The opinion of the court was delivered by: James Moran, Senior District Judge.
Plaintiff class filed suit against numerous defendants alleging violations of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., (ERISA), seeking various remedies available under the Act. Defendant LaSalle Bank National Association (LaSalle) filed a motion to dismiss the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiffs failed to state a claim upon which relief could be granted. For the following reasons, LaSalle's motion to dismiss is granted in part and denied in part.
This case arises from various changes in Amsted's Employee Stock Ownership Plan (ESOP) beginning in 1999. Plaintiff class alleges that defendants' mismanagement of the ESOP resulted in the depletion of plan assets and the loss in value of the plaintiffs' retirement accounts. These actions were filed separately and transferred to this court by the judicial panel on multidistrict litigation, where we granted certification of the plaintiff class.
Defendant LaSalle operated as the trustee of the ESOP as defined by ERISA. See 29 U.S.C. § 1103. LaSalle's role in managing the trust was limited to the responsibilities detailed in its agreement with Amsted, the settlor of the plan. This agreement severely limited the discretion of LaSalle in handling the assets of the claim and making decisions with respect to the trust.
In deciding a Rule 12(b)(6) motion to dismiss we must assume the truth of all well-pleaded allegations, making all inferences in the plaintiff's favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994). The court should dismiss a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). While the complaint does not need to provide the correct legal theory to withstand a Rule 12(b)(6) motion, it must allege all of the elements necessary to recover. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986).
Plaintiff class' consolidated complaint consists of five counts: breach of fiduciary duty, wrongful denial of claims and benefits, unlawful plan amendments, breach of contract and conversion. In their response memorandum plaintiffs concede that the wrongful denial claim must be dismissed. Likewise, plaintiffs present no argument in their memorandum as to the breach of contract or conversion claims. They fail to plead either that LaSalle had a contract with the plaintiffs or that LaSalle was somehow enriched through possession of plaintiffs' assets. Counts IV and V are also dismissed.
Count I — Breach of Fiduciary Duty
Plaintiffs allege that LaSalle, as the plan's trustee, breached the fiduciary duty owed to the plan beneficiaries pursuant to section 409 of ERISA, 29 U.S.C. § 1109. LaSalle contends that any fiduciary duty was owed to the plan, rather than the individual beneficiaries, and therefore plaintiffs' claim against LaSalle must fail.
While it is true that, as trustee, LaSalle owed a fiduciary duty to the ESOP, rather than the plan participants individually, this does not preclude plaintiffs from bringing this suit against defendants. ERISA section 409(a) provides:
29 U.S.C. § 1109(a). ERISA section 502(a)(2) allows a participant or beneficiary of a plan to bring a civil action seeking appropriate relief under section 409. 29 U.S.C. § 1132.
Defendant LaSalle is correct in arguing that the plaintiff class, as beneficiaries of the plan, cannot directly collect money damages from LaSalle. Section 502(a)(2) gives, the plaintiffs the right to bring an action to prevent or remedy any breach of fiduciary duty owed to the plan. In doing so, plaintiffs may seek money damages only to the extent that they are paid to the plan to restore any money lost due to the alleged breach. See Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 139-144, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). Plaintiffs' claim contains allegations that LaSalle actively breached a fiduciary duty owed to the plan. Plaintiffs alternatively allege that LaSalle allowed Amsted to violate its fiduciary duty to the beneficiaries, constituting violation of ERISA section 405. 29 U.S.C. ...