DOL Sues ESOP Fiduciaries for Inflated Price of Purchase

The owner of Sentry Equipment Erectors, Inc. sold his shares to the plan at $406 per share, much greater than prices at which participants had previously sold their shares.

The U.S. Department of Labor (DOL) has filed a lawsuit against the fiduciaries of a Virginia-based employee stock ownership plan (ESOP), alleging the defendants failed to protect the assets of the plan as it purchased nearly $21 million in company shares from the president of Sentry Equipment Erectors Inc. who was also a trustee of the ESOP.

Filed in the Western District of Virginia, the lawsuit alleges that the owner of Sentry Equipment Erectors, Inc., Adam Vinoskey, sold his stock to the company’s ESOP at an inflated price in 2010. The overpayment caused a direct loss to the plan and constituted a prohibited transaction under the Employee Retirement Income Security Act (ERISA). The sale also directly injured plan participants who had already earned Sentry stock, as the value of their stock declined because of the company’s substantially increased debt load.  The ESOP’s fiduciaries took no action to protect these participants from large losses to their pre-existing retirement assets, the DOL says.

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According to the DOL, the alleged violations relate to a 2010 purchase of Sentry stock from Vinoskey. Before 2010, the plan had already purchased almost half of the company, though this earlier transaction is not in question. In December 2010, Vinoskey sold the ESOP his remaining 51,000 shares―52% of the company―at $406 per share, for a total sale price of $20,706,000. This price greatly exceeded that offered to other participants who had previously sold their shares back to the ESOP at prices ranging from $241 to $285 per share. Immediately after the purchase of the Vinoskey stock, the price offered to participants dropped below $285 per share.

An appraisal performed in November 2010 by Capital Analysts especially for the transaction provided the basis upon which the $406 per share price paid to purchase the Vinoskey stock was based, according to the lawsuit. This appraisal contained substantial errors that overstated the value of the company, leading to a share price far above fair market value.

The DOL’s suit seeks to restore all losses to the plan, in an amount determined by the court, and to have any profits gained by the defendants from the sale to be turned over to the plan. It also seeks to have plan fiduciaries removed.   

A copy of the complaint is here.

Actuary Makes the Case for Variable Benefit Plans

These are a type of DB plan where the accrued benefit is tied to market performance.

Variable benefit plans are a type of defined benefit (DB) plan and have been around for decades, according to Matt Klein, a principal and leader of the actuarial services practice at employee benefits consulting firm Findley Davies in Cleveland.

However, few sponsors and retirement plan advisers know much about them, he says, estimating that there are fewer than 100 of these types of plans in the United States. Nonetheless, he believes that sponsors and retirement plan advisers might be interested in them since they shift the investment risk off of the sponsor’s shoulders onto the participant’s—while moving the longevity risk over to the sponsor.

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Employers continue to shut down their pension plans, redeploying their employees into defined contribution (DC) plans, Klein notes. But unless participants are automatically enrolled into their DC plan at meaningful deferral rates into an appropriate qualified default investment alternative (QDIA), most DC participants fail to make appropriate investment and deferral decisions, he says. The DC system fails to properly prepare most people for retirement, he says.

A variable benefit plan is a type of pension plan that, unlike a traditional DB plan that promises a set return every year, fluctuates with the market, he explains. Hence the name variable benefit.

“Sponsors interested in a comprehensive benefits package that will be able to provide employees with a comfortable retirement might want to consider a variable benefits plan, which eliminates the traditional risks associated with defined benefit plans and provides a stable cost and contribution policy that fits better with companies’ goals and objective in the 21st century,” Klein says.

In a traditional DB plan, the employer takes on the investment risk, he explains. But when a pension plan faces a market correction, such as the 2008 financial crisis, assets decrease significantly while participants’ promised benefits remain intact, requiring the sponsor to make additional contributions to fund the plan at the precise time when they are typically facing a recession, Klein notes.

NEXT: Accrual and hurdle rates

Like a traditional DB plans, a variable benefit plan uses an accrual rate whereby the sponsor contributes a percentage of each participant’s salary to the plan each year and ensures that the assets are professionally managed. Unlike a traditional DB plan, however, a variable benefit plan establishes a hurdle rate, which is the percentage return goal for each year, Klein says. If the returns are actually higher than the bogey hurdle rate, the sponsor can increase the participants’ benefits—but if it is lower, they can reduce the benefits, Klein says.

“You would invest the assets in a variable benefit plan very differently than a traditional DB plan,” he says. “A lot of traditional DB plans are doing some sort of asset/liability matching or glide path strategy, matching bonds to expected cash flows coming out of the plan. With a variable benefit plan, you don’t have the downside risk keeping employers up at night. One way to approach investing in a variable benefit plan is to treat it like an endowment while still being cognizant of the downside risk.”

From the participants’ perspective, the key benefit of a variable benefit plan is that, like a traditional DB plan, when they retire, they receive an annuity that pays them a set monthly income, as opposed to a lump sum they would receive from a DC plan or even a cash balance plan, Klein notes.

He believes that because DC plans are so prevalent today, sponsors and participants are now accustomed to variable returns—and the fact that their balances could decrease—and that they might be more receptive to variable benefit plans.

“Part of my passion here is to try and educate employers and advisers that these plans do exist,” he says. “They meet all of the legal hurdles and requirements of the IRS, DOL and ERISA. They are a win/win for both plan sponsors and plan participants while splitting the investment and longevity risks between the employer and the participant.”

An additional reason why an employer might consider a variable benefit plan is that, unlike traditional pension plans that are typically underfunded and that require DB plan sponsors to pay 3% of their underfunding each year to the Pension Benefit Guaranty Corporation (PBGC), variable benefit plans remain 100% or very close to 100% funded. The reason for this is that the benefits rise or decrease as the plan’s returns exceed, meet or fall below the hurdle rate, Klein says. Therefore, variable benefit plan sponsors do not have to pay the annual penalty to the PBGC, only the minimal per-head cost, he says.

Findley Davies has created a white paper outlining the benefits of variable benefit, DB, DC and cash balance plans, titled, “The Future of Retirement Plans: Variable Benefit Plans.”  The paper makes the case that variable benefit plans strike the right balance between investment, interest or inflation, and mortality risk. 

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