The court therefore has not addressed Defendants section 404(c) argument. Defendants rely heavily on Yates v. Nichols, 286 F.Supp.3d 854 (N.D. Ohio 2017). The facts of Yates
As a result, their § 1104(a)(1)(C) claim fails.See, e.g. , Yates v. Nichols , 286 F. Supp. 3d 854, 864 (N.D. Ohio 2017) ("[T]he plan participants themselves—rather than the [fiduciaries]—decide how to allocate their contributions among the plan’s investment options. The [fiduciaries], in other words, have no ability to enforce the diversification requirement on the participants.
A fiduciary "'should not normally invest all or an unduly large portion of plan funds in a single security, or in any one type of security, or even in various types of securities that depend on the success of one enterprise.'" Yates v. Nichols, 286 F. Supp. 3d 854, 862 (N.D. Ohio 2017) (quoting Bruner v. Boatmen's Tr. Co., 918 F. Supp. 1347, 1353 (E.D. Mo. 1996)).
Finally, Defendants contend that Plaintiff should not be permitted to amend his complaint, as he has already amended once, and he has failed to identify any basis for further, non-futile amendment. On December 20, 2017, Defendants filed a notice of supplemental authority, notifying the Court of Yates v. Nichols, No. 3:17CV1389, 2017 WL 6451888 (N.D. Ohio Dec. 18, 2017), a recent federal district court decision rejecting the arguments Plaintiff raises here, including that Dudenhoeffer applies only to employer securities. With the Court's leave, Plaintiff filed a memorandum of law in response to Defendants' notice, and Defendants filed a short reply.