MEMORANDUM DECISION AND ORDER I. Introduction Plaintiff Adele Varga brings this putative class action against defendants General Electric Co. (GE) and Jeffrey Robert Immelt alleging that defendants violated their fiduciary duties of prudence and loyalty to the participants of the GE Retirement Savings Plan (hereinafter “the Plan”), pursuant to the Employee Retirement Income Security Act (ERISA).1 (Compl., Dkt. No. 1.) Pending are defendants’ motion to dismiss, and Varga’s motion to strike portions of defendants’ memorandum of law in reply to her response to the motion to dismiss. (Dkt. Nos. 39, 47.) For the reasons that follow, defendants’ motion to dismiss is granted, and Varga’s motion to strike is denied. II. Background A. Facts2 Varga is an employee of GE with a 401K retirement account, and is a participant in the Plan, which offered a GE Stock Fund as one of the options in which participants could choose to invest their 401K retirement contributions and any matching funds. (Compl.
2, 13, 117.) The GE Stock Fund, an employee stock option plan (ESOP), invests nearly all of its assets in GE common stock. (Id. 2) Varga bought and held the GE Stock Fund in her retirement account. (Id. 13.) Varga alleges that GE “improperly manipulated its earnings and inflated its stock price by improperly under reserving for the insurance liabilities of its wholly-owned insurance subsidiaries.” (Id. 1.) Varga claims that defendants are “Plan fiduciaries who either knew or should have known that the under reserving…had improperly manipulated GE’s earnings and inflated the GE common stock and, thus, the price of the GE Stock Fund.” (Id. 3.) This putative class action closely mirrors a 2006 ERISA class action brought by Plan participants. See Cavalieri v. General Electric, No. 06cv315, 2009 WL 2426001 (N.D.N.Y. Aug. 6, 2009). In the 2006 action, Plan participants alleged, among other things, that GE and others “breached their fiduciary duties by continuing to offer the GE Stock Fund as an investment option even though they knew that the value was inflated by GE improperly under reserving for the insurance liabilities by $5 billion to $10 billion.” (Compl. 4.) The defendants denied the allegations and settled the case in 2009. (Id. 5.) GE sent a notice about this settlement to every Plan participant, which included an express denial of the allegations. (Id.) According to Varga, “[o]n January 16, 2018, GE announced that it had under reserved for the insurance liabilities of its two insurance subsidiaries by approximately $15 billion, and that it needed to contribute approximately $15 billion to its insurance subsidiaries.” (Id. 8.) This announcement “had a materially negative impact on earnings,” and caused the GE common stock to drop. (Id.
