Furthermore, “ERISA's primary purpose is to protect beneficiaries of employee retirement plans.” Kopp v. Klein, 722 F.3d 327, 334 (5th Cir.2013) (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) ). Whatever the purposes of the ESOP were stated to be, they had to yield to that paramount purpose. See also Kopp, 722 F.3d at 334 (ERISA's “duty of loyalty requires fiduciaries to act ‘solely in the interest’ of plan participants and beneficiaries”) (quoting 29 U.S.C. § 1104(a)(1) ).

"Factual allegations must be enough to raise a right to relief above the speculative level. . . ." Twombly, 550 U.S. at 555; Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013). Thus, "the pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action."

(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims . . . . 29 U.S.C. § 1104(a); see Kopp v. Klein, 722 F.3d 327, 336 (5th Cir. 2013) (discussing duties of prudence and loyalty in ESOP context). Starting with the loyalty claim against Bruister, Defendants assert that he was not a fiduciary.

The Secretary claims that Defendants breached their duties of prudence by engaging in the Subject Transactions for more than fair market value and that Bruister also breached his duty of loyalty. ERISA § 404 contains that statute's prudent-man standard and provides in part: [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—(A) for the exclusive purpose of:(I) providing benefits to participants and their beneficiaries; and(ii) defraying reasonable expenses of administering the plan;(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims . . . . 29 U.S.C. § 1104(a); see Kopp v. Klein, 722 F.3d 327, 336 (5th Cir. 2013) (discussing duties of prudence and loyalty in ESOP context). Starting with the loyalty claim against Bruister, Defendants assert that he was not a fiduciary.

In reviewing this material, the Court must "constru[e] all factual allegations in the light most favorable to the plaintiffs." Kopp v. Klein , 722 F.3d 327, 333 (5th Cir. 2013). The Court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation."

As the Fifth Circuit has instructed, Defendants' decisions in their roles as fiduciaries "are not to be judged with the benefit of hindsight, but from the facts known to them at the time." Kopp v. Klein, 722 F.3d 327, 341 (5th Cir. 2013). Accepting Camera's allegations as true and drawing even the most generous of inferences in his favor, the members of the Special Committee "knew at the time of the [reallocation], on October 19, 2012, that the private buyout transaction was more likely than not to close at a price significantly above the then-prevailing market price for the shares, and above any 'control premium,' as indeed occurred."

Instead, the petition alleges corporate mismanagement in the events that occurred before and after the ESOP terminated. The Fifth Circuit has discussed at length the "hats" an employer might wear in deciding to take an action and whether a particular action falls inside or outside ERISA. See, e.g., Kopp v. Klein, 722 F.3d 327, 333-35 (5th Cir. 2013); Izzarelli v. Rexene Prods. Co., 24 F.3d 1506, 1524-25 (1994). An employer acts as an ERISA fiduciary "'only when and to the extent that [it] function[s] in [its] capacity as plan administrator[], not when [it] conduct[s] business that is not regulated by ERISA.'"

Kopp v. Klein , 762 F.3d 450, 450 (5th Cir. 2014) (per curiam).Kopp v. Klein , 722 F.3d 327, 330 (5th Cir. 2013), vacated , ––– U.S. ––––, 134 S.Ct. 2900, 2900, 189 L.Ed.2d 853 (2014).Fifth Third Bancorp v. Dudenhoeffer , ––– U.S. ––––, 134 S.Ct. 2459, 189 L.Ed.2d 457 (2014).

Compare In re WorldCom, Inc. , 263 F.Supp.2d 745, 768 (S.D.N.Y. 2003), with In re Sears, Roebuck & Co. ERISA Litig. , 2004 WL 407007, at *5 (N.D. Ill. Mar. 3, 2004) (unpublished); see also Kopp v. Klein , 722 F.3d 327, 343 (5th Cir. 2013), vacated on other grounds , ––– U.S. ––––, 134 S.Ct. 2900, 189 L.Ed.2d 853 (2014).

For a complaint to state a claim, the non-moving party must plead enough facts to state a claim to relief that is plausible on its face.Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013) (citing Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012)). Id. (citing Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999)).