Employee Ownership Legal Digest (5) 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

RVR case proceeds to remedies phase

In Su v. Bensen et al., No. CV-19-03178-PHX-JJT (D.C. Ariz. Aug. 15, 2024), a district court moved an already decided case to the issue of remedies. The judge in the case seemed skeptical about a number of common ESOP practices. The judge said that Chartwell, one of the ESOP advisory firms in the deal, told the defendants that the deal provided “superior timing,” “certainty of close,” and “ease in negotiating terms.” To the judge, that said that the defendants could “manipulate the transaction’s terms to whatever way defendants desired.” The judge also ruled that the ESOP trust’s having 100% ownership of the company did not imply effective control of the company because the outside trustee was directed by the board of directors, all of whom were insiders (and defendants in the case).

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Corey Rosen

Judge allows some claims in lawsuit over sale of ESOP company while declining others

In Miller v. Brozen, No. 23-2540 (RK) (JTQ), 2024 BL 304628 (D.N.J. Aug. 30, 2024), a district court dismissed some claims by plaintiffs while allowing others to continue in a case involving the sale of Asbury Carbons to Mill Rock Capital. The ESOP at Asbury owned 19% of the company. The company had been seeking offers to sell the company since 2021. At that time, the company estimated that it could sell for between $150 million and $200 million. When the company was ultimately sold in 2024, it was sold for just under $100 million. In an effort to reduce cash in the company a year and a half prior to the sale, however, the company issued a special dividend, the cash value of which ended up being somewhat greater than proceeds derived from the sale.

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Corey Rosen

Long-running Casino Queen ESOP case reaches settlement

In Hensiek v. Bd. of Dirs. of Casino Queen Holding Co., 20-cv-377-DWD (S.D. Ill. Sept. 6, 2024), a settlement was reached in the long-running case over the bankruptcy of Casino Queen, which had been a 100% ESOP. Plaintiffs alleged the ESOP’s 2012 purchase of the company for $170 million was based on excessively optimistic projections. They also alleged the company sold and then leased back real property it owned for too low a price and that the two trustees for the deal were insiders with conflicts of interest subject to direction from the board and ESOP administrative committee.

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Corey Rosen

New owners who bought an ESOP company cannot sue on behalf of plan

In Arborwell v. Alerus Financial, No. 4:23-cv-02770-DMR (N.D. Cal. June 24, 2024), a district court dismissed an unusual lawsuit against ESOP trustee Alerus Financial over the sale of Arborwell and its parent company SavATree to CI Quercus. Arborwell was sold to an ESOP in 2020 and then sold to CI Quercus in 2023. CI Quercus alleges the sale hurt the interests of plan participants by excessively benefiting executives at the company and individuals who had sold to the ESOP. Plaintiffs also alleged the sellers violated noncompete requirements that were part of the sale by setting up a competing business.

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Corey Rosen

Tax court says taxpayers cannot undo section 1042 election

In Berman and Berman v. Commissioner, Nos. 202-13, 388-13 (US Tax Court, July 16, 2024), the Tax Court ruled taxpayers had to pay taxes on the disposition of qualified replacement property (QRP) they purchased after making a Section 1042 tax deferral election. The taxpayers elected the tax deferral treatment and purchased floating rate notes. Subsequently, they pledged the QRP as collateral for loans equal to 90% of the property’s value. The taxpayers acknowledge that this constituted a sale of the QRP. The taxpayers argued that the 1042 election they made was invalid because the company was an S corporation at the time (even though it converted to C status to do the transaction) and that even if the election were valid, they should be able to treat the sales as an installment sale and be taxed under  installment sale rules. The Tax Court said the full amount of the sale was taxable as capital gains but allowed the sellers to use the installment sale method for calculating the gains and applicable taxes.

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Corey Rosen

ESOP Lawsuit over Sale of ESOP Settlement Approved

In Moore v. Virginia Community Bankshares, No. 3:19-cv00045 (W.D. Va. June 24, 2024), a settlement has been approved in a lawsuit alleging fiduciary improprieties in the sale of ESOP shares at Virginia Community Bank (VCB) prior to a merger. VCB set up an ESOP in 2006 and terminated it in 2016. VCB originally planned to sell to another bank in 2017, but that fell through. Participants were told that the bank would focus on staying independent. VCB offered employees the chance to cash out at $34 per share (the prior year’s value) or continue to hold the shares. Many employees did cash out. Officers were notified that they could purchase the shares that had been sold.

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Corey Rosen

President of Utah Construction Company Cannot Appeal Preliminary Injunction Removing Him as Trustee of the Company’s ESOP

In Su v. Ascent Construction, No. 23-4114 (10th Cir. June 24, 2024), the appeals court ruled that the president of a Utah construction company cannot appeal a preliminary injunction removing him as the fiduciary for the plan because the appeal was made moot by the district court making the preliminary injunction permanent. The company was in financial difficulty and down to just a few participants when the president removed $310,000 in cash from the plan to pay business expenses, and the plan failed to pay out required distributions to a plan participant.

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Corey Rosen

ESOP Valuation Case Settled

In Nguyen v. Westlake Services Holding Company, No. 8:23-cv-00854 (C.D. Cal. June 28, 2024), the plaintiff alleged that Westlake Holding Company changed its ESOP rules in 2020 to allow the company to segregate accounts of former employees before their receiving a distribution as well as to allow a special interim valuation to reflect economic challenges arising from the pandemic. In 2020, the plan was changed to allow for account segregation at termination. At the same time, the company did a special interim valuation that reduced the 2019 price by 30%. The initial 2019 price was the one that otherwise would have been used for distribution for people terminating in 2020. Nguyen sued, saying that she was not informed of the change and that the change violated ERISA. The parties have now agreed to a $1.25 million settlement for 185 participants.

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Corey Rosen

11th Circuit Grants En Banc Hearing Appeal by Department of Labor over Exhaustion of Legal Remedies Case

In Bolton v. Inland Fresh Seafood, No. 1:22-cv-04602AT (N.D. Ga. Dec. 5, 2023), a court dismissed a lawsuit against Inland Fresh Seafood over the valuation of the company when it was sold to the ESOP in 2016 for $92 million. The defendants did not respond to the substance of the claim in their legal filings, but instead argued that the case should be dismissed because the plaintiffs were required by the plan to pursue their legal remedies under the plan first. On appeal, however, the 11th Circuit, in a strongly worded opinion, ruled that the Department of Labor could receive an en banc hearing on the case (No. 1:22-CV-04602-LMM, 11th Cir. May 22, 2024). The appeals court ruled that exhaustion of administrative remedies under the plan did not cover issues of statutory fiduciary obligations that apply to the plan as a whole. The court noted that a fiduciary has a self-interest in denying the claims and that the complaint here did not focus on issues about the application of plan provisions to the participant but on the way in which the plan itself was operated. The court said that while plan administrators can review individual benefit denials and award benefits, they cannot impose personal liability on breaching fiduciaries to restore plan losses or subject non-fiduciaries to equitable relief.

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