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Coulter v. Morgan Stanley & Co., Inc.

United States District Court, S.D. New York

March 28, 2013

G. KENNETH COULTER, JOHN SIEFKEN, GREGORY MAJOR, MICHAEL CHIEKO, ELI MOND, JOHN SUDOLSKY, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
MORGAN STANLEY & CO., INC. et al., Defendants

Page 307

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For G. Kenneth Coulter, on behalf of themselves and all others similarly situated, Plaintiff: Arvind Khurana, Lori Gwen Feldman, Sanford P. Dumain, Milberg LLP (NYC), New York, NY; Mark C. Rifkin, Michael Jaffe, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY; Robert I. Harwood, Tanya Korkhov, Harwood Feffer LLP, New York, NY.

For John Siefken, on behalf of themselves and all others similarly situated, Gregory Major, on behalf of themselfves and all others similarly situated, Michael Chieko, on behalf of themselves and all others similarly situated, Eli Mond, on behalf of themselves and all others similarly situated, John Sudolsky, on behalf of themselves and all others similarly situated, Plaintiffs: Arvind Khurana, Lori Gwen Feldman, Sanford P. Dumain, Milberg LLP (NYC), New York, NY; Mark C. Rifkin, Michael Jaffe, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY.

For Morgan Stanley & Co. Incorporated, John J. Mack, Karen Jamesley, Walid A. Chammah, Charles Chasin, James P. Gorman, Ellyn A. McColgan, Michael J. Petrick, Michael Rankowitz, Michael T. Cunningham, R. Bradford Evans, Kirsten Feldman, Edmund C. Puckhaber, Thomas C. Schneider, Defendants: Charles S. Duggan, Robert Frank Wise, Jr, Davis Polk & Wardwell L.L.P., New York, NY.

For The Investment Committee of The Morgan Stanley 401(k) plan, The Morgan Stanley Global Director of Human Resources, William B. Smith, Morgan Stanley, Richard Portogallo, Neil A. Shear, Caitlin Long, Defendants: Robert Frank Wise, Jr, Davis Polk & Wardwell L.L.P., New York, NY.

OPINION

Page 310

Deborah A. Batts, United States District Judge.

This class action is brought by participants in the Morgan Stanley 401(k) Plan (" 401(k) Plan" ) and the Morgan Stanley Employee Stock Ownership Plan (" ESOP" ) (collectively the " Plans" ) against Defendants Morgan Stanley (" Morgan Stanley" or the " Company" ), Morgan Stanley & Co., Inc. (" MS & Co." ), Karen Jamesley, Morgan Stanley's Global Director of Human Resources (" Jamesley" ), John Mack, the Chairman of Morgan Stanley's Board of Directors and Morgan Stanley's Chief Executive Officer (" Mack" ), members of MS & Co.'s Board of Directors (the " MS & Co. Board" ), and members of the Investment Committee (the " Investment Committee Defendants" ) (collectively, the " Defendants" ).

Plaintiffs allege Defendants violated their fiduciary duties under the Employee Retirement Income Security Act of 1974 (" ERISA" ) from September 15, 2008 through December 31, 2008 (the " Class Period" ).[1] In particular, Plaintiffs allege that (1) Defendants failed to manage prudently and loyally the Plans' assets, (2) Morgan Stanley and Jamesley failed to provide complete and accurate information,[2] (3) Defendants breached their duty to avoid conflicts of interest, (4) Morgan Stanley, MS & Co., the MS & Co. Board, and Mack failed to monitor adequately other fiduciaries and to provide them with accurate information, and (5) Defendants have co-fiduciary liability.

Defendants have moved to dismiss the Corrected Amended Class Action Complaint (the " Complaint" ) pursuant to Federal Rule of Civil Procedure 12(b)(6). For reasons that follow, Defendants' ...


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