Decision Finds Wilmington Trust Liable for ESOP Damages

By John Manganaro | March 17, 2017
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The lengthy text of the decision outlines the recent history of the company, explaining how equity ownership had transitioned within the firm prior to its acquisition by another competitor. After some early shifts and reorganizations, the company approached its general counsel about forming a new ESOP in June of 2013. Leadership at the time apparently viewed the ESOP both “as an exit strategy while being consistent with the vision of Constellis as a company focused on taking care of its employees.”

The company leadership, according to the text of the decision, debated whether to pursue a traditional ESOP structure or a structure under which 90% of the shares would be sold to the ESOP, while the remaining 10% would be exchanged for “equity-like warrants.” The warrants would be “financial instruments entitling the sellers to buy back equity in Constellis at a designated price, known as the strike price, during a certain period of time.” This would allow the sellers as warrant holders to retain significant elements of control over the company, most notably the ability to appoint a majority of the board of directors. Under the proposed plan, the ESOP was to borrow from the sellers to buy their stock, meaning the sellers would also become the company’s creditors.  

For its services as trustee, Wilmington charged Constellis a flat fee of $150,000 to be paid regardless of whether or not the ESOP transaction closed. If the transaction closed, the firm would also receive a minimum payment of approximately $80,000 per year in fees for serving as ongoing trustee. The court finds no evidence these were unreasonably assessed.

Problems arose when it came to the step of valuing the closely held company, according to the decision. One early estimate received by the firm pegged its value at just $165 million. However more generous estimates of $290 million and $345 million were also made, and the final settling price paid by the ESOP was close to the top end of these estimates. A significant portion of the bench trial was apparently spent dissecting the various methods used by various contracted experts to reach the final figure.

In the end the court found that Wilmington “rushed its evaluation of the Constellis ESOP, failed to follow its own policies, and failed to adequately vet [other valuators’] conclusions.” This became a pressing issue for employees when company leadership terminated the ESOP just seven months after its creation, during the subsequent sale of the company to another organization, ACADEMI, for a total purchase price of $281 million. The transaction resulted in the termination of the ESOP and thereby cemented significant participant losses compared with the previous valuations.

The full text of the decision is here