Employee Ownership Legal Digest
Corey Rosen (24)

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NCEO founder and senior staff member

Corey Rosen

November 21, 2018

Allergan Beats Stock-Drop Lawsuit

In In re Allergan ERISA Litigation, No. 2:17-cv-01554-SDW-LDW, (D.-N.J., July 2., 2018), a judge dismissed a suit against Allergan and its directors in a 401(k) stock-drop suit concluding that the plaintiffs did not show that the defendants were plan fiduciaries. The court ruled that it was insufficient to allege that the defendants were fiduciaries because they appointed the independent plan trustee. The ruling does not refer to a duty to monitor the trustee, but focuses on whether the defendants took action that caused the trustee, in this case, not to remove the stock. The court found insufficient evidence for this claim. Defendants were also not fiduciaries as a result of their securities filings. The court also ruled that the plaintiffs did not allege reasonable alternative courses of action the company or its executives could have taken in light of the company’s alleged antitrust violations. Disclosing these, the court said, could have done more harm than good.

Corey Rosen

November 21, 2018

Bank Should Have Allowed Employees to Transfer Shares Out of ESOP

In Bryant v. Community Bankshares, Inc., 17-15360 (11th. Cir., unpublished June 12, 2018) an appeals court ruled that plaintiffs were correct in alleging that the trustees of the Community Bankshares ESOP breached their fiduciary duty when they failed to follow the participants’ instructions to diversify shares, as the plan and the law provided they could do. The court rejected Community Bankshares’ argument that allowing the plaintiffs’ diversification to proceed would cause harm to other plan participants.

Corey Rosen

November 21, 2018

Rainbow Disposal Case Must Proceed

In a detailed decision, in Hurtado et. al. v. Rainbow Disposal Co., Inc. Employee Stock Ownership Plan, 8:17-cv-01605-JLS-DFM (C.D. Cal, July 9, 2018) the judge refused to grant summary judgment to the executives and ESOP Committee of Rainbow Disposal, as well as GreatBanc Trust and various other individuals. The case involved Rainbow Disposal’s executives arranging the 2010 purchase of two other companies that would work with Rainbow. The arrangement led to substantial losses and in 2014, the company was sold. Employees allege that they were ultimately paid about 15% less for the shares than the 2014 sale price indicated, and that the company’s value would have been even greater if imprudent decisions had not been made. Among the issues as stake were whether GreatBanc, although a directed trustee, should have overridden directions from the ESOP committee, whether the structure of the transaction required an employee vote, whether a three-month-old valuation would be prudent in the circumstances and was still accurate as of the date of the sale, whether the executives were involved in self-dealing through employment agreements with the ultimate buyer, and whether indemnification applied. The judge ruled against the defendants on all counts, notably ruling that in an ESOP that owned almost all the stock, it is not possible to say per se that company assets are not plan assets.

Corey Rosen

November 21, 2018

Employees Lose Case in Failed ESOP

In HC4, Inc. Employee Stock Ownership Plan v. HC4, Inc, 4:15-CV- 872 (S.D. TX, Houston Division, July 12, 2018), a district court granted summary judgment to HC4, which was sued as the fiduciary for the company’s failed ESOP. The president served as the plan trustee The company entered into a merger that included fraudulent payments, undisclosed tax liabilities, and other issues. The company also lost significant contracts prior to going bankrupt. The court ruled that the decisions were made not as a fiduciary, but under the business judgment rule, and that the company had done due diligence on the merger, even though it failed to find the problems. The judge suggested that employees might have had better success if they challenged the merger as a prohibited transaction.

Corey Rosen

November 21, 2018

Edison Electric 401(k) Stock-Drop Case Fails Again

In Wilson v. Edison Int’l Inc., C.D. Cal., No. 2:15-cv-09139- JAK-PJW (C.D. Cal., May 29, 2018), a district court again ruled that Edison Electric executives were not liable for not removing company stock in the 401(k) plan in the face of falling stock prices. The plaintiffs alleged this time the executives could have moved out of the stock or disclosed the issues to employee. The judge ruled either course not a plausible alternative course of action because it could have adversely affected the value of the stock in the plan already.

Corey Rosen

November 21, 2018

Idearc Employees Lose Case in 401(k) Stock-Drop Suit

In Kopp v. Klein, No. 16-11590 5th Cir., June 27, 2018), employees at Idearc lost an appeal of a lower court ruling over the loss of their company stock value in the bankruptcy of Idearc, a Verizon spinoff. Employees contended executives conspired to conceal information that should have led trustees to eliminate Idearc stock from the 401(k) plan. The court did not find sufficient courses of alternative action the defendants could have taken.

Corey Rosen

November 21, 2018

Target Employees Again Lose in Stock-Drop Case

In Dormani v. Target Corp., No. 0:17-cv-04049-JNESER (D-Minn, June, 15, 2018) a district court again ruled that Target’s not freezing company stock as a choice in the 401(k) plan was not a fiduciary violation. Plaintiffs had refiled after an earlier lawsuit was dismissed. Here they again argued the stock should have been frozen in light of problems Target was having in Canada. That argument had failed, in part, because the court ruled that under Dudenhoeffer, fiduciaries could not have known if this would have adversely affected the price of stock in the plan. Workers argued Target froze company stock as an option in 2017, with no effect on company stock price, but the court ruled that was not sufficient to overcome its prior conclusion. The court also rejected an alternative course of action that Target could have notified employees of the risks arising from the problems in Canada as also possibly adversely affecting stock price.

Corey Rosen

November 21, 2018

Executives in ESOP Have Standing to Sue for Plan

In TBM Consulting Grp., Inc. v. Lubbock Nat’l Bank, No. 5:17-cv-00460-FL (E.D.N.C, May 31, 2018), a court rejected Lubbock National Bank’s argument that the executives of TBM Consulting lacked standing to sue on behalf of the plan because they were unrepresentative of the class and/or they did not provide adequate procedural safeguards to demonstrate that they could be. The court concluded that although these issues might be contested later if adequate facts are shown, at this point the plaintiffs do have standing to sue on behalf of the plan. The plaintiffs also brought a claim of negligent misrepresentation against Lubbock National Bank under state law, but the court ruled ERISA preempted that claim. The lawsuit revolves around a purchase of stock from an owner of TBM that had a value based on projections that turned out to be excessively optimistic.

Corey Rosen

November 21, 2018

Supreme Court Declines to Hear Case Alleging Tolling Agreements Superseded by ERISA Limitation of Action Rules

In Preston v. Acosta No. 17-1238 (U.S., June 25, 2018), the Supreme Court refused to hear a challenge to an 11th Circuit decision (Preston v. Acosta, Oct. 12, 2017) that ruled that the CEO and trustee of the ESOP at TPP Holdings could not invoke a tolling agreement to halt a DOL lawsuit alleging that he had caused the ESOP at the company to overpay for the purchase of his shares in 2006 and again in 2008. Prior to filing suit, the DOL and Preston tried to reach a settlement and entered into a series of “tolling agreements” that provided the DOL would delay any litigation while the efforts were pending. No settlement was reached, and the DOL sued in 2014, one day before the expiration of the agreed-upon tolling period. Despite their agreement not to assert a time bar to litigation, the defendants moved to assert one on the grounds that all alleged violations that occurred before December 30, 2008, six years prior to the filing, and thus were not permitted under ERISA’s limitationof- actions provision. The court ruled that the agreements took precedence, and the Supreme Court let that ruling stand.

Corey Rosen

November 20, 2018

Bradford Group Workers Get Class Certification in ESOP Valuation Case

n Nistra v. Reliance Tr. Co., No. 1:16-cv-04773 (N.D. Ill, order granting class certification, Feb. 13, 2018), employees of the Bradford Group, an ESOP-owned catalog company, received class status in a suit contending the ESOP overpaid for the stock by $56 million. The company was purchased in 2013 for $275 million. Reliance acted as the trustee. Reliance argued that “several” employees in the proposed class had signed releases waiving their rights to claims under ERISA, a number that the court said did not meet the standard set in other rulings on class actions. More important, the suit seeks relief for the plan, not for individuals.

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