Doc. 45 at 35–36 (¶¶145–48). Ameriprise knew of these breaches of 29 U.S.C. §§1104 and 1106 and is, accordingly, liable to restore to the Plan the portion of the sale-related revenue Ameriprise received as a result of the Plan’s use of ATC and Wachovia. Id. at 36 (¶151).

Plaintiffs allege Fidelity’s float process constitutes “act[ing] in any transaction Case 5:16-cv-04784-LHK Document 28 Filed 11/02/16 Page 21 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 - FIDELITY’S MOTION TO DISMISS FAC CASE NO. 5:16-CV-04784-LHK involving the plan on behalf of a party ... whose interests are adverse to the interests of the plan or [its participants]” and “receiv[ing] ... consideration for [Fidelity’s] own personal account from any party dealing with such plan in connection with a transaction involving assets of the plan.” FAC ¶ 53 (citing 29 U.S.C. § 1106(b)(2) and (3)) (emphasis added). But, again, these theories require that the Plans be “involved” in the transactions or that “assets of the plan” be misused.

The transactions in dispute here do not meet the statutory elements of a § 406(a)(1)(C) claim, and plainly “[do] not fall into the category of transactions 12 Section 406(a)(1)(C) prohibits the direct or indirect furnishing of services between a plan and a “party in interest,” which ERISA defines as, among other things, a person providing services to a plan. 29 U.S.C. §§ 1106(a)(1)(C), 1002(14). Such services transactions are not prohibited if the provider receives “no more than reasonable compensation.”

ERISA’s prohibited transaction provision simply says that the fiduciary must “cause” the transactions to occur; it does not require a particular type of cause or specify that it must be the sole cause. 29 U.S.C. § 1106(a)(1) (a “fiduciary with respect to a plan shall not cause the plan to engage in a transaction…”). Plaintiffs allege BNYM was required to “hold Plan assets in trust for the exclusive benefit of Plan participants and beneficiaries.”

ERISA § 406(a)(1)(C) prohibits a plan fiduciary from causing the plan to engage in a transaction with a party in interest. 29 U.S.C. § 1106(a)(1)(C). Plaintiffs must therefore identify the “fiduciary” that “cause[d] the plan” to enter into the insider prohibited transaction.

• Count II: Engaging in prohibited transactions in violation of ERISA §§ 406(a)(1)(C) and (D), 29 U.S.C. § 1106(a)(1)(C) and (D), by offering mutual funds managed by Deutsche Bank. • Count III: Engaging in prohibited transactions in violation of ERISA §§ 406(b)(1) and (3), 29 U.S.C. § 1106(b)(1) and (3), by offering mutual funds managed by Deutsche Bank. • Count IV: Breach of the duties of loyalty and prudence for failing to exercise adequate oversight of the Plan’s fiduciaries.

Likewise, the Plan’s investments in Fidelity-managed mutual funds do not violate ERISA § 406(a)(1)(C) because they do not involve any “furnishing of goods, services, or facilities between the plan and a party in interest[.]” 29 U.S.C. § 1106(a)(1)(C).25 Finally, plaintiffs’ claims that defendants engaged in prohibited transactions by causing the Plan to retain Fidelity’s recordkeeping services fail, because ERISA supplies an exemption to its prohibited transaction rules that specifically permits such retentions. In particular, ERISA § 408(b)(2) exempts reasonable arrangements for plan services so long as no more than reasonable compensation is paid.

Similarly, because the fees paid to Fidelity’s affiliates for managing the mutual funds are paid by the mutual funds themselves—and 43 ERISA §§ 406(a)(1)(C) and (D) prohibit a fiduciary, except as provided in ERISA § 408, from “caus[ing] the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect— (C) furnishing of goods, services, or facilities between the plan and a party in interest; [or] (D) transfer to, or use by or for the benefit of a party in interest, of any assets of the plan.” 29 U.S.C. §§ 1106(a)(1)C) and (D). ERISA § 408(a) authorizes the DOL to promulgate exemptions from Section 406, including class exemptions, that are, among other things, “in the interests of the plan and of its participants and beneficiaries, and [] protective of the rights of participants and beneficiaries of such plan.”

That law prohibits a fiduciary with respect to the DC Plans from causing the DC Plans to engage in a transaction that the fiduciary knew or should have known constituted a direct or indirect (A) exchange or leasing of property between the Plans and a party in interest, (C) furnishing of services between the Plans and a party in interest, or (D) transfer to, or use by or for the benefit of a party in interest of any assets of the Plans. 29 U.S.C. §1106(a)(1). All fiduciaries of the DC Plans are parties in interest.

Section 406(b)(1), which prohibits a fiduciary from “deal[ing] with the assets of the plan in his own interest or for his own account,” also is inapplicable. 29 U.S.C. § 1106(b)(1). This section only applies to express self-dealing, where, unlike here, the fiduciary is a party to or direct beneficiary of the transaction.