The opinion of the court was delivered by: Charles J. Siragusa, District Judge.
LEGAL STANDARD FOR A MOTION TO DISMISS
In considering a motion for dismissal under Rule 12, a defendant must
show that the plaintiff can prove no set of facts in support of his claim
that would entitle him to relief. See H.J. Inc. v. Northwest Bell
Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL
PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.). The Court must view
the complaint, and draw all reasonable inferences, in the light most
favorable to the non-moving party. Id.; see also 2 MOORE'S FEDERAL
PRACTICE, § 12.34[1][b] (Matthew Bender 3d ed.) (court must accept
plaintiff's factual allegations as true).
Both parties have relied upon documents outside the complaint in
support of their positions. As the Court of Appeals stated, "[f]or
purposes of a motion to dismiss, we have deemed a complaint to include any
written instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference . . . as well as public
disclosure documents require by law to be, and that have been, filed with
the SEC . . . and documents that the plaintiffs either possessed or knew
about and upon which they relied in bringing the" Rothman v. Gregor,
220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). Thus, the Court will
employ the same rule in examining the papers outside the complaint relied
upon by the parties here. However, "it is axiomatic that the complaint may
not be amended by the briefs in opposition to a motion to dismiss.
Jacobson v. Peat, Marwick, Mitchell & Co., 445 F. Supp. 518, 526
(S.D.N.Y. 1977); Sansom Comm. v. Lynn, 366 F. Supp. 1271, 1278 (E.D.
Pa. 1973); Chambliss v. Coca-Cola Bottling Corp., 274 F. Supp. 401, 409
(E.D.Tenn. 1967), aff'd on other grounds, 414 F.2d 256 (6th Cir. 1969),
cert. denied, 397 U.S. 916 (1970)." Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1107 (7th Cir. 1984).
Plaintiff, a resident of Georgia, and over the age of 55, is a retiree
of Corning, Incorporated ("Corning"), who was and is a participant in the
Corning Investment Plan ("Plan"). 29 U.S.C. § 1002(7) (1999). Corning
is the sponsor of the Plan. The Plan, by its own terms, is governed by
New York law and by the Employee Retirement Income Security Act of 1974
("ERISA"), Pub.L. 93-406, Title I, § 2, Sept. 2, 1974, 88 Stat. 832,
codified at 29 U.S.C. § 1001 (1999), et seq. Jurisdiction in this
court arises under ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1), and
venue is proper here in this District, since the Plan is administered
here and plaintiff alleges that the breaches of fiduciary duties occurred
here. Plaintiff is bringing this action as a class action under Federal
Rule of Civil Procedure 23. The issue of whether this action should be
certified as a class action is not at present before the Court.
1. Defendants Named in the Amended Complaint
Plaintiff is suing Corning and a number of individuals. John Does 1-30
are the individual members of the Plan's Investment Committee
("Committee"). John S. Brown, James B. Flaws, John H. Foster, Gordon
Gund, John M. Hennessy, James
R. Houghton, James J. O'Connor, Catherine
A. Rein, Deborah D. Rieman, H. Onno Ruding, William D. Smithburg, Hansel
E. Tookes, II, Peter F. Volanakis, and Wendell P. Weeks, are or were
individual members of Corning's Board of Directors ("Board" or "Board of
Directors"), as are Richard Roes 1-30, whose identities are unknown to
plaintiff.
The Plan is a "defined contribution" or "individual account" plan under
ERISA § 3(34), 29 U.S.C. § 1002(34) (1999). Each participant has
an individual account under the Plan. Benefits are based on the amount
contributed by a participant to his or her account, along with any
income, expenses, gains, losses, and forfeitures, which may be allocated
to such participant"s ' account. The Plan gives participants different
options for investment of their contributions, including a money market
fund, a bond fund, a variety of equity funds, and Corning stock. The Plan
also provides that Corning would make matching contributions in cash*fn2
out of its profits, and that all such matching contributions were
required to be invested in the Corning stock fund, an Employee Stock
Ownership Plan ("ESOP"). Thus, a participant in the Plan can direct his
own contributions to any of the offered investment funds, but the
matching contributions were to be used to purchase Corning stock. The
Committee, under Plan § 6.5, has the discretion to determine what
funds would be offered to plan participants for their investments.
Further, under the Plan, fund participants over age 55 are allowed to
move not only their own voluntary contributions, but also the Corning
matching contributions, to one of the twelve available investment funds.
Additionally, the Plan requires that the Board of Directors appoint the
members of the Committee, who are designated by the Plan as the
fiduciaries*fn3 and plan administrators as those terms are defined by
ERISA. Plan Article VII. ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A)
(1999).
3. Plaintiff's Allegations
Plaintiff, in his amended complaint, alleges that defendants, as
fiduciaries of the Plan, were required under ERISA to furnish certain
information to the participants, including the Summary Plan Description
("SPD"). According to plaintiff, the SPD apprised participants of their
rights under the Plan, and incorporated by reference all of the documents
filed by Corning with the Securities and Exchange Commission ("SEC"). See
ERISA § 102, 29 U.S.C. § 1022 (1999). Further, plaintiff alleges
that defendants had the discretion to establish and change the investment
alternatives offered to Plan participants as well as direct investment of
the Plan's assets allocated to their accounts. He also alleges that
defendants had a "duty to obtain from [Corning] information necessary for
the proper administration of the Plan." Am. Compl. ¶ 31.*fn4
According to plaintiff's amended complaint, on September 27, 2000,
Corning announced that it had agreed to acquire Pirelli S.p.A.'s
("Pirelli") interest in Pirelli's optical components and devices
business, Optical Technologies USA, for approximately $3.6 billion in
cash. Plaintiff alleges that Corning disseminated to the market, through
a press conference and national media networks, that this acquisition was
necessary to keep up with demand for its products resulting from
companies upgrading telephone networks. According to plaintiff, on
October 23, ...