The Employee Ownership Update
August 17, 2009
ESOP Improvements Act Introduced in CongressEach Congress, ESOP advocates, working with the ESOP Association, introduce the ESOP Improvements Act. The bill's supporters do not expect the bill to pass per se, but it serves as a useful tool for proposing amendments to any tax legislation that comes up. In the past, some elements of the biennial proposal have become part of the law.
This year's version, S. 1612 has several elements:
- The 10% tax on S corporation distributions passed through to employees in cash would be repealed (the tax arises because these payments are considered early distributions from the plan).
- Exempt dividends paid by C corporations on ESOP stock would no longer be a preference item for Alternative Minimum Tax calculations.
- Sellers to an ESOP qualifying for a tax deferral under Section 1042 of the Code could invest the proceeds in mutual funds.
- A "25% or more owner under Section 1042 of the Code would be redefined to refer to 25% or more ownership of voting stock, or 25% or more ownership of all stock of the corporation, not 25% of any class of stock.
- Businesses with more than 50% of their voting stock owned by their ESOP would qualify for various small business and minority contracting preferences if these businesses' demographics characteristics (such as ownership by a qualifying minority through participation in an ESOP) otherwise qualify under the tests.
The Better the ESPP, the Better the Return on InvestmentIn the NCEO's new survey on employee stock purchase plans (ESPPs), we found that the better the terms of the plan, the better the return on investment plan administrators believed the company received from having a plan.
Overall, 65% of the respondents said that an ESPP was a beneficial or excellent investment, but if the discount was 10% of less, only 18% did, while 41% believed it did if the discount was 11% to 15%. Similarly, 57% said the ESPP was a beneficial or excellent investment if there was a three-month look-back feature, but 88% did when there was a 12-month. Finally, if the price is determined only at the end of the offering period, 53% said the ESPP was a beneficial or excellent investment, but 75% said it was if there was a look-back feature to the start of the offering period. These results are just a few of the dozens of insights from the new survey, the largest ever done of ESPPs.
To learn more about the survey and to order results, go to this link.
Ninth Circuit Issues Important Decision Limiting Indemnification for ESOP FiduciariesIn Johnson v. Couturier, Nos. 08-17369, 08-17373, 08-17375, 08-17631 (Ninth Cir., July 27, 2009), the Ninth Circuit Court of Appeals reached a potentially major decision concerning both the role of ESOP fiduciaries in dealing with executive pay and the ability of companies to indemnify fiduciaries. In this case, the Noll Corporation (later part of a holding company called TEOHC) agreed to pay its CEO, Claire Couturier, an amount of compensation that, in its various forms, came to something over one-third of the ultimate value of the company when TEOHC was later sold. The amount is also considerably greater than what ESOP participants would receive, although these participants would also fare very well in the sale if legal issues can be resolved.
Participants sued Courturier, as well as the plan's ESOP attorney and other advisors, two of whom were, for a disputed period of time, on the company's board. In one action, the participants requested a preliminary injunction against indemnification for the defendants. Legal fees had absorbed the existing fiduciary insurance for five million dollars. The plaintiffs alleged that if the company indemnified the defendants for remaining fees, the ESOP participants would, effectively, have their potential distribution substantially reduced.
The Ninth Circuit upheld the district court's findings with respect to two key issues. First, it stated that the plaintiffs were likely to prevail in their case that the defendants had breached their fiduciary duties by overpaying Couturier. Second, it ruled that ERISA preempts state law concerning indemnification when a corporation is no longer an operating entity and its assets have been sold.
The case has an unusual fact pattern in many respects. Most notably, the company had already been sold, raising the issue of whether the indemnification argument would apply to an ongoing ESOP, especially if the ESOP owned less than 100% of the assets. If these rulings do hold up, they raise potentially important issues for ESOP fiduciaries, both with respect to stricter standards for setting executive pay and for the ability of companies to indemnify fiduciaries. Taken to its limits, the decision could make indemnification impractical or of limited value, since many ESOP lawsuits arise after a company is sold and many ESOP companies are 100% ESOP owned. In these cases, fiduciaries would have to rely entirely on insurance.