ESOP Trustee Cleared of ERISA Wrongdoing

The trustee of an employee stock ownership plan (ESOP) acted in good faith when it determined the fair market value of company stock, so it did not violate prohibited transaction rules, a judge has determined.

With that holding, U.S. District Judge David N. Hurd of the U.S. District Court for the Northern District of New York cleared U.S. Trust Co. of California of wrongdoing in connection with charges it violated the Employee Retirement Income Security Act (ERISA).

Hurd ruled that U.S. Trust had shown that it had acted in good faith when it determined a fair market value of company stock shares purchased by Champlain Enterprise’s ESOP, despite allegations U.S. Trust had allowed the ESOP to obtain the shares at an inflated price.

Want the latest retirement plan adviser news and insights? Sign up for PLANADVISER newsletters.

While repeating an earlier determination that the stock sale to the ESOP was a prohibited transaction under ERISA Section 406(a)(1)(A), Hurd nevertheless ruled that U.S. Trust had no liability for this prohibited transaction because its actions fell under ERISA Section 408(e)‘s prohibited transaction exception.

Hurd said that to qualify for the Section 408(e) exception, U.S. Trust had to show that the ESOP paid no more than the fair market value of the stock as determined “in good faith by the trustee or named fiduciary.” The court decided that U.S. Trust had acted in good faith and as such could rely on the Section 408(e) exception.

The court’s latest decision came in a case that has wended its way through the federal court system for nine years and taken has two trips to the 2nd U.S. Circuit Court of Appeals. Hurd’s ruling followed the second such appeal when, in 2009, the 2nd Circuit ordered the lower court to decide whether participants could recover damages from U.S. Trust for investment losses, which the participants claimed were driven by the overpriced share valuation for the 1994 company stock sale to the ESOP.

The legal battle over the disputed stock sale began when participants sued U.S. Trust and other defendants over allegations the 1994 ESOP purchase was a prohibited transaction under ERISA. In 2004, a judge found U.S. Trust had violated the prohibited transaction rules because it did not carry out an “adequate, good faith” inquiry into the proper value of the shares, according to court records.

That initial ruling was taken to the 2nd Circuit, which, in the first of two decisions in the case, threw out the ruling in 2006 and sent the case back with instructions to decide whether a prudent ERISA fiduciary would have discovered stock valuation errors in 2004 (see “Lack of Notes not Proof of Fiduciary Violation”).

The lower court in 2007 threw out allegations against U.S. Trust on the grounds that any award of damages to the participants would be a prohibited windfall to the ESOP. The 2007 lower court ruling was the basis of second of the two appeals.

The case is Henry v. Champlain Enterprises Inc., N.D.N.Y., No. 1:01-CV-1681.

Time for a Retirement Plan Tune-Up?

Is your retirement plan due for a tune-up?

Having served as an ERISA attorney for third-party administration firms (TPAs) for nearly nine years, Attorney Ary Rosenbaum, through The Rosenbaum Law Firm P.C., now offers The Retirement Plan Tune Up, a national legal review of the plan’s documents, design, administration, administrative cost, and investments.

The firm said the review will include a memorandum that will reveal any potential compliance issues for the plan, as well as good practices to optimize the goals of the plan and minimize the employer’s liability in sponsoring it.

Want the latest retirement plan adviser news and insights? Sign up for PLANADVISER newsletters.

Rosenbaum often compares retirement plans to cars and states there is a need to “lift up the hood” of a retirement plan to ensure it’s properly running and avoiding hidden liability as a plan fiduciary. While plans that have more than 100 participants, which require an audit, will often spot these issues, retirement plans with less than 100 participants rarely have an impartial review to determine whether the plan is compliant, according to the firm.

While this review should be undertaken annually, Rosenbaum said that there is further value to the Tune-Up when it is in tandem with a conversion to a new TPA, or as a tool for the plan’s investment adviser to determine whether the administrator is properly administering the plan, as well as an impartial view of their practices as investment adviser.

 In addition, plans that undergo the Tune Up will be afforded an opportunity to get a preferred rate on fiduciary liability insurance from a number of property and casualty firms.

Additionally, this $750 legal review of a company’s retirement plan can be paid from plan assets, according to the press release.

More information is available by calling 516.594.1557 or visiting www.TheRosenbaumLawFirm.com

«