Employee Ownership Legal Digest (9) 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

ESOP Lawsuit Over Sale of ESOP Company Reaches Settlement

In Moore v. Va. Cmty. Bankshares, No. 3:19-cv00045 (W.D. Va. Nov. 28, 2023), a settlement has been reached 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. Plaintiffs alleged that directors and officers of the company unduly benefitted from the sale of the company to Blue Ridge Bank. 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. Soon after that, VCB entered negotiations with Blue Ridge Bank and ultimately sold for $58 per share. Plaintiffs allege that the valuation used in the 2017 offer was dated, that funds in the plan were used to pay ESOP legal fees inappropriately, and that the defendants used their inside knowledge of the pending deal to buy shares at a lower price and sell them at a higher one.

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Corey Rosen

IRS Rules That ESOP Shares Should Have Basis Adjusted for Net Unrealized Appreciation Calculations

In Rev. Rul. 2003-27; 2003-1 C.B. 597, EB. 20, 2003, the IRS ruled that the basis of shares on an S corporation ESOP trust must be adjusted in the same way as any other S corporation shares are adjusted for the purpose of calculating net unrealized appreciation. Distributions, for instance, decrease the basis for tax purposes, while certain income items increase the basis. The IRS ruled that “an employee stock ownership plan (ESOP) is required to adjust its basis in S corporation stock under § 1367(a) for the ESOP's pro rata share of the corporation's items. Upon the distribution of S corporation stock by an ESOP to a participant, the stock's net unrealized appreciation under § 402(e)(4) is determined using the ESOP's adjusted basis in the stock.”

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Corey Rosen

Ninth Circuit Says Labor Department Not Responsible for Fees in Failed ESOP Lawsuit

In Su v. Bowers, D.C. No. 1:18-cv-00155SOM-WRP (9th Cir. Oct. 23, 2023), the Ninth Circuit said that the Department of Labor did not have to pay attorneys’ fees to the defendants’ attorneys in a valuation case the DOL decisively lost. In Walsh v. Bowers, et al., a court definitively ruled for the defendants against the DOL because the trustee had sufficient (albeit a short) time to vet the ESOP transaction, had unfettered discretion to hire its own independent appraiser, and the trustee negotiated the deal and even saved the ESOP money. The court found that the ESOP trustee fulfilled its duty to the ESOP and its participants even though the trustee had worked for the seller before and knew the price the seller wanted in advance. The judge rejected the DOL’s valuation expert as unreliable. The defendants sued for attorneys’ fees, charging that the DOL should never have brought the case.

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Corey Rosen

District Court Upholds Arbitration Clause in ESOP Dispute

Courts have generally not favored arbitration clauses in ESOPs. As we reported in November 2023, the Supreme Court recently declined to hear two appeals of cases in which an arbitration clause was denied as a defense. Generally, courts have ruled that participants cannot be made to give up the right to sue on issues that can affect the entire plan. In Merrow v. Horizon Bank, No. 22-cv-123, (E.D. Ky. Oct. 24, 2023), the case revolved around allegations that the ESOP overpaid for the shares. The arbitration clause stated that "[e]ach Participant and Beneficiary, or any party claiming for or through them, agrees that any Claims will be arbitrated individually and shall not be brought, heard, or arbitrated on a class or collective action basis—unless both parties agree, in writing, to the contrary." The decision followed precedent in the Sixth Circuit in Masco Corp. v. Zurich Am. Ins. Co., 382 F.3d 624, 627 (2004), concluding that the arbitration clause did not equate to a waiver of rights under ERISA but merely a different way of resolving disputes over them.

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Corey Rosen

Supreme Court Denies Envision Motion to Have 10th Circuit Reconsider Its Ruling That Envision Cannot Compel Arbitration in ESOP Case

On October 10, the Supreme Court, without comment, denied an effort to hear an appeal of a 10th Circuit decision to deny arbitration in an ESOP case. In Harrison v. Envision Management Holding Company, No. 22-1098 (10th Cir. Apr. 11, 2023), the 10th Circuit denied a request that it reconsider its earlier three-judge ruling that Envision Management Holding Company cannot compel arbitration in a case concerning the price an ESOP paid for shares in the company. Envision asked that the entire court decide the issue. The plaintiff had alleged that the ESOP overpaid for the shares. The plan contained an arbitration clause, which Envision sought to enforce. The court agreed, concluding that “the arbitration provisions of the Plan Document effectively prevent Harrison from vindicating many of the statutory remedies that he seeks in his complaint under ERISA § 502(a)(2),” primarily because arbitration prevents him from pursuing claims for the plan rather than just for himself. The new ruling leaves the prior three-judge ruling intact.

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Corey Rosen

Supreme Court Denies Wilmington Motion to Reconsider Arbitration Ruling in BSC Case

On October 16, the Supreme Court denied a request to allow arbitration in another ESOP case. In Henry v. Wilmington Trust et al., No. C.A. 19-1925 DM (D.C. Del. June 30, 2023), a district court ruled that a plaintiff (Henry) was not subject to an arbitration clause in the company’s ESOP. Henry contends the ESOP had overpaid for the shares at BSC Ventures. The plaintiff also contends that he never knew about an arbitration clause affecting the ESOP until he filed a lawsuit and that he had never consented to it. Defendants argued that the clause was a condition of employment and thus applied to Henry. Defendants also argued that Henry lacked standing because he did not “allege sufficient facts to support a plausible inference of harm by showing the ESOP in fact overpaid.” The arbitration clause stated that a claim against the ESOP “must be brought solely [in an] individual capacity and not in a representative capacity or on a class, collective, or group basis.” It further prohibited a claimant from “seek[ing] or receiv[ing] any remedy which has the purpose or effect of providing additional benefits or monetary or other relief” to anyone other than the claimant.

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Corey Rosen

Triad Manufacturing ESOP Case Settlement Approved

In Smith v. Greatbanc Trust, No. 20 C 2350 (D. Ill. Aug. 22, 2023), a district court gave final approval to a $14.8 million settlement involving an ESOP at Triad Manufacturing. The ESOP had purchased the company for $106 million in 2015. The stock value dropped to $3.3 million after the leveraged transaction. The 7th Circuit had previously denied the company’s claim that the plaintiffs were subject to an arbitration clause. The court also seemed to accept the argument that the post-transaction decline in the value of the stock showed that the ESOP overpaid for the shares, even though the defendants argued that this was simply an artifact of the acquisition debt.

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Corey Rosen

Settlement Reached in RVR ESOP Case

In Walsh v. Reliance Trust Co., et al., No. CV-19-03178-PHX-JJT (D.C. Ariz. Aug. 30, 2023), a district court approved a $22.5 million consent decree in the case of RVR, Inc. The case originated in a 2019 lawsuit alleging that Reliance Trust allowed an ESOP to overpay for the shares of RVR, Inc. The ESOP purchased 100% of RVR’s stock for $105 million, but the DOL argued the stock was worth only $15 million. The deal was unusual in that the sellers took a very low rate of interest and warrants equal to 35% of the shares at $7.50 a share. Management incentive awards would further dilute the ESOP to 52.5% of the shares. The ESOP paid $105 per share. A variety of issues were involved in the lawsuit, including whether the company’s line of credit was a potential risk, whether the ESOP really had control, the short time involved in completing the transaction, and other concerns.

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Corey Rosen

Selling Shareholders Dismissed from Morton Buildings ESOP Case

In Lysengen v. Argent Trust, et al., No. 1:20-cv-01177MMM-JEH (D.C. Ill. Sept. 7, 2023), former shareholders of Morton Buildings were dismissed as defendants in a case concerning the valuation of their shares in a sale to the company’s ESOP. The lawsuit hinges on a 50% drop in the value of Morton Buildings in the year following the company’s taking on debt to fund the ESOP purchase (these declines are normal in leveraged ESOPs). Defendants argued that any claims should be handled in probate court, but the court ruled that ERISA has primacy. The plan initially owned a minority of the shares in the company. When it bought the remaining shares, participants meeting eligibility rules were given floor price protection against the anticipated debt-related drop in share price. The valuation also changed the way it treated excess cash, previously counted as a liability, as an asset. The company made payments to existing participants to compensate for that.

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Corey Rosen

Employee Can Sue on Behalf of Plan in ESOP Case

In Lysengen v. Argent Trust, et al., No. 1:20-cv-01177-MMM-JEH (D.C. Ill. Aug. 10, 2023) an individual plaintiff was allowed to sue on behalf of the ESOP trust. The case involved the alleged overvaluation of stock at Morton Buildings. The court ruled earlier that an ESOP valuation could proceed against additional defendants in a case where the court had previously allowed the case to proceed against the plan’s trustee. The complaint hinges on a 50% drop in the value of Morton Buildings in the year following the company’s taking on debt to fund the ESOP purchase (these declines are normal in leveraged ESOPs). Defendants argued that any claims should be handled in probate court, but the court ruled that ERISA has primacy.

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