OPINION & ORDER
SIDNEY H. STEIN, District Judge.
Defendants have moved for summary judgment, asking the Court to dismiss as untimely plaintiffs' putative class action alleging violations of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. The Court previously granted in part and denied in part defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and granted in part and denied in part plaintiffs' subsequent motion for leave to amend their complaint pursuant to Rule 15(a). See Leber v. Citigroup, Inc. ("Leber I"), No. 07 Civ. 9329 (SHS), 2010 WL 935442 (S.D.N.Y. Mar. 16, 2010); Leber v. Citigroup, Inc. ("Leber II"), No. 07 Civ. 9329 (SHS), 2011 WL 5428784 (S.D.N.Y. Nov. 8, 2011). For reasons explained in those opinions, the surviving claims all concern defendants' alleged breaches of their fiduciary duty of prudence pursuant to ERISA section 404, which requires that fiduciaries act "solely in the interest of the participants and beneficiaries." See 29 U.S.C. § 1104(a)(1). The gravamen of the Second Amended Complaint (the "Complaint") is that defendants included in Citigroup's 401(k) retirement plan (the "Plan") mutual funds offered and managed by subsidiaries of Citigroup (the "Affiliated Funds" or "Funds") despite the fact that those Funds had "higher investment advisory fees than those of competing funds" with equal performance. See Leber II at *1 (quoting Leber I at *1).
After discovery limited to plaintiffs' compliance with the statute of limitations, defendants have moved for summary judgment on that issue pursuant to Rule 56(a). Defendants contend that the action is untimely because plaintiffs possessed "actual knowledge" of the alleged breach more than three years before they filed suit. See 29 U.S.C. § 1113. Specifically, defendants point to documents distributed to participants listing the fees and effectively disclosing the affiliated status of the Funds. Defendants, however, have presented no evidence — let alone undisputed evidence
Unless otherwise noted, the following facts are undisputed and drawn from defendants' and plaintiffs' Local Civil Rule 56.1 Statements of Undisputed Facts ("Defs.' 56.1" and "Pls.' 56.1"). However, because the parties have taken discovery only on timeliness issues, the Court continues to assume the truth of the substantive allegations in the Complaint for purposes of this motion, and so relies only on the Complaint for such facts.
A. The Parties and the Plan
After the merger between Travelers Group and Citicorp that formed Citigroup, Citigroup in July 2001 merged the Travelers and Citicorp 401(k) plans into the Plan at issue. (Defs.' 56.1 ¶¶ 1-2; Pls.' 56.1 ¶¶ 1-2.) Plaintiffs allege that defendants are members of the Plan's Investment Committee and thus are Plan fiduciaries "responsible for selecting, monitoring, and evaluating the  Plan's investment options." (Compl. ¶ 20.) Plaintiffs Marya J. Leber and Sarah L. Kennedy were Citigroup employees who participated in the Plan, which Citigroup offered employees as a retirement-savings option. (Compl. ¶¶ 14, 16; Ans. ¶¶ 14, 16.) Leber and Kennedy each invested in one of the Affiliated Funds, which they allege all charged excessive fees. (Compl. ¶¶ 14, 16.)
The Plan offered a range of funds in which participants could invest their Plan assets. At all relevant times, the available funds selected by the Investment Committee for inclusion in the Plan included some or all of the nine Affiliated Funds at issue,
B. The Alleged ERISA Violations
Plaintiffs' claims regarding defendants' decisions to offer the Affiliated Funds as part of the Plan, and not to remove them from the Plan, take three forms. First, defendants committed an ongoing breach-by-omission by failing to remove the Affiliated Funds from the Plan, starting in October 2001. Second, defendants breached their duty of prudence by selecting three Affiliated Funds when adding new funds in April 2003. Third, defendants imprudently transferred investments in four of the eliminated unaffiliated funds to four of the Affiliated Funds. (See Compl. ¶¶ 76-90.) Each of these claims is premised on two common allegations: that the funds at issue were affiliated with Citigroup, and that they charged fees that were excessive when compared to fees of funds that performed comparably. See Leber II at *4-5.
C. Communications to Plan Members
The dispute at the heart of this motion concerns the extent of information that plaintiffs possessed more than three years before they filed suit on October 18, 2007. For purposes of this motion, the Court assumes, without deciding, that the record shows that Plan documents were sent to plaintiffs before October 2004 and contained, as defendants contend, two basic pieces of information: first, that the Funds were affiliated with Citigroup (see Defs.' 56.1 ¶¶ 19-25, 32-33, 36-38); and second, the precise management fees that the Affiliated Funds charged investors (see Defs.' 56.1 ¶¶ 26, 34-35, 39).
A. ERISA's Three-Year Statute of Limitations Applies if Plaintiffs Acquired "Actual Knowledge" of the Breach.
Except for claims of fraud or concealment, ERISA requires that an action for breach of fiduciary duty must be commenced by the earlier of the following two dates:
29 U.S.C. § 1113 (emphasis added). In other words, all plaintiffs must file suit no later than six years after the breach, but a plaintiff who acquires "actual knowledge of the breach" cannot sleep on his rights; he must bring his claim within three years of acquiring "actual knowledge."
B. ERISA's Three-Year Statute of Limitations Applies if Plaintiffs Acquired "Actual Knowledge" of the Breach.
"[A] plaintiff has `actual knowledge of the breach or violation' within the meaning of [the statute] when he has knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his or her duty or otherwise violated the Act." Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001). Although the plaintiff need not know the law, "he must have knowledge of all facts necessary to constitute a claim." Id. Whether a fact is material depends on context; such facts "could include necessary opinions of experts, knowledge of a transaction's harmful consequences, or even actual harm." Id. (quoting Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir. 1992)); see also Martin v. Consultants & Adm'rs, Inc., 966 F.2d 1078, 1086 (7th Cir. 1992). Even so, "[t]he disclosure of a transaction that is not inherently a statutory breach of fiduciary duty . . . cannot communicate the existence of an underlying breach." Caputo, 267 F.3d at 193 (alterations in original).
Because actual knowledge is "strictly construed," L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of Nassau Cnty., Inc., 710 F.3d 57, 67 (2d Cir. 2013), what plaintiffs "should have known" or what they suspected must be distinguished from what they actually knew. Caputo, 267 F.3d at 194 (emphasis in original). Reading "actual knowledge" as equivalent to "constructive knowledge" would be "repugnant to the plain language of the statute as well as its legislative history." Id. Even where a plaintiff has reason to believe that defendants have violated ERISA, he might not know all the facts material to his claim. In Caputo, for example, the plaintiffs alleged that their employer had misled them as to whether they planned to offer an early retirement plan that included a severance package. Id. at 184. Even when they learned that the employer had offered the very package it said it would not offer, they did not have "actual knowledge" of the breach; at that time, "they thought (not knew) that [the employer] lied." Id. at 194 n.6 (emphasis in original). Only when they confirmed their suspicions that the earlier statements were lies — as opposed to true plans that later changed — did they actually know of the breach. Id. at 194. Clearly what matters are the facts plaintiffs possess, not the facts they suspect or could discover.
C. Plaintiffs Lacked "Actual Knowledge" Because They Did Not Possess All Facts Necessary to Constitute the Claims.
Defining the universe of plaintiffs' imputed knowledge only begs the question: Did the Plan's communications contain "all facts necessary to constitute a claim"? See Caputo, 267 F.3d at 193. The Court's view should not surprise the parties because the Court delineated the central allegations when deciding both defendants' motion to dismiss and plaintiffs' motion to amend: "by causing plan assets to be invested in affiliated mutual funds that charged higher fees and performed less well than comparable unaffiliated funds, the committee defendants acted in the interests of Citigroup rather than the Plan and failed to act with the skill, prudence, and care required." Leber I at *13. Essential to the plausibility of plaintiffs' claims was the allegation that the Affiliated Funds "charged higher fees than those charged by comparable Vanguard funds — in some instances fees that were more than 200 percent higher than those comparable funds." Id.; see also Leber II at *4.
Actual knowledge requires "knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his or her duty." Caputo, 267 F.3d at 193. A fact that is necessary to render a claimed breach plausible must, perforce, be one of the facts "necessary to understand that" a breach has occurred. Id. It is, by definition, one of "facts necessary to constitute [the] claim." Id. Thus, to demonstrate plaintiffs' actual knowledge of the breach, defendants must show either that plaintiffs possessed, through Plan communications or otherwise, comparisons of the Affiliated Funds to the alternatives or knew in some other way that the fees were excessive.
Defendants urge the Court to find that knowledge of the Affiliated Funds' fees alone constitutes actual knowledge of all the material facts of the breach, citing Young v. General Motors Investment Management Corp., 550 F.Supp.2d 416, 420 (S.D.N.Y. 2008). In Young, the plaintiffs advanced claims similar to these, and the court found them untimely because their knowledge of the fees for other funds in the plan provided knowledge that the fees were generally high. Id. at 420 & n.5. The Young court, however, did not consider the significance of comparisons between the fees for the funds at issue and those of alternative funds with similar types of assets and equivalent performance, nor explain whether that comparison was part of the claimed breach.
In any event, Young is not binding authority. Plaintiffs could not have known that the fees were excessive, and thus a basis for an ERISA claim, without the relevant comparison point for assessing excessiveness: fees for comparable funds. At most, a comparison of the Affiliated Funds' fees with those of unaffiliated funds in the Plan would have given them "notice that something was awry." Caputo, 267 F.3d at 193. More is required to find that plaintiffs had "`specific knowledge of the actual breach of duty'" of prudence, see id.,
Because defendants have failed to demonstrate pursuant to 29 U.S.C. § 1113 that plaintiffs had "actual knowledge" of the alleged breaches three years before commencing the action, defendants' motion for summary judgment on the issue of timeliness (Dkt. No. 93) is denied. The parties shall submit an agreed upon schedule for the remaining discovery in this action on or before October 17, 2014.
Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citations and alterations omitted).