fiduciary for the 401(k) Plan. (Defs.’ Mot. Dismiss 10.) The Investment Committee selected and monitored the 401(k) Plan’s investments. (401 (k) Plan § 8(b)(i).) Relying on Citigroup, Defendants argue that Morgan Stanley, MS & Co., the MS & Co. Board, and Mack were not fiduciaries with respect to Plaintiffs’ imprudence claim because they lacked any fiduciary duties to add or eliminate investment funds and lacked the authority to veto investment options. (Defs.’ Mot. Dismiss 10-12.) However, they were de facto fiduciaries of the Plans because Morgan Stanley, MS & Co., the MS & Co. Board, and Mack had the authority to determine whether to make contributions in either cash, or Company stock. In re Fannie Mae ERISA Litig., No. 09 Civ. 1350, 2012 WL 5198463, at *2 (S.D.N.Y. Oct. 22, 2012) (<HOLDING>); Morgan Stanley, 696 F.Supp.2d at 356-57;
holding that professionals who advised the plan were not fiduciaries because they had no decision making authority over the plan or plan assets also noting that the power to act for the plan is essential to status as a fiduciary holding defendants were fiduciaries because they had discretion to determine the extent of the companys annual contribution to the plan and whether the contribution would be made in  stock or cash recognizing a right to contribution recognizing contribution in the appropriate case holding that the principal test of substantial contribution is extent of benefit to the estate