Attorney gets Daubert challenge over ESOP employment agreements
In a federal court in Georgia, an employee benefits lawyer prepared a report and was deposed regarding the process by which employment agreements were negotiated as part of a transaction involving an ESOP.
Gamache v. Hogue
In a motion related to a lawsuit asserting ERISA violations under the ESOP plan for the defendants, including the Administrative Committee of Technical Associates of Georgia Inc. ESOP and certain individuals, the defendants moved to exclude the testimony and report of the plaintiffs’ expert, Jeffrey Krenzel. Krenzel was an “employee benefits lawyer” with 21 years’ experience, including eight years as a partner in a firm specializing in ESOP transactions. The court determined that Krenzel was qualified and that his opinions and report were reliable and helpful to the trier of fact.
U.S. District Court in Georgia Allows Testimony of Attorney as to ESOP Transaction Process for Employment Agreements
In a motion related to a lawsuit asserting ERISA violations under the ESOP plan for the defendants, including the Administrative Committee of Technical Associates of Georgia Inc. ESOP and certain individuals, the defendants moved to exclude the testimony and report of the plaintiffs’ expert, Jeffrey Krenzel. Krenzel was an “employee benefits lawyer” with 21 years’ experience, including eight years as a partner in a firm specializing in ESOP transactions. The court determined that Krenzel was qualified and that his opinions and report were reliable and helpful to the trier of fact.
Walsh v. Preston
In this ESOP ERISA case, the government (plaintiffs) (Secretary of Labor) alleged claims against the defendants, Robert N. Preston and TPP Holdings Inc. (and nominally against its ESOP) for: (1) breach of fiduciary duties; (2) engaging in prohibited transactions; and (3) co-liability of defendants. In a lengthy opinion, the court determined that the defendants did breach fiduciary duties and did engage in prohibited transactions. It further decided that there was no co-liability among the defendants, but it did not allow an offset of payments on debt of TPP Preston personally made. In determining FMV, the court did not allow a minority interest discount. In so doing, the resulting damages determined were minimal.
U.S. District Court Decides Some Issues for Government and Some for Defendants But Very Little in Damages in an ERISA ESOP Case
In this ESOP ERISA case, the government (plaintiffs) (Secretary of Labor) alleged claims against the defendants, Robert N. Preston and TPP Holdings Inc. (and nominally against its ESOP) for: (1) breach of fiduciary duties; (2) engaging in prohibited transactions; and (3) co-liability of defendants. In a lengthy opinion, the court determined that the defendants did breach fiduciary duties and did engage in prohibited transactions. It further decided that there was no co-liability among the defendants, but it did not allow an offset of payments on debt of TPP Preston personally made. In determining FMV, the court did not allow a minority interest discount. In so doing, the resulting damages determined were minimal.
BV News and Trends May 2022
A monthly roundup of key developments of interest to business valuation experts.
DOL proposes change to ESOP prohibited transaction exemption requirements
ESOP appraisers should take note of a proposed rule to amend the Department of Labor (DOL) prohibited transaction exemption procedure, reports the American Society of Appraisers (ASA).
Harrison v. Envision Mgmt. Holding, Inc.
The U.S. District Court (Colorado) denied a motion to compel arbitration the defendants brought in a case the plaintiff participants brought (a purported class action) in an ESOP the defendant company, et al. established. “The Plaintiff argues that the Defendants’ actions related to the sale caused him and all other ESOP participants to suffer significant losses to their ESOP retirement savings.” The court denied the motion.
U.S. District Court Denies Motion of Defendants in an ESOP Case to Compel Plaintiff Into Arbitration
The U.S. District Court (Colorado) denied a motion to compel arbitration the defendants brought in a case the plaintiff participants brought (a purported class action) in an ESOP the defendant company, et al. established. “The Plaintiff argues that the Defendants’ actions related to the sale caused him and all other ESOP participants to suffer significant losses to their ESOP retirement savings.” The court denied the motion.
BV News and Trends September 2021
A monthly roundup of key developments of interest to business valuation experts.
BV News and Trends August 2021
A monthly roundup of key developments of interest to business valuation experts.
ESOP litigation has become ‘risky business,’ says Alerding
As BVWire recently reported, the latest development in the long-running Brundle ESOP litigation is a lawsuit the trustee has filed against the very ESOP appraiser it once had hired to work on the case.
Another wrinkle in the Brundle ESOP case
Although the district and appellate courts in the landmark Brundle ESOP case ruled years ago against the trustee, Wilmington Trust, litigation related to the case is not over.
BVU News and Trends April 2021
A monthly roundup of key developments of interest to business valuation experts.
DOL and Professional Fiduciary Services settle ESOP suit
The DOL recently settled a suit against Professional Fiduciary Services (PFS) related to a 2012 transaction in which PFS served as trustee in an ESOP acquisition of outstanding company stock.
Lysengen v. Argent Trust Co.
ESOP plaintiff’s proposed class action against trustee and selling shareholders survives motion to dismiss; court says complaint gave enough facts to support claims of overpayment and breach of fiduciary duty; defendant must show disputed transaction falls into adequate consideration exemption.
ESOP Plaintiff’s Proposed Class Action Alleging Overpayment Survives Motion to Dismiss
ESOP plaintiff’s proposed class action against trustee and selling shareholders survives motion to dismiss; court says complaint gave enough facts to support claims of overpayment and breach of fiduciary duty; defendant must show disputed transaction falls into adequate consideration exemption.
RVNB class action alleging breach of fiduciary duty by ESOP trustee hurtles toward final settlement
ESOP litigation watchers can add one more case to the number of actions that recently have been resolved.
Plaintiffs in Rainbow ESOP class action ready to settle case
Last week, we reported on the resolution of two major ESOP litigations.
Court Finds ESOP Trustee’s Insurance Excludes Coverage for Defense Against DOL’s ERISA Claims
In bifurcated ESOP litigation centering on ERISA violations, court finds trustee defendants’ professional liability policy expressly excluded coverage for ERISA claims; under language of policy, insurer is not required to defend or indemnify trustee defendants fighting DOL’s ERISA allegations.
Gemini Ins. Co. v. Potts
In bifurcated ESOP litigation centering on ERISA violations, court finds trustee defendants’ professional liability policy expressly excluded coverage for ERISA claims; under language of policy, insurer is not required to defend or indemnify trustee defendants fighting DOL’s ERISA allegations.
Class-Action Litigation Involving ERISA/ESOP Valuation Issues
Join James F. Joyner and attorney Richard Pearl for unique insight into ESOPs and valuation principles. The general trend in ESOP transactions and valuation has been to acquiesce to fundamental changes because of the threat of litigation, even though ERISA or valuation principles do not require changes. Many defendants have been unable to adequately educate courts on some key issues. Get both the valuation and attorney perspective on how to address these issues.
DOL’s Valuation-Related Claims Against Individual Actors Survive Motion to Dismiss
Court denies individual defendants’ motion to dismiss DOL’s claims that defendants breached duties as co-fiduciaries, violated a duty to monitor the co-defendant trustee, and knowingly participated in the trustee’s breaches; DOL’s complaint states sufficient facts to support claims, court finds.
Pizzella v. Reliance Trust Co.
Court denies individual defendants’ motion to dismiss DOL’s claims that defendants breached duties as co-fiduciaries, violated a duty to monitor the co-defendant trustee, and knowingly participated in the trustee’s breaches; DOL’s complaint states sufficient facts to support claims, court finds.
ESOP defendants sue for indemnification to limit financial exposure
In the face of several key rulings against ESOP fiduciaries, ESOP defendants, concerned about incurring substantial financial obligations, have begun to pursue claims for indemnification and/or contribution against other defendants or third parties to limit their exposure, as a recent case illustrates.