the employer. A complete discontinuance of contributions may occur although some amounts are contributed by the employer under the plan if such amounts are not substantial enough to reflect the intent on the part of the employer to continue to maintain the plan. The determination of whether a complete discontinuance of contributions under the plan has occurred will be made with regard to all the facts and circumstances in the particular case, and without regard to the amount of any contributions made under the plan by employees. Among the factors to be considered in determining whether a suspension constitutes a discontinuance are: (i) Whether the employer may merely be calling an actual discontinuance of contributions a suspension of such contributions in order to avoid the requirement of full vesting as in the case of a discontinuance, or for any other reason; (ii) Whether contributions are recurring and substantial; and (ni) Whether there is any reasonable probability that the lack of contributions will continue indefinitely. 26 C.F.R. § 1.411(d) — 2(1). Thus, based on the totality of the circumstances, the Court must make a factual finding whether BAI intended a complete discontinuance of contributions. Id.; see also Leigh v. Engle, 669 F.Supp. 1390, 1411 (N.D.Ill.1987) (“Whether a suspension of contributions constitutes a complete discontinuance sufficient to trigger a distribution of benefits turns on the employer’s intent....”). And the more precise question, as framed by the parties, is whether there was a complete discontinuance of contributions while Rader or Sealy was still a BAI employee. If not, then the analysis reverts to Section 10.(a), under which neither has established vesting. Rader’s termination date is not clear (the parties did not designate that portion of his deposition). As for Sealy, it appears that his employment ended in June or July 2008. Sealy Dep. [C-ll] at 39. According to Defendants, BAI had no intent to completely discontinue employer contributions before that time. They note, for example, that though BAI’s business was suffering, BAI still held some hope of recovery after the final contribution. Defs.’ Mem. [609] at 6. Defendants also argue that BAI did not formally cease operations until August 2008 and terminated the ESOP in October 2008 — both of which occurred after Sealy was terminated from employment. Id. at 7. BAI did cease operations in August 2008, but the Court considers “all the facts and circumstances,” 26 C.F.R. § 1.411(d)-2(1). And as of June or July 2008 — when Sealy was still employed — BAI was moribund. At that point, BAI had already defaulted on a $16.5 million loan from MB Financial and was headed toward foreclosure. D189. In addition, BAI had substantially negotiated a deal that would allow DTV to assume BAI’s debt and take over the operations after DTV acquired BAI’s assets in a foreclosure sale. Id.; Landen-berger Dep. [C-33] at 30, 37-39; P-201. And those agreements with DTV made no reference to continuing the ESOP once BAI ceased to exist. See 26 C.F.R. § 1.401 — 6(b)(1) (noting that a plan is “not terminated merely because the employer sells or otherwise disposes of his trade or business if the acquiring employer continues the plan as a separate and distinct plan of its own, or consolidates or replaces that plan with a comparable plan” (emphasis added)). The first agreement between BAI and DTV was signed July 25, 2008, and reflects that on July 21, the parties tentatively agreed to the proposed transaction. D189. Thus, assuming Sealy lost his job in July 2008, an agreement may have already been reached that would end BAI without any mention of preserving the ESOP. Even assuming Sealy’s employment ended a month earlier in June 2008, BAI had every intention to end its business before the July 2008 agreement. Keith Landenber-ger with DTV testified that the company-performed two months of due diligence before the deal was concluded. Landen-berger Dep. [C-33] at 8. BAI counsel David Johanson testified that he was involved in the negotiations with DTV and BAI’s creditor MB Financial and that the discussions took place over a period of months. Tellingly, Johanson also testified that he knew during those negotiations— i.e., before Sealy lost his job — that BAI would not continue. Also by 2008, BAI had stopped responding to inquiries from Plan Participants. Former BAI employee Jimmy Corely testified that he had concerns about the ESOP’s viability and received information after making a request in late 2005. But after that — up to 2008 — he was unable to obtain information from BAI about the status of his account. This testimony is consistent with Seal/s statement that he could not get a response from BAI in June or July 2008 when he attempted to sell his stock after losing his job. Sealy Dep. [C-11] at 196. Of course BAI made no contributions of any size after September 2006, whereas its contributions prior to that date were “recurring and substantial.” 26 C.F.R. § 1.411 (d) — 2( 1)(ii). From July 25, 2003, through September 28, 2006, BAI contributed monthly to the ESOT. D-182, 183, and 222. The last seven contributions were each for $159,647.07, and the one before those was $4.1 million. D-183. But nothing more was contributed in the two years before the company ceased to exist in August 2008. It may have been true in September 2006 that BAI hoped to someday resume contributions. But that never occurred and was not intended when Sealy left in June or July 2008. By then, there existed a “reasonable probability that the lack of contributions [would] continue indefinitely.” 26 C.F.R. § 1.411 (d)-2(l)(iii). The Court finds there was a complete discontinuance of contributions, triggering Section 19. And because Sealy was a Participant at that time based at least on his service in 2003, Sealy vested and has standing to sue. Whether Rader also established standing is immaterial. 4. Rader Plaintiffs’ Ability to Sue on Behalf of Plan under § 502(a)(2) Defendants claim that Rader and Sealy cannot serve as representatives for the Plan. As a factual matter, the Court observes that neither took steps to notify or engage other Plan Participants. Nevertheless, having considered the legal issues, the Court concludes that they are appropriate representatives. ERISA § 409 imposes liability on fiduciaries who breach their duties under ERISA and provides in part: 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 subchap-ter shall be personally hable 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 of 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. 29 U.S.C. § 1109(a). For violations of this section, ERISA § 502(a)(2) provides that “[a] civil action may be brought ... by the Secretary, or by a participant ... for appropriate relief under section 1109 of this title.” Id. § 1132(a)(2). It has been traditionally held that § 502(a)(2) claims were brought on behalf of the plan as a whole. Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). But in LaRue v. DeWolff, Boberg & Associates, Inc., the Court explained that Russell was decided in light of a defíned-benefits plan. 552 U.S. 248, 255, 128 S.Ct. 1020, 169 L.Ed.2d 847 (2008). In the defined-contribution-plan context, the Court held that a participant proceeding under § 502(a)(2) could “recover[] for fiduciary breaches that impair the value of plan assets in a participant’s individual account.” Id. at 256, 128 S.Ct. 1020 This Court agrees with others that “[La-Rue ] broadens, rather than limits, the relief available under § 502(a)(2).... [The] contention that LaRue establishes that there are no ‘plan claims’ in the defined contribution context is incorrect.” In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 595 n. 9 (3d Cir.2009); see also LaRue, 552 U.S. at 262-63, 128 S.Ct. 1020 (Thomas, J., concurring in the judgment) (“[W]hen a participant sustains losses to his individual account as a result of a fiduciary breach, the plan’s aggregate assets are likewise diminished by the same amount, and § 502(a)(2) permits that participant to recover such losses on behalf of the plan.”); Cook v. Campbell, No. 2:01cv1245-ID, 2008 WL 2039501, at *4 (M.D.Ala. May 12, 2008). Aside from their interpretation of La-Rue, Defendants point to the Second Circuit’s opinion in Coan v. Kaufman, 457 F.3d 250 (2d Cir.2006), and contend that Plaintiffs’ claims for relief should be limited to losses on their individual accounts because they have failed to act in a representative capacity. In Coan, a plan participant brought suit “individually and on behalf of [the] plan,” alleging plan fiduciaries breached their duties with imprudent investments. 457 F.3d at 254. On appeal from a grant of summary judgment, the court of appeals reasoned that it was “neither necessary nor helpful to delineate minimum procedural safeguards that section 502(a)(2) requires in all cases.” Id. at 261. A participant must, however, “take adequate steps under the circumstances properly to act in a ‘representative capacity on behalf of the plan.’ ” Id. (quoting Russell, 473 U.S. at 142 n. 9, 105 S.Ct. 3085). The Second Circuit therefore affirmed the district court’s conclusion that “Coan’s failure to do anything to demonstrate that her action actually was intended to benefit former plan participants other than [herself] ... rendered specious [her] claim to be ácting on behalf of others.” Id. at 257 (second and third alterations in original) (internal quotation marks omitted) (observing that Coan could settle her claims for her own benefit, the district court would have trouble ensuring any proceeds were allocated to the plan, and Coan’s suit could preclude subsequent litigation). The court concluded: Because Coan has not taken any steps to permit the court to safeguard the interests of others or the court’s proceedings under the circumstances, ... she has failed to represent adequately the interest of other plan participants and has therefore not properly proceeded in a representative capacity as required by section 502(a)(2). Id. at 262. Coan has received mixed reviews both before and after LaRue. Compare Abbott v. Lockheed Martin Corp., No. 06-cv-0701-MJR, 2010 WL 547172, at *4 (S.D.Ill. Feb. 10, 2010) (refusing to permit case to proceed absent procedural safeguards because of “antagonistic and irreconcilable” interests and a concern for redundant suits), and Fish v. Greatbanc Trust Co., 667 F.Supp.2d 949, 952 (N.D.Ill.2009) (holding on motion to proceed without class certification that some procedural safeguards were required), with Blankenship v. Chamberlain, 695 F.Supp.2d 966, 973-74 (E.D.Mo.2010) (reasoning that participants adequately represented plan by naming multiple plaintiffs, those plaintiffs conceded they could only recover for the plan, and preclusion issues were not presently before the court), In re AEP ERISA Litig., No. C2-08-67, 2009 WL 3854943, at *1 (S.D.Ohio Nov. 17, 2009) (noting participant sought but was denied class certification), and Waldron v. Dugan, No. 07 C 286, 2007 WL 4365358, at *6-7 (N.D.Ill. Dec. 13, 2007) (declining to impose class- or derivative-action requirement on § 502(a)(2)). The most recent case to address Coan is Huizinga v. Genzink Steel Supply & Welding Co., where the court found no textual basis for the Coan holding. No. 1:10-CV-223, 2013 WL 4511291, at *8 (W.D.Mich. Aug. 23, 2013) (holding that plaintiff “is a Plan participant, and he is seeking to recover for the Plan as a whole. These are the only requirements on the face of the statute, itself’), appeal dismissed, No. 13 -2273 (6th Cir. Jan. 14, 2014). The court then concluded that Huizinga had “done an adequate job of demonstrating losses, not just to his account, but across the entire Plan.” Id. Finally, the court observed that none of the concerns addressed in Coan were present. Id. Huizinga is persuasive. First, there is no textual support for Defendants’ arguments. Second, the Coan plaintiff sought relief individually and on behalf of the plan. 457 F.3d at 254. Here, Rader and Sealy have consistently advanced the interests of the Plan as a whole and make no claim for individual recovery. See Second Am. Compl. [343] ¶ 10 (bringing claims “on behalf of the ESOP as a whole”); id. at 27-28. Throughout this litigation, including trial, they advanced the ESOP’s general interests over their own, and there is no concern as in Coan that they lacked intent to benefit former Plan participants. See Coan, 457 F.3d at 257. This holding is doubly true given the Secretary’s companion case that undeniably protected the interests of all participants over any individual. Rader and Sealy expressly represented that their claims were coterminous with the Secretary’s. Pretrial Order [604] at 3. This fact also eliminated the threat of a self-serving settlement by Rader and Sealy. And the Secretary’s suit addresses concerns regarding disbursement and issue preclusion. In sum, the participants’ interests were safeguarded under the circumstances and well represented. See Coan, 457 F.3d at 262. Therefore, Rader and Sealy may serve as representatives. B. Liability Under ERISA Stated succinctly, Plaintiffs assert that Defendants breached their fiduciary duties while acting as ESOT trustees. As noted above, ERISA § 409 imposes liability on “[a]ny 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.” 29 U.S.C. § 1109. Thus, the threshold question is which Defendants were fiduciaries. 1. Who Is a Fiduciary It is undisputed that Defendants Amy Smith and Jonda Henry were fiduciaries for purposes of Plaintiffs’ claims. The dispute is whether Defendant Herb Bruister was an ESOT fiduciary for purposes of the Subject Transactions and therefore is liable. a. Conclusions of Law Section 1002 of Title 29 defines several terms under ERISA and states: [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 ..., or (in) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). And in Part 4, which addresses fiduciary responsibility, ERISA requires that each plan “provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan.” Id. § 1102(a)(1) (emphasis added). A named fiduciary is “a fiduciary who is named in the plan instrument, or who, pursuant to a procedure specified in the plan, is identified as a fiduciary.” Id. § 1102(a)(2). In this case, Bruister was a named fiduciary, but he claims to have abstained from all votes. When that happens, the Court applies the so-called “two-hats” doctrine, “which acknowledges that the employer is subject to fiduciary duties under ERISA only ‘to the extent’ that it performs three specific functions identified by Congress” in § 1002(2 1)(A). Martinez v. Schlumberger, Ltd., 338 F.3d 407, 412 (5th Cir.2003). And, as stated above, that section classifies one as a fiduciary only to the extent he or she exercises certain authority or control over plan management or assets; renders investment advice; or possesses discretionary authority or responsibility in plan administration. See 29 U.S.C. § 1002(21)(A). In every case charging breach of ERISA fiduciary duty, then, the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint. Pegram v. Herdrich, 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000); see also Sommers Drug Stores Co. Emp. Profit Sharing Trust v. Corrigan Enters., Inc., 793 F.2d 1456, 1459-60 (5th Cir.1986). So the question is whether Bruister “exerciser any authority or control respecting management or disposition of [the plan’s] assets.” 29 U.S.C. § 1002(21)(A); see Schloegel v. Boswell, 994 F.2d 266, 271-72 (5th Cir.1993) (“To satisfy the ‘authority or control’ element under subsection (i), the Plaintiffs must demonstrate that [an advisor] caused [the trustee] to relinquish his independent discretion in investing the plan’s funds and follow the course prescribed by [the advisor].” (citing Sommers, 793 F.2d at 1460)); see also Pegram, 530 U.S. at 226, 120 S.Ct. 2143; Hatteberg v. Red Adair Co. Inc. Emp.’s Profit Sharing Plan & its Related Trust, 79 Fed.Appx. 709, 716 (5th Cir.2003) (per curiam) (indicating conduct is more important than titles for determining fiduciary status); Landry v. Air Line Pilots Ass’n Int'l AFL-CIO, 901 F.2d 404, 418 (5th Cir.1990) (“Thus, it will be the task of the court on remand to determine precisely the extent, as a factual matter, of actual fiduciary authority possessed or exercised by ALPA, Huttinger, and TACA with respect to the wrongs alleged by the pilots.”). b. Findings of Fact Bruister acted as a fiduciary. To begin with, Bruister was involved in the initial meetings with appraiser Matthew Donnelly. While it seems that Bruister’s good friend and former ESOT trustee Michael Bruce recommended Donnelly, Bruister at least gave his blessing. See Jan. 23, 2009 Bruce Dep. [C-l] at 37; Oct. 20, 2011 Donnelly Dep. [C-30] at 715. Once Donnelly began his work for the ESOT, Bruister apparently learned that he could not vote with respect to the Subject Transactions, but the evidence — including Bruister’s prior statements — reveals that he nevertheless participated, at least to some extent. Bruister attended many of the trustee meetings and closings and participated in what he referred to as “informal meetings” with the other trustees. He explained his role further during sworn testimony at an administrative hearing (as read at trial): I’m not sure if abstaining is the proper word. Abstain seems to imply to me that you had absolutely no input, no— it’s like — abstain is like you walked out of the room. I never walked out of the room.... What I was saying to the other trustees is because of my position as the seller, that I think the weight of your — I think your — this decision should be more highly weighted by your input than possibly mine. That doesn’t mean that I might not give you my opinion. But ultimately I wanted them to be really, really comfortable with the [purchases]. Smith, Henry, and Donnelly were aware of Bruister’s preferences. It is important to note that Bruister was the driving force behind BAI. He founded it, owned it, and ran it. It also appears that Bruister was by all accounts a good boss and a highly respected figure who was admired by his employees, clients, and even competitors. But these attributes also created influence. Smith worked directly for Bruister — as did her husband — and she was clearly devoted to him. Smith testified, for example, that even when acting as an ESOT trustee, she still considered Bruister’s interests and those of BAI. Henry likewise testified that as a trustee she remained concerned about Bruister’s interests (though they were subordinate to the ESOT’s concerns). Henry considered Bruister a friend, and he was a major client of her CPA firm. At a minimum, Henry confirmed general discussions with Bruister regarding the transactions. And it appears that she and Smith were aware of his preferences. Bruister’s role as a trustee must also be viewed in light of his attorney’s actions regarding the Subject Transactions. David Johanson was clearly the driving force behind the ESOP and each transaction, and he became deeply involved with Bruister’s personal finances and various business interests. He and/or his law firms served as counsel for BAI, provided tax-and-estate planning to Bruister, advised the BAI shareholders (ie., Bruister) regarding “appropriate ownership transition,” P-69 ¶ 1, defended Bruister in a variety of lawsuits and various audits, advised Bruister regarding investment strategies, set up and then served as general counsel for Bruister’s business entities including but not limited to BFLLC and Bruister Investment LLC, drafted lease agreements for Bruister and BAI, and contemplated becoming business partners with Bruister in one failed transaction. At trial, Johanson was careful to draw lines regarding the scope of his representation. He stated that neither he nor his firm ever represented Bruister individually with respect to the ESOT, but other evidence indicates that Johanson acted with apparent — if not actual — authority as Bruister’s agent regarding the Subject Transactions. For example, it is clear from Johanson’s emails and Bruister’s testimony that both viewed him as Bruister’s attorney. In an email just before the first ESOT Transaction in December 2002, Jo-hanson wrote his legal team, “We represent the seller, Herb Bruister, in this deal.” P-166. That statement matches Bruister’s trial testimony that he generally viewed Johanson as his attorney. It also coincides with Donnelly’s testimony that he viewed Johanson as attorney for BAI and Bruister. June 2, 2011 Donnelly Dep. [C — 29] at 662. During argument, Bruister’s counsel suggested that Bruister never gave Jo-hanson authority to act on his behalf regarding the Subject Transactions. While Bruister did testify that he was not aware of Johanson’s efforts to affect valuations, the record evidence is undisputed that Johanson copied Bruister on emails to Donnelly and others in which Johanson' advanced Bruister’s personal interests. See, e.g., J-82. Johanson was clothed with authority to act on Bruister’s behalf regarding ESOT matters, and — as discussed later — his actions provide the strongest evidence that Bruister exercised fiduciary authority. In sum, Smith, Henry, and Bruister were fiduciaries for purposes of Plaintiffs’ claims. 2. - Direct-Liability Claims Plaintiffs assert direct-liability claims under ERISA § 404, which imposes liability when a fiduciary breaches the duties of care, prudence, or loyalty. Cunningham, 716 F.2d at 1464. They also bring claims under § 406, which prohibits fiduciaries from authorizing certain prohibited transactions. “The object of Section 406 was to make illegal per se the types of transactions that experience had shown to entail a high potential for abuse.” Id. at 1464-65. Both sections include a similar analysis regarding the prudence duty. But the loyalty inquiry is unique to § 404. Therefore, the Court will first focus on the loyalty side of the § 404 claim and then turn to prudence under §§ 404 and 406. a. Breach of Fiduciary Duty of Loyalty i. Conclusions of Law Plaintiffs claim that Defendants breached their duty of loyalty. That duty springs from ERISA § 404. To comply with ERISA’s loyalty duty, a fiduciary must make decisions “ ‘with an eye single to the interests of the participants and beneficiaries.’ ” Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 298 (5th Cir.2000) (quoting Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.1982)). Thus, an ERISA fiduciary must avoid conflicts of interest. Mertens v. Hewitt Assocs., 508 U.S. 248, 251-52, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). “The presence of conflicting interests imposes on fiduciaries the obligation to take precautions to ensure that their duty of loyalty is not compromised.” Bussian, 223 F.3d at 299. “The level of precaution necessary to relieve a fiduciary of the taint of a potential conflict should depend on the circumstances of the case •and the magnitude of the potential conflict.” Id. (alteration deleted) (quoting Metzler v. Graham, 112 F.3d 207, 213 (5th Cir.1997) (internal quotation marks omitted)). Finally, “[t]o ensure that. actions are in the best interests of plan participants and beneficiaries, fiduciaries under certain circumstances may have to ‘at a minimum’ undertake an ‘intensive and scrupulous independent investigation of [the fiduciary’s] options.’ ” Id. at 299 (alteration in original) (citing Leigh v. Engle (Leigh I), 727 F.2d 113, 125-26 (7th Cir.1984)). ii. Factual Findings The duty of loyalty was breached from start to finish. The initial structure of the ESOT provided three trustees— Bruister and two individuals loyal to him. There were no independent or professional fiduciaries. The ESOT did, however, retain independent counsel and Donnelly as an independent appraiser and financial ad-visor. Though it was wise to retain counsel and an appraiser, the fiduciaries’ actions with respect to these individuals and the transactions reveal split loyalties. Steven Lifson was the original ESOT counsel, and his services were paid for by BAI. But Lifson proved too thorough and expensive, prompting complaints from Bruister, who wrote, “If I had known he was going to be that expensive, the trustees could have found their own lawyer.” P-73-A. Johanson apologized, promised to “never use Steve again in another ESOT transaction,” and offered to pay a portion of Lifson’s fees out of his own pocket. Id. Johanson then emailed Lifson and terminated his engagement on behalf of the ESOT. Id. Thus, the seller — acting through an agent — terminated the buyer’s independent counsel. Lifson was then replaced with William Campbell, one of Jo-hanson’s former law partners. As partners, Campbell and Johanson did not work in the same office, but Johanson was Campbell’s primary referral source for ESOT counsel engagements. Aug. 10, 2011 Campbell Dep. [C-17] at 148-51. Campbell’s role in the transactions was far more limited than Lifson’s and generally involved a few hours of work immediately before each closing. As discussed later, he did not appear to question aspects of the transactions that should have caused him concern. Bruister (usually through Johanson) also had undue influence over Donnelly. There is no dispute that Donnelly was purportedly the ESOT’s independent appraiser and financial advisor. His duties flowed to the ESOT, not the seller, as Johanson said at trial. All of Donnelly’s fairness opinions make this point: “You have retained The Business Appraisal Institute ... in your capacity as the Board of Trustees of the Bruister & Associates Employee Stock Ownership Plan and Trust....” See, e.g., D1 at 1. The letter concluded by noting that “[t]he Opinions are solely for the use and benefit of the Board of Trustees of the ESOP in making its decision.” Id. at 3. Defendants’ expert, Jared Kaplan, agreed that the independent appraiser works for the ESOT and should not be motivated to help the seller. Despite the presumed loyalty to the ESOT, Donnelly was clearly more loyal to Bruister and Johanson. Indeed, those relationships were cemented from the beginning. Before Donnelly was retained, he offered to cut his fee for serving as the independent appraiser for the ESOT if given the chance to do a feasibility study for Bruister. See P-170. While it is not clear how much effort Donnelly put into the study, he did provide an opinion. See P-65-A; see also Jan. 23, 2009 Bruce Dep. [C — 1] at 71; Mar. 1, 2011 Donnelly Dep. [C — 26] at 144. Thus, Donnelly began his involvement in the ESOT by working directly for the seller — Bruister. Kaplan explained that such an arrangement would impact the appraiser’s independence. Donnelly’s lack of independence was also evidenced in his communications with Bruister. On October 23, 2002, Donnelly wrote Bruister the following email: “I look forward to working with you as you extract millions from your company tax free. That’s my idea of fun.” P-23 (emphasis added). Bruister responded, “Sounds good to me. I just hope it works out that way.... I trust you and Johanson. I pray we are going down the right path.” Id. Donnelly concluded the conversation by noting: Thanks for your trust. Both Dave and I will see that your trust has not been misplaced.... [I]t almost feels too good to be true. But it has been done thousands of times and millions of employee owners are enjoying the benefits. You have done a great job building a profitable business and now you can cash in on those years of risk and hard work. Id. In correspondence from 2004, Donnelly echoed this same theme, writing Bruister, “[i]sn’t this a great way to get tax free dollars.” P-26. He copied Johanson rather than ESOT counsel. Id. Donnelly also seemed eager to please David Johanson. See, e.g., P-67 (Donnelly email to Johanson stating “My aim is to get you one good ESOP project every month, for the next 20-30 years.”). And he turned to Johanson when discussing valuation issues — often to the exclusion of the ESOT trustees or counsel. See P-80 (Donnelly email without copies to ESOT counsel or trustees stating, “I have made the changes Dave requested”); P-24 (email to Johanson regarding problems with financial statements); J-24 (email from ÉSOT counsel stating that he received a “marked-up” copy of the valuation from David Johanson). Donnelly even emailed draft valuations directly to Bruis-ter and Johanson before the trustees or ESOT counsel had seen them. See P-167 (Donnelly email providing preliminary valuation to Johanson’s associate and stating “7 am not yet ready to provide this figure to anyone else ” (emphasis added)); P-101; J-116 (email attaching draft); J-82 (same). Thus, the ESOT’s independent appraiser and financial advisor was sending valuation drafts to the seller before sending them to the buyers to whom he owed his sole allegiance. Defendants’ expert Jared Kaplan explained that merely providing the final numbers might evidence coercion. Dealing directly with the seller to the exclusion of the buyer is an obvious breach, and fiduciaries acting in the best interest of the ESOP would not have countenanced this procedure. And while providing drafts is questionable enough, Johanson attempted to influence the valuations in Bruister’s favor. During his trial testimony, Johanson suggested that he neither attempted to influence appraisals nor had any impact on them. He stated instead that he received the valuations in advance so he could plug the numbers into the closing documents he prepared. This testimony is not supported. And though it is somewhat tedious, a micro-level examination of the conversations best displays the extent to which Johanson affected independent appraisals for Bruister’s benefit. In 2002 for example, Donnelly prepared the valuation for the first ESOP transaction. But before providing a final report, he shared his preliminary findings with Johanson’s associate at Johanson Beren-son, revealing a valuation south of $8 million. That prompted Johanson to send the following email to his team: Please ask Wanda to contact Matt Don-nelly and obtain the Bruister & Associates [fair market value] FMV report from him ASAP.... Herb [Bruister] was expecting a FMV of around $10.0M. The preliminary came in around $12.0M. Matt’s new FMV may be around $8.0M. Wanda’s task is to work with Matt Don-nelly and the ESOT’s counsel, Steve Lif-son, TODAY and agree upon an acceptable valuation for the transaction that is scheduled to close in Atlanta on Tuesday. Again, Johanson Berenson LLP represents the seller, so we are looking for the highest FMV possible within reason. P-166 (emphasis added). Through an associate, Johanson then communicated with Donnelly suggesting that the two “go over your report before releasing this figure to Herb.” P-167. At this point, Donnelly had not released the figures to the ESOT. Donnelly responded that it was unfortunate that an earlier