ESOP Fiduciaries Don't Escape Liability for Mispriced Stock Purchases

An appellate court agreed with a lower court that the fiduciaries failed to act in participants’ best interest and to monitor providers.

The 5th U.S. Circuit Court of Appeals has found that fiduciaries of Bruister and Associates, Inc. (BAI) employee stock ownership plans (ESOPs) violated their duties of prudence and loyalty under the Employee Retirement Income Security Act (ERISA) regarding company stock purchases to the ESOP.

In a three-year period from 2002 to 2005, BAI’s owner Herbert C. Bruister sold 100% of his BAI shares (also representing 100% of BAI’s outstanding shares) to BAI’s employees through a series of transactions with the ESOPs.  Bruister and Amy O. Smith are named defendants in the suit.

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The trustees set the sales price for each transaction based on valuations of BAI’s fair market value performed by Matthew Donnelly. The Department of Labor (DOL) and other named plaintiffs dispute whether Donnelly was truly independent and whether the trustees’ reliance on his valuations was reasonably justified. The basic claim is that the valuations were inflated, which caused the ESOP, and therefore BAI’s employees, to pay too much for the BAI stock. BAI suffered serious business reverses and went out of business in August 2008.

The appellate court found the U.S. District Court for the Southern District of Mississippi did not err in finding “[t]he  duty  of  loyalty  was  breached  from  start  to  finish.”  The 5th Circuit noted that among other things, the lower court found that Bruister: fired the ESOP’s counsel for being “too thorough;” caused David Johanson, Bruister’s personal lawyer, to influence Donnelly’s supposedly independent valuations to get the highest selling price he could for himself; caused Donnelly to send “valuation drafts to the seller [Bruister] before sending them to the buyers [ESOP trustees] to whom he owed his sole allegiance;” cut the ESOP’s counsel out of all communications regarding valuation; adjusted assumptions and figures used by Donnelly to obtain a higher valuation; and generally, did not “speak up for the ESOP participants.” 

NEXT: Failing to act in participants’ best interest and to monitor providers

The District Court also concluded that the trustees were affected by Bruister’s self-interest and thus failed to act solely in the interest of the ESOPs’ beneficiaries and participants. According to the appellate court, testimony from the trustees challenged the lower court’s findings, but the testimony was “far from sufficient to demonstrate clear error” on the district court’s part.

The appellate court also agreed with the District Court’s findings that the trustees, including Smith, conducted insufficient investigation into Donnelly’s background and qualifications; overlooked communications in which “Donnelly and Johanson were obviously working together to increase the value” of the shares in question; failed to inform Donnelly of significant information and risk factors for the company that should have influenced his valuation; and failed to double-check or significantly review Donnelly’s ultimate conclusions. 

In its opinion, the 5th Circuit wrote: “The trustees’ actions were not those of prudent men.”

In 2014, the U.S. District Court for the Southern District of Mississippi issued a judgment and order requiring fiduciaries to pay more than $6.48 million to the two employee stock ownership plans sponsored by BAI. The appellate court approved this amount.

Last month, a federal judge has entered a consent order expanding substantially the scope of a previous judgment and order between the DOL and Johanson. The judgment settled the DOL’s allegations that Johanson and his prior law firm committed contempt of a previous consent order.

The 5th Circuit’s opinion goes on to clarify some of the legal issues surrounding leveraged ESOP sales presented by the case. The text of the opinion is here.

ABC Requests Meeting With IRS About New Mortality Assumptions

The American Benefits Council explains in a letter to the IRS that more time is needed before they go into effect.

The American Benefits Council (ABC) recently sent a letter to the Internal Revenue Service requesting a meeting to discuss allowing for more time before the new mortality assumptions on defined benefit (DB) plans go into effect. In the letter, ABC says it “strongly supports” the effort to update the mortality tables, but has concerns about the date that they go into effect because of the significant changes that will have to be made.

According to ABC, making the new assumptions effective for plan years beginning after December 31, 2016, would cause three main problems: One, there would not be sufficient time for a robust policy discussion of this issue, including a public hearing. Two, the new assumptions would have an “enormous” effect on plan sponsors’ funding obligations. “Plan sponsors will generally need at least a 12-month period between publication of the final rules and the effective date in order to adjust business plans to take into account the new assumptions,” ABC writes in its letter. And three, significant changes to administration/pension calculation systems and valuation calculations and programs (e.g., new relative value regulation compliance systems and possible use of a two-dimensional mortality improvement scale) will likely be needed to comply with new rules, adding to the need for at least a 12-month period between finalization and effective date.

“For the large number of plans that offer lump sums and other payments subject to Section 417(e), updating systems, especially if two-dimensional mortality improvement scales are required, will be very time consuming, particularly in light of the need to certify the systems and to review the new rules with plan sponsors,” ABC says.

ABC listed general tasks that the Council members would need to conduct, especially for DB plan benefit certification. This includes developing a project scope and changing coding to meet any final regulation; preparing and checking test cases; complying with external industry professional requirements and more.

“This process cannot be squeezed into a short period of time in the case of very significant and complicated changes,” ABC writes. “At least a year is needed between the date of finalization and the effective date of the new assumptions.”

The full letter is available here.

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