OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

Thomas J. Tucker, United States Bankruptcy Judge

I. Introduction

Among other things, this adversary proceeding raises a number of statute of limitation issues, which arose after a Chapter 7 bankruptcy trustee sued former pension plan fiduciaries for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 ("ERISA"). This opinion discusses such issues, and the interplay and interpretation of Bankruptcy Code § 108(a) (11 U.S.C. § 108(a)), and ERISA's statute of limitations, 29 U.S.C. § 1113.

In this adversary proceeding, the Chapter 7 Trustee has asserted multi-million dollar breach of fiduciary duty claims against Dale S. Coenen ("Coenen") and Kai R. Kosanke ("Kosanke"), two alleged fiduciaries of the Debtor Trans-Industries, Inc.'s pension plan — the "Trans-Industries, Inc. Employees' 401[(k)] Profit Sharing Plan & Trust" (the "Plan").2 The Trustee brings these claims under ERISA, in his capacity as successor to the Debtor, in its capacity as plan administrator of the ERISA Plan, based on 11 U.S.C. § 704(a)(11). The breach of fiduciary duty claims are based on (1) the Plan's purchase of 19,000 shares of Series A Preferred Stock of Trans-Industries, Inc. on June 5, 2001 (the "June 5, 2001 Transaction") (the "Acquisition Claim"); (2) the Plan's retention of that preferred stock for a period of several years thereafter, and the Plan's retention of the Debtor's common stock allegedly in amounts too great and for too long (the "Retention Claims"); and (3) a series of transactions between the Plan, Debtor, Coenen, and Fields in 2005, which resulted in Coenen and Fields receiving lump sum cash distributions of the entire amount of their vested interests in the Plan, and which left the Plan unable to satisfy its obligations to all of the other Plan participants (the "Distribution Claim").

This adversary proceeding is before the Court on (1) the Trustee's motion for summary judgment against both Defendants, Coenen and Kosanke (Docket # 286), and (2) Defendant Coenen's motion for summary judgment (Docket # 278). The summary judgment motions raise statute of limitations issues, and other issues. And by previous order, the Court allowed Defendant Kosanke to "join" Coenen's summary judgment motion, but only with respect to Coenen's arguments about the statute of limitations.3 So the Court deems Kosanke to have moved for summary judgment on that basis. In referring to Coenen's motion, this opinion should be deemed also to refer to Kosanke's joinder of that motion, with respect to the statute of limitations issues.

After the Court held a hearing on the summary judgment motions, the original Chapter 7 Trustee and Plaintiff, David S. Allard, died. After Charles J. Taunt was appointed the successor Chapter 7 Trustee, the Court ordered that he be substituted as Plaintiff in this adversary proceeding.4

Also after the hearing on the motions, Defendant Dale S. Coenen died. On motion of the Trustee, the Court ordered that Coenen's widow, Joan Parker Coenen, be substituted as Defendant in place of Dale S. Coenen, but "only in her capacity as representative of the estate of Dale S. Coenen, and not in her personal capacity."5 References in this opinion to "Coenen" are to the late Dale S. Coenen, unless otherwise noted.

For the reasons stated in this opinion, the Court will grant Coenen's motion for summary judgment on the Acquisition Claim, and on any Retention Claims that are based on actions or inactions that occurred before December 14, 2001, based on the statute of limitations. This ruling also will apply to the Trustee's claims against Kosanke. The Court also will grant summary judgment for Coenen, on any claims based on actions or inactions that occurred on or after November 16, 2005, when Coenen ceased being a Plan fiduciary. (This part of the Court's ruling does not apply to Kosanke). In all other respects, the Court will deny Coenen's motion.

The Court will deny the Trustee's motion for summary judgment in its entirety. A trial will be required on the Trustee's Retention Claims, to the extent they are not barred by the statute of limitations, and on the Trustee's Distribution Claim.

II. Facts

A. Background

Unless otherwise noted, the facts stated in this opinion are not in dispute. Trans-Industries, Inc. was "formed ... sometime in the late [19]60s for the sole purpose of acquiring Transign[, Inc.]."6 From its inception, until he was forced to resign in March 2005, Coenen was Chief Executive Officer ("CEO"), a Director, and Chairman of the Board of Directors of Trans-Industries, Inc. (the "Board").7 Although Coenen was forced to resign as CEO and Chairman of the Board in March 2005, he remained a Director until November 2005.8 Kosanke was Chief Financial Officer ("CFO"), Vice President, and Treasurer of Trans-Industries, Inc. from 1989 until he left the company in April 2006.9 Fields worked in several positions for Transign, Inc. both prior to and after its acquisition by Trans-Industries, Inc. He was the President of Transign, Inc. at the time he was fired in August 2004.10

B. The Trans-Industries, Inc. Plan

In 1989, Trans-Industries, Inc. created the "Trans-Industries, Inc. Employees' 401[(k)] Profit Sharing Plan and Trust."11

1. The Plan's purchase of Trans-Industries, Inc. Series A Preferred Stock (the June 5, 2001 Transaction)

On June 5, 2001, when Trans-Industries, Inc. was experiencing operating losses and the possibility of not being able to continue operations, and needed to raise capital, the Board unanimously approved a consent agreement authorizing Trans-Industries, Inc. to issue 19,000 shares of Series A Preferred Stock to the Plan at a cost of $100 per share, for a total of $1.9 million.12 The Series A Preferred Stock was not publicly traded; had "[a] cumulative dividend rate of $8.25 per share (or 8.25% per annum) ... payable on the last day of May and November each year;" had a higher priority than the common stock in the payment of dividends or in a liquidation; and was "redeemable at the discretion of the Board of Directors ... [for] $100 per share plus all accumulated dividends."13

Before the Plan paid Trans-Industries, Inc. the $1.9 million to purchase the Series A Preferred Stock, no valuation study of the stock was performed. It was not until more than two years later, on October 16, 2003, that such a valuation study was completed by Amherst Capital Partners, L.L.C. ("Amherst"). Amherst valued the Series A Preferred Stock at $1,964,879 as of December 31, 2002, and at $1,906,671 as of June 30, 2003.14 The valuation relied on financial information that Trans-Industries, Inc. provided to Amherst, including "the book values [of assets] contained in the audited statements of [Trans-Industries, Inc.]," and the fact that "management ha[d] indicated a desire to complete redemption of the preferred shares over the 2004-2005 time frame."15 Amherst's valuation study noted that Trans-Industries, Inc. had not been paying dividends on the Series A Preferred Stock. Based on that fact, Amherst compared the Series A Preferred Stock to publicly-traded preferred stocks not paying dividends. Amherst's valuation study stated, in relevant part:

2. The Plan after it was amended in 2004

On January 11, 2004, the Plan was amended, with an effective date of January 1, 2003.17 Kosanke and Coenen executed various documents that amended the Plan, including the "Adoption Agreement for The Benefit Advantage, Inc. Non-Standardized 401(k) Profit Sharing Plan and Trust" (the "Adoption Agreement").18 Kosanke had the opportunity to review the Adoption Agreement before he signed it.19 The Adoption Agreement, states that "Kai Kosanke" and "Dale S. Coenen" would "serve as discretionary Trustee(s) over assets not subject to control by a corporate Trustee."20

The Summary Plan Description, which all of the participants of the Plan received, also listed Coenen and Kosanke as Trustees of the Plan, under the heading "Trustee Information."21 The Plan names the "Employer" (Trans-Industries, Inc.) as the Plan Administrator.22

Paragraph 7.2(a) of the Plan provides, in relevant part, that

Paragraph 7.9 of the Plan is entitled "Annual Report of the Trustee" and requires "the Trustee or its agent" to prepare an annual

Paragraph 10.12 of the Plan provides that "[t]he `named Fiduciaries' of this Plan are (1) the Employer, (2) the Administrator, (3) the Trustee (if the Trustee has discretionary authority as elected in the Adoption Agreement or as otherwise agreed upon by the Employer and the Trustee)[.]"25

Paragraph 6.4(a) of the Plan provides that "[i]f a Participant's employment with the Employer is terminated for any reason other than death, Total and Permanent Disability, or retirement, then ... the Administrator shall direct that the entire Vested portion of the Terminated Participant's Combined Account be payable to such Terminated Participant provided the conditions, if any, set forth in the Adoption Agreement have been satisfied."26

Paragraph 10.15 of the Plan provides that "[a]ll provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner."27

Until Debtors filed bankruptcy, Trans-Industries, Inc. had liability coverage for the fiduciaries of the Plan. In procuring the fiduciary liability coverage, "the intent was to cover anybody that worked with the [P]lan, whether they were a fiduciary or not[;]" namely the assistant treasurer, (which was either Keith LeComb or Paul Clemo depending on the time frame involved); Coenen and Kosanke.28 Kosanke performed administrative responsibilities for the Plan, including: retaining records; administrative reporting; accounting; the creation of monthly balance sheets of the Plan's assets; distribution of quarterly reports to Plan participants; distribution of annual reports required by Paragraph 7.9 of the Plan to Plan participants; determining the eligibility of Plan participants; communicating with Plan participants; and determining or calculating the distributions that Plan participants were entitled to.29 Coenen determined what investments the nonparticipant-directed profit-sharing portion of Plan made and retained.30

3. The liquidity problems with the Plan

In March 2004, Richard Solon ("Solon"), became the President, Chief Operating Officer ("COO"), and a member of the Board.31 In August 2004, Solon fired Fields from his position as President of Transign, Inc.32 On August 28, 2004, after Solon fired him, Fields wrote a letter addressed to Kosanke as CFO of Trans-Industries, Inc. with copies to Solon and to Coenen, requesting payment of his entire vested interest in the Plan.33 Fields's vested interest was about 36% of the Plan's assets, which had an estimated total value of approximately $3.9 million as of August 31, 2004.34 Trans-Industries, Inc. reported to Fields "that he ha[d] a profit sharing balance of approximately $1.4 million as of August 31, 2004."35 But as of that date, 70% of the Plan's assets consisted of preferred and common stock of Trans-Industries, Inc.36 Fields's request created a liquidity crisis for the Plan, because even if Trans-Industries, Inc. liquidated all of the Plan's investments other than the stock it held in Trans-Industries, Inc., there would be a shortfall of more than $300,000.00 in cash needed to pay Fields his vested interest in full.37

In response to the liquidity crisis created by Fields's distribution request, Trans-Industries Inc. hired Relational Advisors, later known as RA Capital Advisors, LLC, a merchant banking company, to advise it.38 In addition, upon the advice of Robert Paul Anderson ("Anderson"), outside legal counsel for Trans-Industries, Inc, and Secretary to the Board, Coenen, Kosanke, and Anderson met with Charles Kelly ("Kelly"), an attorney who, according to Anderson, was more experienced in ERISA issues than he was, to discuss the Plan's liquidity problems caused by Fields's distribution request.39

On September 17, 2004, the Board held a meeting to discuss the June 5, 2001 Transaction, by which the Plan had paid Trans-Industries, Inc. $1.9 million for the Series A Preferred Stock.40 By decision of the Board, "[o]n the advice of counsel and on its own initiative, [Trans-Industries, Inc.] ... decided to unwind the [June 5, 2001 Transaction]" and "to appoint two of its Directors who were not involved in the [June 5, 2001 Transaction; namely James O'Brien ("O'Brien") and Solon,)] to make a recommendation of a method and formula for unwinding the transaction."41

After the Board's September 17, 2004 meeting, attorney Kelly prepared a memorandum dated October 6, 2004. The Kelly memorandum raised serious concerns about possible breaches of fiduciary duty under ERISA based on the June 5, 2001 Transaction, and the continued retention of the Series A Preferred Stock in the Plan, and warned that "ERISA and IRS provide for substantial penalties and personal liability of fiduciaries," and that "`an ERISA Event' would place [Trans-Industries, Inc.] in violation of its [current credit arrangement] covenants."42 The memorandum had an attachment entitled "Fiduciary Responsibility Under ERISA," which contained a detailed explanation of relevant ERISA law and included the following topic headings: "Basic Duty of Fiduciary;" "The Exclusive Benefit Rule;" "The Prudent Man Rule;" The Diversification Requirement;" "Compliance With Plan Documents;" "Co-Fiduciary Liability;" "Remedial Action Requirement;" "ERISA's Prohibited Transaction Rules;" and "Covenants, Representations and Warranties in Credit and Security Agreement Between Trans-Industries, Inc. and Affiliated Companies and The Huntington National Bank."43 The memorandum stated that "[i]f the action called for by the plan provision is inconsistent with ERISA, the fiduciary is obligated to ignore the plan provision."44 The memorandum also explained that "[i]f a fiduciary becomes aware of a breach of duty by a co-fiduciary, the fiduciary must try to remedy the breach."45 In this regard, the memorandum stated:

After Kelly prepared the memorandum, he met with Coenen, Kosanke, and Anderson to discuss it.47 At that meeting, Kelly expressed his concern that the June 5, 2001 Transaction may have run afoul of ERISA, and advised Coenen, Kosanke, and Anderson that the Plan's purchase of the Series A Preferred Stock should be unwound.48 Kelly also advised Coenen, Kosanke, and Anderson that Trans-Industries, Inc. should consult with "a full fledged ERISA firm."49 According to Anderson, the meeting ended with a lot of open issues, and the understanding that Coenen and Kosanke were going to have to come up with some plans to address those issues.50

On November 10, 2004, Anderson, Kosanke, Coenen, and Dan Nemes ("Nemes"), a Certified Public Accountant, had a meeting to discuss how to redeem the Series A Preferred Stock from the Plan.51 That meeting was described in a memorandum prepared by Anderson, dated November 12, 2004.52 The memorandum stated that the Series A Preferred Stock was valued on the books of Trans-Industries, Inc. at $2,176,000; that Coenen held a 22% vested interest in the Plan worth approximately $950,000; and that Coenen was "willing to take an in-kind distribution/rollover vested percentage in 100% of the [P]lan's preferred stock."53 It also stated that "[t]he Plan would either be terminated or Mr. Coenen would resign as an employee and enter into a consulting agreement with [Trans-Industries, Inc.], so that he could roll his preferred stock into his own separate IRA."54

On November 18, 2004, O'Brien, Solon and Anderson had a telephone conference to further discuss how to unwind the June 5, 2001 Transaction. Among other things, they discussed the possibility of Coenen taking a distribution of his vested interest in the Plan in kind, and the Plan being amended to allow for a distribution in kind.55

Sometime in late 2004, a document entitled "Trans-Industries, Inc. Employee Profit Sharing Plan Issues" was prepared, outlining "a course of action designed to resolve issues relating to the ... Plan" (the "Plan Issues Document").56 The Plan Issues Document stated that Fields's interest in the Plan was 35.6%, valued at $1,451,052.60 as of June 30, 2004.57 In the Plan Issues Document, there was an assumption that the Plan would be terminated and all participants of the Plan would receive distributions of their vested interest in the Plan.58 The document also stated that Coenen and Kosanke, as Plan Trustees, would be asked to voluntarily take an in-kind distribution of Series C Preferred Stock in full satisfaction of their vested interests in the Plan;59 and that some identified Plan participants, including Fields, would be asked to voluntarily "take some Series C Preferred Stock in satisfaction of their interests in the [Plan]";60 and that "[s]ince some [P]lan participants will be given a choice as to whether to receive a[P]lan distribution in cash or Series C Preferred Stock, all [P]lan participants must be given the same right to elect to receive their [P]lan distributions in either cash or Series C Preferred Stock."61 The Plan Issues Document "assumed that all participants but the participants named in th[e] outline [as being asked to receive Series C Preferred Stock] w[ould] elect cash."62

On November 17, 2004, the Board conducted a regular meeting at which it discussed the Plan. Present at the meeting were Coenen, O'Brien, Robert J. Ruben, and Solon. At the meeting the Board unanimously approved a motion to amend the Plan "to allow for a distribution or roll over in kind."63

The Plan's liquidity crisis deepened on March 16, 2005, when Coenen was forced to resign and became entitled to receive his 22.4% vested interest in the Plan's assets, valued at $913,191.04 as of June 30, 2004.64

4. The Plan Distributions to Fields and Coenen

Although one option repeatedly discussed for dealing with the Plan's liquidity crisis was to terminate the Plan and make distributions to all of the Plan participants based on their vested interests in the Plan, that approach was not followed. Rather than terminating the Plan, Trans-Industries, Inc. entered into various agreements with Coenen and Fields, under which Coenen and Fields would receive cash distributions from the Plan, on the condition that they would use a portion of the cash received to purchase restricted common stock of Trans-Industries, Inc. Trans-Industries, Inc. would then use the money received from such common stock purchases to redeem Series A Preferred Stock from the Plan.65

a. Trans-Industries, Inc.'s agreements with Coenen

On March 16, 2005, the Board; namely Coenen, Harry E. Figgie ("Figgie"), Solon, O'Brien, Robert J. Ruben, and H. Sean Mathis; signed a special resolution, which provided for the resignation of Coenen as CEO of Trans-Industries, Inc., the appointment of Solon in Coenen's place; and entering into various agreements with Coenen. Those agreements with Coenen were: (i) the "Agreement for Management Succession, Resignation and Severance of CEO and Other Miscellaneous Matters;" (ii) the "Severance Agreement and Release of Claims;" (iii) the "Stock Purchase Agreement;" (iv) Amendment No. 3 to the Right of First Refusal Agreement; and (v) the "Stock Restriction Agreement" (collectively, the "Coenen Transaction Agreements").66

Trans-Industries, Inc. and Coenen actually executed the Coenen Transaction Agreements, which were drafted by Anderson, on May 23, 2005, with an effective date of March 16, 2005. Under the "Agreement for Management Succession, Resignation and Severance of CEO and Other Miscellaneous Matters," Coenen resigned as CEO, effective March 16, 2005, but was to "remain a member of the Board of Directors until his earlier resignation or removal in accordance of with the bylaws of [Trans-Industries, Inc.], or otherwise."67 Coenen also was to "continue to act as Trustee of the ... Plan until the earlier of November 16, 2005 or the termination of the ... Plan."68 The Agreement also provided for distribution of Coenen's vested interest in the Plan, and its rollover into Coenen's IRA, conditioned on Coenen using the distributed amount less $59,000 to purchase common stock from Trans-Industries, Inc.69 The "Severance Agreement and Release of Claims," provided for a severance payment of $120,000.00 to Coenen; health care coverage until November 16, 2005 "at the current employee cost" to be deducted from the severance payment; and payment for a company vehicle until November 1, 2005.70

b. Trans-Industries, Inc.'s stock purchase agreement with Fields

Fields also entered into an agreement with Trans-Industries, Inc. that required him to purchase common stock from Trans-Industries, Inc., after receiving a distribution of his vested interest in the Plan. Under his "Stock Purchase Agreement" with the company, Fields agreed to purchase $400,000 worth of common stock of Trans-Industries, Inc., on the date that he received a distribution of his vested interest in the Plan.71

c. The impact on the Plan of Trans-Industries, Inc.'s transactions with Coenen and Fields

As a result of the agreements between Trans-Industries, Inc., Coenen and Fields, and the related transactions under those agreements, only Coenen and Fields and a few other employees received cash distributions from the Plan in June 2005. On June 17, 2005, the Plan had a cash balance of $985,068.00. After a series of transactions with, and distributions to, Coenen and Fields based on their vested interests in the Plan, only $3,719.24 of cash remained in the Plan for the rest of the approximately 175 Plan participants. The cash distributions from the Plan are detailed in a document entitled "Trans Industries, Inc. Profit Sharing Plan Cash Transaction `Checklist' June 17, 2005."72 It shows the following:

                                  Date         Activity           Balance

Cash Balance                       6/17/05        985,068.00        985,068.00
Coenen Distribution                6/21/05        (59,000.00)       926,068.00
Coenen IRA Outgoing Wire           6/21/05       (910,763.65)        15,304.35
Misc. Employee Distributions       6/21/05         (2,247.11)        13,057.24
Loan from TI                       6/21/05         15,000.00         28,057.24
Coenen IRA Incoming Wire to TI     6/23/05              0.00         28,057.24
TI Wire (Coenen)                   6/23/05        910,763.65        938,820.89
Figgie Wire to TI                  6/22/05              0.00        938,820.89
Figgie Wire (From TI)              6/24/05        250,000.00      1,188,820.89
Fields IRA Outgoing Wire           6/29/05       (410,000.00)       778,820.89
Fields IRA Incoming Wire to TI     6/30/05              0.00        778,820.89
Fields Wire From TI                6/30/05        400,000.00      1,178,820.89
Fields Distribution                6/30/05     (1,175,101.65)         3,719.24

After the June 2005 cash distributions, the only other assets remaining in the Plan, other than the $3,719.24 in cash, were Series A Preferred Stock and common stock of Trans-Industries, Inc.

At no time after Fields's and Coenen's distribution requests were the other plan participants informed about the liquidity crisis, the options that were being discussed for handling the crisis, or the planned distributions to Coenen and Fields.73

At the time of the June 5 cash distributions listed in the document quoted above, Coenen and Kosanke were still the named "discretionary Trustees" of the Plan.

C. The bankruptcy cases

Less than a year after the June 5 Plan distributions to Coenen and Fields, on April 3, 2006, Trans-Industries, Inc. and four of its wholly-owned subsidiaries filed voluntary petitions for relief under Chapter 11. The bankruptcy cases are being jointly administered under the Trans-Industries, Inc. case number, 06-43993. On October 17, 2006, the cases were converted to Chapter 7. On October 20, 2006, David W. Allard was appointed the Chapter 7 Trustee. On December 14, 2007, the Trustee filed this adversary proceeding.

III. Jurisdiction

This Court has subject matter jurisdiction over this adversary proceeding under 28 U.S.C. §§ 1334(b), 157(a) and 157(b)(1), and Local Rule 83.50(a) (E.D.Mich.). As discussed at length in a prior opinion in this case, the Court has "related to" subject matter jurisdiction over this adversary proceeding, and this is a non-core proceeding. See Allard v. Coenen (In re Trans-Industries, Inc.), 419 B.R. 21, 24-25 (Bankr.E.D.Mich.2009). All the remaining parties in this adversary proceeding (i.e., the Plaintiff-Trustee and Defendants Dale S. Coenen and Kai R. Kosanke) expressly consented to the bankruptcy court conducting any trial in this adversary proceeding and entering a final judgment, under 28 U.S.C. § 157(c)(2).74 For this reason, this bankruptcy court has both statutory and constitutional authority to enter a final judgment on the Plaintiff-Trustee's claims. See 11 U.S.C. § 157(c)(2); Fed. R.Bankr.P. 7012(b); see generally Wellness Int'l Network, Ltd. v. Sharif, ___ U.S. ___, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015).

IV. Summary judgment standards

As this Court has stated previously, in McCallum v. Pixley (In re Pixley), 456 B.R. 770, 774-75 (Bankr.E.D.Mich.2011):

V. Discussion of the motions

A. The statute of limitations arguments

One of the issues raised by the summary judgment motions is whether and to what extent the Trustee's claims are barred by ERISA's statute of limitations, 29 U.S.C. § 1113.

Defendant Coenen argues, among other things, that "the evidence demonstrates that any claim against [him] was time-barred before Trans-Industries[, Inc.] filed a bankruptcy petition."75 If, however, the Court does not dismiss all of the claims against Coenen based on the applicable statute of limitations, Coenen argues, "the Court should at the least rule that [he] can only be liable for alleged actions or inactions taken between December 18, 200176 [(6 years before the date the Trustee filed this adversary proceeding)] and November 2005 [(the time after which Coenen was no longer a trustee of the Plan)]."77 Coenen argues that because the June 5, 2001 Transaction occurred before December 18, 2001, any claim based on, or related to, the June 5, 2001 Transaction (the Acquisition Claim) is time-barred by ERISA's 6-year statute of limitations.

In response to Coenen's statute of limitations argument, the Trustee conceded during oral argument that any breach of fiduciary duty claim based solely on the June 5, 2001 Transaction (the Acquisition Claim) was barred by ERISA's 6-year statute of limitations. For example, during oral argument, the Trustee's counsel stated the following in response to the Court's questioning:

However, the Trustee argued in his motion for summary judgment that the basis of his breach of fiduciary duty claim was not the June 5, 2001 Transaction itself. Rather, the Trustee argued, among other things, that Coenen breached his fiduciary duties under ERISA by failing to cause the Plan to divest itself of the preferred stock in the several years after the June 5, 2001 Transaction (part of the Retention Claim), and that this Retention Claim is separate and distinct from the June 5, 2001 Transaction itself, and is not barred by the 6-year statute of limitations. Specifically, the Trustee argued that "although the Plan's acquisition of Preferred Stock in June of 2001 ostensibly falls outside the six-year limitations period, the Plan's continued retention of Preferred Stock — at Coenen's discretion — constitutes a continued violation of fiduciary duty that occurred even after Coenen received his distribution in June of 2005."79 In addition, the Trustee argues that he would still have timely claims based on other breaches of fiduciary duty that occurred after December 14, 2001, including Coenen's "negotiation of his own Plan distribution in June of 2005, which was the final transaction in the causal chain resulting in the Plan's collapse."80

In reply to these arguments, Coenen argues that even under the Trustee's continuing-duty theory, the 6-year statute of limitations began to run on June 5, 2001, when the Plan first acquired the preferred stock.81 Because of this, Coenen argues, all of the Trustee's claims relating to the Plan's June 5, 2001 acquisition of the preferred stock, and the Plan's post-2001 retention of that stock, are time-barred. Coenen does not argue that the 6-year statute of limitations bars claims relating to transactions in 2005 which culminated in distributions to Coenen and Fields of Plan assets (the Distribution Claim).

Arguably, the parties could be viewed as having agreed, in their initial summary judgment arguments, that 29 U.S.C. § 1113's 6-year limitation period bars any breach of fiduciary duty claim, with respect to the June 5, 2001 Transaction itself — i.e., the Acquisition Claim. By this, the parties may have tacitly agreed that 11 U.S.C. § 108(a), which has the effect of extending the statute of limitations period in certain circumstances specified by the statute, has no impact on the Acquisition Claim, at least. However, because neither the Trustee nor Coenen directly discussed the possible impact of 11 U.S.C. § 108(a), or even cited that section, in their written briefs or during oral argument,82 and because the Court does not intend to ignore § 108(a), the Court permitted the Trustee and Coenen to file supplemental briefs addressing § 108(a),83 which they did.84

B. Discussion of statute of limitations issues

Even if the parties can be viewed as initially agreeing that ERISA's statute of limitations barred the Trustee's breach of fiduciary duty claims in part, the Court is not bound by the parties' stipulations of law. Rather, the Court should apply the correct law to the facts of each case. See, e.g., T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Koch v. U.S. Dep't of Interior, 47 F.3d 1015, 1018 (10th Cir.1995); FirstSouth, F.A. v. Lawson Square, Inc. (In re Lawson Square, Inc.), 816 F.2d 1236, 1240 (8th Cir.1987); Thompson v. Roland (In re Roland), 294 B.R. 244, 250 (Bankr.S.D.N.Y.2003).

1. The impact of 11 U.S.C. § 108(a) on the statute of limitations applicable to the Trustee's breach of fiduciary duty claims

The Court must decide whether 11 U.S.C. § 108(a) applies, and if so, what its impact is on the limitations period applicable to the Trustee's breach of fiduciary duty claims.

Section 108(a) of the Bankruptcy Code provides:

11 U.S.C. § 108(a)(emphasis added).

The ERISA statute of limitations at issue, 29 U.S.C. § 1113, is, in the words of Bankruptcy Code § 108(a), the "applicable nonbankruptcy law" which "fixes a period within which the [D]ebtor may commence an action" for breach of fiduciary duty. Section 1113 provides:

29 U.S.C. § 1113 (emphasis added).

District 65 Retirement Trust for Members of Bureau of Wholesale Sales Representatives v. Prudential Sec., Inc., 925 F.Supp. 1551, 1558 (N.D.Ga.1996). The fraud/concealment exception under § 1113 is not at issue in this case.85 Therefore, only two possible limitations periods could apply to a breach of fiduciary claim brought against Coenen and Kosanke by the Debtor (in Debtor's pre-bankruptcy capacity as plan administrator of the Trans-Industries, Inc. Plan) — the 6-year limitations period of § 1113(1) or the 3-year limitations period of § 1113(2).

a. The parties' arguments in their supplemental briefs regarding the application of § 108(a)

In discussing the application of § 108(a) to the statute of limitations issues in their supplemental briefs, the Trustee shifted his position on whether ERISA's statute of limitations bars the Acquisition Claim.

i. The Trustee's position

The Trustee now argues that ERISA's 6-year statute of limitations in 11 U.S.C. § 1113(1) does not bar any of the Trustee's breach of fiduciary duty claims, including a claim based solely on the June 5, 2001 Transaction, because 11 U.S.C. § 108(a) applies and extends the 6-year limitations period until two years after the petition date.86 The Trustee reasons as follows. The bankruptcy petition was filed on April 3, 2006, less than 6 years after the June 5, 2001 Transaction. Therefore, ERISA's 6-year limitations period had not expired before Debtor filed its bankruptcy petition. This is turn meant that § 108(a) applied and extended the statute of limitations for the Trustee to file a breach of fiduciary duty claim based on the June 5, 2001 Transaction, until April 3, 2008 (two years after the bankruptcy petition date).87 Because the Trustee filed his adversary complaint on December 14, 2007, even his claim based solely on the June 5, 2001 Transaction (the Acquisition Claim) is timely under § 1113(1).

The Trustee argues further that ERISA's 3-year limitation period does not bar his claims because the Trustee, who is the Plaintiff in this adversary proceeding, did not have actual knowledge of the June 5, 2001 Transaction when it occurred.88 The earliest the Trustee could have had actual knowledge of the June 5, 2001 Transaction was October 20, 2006, the day he was appointed as the Chapter 7 Trustee, and the first day he was required under 11 U.S.C. § 704(a)(11) to perform the duties of an ERISA Plan administrator. Three years from that date is October 20, 2009. So, the Trustee argues, his filing of this adversary proceeding on December 14, 2007 was nearly 2 years before the 3-year statute of limitations under § 1113(2) expired.89

ii. Coenen's position

Coenen argues that § 108(a) does not apply because "any [breach of fiduciary duty] claim [that Debtor could have brought] against Coenen was time-barred before [Debtor] filed a bankruptcy petition."90 Coenen now argues that ERISA's 3-year limitations period in § 1113(2) bars all of the Trustee's breach of fiduciary duty claims.91 Coenen argues that "the `actual knowledge' requirement of § 1113(2) was met in 2001, so the limitations period expired three years from 2001 [(in 2004)]."92 According to Coenen, several facts "highlight that the company [(Debtor)] had `actual knowledge' of the alleged ERISA violation by 2001, and thus the statute of limitations expired three years later (in the year 2004) [which was some], two years before the bankruptcy petition was filed in April of 2006."93 Therefore, § 108(a) did not extend the limitations period for the Trustee. Coenen argues, in the alternative, that even if the longer 6-year limitation period applies, it still expired before the adversary proceeding was filed.94

b. The Court's conclusion: § 108(a) has no practical impact on ERISA's statute of limitations for the Trustee's breach of fiduciary duty claims.

The Court concludes that § 108(a) has no practical impact on ERISA's statute of limitations for any of the Trustee's breach of fiduciary duty claims. "Under 29 U.S.C. § 1113(2), a plaintiff with actual knowledge of a non-fraudulent breach of ERISA fiduciary duties must file suit within three years." Tassinare v. Am. Nat'l Ins. Co., 32 F.3d 220, 223 (6th Cir.1994)(footnote omitted). Because it is undisputed that the Debtor, through its agents, had "actual knowledge" of the alleged breaches of fiduciary duty, including the June 5, 2001 Transaction, at the time they occurred, ERISA's 3-year limitations period applied to any breach of fiduciary duty claims that the Debtor could have filed. See Gold v. Deloitte & Touche, LLP (In re NM Holdings Co., LLC), 405 B.R. 830, 858 (Bankr.E.D.Mich.2008) (citations omitted) ("Under Michigan agency law, the general rule is that the knowledge of corporate officers, employees, and agents, acting within the scope of their authority or employment, is imputed to the corporation.").

Section 108(a) only applies to extend the statute of limitations if the limitation period for "the debtor [to] commence an action" (emphasis added) has not expired as of the petition date. Three years after the June 5, 2001 Transaction (the first breach of fiduciary duty alleged by the Trustee) was June 5, 2004. Therefore, the period within which Debtor could have commenced an action for breach of fiduciary duty, based solely on the June 5, 2001 Transaction, expired nearly two years before Debtor and its affiliates filed their voluntary Chapter 11 petitions on April 3, 2006. Because of this, § 108(a) did not extend the limitations period for the Trustee to file a claim for breach of fiduciary duty under ERISA based on the June 5, 2001 Transaction.

Nor did § 108(a) extend the limitations period with respect to any breach of fiduciary duty that occurred more than 3 years before the April 3, 2006 bankruptcy petition date; namely any breaches that occurred before April 3, 2003. This is because as of the petition date, the 3-year limitations period of § 1113(2) barred the Debtor from suing for any breaches that occurred before April 3, 2003.

From this, it would appear that § 108(a) extended, until at least April 3, 2008 (two years after the petition date), the ERISA limitations period for any breaches of fiduciary duty that occurred on or after April 3, 2003. But this has no practical effect in this case. That is because, as explained below, even without the benefit of § 108(a), the Trustee's suit is timely with respect to breaches of fiduciary duty that occurred on or after December 14, 2001 (6 years before the adversary proceeding was filed on December 14, 2007).

2. Application of 29 U.S.C. § 1113 to Trustee's breach of fiduciary duty claims

a. Coenen's position that all of the Trustee's breach of fiduciary claims were barred under 29 U.S.C. § 1113 before the bankruptcy petition was filed

Coenen argues that "[a]s the bankruptcy estate Trustee, Plaintiff ... had the right to bring any claim that was not time-barred and otherwise belonged to the estate at the time of the petition filing."95 According to Coenen, because "the `actual knowledge' requirement triggering a three year limitations period was, under the facts, met in 2001 ... by the time the bankruptcy petition was filed in 2006, the Plaintiff Trustee's claim was already time-barred [under 29 U.S.C. § 1113.]"96

b. The Chapter 7 Trustee's authority under § 704(a)(11) of the Bankruptcy Code to bring a breach of fiduciary duty claim under ERISA

Coenen's reasoning is flawed. First, Coenen wrongly assumes that the Trustee can only bring claims that the Debtor could bring as of the date of filing the petition. Accordingly to Coenen, because the Debtor was barred from filing a breach of fiduciary duty claim before the bankruptcy petition was filed, the Trustee likewise is barred from bringing such a claim. However, a Chapter 7 trustee's standing to file suit against third parties is not limited to claims that the debtor could bring as of the commencement of the bankruptcy case, although it does include such claims.

State Bank & Trust Co. v. Spaeth (In re Motorwerks, Inc.), 371 B.R. 281, 288 (Bankr.S.D.Ohio 2007)(footnote omitted) (citations omitted). A Chapter 7 trustee acting under § 541(a) can only bring claims that the debtor could bring as of the date of filing a bankruptcy petition. Therefore, under § 541(a), if a debtor is barred from bringing a claim by the applicable statute of limitations, the Chapter 7 trustee would also be barred from bringing the claim, because the trustee's rights are derivative of the debtor's rights.

But "[a]nother source of a trustee's standing springs directly from the Bankruptcy Code itself. The Bankruptcy Code grants the trustee direct powers such as the ability to avoid certain types of transfers pursuant to 11 U.S.C. §§ 547, 548 and 549." Motorwerks, 371 B.R. at 288 n. 3 (citation omitted). Section 704(a)(11), a provision added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, also gives a Chapter 7 trustee the authority to pursue litigation against third parties that an administrator of an ERISA employee benefit plan would have authority to pursue. Section 704(a)(11) provides:

This section applies in this case because the Debtor Trans-Industries, Inc. was the administrator of the Plan before filing its bankruptcy case.

"Section 704(a)(11) is unique in that it imposes upon the Chapter 7 trustee additional fiduciary obligations regarding assets which are not property of the debtor's bankruptcy estate[.]" In re Robert Plan Corp., 439 B.R. 29, 40 (Bankr.E.D.N.Y. 2010), rev'd on other grounds, U.S. Dept. of Labor v. Kirschenbaum, 508 B.R. 257 (E.D.N.Y.2014).

In re Mid-States Express, Inc., 433 B.R. 688, 695-96 (Bankr.N.D.Ill.2010).

The language in § 704(a)(11) can be construed in two different ways. First, it could mean that the Chapter 7 Trustee does not actually become the administrator of the plan, but only must perform the duties of the former plan administrator. Under this interpretation, the trustee would stand in the shoes of the former plan administrator. Under this interpretation, if the debtor was the pre-bankruptcy plan administrator, a trustee's § 704(a)(11) authority to sue would be purely derivative of the debtor's right. Under this view, if the debtor was barred from filing a particular claim, the Chapter 7 trustee likewise would be barred. Coenen has not argued that § 704(a)(11) should be interpreted in this manner, and even if he had made this argument, the Court would reject it in favor of the second interpretation.

The second possible interpretation of § 704(a)(11) is that the Chapter 7 trustee becomes a successor plan administrator, with all the rights that go with that position. The sparse legislative history of this provision indicates that this is what Congress intended in enacting § 704(a)(11). As stated by the court in In re NSCO, Inc., 427 B.R. 165, 174 (Bankr.D.Mass.2010)(citing H.R. REP. 109-31(I) (2005), reprinted in 2005 U.S.C.C.A.N. 88, 105):

In addition, the bill streamlines the appointment of an ERISA administrator for an employee benefit plan, under certain circumstances, to minimize the disruption that results when an employer files for bankruptcy relief.

(Emphasis added). This legislative history indicates that Congress intended the Chapter 7 trustee to become the new plan administrator.

Because a Chapter 7 trustee acting under § 704(a)(11) is a successor ERISA plan administrator, whether the trustee can bring a claim does not depend on whether the debtor could have brought the claim as of the petition date. The fact that the debtor was time-barred as of the petition date does not necessarily mean that the trustee is time barred. Cf. McLemore v. Regions Bank, 682 F.3d 414, 420-21 (6th Cir.2012) (refusing to impute the bankruptcy debtor's wrongful, criminal conduct to the bankruptcy trustee; refusing to bar the trustee's action for breach of fiduciary duty under ERISA; and rejecting the defenses of unclean hands and in pari delicto).

As the successor plan administrator, the trustee has standing, as a "fiduciary," to sue other fiduciaries for breach of fiduciary duty. See 29 U.S.C. § 1132(a)(2) ("A civil action may be brought ... by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title [("[l]iability for breach of fiduciary duty").]"). As plan administrator, the trustee is a "fiduciary" because he is required to exercise discretionary authority and discretionary control regarding the management of the plan and the management and disposition of its assets. He thereby is at least a functional fiduciary of the plan with the right to file suit for breach of fiduciary duty. See Michigan Affiliated Healthcare Sys., Inc. v. CC Sys. Corp. of Michigan, 139 F.3d 546, 549 (6th Cir.1998) (citation omitted) (explaining that a person is a plan fiduciary "to the extent that `(i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.' 29 U.S.C. § 1002(21)(A)" and that "[t]he term `fiduciary' not only includes persons specifically named as fiduciaries by a benefit plan, `but also anyone else who exercises discretionary control or authority over the plan's management, administration, or assets.'")

c. ERISA's 6-year limitations period applies to the Trustee's breach of fiduciary duty claims and bars the Trustee's Acquisition Claim.

Coenen's position, that ERISA's 3-year limitations period expired as to the Trustee before the petition was filed, is erroneous. With regard to the Trustee, the earliest possible bar date under ERISA's 3-year limitations period was October 20, 2009, long after the Trustee filed this adversary proceeding.

The Trustee was appointed on October 20, 2006. No one contends, and there is no evidence, that the Trustee had "actual knowledge" of any of the alleged breaches of fiduciary duty prior to his appointment. Therefore, the earliest the Trustee could have had actual knowledge of the alleged breaches was October 20, 2006. Three years after that date was October 20, 2009. Because this adversary proceeding was filed well before that date, none of the Trustee's claims are barred by § 1113's 3-year statute of limitations.

But applying § 1113's 6-year limitations period does bar some of the Trustee's claims. Six years before December 14, 2007 (the date the Trustee filed the adversary complaint) was December 14, 2001. Therefore, § 1113(1) bars any breach of fiduciary duty claim that accrued before December 14, 2001. The Acquisition Claim, which is based on the June 5, 2001 Transaction, therefore is barred by ERISA's 6-year limitation period.

In arguing that ERISA's 3-year limitations period expired before the bankruptcy petition was filed, and that "the `actual knowledge' requirement of § 1113(2) was met in 2001," Coenen seeks to impute to the Chapter 7 Trustee the knowledge of the Debtor Trans-Industries, Inc., including the knowledge of the members of the Board and certain employees of Trans-Industries, Inc. But the Debtor's knowledge cannot be imputed to the Chapter 7 Trustee in this context.

Coenen relies on New Orleans Employers Int'l Longshoremen's Ass'n, AFL-CIO Pension Fund v. Mercer Inv. Consultants, 635 F.Supp.2d 1351 (N.D.Ga.2009); Radiology Ctr., S.C. v. Stifel, Nicolaus & Co., 919 F.2d 1216 (7th Cir.1990); and Edes v. Verizon Commc'ns, Inc., 417 F.3d 133 (1st Cir.2005).97

In Mercer Inv. Consultants, the plaintiffs filed suit in November 2006 on behalf of the ERISA-qualified Longshoremen's Pension Fund (the "Fund"), based on alleged breaches of fiduciary duty to the Fund committed from 2001-2002. 635 F.Supp.2d at 1353, 1378. Although the action was "well within the six-year statute of limitations" under § 1113(1), the defendants argued that the 3-year statute of limitations in § 1113(2) barred the claims. Id. at 1378-79. This was so, the defendants argued, because "[t]hree current [t]rustees [of the Fund] who testified at trial, ... were [t]rustees at the time of the alleged breaches of fiduciary duty by [d]efendants" and "had knowledge of the alleged breaches" in 2001 and 2002 when they occurred. Id. at 1379.

Those trustees were not, however, the named plaintiffs in the case before the court. Rather, one of the plaintiffs was also a current trustee of the Fund, but had not been appointed as a trustee until March 2006, and had "filed suit within three years of learning of [d]efendants' alleged breaches of fiduciary duty." Id. The other plaintiff joined the lawsuit as a Fund participant and was not appointed as a trustee of the Fund until May 2008. Id. The plaintiffs argued that "because the statute of limitations refers to the plaintiff's actual knowledge" and they personally did not have actual knowledge of the breaches of fiduciary duty in 2001-2002, ERISA's 3-year statute of limitations did not bar their claims. Id. The plaintiffs argued further that the knowledge of the other trustees, who were not named plaintiffs in the lawsuit, was irrelevant for purposes of § 1113(2). Id.

The court first noted that "[t]he few district courts that have confronted similar situations have, with one exception, declined to find that the statute of limitations was applicable." Id. The court also noted that "[c]ourts have construed the `actual knowledge' requirement [of 29 U.S.C. § 1113(2)] strictly; constructive knowledge is inadequate, rather, the plaintiff must have knowledge of the facts or transaction that constituted the breach in order to trigger the statute of limitations." Id. at 1378 (citation omitted). The court acknowledged that although employee benefit plans are the real parties in interest in breach of fiduciary duty cases, "some courts have focused on the actual knowledge of the named representative plaintiffs when determining if the statute of limitations bars the action." Id. at 1380 (citing Landwehr v. DuPree, 72 F.3d 726, 732-33 (9th Cir.1995); Mason Tenders Dist. Council Pension Fund v. Messera, 958 F.Supp. 869, 882-83 (S.D.N.Y.1997); Useden v. Acker, 734 F.Supp. 978, 980 (S.D.Fla.1989), aff'd, 947 F.2d 1563 (11th Cir.1991)).

However, the Mercer Inv. Consultants court did not follow the approach of those cases that looked to the "actual knowledge" of the named plaintiffs in applying § 1113(2). The court reasoned that it was the Fund that was the "real party in interest in the case," and not the named plaintiffs, and "[t]hrough the [t]rustees, the Fund had contemporaneous knowledge of the alleged breaches of fiduciary duty [in 2001-2002]." Id. at 1380. Although the named plaintiffs in the case did not have "actual knowledge" of the alleged breaches until at least 2006 and 2008, respectively, and had filed the lawsuit within 3 years of 2006, the court nevertheless held that ERISA's 3-year statute of limitations barred the claims. Id. at 1381.

The court relied primarily on a principle it had gleaned from the "sparse" case law dealing with similar situations; namely that "manipulation of the statute of limitations should not be tolerated." Id. at 1379-80 (citations omitted). The court concluded that the plaintiffs had impermissibly manipulated and attempted to avoid the 3-year "actual knowledge" limitation period of ERISA "through careful selection of the named plaintiffs." Id. at 1380. Under the circumstances of the case before it, where 9 of the 10 trustees of the Fund in 2001 had knowledge of all of the breaches as they occurred, the court found that "allowing the statute of limitations period to be controlled by the knowledge of the named [p]laintiffs ... [was] an artifice." Id. at 1381. The Mercer Inv. Consultants court, in essence, imputed the knowledge of some current and some former trustees, who were not the plaintiffs in the lawsuit, to the named plaintiffs in the case, to render applicable ERISA's 3-year statute of limitations.

Thus, the Mercer Inv. Consultants case largely supports Coenen's position. The two other cases cited by Coenen, however, do not support his position. Neither case involves a court imputing knowledge to a named plaintiff in a breach of fiduciary duty lawsuit to satisfy the "actual knowledge" requirement of § 1132(2).

In Radiology Ctr., the Seventh Circuit Court of Appeals held that the district court improperly interpreted the "actual knowledge" requirement of § 1113(2) to include both the plaintiff's actual and constructive knowledge of the breach of fiduciary duty. 919 F.2d at 1222. The Seventh Circuit held that "actual knowledge" does not include constructive knowledge. Id.

In his brief, Coenen relies on and quotes the Radiology Ctr. court's statement that "`[w]hile it is not uncommon for parties to cast the same set of facts in such a way that they amount to a claim that is not time-barred rather than one that is, we are reluctant to read § 1113 as encouraging this practice.'"98 This statement had nothing to do with the "actual knowledge" requirement of 29 U.S.C. § 1113(2). Rather, the court was referring to the plaintiffs' attempt to characterize their breach of fiduciary claim as a fraud claim, in order to fall within the fraud exception of 29 U.S.C. § 1113, with its 6-year-after-discovery limitation period.

In Edes, the third case cited by Coenen, the First Circuit Court of Appeals described the "actual knowledge" requirement of 29 U.S.C. § 1113(2) as follows:

417 F.3d at 142 (citations omitted)(italics in original). Applying these concepts, the Edes court determined that the ERISA "actual knowledge" 3-year limitation period applied and barred the plaintiffs' claims. Id. However, this determination was based on the court's finding that the named plaintiffs themselves had personal knowledge of the alleged breach more than 3 years before they filed their lawsuit alleging breach of fiduciary duties; it was not based on any imputation of anyone else's knowledge to the plaintiffs. See id.

The Trustee argues that imputation of knowledge to him is not permissible under the language of the statute or case law. First, the Trustee argues that the "knowledge of the former ERISA trustees cannot be imputed to Trustee" to start the statute of limitations clock ticking earlier than when the Trustee was appointed, because there was no relationship between the Trustee and the former trustees of the Plan, that would make imputation reasonable.99 Second, the Trustee argues that:

The Trustee relies on Landwehr v. DuPree, 72 F.3d 726 (9th Cir.1995); Crimi v. PAS Indus., Inc., No. 93 Civ. 6394, 1995 WL 272580 (S.D.N.Y. May 9, 1995); and District 65 Ret. Trust for Members of Bureau of Wholesale Sales Representatives v. Prudential Sec., Inc., 925 F.Supp. 1551 (N.D.Ga.1996). All of these cases support the Trustee's position.

In Landwehr, it was undisputed that the plaintiffs alleging breach of fiduciary duty, on behalf of an ERISA plan, had filed their lawsuit well within three years of when they personally had "actual knowledge" of the breaches, and therefore "well within the three-year period [of 29 U.S.C. § 1113(2)]." 72 F.3d at 731-32. Despite this, one of the defendants argued "that the real `plaintiff' in th[e] case [was] the Plan" and therefore, "the statute of limitations [under 29 U.S.C. § 1113(2)] should start to run on the first date that any agent of the Plan had `actual knowledge' of the breach or violation." Id. at 732.

The court rejected this argument. The Landwehr court explained that although breach of fiduciary duty actions are brought on behalf of the ERISA plan, rather than in an individual capacity, "[t]he plaintiff in such actions, however, is not the plan itself but the fiduciary, beneficiary, or participant, bringing suit." Id. (citations omitted). The court held that "the statute of limitations started to run on the first date that either [of the two plaintiffs] had actual knowledge of the alleged violation, regardless of whether any [p]lan fiduciary or service provider knew of the violation before that date." Id.

In Crimi v. PAS Indus., Inc., No. 93 Civ. 6394, 1995 WL 272580, at *3 (S.D.N.Y. May 9, 1995), the court, relying on Useden v. Acker, 734 F.Supp. 978, 980 (S.D.Fla. 1989), aff'd, 947 F.2d 1563 (11th Cir. 1991),101 rejected the argument that the "knowledge of one trustee alone may be considered actual knowledge by all trustees, and set the clock running [under 29 U.S.C. § 1113(2)] for all trustees." The Crimi court reasoned:

Id. at *3.

In District 65 Ret. Trust, 925 F.Supp. at 1559 & n. 8 (citation omitted), the court also refused to impute the actual knowledge of former trustees to the successor trustee plaintiffs, where "there [was] no evidence of a relationship between the former trustees and the successor trustees, particularly the one appointed by a federal court, which would make imputation of knowledge a viable alternative." The court stated that "[t]he imputation of knowledge presupposes a relationship between the former and successor trustees so as to make the imputation of knowledge reasonable." Id. at n. 8. The court explained further why it refused to allow the imputation of knowledge to the plaintiff trustees, as follows:

Id. at 1558-59 (footnote omitted) (internal quotation marks and citations omitted).

This Court agrees with the holdings of, and reasoning in, the cases cited by the Trustee, and other cases reviewed by the Court, which refuse to impute the knowledge of another person or entity to the plaintiff bringing a breach of fiduciary suit under ERISA. See, e.g., Mason Tenders District Council Pension Fund v. Messera, 958 F.Supp. 869, 882 (S.D.N.Y.1997) ("Actual knowledge is measured from the standpoint of the trustees who commenced the lawsuit and cannot be attributed to them by the knowledge of prior trustees or other current trustees."). ERISA's 3-year statute of limitations, 29 U.S.C. § 1113(2), is unambiguous, and requires that "the plaintiff" have "actual knowledge" of the breach or violation that is the basis for a lawsuit alleging breach of fiduciary duty. And "the plaintiff" means "the person bringing the suit on behalf of the plan." Landwehr v. DuPree, 72 F.3d 726, 732 (9th Cir.1995).

The Court also agrees with the Trustee that, based on the holdings and reasoning in Landwehr, Crimi, and District 65 Ret. Trust, it is not appropriate, particularly under the facts of this case, to impute the knowledge of any other person or entity to the Trustee to satisfy the "actual knowledge" requirement of 29 U.S.C. § 1113(2). The Court notes that the District 65 Ret. Trust case could be read as possibly permitting the imputation of knowledge from one plan trustee to a successor trustee, where there was a relationship between the former and successor trustee. But the Court does not need to decide if such imputation would be permissible under the language of § 1113(2), because in this case there was no relationship between the post-bankruptcy administrator (the Chapter 7 Trustee) and the former administrator (the Debtor).

The Court also notes that in this case, where the Trustee was required to perform the duties of plan administrator of the Plan due to 11 U.S.C. § 704(a)(11), no one contends that he was selected as a plaintiff to avoid ERISA's 3-year limitation period, or that his appointment was an attempt to manipulate the ERISA statute of limitation periods. For these reasons, the concern about unfair manipulation of the statute of limitations, which was relied on by the Mercer Inv. Consultants case cited by Coenen, does not arise in this case.

In Wright v. Heyne, 349 F.3d 321, 331 (6th Cir.2003), the Sixth Circuit described the type of knowledge a plaintiff must have to trigger ERISA's 3-year limitation period: "[T]o trigger the running of the statute of limitations under Section 413(2) of ERISA, 29 U.S.C. § 1113(2), it is only the plaintiff's actual knowledge of the underlying conduct giving rise to the alleged violation that is required, rather than the knowledge that the underlying conduct violates ERISA." Or in other words,

Id. at 330.

It is undisputed that the earliest the Chapter 7 Trustee (David Allard) could have personally known about the June 5, 2001 Transaction was October 20, 2006 — the date he was appointed the Chapter 7 Trustee. That was also the earliest date when the Trustee possibly could have had standing to file a breach of fiduciary duty claim against Coenen and Kosanke. The Chapter 7 Trustee only had the authority to file a breach of fiduciary duty claim based on § 704(a)(11). It was not until his appointment as Chapter 7 Trustee, that the Trustee had the duty "to perform the obligations required of the [Plan] administrator" based on 11 U.S.C. § 704(a)(11), which would include filing claims against third parties on behalf of the Plan. Three years after October 20, 2006 (the date of the Trustee's appointment) was October 20, 2009. The Trustee filed this adversary proceeding on December 14, 2007. Thus, the Court agrees with the Trustee that none of the Trustee's claims are barred by ERISA's 3-year statute of limitations.

d. ERISA's 6-year limitations period bars some, but not all, of the Trustee's Retention Claims.

Although the Trustee's Acquisition Claim is time-barred, not all of the Trustee's Retention Claims are barred by ERISA's 6-year limitations period.102 The Retention Claims implicate "the continuing violation doctrine." In L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of Nassau Cnty., Inc., 558 F.Supp.2d 378, 400 (E.D.N.Y.2008), aff'd 710 F.3d 57 (2d Cir.2013) (relying, in part, on Buccino v. Cont'l Assurance Co., 578 F.Supp. 1518, 1521-22 (S.D.N.Y.1983)), the court explained how "the continuing violation doctrine" impacts that statute of limitations in ERISA cases:

Under the continuing violation doctrine, fiduciaries of an ERISA plan are under a continuing duty to review the investments in the plans to assure that they are prudent, and repeated failures to divest the plan of imprudent investments give rise to breaches of fiduciary duty separate and distinct from any breach that occurred with an initial acquisition of a stock or other investment. Both § 1113(1) and case law distinguish between breaches of fiduciary duty that result from the actions of an ERISA fiduciary as opposed to those that result from omissions. While the limitations period for breaches resulting from "actions" is 6 years after "the date of the last action which constituted a part of the breach or violation," "in the case of an omission, [the limitations period is 6 years after] the latest date on which the fiduciary could have cured the breach or violation[.]" 29 U.S.C. § 1113(1)(A) and (B) (emphasis added).

Under the case law, breach of fiduciary duty claims based on a fiduciary's failure to divest an ERISA plan of imprudent investments are considered breaches by omission, and are viewed as giving rise to separate and distinct claims from a claim based on the initial purchase of stock, which is considered an "action." See, e.g.:

Buccino v. Continental Assurance Co., 578 F.Supp. 1518, 1520 (S.D.N.Y.1983), a case cited by the Trustee, also supports the Trustee's position that his Retention Claims are distinct from his Acquisition Claim. In Buccino, the alleged breaches of fiduciary duty were (1) "inducing [the Fund] to buy ... individual, permanent, whole life insurance policies, rather than a single group policy" when the "individual policies, costing more than a group policy without providing superior benefits, were inappropriate for the Fund;" and (2) the retention of those policies beginning in 1971 and continuing until the middle of 1980. The Buccino court explained that

Id. at 1521 (relying on Morrissey v. Curran, 567 F.2d 546 (2d Cir.1977)). The court viewed the claim for breach of fiduciary duty based on the acquisition of the insurance policies as separate from the claims based on the retention of those policies, for purposes of the accrual of the statute of limitations. The court held that:

Id. at 1521.

In Morrissey v. Curran, 567 F.2d 546 (2d Cir.1977), the case relied on by the court in Buccino, the Second Circuit Court of Appeals recognized that the continued retention of a bad investment in an ERISA plan was a separate breach from making the initial imprudent investment. In Morrisey, one of the breaches of fiduciary duty complained of was "improvidently investing over $1 million in a Panama venture." The district court held that it lacked jurisdiction over the plaintiffs' claims because the investment had occurred before January 1, 1975, the effective date of ERISA, and ERISA was not retroactive. Id. at 547. On appeal of that decision, the plaintiffs argued that

Id. at 548. The Second Circuit noted that the plaintiffs' complaint had alleged "continuing wrongdoing" by the fiduciaries of the plan, and stated: "We have no doubt that under the `prudent man' rule, which is codified in ERISA, the trustees here had a duty within a reasonable time after ERISA took effect to dispose of any part of the trust estate which would be improper to keep." Id. at 547-49. The Second Circuit remanded the case to district court to determine whether "the trustees improperly retained the Panama investment after January 1, 1975." Id. at 549.

A recent decision of the United States Supreme Court supports the Trustee's position. In Tibble v. Edison Int'l, ___ U.S. ___, 135 S.Ct. 1823, 191 L.Ed.2d 795 (2015), the Supreme Court drew a distinction between an ERISA fiduciary's duty of prudence in the initial selection of a plan investment, on the one hand, and that fiduciary's continuing duty of prudence in retaining that investment thereafter, on the other hand. And the Court held that ERISA's six-year statute of limitations for a claim that the Trustee breached the latter duty runs from the time the Trustee breached that duty, not from the time the fiduciary initially selected the investment. The Court quotes the Supreme Court's decision at length, because it explains the ERISA fiduciary's continuing duty to monitor its retention of investments, and how the statute of limitations applies to a claimed breach of such duty:

135 S.Ct. at 1826-29 (emphasis added).

The Court concludes that ERISA's 6-year statute of limitations bars not only the Trustee's Acquisition Claim, but also the Trustee's claims based on subsequent failures to cure that breach and divest the Plan of such stock that occurred more than six years before the adversary complaint was filed. That six-year look-back date was December 14, 2001. But ERISA's 6-year statute of limitations does not bar any of the Trustee's claims based on the failure(s) to cure and divest that occurred on or after the 6-year look-back date (i.e., on or after December 14, 2001).103

The same is true with respect to the other aspect of the Trustee's Retention Claims — namely, the claim that the defendants imprudently caused the Plan to retain too much common stock of the Debtor for too long, while the value of that stock declined.

For these reasons, the Trustee's Retention Claims are time-barred to the extent they are based on any failure to cure or other omissions that occurred before December 14, 2001. Otherwise, the Retention Claims are not time-barred.

e. ERISA's 6-year statute of limitations does not bar the Trustee's Distribution Claim.

The Trustee's Distribution Claim is based on the distributions to Coenen and Fields of their vested interest in the plans, and the related transactions, all of which occurred in 2005, less than 3 years before the Trustee filed his adversary complaint on December 14, 2007. The Trustee's Distribution Claim therefore is not barred by ERISA's 6-year limitation period.

f. Coenen is not liable for breaches that occurred after he was no longer a trustee.

Coenen argues that he cannot be held liable for any breach of fiduciary duty that occurred after he was no longer a Trustee of the Plan. The Court agrees. ERISA § 1109(b) provides that "[n]o fiduciary shall be liable with respect to a breach of fiduciary duty under this subchapter if such breach was committed before he became a fiduciary or after he ceased to be a fiduciary." 29 U.S.C. § 1109(b). Therefore, Coenen is entitled to summary judgment regarding any claims based on breaches that occurred after he was no longer a Trustee of the Plan. Coenen was no longer a Trustee of the Plan effective November 16, 2005.104 Therefore, Coenen cannot be held liable for any breach of fiduciary duty that occurred after that date.

C. Arguments made in the summary judgment motions other than those based on the statute of limitations

1. The Trustee's motion for summary judgment

The Court construes the Trustee's motion for summary judgment as seeking summary judgment against Coenen and Kosanke as to liability only, but not as to damages, on the Trustee's Acquisition Claim; Retention Claims; and Distribution Claim. Because the Court has ruled that the Acquisition Claim is barred by the statute of limitations, only the Retention Claims and the Distribution Claim are still at issue.

Regarding the Retention Claims, the Trustee argues that in allowing the continuing retention of a large quantity of Trans-Industries, Inc.'s common and preferred stock in the Plan, Coenen and Kosanke breached their fiduciary duties under several ERISA provisions, including their duty of prudence, and their duty to diversify, and that such breaches caused the Plan to suffer losses in value of its assets.105

Regarding the Distribution Claim, the Trustee argues that Coenen and Kosanke were fiduciaries of the Plan; and that Coenen and Kosanke breached their fiduciary duty of loyalty, and their duty to deal with and represent all Plan participants and beneficiaries in a nondiscriminatory manner, because Coenen and Kosanke engaged in negotiations and transactions which resulted in the lump sum distributions to Coenen and Fields of their entire vested interests in the Plan. The Trustee argues that such transactions and distributions damaged the Plan by leaving it with essentially no assets for the remaining participants.106

2. Coenen's motion for summary judgment

In addition to seeking summary judgment based on the ERISA statute of limitations, Coenen seeks summary judgment on any claims not time-barred. Coenen argues that the Trustee's claims "fail for lack of evidence establishing the elements of causation and damages."107

As to the causation element of all of the Trustee's claims, Coenen argues that he is not the proximate cause of any claimed damages suffered by the Plan and the Plan participants, because the Board of Trans-Industries, Inc. (of which Coenen was a member) ultimately directed, approved, supervised, and controlled all actions taken regarding the Plan.108 Coenen argues that "[w]hile he was a Trustee, [he] could make recommendations about the Plan but he was not in control of the Plan."109 Rather, according to Coenen, "by the Plan terms, the ultimate supervision and control of the Plan laid with the Board of Directors."110 Coenen argues further, that under "[t]he Plan document, both as originally conceived and as amended ... `the Trustee is not obligated to inquire ... whether the manner of making any payment or distribution is proper' ... [and] the Plan specifically exempted Trustees from liability in all cases except gross negligence or willful conduct."111 Put simply, Coenen's main causation argument is that any damages are the Board's fault, not his.112

The Trustee disputes these arguments, citing, among other things, provisions of the Plan and other evidence regarding Coenen's control over the Plan's investments.113

Regarding the Trustee's Retention Claims, Coenen argues that he cannot be held liable for any damages caused by the Plan's retention of Trans-Industries, Inc.'s preferred and common stock, because he regularly consulted with outside auditing firms and financial advisors regarding the value and performance of the Plan's stock portfolio, "which determined that the value of the Plan assets was going up — not down" and also that "the Plan's investment in company stock was expected to generate dividends above what could be obtained on the open market."114 Coenen argues that as a result, "there were no damages attributable to his recommendations."115 Alternatively, Coenen argues that if there were any damages from retaining the preferred and common stock, they were the result of the "general economy;" the stock market crash; and the Board; other persons; or actions taken after he was no longer a Trustee of the Plan.116

Regarding the Trustee's Distribution Claim, Coenen, in essence, argues that the way his distribution was structured "ensured that the Plan had actually been advantaged — not hurt — by owning Trans-Industries [Inc.'s] stock."117 Specifically, Coenen argues that (1) "[h]e was legally entitled to a pension distribution upon his termination[;]" (2) he took no more money than he was entitled to based on what he was told his vested interest was worth; (3) he "followed the directions of company counsel, and the Board, who were closely involved in structuring his distribution from the Plan in a fashion to minimize damage to both the Plan and the company[;]"118 (4) the way the transactions leading to his nearly $1 million distribution were structured benefitted the Plan, because he used his entire distribution, except $59,000, to buy common stock of Trans-Industries, Inc., essentially agreeing to take stock in exchange for his cash distribution, and thereby infusing "over $1 million — more than the value of his interest — back into the company Plan."119 Coenen argues that he did not "enjoy any gain that he can now be ordered to give back" because "he has already given all the money he had to the Plan."120

The Trustee disputes Coenen's argument that the Plan was not damaged by Coenen's distribution. Among other things, the Trustee argues:

3. Discussion of the law governing the Trustee's claims

a. Elements, including causation and damages

29 U.S.C. § 1109(a) renders fiduciaries of an ERISA plan, who violate any of their duties, personally liable for any damages suffered by the Plan that are caused by the breach of fiduciary duty. Section 1109(a) provides, in relevant part:

29 U.S.C. § 1109(a).

Severstal Wheeling Inc. v. WPN Corp., 809 F.Supp.2d 245, 254 (S.D.N.Y.2011).

A claimant who seeks damages for a breach of fiduciary duty must also show that the Plan was harmed and that the breach of fiduciary duty was the cause of the harm. See Miller v. Yazaki North America, Inc., 254 Fed.Appx. 466, 468-69 (6th Cir.2007)(affirming judgment for defendant on breach of fiduciary duty claim because the plaintiff did not prove that the breach of fiduciary duty was the proximate cause of the damages claimed); Miller v. Yazaki North America, Inc., No. 06-10841, 2006 WL 3446246, at *4 (E.D.Mich. Nov. 27, 2006) (internal quotation marks and citations omitted)("Another element Plaintiff must establish to prevail on either theory of an ERISA breach of fiduciary duty [claim] is causation. In other words, there must be a showing of some causal link between the alleged breach ... and the loss plaintiff seeks to recover.").

b. Who is a "fiduciary"

Under ERISA,

Pfahler v. Nat'l Latex Prods. Co., 517 F.3d 816, 828 (6th Cir.2007). Because under 29 U.S.C. § 1102(a), "[n]amed fiduciaries" "shall have authority to control and manage the operation and administration of the plan," ERISA defines both named and unnamed fiduciaries in functional terms. See Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)) ("ERISA ... defines `fiduciary' not in terms of formal trusteeship, but in functional terms of control and authority over the plan, see 29 U.S.C. § 1002(21)(A), thus expanding the universe of persons subject to fiduciary duties — and to damages — under § 409(a)."); Walker v. Fed. Express Corp., No. 11-5201, 2012 WL 2855580, at *5 (6th Cir. July 11, 2012) (quoting DeLuca v. Blue Cross Blue Shield of Michigan, 628 F.3d 743, 747 (6th Cir.2010))("`ERISA defines fiduciary ... in functional terms of control and authority over [a] plan.'"). Therefore,

Pegram v. Herdrich, 530 U.S. 211, 226, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000).

Consistent with 29 U.S.C. § 1002(21)(A), and the case law interpreting that provision, the Sixth Circuit uses a functional test to determine fiduciary status, which "examine[s] the conduct at issue to determine whether it constitutes `management' or `administration' of the plan, giving rise to fiduciary concerns, or merely a business decision that has an effect on an ERISA plan not subject to fiduciary standards." Hamilton v. Carell, 243 F.3d 992, 997 (6th Cir.2001); see also Briscoe v. Fine, 444 F.3d 478, 486 (6th Cir.2006) (citation omitted)("[S]everal courts have focused on the phrase `to the extent' [in 29 U.S.C. § 1002(21)(A)] in holding that `[f]iduciary status ... is not an all or nothing concept,' and that they must therefore `ask whether a person is a fiduciary with respect to the particular activity in question.'"); Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir.1999) (citations omitted)("[T]he definition of a fiduciary under ERISA is a functional one, is intended to be broader than the common law definition, and does not turn on formal designations such as who is the trustee."). For example, conveying information to plan participants regarding the plan is "administration" of the plan within the meaning of ERISA § 1002(21)(A), and an individual is an administrator performing a fiduciary act when he does so. See Varity v. Howe, 516 U.S. 489, 502-03, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)(explaining that "[c]onveying information about the likely future of plan benefits, thereby permitting beneficiaries to make an informed choice about continued participation, would seem to be an exercise of a power `appropriate' to carrying out an important plan purpose[,]" and would constitute "administration").

c. Nature of the fiduciary duties

Section 404(a) of ERISA, 29 U.S.C. § 1104(a)(1), describes standards of care which apply to fiduciaries who administer plans governed by ERISA:

29 U.S.C.A. § 1104(a)(1). The fiduciary duties encompassed within the § 1104(a) standard have three components. See Krohn v. Huron Mem'l Hosp., 173 F.3d 542, 547 (6th Cir.1999)(citing Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1162 (6th Cir.1988)).

Id. at 547 (citations omitted); See also Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 570, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985)(citing, in part, 29 U.S.C. § 1104(a)(1))("The manner in which trustee powers may be exercised ... is ... defined in [ERISA] through the provision of strict standards of trustee conduct, also derived from the common law of trusts-most prominently, a standard of loyalty and a standard of care.")

The Supreme Court recently discussed the fiduciary's duty of prudence, in the Tibble case, quoted at length above. And the Supreme Court recently ruled, in the context of a plan fiduciary who had inside information, that:

Fifth Third Bancorp v. Dudenhoeffer, ___ U.S. ___, 134 S.Ct. 2459, 2472, 189 L.Ed.2d 457 (2014).

In Lowen v. Tower Asset Mgmt., Inc., 829 F.2d 1209, 1213 (2d Cir.1987), the court expounded on the fiduciary's duty of loyalty that is codified in 11 U.S.C. § 1106(b):

Id. The court stated that transactions prohibited under 29 U.S.C. § 1106(b) "deserve exacting scrutiny." Id. at 1215.

In Gregg, the court expounded on ERISA's "prudent person" fiduciary duty. It stated that "[c]ourts define `prudent person' as that term is employed in the common law of trusts" and that "`[p]rudent person' is an objective standard." 343 F.3d at 840 n. 3 (citations omitted). The court in Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir.1984) (citations omitted), explained that the "prudent person" duty is "a duty to exercise such care and skill as a person of ordinary prudence would exercise in dealing with his own property and, bearing in mind the special nature and purpose of an employee profit sharing plan, to use care and skill to preserve the trust corpus." The Morse court further explained that this prudent person standard of conduct requires fiduciaries to act in a nondiscriminatory manner for the benefit of all participants and the plan as the whole, rather than for the benefit of one group of participants:

4. Genuine issues of material fact preclude the Court from granting summary judgment to any of the parties on the Trustee's remaining Retention Claims or on the Trustee's Distribution Claim.

The Court concludes that genuine issues of material fact exist regarding the Trustee's Retention Claims that are not time-barred — i.e., regarding any Retention Claims that accrued on or after December 14, 2001 (6 years before the Trustee filed his complaint). And the same thing is true as to the Trustee's Distribution Claim. The genuine issues of material fact concern the arguments made by the Trustee, and also the arguments made by Coenen, summarized above. And regarding the Retention Claims, the genuine issues of material fact include whether, during the time period after December 14, 2001, the Plan could have divested itself of the preferred and common stock in a way that would have avoided or reduced the alleged losses to the Plan, and if so, when and how this could have been done, and by how much this would have reduced or avoided the alleged losses to the Plan. The Court must determine these issues, among others, in order to determine if Coenen and Kosanke breached their fiduciary duties after December 14, 2001 by allowing the Plan to retain the Trans-Industries, Inc.'s common and preferred stock. If it was impossible during the relevant time period to divest the Plan of the stock, or to the extent such divestiture would not have helped the Plan, then continued retention of the stock would not have been a breach of fiduciary duty.

While an extended discussion of all the disputed issues is not necessary at this point, the Court will address one of the arguments Kosanke makes about the Distribution Claim, in opposing the Trustee's summary judgment motion. Kosanke argues that he had no discretion in permitting the distributions to Coenen and Fields because the Plan required distributions of a participant's entire vested balance if that individual was terminated.122 However, this is not accurate. Although Paragraph 6.4 of the Plan does state this requirement, neither this provision nor any other provision of the Plan states what is to be done if the Plan does not have enough assets to make distributions to employees who have been terminated.

There is no provision in the Plan that Kosanke has cited that requires or permits the series of transactions that were made regarding Plan assets in the case where the Plan is unable to pay all benefits when they become due. But ERISA does have a provision that deals with this situation. Under ERISA, a Plan may be terminated under these circumstances. 29 U.S.C. § 1342 provides, in relevant part:

29 U.S.C. § 1342 (emphasis added). Upon the termination of a plan, ERISA provides how assets are to be allocated to participants and beneficiaries of the plan. See, e.g. 29 U.S.C. § 1344 (covering the allocation of assets "[i]n the case of the termination of a single-employer plan").

ERISA also provides a method for the appointment of a trustee, where one of the determinations of subpart (a) of 29 U.S.C. § 1342 is made, or otherwise, "upon the petition of a plan administrator or the corporation" to "the appropriate United States district court" where, as here, "the interests of the plan participants would be better served by the appointment of the trustee." 29 U.S.C. § 1342(b)(1)-(2). And "[t]he corporation and plan administrator may agree to the appointment of a trustee without proceeding in accordance with the requirements of paragraphs (1) and (2)" [of 29 U.S.C. § 1342(a)]. 29 U.S.C. § 1342(b)(3). The appointment of an independent trustee would have been one way to remove the taint of a conflict of interest.

Terminating the Plan was an option that was repeatedly discussed in considering what to do about the Plan's inability to honor Fields's and Coenen's distribution requests. Coenen and Kosanke therefore knew that there was at least one option available, consistent with ERISA, other than the course ultimately taken.

And even if Coenen and Kosanke sincerely believed that the Plan required them to make distributions to Coenen and Fields in this situation, where there is a conflict between what the Plan requires and what ERISA requires, ERISA controls. 29 U.S.C. § 1104(a)(1)(D) (providing that "[s]ubject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter) (emphasis added):

Fifth Third Bancorp v. Dudenhoeffer, ___ U.S. ___, 134 S.Ct. 2459, 2468, 189 L.Ed.2d 457 (2014); see also Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 568, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985) ("[T]rust documents cannot excuse trustees from their duties under ERISA[.]"). As discussed above, ERISA requires that fiduciaries act for the benefit of all plan participants in a nondiscriminatory manner. And Paragraph 10.15 of the Plan, consistent with ERISA, required all Plan provisions to be "interpreted and applied in a uniform, nondiscriminatory manner." Paragraph 6.4 of the Plan, when interpreted along with this provision and other provisions of the Plan and ERISA, cannot be construed as requiring the actions taken by the fiduciaries of the Plan.

VI. Conclusion

For the reasons stated in this opinion, the Court will enter an order (1) granting, in part, Coenen's and Kosanke's motions for summary judgment, only to the extent described above regarding the statute of limitations, and otherwise denying the motions; and (2) denying the Trustee's motion for summary judgment.