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Bryant v. Community Bankshares, Inc.

United States District Court, M.D. Alabama, Northern Division

September 12, 2017

DAVE BRYANT, et al., Plaintiffs,
COMMUNITY BANKSHARES, INC., et al., Defendants.




         Defendant Community Bankshares, Inc. (“Bankshares”), maintained an Employee Stock Ownership Plan (“ESOP” or “Plan”). The ESOP, which was invested primarily in Bankshares's stock, was a retirement plan governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). See 29 U.S.C. §§ 1001, et seq. Plaintiffs Dave and Vikki Bryant were participants in the ESOP. In April 2009, having met the age and participation requirements, Plaintiffs were eligible to diversify a percentage of the employer stock in their individual ESOP accounts. They contend that Bankshares, as the Plan administrator, failed to follow the Plan's directives to implement their diversification elections by June 30, 2009, and to distribute shares of stock, which would have been subject to a put option binding against Bankshares based upon the preceding year's stock valuation of $11.00 per share. Instead, Bankshares suspended implementation of the diversification elections until after (1) an interim valuation revealed that in September 2009 the stock's worth had plummeted to $2.30 per share and (2) Bankshares and the Federal Reserve Bank had entered into a written agreement that prohibited Bankshares from redeeming put options. Thereafter, against this bleak backdrop, in November 2009, Bankshares offered to issue stock in satisfaction of the diversification elections but informed participants that it would not honor the put options. Bankshares also gave participants the option to change their 2009 diversification elections in light of this new information; however, Plaintiffs contend that this offer to receive the illiquid stock of a failing bank and the resultant tax liability presented no choice at all. Thus, Bankshares deprived Plaintiffs of their rights under the Plan to receive a distribution of shares and to exercise a put option, which would have required Bankshares to buy back the shares based upon the preceding year's stock valuation of $11.00 per share. The stock is now worthless.

         The Plan administrator defends its decision, contending that, given Bankshares's deteriorating financial condition, it acted in the best interests of all Plan participants by refusing to honor 2009 diversification elections, which under the Plan would have been subject to put options at the preceding year's stock valuation. It further contends that, in November 2009, the Bryants voluntarily submitted new diversification elections to keep their stock in the Plan and that these new elections voided their April 2009 diversification elections.

         This is the Bryants' second ERISA action against Bankshares and the Plan's fiduciaries to enforce Plan rights and obtain benefits under 29 U.S.C. § 1132(a)(1)(B).[1] Before the court are the parties' cross-motions for summary judgment. (Docs. # 57, 58.) On the § 1132(a)(1)(B) claim, [2] Plaintiffs' motion for summary judgment is due to be granted, and Defendants' motion for summary judgment is due to be denied. As to Defendants' motion for summary judgment on Plaintiffs' request for attorney's fees, the motion is due to be granted, and Plaintiffs' competing motion for summary judgment is due to be denied.


         The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). The parties do not contest personal jurisdiction or venue.


         The parties advance the issues in this ERISA action through cross-motions for summary judgment. In the typical case, summary judgment is appropriate when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). This is not the typical case, however. It is an ERISA action where the material undisputed facts are part of an administrative record[3] and where Rule 56 provides the procedural mechanism for disposing of legal issues; hence, the court “sits more as an appellate tribunal than as a trial court.”[4] Curran v. Kemper Nat'l Serv., Inc., No. 04-14097, at *7, 2005 WL 894840 (11th Cir. Mar. 16, 2005).

         The Eleventh Circuit, following guidance from the United States Supreme Court, has developed a six-step process to guide the district court's review of a plan administrator's benefits-denial decision and that review hinges on whether the plan gave the administrator discretion to deny the claim. See Blankenship v. Metro. Life Co., 644 F.3d 1350, 1355 (11th Cir. 2011) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), and Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008)). The court elaborates upon and employs this process in Part V.


         A. Parties

         At all times relevant to the events in this litigation, Bankshares had its headquarters in Cornelia, Georgia, and was the holding company of several banks, including Community Bank & Trust-Alabama in Union Springs, Alabama (“Alabama Bank”), and Community Bank & Trust-Habersham in Cornelia, Georgia (“Georgia Bank”).[5] Mr. Bryant was the president and chief executive officer of the Alabama Bank and the vice chairperson of its Board. His spouse, Plaintiff Vikki Bryant, was an employee of the Alabama Bank.

         Bankshares maintained an ESOP for its employees and for the employees of affiliated employers, and Plaintiffs were participants in the ESOP. The Plan established a trust fund to hold the assets of the Plan and delegated the operation and management of the Plan and the trust fund to fiduciaries. The individual Defendants-Steven C. Adams (now his estate); Elton S. Collins; Edwin B. Burr; Wesley A. Dodd, Jr.; William R. Stump, Jr.; and Mary Wilkerson-had fiduciary responsibilities for the administration of the Plan and Trust. Dodd, Stump, and Wilkerson served, successively, as the Plan administrator's appointees, and the Plan named Adams, Burr, and Collins as trustees.[6] (See Plan, §§ 1.19, 1.29, 1.35.)

         The Plan administrator, whom the Plan designated as Bankshares or as individuals or entities appointed by Bankshares, “ha[d] sole responsibility for the administration of the Plan.” (Plan, §§ 1.29, 7.1.) The Plan trustee “ha[d] sole responsibility for management of the assets held under the Trust.” (Plan, § 7.1.) However, “[n]o Fiduciary guarantees the Trust Fund in any manner against investment loss or depreciation in asset value.” (Plan, § 7.1.)

         B. The ESOP

         1. Generally

         An ESOP is a “defined contribution plan” that is “designed to invest primarily in qualifying employer securities.” 26 U.S.C. § 4975(e)(7). It is “a type of pension plan intended to encourage employees to make their employees stockholders.” Steinman v. Hicks, 352 F.3d 1101, 1102 (7th Cir. 2003).

         Bankshares established and maintained the ESOP through a written instrument that defined the terms of the Plan and the rights of participants. Bankshares was the sole source of funding for the Plan and made annual contributions to the trust, which invested primarily in Bankshares's stock and secondarily in cash. Eligibility to participate in the Plan required an employee's completion of one year of service during which the employee had worked at least 1, 000 hours. In 2009, there were 459 participants in the Plan.

         2. The Plan Provisions

         The focus of this litigation is on the Plan's terms governing an eligible participant's rights to diversify his or her individual account investments (§ 8.3) and to exercise a put option on the distribution of employer stock in satisfaction of a diversification election (§ 5.8). The interplay between these two provisions (which themselves are intertwined) and the provision governing the Plan administrator's fiduciary duties (§ 8.4) also is at issue. Because the Plan administrator and trustees had to discharge their duties in accordance with the Plan provisions, see 29 U.S.C. § 1104(a)(1)(A), §§ 8.3, 5.8, and 8.4 are set out verbatim.

         Section 8.3 of the Plan titled, “Diversification of Investments, ” provides:

Each Eligible Participant shall, during any Qualified Election Period, be permitted to diversify the investment of a portion of his Employer Contribution Account in accordance with the provisions of this Section 8.3. Each Eligible Participant may elect, in a writing delivered to the Plan Administrator within ninety (90) days after the close of each Plan Year during the Qualified Election Period, to diversify the investment of twenty-five percent (25%) of such Participant's Employer Contribution Account in the Plan, determined as of the Annual Valuation Date for the Plan Year preceding the Plan Year in which such election is made (to the extent such portion exceeds the amount to which a prior election under this Section 8.3 applies); provided that in the case of the election year in which the Participant is permitted to make his last such election, fifty percent (50%) shall be substituted for twenty-five percent (25%) in applying this Section 8.3. For purposes of this Section 8.3 a Participant's Employer Contribution Account at the end of any Plan Year shall be deemed not to include any amount contributed to the Plan after the end of such Plan Year, even if allocated as of the end of such Plan Year.
An Eligible Participant electing to diversify his Account shall direct the Plan Administrator to distribute (or transfer to an Individual Retirement Account or another qualified retirement plan) shares of Company Stock, rounded to the nearest whole share, equal to that portion of the Participant's Employer Contribution Account that is covered by the election. Such transfer or distribution shall be made no later than ninety (90) days after the last day of the Qualified Election Period during which such Participant directed such investment.
No fiduciary of the Plan shall have any liability for investments and reinvestments made under this Section 8.3 pursuant to the direction of an Eligible Participant. The account of an Eligible Participant who directs the investment of a portion of his Employer Contribution Account shall be charged with all costs and expenses of such investment or reinvestment or of any other transaction hereunder at the request of the Participant, as well as all income, gains, losses, etc. attributable to such investment or reinvestment.

(Plan, § 8.3 (Doc. # 57-3, at 18-19).)[7]

         The Plan also defines the terms in § 8.3. An “eligible participant” is an employee who has attained at least the age of 55 and has at least ten years of participation in the Plan. (Plan, § 1.12.) A “qualified election period” is “[t]he six (6) Plan Year period beginning with the first Plan Year in which the relevant Participant first becomes an Eligible Participant.” (Plan, § 1.31.) A “plan year” is a calendar year (Plan, § 1.30), and the Annual Valuation Date is “December 31 of each Plan Year” (Plan, § 1.36).[8]

         Under § 8.3, eligible participants were entitled to receive shares of stock only, not cash. But the Plan also gave participants a “put” option that was binding on Bankshares at any time when its stock was not publicly traded. Section § 5.8, titled, “Participant's Right to Put Company Stock to the Company and the Plan, ” provides as follows:

(a) General - Any Participant (or his Beneficiary) receiving a distribution of Company Stock from the Plan at a time when such Company Stock is not readily tradeable on an established market shall have a “put option” on such shares, giving him the right to have the Company purchase such shares. . . . The same right shall apply to any Company Stock distributed to a Participant (or his Beneficiary), at a time when such Company Stock is not readily tradeable on an established market. The put option shall be exercisable during the following two election periods by giving notice in writing to the Company:
(i) the first option period shall be the sixty (60) day period commencing on the date of distribution of the shares of Company Stock; and
(ii) the second option period shall be the sixty (60) day period commencing on the date the fair market value of the Company Stock is determined (and the Participant or Beneficiary is notified of such determination) as provided for in Section 4.2 for the Plan Year next following the Plan Year in which such shares are distributed.
The Plan may be given the opportunity to purchase shares of Company Stock tendered to the Company under the put option, as described in subsection (c) hereof. Except to the extent otherwise required by law, the put option hereunder shall not apply at any time that the Company Stock is readily tradeable on an established market.
(b) Price and Payment - The price at which the put option shall be exercisable is the fair market value as of the Annual Valuation Date which precedes the date the put option is exercised except in the case of a put option in favor of a “disqualified person” (as defined in Code Section 4975) in which event the fair market value shall be determined as of the date of the transaction. Payment for the shares of Company Stock put to the Company may be made in cash or in installments, not less frequently than annually, over a period not exceeding five (5) years, at the election of the Company. If the purchase price is paid in installments, a reasonable interest rate, reflecting then prevailing market interest rates, must be provided. Closing of the sale shall take place and any installment payments shall begin within thirty (30) days after the put option is exercised.
(c) Right of Plan - The Plan shall have the option by notice in writing to the Company to assume the rights and obligations of the Company under the put option provided for herein at the time the put option is exercised. The put option provided for hereunder shall not bind the Plan to purchase the Company Stock. In any case in which the Plan assumes the rights and obligations of the Company under the put option and payment for the stock is to be made in installments, the Company shall guarantee payment of the Plan's obligations to the Seller.

(Plan, § 5.8(a)-(c).)

         As the Plan language reveals, §§ 5.8 and 8.3 work together. To summarize, an eligible participant-one who had participated in the plan for ten years and had attained the age of at least 55 years-could make a diversification election within the 90-day period following the close of each plan year in the six-plan-year qualified election period. For the first five 90-day annual election periods, the Plan gave an eligible participant the option to diversify 25% of his or her account balance that was invested in employer securities, reduced by any amounts previously diversified. During the sixth and final 90-day election period in the qualified election period, an eligible participant could diversify 50% of stock shares in his or her account balance, reduced by amounts previously diversified. The value of the account balance was its value on the Annual Valuation Date.[9]

         Because Bankshares' stock was not publicly traded on an established market, Bankshares was bound by § 5.8(b). When a participant received a distribution of Bankshares stock pursuant to a diversification election, the participant could exercise the put option within 60 days after the distribution of the stock or during the first 60 days of the following plan year. The date of the stock's distribution, thus, triggered the time frame during which a participant could exercise the put option. The only way for an eligible participant to receive cash for stock distributed pursuant to a diversification election was through the put option. The price of the shares for purposes of the put option was the fair market value of the shares on the Annual Valuation Date preceding the year in which the participant exercised the put option. Because the value of the put option was based on the preceding year's annual valuation, the value increased when the stock value decreased but decreased when the stock value increased.

         There is no Plan language in the section that defines the Annual Valuation Date (§ 1.36) or in § 5.8 that permits Bankshares to use a date other than the Annual Valuation Date when placing a value on Bankshares's stock for purposes of buying back the shares under a put option.[10] But, as Bankshares emphasizes, under § 8.4 of the Plan, the Plan administrator had a general fiduciary obligation to exercise its authority for the benefit of all Plan participants. This section provided that:

The Plan Administrator, the Investment Committee, the Trustee and any Investment Manager (and any other party who may, at any time be serving as a Fiduciary with respect to the Plan) shall discharge their duties solely in the interest of the Participants, for the exclusive purpose of providing benefits to the Employees as herein described and defraying reasonable expenses of administration, in accordance with the Plan and consistent with the fiduciary responsibility provisions of ERISA Title I, and with the care, skill, prudence and diligence, under the circumstances then prevailing, that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims.

(Plan, § 8.4.)

         C. The ESOP's Annual Valuation of Bankshares's Stock in 2008

         The Plan required an independent appraiser to conduct a yearly assessment as of December 31 (i.e., the Annual Valuation Date) of the trust fund's fair market value; hence, the value of Bankshares' stock was “its fair market value on such Annual Valuation Date . . . .” (Plan, § 4.2(a).) To obtain the annual valuation of its shares of common stock as of December 31, 2008, Bankshares hired an independent appraiser, Burke Capital Group (“BCG”), a division of Morgan Keegan and Company. BCG's report, dated March 20, 2009, and titled, “Determination of the Fair Market Value of the Common Stock of [Bankshares] for ESOP Valuation Purposes as of December 31, 2008, ” placed an $11.00 per share value on Bankshares's stock. The report explains that BCG's “[v]aluation is solely of the fair market value of the Company's shares as of December 31, 2008 for ESOP valuation purposes and may be materially different at any date other than the valuation date.” (Bankshares's Valuation of Fair Market Value of Common Stock for ESOP Valuation Purposes as of Dec. 31, 2008, at 13 (Doc. # 57-10, at 13).)

         D. Plaintiffs' April 2009 Diversification Elections

         In April 2009, Plaintiffs had satisfied the age and service requirements to qualify to diversify a percentage of the employer stock in their individual ESOP accounts. Mr. Bryant was eligible to make a 50% election, and Mrs. Bryant was eligible to make a 25% election.

         The Bryants each received an ESOP Investment Diversification Notice from Bankshares, dated February 25, 2009. The Notice informed Mr. Bryant that:

Under the terms of [the Plan], your account balance is invested primarily in stock issued by the plan sponsor. However, the plan allows you to tell the trustee how you want a portion of your plan account invested. You may elect to have this amount (1) paid directly to you, (2) transferred to an IRA, (3) transferred to the [Bankshares's] 401(k) Plan, or (4) remain invested in employer securities under this plan.
The amount subject to your direction is 50% of your account balance invested in employer securities adjusted for any previous distributions, transfers or diversification.
Please complete this form and return it to Wes Dodd no later than April 15, 2009. Your direction will be implemented no later than June 30, 2009.

(Mr. Bryant's ESOP Investment Diversification Notice, at 2 (Doc. # 57-8).) Mr. Bryant checked the option on the Notice “to transfer the shares subject to my election to an IRA.” Mrs. Bryant also received a similar Notice, informing her that she had the right to diversify “25% of [her] account balance invested in employer securities.” (Mrs. Bryant's ESOP Investment Diversification Notice, at 2 (Doc. # 57-9).) She, like her husband, selected the option “to transfer the shares subject to my election to an IRA.” (Id.) The signature date on each Plaintiff's Notice is April 14, 2009.

         Although the Plan required eligible participants to make their elections by March 31 of each Plan year, the Plan Administrator “allowed participants until April 15 to make their diversification elections.” (Stump's Aff., at 3 (Doc. # 58-5).) Presumably, for this reason, the timeliness of the Bryants' diversification elections is not an issue.[11] There also is no dispute that the Bryants properly exercised their rights under the Plan to make a diversification election.

         E. The Bryants' Account Balances as of the December 31, 2008 Annual Valuation Date

         The value of the Bryants' accounts as of the Annual Valuation Date (December 31, 2008) is as follows. Mr. Bryant held 9, 197.930607 shares of Bankshares stock in his ESOP. The cumulative monetary value of the shares (calculated by multiplying the units of shares by $11.00 per share) was $101, 177.24. Mr. Bryant's account also had $8, 946.30 in cash. (Mr. Bryant's ESOP Account Balance, at 2 (Doc. # 57-25).) Mrs. Bryant's account held 880.205842 shares of Bankshares stock. The cumulative monetary value of the shares (calculated by multiplying the units of shares by $11.00 per share) equaled $9, 682.26. Mrs. Bryant's account also had $1, 704.12 in cash. (Mrs. Bryant's ESOP Account Balance, at 3 (Doc. # 57-25).)

         F. Events Subsequent to June 30, 2009

         In the ESOP Investment Diversification Notices, Bankshares informed participants it would implement participants' diversification elections by June 30, 2009. That deadline came and went. Then, on September 16, 2009, with diversification elections still unfulfilled, Bankshares entered into a written agreement with the Federal Reserve Bank (“FRB”) and the Georgia Bank Commissioner. The written agreement prohibited Bankshares from purchasing or redeeming its stock without prior consent from the FRB and the Bank Commissioner.

         G. The September 30, 2009 Special Valuation

         Suspecting that the value of its stock had declined markedly, Bankshares hired BCG to prepare a special valuation of the fair market value of its common stock. On October 23, 2009, Bankshares received the valuation, which revealed that, as of September 30, 2009, Bankshares stock value had plummeted to $2.30 per share. (ESOP, eff. 10/30/2009 (Doc. # 57-11).) According to Defendants, “[t]he September 2009 Special Valuation supplemented and revised the December 2008 Annual Valuation”; however, as discussed later in this opinion, Defendants do not point to any provision in the governing Plan, and the court found none, that permitted a revaluation for purposes of implementing diversification elections or for valuing put options. (Defs. Resp. to Interrog. No. 19 (Doc. # 64-1, at 10).) Also, around this time, Bankshares's Vice President of Human Resources Mary Wilkerson became the Plan administrator and orally informed Mr. Bryant that the Plan would not be implementing any of the participants' April 2009 diversification elections. (Mr. Bryant's Dep., at 16-19 (Doc. # 57-28).)

         H. The November 2, 2009 Letter from Bankshares to the ESOP Participants and Plaintiffs' November 30, 2009 Diversification Requests

         In a letter dated November 2, 2009, Bankshares notified all Plan participants of the results of the special valuation and the stock's $2.30 per share value. This letter informed Plan participants that the ESOP did not “have enough cash, or the ability to raise additional cash, to implement fairly participants' diversification elections, given the obligation to operate the ESOP in the interests of all participants and beneficiaries.” (Bankshares's Nov. 2, 2009 Update on ESOP Issues (Doc. # 57-13).) The letter provided notice to the Bryants that: (1) The Plan would “honor” prior diversification elections, but that distributions would be in shares of common stock only; (2) that the ESOP would not offer a put option on stock distributions; (3) that Bankshares would reinstate the put option when the Federal Reserve Bank lifted the restriction on Bankshares from redeeming its shares of stock, but that the price of the put option would be based on the “fair market value at that time and in accordance with such rules as the Plan Administrator may establish.” (Bankshares's Nov. 2, 2009 Update on ESOP Issues (Doc. # 57-13, at 3-4).) The letter further warned Plan participants who opted to make diversification elections that the distribution of common stock would be a taxable event, but that Plan participants could “rollover the distribution to an IRA and avoid current taxation.” Finally, Bankshares informed participants that the ESOP would permit participants to change their current diversification election based on the then-current financial situation.

         In conjunction with the foregoing letter, Bankshares sent each Plaintiff another ESOP Investment Diversification Notice. It was the same Notice dated February 25, 2009, but the February 25, 2009 date was marked through and replaced with a handwritten date of November 30, 3009. Both Plaintiffs filled out this form and elected for their shares to remain invested in the Plan. (Docs. # 57-14, 57-15.) Because Plaintiffs did not receive a distribution of stock after making their April 2009 diversification elections, they did not have the opportunity to exercise a put option.

         I. The Collapse of the Bank and Its Aftermath

         On January 29, 2010, the Georgia Department of Banking and Finance closed the Georgia Bank and named the FDIC as receiver.[12] Between September 30, 2009, and December 31, 2009, the value of Bankshares's stock dropped from $2.30 to $0.15 per share.

         On or about June 23, 2011, Mr. Bryant received a distribution of the cash in his ESOP account, totaling $8, 806.53, and Mrs. Bryant received a distribution of the cash in her ESOP account, totaling $1, 667.31. The Bryants' stock remains in their ESOP accounts, but it is worthless.

         In 2012, Bankshares's board of directors became the Plan administrator. As of March 29, 2012, Bankshares's board of directors had voted to terminate the Plan; however, on May 28, 2016, the date Stump signed his summary judgment affidavit, the termination still was not effective. (Stump's Aff. ¶¶ 3, 38 (Doc. # 58-5); see also Minutes, Bankshares Bd. of Directors Meeting, 03/29/2012 (noting that a request to terminate the Plan had been filed with Internal Revenue Service (Doc. # 58-5, at 19).) Because the Plan appears for all practical purposes to be defunct, references in this opinion to the Plan are in the past tense.

         J. Plaintiffs' First Lawsuit and Exhaustion of Administrative Remedies

         On June 29, 2012, Plaintiffs filed their first ERISA lawsuit in this court against Defendants. (Bryant, v. Community Bankshares, , No. 2:12-CV-562-MEF (M.D. Ala. June 29, 2012).) The action was dismissed on March 3, 2014, without prejudice, for Plaintiffs' failure to exhaust their administrative remedies. Subsequently, the Bryants initiated the administrative review process.

         By letter dated March 12, 2014, Plaintiffs' counsel submitted a written claim to the Plan administrator under § 7.3 of the Plan, asserting that the “crux of [Plaintiffs'] claim is that [the Plan administrator] had a contractual obligation to diversify the Bryants' accounts and failed to do so.”[13] (Pls.' March 12, 2014 Claim for Benefits, at 3 (Doc. # 1-9).) Plaintiffs asked for specified monetary relief, which they calculated based on 50% of the value of Mr. Bryant's account and 25% of the value of Mrs. Bryant's account. The Plan Administrator, in letters dated June 9, 2014, separately denied each Plaintiff's claim:

Ordinarily, the Plan Administrator would have been obligated to implement [the Bryants'] April 2009 Diversification Request on or before June 30, 2009. At the time, however, [Bankshares's] stock had dramatically declined in value from $11.00 per share in December 2008 to just $5.20 per share in June 2009, and [Bankshares's] financial situation was deteriorating further. [Bankshares] knew that the value of its shares would continue to decrease (and indeed, they fell to just $2.30 by November 2009.) If the stock had been transferred to [the Bryants'] IRA[s], [Bankshares] was not in a position to honor the put option to repurchase the stock, nor did [Bankshares] have a good valuation for the stock since it was declining so rapidly in value. The Plan also could not distribute cash to [the Bryants] (or other participants electing diversification of their account[s]) for the value of stock because that would have had an adverse effect on other Plan participants. [Bankshares] decided to suspend all diversification requests until it could develop a plan that would be fair and equitable to all Plan participants. [Bankshares] had a fiduciary responsibility to act for the benefit of all participants and [Bankshares] could not honor diversification elections to the detriment of other Plan participants. As a result, [Bankshares] properly concluded that it could not grant [the Bryants'] April 2009 Diversification Request.
[The Bryants'] Claim is also denied because [the Bryants] ultimately elected for [their] shares to remain invested in the Plan. In [their] November 2009 Diversification Request, [the Bryants] voluntarily elected for [their] shares to remain invested in the Plan. [The Bryants] could have directed the Plan to transfer [their] shares to an IRA and the Plan would have done so. [The Bryants] executed [their] November 2009 Diversification Request and submitted it to the Plan Administrator. [The Bryants'] November 2009 Diversification Request[s] ...

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