The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 48, 49 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION The critical issue which dooms the plaintiffs’ case is whether the beneficiaries of a trust established pursuant to the Employment Retirement Savings Plan Act of 1974 (ERISA) must make a demand on the trustee or adequately plead demand futility in order to maintain a derivative action. Because this court answers this question in the affirmative and the plaintiffs have failed to do so, the defendants’ motion to dismiss pursuant to CPLR §3211(a)(5) is granted and the action is dismissed without prejudice, except as otherwise provided below. THE RELEVANT FACTS AND CIRCUMSTANCES Reference is made to (i) a General Electric Company (GE) Retirement Plan (the Retirement Plan) which allows GE employees to accumulate and invest retirement savings through investment funds offered by the Retirement Plan, and (ii) an ERISA trust (the Retirement Trust) established by GE pursuant to a certain Trust Agreement (the Trust Agreement), dated as of December 1, 2009, between the Trustees of the GE Savings and Security Program (the GE Asset Management Committee or GEAM Committee), a Named Fiduciary of the GE Savings and Security Program (excluding the portion of the Program that consists of U.S. Savings Bonds purchased with participant after-tax contributions made on or after July 1, 1995) (the Plan), and Fidelity Management Trust Company, a Massachusetts trust company, having an office at 82 Devonshire Street, Boston, MA 02109 (the Trustee), pursuant to which GE employees could beneficially invest in GE common stock by acquiring units in the Retirement Trust, which Retirement Trust owns, among other things, GE stock (NYSCEF Doc. No. 34 [the Trust Agreement]). To be clear, each participant in the Retirement Plan would own units in the Retirement Trust, not actual GE stock (Danilow Affirm., Ex. C, NYSCEF Doc. No. 32, §VI[B] [the Retirement Plan]). The introductory paragraph of the Trust Agreement makes clear that GE executed the Trust Agreement solely to facilitate the Retirement Plan, but without assuming responsibility for the management of the Retirement Trust corpus: [GE is]…the sponsor of the Plan but does not have any responsibility of the custody, management or investment of the Plan’s assets. The Sponsor has executed this Agreement solely in order to signify its agreement to undertake the non-fiduciary obligations that the terms of this Agreement impose on the plan sponsor (including, but not limited to, the obligation to make the interest-free loans described in Schedule B of this Agreement, and to make certain acknowledgements and representations (Danilow Affirm., Ex. E, NYSCEF Doc. No. 34, p. 1). Further, the assets of the Retirement Trust are managed by the Trustee for the benefit of its participants and beneficiaries. The Trustee, however, is not responsible for the buy/sell decision of any plan participant, and the Trustee is not liable for any loss or expense that arises from the directions of the plan participants with respect to the same. To wit, Section 5 of the Trust Agreement, “Investment of Trust Assets,” expressly provides: (e) Stock Fund. * * * (ii) No Fiduciary Duty. The Plan requires that the Stock Fund be offered as an investment option. As a result, neither the Trustee nor any other plan fiduciary is responsible pursuant to the Plan or this Agreement to monitor the suitability of acquiring and holding Sponsor Stock. Neither the Trustee nor any other plan fiduciary shall be liable for any loss or expense that arises from the directions of the Participations with respect to the acquisition and holding of Sponsor Stock (id., §5[e][ii] [emphasis added]). In addition, Section 5(j) of the Trust Agreement, “Trustee Powers,” makes clear that the Trustee has the right to commence lawsuits and to represent the Trust in all suits and legal and administrative hearings: The Trustee shall have the powers and authority set forth in subparagraphs (i) through (viii) of this Section 5(j). Except as otherwise required by law or expressly provided in this Agreement, the Trustee shall exercise its powers and authority under this Agreement only at the prior direction of a Participant, Named Fiduciary or Outside Manager, or as required by the Plan or provisions of this Agreement other than this Section 5(j). * * * (v) To settle, compromise, or submit to arbitration any claims, debts, or damages due to or arising from the Trust; to commence or defend suits or legal or administrative proceedings; to represent the Trust in all suits and legal and administrative hearings; and to pay all reasonable expenses arising from any such action, from the Trust if not paid by the Sponsor. * * * (viii) To do all other acts, although not specifically mentioned herein, as the Trustee may reasonably deem necessary to carry out any of the foregoing powers and the purposes of the Trust (id., §§5[j], 5[j][v], 5[j][viii] [emphasis added]). The plaintiffs are participants in, and the beneficiaries of, the Retirement Plan who bring this lawsuit against the Trustee, GE, and its former Chairman Jeffrey R. Immelt, its former Chief Financial Officer Jeffrey S. Bornstein, and its former Vice President, Controller and Chief Accounting Officer Jan R. Hauser, alleging claims under Section 11 of the Securities Act of 1933 (the 1933 Act), derivatively on behalf of the Retirement Trust, and arising out of the Retirement Trust’s purchase of GE Common Stock in connection with the issuance by the Retirement Trust of GE Common Stock Fund units owned by the plaintiffs (Amend. Compl.,
