MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court on the defendants' motions to dismiss the consolidated amended complaint of plaintiffs Harold S. Crocker, Jr., and Anna Bodnar, pursuant to Rule 12(b)(6), Fed.R.Civ.P. Plaintiffs filed an opposition, and the issues are fully briefed.

I. The Parties1

Plaintiffs are employees of defendant KV Pharmaceutical Company (KV) and participants in KV's Fifth Restated Profit Sharing Plan and Trust (the Plan). (Doc. #72, at 4, para. 7-8). Plaintiffs purport to represent "all participants in or beneficiaries of the Plan ... whose individual Plan accounts were invested in KV Class A common stock and/or KV Class B common stock ... at any time between February 2, 2003 through the present (the "Class Period")." 2 Id. at 1-2 (footnote omitted).

KV is a pharmaceutical company that develops, manufactures, and markets prescription drug products. KV's securities include Class A and B common stock as well as preferred stock.

Marc S. Hermelin (M. Hermelin) served as Chairman of the Board of KV (the "Board") as well as the Chief Executive Officer throughout the Class Period.

David S. Hermelin (D. Hermelin) served as a director and Vice President of KV until he resigned in December 2008, but he continues to serve on the Board.

Ronald J. Kanterman has served on the Board since March 26, 2008, and served as a KV principal executive officer3 in his official capacity as Vice President, Chief Financial Officer, Treasurer, and Assistant Secretary throughout the Class Period. "Kanterman is [also] a member of a committee of KV executives and employees that administers the Plan[.]" (Doc. #72, at 5, para. 11).

Likewise, Gerald R. Mitchell served as KV's Principal Financial Officer in his official capacity as KV's Chief Financial Officer and a member of the Board. Mitchell "is a member of a committee of KV executives and employees that administers the Plan[.]"4 Id. at 6, para. 13.

Richard H. Chibnall has served as KV's Principal Accounting Officer5 in the capacity as KV's Vice President and Chief Accounting Office since June 2005, and as Vice President of Finance from February 2000 through June 2005. Id., para. 15. Chibnall "is a member of a committee of KV executives and employees that administers the Plan[.]" Id.

Melissa Hughes has served as KV's Director of Human Resources since January 2006, and "is a member of a committee of KV executives and employees that administers the Plan[.]" (Doc. #72, at 6 para. 16).

Mary Ann Tichner is KV's Benefits Manager and is "a member of a committee of KV executives and employees that administers the Plan[.]" Id., at 7, para. 17).6

Finally, in their amended complaint, plaintiffs name Does 1-20 as defendants. Does 1-20 are identified as "additional fiduciaries of the Plan [who] include the individuals who administer the Plan." Id., at 7, para. 20.

II. The Plan

The Plan is an employee pension benefit plan within the meaning of §§ 3(3) and 3(2)(A) of the Employment Retirement Income Security Act (ERISA), 29 U.S.C. § 1002(2)(3) and 1002(2)(A). The Plan is also a defined contribution, an eligible individual account plan (EIAP), within the meaning of ERISA § 3(34), 29 U.S.C. § 1002(34), in that separate individual accounts are maintained for each participant based upon his/her contribution to such account. Id., at 8, para. 22.

The Plan is maintained under the documents as amended and restated as of January 1, 2002 (the 2002 Plan Document). Id. at 8, para. 24. KV is the named Plan administrator and sponsor. "As Plan Sponsor [and] Administrator[, KV] select[s] investment options or alternatives in the Plan and [has] the right to change or remove any investment option." Id. at 10, para. 32. "In addition, [KV has] authority and discretion to appoint, monitor, and remove [KV] directors, officers, and employees as fiduciaries of the Plan." (Doc. #72, at 10, at para. 33). Pursuant to a Fidelity Advisor 401(k) Premium Service Plan Service Agreement (the Service Agreement),7 Fidelity Management Trust Company also administers the Plan. Id. at 8, para. 25.

According to the 2002 Plan Document:

Id., at 8-9, para. 27-31 (internal citations omitted).

"ERISA requires that every participant in an employee benefit plan be given a Summary Plan Description ("SPD"), the latest version of which for the Plan [is] dated February 4, 2009." Id. at 8, para 24. KV was responsible for distributing the SPD prospectus to the Plan participants. Id. at 11, para. 36. The Prospectus "describe[s] the investment characteristics of the Plan's various investment options[, and] contained or incorporated ... representations disseminated to participants[.]" (Doc. #72, at 11, para. 36).

"The KV Plan Committee Defendants... had discretionary authority and control regarding the administration and management of the Plan and/or Plan assets,... possessed the full authority in their absolute discretion to determine all questions of eligibility for entitlement of Plan benefits [, and was] responsible for selecting, evaluating, monitoring, and altering investment alternatives offered by the Plan." Id. at 12, para. 42.

III. Factual and Procedural Background

In April 2003, the United States Food and Drug Administration issued KV a warning letter. Id. at 16, para. 57. The FDA also issued KV warning letters in January 2004, January 2005 and March 2006. Id. at para. 58.

On October 31, 2006, KV filed a Form 8-K, announcing that:

(Doc. #72, at 17-18, para. 65, 67-68) (emphasis in original).

In April 2007, the FDA issued KV a warning letter. Id. at para. 58. Then, on October 11, 2007, KV filed a Form 8-K, announcing that "the Special Committee had determined that the Company's accounting for most of the stock option grants during [fiscal year] 1996 through [fiscal year] 2006 was not in accord with Generally Accepted Accounting Principles ("GAAP") because the date of the grant, as defined by KV, was improper." Id. at 17, para. 66. "Consequently, KV announced that it would record an additional non-cash stock based compensation expense in the amount of $12 million, net of tax, and restate its financials for the quarter end[ing] June 30, 2006." Id. at 17-18, para. 66. KV also explained "that[,] due to the options[,] the restatement would be adding payroll taxes and penalties of $2.5 million, net of tax, for [fiscal years] 2004, 2005, and 2006." Id., at 18, para. 66.

In a press release dated February 15, 2008, KV announced that it "anticipate[d] its 13th consecutive year of record revenues in fiscal [year] 2008." Id. at 18, para. 69. "KV further represented that `[t]he financial condition of the Company remain[ed] strong[, and that KV] held cash and marketable securities of $240.4 million at fiscal 2007 year-end.'" Id., at 19, para. 70. Additionally, KV stated that its new product approval contributed 53.1% of the company's consolidated corporate revenue gross margins equal to 58.7%, and that:

(Doc. #72, at 19, para. 71) (second alteration in original). KV explained "that the New York Stock Exchange ("NYSE") granted the Company's request for a trading extension through March 31, 2008 [, which] was required under NYSE's rules, do to the delay by the Company in filing its [fiscal year] 2007 Annual Report as part of its Form 10-K submission to the [Securities and Exchange Commission ("SEC")]." Id. at para. 72. Finally, "KV reported that it expected that it would be able to file by March 31, 2008, after completing its [fiscal year] 2007 filings and restating the results for [fiscal years] 1996-2006." Id.

On February 15, 2008, KV common stock closed at $26.69 per share. Id. at para. 73. Then, in a press release issued February 27, 2008, "KV reported its preliminary financial results for the third quarter and first nine months of fiscal [year] 2008 ending on December 31, 2007." Id., at 20, para. 74. KV explained that:

(Doc. #72, at 20, para. 75). KV also reported a 40.6% increase in year-to-date net revenues, 50.2% increase in year-to-date gross profit, 96.8% increase in year-to-date net income, and 89.2% increase in year-to-date diluted earnings per Class A common stock. Id. at 20-21, para. 76. Additionally, "M. Hermelin declared that `KV enjoyed a solid third quarter.... With continuing momentum in our branded business[,] we expect to capitalize on our performance during the remain[der] of fiscal [year] 2008 and beyond.'" Id. at 20, para. 74. That same day, "KV common stock closed at $25.27 per share on [a] trading volume more than twice as high as the previous day's volume." Id. at 21, para. 77.

In March 2008, the FDA issued KV a warning letter. Id. at 16, para. 58. Then, on March 26, 2008, KV filed a Form 10-K, announcing that:

(Doc. #72, at 21-22, para. 78-81) (internal citations omitted). After KV issued this press release, KV's Class A common stock closed at $25.62. Id. at 22, para. 82.

In a press release dated June 16, 2008, KV announced:

(Doc. #72, at 23-24, para. 84-87). Additionally, the press release included the following quote from M. Hermelin:

Id. at 23-24, para. 83, 86 (internal citations omitted) (emphasis in original).

On June 25, 2008, KV submitted delayed Form 10-Qs for the fiscal quarters ending June 25, 2007, September 30, 2007, and December 31, 2007, and filed a Form 10-K for the fiscal year ending March 30, 2008. (Doc. #72, at 24, para. 88). In the SEC filings, KV announced:

(Doc. #72, at 24-25, para. 88-91) (internal citations omitted) (emphasis in original). The same day that KV issued the press release, "KV common stock closed at $19.21 per share ... on high volume trading over one million shares." Id. at 25, para. 91.

On June 26, 2008, KV filed a Form 10-K for the fiscal year ending March 31, 2008. Id. at 26, para. 92. "In the 2008 Form 10-K, KV announced that [its] net revenues for fiscal [year] 2008 increased $158.3, or 35.7%, as its experienced sales growth of 56.1% in its speciality generics/non-branded products segment. Id. at para. 93. Additionally, KV announced that:

(Doc. #72, at 26, para. 94-95) (internal citations omitted) (emphasis in original).

"[O]n July 29, 2008, federal agents seized $24.2 million worth of unapproved drugs from KV." Id. at 27, para. 96. "During the seizure, federal investigators ... discovered that KV was manufacturing and distributing other unapproved new drugs, including drugs for coughs, colds, topical [womb] healing, skin bleaching, and gastrointestinal conditions." Id. at para. 97. The then-United States attorney, Catherine Hanaway, "declared that `American consumers [were] entitled to have safe and effective drugs. The majority of the products [that were] seized were made after the FDA required an end to their production.'" Id. at para. 98 (emphasis in original).

That same day, KV issued a press release, announcing:

Id. at 27-28, para. 99. KV's common stock closed at $21.70 on July 29, 2008. Id. at 28, para. 100.

"On August 11, 2008, KV filed with the SEC its Form 10-Q for the first quarter of fiscal [year] 2009 end[ing] June 30, 2008.... KV announced that compared to the first quarter fiscal [year] 2008, in the first quarter 2009[,] net revenues increased more than 30%, gross profits increased 39%, and Company profits increased 102%." (Doc. #72, at 28, para. 101). In a press release issued that same day, KV reported that:

Id. at 28-29, para. 104-105 (emphasis in original). The press release included the following statement from M. Hermelin:

(Doc. #72, at 28, para. 103). That same day, KV common stock closed at $22.36 per share. Id. at 29, para. 107.

On October 23, 2008, the Board "approved indemnification agreements for each of the Company's Directors[, which] provide[ed] that KV shall indemnify the Directors against all costs, judgments, penalties, fines, liabilities, and amounts paid in settlement for any action taken by any Director in his or her official capacity." Id. at 30, para. 109.

Then, "[o]n or about November 10, 2008, KV issued a press release announcing that its Form 10-K filing for the quarter ending September 30, 2008 would be delayed due to its Audit Committee's continuing investigation into allegations of management misconduct." Id. at para. 110. That same day, KV's common stock closed at $15.70 per share, falling $0.45 from its previous close of $16.15 per share. Id. at para 111. Then, on November 11, 2008, KV's common stock closed at $15.40 per share, and, on November 12, 2008, KV's common stock closed at $14.24 per share. Id.

On November 13, 2008, KV filed a Form 12-2b, announcing:

Id. at 31, para. 112. KV also disclosed: (1) adverse information concerning its financial results for the second quarter of the fiscal year 2009; (2) an estimated loss of $0.06 per share for the second quarter of fiscal year 2009, a decline of $0.76 per share from the previous year; (3) second quarter fiscal year 2009 net revenues declined 16%, down $28.6 million, as compared to the previous fiscal year; (4) ETHEX revenues declined $20.0 million due to the guaifenesin/hydrocone product discontinuations and $18.0 million due to unshipped orders caused by "manufacturing interruptions and inefficiencies"; and (5) that it planned to "withdraw[] the revenue and earnings guidance for fiscal [year] 2009 issued in August 2008, in which KV announced that it expected to report net revenue of between $650 million and $675 million and net income per diluted Class A share of between $1.65 and $1.75 for [fiscal year] 2009." (Doc. #72, at 32, para. 113-15).

On November 13, 2008, the price of KV's common stock closed at $5.90, falling $8.36 per share from its previous close of $14.26. Id. at para. 116. "This represented a drop of approximately 59% on trading volume of over 6.6 million shares, which [was a] volume increase of approximately 3,300% compared to trading volume [on November 23], and more than 4,700% compared to the average trading volume for the prior seven days." Id.

In early December 2008, M. Hermelin's wife and his son, D. Hermelin, voluntarily ended their employment with KV. Id. at 34, para. 124.

On December 2, 2008, Joseph Mas filed a class-action complaint against KV and its executive officers on behalf of purchasers of KV securities between February 15, 2008 and November 12, 2008, alleging that KV and several of KV's executives had issued materially false and misleading statements, regarding KV's compliance with federal regulations that govern the manufacture and marketing of certain generic drug products containing guaifenesin as well as KV's current and future financial prospects. See Public Pension Fund Group v. KV Pharm. Co., et al., No. 4:08-CV-1859 (CEJ), 2009 WL 1106976.

On December 4, 2008, KV's Class A common stock closed at $3.85 and KV's Class B common stock closed at $3.89. (Doc. #72, at 32, para. 117).

On December 5, 2008, M. Hermelin retired as KV's CEO. Id. at 33, para. 120. "Later that day, KV issued its own announcement, stating that the Board of Directors, acting upon the recommendation of the Audit Committee, terminated the employment agreement of defendant Marc Hermelin `for cause.'" Id. at para. 121. "Under Marc Hermelin's employment contract, `for cause' was described as the `employee has committed a breach of a fiduciary duty, embezzlement, larceny, or has willfully failed to perform his duties.'" Id. at para 122. "The Board of Directors also removed Defendant Marc Hermelin as Chairman of the Board of Directors and CEO, and appointed David A. Van Vliet to serve as interim CEO[.]" Id. at 34, para. 123.

"On December 23, 2008, KV announced that it was suspending shipments of all FDA approved drugs in tablet form[, which] accounted for $159 million of KV's $602 million in revenue [for the fiscal year] 2008." Id. at para. 126 (citation omitted). KV explained that:

Id. at 34, para. 127-28. Additionally, "KV announced [a] recall of a shipment of its painkiller hydromorphone due to a report of an oversized tablet." Id. at 129. KV Class A common stock then fell nearly 50% to $2.71 per share from the previous day's close of $5.39 per share. (Doc. #72, at 34, para. 130). The next day, KV common stock closed at $1.99. Id.

On January 9, 2009, Herman Unvericht filed a class-action complaint against KV and its executive officers on behalf of purchasers of KV securities between February 15, 2008 and November 12, 2008, claiming violations of the federal securities laws. See Herman Unvericht v. KV Pharm. Co., et al., No. 4:09-CV-61 (CEJ), 2009 WL 391836. Then, on January 21, 2009, Norfolk County Retirement System filed a class-action complaint against KV and its executive officers on behalf of purchasers of KV securities between May 31, 2007 and November 12, 2008, claiming violations of the federal securities laws.8 See Norfolk County Ret. Sys. v. KV Pharm. Co., et al., No. 4:09-CV-138 (CEJ), 2009 WL 391855.

On January 22, 2009, KV suspended the manufacture and shipment of all of its products, with the exception of those products that it distributed but did not manufacture. Id. at 45, para. 131. Four days later, "KV announced its suspension of all manufacturing and shipping of its products[, and] that it was initiating a nationwide recall of most of its products." Id. at para. 132. Additionally, KV explained that:

(Doc. #72, at 35, para 133-34). Finally, KV announced that "it was responding to inquires from the United States Attorney for the Eastern District of Missouri and the FDA[,] it had fired its Senior Vice President and General Counsel Gregory Bentley[, and] that Gestiva, a drug that prevents pre-term births, would again be delayed because the FDA wanted more data and another clinical trial." Id. at para. 135-37. KV's Class A stock then closed at $0.51, falling $1.73 from its previous close of $2.24. Id. at 36, para. 138. On January 30, 2009, KV discarded its existing inventory and some of its raw materials. Id. at para. 139.

In February 2009, the FDA issued KV a warning letter. Id. at 16, para. 58. On February 2, 2009, the FDA issued KV a Form FDA 483 ("2009 Form 483"), "setting forth its observations concerning product quality and deficiencies in the Company's compliance with cGMP regulations." Id. at 36, para. 140.

On February 3, 2009, Harold S. Crocker filed the instant action against KV and its executive officers on behalf of all participants of the Plan, claiming numerous violations of ERISA. See Harold S. Crocker, et al. v. KV Pharm. Co., et al., No. 4:09-CV-198 (CEJ), 2009 WL 1297684. On February 9, 2009, Anna Bodnar filed a class action complaint against KV and its executive officers, see Anna Bodnar v. KV Pharm. Co., et al., 4:09-CV-222 (CEJ), 2009 WL 3832922, and, on February 24, 2009, Heather Knoll filed the third ERISA class action complaint against KV and its executive officers, see Heather Knoll v. KV Pharm. Co., et al., 4:09-CV-297 (CEJ), 2009 WL 3227815.

On March 2, 2009, the United States filed a complaint for permanent injunction against several defendants, including KV, ETHEX, Ther-Rx, and four KV executives, including M. Hermelin. (Doc. #72, at 36, para. 141). In the complaint, the government alleged that the FDA investigators documented thirty-five deviations, including KV's:

Id. at 36-37, para. 141. The government also claimed that KV had violated the following sections of the Food and Drug Act:

(Doc. #72, at 37, para. 142). In the complaint, the government explained that "the deficiencies observed by the FDA in the February 2009 inspection were the same as, or similar to, prior violations [that] the FDA observed in inspections in January 2004, January 2005, March 2006, April 2007, March 2008, [and] August 2008[.]" Id. at 37-38, para. 143.

"On March 6, 2009, KV announced that it entered a consent decree with the FDA[, and KV agreed that] an independent consultant would review [its] facilities to certify compliance with FDA regulations[, and that it would] not market products it manufactur[ed] until it [had] satisfied certain requirements designed to demonstrate compliance with FDA's cGMP regulations." Id. at 38, para. 144.

In a Memorandum and Order dated May 7, 2009, the Court consolidated the lawsuits filed by Anna Bodnar and Heather Knoll with this action.

On June 2, 2009, KV announced that:

(Doc. #72, at 38, para. 145-46).

On June 23, 2009, the Audit Committee revealed the following findings:

Id. at 38-39, para 147. KV then announced that the Audit Committee approved a recovery plan for KV that would:

Id. at 39, para. 148.

On June 26, 2009, plaintiffs filed their amended complaint, alleging that all of the defendants breached their duties of loyalty and prudence by failing to prudently and loyally manage the Plan assets (Count I); all of the defendants breached their duty to inform by failing to provide complete and accurate information to the Plan participants and beneficiaries (Count II); KV and the Director Defendants breached their fiduciary duties by failing to monitor the other Plan fiduciaries (Count III); and that all of the defendants breached their co-fiduciary duties by enabling and/or causing their co-fiduciaries to violate ERISA (Count IV). Additionally, plaintiffs request that the Court certify a class comprising of Plan participants who owned KV stock between February 2, 2003 to the present. The defendants now move to dismiss plaintiffs' amended complaint. See (Doc. #86; #88; #91; #93; #94).

IV. Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if it strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely"). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp., 127 S.Ct. at 1974. See also id. at 1969 ("no set of facts" language in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), "has earned its retirement."). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965.

V. Discussion

Plaintiffs allege that the defendants breached several of their fiduciary duties by imprudently investing the Plan assets in KV common stock. To establish an ERISA claim for breach of a fiduciary duty, "plaintiffs must allege that (1) defendants were fiduciaries of the plan who, (2) acting within their capacities as plan fiduciaries, (3) engaged in conduct constituting a breach of an ERISA fiduciary duty." In re Pfizer Inc. ERISA Litig., No. 04 Civ. 10071(LTS)(JFE), 2009 WL 749545, *6 (S.D.N.Y. Mar. 20, 2009) (citing 29 U.S.C. § 1109; Pegram v. Hedrich, 530 U.S. 211, 222-224, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)); see also Blankenship v. Chamberlain, No. 4:08CV01168 ERW, 695 F.Supp.2d 966, 974, 2010 WL 427764, *7 (E.D.Mo. Feb. 1, 2010) (reciting elements).

A. Defendants' Fiduciary Status Under ERISA

ERISA provides that:

29 U.S.C. § 1002(21)(A).

The Unites States Supreme Court explains that "ERISA ... defines `fiduciary' not in terms of formal trusteeship, but in functional terms of control and authority over the plan." Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (emphasis in original) (citing 29 U.S.C. § 1002(21)(A)). Likewise, the Eighth Circuit holds that "[t]he term fiduciary is to be construed broadly[.]" Olson v. E.F. Hutton & Co., Inc., 957 F.2d 622, 625 (8th Cir.1992) (first alternation in original) (quoting Consol. Beef Indus. v. New York Life Ins. Co., 949 F.2d 960, 963 (8th Cir.1991)). The appellate court further explains that "[a] court must ask whether a person is a fiduciary with respect to the particular activity in question." Maniace v. Commerce Bank of Kansas City, N.A., 40 F.3d 264, 267 (8th Cir.1994) (citations omitted). "[A]nswering questions about a plan, noting changes in the plan, [and] disseminating information directly to plan participants concerning their rights within the plan ... are classic fiduciary activities." Anderson v. Resolution Trust Corp., 66 F.3d 956, 960 (8th Cir.1995) (second alternation in original) (citing Pickering v. USX Corp., 809 F.Supp. 1501, 1567-68 (D.Utah 1992)).

1. KV'S Fiduciary Status

Under Eighth Circuit precedent, one who "is vested with and exercises discretionary authority and control as the plan sponsor and named administrator ... is a fiduciary under 29 U.S.C. § 1102(21)(A)[.]" Harold Ives Trucking Co. v. Spradley & Coker, Inc., 178 F.3d 523, 526 (8th Cir. 1999). Here, plaintiffs allege, and KV does not dispute, that KV is the Plan administrator and sponsor. Additionally, plaintiffs allege that KV "select[ed] investment options or alternatives in the Plan[,] retained the right to change or remove any investment options[, and] monitor[ed] the performance of the Plan's investment funds, including the KV Stock Fund." (Doc. #72, at 10, para. 32). The Court believes that plaintiffs have pled sufficient facts to establish that KV is a fiduciary of the Plan.

2. Director Defendants' Fiduciary Status

Plaintiffs argue that, because fiduciary status is a fact-sensitive inquiry, it is inappropriate for the Court to determine the fiduciary status of the Director Defendants at the motion to dismiss stage. See (Doc. #102, at 29-33). To support their contention, plaintiffs cite numerous cases; however, the majority of the cases predate Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), in which the Supreme Court held that "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Id. The Supreme Court also explained that "a complaint [will not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (alteration in original). Plaintiffs cite to one postIqbal case, In re Merck & Co., Inc., No. Civ.A. 08-CV1947DMC, 2009 WL 2834792, *4 (D.N.J. Sept. 1, 2009), in which the district court (1) determined the defendants' fiduciary statutory; and (2) found that the plaintiffs' "complaint [was] replete with allegations that [d]efendants had management, oversight, and investment authorities with respect to the Plans[.]" Id. (emphasis added).

In this case, plaintiffs allege that the Director Defendants "were fiduciaries ... in that they exercised discretionary authority or discretionary control respecting [the] management of the Plan, exercised authority or control respecting management or disposition of Plan assets and/or had discretionary authority or discretionary responsibility in Plan administration." (Doc. #72, at 12, para. 40). Under the Iqbal standard, the Court finds that these bare allegations are insufficient in that they constitute nothing more than a recitation of the ERISA statutory language.

Additionally, plaintiffs allege that the Director Defendants are fiduciaries because they signed several SEC filings that contained false and misleading representations. Specifically, plaintiffs assert that "the Director Defendants signed the Form 10-Ks filed with the SEC on March 26, 2008 and June 27, 2008 on behalf of KV[, and that] Defendants Mark Hermelin (as Principal Executive Officer) and Kanterman (as Principal Financial Officer) also signed 10-Ks on behalf of KV." (Doc. #72, at 12, para 41). Signing an SEC filing does not create a fiduciary status. See In re WorldCom, Inc., 263 F.Supp.2d 745, 766 (S.D.N.Y.2003) ("Those who prepare and sign SEC filings do not become fiduciaries through those acts, and consequently, do not violate ERISA if the filings contain misrepresentations."); In re Sprint Corp. ERISA Litig., 388 F.Supp.2d 1207, 1226 (D.Kan.2004) (quoting WorldCom, 263 F.Supp.2d at 766); Bendaoud v. Hodgson, 578 F.Supp.2d 257, 277 (D.Mass.2008) ("Merely signing a securities filing, even one that the signer knows will be incorporated into an ERISA document, does not create ERISA fiduciary status; it is a solely corporate act.").

Based on the foregoing, the Court concludes that plaintiffs have failed to plead sufficient facts that the Director Defendants are fiduciaries of the Plan.

3. Committee Defendants' Fiduciary Status

Plaintiffs also contend that it is inappropriate for the Court to determine the fiduciary status of the Committee Defendants. As discussed above, other courts have made such a factual determination at the motion to dismiss stage. Thus, the Court will determine whether plaintiffs have pleaded sufficient facts to establish that the Committee Defendants are fiduciaries of the Plan.

In their amended complaint, plaintiffs allege that KV "has made no formal delegations of ERISA fiduciary responsibilities as Plan Administrator[.]" (Doc. #72, at 12, para. 41). Plaintiffs also assert that "each [of the Committee Defendants] had discretionary authority and control regarding the administration and management of the Plan and/or Plan assets[.]" Additionally, plaintiffs allege that the Committee Defendants "possessed the full authority in their absolute discretion to determine all questions of eligibility for entitlement to Plan benefits[, and] select[ed], evaluat[ed], monitor[ed], and alter[ed] investment alternatives offered by the Plan." (Doc. #72, at 12-13, para. 42). The Committee Defendants argue that Confer v. Custom Eng'g Co., 952 F.2d 34, 37 (3d Cir.1991), requires dismissal of plaintiffs' claims against them because (1) KV did not designate them as fiduciaries and (2) plaintiffs failed to allege each defendant's individual discretionary role with respect to the Plan. (Doc. #89, at 15-17; #109, at 9-14).

In Confer, the Third Circuit ruled that, "when an ERISA plan names a corporation as a fiduciary, the officers who exercise discretion on behalf of that corporation are not fiduciaries[.]" Id. The Eighth Circuit has not yet addressed the Confer holding. Also, the Court believes that, although KV did not designate the Committee Defendants as fiduciaries, plaintiffs claim that each of them had the discretionary authority to ask questions about the Plan and that each of them managed the investments of the Plan assets. Thus, the Court finds that plaintiffs have pled sufficient facts to establish that each of Committee Defendant exercised discretionary authority. See In re ADC Telecomms., Inc., ERISA Litig., 03-2989 ADM/FLN, 2004 WL 1683144, *5 (D.Minn. July 26, 2004) ("Without the opportunity for discovery, [the Court believes that] Plaintiffs cannot fairly be expected to ascertain all the factual details of [the Committee] Defendants' precise responsibilities and actions. [W]hether the evidence will bear out the allegations [is] a separate question addressable on summary judgment.").

Having determined that plaintiffs alleged insufficient facts to establish that D. Hermelin and M. Hermelin are fiduciaries of the Plan, the Court will dismiss all of plaintiffs' claims against those defendants. The next issue is whether KV, Kanterman, Mitchell,9 Chibnall, Hughes, and Tichner breached fiduciaries duties owed to plaintiffs.

B. Breach of Fiduciary Duties

Section 1109 of ERISA provides, in relevant part, that:

1. Imprudent Investment Claim (Count I)

In Count I of their amended complaint, plaintiffs allege that KV and the Committee Defendants breached the duty by investing the Plan assets in KV common stock. Pursuant to ERISA, the duty of prudence provides that:

29 U.S.C. § 1104(a)(1).

a. The Applicability of the Moench Presumption of Prudence

First, KV and the Committee Defendants urge the Court to dismiss plaintiffs' prudence claim because the allegations in their amended complaint fail to overcome the Moench presumption of prudence. Plaintiffs maintain that the Moench presumption does not apply because (1) ERISA does not include such presumption; (2) courts only extend the Moench presumption to fiduciaries of Employment Stock Ownership Programs (ESOPs); and (3) the Moench presumption is an evidentiary standard that should not be applied at the motion to dismiss stage.

An eligible individual account plan (EIAP) is "`an individual account plan which is (i) a profit-sharing, stock bonus, thrift, or savings plan; (ii) an [ESOP]; or (iii) a money purchase plan which [invests] primarily in qualifying employer securities.'" 29 U.S.C. § 1107(d)(3)(A). "An ESOP is one of several types of ... `EIAPs'[,]" which is "designed to primarily invest in employer securities." Edgar v. Avaya, Inc., 503 F.3d 340 (3d Cir.2007) (citing 29 U.S.C. § 1107(d)(6)). The Plan at issue in the instant action is a non-ESOP EIAP. See (Doc. #72, at 8, para. 22; #102, at 37, 39).

Although ERISA does not contain a presumption of prudence for fiduciaries, the Third Circuit, in Moench v. Robertson, held that "an ESOP fiduciary who invests the assets in employer stock is entitled to a presumption that it acted consistently with ERISA by virtue of that decision." 62 F.3d 553, 571 (3d Cir.1995). The Sixth Circuit has "adopt[ed] the Third Circuit's holding[, explaining that it strikes the] proper balance between the purpose of ERISA and the nature of ESOPs[.]" Kuper v. Iovenko, 66 F.3d 1447, 1459 (6th Cir.1995).

In Avaya, the Third Circuit extended the Moench presumption to all EIAPs, including non-ESOP EIAPs. 503 F.3d 340 at 347. The Fifth Circuit then held that "[t]he Moench presumption logically applies to any allegations of fiduciary duty breach for failure to divest" all types of EIAPs. Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 254 (5th Cir.2008). Moreover, although the Ninth Circuit has not yet adopted the Moench presumption, that court has "note[d] that [all] EIAPs... are treated the same for the purpose of fiduciary duty analysis." Wright v. Oregon Metallurgical Corp., 360 F.3d 1090, 1098 n. 3 (9th Cir.2004) (citations omitted).

Although the Eighth Circuit has not yet adopted the Moench presumption of prudence, the Court finds the Third Circuit's reasoning in both Moench and Avaya is persuasive. Additionally, the Court believes that the Moench presumption is not an evidentiary standard, and the presumption may be applied at the motion to dismiss stage. See Ward v. Avaya, Inc., 299 Fed.Appx 196, 199 n. 4 (3d Cir. 2008) (stating that the presumption of prudence applies at the motion to dismiss stage); In re Ford Motor Co. ERISA Litig., 590 F.Supp.2d 883, 893 n. 1 (E.D.Mich.2008) (the Moench "presumption is not a mere evidentiary standard, but instead is a substantive rule of law that can be applied at the motion-to-dismiss stage); In re Dell, Inc. ERISA Litig., 563 F.Supp.2d 681, 689 (W.D.Tex.2008) ("The Court must ... determine at the motion to dismiss stage whether the Plaintiffs have plead facts which, taken as true, could overcome the Moench presumption."); In re Avon Prods., Inc. Sec. Litig., No. 05 Civ. 6803(LAK)(MHD), 2009 WL 848083, at *10 (S.D.N.Y. Mar. 3, 2009) ("most courts" have recognized that the Moench presumption of prudence "imposes a pleading burden on the plaintiff to allege facts, that if credited, would justify overcoming the presumption."); In re Citigroup ERISA Litig., No. 07-9780, 2009 WL 2762708, at *16 (S.D.N.Y. Aug. 31, 2009) ("Joining [the] trend, this Court will apply the Moench presumption in conjunction with defendants' motion to dismiss the complaint in this action."); In re Harley-Davidson, Inc., Sec. Litig., 660 F.Supp.2d 953, 965 n. 5 (E.D.Wis.2009) ("The court reject[ed plaintiff's] contention that application of a discretionary standard is somehow inappropriate at the motion to dismiss stage.").

b. Rebutting the Moench Presumption

To overcome the Moench presumption of prudence, "plaintiff must show that the ERISA fiduciary could not have believed reasonably that continued adherence to the ESOP's direction was not in keeping with the settlor's expectations of how a prudent trustee would operate." Moench, 62 F.3d at 571. The District of New Jersey in In re Merck & Co., Inc. Sec., Deriv. & ERISA Litig. noted that:

MDL No. 16 1658(SRC), 2009 WL 790452, *3 (D.N.J. Mar. 23, 2009) (internal citations omitted).

In Merck, the plaintiffs alleged that the plan fiduciaries "fail[ed] to invest and manage Plan assets prudently as required by ERISA." Id. One day after Merck withdrew its product Vioxx from the market, the price of Merck stock plunged 27%. Id. at *2. Over the course of the next month, the price of Merck stock declined an additional 13%. Id. The plaintiffs also asserted that, "after rejecting an initial FDA recommendation to add to [the] product label a warning of increased risk of a cardiovascular thrombotic event, Merck revised the label in 2002 to address [only] the possibility of that risk." Id. at *4 (emphasis added). However, the defendants allegedly "continued to promote Vioxx as safe, sales increased, and the company's stock price rose[.]" Id. The plaintiffs claimed that the "[d]efendants knew, or should have known, that Merck stock was artificially inflated as a result of undisclosed problems and misrepresentations regarding the cardiovascular safety of Vioxx." Id. at *3. The district court held, "as it did on [the d]efendants' motion to dismiss," that the plaintiffs' allegations "depicted a company facing a dire situation[,]" and that the plaintiffs had rebutted the Moench presumption. Id. at *4 (emphasis added). But see Harris v. Amgen, Inc., et al., No. CV 07-5442 PSG (PLAx), 2010 WL 744123, *11 (C.D.Cal. Mar. 2, 2010) (distinguishing Merck and holding that plaintiffs had not rebutted the Moench presumption because the company stock "exhibited a gradual decline of 29% during a period of approximately one and a half years" and that the company's two major products "remained on the market despite [its] trial results and black label warnings").

The Court finds the Merck decision persuasive and applicable to the instant action. In this case, KV common stock allegedly exhibited a gradual decline from February 15, 2008 to December 4, 2008. Then, on December 23, 2008, KV announced the recall of its painkiller hydromorphone. The next day, plaintiffs allege that the price of KV common stock plunged nearly 50%. Over the course of the next month, the price of KV common stock declined an additional 81%. Similar to Merck, which withdrew its most popular product from the market, KV suspended shipment of all its FDA-approved drugs in tablet form. KV stopped manufacturing and distributing all its products on January 26, 2009. Plaintiffs also allege that (1) KV manufactured and distributed unsafe generic drugs despite FDA warnings; (2) the FDA issued KV a Form 483 setting forth KV's non-compliance with the cGMP; and (3) the KV's Audit Committee discovered deficiencies in KV's financial analysis and budget controls. Moreover, as of December 31, 2009, KV was allegedly "out of compliance with one or more of the covenants in its revolving line of credit agreement, from which it had borrowed approximately $30 million." (Doc. #72, at 35, para. 133). Based on the foregoing factual allegations, the Court concludes that plaintiffs have sufficiently alleged that KV was in a dire financial situation, and that plaintiffs have overcome the Moench presumption. The Court, therefore, finds that plaintiffs have pled sufficient facts to establish that KV and the Committee Defendants breached their fiduciary duty of prudence.

c. The § 404(c) Safe Harbor Defense

KV and the Committee Defendants next argue that plaintiffs' prudence claim is barred by the safe harbor defense. Section 404(c) of ERISA provides that:

29 U.S.C. § 1104(c) (emphasis added).

KV and the Committee Defendants contend that, even if plaintiffs' allegations rebut the Moench presumption, the safe harbor defense set forth in 29 U.S.C. § 1104(c) provides an alternative ground for the Court for dismissal of plaintiffs' prudence claim. Plaintiffs argue that the safe-harbor defense is an affirmative defense, and consideration of such defense is premature at the motion to dismiss stage.

To support their contention, KV and the Committee Defendants cite to Hecker v. Deere & Co., 556 F.3d 575 (7th Cir.2009). In Hecker, the Seventh Circuit notes that, "[a]lthough normally a district court should not base a dismissal under Rule 12(b)(6) on its assessment of an affirmative defense, that rule does not apply when a party has included in its complaint `facts that establish an impenetrable defense to its claims.'" Id. at 588 (internal citation omitted). The complaint in Hecker including the following allegations:

556 F.3d at 588. Based on these allegations, the Seventh Circuit agreed with the district court's conclusion that "the Complaint so thoroughly anticipated the safe-harbor defense that it could reach that issue[.]" Id.

The Court finds that Hecker is distinguishable from the instant case. Unlike the complaint in Hecker, which included a section heading and numerous paragraphs explicitly alleging why the safe-harbor defense was inapplicable, here, plaintiffs' amended complaint includes one paragraph, in which plaintiffs allege:

(Doc. #72, at 42, para. 158). Without more, the Court believes that plaintiffs' bare allegations fail to "so thoroughly anticipate the safe-harbor defense." At this stage of the litigation, the Court finds that it is premature to determine whether the § 404(c) safe-harbor defense bars plaintiffs' prudence claim against KV and the Committee Defendants.

d. Rule 9(b)

Finally, KV and the Committee Defendants claim that plaintiffs' prudence claim sounds in fraud and fails to meet the heightened pleading requirements set forth in Federal Rule of Civil Procedure 9(b). To support their contention, KV and the Committee Defendants rely on Johnson v. Radian Group, Inc., Civil Action No. 08-2007, 2009 WL 2137241, at *12 (E.D.Pa. July. 16, 2009). In Johnson, the district court held that:

Id.

Here, in Count I of their amended complaint, plaintiffs allege, inter alia, that:

(Doc. #72, at 42-43, para 161-63). "Although these [allegations] do not employ the word `fraud,' [the Court concludes that] they can be read only as averments that [KV and the Committee Defendants] committed fraud, both by affirmative intentional misrepresentations and by intentional omissions." Urban, 2008 WL 4739519, at *9. As such, plaintiffs' allegations are subject to analysis under Rule 9(b).

The Eighth Circuit holds that to satisfy Rule 9(b) "the complaint must allege `such matters as the time, place, and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.'" Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir.2009) (citation omitted).

Here, plaintiffs allege that KV and the Committee Defendants engaged in "a scheme to misrepresent" KV's financial processes as well as KV's financial and accounting activities. (Doc. #72, at 42-43, para. 162-63). However, plaintiffs fail to explain the specific activities and/or conduct that amounted to a scheme. Plaintiffs repeatedly assert that the Committee Defendants made false and misleading statements, (Doc. #72, at 3-4, para. 3, 29-32, para. 108, 110, 42-43, para. 161-162), but plaintiffs do not allege that the Committee Defendants made any statements regarding KV's operational and financial status. See (Doc. #72, at 23, para. 83, at 28, para. 103). Additionally, plaintiffs allege that KV concealed its FDA violations. Although plaintiffs cite to KV's press releases and SEC filings in their amended complaint, plaintiffs fail to allege the specific statements in these public announcements that were false and misleading. As such, the Court believes that plaintiffs have failed to plead with sufficient particularity that KV and the Committee Defendants made false and misleading statements omissions as well as concealed material regarding KV's securities. The Court will dismiss plaintiffs' prudence claim against KV and the Committee Defendants.

2. Duty of Loyalty Claim (Count I)

Additionally in Count I, plaintiffs allege that KV and the Committee Defendants breached their fiduciary duty of loyalty by continuing to invest in KV stock because the Hermelins maintained a controlling interest in KV. The Eighth Circuit explains that "[a]n ERISA fiduciary must `discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries,' 29 U.S.C. § 1104(a)(1)(A), and must comply with the common-law duty of loyalty, including the `obligation to deal fairly and honestly with all plan members.'" Kalda v. Sioux Valley Physician Partners, Inc., 481 F.3d 639, 644 (8th Cir.2007) (citations omitted). "The duty [of loyalty] is breached when a plan administrator participates `knowingly and significantly in deceiving a plan's beneficiaries in order to save the employer money at the beneficiaries' expense.'" Christensen v. Qwest Pension Plan, 462 F.3d 913, 917 (8th Cir.2006) (citing Varity Corp. v. Howe, 516 U.S. 489, 506, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)).

Plaintiffs allege that KV and the Committee Defendants "had a conflict of interest [that caused them to continue to] invest in [KV] Stock for the Plan." (Doc. #72, at 43, para. 164). "Due to the Hermelin family's controlling ownership of the Company, [plaintiffs claim that] all of the employee fiduciaries held their positions at the will of various members of the CEO's family." Id. As such, plaintiffs assert that "these fiduciaries failed to exercise independent judgement in the performance of their fiduciary duties and they labored under a conflict of interest that affected their duties as fiduciaries to invest plan assets solely in the interests of the Plan participants and beneficiaries." (Doc. #72, at 43-44). These bare allegations fail to establish that KV, as the Plan administrator, and the Committee Defendants in any way deceived or attempted to deceive the Plan participants and beneficiaries. Moreover, the mere fact that the Hermelin family maintained controlling ownership of KV does not indicate that KV and the Committee Defendants breached their fiduciary duty of loyalty to the Plan participants and beneficiaries. The Court finds that plaintiffs have failed to allege sufficient facts to establish a breach of the duty of loyalty. As such, the Court will dismiss plaintiffs' duty of loyalty claim against KV and the Committee Defendants.

3. Plaintiffs' Nondisclosure Claim (Count II)

In Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 598 (8th Cir.2009), the Eighth Circuit wrote:

(internal citations omitted). In Count II of their amended complaint, plaintiffs allege that KV and the Committee Defendants breached their fiduciary duty to inform by failing to provide complete and accurate information to the Plan's participants and beneficiaries regarding KV's operations and financial status.

KV and the Committee Defendants argue that, because plaintiffs' nondisclosure claim sounds in fraud, Rule 9(b), not Rule 8(a), should govern this claim. (Doc. #89, at 27; #92, at 11; #93, at 5). KV and the Committee Defendants again cite Johnson, 2009 WL 2137241, at *12.

In Count II, plaintiffs allege, inter alia, that,:

(Doc. #72, at 45, para 171-72). Count II of plaintiffs' amended complaint incorporates plaintiffs' preceding allegations that KV and the Committee Defendants "knew or should have known that KV's books did not accurately reflect its financial condition[,] KV was not disclosing ... its significant financial problems, [and that the] conduct which these fiduciaries knew or should have known artificially inflated the value of [KV's stock]." Id. at 3, para. 3. Plaintiffs further claim that KV and the Committee Defendants failed to disclose the misrepresentations in KV's press releases and SEC filings. Id., at 3-4, para. 3, 29-31, para. 108, 110. Although plaintiffs' allegations do not include the word "fraud," the Court believes that these allegations sound in fraud because plaintiffs allege that KV and the Committee Defendants made misrepresentations and omissions regarding KV's manufacturing and operations activities, regulatory compliance, and financial performance.

The next issue is whether plaintiffs have pleaded their nondisclosure claim against KV and the Committee Defendants with sufficient particularity. As stated above, the Eighth Circuit holds that to satisfy Rule 9(b) "the complaint must allege `such matters as the time, place, and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.'" Drobnak v. Andersen Corp., 561 F.3d at 783. Here, plaintiffs essentially allege that KV and the Committee Defendants made material misrepresentations and omissions regarding KV's operational activities, regulatory compliance, and financial status. Although plaintiffs assert that KV and the Committee Defendants knew or should have known that investing the Plan assets in KV common stock was an imprudent investment, they fail to offer any factual allegations that establish that the defendants possessed such knowledge. The Court, therefore, finds that plaintiffs have failed to allege with sufficient particularity that KV and the Committee Defendants failed to provide complete and accurate information. As such, the Court will dismiss Count II of plaintiffs' amended complaint.

4. Plaintiffs' Failure to Monitor Claim (Count III)

In Count III, plaintiffs alleges that KV10 failed to monitor the investment fiduciaries Does 1-40. (Doc. #72, at 46, para. 177). "Under ERISA, fiduciaries who have appointed other fiduciaries have a continuing duty to monitor the actions of the appointed fiduciaries." In re Bausch & Lomb Inc. ERISA Litig., No. 06-CV-6297, 2008 WL 5234281, *10 (W.D.N.Y. Dec. 12, 2008) (citations omitted). "[T]he duty to monitor also includes a duty to take action upon discovery that appointed fiduciaries are not performing properly." Bausch & Lomb, 2008 WL 5234281, *10 (citation omitted). "Plaintiffs must allege facts that the (1) entity charged with the breach was responsible for appointing and removing fiduciaries responsible for fiduciary conduct in question; and (2) entity charged with this duty to monitor also had knowledge of or participated in fiduciary breaches by the appointees." Id.

Here, plaintiffs assert in Count II that KV had the authority to appoint Plan fiduciaries, and that KV failed to monitor the investment fiduciaries. (Doc. #72, at 46). Plaintiffs, however, also allege that KV actually "made no formal delegations of ERISA fiduciary responsibilities as Plan Administrator[.]" (Doc. #72, at 12, para. 41) (emphasis added). Although plaintiffs allege that KV was "responsible for ... appointing, monitoring, and ... removing Plan fiduciaries[,]" (Doc. #72, at 46, para. 176), the Court has already determined that plaintiffs' amended complaint fails to state claims against KV and the Committee Defendants for breach of their fiduciary duty of prudence, loyalty, and disclosure. The Court finds that plaintiffs have failed to plead sufficient facts to establish the second element of the Bausch & Lomb test. Thus, the Court concludes that plaintiffs have failed to state a claim for failure to monitor.

In Count III, plaintiffs also allege that KV is liable for the other defendants' breaches of their fiduciary duties under the doctrine of respondeat superior. (Doc. #72, at 47, para. 180). "However, as discussed above, because plaintiffs have not been able to establish a basis for fiduciary breach claims against [the Committee Defendants, KV] cannot vicariously be subject to liability which does not exist." Bausch & Lomb, 2008 WL 5234281, *11 (citation omitted).

In summary, the Court will dismiss Count III of plaintiffs' amended complaint.

5. Plaintiffs' Co-Fiduciary Claim (Count IV)

Section 1105 of ERISA provides:

29 U.S.C. § 1105(a). A "claim of co-fiduciary liability ... must co-exist with some breach by a fiduciary of their duties under ERISA." Bausch & Lomb, 2008 WL 5234281, *11.

In Count IV of their amended complaint, plaintiffs allege that KV and the Committee Defendants breached their co-fiduciary duties under § 1105(a). (Doc. #72, at 48). The Court has already determined that plaintiffs have failed to allege that KV and the Committee Defendants breached any of their fiduciary duties. Therefore, the Court will dismiss Count IV of plaintiffs' amended complaint. See Bausch & Lomb, 2008 WL 5234281, *11 (dismissing plaintiffs' co-fiduciary liability claim because "[p]laintiffs' complaint fail[ed] to set for an adequate claim that any of the fiduciaries breached their fiduciary duties under ERISA[.]") (citing (Avaya, 2006 WL 1084087, at *12); Johnson, 2009 WL 2137241, *24).

Accordingly,

IT IS HEREBY ORDERED that the motion of defendant David S. Hermelin to dismiss plaintiffs' consolidated amended complaint [Doc. #86] is granted.

IT IS FURTHER ORDERED that the motion of defendants Gerald R. Mitchell, KV Pharmaceutical Company, Melissa Hughes, and Mary Ann Tichner to dismiss plaintiffs' consolidated amended complaint [Doc. #88] is granted.

IT IS FURTHER ORDERED that the request of defendants Gerald R. Mitchell, KV Pharmaceutical Company, Melissa Hughes, and Mary Ann Tichner for an oral argument on their motion to dismiss plaintiffs' consolidated amended complaint [Doc. #90] is denied as moot.

IT IS FURTHER ORDERED that the motion of defendant Ronald J. Kanterman to dismiss plaintiffs' consolidated amended complaint [Doc. #91] is granted.

IT IS FURTHER ORDERED that the motion of defendant Richard H. Chibnall to dismiss plaintiffs' consolidated amended complaint [Doc. #93] is granted.

IT IS FURTHER ORDERED that the motion of defendant Marc S. Hermelin to dismiss plaintiffs' consolidated amended complaint [Doc. #94] is granted.

IT IS FURTHER ORDERED that defendant Marc S. Hermelin's request for an oral argument on his motion to dismiss plaintiffs' consolidated amended complaint [Doc. #96] is denied as moot.

IT IS FURTHER ORDERED that plaintiffs' motion for leave to file a second notice of supplemental authority [Doc. #123] is denied as moot.