Tittle v. Enron: Directed Trustees’ “Know or Should Know” Duty and ERISA Fiduciary Disclosure Despite Securities-Law Tensions

Tittle v. Enron: Directed Trustees’ “Know or Should Know” Duty and ERISA Fiduciary Disclosure Despite Securities-Law Tensions

Introduction

In this landmark memorandum and order within the sprawling Enron MDL (MDL 1446), Judge Melinda Harmon of the Southern District of Texas resolved a suite of motions to dismiss in the consolidated ERISA action brought by Enron employees and plan participants (the “Tittle Plaintiffs”). The case targets alleged fiduciary breaches surrounding three ERISA-governed plans—the Enron Corporation Savings Plan (a 401(k) individual account plan), the Enron Corporation Employee Stock Ownership Plan (ESOP), and the Enron Corporation Cash Balance Plan (a defined benefit plan)—and addresses ancillary claims under RICO and Texas common law.

The decision is a pivotal articulation of ERISA fiduciary principles under crisis conditions. It furnishes robust guidance on:

  • What makes a person or entity a fiduciary (including appointing authorities and directed trustees);
  • How fiduciaries must navigate material nonpublic information and disclosure obligations without sheltering behind insider-trading concerns;
  • The standard of care for “directed trustees,” rejecting a minimal “facial compliance” test in favor of an inquiry obligation where the trustee knows or should know directions are contrary to ERISA;
  • The limits of relief under ERISA § 502(a)(3) after Great-West;
  • The sweeping effect of the PSLRA’s RICO Amendment and SLUSA on overlapping RICO and state-law class claims;
  • How plan committees can be sued, and the viability of state-law accountant negligent misrepresentation claims alongside ERISA.

The named defendants fall into five general groups: Enron and its directors/officers; plan committees and members; Northern Trust (trustee); Arthur Andersen and affiliated personnel; Vinson & Elkins and partners; and several investment banks. The Court denied dismissal of core ERISA counts (particularly as to fiduciary breaches in investing, locking down plan accounts amid public revelations, and appointment/monitoring failures), dismissed the RICO counts under the PSLRA’s bar, found broad ERISA preemption of the civil conspiracy claim, and allowed a state-law negligent misrepresentation claim against Andersen to proceed.

Summary of the Opinion

Key holdings include:

  • ERISA fiduciary claims survive. Claims for imprudent investment/retention of Enron stock, duty to disclose material information, failure to diversify the Savings Plan, imprudent lockdown/blackout decisions amid extraordinary circumstances, and appointment/monitoring failures sufficiently alleged against Enron, certain directors (including Compensation Committee members), plan committees/members, and Northern Trust.
  • Directed trustee standard clarified and heightened. The Court rejects a “clear-on-its-face” safe harbor for a directed trustee and adopts a trust-law-informed “knows or should know” standard requiring inquiry where directions appear contrary to ERISA. Fact issues bar dismissal for Northern Trust.
  • Disclosure duties despite securities-law tensions. Plan fiduciaries cannot invoke insider-trading restrictions to justify silence that injures plan participants; lawful options include public disclosure, eliminating company stock as a plan option, or alerting regulators.
  • Section 404(c) defense is fact-intensive. Whether the Savings Plan qualifies for § 404(c) protection (and thus limits fiduciary liability for participant-directed investments) cannot be decided at the pleading stage; even with § 404(c), fiduciaries retain duties to prudently select and monitor options.
  • Cash Balance Plan offset claim narrowed by Great-West. The plan design/amendment is a settlor function, but fiduciary claims about implementation during 1998–2000 survive insofar as Plaintiffs allege a duty to disclose that the “market” value used in the offset was artificially inflated; relief is confined to “equitable” remedies as defined by Great-West.
  • RICO claims dismissed under the PSLRA’s RICO Amendment. The alleged racketeering conduct is actionable as securities fraud; the criminal-conviction exception is narrow and was not triggered because convictions were not final (and only apply to convicted defendants).
  • Texas civil conspiracy claim preempted by ERISA (with limited carve-out not met here). The claim “relates to” core ERISA concerns and would create an alternate enforcement mechanism; phantom stock conspiracy claims were insufficiently pled and dismissed with leave to replead.
  • Negligent misrepresentation claim against Andersen not preempted by ERISA. As a professional malpractice claim (non-fiduciary), it can proceed under Texas law alongside ERISA claims.
  • Committees suable as unincorporated associations. The Court rejects capacity/service objections and finds plan committees may be sued in their common names under federal and Texas law.
  • Procedural dispositions. Numerous motions were granted in part/denied in part. RICO and state conspiracy claims were dismissed as to most non-ERISA defendants; ERISA claims against core fiduciary and co-fiduciary defendants largely proceed to discovery.

Analysis

Precedents Cited and Their Influence

Fiduciary status and “two-hat” doctrine. The Court grounded fiduciary status in ERISA’s functional definition (29 U.S.C. § 1002(21)(A)) and trust law principles (John Hancock; Mertens; Varity; Pegram). It emphasized:

  • Functional fiduciary status: One is a fiduciary “to the extent” of exercising discretionary authority or control over plan management or assets, or administration (Sommers; Landry; REICH v. LANCASTER).
  • Two-hat doctrine: Employers act as settlors when creating/amending/terminating plans (Curtiss-Wright; Lockheed v. Spink; Hughes Aircraft). But when communicating about plan benefits or managing plan assets, they wear the fiduciary hat (Varity; Pegram; Schlumberger).

Duties of loyalty, prudence, diversification, and adherence to plan documents. The Court reaffirmed ERISA § 404(a)(1) duties (29 U.S.C. § 1104(a)(1)) with reference to DONOVAN v. CUNNINGHAM, Bussian, and METZLER v. GRAHAM (factors for diversification). It underscored that plan documents are to be followed only “insofar as” consistent with ERISA (Central States v. Central Transport; Eaves; Moench).

Appointment/monitoring duty. The power to appoint/remove fiduciaries carries a duty to monitor (Coyne & Delany; LEIGH v. ENGLE; DOL Interpretive Bulletin 75-8). The Court distinguishes WorldCom ERISA Litig., noting that in Tittle there were actual appointments and alleged failures to monitor amidst red flags.

Duty to disclose. The Court canvassed Varity and Fifth Circuit authority (McDonald; Ehlmann; Schlumberger) and other circuits (Glaziers; Griggs; Bins; James v. Pirelli), concluding fiduciaries may owe an affirmative duty to disclose material facts to protect participants—especially under “special circumstances” with an “extreme impact” on participants. In light of Schlumberger, the Court rejected the “serious consideration” test and embraced a fact-specific materiality approach.

Directed trustee standard. Surveying FirsTier, Maniace, NationsBank, Koch, and trust-law sources (Restatement (Second) of Trusts § 185; Scott on Trusts), the Court declined to apply a purely “facial compliance” rule. It adopted a trust-law-informed “knows or should know” duty to inquire and not follow directions that are contrary to ERISA, giving Skidmore deference to DOL guidance. The Court found § 405(b)(3)(B) does not create blanket immunity and is, in context, a nullity.

§ 404(c) participant-directed plans. Relying on Unisys and DOL regulation 29 C.F.R. § 2550.404c-1, the Court held § 404(c) is an affirmative defense and fact-bound; even in § 404(c) plans, fiduciaries retain the duty to prudently select/monitor investment options.

Remedies under § 502(a)(3) after Great-West. The Court traced the evolution from Mertens to Great-West and rejected Strom’s pre–Great-West “make-whole as equitable” approach. Monetary relief must be equitable restitution (e.g., constructive trust/equitable lien on identifiable funds in a defendant’s possession). It cited Gerosa, Rego, and Helfrich to confine § 502(a)(3) remedies.

RICO/SLUSA preemption. The Court followed Bald Eagle and other authorities, enforcing the PSLRA’s RICO Amendment to bar RICO claims predicated on conduct actionable as securities fraud. The criminal-conviction exception applies only to defendants with final convictions. On SLUSA, the Court recognized hybrid “purchase/hold” pleadings trigger preemption and adopted § 10(b)’s “in connection with” jurisprudence (Zandford; Blue Chip Stamps), while noting pure “holding” claims are not securities claims.

Professional liability (non-fiduciary): The Court reaffirmed that accountants and other professionals providing services to plans are ordinarily non-fiduciaries (Mertens; Rutledge; Price Waterhouse), but may be liable under state malpractice law (not preempted by ERISA) and, under ERISA, as parties in interest in suits for appropriate equitable relief (Harris Trust).

Legal Reasoning and Application

1) Fiduciary breaches: investment in Enron stock and failures to disclose

Plaintiffs alleged fiduciaries permitted and encouraged participant-directed purchases and retention of Enron stock when prudence and loyalty required the opposite, and failed to disclose mounting red flags (e.g., Watkins’ warnings; public restatements; SEC inquiries). The Court held such allegations state claims:

  • Fiduciaries may not hide behind their settlor role if they were acting as plan administrators when communicating about plan options and risks (Varity; Schlumberger);
  • Even ESOP fiduciaries retain duties of loyalty and prudence (though diversification is excepted under § 404(a)(2));
  • Plan documents mandating or favoring employer stock do not override ERISA’s fiduciary norms where following them would be imprudent (Eaves; Moench).

2) Lockdown (blackout) claims against Northern Trust and plan fiduciaries

Against the backdrop of Enron’s October–November 2001 disclosures and the participants’ urgent pleas, the Court held Plaintiffs alleged a plausible breach of fiduciary duty by proceeding with blackouts that froze transfers while Enron’s stock collapsed. Critical to this ruling:

  • The trustee (Northern Trust) was a fiduciary with respect to plan assets regardless of whether it was “directed” or not; even a directed trustee must not follow directions it knows or should know are contrary to ERISA;
  • Amicus submissions (SPARK Institute vs. DOL) presented competing industry views, but factual disputes (trustee vs. recordkeeper roles; feasibility of delay) preclude dismissal;
  • Participants’ outcry and extraordinary market circumstances could trigger heightened disclosure and prudence obligations.

3) Failure to diversify the Savings Plan

The Savings Plan expressly required fiduciaries (Committee and Trustee) to diversify “unless clearly not prudent under the circumstances,” and vested the Trustee with investment responsibility subject to ERISA. Plaintiffs’ allegations that the plan was dangerously overweight in Enron stock (≈60%), and that fiduciaries neither investigated nor acted, stated a claim. The Court emphasized:

  • § 404(a)(2)’s ESOP diversification exception does not eliminate prudence; for 401(k) assets (and employer match “primarily” in stock), fiduciaries still must consider diversification where prudence demands it;
  • “Primarily” in employer stock leaves room for fiduciary judgment—especially when circumstances signal imprudence;
  • Metzler’s burden-shifting applies: Plaintiffs must show lack of diversification on its face; defendants then must show it was clearly prudent not to diversify.

4) Appointment and monitoring (Enron, Lay, Compensation Committee Directors)

The power to appoint and remove fiduciaries carries a duty to monitor performance and remedy breaches. The Court found sufficient allegations of:

  • Appointment authority vested in Enron/Board (including Compensation Committee members) by plan terms (including the controlling 1999 ESOP restatement);
  • Failure to monitor, despite internal alarms and public red flags, resulting in ongoing imprudent retention of Enron stock and defective plan administration.

5) Cash Balance Plan offset: fiduciary implementation vs. plan design; remedy limits

Plaintiffs did not challenge the plan design; they challenged fiduciary implementation during 1998–2000, when the “market” value used for the ESOP-linked offset was allegedly inflated by fraud. The Court held:

  • Plan amendment is a settlor act (not fiduciary), but fiduciaries implementing plan terms may owe disclosure duties under § 404 where the impact is “extreme”;
  • Relief under § 502(a)(3) is confined to equitable remedies under Great-West: no “make-whole” damages absent identifiable funds in defendants’ possession;
  • Injunctive relief could be moot for a completed phase-out; declaratory remedies depend on equitable character.

6) § 404(c) defense—premature and limited even if established

Whether the Savings Plan satisfies § 404(c) (broad range of options, sufficient information, frequency of transfers, etc.) is a fact question. Moreover, even a § 404(c) plan does not shield fiduciaries from liability for imprudent selection/monitoring of the menu or for concealment of material facts (per 29 C.F.R. § 2550.404c‑1(c)(2)).

7) Directed trustee standard—rejecting “facial compliance,” adopting “know or should know” duty

After detailed statutory, historical, and policy analysis, the Court held a directed trustee:

  • Remains a fiduciary “to the extent” it exercises authority/control over assets;
  • Must refuse directions it knows or should know are contrary to ERISA or plan terms;
  • Has a duty of reasonable inquiry under trust law when red flags suggest breaches by directing fiduciaries;
  • Cannot rely on an isolated “clear on its face” sentence in legislative history unmoored from statutory text.

8) ERISA v. federal securities laws—no safe harbor in silence

The Court rejected the proposition that insider-trading rules justify non-disclosure to plan participants. Fiduciaries had lawful paths:

  • Publicly disclose material adverse information (or force the company to do so);
  • Eliminate company stock as an investment option and employer match;
  • Alert regulators (SEC/DOL).

Selective disclosure to participants to “tip” them would violate securities law; instead, fiduciaries must act to protect plan interests in ways consistent with both regimes—ERISA and securities law.

9) RICO and SLUSA—preemption and dismissal

The Court dismissed the RICO claims because the alleged scheme is actionable as securities fraud (Bald Eagle). The criminal-conviction exception requires a final conviction and applies only to the convicted defendant, which was absent. On SLUSA, the Court recognized that state-law class claims alleging misstatements/manipulation “in connection with” covered securities are preempted; hybrid purchase/hold allegations cannot be evaded by artful pleading.

10) State-law claims: conspiracy preempted; accountant negligence survives

The civil conspiracy claim “relates to” ERISA plans and would afford alternative remedies, and is therefore preempted. By contrast, the negligent misrepresentation claim against Andersen is a professional malpractice claim against a non-fiduciary—routinely found not preempted—and was allowed to proceed under Texas law.

Impact

  • Directed trustees face heightened scrutiny. Trustees cannot simply follow directions; they must inquire and refuse if the direction violates ERISA. This materially affects banks and trust companies serving as “directed trustees,” especially during blackouts, corporate crises, or where employer stock is a plan option.
  • Fiduciary disclosure duties remain robust even alongside securities law. Plan fiduciaries cannot cite insider-trading law as a reason to withhold material information when participants’ retirement assets are jeopardized. Boards and plan committees must plan for lawful actions (public disclosure; option removal; regulator contact).
  • § 404(c) is no panacea. Plans cannot rely on participant choice to eliminate fiduciary risk where material information is concealed or menus are imprudently maintained.
  • Appointment/monitoring claims are viable against corporate boards/committees. Outside directors serving on compensation or related committees who appoint plan fiduciaries must monitor and act on red flags.
  • Cash-balance implementation claims survive but remedies are narrow. Plaintiffs may press fiduciary-duty claims about implementation under § 502(a)(3), but Great-West sharply limits monetary relief, raising the bar on tracing and equitable restitution.
  • RICO and broad state-law class remedies curtailed. The PSLRA’s RICO Amendment and SLUSA bar attempts to repackage securities fraud as RICO or tort class claims. ERISA remains the primary vehicle for plan-related relief; state-law malpractice claims against non-fiduciary professionals may coexist.
  • Committees as suable entities. ERISA litigation can name plan committees in their common names, simplifying service and party alignment.

Complex Concepts Simplified

  • ERISA fiduciary: Anyone who (i) exercises discretion over plan management; or (ii) exercises control over plan assets; or (iii) has discretionary administrative responsibility. It’s “functional”: titles don’t control.
  • Two-hat doctrine: Employers act as “settlors” when designing/amending plans—no fiduciary duty there. But they act as fiduciaries when managing assets or communicating about plan benefits/investments.
  • Directed trustee: A trustee subject to directions from a named fiduciary. Still a fiduciary as to assets; must refuse directions it knows or should know are ERISA-violative, and must inquire when red flags appear.
  • § 404(c) plan: A participant-directed plan that meets strict DOL conditions (range of options, information, frequency of changes). Even then, fiduciaries must prudently select and monitor investment options.
  • ESOP vs. 401(k): ESOPs are designed to invest primarily in employer stock (no diversification duty), but fiduciaries still owe loyalty and prudence. 401(k)s are individual account plans where diversification/monitoring duties remain central.
  • Great-West limit: “Equitable relief” under § 502(a)(3) generally means equitable restitution—like recovering specific funds still in a defendant’s hands—not compensatory money damages.
  • RICO Amendment (PSLRA § 107): Bars private civil RICO claims when the alleged racketeering is actionable as securities fraud. A narrow exception applies only if the defendant was criminally convicted and the conviction is final.
  • SLUSA: Preempts state-law securities class claims alleging misstatements/omissions or manipulation “in connection with” covered securities; intended to prevent end-runs around federal securities reforms.

Conclusion

The Tittle decision is a cornerstone ERISA ruling for crisis management in employer-stock plans. It squarely holds that:

  • Directed trustees bear real fiduciary duties: they must inquire and refuse improper directions;
  • Fiduciaries cannot shelter behind securities laws to justify silence that harms participants—lawful ERISA-consistent options exist;
  • § 404(c) defenses are fact-intensive and limited; selection/monitoring duties endure;
  • Settlors may design plans, but fiduciaries must implement them prudently and candidly, with remedies confined by Great-West;
  • RICO and broad state-law class claims are largely foreclosed in the securities-fraud context, steering litigants to ERISA and targeted malpractice claims.

Beyond Enron, the opinion provides a practical roadmap for plan fiduciaries, trustees, boards, and service providers navigating tumultuous corporate events. Its emphasis on inquiry, transparency, and fidelity to ERISA’s core protections reinforces that when retirement assets are at stake—especially in employer-stock settings—fiduciary obligations do not pause for market crises or perceived conflicts with other legal regimes. They intensify.

Case Details

In Re ENRON CORPORATION SECURITIES, DERIVATIVE "ERISA" LITIGATION, PAMELA M. TITTLE; THOMAS O. PADGETT; GARY S. DREADIN; JANICE FARMER; LINDA BRYAN; JOHN L. MOORE; BETTY J. CLARK; SHELLY FARIAS; PATRICK CAMPBELL; FANETTE PERRY; CHARLES PRESTWOOD; ROY RINARD; STEVE LACEY; CATHERINE STEVENS; ROGER W. BOYCE; WAYNE M. STEVENS NORMAN L.; AND PAULA H. YOUNG; MICHAEL L. McCOWN; AND DAN SCHULTZ, on behalf of themselves and a class of persons similarly situated, and on behalf of the Enron Corp. Savings Plan, the Enron Corp. Employee Stock Ownership Plan, and the Enron Corp. Cash Balance Plan, Plaintiffs VS. ENRON CORP., an Oregon Corporation; ENRON CORP. SAVINGS PLAN ADMINISTRATIVE COMMITTEE; ENRON EMPLOYEE STOCK OWNERSHIP PLAN ADMINISTRATIVE COMMITTEE; CINDY K. OLSON; MIKIE RATH; JAMES S. PRESTON; MARY K. JOYCE; SHEILA KNUDSEN; ROD HAYSLETT; PAULA RIEKER; WILLIAM D. GATHMANN; TOD A. LINDHOLM; PHILIP BAZELIDES; JAMES G. BARNHART; KEITH CRANE; WILLIAM J. GULYASSY; DAVID SHIELDS; JOHN DOES NOS. 1-100; UNKNOWN FIDUCIARIES OF THE ENRON CORP. SAVINGS PLAN OR THE ESOP; THE NORTHERN TRUST CO.; KENNETH L. LAY; JEFFREY SKILLING; ANDREW S. FASTOW; MICHAEL KOPPER; RICHARD CAUSEY; JAMES V. DERRICK, JR.; THE ESTATE OF J. CLIFFORD BAXTER, MARK A. FREVERT; STANLEY C. HORTON; KENNETH RICE; RICHARD B. BUY; LOU L. PAI; ROBERT A. BELFER; NORMAN P. BLAKE, JR.; RONNIE C. CHAN; JOHN H. DUNCAN; WENDY L. GRAMM; ROBERT K. JAEDICKE; CHARLES A. LEMAISTRE; JOE H. FOY; JOSEPH M. HIRKO; KEN L. HARRISON; MARK E. KOENIG; STEVEN J. KEAN; REBECCA P. MARK-JUSBASCHE; MICHAEL S. McCONNELL; JEFFREY MCMAHON; J. MARK METTS; JOSEPH W. BUTTON; ARTHUR ANDERSEN CO.; WORLDWIDE SOCIETE COOPERATIVE; ARTHUR ANDERSEN LLP; ARTHUR ANDERSEN UNITED KINGDOM; DAVID B. DUNCAN; THOMAS H. BAUER; DEBRA A. CASH; ROGER D. WILLARD D. STEPHEN GODDARD, JR.; MICHAEL M. LOWTHER; GARY B. GOOLSBY; MICHAEL C. ODOM; MICHAEL D. JONES; WILLIAM SWANSON; JOHN STEWART; NANCY A. TEMPLE; DONALD DREYFUSS; JAMES A. FRIEDLIEB; JOSEPH F. BERARDINO; ANDERSEN DOES 2 THROUGH 1800 UNKNOWN PARTNERS IN ANDERSEN LLP; MERRILL LYNCH CO., INC.; J.P. MORGAN CHASE CO.; CREDIT SUISSE FIRST BOSTON CORPORATION; CITIGROUP, INC.; SALOMON SMITH BARNEY INC.; VINSON ELKINS, LLP; RONALD T. ASTIN; JOSEPH DILG; MICHAEL FINCH; AND MAX HENDRICK, III, Defendants
Year: 2003
Court: United States District Court, S.D. Texas.

Judge(s)

Melinda Harmon

Attorney(S)

Lynn Lincoln Sarko, Britt L. Tinglum, Derek W. Loeser, Erin M. Riley, Keller Rohrback LLP, Seattle, WA, Ron Kilgard, Gary A. Gotto, Laurie B. Ashton, Keller Rohrback PLC, Phoenix, AZ, Steve W. Berman, Clyde A. Platt, Jr., Kevin P. Roddy, Karl P. Barth, Andrew M. Volk, Jeniphr A. E. Breckenridge, Christopher A. Jarvis, Hagens Berman LLP, Seattle, WA, R. Douglas Dalton, Dalton Gotto et al, Phoenix, AZ, James D. Baskin, III, The Baskin Law Firm, Austin, TX, James Eric Wren, III, Williams Squires et al, Waco, TX, Robin L. Harrison, Campbell Harrison et al, Randy J. McClanahan, McClanahan Clearman, Billy Jack Shepherd, Cruse Scott et al, John G. Emerson, Jr., Emerson Poynter LLP, Thomas E. Bilek, Hoeffner Bilek LLP, Tom Alan Cunningham, Cunningham Darlow et al, Paul Thomas Warner, Reich Binstock, Richard Eugene Norma, Douglas Norman, Bonnie E. Spencer, Spencer and Associates, Roger B. Greenberg, Schwartz Junell et al, William Charles Slusser, Slusser Frost LLP, Houston, TX, Cary Ira Schacht, Cynthia S. Schiffer, Raymond P. Harris, Jr., Whittenburg Whittenburg et al, Dallas, TX, George Whittenburg, Susan L. Burnette, C. Jared Knight, Karl L. Baumgarnder, Whittenburg Whittenburg et al, Amarillo, TX, Gary A. Orseck, Kathryn Schaefer Zecca, Lawrence S. Robbins, Robbins Russell Englert Orseck , Untereiner, LLP, Washington, DC, Amelia Rudolph, Sutherland Asbill et al, Atlanta, GA, Frank W. Morgan, Frank W. Morgan Asoc, The Woodlands, TX, Andrew M. Schatz, Robert A. Izard, Wayne T. Boulton, Schatz Nobel PC, Hartford, CT, G. Douglas Jones, Joe R. Whatley, Whatley Drake LLC, Birmingham, AL, Damon Michael Young, Young Pickett et al, Texarkana, TX, Mark Jeffrey Dearman, Dearman Gerson, Plantation, FL, Joseph H. Weiss, Weiss Yourman, Tzivia Brody, Stull Stull et al, New York City, Andy Wade Tindel, Provost Umphrey Law Firm, Tyler, TX, Thomas Walter Umphrey, Provost Umphrey, Beaumont TX, for Plaintiffs. Martin J. Bienenstock, Scott David Lassetter, John B. Strasburger, Weil Gotshal and Manges, Robin C. Gibbs, Gibbs Bruns, H. Bruce Golden, Golden Owens LLP, J. Clifford Gunter, III, Bracewell Patterson, George W. Billy Shepherd, III, Cruse Scott et al, Eric J.R. Nichols, Beck Redden Secrest, Jack C. Nickens, Nickens Keeton et al, Barry G. Flynn, Attorney at Law, Craig Smyser, Jr., Smyser Kaplan Veselka, Joseph D. Jamail, II, Jamail and Kolius, Murray J. Fogler, McDade Fogler et al, Linda L. Addison, Fulbright and Jaworski, J. Cal Courtney, Jr., Courtney Jaworski, J. Cal Courtney, Jr., Courtney and Associates, Russell "Rusty" Hardin, Jr., Rusty Hardin and Associates, Russell "Rusty" Hardin, Jr., Rusty Hardin and Associates, Edward John O'Neill, Jr., Jason Carrington Norwood, Clements O'Neill et al, Jacalyn D. Scott, Wilshire Scott et al, Richard Warren Mithoff, Jr., Mithoff and Jacks, Lawrence David Finder, Haynes Boone LLP, Taylor M. Hicks, Jr., Hicks Thomas et al, William Edward Matthews, Gardere Wynne et al, Brown, Jr., Orgain Bell et al, Houston, TX, Anthony C. Epstein, F. Michael Kail, Paul J. Ondrasik, Jr., Steptoe Johnson LLP, David Clarke, Jr., Keara M. Gordon, Piper Marbury et al, Bruce A. Hiler, Gregory Y Porter, Karen M. Wahle, Kathleen P. Kelly, O'Melveny Myers, Robert M. Stern, Attorney at Law, Luisa Caro, Michael D. Warden, Sidley Austin et al, Justin S. Antonipillai, Scott B. Schreiber, Arnold Porter, Gorge A. Borden, John K. Villa, Mary G. Clark, Williams Connolly LLP, David E. Ross, Mark C. Hansen, Kellogg Huber et al, Amy M. McNamer, Deborah J. Jeffrey, Karen Bell Eisenberg, Norman L. Eisen, Roger E. Zuckerman, Steven M. Salky, Zuckerman Spaeder LLP, Washington, DC, Amy Joseph Pedersen, William F. Martson, Zachary W.L. Wright, Tonkon Torp LLP, Portland, OR, James E. Coleman, Jr., Carrington Coleman et al, Gayle Anne Boone, Bracewell Patterson, Charles A. Gall, Rodney Acker, Jenkens Gilchrist, Dallas, TX, John J. McKetta, III, Graves Dougherty et al, Austin, TX, Christa M. Anderson, Jan Nielsen Little, John W. Keker, Keker Van Nest LLP, San Francisco, CA, Richard Bruce Drubel, Jr., Boies Schiller et al, Hanover, NH, Gregory P. Joseph, Attorney at Law, Bernard V. Preziosi, Eliot Lauer, Michael J. Moscato, Peter Fleming, Jr., Theresa Ann Foudy, Curtis Mallet-Prevost et al, Catherine E. Palmer, Latham Watkins, Alyssa A. Qualls, Brad S. Karp, Claudia Hammerman, Jonathan Hurwitz, Margaret E. McGuiness, Mark F. Pomerantz, Michael E. Gertzman, Richard A. Rosen, Robert C. Weisz, Robyn F. Tarnofsky, Todd A. Kipnes, Paul Weiss et al, Bruce D. Angiolillo, Christopher M. Caparelli, David J. Woll, George S. Wang, Jill M. O'Toole, John D. Roesser, Jonathan K. Youngwood, Nihara K. Choudhri, Pieter H.B. Van Tol, Thomas C. Rice, William M. Tong, Simpson Thacher et al, Joseph R. Wallin, Julie Ann North, Karin A. DeMasi, Margaret K. Dooley, Melissa J. Baily, Rachel G. Skaistis, Richard W. Clary, Cravath Swaine et al, James D. Miller, Clifford Chance US LLP, Marshall R. King, Robert F. Serio, Gibson Dunn Crutcher, New York, NY, Miles N. Ruthberg, Latham Watkins, Los Angeles, CA, Peter Wald, Latham Watkins, San Francisco, CA, J. Hoke Peacock, II, Orgain Bell Tucker, Beaumont, TX, for Defendants. Donald J. Myers, Douglas K. Spaulding, Michael B. Richman, Reed Smith LLP, Stephen M. Saxon, Groom Law Group CHTD, Washington, DC, for Amicus. Carolyn S. Schwartz, pro se, US Trustee, New York City, for Trustee.

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