# Brewer

> District Court, N.D. Oklahoma · December 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11216783

## Case

- **Full name:** Joseph Brewer, Joshua Chuck, and Jason Moody, individually and on behalf of all others similarly situated v. Alliance Coal, LLC, The Board of Directors of Alliance Resource Management GP, LLC, and The Administrative Committee of Alliance Resource Management GP, LLC, and John Does 1-30
- **Court:** District Court, N.D. Oklahoma
- **Decided:** December 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11216783

## How later opinions describe it (automated extraction)

- describing service codes as explanations for the types of services the recordkeeper provided

## Opinion text

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
JOSEPH BREWER, )
JOSHUA CHUCK, and )
JASON MOODY, )
individually and on behalf of all )
others similarly situated )
)
Plaintiffs, )
)
v. ) Case No. 24-CV-0406-CVE-SH
)
ALLIANCE COAL, LLC, )
THE BOARD OF DIRECTORS OF )
ALLIANCE RESOURCE MANAGEMENT )
GP, LLC, and THE ADMINISTRATIVE )
COMMITTEE OF ALLIANCE RESOURCE )
MANAGEMENT GP, LLC, and )
JOHN DOES 1-30, )
)
Defendants. )
OPINION AND ORDER
Plaintiffs Joseph Brewer, Joshua Chuck, and Jason Moody, individually and on behalf of all
others similarly situated, filed an amended class action complaint (Dkt. # 27), alleging that
defendants violated provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1001 et seq., by breaching their fiduciary duties of prudence and loyalty, as well as by
violating the anti-inurement provision and failing to monitor other fiduciaries. Plaintiffs’ claims
arise out of defendants’ administration of the Alliance Coal, LLC and Affiliates Profit Sharing and
Savings Plan (“the plan”), a defined contribution plan that provides qualified participants with
retirement benefits. Before the Court are defendants’ motion to dismiss plaintiffs’ amended
complaint (Dkt. # 28), plaintiffs’ memorandum and brief in opposition (Dkt. # 39), and defendants’
reply brief in support of their motion to dismiss (Dkt. # 41).1
I.

Alliance Coal, LLC (“Alliance”) is a coal mining company that also manufactures thermal
and metallurgic products like steel. Dkt. # 27, ¶ 19; Dkt. # 28, at 7. It employs approximately 5,000
people across the East Coast and Midwest, and its principal place of business is in Tulsa, Oklahoma.
Dkt. # 27, ¶ 19. As a benefit to its employees, Alliance offers a defined contribution employee
pension benefit plan, which is subject to regulation under ERISA. Id. ¶ 43; Dkt. # 28, at 7. Alliance
and defendant the Board of Directors of Alliance Resource Management GP, LLP (“the Board”) are
the plan sponsors, defendant the Administrative Committee of Alliance Resource Management GP,

LLP (“the Committee”) is the plan administrator, and collectively these entities are the plan’s
fiduciaries. Dkt. # 27, ¶¶ 19-29; Dkt. # 28, at 9 (citing Dkt. # 28-2, at 42). The plan is governed by
the plan document,2 which Alliance designed and drafted, and which sets out, inter alia, participants’

1 Defendants filed supplemental authorities (Dkt. ## 42, 45, 51, 56), and plaintiffs filed
supplemental authorities (Dkt. ## 47, 53), to which defendants responded (Dkt. ## 50, 55).
2 Plaintiffs’ amended complaint, Dkt. # 27, defendants’ motion to dismiss, Dkt. # 28,
plaintiffs’ response, Dkt. # 39, and defendants’ reply, Dkt. # 41, reference and cite to specific
provisions of the plan document, titled the Alliance Coal, LLC and Affiliates Profit Sharing and
Savings Plan, Effective as of January 1, 2015. Defendants state that they consider the document
incorporated by reference into plaintiffs’ amended complaint, Dkt. # 28, at 13, and attach a copy
of the document to their motion to dismiss, Dkt. # 28-2. In reviewing a motion under Federal
Rule of Civil Procedure 12(b)(6), a court is limited to considering the complaint, as well as
“documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); see also
Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Plaintiffs have incorporated by reference
the 2015 plan document, which forms the basis of their claims, and the Court will therefore
consider the document.
2
benefits and employer contribution rates. Dkt. # 28, at 2; Dkt. # 27, ¶ 20.
The plan fiduciaries hired INTRUST Bank, N.A. (“Intrust”)3 to serve as a recordkeeper,
providing recordkeeping and administrative (“RKA”) services typical of a defined contribution plan
and helping deliver plan benefits in accordance with the plan document. Id. ¶ 81; Dkt. # 39, at 11.

RKA services can be provided as a “bundle” of “standard services”—including transaction
processing, consulting services, document services, compliance support, accounting and auditing
services—or “à la carte”—meaning individual participants pay based on usage of individualized
services including loan processing, brokerage services, and distribution services. Dkt. # 27,
¶¶ 71-73. For standard, bundled services, RKA costs are often allocated on a per-participant basis,
which is “driven by the number of participants in a plan.” Id. ¶ 75. As a result, plaintiffs assert that
the greater the number of participants, the more the average cost per participant will decrease. Id.

¶¶ 75-76. For its work, Intrust is paid an RKA fee on a per-participant basis through direct charges
to plan participants’ individual accounts. Dkt. # 27, ¶ 75; Dkt. # 28, at 17.
Plaintiffs allege that between 2018 and 2023 participants paid, on average, $180.38 per
annum4 in RKA fees. Id. ¶ 100. Plaintiffs calculated this number using Alliance’s Form 5500s,
which are publicly available “Annual Return[s]/Report[s] of [an] Employee Benefit Plan” filed with
the Department of Labor and the Internal Revenue Service on a yearly basis to satisfy reporting
requirements under ERISA. Id. ¶¶ 112-13, 100 (citing Alliance’s Form 5500s from 2018 through
2023); Mator v. Wesco Dist., Inc., 102 F.4th 172, 181 (3d Cir. 2024). Plaintiffs used the Form 5500s

3 The company was formerly known as NestEgg Consulting, Inc. prior to its acquisition
by Intrust in 2014. Dkt. # 27, ¶ 81 n.13.
4 All RKA participant fees referenced herein are per annum.
3
to reach the $180.38 amount by adding the total common RKA fees coded and dividing by the total
number of plan participants. Dkt. # 27, ¶¶ 107, 112-13. Defendants dispute this amount, asserting
that Alliance’s fee agreements with Intrust show that between 2018 and 2023, the average fees
agreed to were between $20 and $30. Dkt. # 28, at 13 (citing Dkt. # 28-17, at 2; Dkt. # 28-18, at 2;

Dkt. # 28-19, at 2).5
According to plaintiffs, Intrust has served as a recordkeeper for fifty plans, and Alliance’s
is “by far the largest,” both “in terms of participants and assets under management.” Id. ¶¶ 82-83.
Intrust has “no experience providing services for a plan of this size,” and its relative inexperience
compared to the top recordkeepers “in the very highly competitive 401(k) service provider arena”
resulted in Alliance plan participants paying “higher RKA costs than participants of plans of similar
size and with more experienced recordkeepers.” Id. ¶¶ 87-88. Plaintiffs further argue that during

the period between 2018 and 2023, defendants failed to solicit a request for proposal (“RFP”) at
regular intervals from competitor recordkeepers, which would have led to more favorable RKA fee
rates. Id. ¶ 103. Plaintiffs compare Alliance’s RKA fees with those reported on Form 5500s of five
other defined contribution plans managed by more experienced recordkeepers (Prudential, Vanguard,
Empower, and T. Rowe Price) between 2018 and 2023. Id. ¶ 112. The comparator plans range in
participant numbers between 4,946 and 9,597, with between $348,255,387 and $1,030,902,759 in
assets during the period between 2018 and 2023, whereas Alliance had between 3,711 and 4,492

5 Plaintiffs argue that defendants impermissibly submitted the fee agreements as exhibits,
which defendants improperly “withheld from plaintiffs.” Dkt. # 39, at 14. Plaintiffs also argue
that defendants are asking the Court to accept as true the facts contained within the fee
agreements, drawing inferences in defendants’ favor. Id. at 15. The Court merely notes this
discrepancy and does not accept any of the facts contained in either set of documents as true. See
Tal v. Hogan, 453 F.3d 1244, 1264 (10th Cir. 2006).
4
participants, with between $448,329,582 and $570,487,347 in assets during the period between 2018
and 2023. Id.; id. ¶ 6. The comparator plans’ RKA fees range from $22 to $91 per participant, with
an average of $49 per participant. Id. ¶ 112.
During the period between 2018 and 2023, the plan had $500 million in assets that were

comprised of both contributions made by both participants and Alliance. Participants can elect to
contribute between 1% and 50% of their compensation. Dkt. # 27, ¶¶ 46-47. Alliance also makes
matching and nonmatching contributions, as well as supplemental and profit sharing contributions.
Id. ¶ 47; Dkt. # 28-2, at 25-29. All employee contributions and employer matching contributions
vest immediately; by contrast, employer nonmatching, supplemental, and profit sharing contributions
vest after three years of employment. Id. ¶¶ 51-53. If a participant terminates employment before
three years of service, those employer nonmatching, supplemental, and profit sharing contributions

are treated as a forfeiture. Id. ¶ 54; Dkt. # 28-2, at 37-38. Likewise, if a payment is made to a
participant or beneficiary but that person cannot be located after two years and reasonable search,
that payment is also treated as a forfeiture. Dkt. # 27, ¶ 55; Dkt. # 28-2, at 41. By the plan’s terms,
“the Committee may use forfeitures to ‘pay Plan expenses or reduce Employer contributions, at the
discretion of the Company.’” Dkt. # 27, ¶ 57 (quoting Dkt. # 28-2, at 38). Plaintiffs argue that these
terms are further defined by a 2022 auditor’s report attached to the Form 5500, which states that
“[f]orfeitures are first used to restore participant balances previously forfeited, then may be used to
pay Plan administrative expenses, and lastly to reduce Employer contribution.” Id. (quoting Dkt. #

5
28-8, at 31). The forfeitures were used by the plan administrator to both reduce Alliance’s
contribution obligations and defray some of the RKA expenses.6 Plaintiffs allege that between 2018
and 2023, defendants failed to defray reasonable administrative expenses by using forfeited funds
to reduce company contributions to the plan instead of using those funds to either reduce or eliminate

RKA fees. Id. ¶ 9.
Plaintiffs raise four claims in their amended complaint. First, plaintiffs assert that the
Committee breached its fiduciary duty of prudence by failing to control the plan’s RKA costs, as
well as by failing to use forfeitures to defray RKA costs, in lieu of using them to reduce employer
contributions. Id. ¶¶ 131-37. Second, plaintiffs claim that Alliance, the Committee, and the Board,
breached their fiduciary duty of loyalty “by utilizing forfeited funds for the benefit of the Company
instead of the sole interest of the Plan participants and beneficiaries,” when they used forfeited funds

to reduce employer contributions instead of defraying participants’ RKA costs. Id. ¶¶ 138-46. Third,
plaintiffs contend that Alliance and the Board breached ERISA’s anti-inurement provision by using
the forfeited funds to defray the company’s contribution to the plan instead of reducing participant
RKA costs. Id. ¶¶ 147-52. Finally, plaintiffs claim that defendants Alliance and the Board failed
to adequately monitor other fiduciaries, failing to ensure that the Committee had adequate

6 In practice, it appears that defendants divided forfeitures between paying administrative
expenses and reducing employer contributions. For example, a 2023 auditor’s report that
plaintiffs rely on, and is attached to the Form 5500, states that $168,484 in forfeitures was used
to pay administrative expenses, whereas $450,886 in forfeitures was used to reduce employer
contributions. Dkt. # 28-9, at 32. In 2021, $390,967 was used to pay administrative expenses,
and $521,968 was used to reduce employer contributions. Dkt. # 28-7, at 31. In 2020, $299,193
was used to pay administrative expenses, and $582,745 was used to reduce employer
contributions. Dkt. # 28-6, at 32. In 2019, $386,510 was used to pay administrative expenses,
and $328,651 was used to reduce employer contributions. Dkt. # 28-5, at 30. Finally, in 2018,
$328,651 was used to pay administrative expenses, and $1,224 was used to reduce employer
contributions. Dkt. # 28-4, at 30-31; see also Dkt. # 27, ¶ 127.
6
qualifications and experience, were reporting to the Board regularly, and had sufficient financial
resources and information. Id. ¶¶153-59. The parties agree that the failure to monitor claim is
derivative of the underlying breaches. Dkt. # 39, at 32; Dkt. # 28, at 29.
Defendants move for dismissal (Dkt. # 28) under Federal Rule of Civil Procedure 12(b)(6),

asserting that plaintiffs fail to raise any inference of imprudence under ERISA with respect to the
claim related to RKA fees. Specifically, they assert that the four comparator plans do not provide
the “meaningful benchmark” required to state a claim regarding RKA services. Id., at 10-19.
Defendants also move to dismiss plaintiffs’ forfeiture claims, arguing that they followed the plan’s
terms in using forfeitures to defray administrative costs and employer contributions and that the
plan’s terms in no way violated ERISA. Id. at 19-28. Finally, they assert that because plaintiffs’
failure to monitor claim is derivative and plaintiffs fail to state a claim on the underlying grounds,

it must also be dismissed. Id. at 29. Plaintiffs responded, Dkt. # 39, defendants replied, Dkt. # 41,
and the motion is now ripe for review.
II.
When a party moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must
determine whether the claimant has stated a claim upon which relief can be granted. To survive a
motion under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Tenth Circuit
has interpreted the plausibility requirement to mean that if the allegations contained in a complaint

“are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs
‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Okla. ex.
rel. Dep’t of Hum. Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at
7
570). The allegations must also “be enough that, if assumed to be true, the plaintiff plausibly (not
just speculatively) has a claim to relief.” Id. (citing Twombly, 550 U.S. at 555-56). Put differently,
for a claim to survive a Rule 12(b)(6) motion, there must be “more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “‘mere
labels and conclusions’ and ‘a formulaic recitation of the elements of a cause of action’ will not
suffice; a plaintiff must offer specific factual allegations to support each claim.” Kan. Penn.
Gaming, LLC v, Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at 555);
see also Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976) (“A motion to dismiss under Fed.
Rules Civ. Proc., rule 12(b)(6) admits all well-pleaded facts in the complaint as distinguished from
conclusory allegations.”).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient
to state a claim for which relief may be granted.” Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.
2006) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999)). The facts alleged “must be enough to raise a right to relief above the speculative level on
the assumption that all of the complaint’s allegations are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citation omitted) (citing 5 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1216 (3d ed. 2004)). For the purposes of making a dismissal determination, a court must accept
as true all well-pleaded allegations in the complaint and construe the allegations in the light most
favorable to the claimant. Iqbal, 556 U.S. at 678-79.

III.
As a statute, ERISA does not require employers to offer employee benefit plans, but rather
for those employers that choose to sponsor benefit plans, it imposes certain duties on those employers
as fiduciaries. Lockheed Corp. v. Sprink, 517 U.S. 882, 887 (1996); see also Beuscher v. North Am.

Lighting, Inc., No. 24-CV-2076, 2025 WL 1927503, at *4-5 (C.D. Ill. June 30, 2025). Although
ERISA guarantees that an employer administering a benefits plan will abide by the duties of prudence
and loyalty, among others, exactly how those duties must be discharged depends on the
circumstances. Hughes v. Northwestern Univ., 595 U.S. 170, 172 (quoting 29 U.S.C.
§ 1104(a)(1)(B)); Matney v. Barrick Gold of North Am., 80 F.4th 1136, 1146 (10th Cir. 2023).
Plaintiffs assert four claims against defendants as fiduciaries that derive from (1) alleged failure to
control the plan’s RKA costs and (2) using forfeited funds to defray the company’s contribution to

the plan before reducing participant RKA fees. Dkt. # 27, ¶¶ 131-59.
The threshold question, which must be answered before addressing either of the alleged
actions from which plaintiffs’ claims stem, is whether plaintiffs sufficiently allege that defendants
acted as fiduciaries. Pegram v. Hedrich, 530 U.S. 211, 226 (2000). Examining first the “text of
ERISA’s definition of fiduciary,” Lockheed Corp., 517 U.S. at 890, ERISA provides that a person
is a fiduciary to the extent that 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 asserts,” he “renders investment advice for a fee or other compensation . . . or has

authority to do so,” or he “has any discretionary authority or discretionary responsibility in the
administration of such plan,” 29 U.S.C. § 1002(21)(A). Plaintiffs have alleged that defendants,
Alliance, the Board, the Committee, and John Does, who were officers, employees, or contractors
9
acting in a fiduciary capacity, exercised discretionary authority or had a duty to monitor the actions
of another defendant during the period at issue. Dkt. # 27, ¶¶ 20, 24, 27, 29. Defendants do not
contest that they acted as fiduciaries. See also Dkt. # 28, at 9 (describing Alliance as having
“delegated fiduciary the responsibilities of administering the Plan, including monitoring the Plan’s

fees and service providers, to the Committee”). Courts addressing similar claims have routinely
found that both managing RKA fees and allocating forfeitures amount to fiduciary functions. See,
e.g., Hutchins v. HP Inc., 737 F. Supp. 3d 851, 860 (N.D. Cal. 2025), ; Rodriguez v. Intuit Inc., 744
F. Supp. 3d 935, 942-43 (N.D. Cal. 2024); McManus v. Clorox Co., No. 23-CV-05325, 2024 WL
4944363, at *4 (N.D. Cal. Nov. 1, 2024); Madrigal v. Kaiser Found. Health Plan, Inc., No. 24-CV-
05191, 2025 WL 1299002, at *4 (C.D. Cal. May 2, 2025). Plaintiffs have adequately alleged that
defendants were acting as fiduciaries in both managing the RKA fees associated with the plan and

deciding how to allocate forfeitures. The Court now turns to whether plaintiffs have alleged sufficient
facts to state claims with regard to the management of RKA fees and the decision to allocate
forfeitures.
A. Recordkeeping and Administrative (“RKA”) Fees (Breach of Duty of Prudence)
Plaintiffs have asserted that the Committee breached is fiduciary duty of prudence by failing
to control the plan’s RKA fees. ERISA contemplates the likelihood that a fiduciary administering
a plan will be faced with “difficult tradeoffs”; therefore, a court analyzing that fiduciary’s choices
with respect to the duty of prudence “must engage in ‘careful, context-sensitive scrutiny of a

complaint’s allegations’ in order to ‘divine the plausible sheep from the meritless goats.’” Matney,
80 F.4th at 1146 (quoting Fifth Third Bankcorp v. Dudenhoeffer, 573 U.S. 409, 425 (2014)). In these
cases, a court is tasked with determining whether plaintiffs have raised an inference of imprudence
10
by alleging “a sound basis for comparison—a meaningful benchmark” by which to compare the
defendant to a prudent fiduciary. Id. at 1147 (citing Meiners v. Wells Fargo & Co., 898 F.3d 820, 822
(8th Cir. 2018)). When a price disparity is alleged between the plan at issue and comparator plans,
the Tenth Circuit has declared “there is no doubt a claim for breach of ERISA’s duty of prudence can

be based on allegations that the fees associated with the defined-contribution plan are too high
compared to available, cheaper options.” Id. at 1148. But those cost comparators are only
“meaningful” in the specific context, when relevant comparisons that are supported by facts alleged
allow a court to draw an inference of imprudence. Id. at 1148-49. In other words, plaintiff must
allege sufficient facts for a court to find it to be “an apples-to-apples comparison.” Id.
Plaintiffs have alleged that the five plans it provides as comparators, with “similar assets and
participants,” confirm that “Intrust’s RKA fees were excessively high given its lack of experience

recordkeeping for large plans and not because of any other reason, such as the type of services it
provided the Plan.” Dkt. # 27, ¶¶ 113-14. Plaintiffs support their claim with the assertion that “it
would be inexplicable to say the services provided to the Plan by Intrust were 3½ times more valuable
than services provided to similarly sized plans by more experienced recordkeepers than Intrust.” Id.
¶ 114. Missing from plaintiffs’ amended complaint are any factual allegations supporting the
conclusion that the types of services provided could not account for the discrepancy in fees. In
Matney, the Tenth Circuit gave examples of factual allegations that might provide support for such
a conclusion, such as that “the alternative investment options have similar investment strategies,

similar investment objectives, or similar risk profiles to the plan’s funds.” 80 F.4th at 1148 (citing
Smith v. CommonSpirit Health, 37 F.4th 1160, 1167 (6th Cir. 2022); Meiners, 898 F.3d at 823).
There the court also made plain that there is no one way for plaintiffs to allege a meaningful
11
benchmark, as context will necessarily dictate the “content of the duty of prudence.” Id. Yet,
plaintiffs must still allege sufficient facts to show “that the recordkeeping services rendered by the
chosen comparators are similar to the services offered by the plaintiff’s plan.” Id. at 1149 (citing
Smith, 37 F.4th at 1169; Matousek v. MidAmerican Energy Co., 51 F.4th 274, 279 (8th Cir. 2022)).

Here, plaintiffs allege that the comparator recordkeepers “are capable of providing the same quality
of service and they must do so to succeed in the very highly competitive 401(k) service provider
arena,” but plaintiffs fail to allege that the comparator plans actually did provide the same quality or
even the same type of service as Intrust.
Plaintiffs offer a conclusion without the requisite factual basis that the types of services
provided could not have accounted for the difference in comparators’ fees. The Sixth Circuit in
England v. DENSO International America, Inc., 136 F.4th 632 (6th Cir. 2025), affirmed a district

court’s dismissal of a similar claim, in which plaintiffs alleged that “the disparity between the Plan’s
recordkeeping fee, and the fee paid by several other similarly sized plans for the same standard bundle
of RKA services, cannot be explained by any additional services or the quality of those services,
provided by [the recordkeeper] to the Plan.” Id. at 635. The court concluded that “nothing in
plaintiffs’ complaint permits [the court] to reasonably infer a breach of the duty of prudence,” as the
complaint “provides no details about the specific types of services that the comparator plans received
relative to those the DENSO plan received.” Id. at 637. Notably, plaintiffs admitted that the
comparators provided different levels and qualities of RKA services;7 however, the court made its

7 There, the court noted two traits that undermined the finding that the comparator plans
created a meaningful benchmark: first, the RKA fees charged varied “considerably” from $25 to
$39, and second, the assets managed ranged from $107,625,510 to over $1 billion. England, 136
F.4th at 637.
12
finding based on plaintiffs’ failure to “demonstrate a meaningful benchmark,” which left the court
“unable to evaluate ‘whether [the] fee [was] excessive under the circumstances.” Id. (quoting Smith,
37 F.4th at 1169) (first alteration in original). Here, plaintiffs assert that the RKA fees were high
because of Intrust’s lack of experience and allege that the RKA fees could not have been high for any
other reason, including differences in the type of services provided. Dkt. # 27,9114. Without any
context for the types of services provided by the comparator plans or by Intrust, the Court is left in
the same position as the court in England, unable to discern whether the comparator fees demonstrate
a meaningful benchmark in the given context.
As defendants point out, several courts, including the Tenth Circuit, have rejected the theory
that all recordkeeping services are fungible and thus all plans inherently offer the same quality and
type of service. Dkt. # 28, at 12 (citing Matney, 80 F.4th at 1148-49; Barrett v. O’Reilley Auto., Inc.,
112 F.4th 1135 (8th Cir. 2024); Singh v. Deloitte LLP, 123 F.4th 88 (2d Cir. 2024)). In Singh, the
Second Circuit held that plaintiffs had not “draw[n] ‘apple-to-apple’ comparisons even when relying
on disclosure documents filed by the Plan and its alleged comparators.” 123 F.4th at 95. There,
plaintiffs asserted that “‘[t]he services chosen by a large plan do not affect the amount charged by
recordkeepers for [the] basic and fungible services’ that constitute ‘essential recordkeeping services
provided by all national recordkeepers for large plans with substantial bargaining power.” Id. at
94-95. The court found this assertion to be undermined by the fact that the complaint’s allegations
reflected “a range of recordkeeping fees even among the six large comparator plans, belying the
implication that the allegation of a cost disparity alone, without some more consideration of the
surrounding context, categorically suggests imprudence.” Id. at 95 (citing Matney, 80 F.4th at 1148).
The Eight Circuit in Barrett used more vivid imagery to depict the same idea. Discussing the

13

comparison of bundled plans to à la carte RKA services, it stated: “It would be like trying to compare
the costs of two otherwise identical grocery baskets, except one contains filet mignon and the other
does not. We would expect the one with the steak to cost more, and the same goes for a plan that
offers additional individualized services.” 112 F.4th at 1139. Plaintiffs distinguish between the

bundled and à la carte services provided by “all national recordkeepers,” but they refer to the bundled
services provided as “basic and fungible.” Dkt. # 27, ¶¶ 71-74. But like the plaintiffs in Singh, the
plaintiffs here assert that “the level, number and character of participant services provided by a record
keeper have minimal impact upon the costs of providing record keeping.” Id. ¶ 76. Plaintiffs attribute
the universality of RKA fees to the fact that the scale of “building and maintaining a robust, intuitive,
web-based participant interactive 401(k) account system incurs large, fixed costs,” which are not
materially impacted by adding additional plan participants. Id. Although application of the duty of

prudence remains context-specific, it is evident that plaintiffs cannot meet their burden by simply
alleging that all RKA services are fungible and therefore the fact that comparator plans have lower
RKA fees amounts to a breach of the fiduciary duty of prudence.
Plaintiffs argue that they specified and compared similar services provided based on the way
they calculated the RKA fees for comparator plans. Specifically, plaintiffs used codes found in the
comparator plans’ Form 5500s, which they allege “indicat[e] the type of general services performed
by the recordkeeper.” Dkt. # 27, ¶¶ 100, 107; see also Matousek, 51 F.4th at 279 (describing service
codes as explanations for the types of services the recordkeeper provided). Those codes use

descriptions such as “15 - Recordkeeping and information management (computing, tabulating, data
processing, etc.); 37 - Participant loan processing; 50 - Direct payment from the plan; 63 -
Distribution (12b-1) fees; 64 - Recordkeeping fees.” Id. ¶ 100 (quoting DEP’T OF TREASURY,
14
INTERNAL REVENUE SERV., INSTRUCTIONS FOR FORM 5500 ANNUAL RETURN/REPORT OF EMPLOYEE
BENEFIT PLAN 30 (2023)). Although these codes itemize the “service/compensation” offered by the
recordkeeper in general categories, defendants correctly point out that “every plan has different
services” coded. Dkt. # 28, at 15. Another court has found that disparities in service/compensation
codes for comparator RKA fees “are not fatal to [a plaintiff's] imprudence claim,” but it also noted
that those disparities may make bare “the implausibility of [p]laintiffs’ allegations that the RKA
services the [defendants’ ] [p]lan received are necessarily equivalent to those received by their alleged
comparator plans.” Dukes v. AmerisourceBergen Co., No. 23-CV-00313, 2024 WL 4282309, at *6
(W.D. Ky. Sep. 24, 2024). Inconsistent service codes also appear fatal to plaintiffs’ comparator
arguments in Barrett, in which the court held that simply asserting “without further explanation, that
‘the service codes from the... Form 5500 show[] that the plan received the same type of service as
the comparator plans,” is “conclusory” and fails to meet the pleading standard required of a motion
to dismiss under Rule 12(b)(6). 112 F.4th at 1140. The court there did, however, acknowledge that
in that case if there had “been allegations that ‘the services purchased were sufficiently similar to
render the comparisons valid,’ it might have ‘nudged their claim[] across the line from conceivable
to plausible.” Id, (citations omitted) (first quoting Mator, 102 F.4th at 188, then quoting Twombly,
550 U.S. at 570).
In Schuster v. Swinerton Inc., No. 24-CV-04970, 2025 WL 1069887, at *4 (N.D. Cal. April
8, 2025), the court found that despite discrepancies in comparator plans’ codes, plaintiffs sufficiently
alleged that the services overlapped. There, the court distinguished Singh and found that plaintiffs
sufficiently alleged that the defendants’ RKA services were “comparable to that provided by” the
comparator plans. Id. at *5; see also Ramseur v. Lifepoint Health, Inc., No. 24-CV-00994, 2025 WL

15

2619151, at *3 (M.D. Tenn. Sep. 10, 2025) (finding that plaintiffs plausibly stated their claim given
that they used comparators with different but overlapping Form 5500 service codes and that plaintiffs
alleged that the defendant “and comparator plans were receiving similar services”); Stewart v.
Nextera Energy, Inc., No. 23-CV-81314, 2025 WL 3098085, at *8 (S.D. Fl. Aug. 14, 2025) (finding

that plaintiffs sufficiently alleged that comparator plans provided similar services given the allegation
that the comparators “received at least the same services as the Plan here”). Here, plaintiffs allege
that the comparator recordkeepers are “capable of providing the same quality of service,” that many
report on Form 5500s using the same service codes, and even that their bundled services offered were
both fungible and “routine.” Dkt. # 27, ¶¶ 87, 100, 72. Plaintiffs do not, however, allege that the
comparator recordkeepers in fact provided the same or even similar services to their respective plans
during the years at issue.

Plaintiffs also claim that Intrust’s relative inexperience as a recordkeeper as compared to the
top ten recordkeepers led to increased RKA costs. Id. ¶¶ 21, 86-88, 101. Plaintiffs acknowledge that
“it may not be per se imprudent for a plan to select a recordkeeper with no experience with a plan of
this size.” Id. ¶ 101. Plaintiffs advance the theory that“recordkeeping expenses are driven by the
number of participants in a plan,” and a fiduciary administering a plan with a large number of
participants has a duty to “take advantage of economies of scale by negotiating a lower per-participant
recordkeeping fee.” Id. ¶¶ 75 (citing a ECONOMIC SYSTEMS, INC., DEP’T OF LABOR, PENSION &
WELFARE BENEFITS ADMINISTRATION, STUDY OF 401(K) PLAN FEES AND EXPENSES (1998)). By

extension, a fiduciary seeking to “take[] advantage of its economies of scale to get the best possible
record-keeping fees” would be unable to do so “when it utilized a recordkeeper with such limited
experience with large plans.” Id. ¶ 101. In practice, this means that recordkeepers with experience
16
have already built and already maintain the infrastructure necessary to manage a large plan, which
means not only are the fixed costs allocated over the large participant base lower, but also adding new
participants to the plan adds only marginal costs. Id. ¶¶ 75, 76. Defendants counter that plaintiffs cite
to no requirement that a fiduciary must “select a popular service provider.” Dkt. # 28, at 18. The

Court agrees with defendants that the choice to engage a recordkeeper with relatively less experience
than the top ten services does not, in itself, constitute imprudence. As to plaintiffs’ theory regarding
the fixed costs associated with engaging recordkeepers with less experience in managing large plans,
the Court finds plaintiffs’ theory to be too attenuated for it to raise an inference of imprudence.
Finally, plaintiffs fail to move their prudence claim “from possibility to plausibility” by
alleging that because defendants failed to complete an RFP at reasonable intervals, defendants acted
imprudently. Dkt. # 27, ¶¶ 90-93. Plaintiffs allege that “at least every three to five years as a matter

of course” defendants should have solicited RFPs from competing recordkeepers in order to fulfill
its duty to beneficiaries. Id. ¶ 91. Although plaintiffs “do not have actual knowledge of the specifics
of [d]efendants’ decision-making process with respect to the plan,” they imply that no RFP was
conducted between 2018 and 2023. Id. ¶¶ 97-98. As defendant underscores, in Matney the Tenth
Circuit considered this very argument and rejected the notion that, in that case, “[s]imply alleging the
Committee needed to conduct regular RFPs does not raise a plausible inference of imprudence.” 80
F.4th at 1156. The Supreme Court in Dudenhoeffer stressed that, for a court determining the duty of
prudence, “the appropriate inquiry will necessarily be context specific,” 527 U.S. at 425; therefore,

Matney is limited to the context in which that case was decided on this point. Moreover, defendants
in Matney alleged that they renegotiated their RKA fees three times in five years, securing a reduction
in fees each time. Matney, 80 F.4th at 1157. In this case, plaintiffs fail to show how the failure to
17
conduct an RFP amounts to imprudence. According to plaintiffs’ own allegations, the RKA fees it
alleges participants paid decreased over time, going down by $29.10 between 2021 and 2022, and by
$80.89 between 2022 and 2023. Dkt. # 27, ¶ 112. Although a decrease in RKA fees is not dispositive
of defendants’ fulfilling their duty of prudence, plaintiffs’ allegation that defendants’ failure to solicit

proposals to secure lower fees is unavailing.
At bottom, plaintiffs’ claim for breach of the Committee’s fiduciary duty of prudence with
respect to RKA fees fails the “context-specific scrutiny of a complaint’s allegations” that the Court
must undertake when analyzing a motion to dismiss. Dudenhoeffer, 573 U.S. at 425. The facts, as
alleged, do not implicate imprudence on the Committee’s part. The Court is therefore left unable to
infer that, given the alleged facts, defendants were imprudent in managing account fees. Defendants’
motion to dismiss plaintiffs’ claim as to the Committee’s breach of the fiduciary duty of prudence

with respect to controlling the plan’s RKA costs should therefore be granted.
B. Allocation of Forfeitures (Breach of Duties of Prudence and Loyalty and
ERISA’s Anti-Inurement Provision)
Plaintiffs assert claims for breaches of the fiduciary duties of prudence and loyalty as well as
ERISA’s anti-inurement provision because defendants used forfeited funds to defray their own
contributions to the plan before using those funds to reduce participant RKA costs. Under ERISA,

18
the 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).2. ERISA further mandates that fiduciaries act “in
accordance with the documents and instructions governing the plan insofar as such documents and
instruments are consistent with the provisions of this subchapter.” Id. § 1104 (a)(1)(D). Inherent
within the fiduciary duties of loyalty and prudence is a potential for tension between acting in the sole
interest of plan participants and acting in accordance with plan documents. In those instances, courts
have found that the duty to act in accordance with plan documents must yield to the duty to act in the
sole interest of the participants and the duty to act prudently. Dudenhoeffer, 573 U.S. at 422 (“[T]rust
documents cannot excuse trustees from their duties under ERISA.” (quoting Central States, Se. & Sw.
Areas Pension Fund v. Cent. Transp. Inc., 472 U.S. 559, 568 (1985)); Eaves v. Penn, 587 F.2d 453,
459 (10th Cir. 1978); Wright v. Or. Metallurgical Corp., 360 F.3d 1090, 1100 (9th Cir. 2004)
(“ERISA requires fiduciaries to comply with a plan as written unless it is inconsistent with ERISA.”);
McManus, 2024 WL 4944363, at *6 (“While plans under ERISA cannot serve as a shield in cases

* Courts analyzing alleged breaches of the fiduciary duties of loyalty and prudence,
arising out of a fiduciary prioritizing using forfeited funds to reduce matching contributions over
defraying RKA fees, frequently analyze these two duties together. See, e.g., Hutchins, 737 F.
Supp. 3d at 862; Middleton v. Amentum Parent Holdings, LLC, No. 23-CV-2456, 2025 WL
2229959, at *14 (D. Kan. Aug. 5, 2025); McManus v. Clorox Co., No. 24-CV-5425, 2024 WL
4944363, at *6 (N.D. Cal. Nov. 1, 2024); Cain v. Siemens Corp., No. 24-CV-08730, 2025 WL
2172684, at *3-5 (D.N.J. July 31, 2025); Wright v. JPMorgan Chase & Co., No. 25-CV-00525,
2025 WL 1683642, at *3-5 (C.D. Cal. June 13, 2025); Sievert v. Knight-Swift, 780 F. Supp. 3d
870, 876-79 (D. Az. 2025); Barragan v. Honeywell, No. 24-CV-04529, 2025 WL 5165330, at
*4-5 (D.N.J. Dec. 10, 2024). Although the duties of loyalty and prudence are distinct,
compare 29 U.S.C. § 1104(a)(1)(A), with id. § 1104(a)(1)(B), courts have often paired their
analyses of these claims because they reach their determinations on substantially similar bases.
See supra. Similarly, the Court analyzes the claims together to avoid repetition.
19

where administrators violate ERISA’s terms, the purpose of the statute is to “protect contractually
defined benefits’ and to assure ‘reliance on the face of written plan documents.’” (quoting U.S.
Airways, Inc. v. McCutchen, 569 U.S. 88, 101 (2013))).
Both parties agree that the plan documents authorize defendants to allocate forfeitures to
reduce employer contributions. Dkt. #27, J] 56-57; Dkt. # 28, at 20-22. The germane language of
the plan is permissive, in that “the Committee may use forfeitures to ‘pay Plan expenses or reduce
Employer contributions, at the discretion of the Company.” Dkt. # 27, § 57 (emphasis added)
(quoting Dkt. # 28-2, at 38). Plaintiffs add a gloss to this language, however, by reading the text of
a 2022 auditor’s report attached to a Form 5500 into the plan documents, which requires forfeitures
to first be used to defray RKA fees and then to be used to offset defendants’ own contributions. Dkt.
# 27,9157. They do not view the auditor’s report as a document that must trump the plan document,
but rather they use it to “demonstrate[] [d]efendants’ official commitment to exercise their discretion
in a way that best adheres to their fiduciary duties of loyalty and prudence.” Dkt. #39, at 24. In other
words, plaintiffs agree that the plan documents permit the use of forfeiture funds to defray employer
contributions. But plaintiffs contend that in using forfeitures to pay their own contributions before
paying RKA fees, defendants are in violation of ERISA’s duties of prudence and loyalty.
Plaintiff's theory on this point is not novel. “[A] growing number of district court decisions”
have already considered and rejected plaintiffs’ theory of liability under ERISA. See, e.g., Cain v.
Siemens Corp., No. 24-CV-08730, 2025 WL 2172684, at *4 (D.N.J. July 31, 2025); Barragan v.
Honeywell, No. 24-CV-04529, 2025 WL 5165330, at *4-5 (D.N.J. Dec. 10, 2024); Hutchins, 737 F.
Supp. 3d at 862; Wright v. JPMorgan Chase & Co., No. 25-CV-00525, 2025 WL 1683642, at *5
(C.D. Cal. June 13, 2025); Dimou v. Thermo Fischer Sci. Inc., No. 23-CV-1732, 2025 WL 2611240,

20

at *9 (S.D. Cal. Sep. 9, 2025); Bozzini v. Ferguson Enters. LLC, No. 22-CV-5667, 2025 WL
1547617, at *2 (N.D. Cal. May 29, 2025); Madrigal, 2025 WL 1299002, at *4-5; Sievert □□□
Knight-Swift, 780 F. Supp. 3d 870, 877-78 (D. Az. 2025); McWashington v. Nordstrom, No. 24-CV-
1230, 2025 WL 1736765, at *13-15 (W.D. Wash. June 23, 2025); Estay v. Ochsner Clinic Found.,
No. 25-CV-00507, 2025 WL 2644782, at *4-5 (Sep. 15, 2025); Armenta v, WillScot Mobile Mini
Holdings Co., No. 25-CV-00407, 2025 WL 2645518, at *4-5 (D. Az. Sep. 15, 2025); Middleton v.
Amentum Parent Holdings, LLC, No. 23-CV-2456, 2025 WL 2229959, at *11-17 (D. Kan. Aug. 5,
2025). Courts have repeatedly held that ERISA permits the use of forfeiture funds for employer
contribution matching. However, a small minority of courts have found that when a plan’s terms
permitted the fiduciary discretion and it chose to reduce its own non-elective contributions instead
of defraying plan fees, it violated the duties of loyalty and prudence. McManus, 2025 WL 732087,
at *3; Perez-Cruet v. Qualcomm Inc., No. 23-CV-1890, 2024 WL 2702207, at *1 (S.D. Cal. May 24,
2024); Rodriguez, 744 F. Supp. 3d at 944.
Plaintiffs’ theory suffers from several infirmities that other courts have enumerated. First, the
court in Hutchins characterized plaintiffs theory, that as a matter of law fiduciaries breach the duties
of loyalty and prudence when they use forfeitures to reduce their own contributions prior to RKA fees,
as “in tension with the Supreme Court’s analysis in Dudenhoeffer.” 737 F. Supp. 3d at 862. Whereas
Dudenhoeffer “emphasizes that the plausibility of allegations of breach of fiduciary duty should
consider the context and circumstances of the fiduciary’s actions,” plaintiff's theory “would require
any fiduciary to use forfeited amounts to pay administrative costs regardless of any such context or
circumstances.” Id.; see also Wright, 2025 WL 168642, at *5. The breadth of plaintiffs’ argument
is therefore implausible in light of binding Supreme Court precedent.

21

Next, plaintiffs’ theory seeks to impose liability that goes beyond ERISA’s statutory
framework. Again, in Hutchins the court found that “ERISA does not mandate what benefits an
employer must provide under a plan and does no more than protect the benefits which are due to an
employee under a plan.” 737 F. Supp. 3d at 863. It concluded that the plaintiff's interpretation of
ERISA was so broad that it was tantamount to asking the court to create a benefit in the form of
defrayed administrative costs. Id. Yet, courts agree that ERISA creates no duty for a fiduciary to
maximize profits or benefits, only a duty to ensure that participants receive the benefits promised to
them. See, e.g., id.; Estay, 2025 WL 2644782, at *4; Wright, 360 F.3d at 1100.
Finally, plaintiffs’ theory would disturb decades of policy built on Congress’s and the
Department of the Treasury’s understanding that ERISA permits plan administrators to use forfeitures
to reduce their contributions before defraying RKA fees. See, e.g., Hutchins, 737 F. Supp. 3d at
861-64; Cain, 2025 WL 2172684, at *5; Dimou, 2024 WL 4508450, at *9; McManus, 2024 WL
4944363, at *6. For example, Treasury has proposed new regulations to clarify that under ERISA,
the practice is permitted. McManus, 2024 WL 4944363, at *6 (citing Use of Forfeitures in Qualified
Retirement Plans, 88 Fed. Reg. 12283 (proposed Feb. 27, 2023)). But see Perez-Cruet, 2024 WL
2702207, at *7 (underscoring that the regulation is merely a proposal and does not carry the force of
law, bearing little on whether plaintiffs claim is plausible). From the Secretary of Labor’s
perspective, by requiring fiduciaries to allocate funds in this way, the boundaries between settlor and
fiduciary may become blurred, such that the fiduciary impermissibly impedes on the settlor’s
functions to increase or allot contributions. Brief for the U.S. Secretary of Labor as Amicus Curiae
Supporting Defendant Appellee at 18, Hutchins v. HP Inc., No. 23-CV-5875 (9th Cir. July 9, 2025).

22

Even if the Court considers plaintiffs’ assertions at face value, they fail to meet the pleading
standard necessary to overcome the motion to dismiss. As discussed, several courts have found that
allocating forfeitures to employer contributions violates the duties ERISA imposes on fiduciaries.
In analyzing whether a decision was made with a conflict of interest, a court should consider the

motivation for the fiduciary’s decision. McManus, 2025 WL 732087, at *3; Lauderdale v. NFP Ret.,
Inc., No. 21-CV-00301, 2024 WL 751005, at *23 (C.D. Cal. Feb. 23, 2024) (“When assessing
whether a fiduciary has complied with ERISA’s duty of loyalty, what matters is why the defendant
acted as he did.” (emphasis in original)). Likewise, in determining whether a decision was made
prudently, a court should examine the “thoroughness of the investigation into the merits of the
transaction.” McManus, 2025 WL 732087, at *3 (quoting Tibble v. Edison Int’l, 843 F.3d 1187, 1197
(9th Cir. 2016)). In McManus, the court acknowledged that, although plaintiff’s factual allegations

were sparse—such as failing to undertake investigations as to best options for the plan or failing to
consult with an independent non-conflicted decision-maker—they were sufficient to meet the Rule
12(b)(6) standard with respect to both “motivation for loyalty claims and the thoroughness of an
investigation for prudence claims.” 2025 WL 732087, at *4. Here, however, plaintiffs allege that the
forfeitures were used to both reduce Alliance’s contributions and the RKA fees, that defendants
placed their interests above those of the plan and participants, and that as a result the plan incurred
expenses it would not have otherwise. Dkt. # 27, ¶¶ 120-30. As with plaintiffs’ claims related to the
RKA fees, plaintiffs neglect to allege anything beyond a bald conclusion. Under the Rule 12(b)(6)

pleading standard established by Twombly, the Court cannot accept “mere labels and conclusions”
without “specific factual allegations to support each claim.” Twombly, 550 U.S. at 555; Kan. Penn.,
565 F.3d at 1214. The Court cannot conclude that defendants breached either the fiduciary duty of
23
prudence or the fiduciary duty of loyalty by utilizing forfeited funds for reducing employer
contributions before defraying all RKA costs. Defendants’ motion to dismiss these claims should be
granted.
Plaintiffs also raise a claim related to forfeitures under ERISA’s anti-inurement provision,
which states that “the assets of a pension shall never inure to the benefit of any employer and shall
be held for the exclusive purposes of providing benefits to the participants in the plan and their
beneficiaries and defraying reasonable expenses of administering the plan.” 29 U.S.C. § 1103(c)(1).
The Supreme Court has stated that the language of the anti-inurement provision “focuses exclusively
on whether fund assets were used to pay pension benefits to plan participants, without
distinguishing . . . between assets that make up a plan’s surplus as opposed to those needed to fund
the plan’s benefits.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 442-45 (1999); see also
Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 22 (2004). Other courts
have examined the anti-inurement provision’s legislative history, inferring it was created out of
“congressional concern over the wrongful diversion of trust assets and the administrative integrity of
benefit plans.” Wolk v. Unum Life Ins. of Am., 186 F.3d 352, 358 (3d Cir. 1999) (quoting Prudential
Ins. Co. v. Doe, 76 F.3d 206, 209 (8th Cir. 1996)). Courts examining this issue, which is often raised
in conjunction with claims for breaches of the duties of prudence and loyalty, have found
“[alllegations of ‘indirect’ or ‘incidental’ benefits to an employer are insufficient to state a claim
under the anti-inurement provision.” Hutchins, 737 F. Supp. 3d at 864 (citing Krohnengold v. N.Y.
Life Ins. Co., No. 21-CV-1778, 2022 WL 3227812, at *10 (S.D.N.Y. Aug. 10, 2022); Hughes
Aircraft, 525 U.S. at 445; Holliday v. Xerox Corp., 732 F.2d 548, 551 (6th Cir. 1984)).

24

The Tenth Circuit found in Maez v. Mountain States Telephone & Telephone Inc., 54 F.3d
1488 (10th Cir. 1995), that because plaintiffs did not allege that any plan funds were reverted,
diverted, or paid out of the plan, plaintiffs had failed to make a viable claim with regard to a violation
of ERISA’s anti-inurement provision. Id. at 1506. In that case, the court adopted the Eleventh

Circuit’s ruling in Aldridge v. Lily-Tulip, Inc. Salary Retirement Plan Benefits Committee, 954 F.2d
587 (11th Cir. 1992), holding that the anti-inurement provision “can only be violated if there has been
a removal of plan assets for the benefit of the plan sponsor or anyone other than the plan participants.”
Id. at 692 n.6; see also Madrigal, 2025 WL 1299002, at *6 (“Plaintiff does not allege that any of the
forfeited assets at issue ever left the Plan[, which is] sufficient to foreclose her claim.”); Barragan,
2024 WL 5165440, at *6 (“As these forfeited amounts do not leave the Plan and are used to satisfy
Honeywell’s obligations according to the Plan’s language, the Court finds Honeywell is not acting

in violation of the anti-inurement provision.”). Plaintiffs state that the company used forfeited funds
“in order to save itself millions of dollars that the Company would otherwise have to contribute to
the plain.” Dkt. # 27, ¶ 150. They do not state that any forfeited fees left the plan. Applying the
minimum pleading requirement for jurisdiction established in Maez, that the forfeited funds had to
have left the plan for an anti-inurement provision claim to be valid, the Court finds that plaintiffs fail
to state a claim upon which relief can be granted with respect to their anti-inurement claim, and
defendants’ motion to dismiss this claim should be granted.
C. Failure to Monitor Claim

Plaintiffs finally allege that defendants failed to monitor other fiduciaries and service
providers. Dkt. # 27, ¶¶ 153-59. Both parties agree that this claim is derivative of the other claims
that have been raised and are being dismissed. Dkt. # 28, at 29; Dkt. # 39, at 32. Given that all other
25
of plaintiffs’ claims are subject to dismissal, the Court must also dismiss this claim. See Dimou, 2024
WL 4508450, at *11; Estay, 202 WL 2644782, at *7.
D. Leave to Amend.
Plaintiffs ask the Court to deny the motion to dismiss or, in the alternative, grant leave to

amend their amended complaint to remedy the deficiencies identified. Dkt. # 39, at 32. With respect
to a motion seeking leave to amend, Federal Rule of Civil Procedure 15(a)(2) states that “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave,” the latter of
which should be given freely “when justice so requires.” Ordinarily, leave to amend should be
granted in the absence of “undue delay, bad faith or dilatory motive on the part of the movant.”
Foman v. Davis, 371 U.S. 178, 182 (1962). However, leave to amend should be denied when the
proposed amendment would be futile. Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009). The

liberal approach to granting leave contemplated by Rule 15 is intended to “provide maximum
opportunity for each claim to be decided on its merits rather than on procedural technicalities.”
BLOM Bank SAL v. Honickman, 145 S. Ct. 1612, 1621 (2025) (quoting 6 WRIGHT, MILLER & KANE,
FEDERAL PRACTICE & PROCEDURE § 1471 (3d ed. 2010)). Whether to permit a party leave to amend
is committed to the sound discretion of the court.
The Court has already allowed plaintiffs the opportunity to amend their complaint once per
a joint motion by the parties. Dkt. # 26, at 1; Dkt. # 24, at 2. Plaintiffs now seek leave to amend once
again. Dkt. # 39, at 32. With respect to the forfeiture claims, plaintiffs pursue a tentative theory that

is unsupported by present law. See supra. The Court finds that leave to amend as to plaintiffs’
forfeiture claims would be futile. However, as to plaintiffs’ claim for the breach of the duty of
prudence related to the RKA fees, the Court finds that plaintiffs’ might be able to plausibly allege a
26
claim if they were to sufficiently allege that Intrust, in fact, provided the same RKA services as those
provided by the comparator plans. Conditional leave to amend should therefore be granted as to RKA
fees claim only.
IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Dkt. # 28) is granted
as to all of plaintiffs’ claims.
IT IS FURTHER ORDERED that plaintiffs’ request for leave to amend their amended
complaint (Dkt. # 39, at 32) is granted in part as to plaintiffs’ claim against the Committee related
to RKA fees, if they can meet the above-referenced pleading standard; it is denied in part as to
plaintiffs’ claims related to defendants’ use of plan forfeitures. Any second amended complaint shall
be filed no later than January 12, 2026. If no second amended complaint is filed by that date, a
judgment of dismissal will be entered.
DATED this 9th day of December 2025.
Cerin ¥ bafpl—
CLAIRE V.EAGAN \—
UNITED STATES DISTRICT JUDGE

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11216783. Public record. Not legal advice.