ESOPs Strong in Closely Held Companies But Not Making Public Company Inroads

ESOP advisors continue to report very strong activity in new ESOPs in closely held companies. As the baby boomer generation retires, many owners of closely held businesses will look for transition strategies, and ESOPs seem well positioned to benefit from this development. Public companies, however, have not flocked to ESOPs, despite some prominent predications of that after the 2001 tax law changes. Those changes allowed ESOP participants to reinvest dividends paid on ESOP shares on a voluntary basis back into the ESOP. For public companies, this could provide a double benefit: the dividends would be tax-deductible, and the company would sell more shares. Employees could avoid the 15% tax on dividends passed through directly to them. Articles in the financial press, including the Wall Street Journal, quoted financial (but not ESOP) experts who predicted a boom in ESOPs in public companies.

So what happened? Part of the explanation is the fallout from Enron and similar scandals. That has made public company plan trustees more skittish about company stock in retirement plans. A number of interim decisions in lawsuits concerning company stock in 401(k) plans and ESOPs have ruled that companies cannot use securities law rules to avoid making disclosures to plan participants about potentially damaging corporate information. While few final decisions have been made in these lawsuits (although some have tentatively settled), the trend in interim decisions has been mixed about who is a fiduciary and what role company stock can play in a plan. While it appears that trustees continue to have considerable leeway in investing in company stock, this does not provide a free pass on assuring it is still a prudent investment.

But even without these legal developments, public companies still find ESOPs relatively unattractive because in a leveraged plan the company must take a charge to compensation for the value of shares as they are released to participants, even if this is much more than what the company paid for them. As a result, companies have tended more to favor simply contributing stock to 401(k) plans on a nonleveraged basis.