Employee Ownership Legal Digest (27) Archive

Stay informed on the latest legal developments impacting employee ownership. This page provides timely and concise summaries of key cases and rulings, contributed by experienced attorneys, to help the entire employee ownership community understand their implications, and also offers access to NCEO's archive of prior content.

Corey Rosen

Wilmington Trust Must Defend Itself in ESOP Lawsuit

In Swain v. Wilmington Tr., N.A., No. 1:17-cv-00071- RGA-MPT, (D. Del., order adopting in part report and recommendation Feb. 16, 2018) a district court rejected a magistrate’s decision that recommended that charges against ISCO and Wilmington Trust, the ESOP trustee, be dismissed because the plaintiffs had not sold any stock in the ESOP yet and thus lacked standing because they had not suffered any injury. Plaintiffs allege that ISCO stock dropped from $98 million to $39 million less than two weeks after the transaction. The stock had been appraised before and after the sale, which involved substantial leverage. Stock value normally drops post-transaction in leveraged ESOPs, but the magistrate did not address this issue or the allegation that the ESOP paid for control but the former owner effectively retained it.

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Corey Rosen

Another Loss for Plaintiffs in Stock Drop Case

In Usenko v. SunEdison Semiconductor LLC, No. 4:17-cv-02227-AGF (E.D.-Mo., order granting defendants’ motion to dismiss Feb. 21, 2018), a district judge ruled that alleging that a trustee knew or should have known that the stock of SunEdison was overvalued and too risky was insufficient to state a claim. The case is a bit different from other stock drop cases in that SunEdison Semicondictor (SEMI) was spun off from Sun Energy, but the SEMI retirement plan continued to hold Sun Energy shares. Plaintiffs allege that trustees should not have allowed the plan to continue to hold these shares because they were excessively risky. The court relied on Dudenhoeffer to conclude that defendants could not be expected to outguess the market.

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Corey Rosen

DOL Enters into New Settlement Agreement on ESOPs

The Department of Labor entered into a new settlement agreement with an ESOP fiduciary, in this case, Alpha Investment Consulting Group. The settlement arises out of a case alleging improper valuation and loan terms in the case of Acosta v. Mueller et al., Civil Action No.: 2:13-cv- 01302, (E.D. Wis., Dec. 27, 2017). The DOL alleged that the ESOP at Omni Resources overpaid for the shares by using a valuation done four months prior that did not reflect changed financial projections. In the settlement with Omni, the former owners agreed to repay the plan $1.523 million, reduce the amount due on the loan by $3.5 million, and pay an ERISA penalty of $479,000 to the DOL. Allocations from the payments to the ESOP will be retroactive to 2008, and former vested participants will receive part of the settlement as well. 

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Corey Rosen

Another Stock-drop Case Fails

In Gernandt v. SandRidge Energy, Inc., No. 5:15-cv-00834-D (W.D. Okla., Nov. 18, 2018) a district court ruled that plaintiffs had not met the Dudenhoeffer standards of providing a plausible alternative course of action. The court issued separate rulings dismissing claims against SandRidge, Reliance Trust, and the company’s CEO. SandRidge’s employees lost the entire value of their accounts when the company went into bankruptcy. The judge said that the result “may seem harsh under the circumstances,” but is correct given the new standards for employer stock lawsuits.

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Corey Rosen

Lifetouch Lawsuit Dismissed

In Vigeant v. Meek, No. 0:18-cv-00577-JNETNL (D-Minn., Nov. 17, 2018), a judge dismissed a lawsuit against plaintiffs who alleged that Lifetouch stock dropped by more than $840 million between 2015 and 2018, resulting in an average loss of $22,000 per participant. This decline happened while several Lifetouch executives retired and cashed out their stock at favorable prices, the lawsuit claimed. Employees argued that executives at Lifetouch, which had been one of the largest and most successful ESOPs, artificially inflated the company’s value. Lifetouch was sold in 2017 to Shutterfly. The judge ruled that the actions of the defendants were reasonable given the financial hardships the photography company experienced in the changing market for its products. The judge also ruled against the argument that Lifetouch stock was too risky to be in a retirement plan.

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Corey Rosen

Selway Agrees to Settlement

In Barker v. Selway Corp., No. 9:18-cv- 00179 (D. Mont., petitioners’ motion for preliminary approval of settlement, Nov. 16, 2018) the parties agreed to an arbitrated $5.5 million settlement. Plaintiffs contended that a former owner of Selway continued as CEO, board member, and fiduciary of the ESOP, and took actions that harmed company value.

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Corey Rosen

WaWa Agrees to Settlement in Account Segregation Case

In Pfeifer v. Wawa, Inc., No. 2:16-cv-00497-PD (E.D. Pa., motion for settlement approval filed 12/29/17), the trustees of WaWa’s ESOP agreed to pay about 2,300 current and former employees $25 million ($5 million of which will go to attorney’s fees) in a case involving a plan amendment at WaWa that segregated account values for employees when they left the company. Plaintiffs said that Wawa had allowed them to keep their stock until they retired or turn 68, the point at which all beneficiaries are required to cash out. In 2015, WaWa changed that so that the shares were purchased after termination and held until normal distribution in other investments. Plaintiffs allege that that ended up costing them a lot of money because WaWa stock grew quickly. They also alleged WaWa used a prior value for the stock when it did this instead of what they allege was a more accurate recent number. Segregation is a common plan feature in which employee shares are cashed out at termination within the ESOP and invested prudently in other investments until distribution eventually occurs. The theory behind segregation is that it keeps the stock in the hands of current plan participants and decreases risk for former participants. WaWa’s ESOP owns about 43% of the shares. The iconic East Coast gas and convenience store chain employs over 30,000 people.

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Corey Rosen

Ambiguous Stock Option Offer Letter Superseded by Subsequent Correspondence

In Vespremi v. Tesla Motors, Nos. A142391 and A143550 (Calif. Ct. or Appeals, First District, Div. Two, October 30 2017), a state court ruled that a plaintiff who had received an offer for stock options in Tesla could not receive any of the stock options he claimed he deserved. Vespremi contended that the offer letter was ambiguous as to when the awards vested; Tesla contended that it was clear they vested at 25% per year over four years, at the end of each service year. Vespremi was laid off after seven months. The court at first ruled that the language was ambiguous, but on appeal reconsidered, ruling that subsequent written communications made it clear that the awards would not vest before completion of each year of service. 

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