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`Case 3:20-cv-02359-E Document 1 Filed 08/19/20 Page 1 of 43 PageID 1Case 3:20-cv-02359-E Document 1 Filed 08/19/20 Page 1 of 43 PageID 1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
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` CLASS ACTION COMPLAINT
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` Case No.:
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`Plaintiffs,
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`Defendants.
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`PATRICK E. WALKER and LISA
`HENSHAW, individually and on behalf of
`all others similarly situated,
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`IHEART COMMUNICATIONS, INC., THE
`BOARD OF DIRECTORS OF IHEART
`COMMUNICATIONS, INC., THE
`RETIREMENT BENEFITS COMMITTEE,
`and JOHN DOES 1-30.
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`
`v.
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`COMPLAINT – CLASS ACTION
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`Plaintiffs, Patrick E. Walker and Lisa Henshaw (“Plaintiffs”), by and through their
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`attorneys, on behalf of the iHeart Media, Inc. 401(k) Plan (the “Plan”),1 themselves and all others
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`similarly situated, state and allege as follows:
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`I.
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`INTRODUCTION
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`1.
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`This is a class action brought pursuant to §§ 409 and 502 of the Employee
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`Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1109 and 1132, against the
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`Plan’s fiduciaries, which include iHeart Communications, Inc., (“iHeart” or “Company”), the
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`Board of Directors of iHeart Communications, Inc., (“Board”) and its members during the Class
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`1 The Plan is a legal entity that can sue and be sued. ERISA § 502(d)(1), 29 U.S.C. § 1132(d)(1).
`However, in a breach of fiduciary duty action such as this, the Plan is not a party. Rather, pursuant
`to ERISA § 409, and the law interpreting it, the relief requested in this action is for the benefit of
`the Plan and its participants. For a period of time in 2014, the Plan was known as the Clear Channel
`Communications, Inc. 401(k) Saving Plan until its name was changed to the iHeart Media, Inc.
`401(k) Plan in October of 2014. Both the Clear Channel Communications, Inc. 401(k) Saving Plan
`and the iHeart Media, Inc. 401(k) Plan will be referred to collectively herein as the “Plan.”
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`

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`Period2, and the Retirement Benefits Committee and its members (“Committee”) during the Class
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`Period for breaches of their fiduciary duties.
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`2.
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`To safeguard Plan participants and beneficiaries, ERISA imposes strict fiduciary
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`duties of loyalty and prudence upon employers and other plan fiduciaries. Fiduciaries must act
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`“solely in the interest of the participants and beneficiaries,” 29 U.S.C. § 1104(a)(1)(A), with the
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`“care, skill, prudence, and diligence” that would be expected in managing a plan of similar scope.
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`29 U.S.C. § 1104(a)(1)(B). These twin fiduciary duties are “the highest known to the law.” Main
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`v. American Airlines Inc., 248 F.Supp.3d 786 at 792 (N.D. Tex. 2017).
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`3.
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`Under 29 U.S.C. § 1104(a)(1), a plan fiduciary must give substantial consideration
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`to the cost of investment options. “Wasting beneficiaries’ money is imprudent. In devising and
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`implementing strategies for the investment and management of trust assets, trustees are obligated
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`to minimize costs.” Uniform Prudent Investor Act (the “UPIA”), § 7.
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`4.
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`“The Restatement … instructs that ‘cost-conscious management is fundamental to
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`prudence in the investment function,’ and should be applied ‘not only in making investments but
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`also in monitoring and reviewing investments.’” Tibble v. Edison Int’l, 843 F.3d 1187, 1197-98
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`(9th Cir. 2016) (en banc) (quoting Restatement (Third) of Trusts, § 90, cmt. b) (“Tibble II”).3
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`5.
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`Additional fees of only 0.18% or 0.4% can have a large effect on a participant’s
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`investment results over time because “[b]eneficiaries subject to higher fees … lose not only money
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`spent on higher fees, but also lost investment opportunity; that is, the money that the portion of
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`2 The Class Period is defined as August 19, 2014 through the date of Judgment.
`3 See also U.S. Dep’t of Labor, A Look at 401(k) Plan Fees, (Aug. 2013), at 2, available at
`https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-
`center/publications/a-look-at-401k-plan-fees.pdf (last visited February 21, 2020) (“You should be
`aware that your employer also has a specific obligation to consider the fees and expenses paid by
`your plan.”).
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`2
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`their investment spent on unnecessary fees would have earned over time.” Tibble II, 843 F.3d at
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`1198 (“It is beyond dispute that the higher the fees charged to a beneficiary, the more the
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`beneficiary’s investment shrinks.”).
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`6.
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`Most participants in 401(k) plans expect that their 401(k) accounts will be their
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`principal source of income after retirement. Even though 401(k) accounts are fully funded at all
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`times, that does not prevent plan participants from losing money on poor investment choices by
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`plan sponsors and fiduciaries, whether due to poor performance, high fees or both.
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`7.
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`The Department of Labor has explicitly stated that employers are held to a “high
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`standard of care and diligence” and must, among other duties, both “establish a prudent process
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`for selecting investment options and service providers” and “monitor investment options and
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`service providers once selected to see that they continue to be appropriate choices.” See, “A Look
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`at 401(k) Plan Fees,” supra, at n.3; see also Tibble v. Edison Int’l, 135 S. Ct. 1823, 1823 (2015)
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`(Tibble I) (reaffirming the ongoing fiduciary duty to monitor a plan’s investment options).
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`8.
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`The duty to evaluate and monitor fees and investment costs includes fees paid
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`directly by plan participants to investment providers, usually in the form of an expense ratio or a
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`percentage of assets under management within a particular investment. See Investment Company
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`Institute (“ICI”), The Economics of Providing 401(k) Plans: Services, Fees, and Expenses (July
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`2016), at 4. “Any costs not paid by the employer, which may include administrative, investment,
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`legal, and compliance costs, effectively are paid by plan participants.” Id., at 5.
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`9.
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`Prudent and impartial plan sponsors thus should be monitoring both the
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`performance and cost of the investments selected for their 401(k) plans, as well as investigating
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`alternatives in the marketplace to ensure that well-performing, low cost investment options are
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`being made available to plan participants.
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`3
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`10.
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`At all times during the Class Period (August 19, 2014 through the date of judgment)
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`the Plan had at least $890 million dollars in assets under management. At the end of 2017 and
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`2018, the Plan had over $1.1 billion dollars and $1 billion dollars, respectively, in assets under
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`management that were/are entrusted to the care of the Plan’s fiduciaries. The Plan’s assets under
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`management qualifies it as a jumbo plan in the defined contribution plan marketplace, and among
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`the largest plans in the United States. As a jumbo plan, the Plan had substantial bargaining power
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`regarding the fees and expenses that were charged against participants’ investments. Defendants,
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`however, did not try to reduce the Plan’s expenses or exercise appropriate judgment to scrutinize
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`each investment option that was offered in the Plan to ensure it was prudent.
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`11.
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`Plaintiffs allege that during the putative Class Period Defendants, as “fiduciaries”
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`of the Plan, as that term is defined under ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), breached
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`the duties they owed to the Plan, to Plaintiffs, and to the other participants of the Plan by, inter
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`alia, (1) failing to objectively and adequately review the Plan’s investment portfolio with due care
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`to ensure that each investment option was prudent, in terms of cost; and (2) maintaining certain
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`funds in the Plan despite the availability of identical or similar investment options with lower costs
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`and/or better performance histories.
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`12.
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`In many instances, Defendants failed to utilize the lowest cost share class for many
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`of the mutual funds within the Plan, and failed to consider certain collective trusts available during
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`the Class Period as alternatives to the mutual funds in the Plan, despite their lower fees and
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`materially similar investment objectives.
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`13.
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`Defendants’ mismanagement of the Plan, to the detriment of participants and
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`beneficiaries, constitutes a breach of the fiduciary duties of prudence and loyalty, in violation of
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`29 U.S.C. § 1104. Their actions were contrary to actions of a reasonable fiduciary and cost the
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`Plan and its participants millions of dollars.
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`4
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`14.
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`Based on this conduct, Plaintiffs assert claims against Defendants for breach of the
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`fiduciary duties of loyalty and prudence (Count One) and failure to monitor fiduciaries (Count
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`Two).
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`II.
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`JURISDICTION AND VENUE
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`15.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1331 because it is a civil action arising under the laws of the United States, and pursuant to 29
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`U.S.C. § 1332(e)(1), which provides for federal jurisdiction of actions brought under Title I of
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`ERISA, 29 U.S.C. § 1001, et seq.
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`16.
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`This Court has personal jurisdiction over Defendants because they transact business
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`in this District, reside in this District, and/or have significant contacts with this District, and
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`because ERISA provides for nationwide service of process.
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`17.
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`Venue is proper in this District pursuant to ERISA § 502(e)(2), 29 U.S.C.
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`§ 1132(e)(2), because some or all of the violations of ERISA occurred in this District and
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`Defendants reside and may be found in this District. Venue is also proper in this District pursuant
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`to 28 U.S.C. § 1391 because Defendants do business in this District and a substantial part of the
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`events or omissions giving rise to the claims asserted herein occurred within this District.
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`III.
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`PARTIES
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`Plaintiffs
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`18.
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` Plaintiff, Patrick E. Walker (“Walker”), resides in Phoenix, Arizona. During his
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`employment, Plaintiff Walker participated in the Plan investing in the options offered by the Plan
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`and which are the subject of this lawsuit.
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`19.
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`Plaintiff, Lisa Henshaw (“Henshaw”), resides in San Antonio, Texas. During her
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`employment, Plaintiff Henshaw participated in the Plan investing in the options offered by the
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`Plan and which are the subject of this lawsuit.
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`5
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`20.
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`Each Plaintiff has standing to bring this action on behalf of the Plan because each
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`of them participated in the Plan and were injured by Defendants’ unlawful conduct. Plaintiffs are
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`entitled to receive benefits in the amount of the difference between the value of their accounts
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`currently, or as of the time their accounts were distributed, and what their accounts are or would
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`have been worth, but for Defendants’ breaches of fiduciary duty as described herein.
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`21.
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`Plaintiffs did not have knowledge of all material facts (including, among other
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`things, the investment alternatives that are comparable to the investments offered within the Plan,
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`comparisons of the costs and investment performance of Plan investments versus available
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`alternatives within similarly-sized plans, total cost comparisons to similarly-sized plans,
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`information regarding other available share classes, and information regarding the availability and
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`pricing of collective trusts) necessary to understand that Defendants breached their fiduciary duties
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`and engaged in other unlawful conduct in violation of ERISA until shortly before this suit was
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`filed.
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`22.
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`Several months prior to filing this lawsuit, Plaintiffs requested pursuant to ERISA
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`§104(b)(4) that the Plan administrator produce several Plan governing documents, including any
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`meeting minutes of the relevant Plan investment committee(s), which potentially contain the
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`specifics of Defendants’ actual practice in making decisions with respect to the Plan, including
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`Defendants’ processes (and execution of such) for selecting, monitoring, and removing Plan
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`investments. Plaintiffs’ request for meeting minutes was denied.
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`23.
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`Accordingly, Plaintiffs did not have and do not have actual knowledge of the
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`specifics of Defendants’ decision-making process with respect to the Plan, including Defendants’
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`processes (and execution of such) for selecting, monitoring, and removing Plan investments,
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`because this information is solely within the possession of Defendants prior to discovery. See
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`Braden v. Wal-mart Stores, Inc., 588 F.3d 585, 598 (8th Cir. 2009) (“If Plaintiffs cannot state a
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`6
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`claim without pleading facts which tend systematically to be in the sole possession of defendants,
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`the remedial scheme of [ERISA] will fail, and the crucial rights secured by ERISA will suffer.”)
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`24.
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`Having never managed a jumbo 401(k) plan such as the Plan, Plaintiffs lacked
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`actual knowledge of reasonable fee levels and prudent alternatives available to such plans. For
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`purposes of this Complaint, Plaintiffs have drawn reasonable inferences regarding these processes
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`based upon (among other things) the facts set forth herein.
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`Defendants
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`Company Defendant
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`25.
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`IHeart is the Plan sponsor and a named fiduciary with a principal place of business
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`being 3500 Maple Avenue, Suite 300, Dallas, Texas, which is also the address of the Board and
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`the Committee. 2018 Form 5500 filed with the Dept. of Labor (“2018 Form 5500”) at 1.
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`26.
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`As described in iHeart’s 2020 10-K filing with the United States Securities and
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`Exchange Commission (“2020 10-K”) “iHeartMedia is the number one audio media company in
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`the U.S. based on consumer reach.” 2020 10-K at 1. IHeart further describes its business as
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`including “broadcast radio, digital, mobile, podcasts, social, live events including mobile platforms
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`and products, program syndication, traffic, weather, news and sports data distribution and on-
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`demand entertainment.” 2020 10-K at 2. In 2019, iHeart had revenues of over $3.4 billion. As
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`described in the 2020 10-K: “[o]ur Audio segment revenue was $3,454.5 million in 2019, $3,353.8
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`million in 2018 and$3,357.2 million in 2017.” Id. As of February 21, 2020, iHeart “had
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`approximately 11,400 employees.” 2020 10-K at 8.
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`27.
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`IHeart, acting through its Board of Directors, delegated its fiduciary duties for
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`selecting and monitoring investments in the Plan to the Committee. The iHeart Communications,
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`Inc. Retirement Benefit Plans Statement of Investment Policy as revised effective September of
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`2014 (“IPS”) at 2. The IPS provides that: “[t]he iHeart Board of Directors has oversight
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`7
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`responsibility of the Plans and may delegate any authority or responsibility to a committee.” Id.
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`As further detailed in the IPS: “[t]he Board of Directors of iHeart has authorized and empowered
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`a committee of employees (the ‘Retirement Benefits Committee’ or the ‘Committee’) to oversee
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`the management of the Plans.” Id.
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`28.
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`IHeart also makes discretionary decisions as to the amount of company
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`contributions to Plan participants. IHeart Media, Inc. 401(k) Savings Plan as Amended and
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`Restated Effective October 1, 2014 (“Plan Doc.”). In fact, the Plan Doc. was specifically amended
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`in 2014 to “cap the employer matching contributions at $5,000 per plan year effective January 1,
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`2015….” Plan Doc. at viii.
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`29.
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`Lastly, as noted above, the Company acted through its officers, including the Board
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`and Committee, and their members, to perform Plan-related fiduciary functions in the course and
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`scope of their employment.
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`30.
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`For the foregoing reasons, the Company is a fiduciary of the Plan, within the
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`meaning of ERISA Section 3(21)(A), 29 U.S.C. § 1002(21)(A).
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`Board Defendants
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`31.
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`As noted above, “[t]he Board of Directors of iHeart has authorized and empowered
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`a committee of employees (the ‘Retirement Benefits Committee’ or the ‘Committee’) to oversee
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`the management of the Plans.” IPS at 2.
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`32.
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`Under the ERISA fiduciaries who have the power to appoint other fiduciaries have
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`the concomitant duty to monitor their appointees.
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`33.
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`Accordingly, each member of the Board during the putative Class Period (referred
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`to herein as John Does 1-10) is/was a fiduciary of the Plan, within the meaning of ERISA Section
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`3(21)(A), 29 U.S.C. § 1002(21)(A) because each exercised discretionary authority to appoint
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`and/or monitor the Committee, which had control over Plan management and/or authority or
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`control over management or disposition of Plan assets.
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`34.
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`The unnamed members of the Board during the Class Period are collectively
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`referred to herein as the “Board Defendants.”
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`Committee Defendants
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`35.
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`The Committee is responsible for “[i]dentifying investment options (i.e. types of
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`funds) consistent with this program which it deems appropriate and prudent to make available to
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`plan participants.” IPS at 2. The Committee is also required to monitor “investment results by
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`means of regular reviews and analyses to determine whether the investment managers and/or funds
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`selected are meeting the guidelines and criteria identified ….” Id. The Committee is also
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`responsible for insuring that all the funds in the Plan “[h]ave a reasonable expense ratio compared
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`to other vehicles with an appropriate peer group ….” IPS at 10. As discussed below, the
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`Committee has failed to carry out these fiduciary duties.
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`36.
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`The Committee and each of its members were fiduciaries of the Plan during the
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`Class Period, within the meaning of ERISA Section 3(21)(A), 29 U.S.C. § 1002(21)(A) because
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`each exercised discretionary authority over management or disposition of Plan assets.
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`37.
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`The Committee and unnamed members of the Committee during the Class Period
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`(referred to herein as John Does 11-20), are collectively referred to herein as the “Committee
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`Defendants.”
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`Additional John Doe Defendants
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`38.
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`To the extent that there are additional officers, employees and/are contractors of
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`iHeart who are/were fiduciaries of the Plan during the Class Period, or were hired as an investment
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`manager for the Plan during the Class Period, the identities of whom are currently unknown to
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`Plaintiffs, Plaintiffs reserve the right, once their identities are ascertained, to seek leave to join
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`9
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`them to the instant action. Thus, without limitation, unknown “John Doe” Defendants 21-30
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`include, but are not limited to, iHeart officers, employees and/or contractors who are/were
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`fiduciaries of the Plan within the meaning of ERISA Section 3(21)(A), 29 U.S.C. § 1002(21)(A)
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`during the Class Period.
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`IV.
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`THE PLAN
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`39.
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` The Plan was originally known as the Clear Channel Communications, Inc. 401(k)
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`Savings Plan and was established on January 1, 1987. Plan Doc. at v. The Plan underwent several
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`amendments until it was finally amended on October 1, 2014 to change the name to its current
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`name: iHeart Media, Inc. 401(k) Savings Plan. Plan Doc. at viii. As detailed in the SPD, the Plan
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`was established “to help you prepare for a comfortable retirement.” SPD at 1.
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`40.
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`The Plan is a “defined contribution” or “individual account” plan within the
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`meaning of ERISA § 3(34), 29 U.S.C. § 1002(34), in that the Plan provides for individual accounts
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`for each participant and for benefits based solely upon the amount contributed to those accounts,
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`and any income, expense, gains and losses, and any forfeitures of accounts of the participants
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`which may be allocated to such participant’s account. Consequently, retirement benefits provided
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`by the Plan are based solely on the amounts allocated to each individual’s account. Id.
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`Eligibility
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`41.
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`In general, regular full-time employees who are at least 21 years of age and “have
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`been employed with iHeart for ninety (90) calendar days” are eligible to participate in the Plan.
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`SPD at 2.
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`Contributions
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`42.
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`There are several types of contributions that can be added to a participant’s account,
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`including: an employee salary deferral contribution, an employee Roth 401(k) contribution, an
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`employee after-tax contribution, catch-up contributions for employees aged 50 and over, rollover
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`10
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`contributions, and employer matching contributions based on employee pre-tax, Roth 401(k), and
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`employee after-tax contributions. SPD at 5-8.
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`43. With regard to employee contributions, “[e]ach year, participants may elect to
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`contribute up to 25% of their eligible pay on a pre-tax basis, up to the annual IRS maximum 401(k)
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`deferral limit of $18,500 in 2018.” December 31, 2018 Auditor Report of the iHeart Media, Inc.
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`401(k) Plan (“2018 Auditor Report”) at 4.
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`44. With regard to matching contributions made by iHeart, iHeart will contribute “an
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`amount equal to 50% of the first 5% of each participant’s voluntary contributions under the Plan.”
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`Id. Additionally, iHeart had the ability to make employer elective contributions but made none in
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`2018. Id.
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`45.
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`Like other companies that sponsor 401(k) plans for their employees, iHeart enjoys
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`both direct and indirect benefits by providing matching contributions to Plan participants.
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`Employers are generally permitted to take tax deductions for their contributions to 401(k) plans at
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`the time when the contributions are made. See generally, https:/www.irs.gov/retirement-
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`plans/plan-sponsor/401k-plan-overview.
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`46.
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`iHeart also benefits in other ways from the Plan’s matching program. It is well-
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`known that “[o]ffering retirement plans can help in employers’ efforts to attract new employees
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`and reduce turnover.” See https://www.paychex.com/articles/employee-benefits/employer-
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`matching-401k-benefits.
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`47.
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`Given the size of the Plan, iHeart likely enjoyed a significant tax and cost savings
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`from offering a match.
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`Vesting
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`48.
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`Participants are immediately vested in their contributions. 2018 Auditor Report at
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`5. Vesting in iHeart’s contributions to the Plan are based on years of continuous service. Id. “A
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`11
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`participant is 100% vested in the Plan Sponsor’s contributions to the participant’s account after
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`five years of credited service ….” Id.
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`The Plan’s Investments
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`49.
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`The Committee is also purportedly required to monitor “investment results by
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`means of regular reviews and analyses to determine whether the investment managers and/or funds
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`selected are meeting the guidelines and criteria identified ….” IPS at 2. But in practice, as alleged
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`below, the Committee breached its fiduciary duties.
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`50.
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`Several funds were available to Plan participants for investment each year during
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`the putative Class Period, including a suite of target date funds managed by Fidelity, the Plan’s
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`recordkeeper.
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`51.
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`The Plan’s assets under management for all funds as of December 31, 2018 was
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`over $1 billion dollars. 2018 Auditor Report at 3.
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`Payment of Plan Expenses
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`52.
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`During the Class Period Plan assets were used to pay for expenses incurred by the
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`Plan, including recordkeeping fees. Plan Doc. at 48. As detailed in the Plan Doc: “All expenses
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`that arise in connection with the administration of the Plan … shall be paid from the assets of the
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`Trust Fund held by the funding agent under the Trust Agreement.” Id.
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`V.
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`CLASS ACTION ALLEGATIONS
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`53.
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`Plaintiffs bring this action as a class action pursuant to Rule 23 of the Federal Rules
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`of Civil Procedure on behalf of themselves and the following proposed class (“Class”):4
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`All persons, except Defendants and their immediate family
`members, who were participants in or beneficiaries of the Plan, at
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`4 Plaintiffs reserve the right to propose other or additional classes or subclasses in their motion for
`class certification or subsequent pleadings in this action.
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`any time between August 19, 2014 through the date of judgment (the
`“Class Period”).
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`The members of the Class are so numerous that joinder of all members is
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`54.
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`impractical. The 2018 Form 5500 filed with the Dept. of Labor lists 10,331 Plan “participants
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`with account balances as of the end of the plan year.” 2018 Form 5500 at 2.
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`55.
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`Plaintiffs’ claims are typical of the claims of the members of the Class. Like other
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`Class members, Plaintiffs participated in the Plan and have suffered injuries as a result of
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`Defendants’ mismanagement of the Plan. Defendants treated Plaintiffs consistently with other
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`Class members and managed the Plan as a single entity. Plaintiffs’ claims and the claims of all
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`Class members arise out of the same conduct, policies, and practices of Defendants as alleged
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`herein, and all members of the Class have been similarly affected by Defendants’ wrongful
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`conduct.
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`56.
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`There are questions of law and fact common to the Class, and these questions
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`predominate over questions affecting only individual Class members. Common legal and factual
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`questions include, but are not limited to:
`
`A. Whether Defendants are fiduciaries of the Plan;
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`B. Whether Defendants breached their fiduciary duties of loyalty and prudence
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`by engaging in the conduct described herein;
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`C. Whether the Company and Board Defendants failed to adequately monitor
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`the Committee and other fiduciaries to ensure the Plan was being managed
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`in compliance with ERISA;
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`D.
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`E.
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`The proper form of equitable and injunctive relief; and
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`The proper measure of monetary relief.
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`57.
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`Plaintiffs will fairly and adequately represent the Class and have retained counsel
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`experienced and competent in the prosecution of ERISA class action litigation. Plaintiffs have no
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`interests antagonistic to those of other members of the Class. Plaintiffs are committed to the
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`vigorous prosecution of this action and anticipate no difficulty in the management of this litigation
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`as a class action.
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`58.
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`This action may be properly certified under Rule 23(b)(1). Class action status in
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`this action is warranted under Rule 23(b)(1)(A) because prosecution of separate actions by the
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`members of the Class would create a risk of establishing incompatible standards of conduct for
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`Defendants. Class action status is also warranted under Rule 23(b)(1)(B) because prosecution of
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`separate actions by the members of the Class would create a risk of adjudications with respect to
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`individual members of the Class that, as a practical matter, would be dispositive of the interests of
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`other members not parties to this action, or that would substantially impair or impede their ability
`
`to protect their interests.
`
`59.
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`In the alternative, certification under Rule 23(b)(2) is warranted because the
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`Defendants have acted or refused to act on grounds generally applicable to the Class, thereby
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`making appropriate final injunctive, declaratory, or other appropriate equitable relief with respect
`
`to the Class as a whole.
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`VI. DEFENDANTS’ FIDUCIARY STATUS
`AND OVERVIEW OF FIDUCIARY DUTIES
`
`60.
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`ERISA requires every plan to provide for one or more named fiduciaries who will
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`have “authority to control and manage the operation and administration of the plan.” ERISA §
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`402(a)(1), 29 U.S.C. § 1102(a)(1).
`
`61.
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`ERISA treats as fiduciaries not only persons explicitly named as fiduciaries under
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`§ 402(a)(1), 29 U.S.C. § 1102(a)(1), but also any other persons who in fact perform fiduciary
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`functions. Thus, a person is a fiduciary to the extent “(i) he exercises any discretionary authority
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`or discretionary control respecting management of such plan or exercise any authority or control
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`respecting management or disposition of its assets, (ii) he renders investment advice for a fee or
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`other compensation, direct or indirect, with respect to any moneys or other property of such plan,
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`or has any authority or responsibility to do so, or (iii) he has any discretionary authority or
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`discretionary responsibility in the administration of such plan.” ERISA § 3(21)(A)(i), 29 U.S.C.
`
`§ 1002(21)(A)(i).
`
`62.
`
`As described in the Parties section above, Defendants were fiduciaries of the Plan
`
`because:
`
`(a)
`
`(b)
`
`they were so named; and/or
`
`they exercised authority or control respecting management or disposition of
`
`the Plan’s assets; and/or
`
`(c)
`
`they exercised discretionary authority or discretionary control respecting
`
`management of the Plan; and/or
`
`(d)
`
`they had discretionary authority or discretionary responsibility in the
`
`administration of the Plan.
`
`63.
`
`As fiduciaries, Defendants are/were required by ERISA § 404(a)(1), 29 U.S.C. §
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`1104(a)(1), to manage and administer the Plan, and the Plan’s investments, solely in the interest
`
`of the Plan’s participants and beneficiaries and with the care, skill, prudence, and diligence under
`
`the circumstances then prevailing that a prudent person 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. These
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`twin duties are referred to as the duties of loyalty and prudence and are “the highest known to the
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`law.” Main, 248 F.Supp.3d at 792 (N.D. Tex. 2017).
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`64.
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`The duty of loyalty requires fiduciaries to act with an “eye single” to the interests
`
`of plan participants. Pegram v. Herdrich, 530 U.S. 211, 235 (2000). “Perhaps the most
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`fundamental duty of a [fiduciary] is that he [or she] must display . . . complete loyalty to the
`
`interests of the beneficiary and must exclude all selfish interest and all consideration of the interests
`
`of third persons.” Pegram, 530 U.S. at 224 (quotation marks and citations omitted). Thus, “in
`
`deciding whether and to what extent to invest in a particular investment, a fiduciary must ordinarily
`
`consider only factors relating to the interests of plan participants and beneficiaries . . . . A decision
`
`to make an investment may not be influenced by [other] factors unless the investment, when judged
`
`solely on the basis of its economic value to the plan, would be equal or superior to alternative
`
`investments available to the plan.” Dep’t of Labor ERISA Adv. Op. 88-16A, 1988 WL 222716, at
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`*3 (Dec. 19, 1988) (emphasis added).
`
`65.
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`In effect, the duty of loyalty includes a mandate that the fiduciary d