ROCK N ROLL DUTIES: Fiduciary Duty Issues for Employee Stock Ownership Plans

Transcription

1 ROCK N ROLL DUTIES: Fiduciary Duty Issues for Employee Stock Ownership Plans New South Chapter of the ESOP Association Fall Conference - September 19, 2013 Gordon Earle Nichols Eileen Wyatt babc.com ALABAMA I DISTRICT OF COLUMBIA I MISSISSIPPI I NORTH CAROLINA I TENNESSEE

2 Walk This Way: Fiduciary Duty Basics: The Legal Framework 2 2

3 Law Governing ESOP Fiduciary Duties Employee Retirement Income Security Act of 1974, as amended (commonly known as ERISA ) ESOPs are employee pension benefit plans, as described in ERISA 3(2) 3 3

4 Definition of a Fiduciary Any person who exercises any discretionary authority or discretionary control over the management or administration of the plan; Any person who exercises any authority or control over the management or disposition of the plan s assets; or Any person who renders advice for a fee with respect to any of the plan s assets ERISA 3(21)(A) 4 4

5 Fiduciaries or Non-Fiduciaries? Named Fiduciaries Plan Administrators Trustees Directors and Officers Advisors and Consultants, including ESOP valuation firms ERISA 402(a)(1), 403(a) 5 5

6 Fiduciary Duties Under ERISA Exclusive Benefit Rule Prudent Man Rule Duty to Diversify Duty to Follow Plan Document ERISA 404(a)(1) 6 6

7 Fiduciary Duties cont. Exclusive Benefit Rule Fiduciaries must discharge their duties with respect to an employee benefit plan solely in the interest of its participants and beneficiaries and for the exclusive purpose of (i) providing benefits to the participants and beneficiaries, and (ii) defraying reasonable expenses of administering the plan. ERISA 404(a)(1)(A) 7 7

8 Fiduciary Duties cont. Prudent Man Rule These duties must be discharged with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. ERISA 404(a)(1)(B) 8 8

9 Fiduciary Duties cont. Duty to Diversify Fiduciaries responsible for plan investments must diversify such investments so as to minimize the risk of large losses, unless under the circumstances it is clearly not prudent to do so. Generally not applicable to ESOP s, unless the Prudent Man Rule requires the liquidation of the employer securities in a plan. ERISA 404(a)(1)(C) 9 9

10 Fiduciary Duties cont. In Accordance with the Document Rule All fiduciary duties must be discharged in accordance with the documents and instruments governing the plan insofar as they are consistent with ERISA. ERISA 404(a)(1)(D) 10 10

11 One Other Important Duty: Avoid Prohibited Transactions Parties-in-Interest versus Disqualified Persons Types of Prohibited Transactions - Direct or Indirect: Sale, exchange or leasing of any property Lending of money or extension of credit Furnishing of goods, services, or facilities Transfer to or use of plan assets Acquisition of any employer security or real property in violation of ERISA 407(a) ERISA 406(a) 11 11

12 Prohibited Transactions cont. 406(b) Violations: between a fiduciary and a plan Self-dealing Conflicts of interest Anti-kickbacks ERISA 406(b) 12 12

13 Liability for Breach of Fiduciary Duty ERISA Imposes Personal Liability for: Losses and Restoration of Profits resulting from a breach of duty Civil Penalties Excise Taxes when the Fiduciary is directly involved with a PT Co-Fiduciary Liability when aware of a knowing breach by another Fiduciary ERISA 405,

14 Exculpatory Provisions, Insurance, and Bonds Exculpation versus Indemnification Fidelity Bond Fiduciary Insurance ERISA

15 ESOP Fiduciary Checklist Understand Fiduciary Responsibilities Understand the Plan Document Understand the Fiduciary Structure (Who s Who?) Understand the Valuation Report Understand the Plan Procedures Understand Indemnification, Insurance, and Bonding Requirements Seek Advice as Needed 15 15

16 Stairway to Heaven: ESOP Fiduciary Duties in the Real World: Practical Issues and Concerns 16 16

17 Issue 1: Who Are the Fiduciaries? Who is supposed to do what? What is the role of the Trustee? What is the role of the Plan Committee? Recommendations: Review the plan documents to identify the individuals or entities that are named fiduciaries and individuals who perform the different fiduciary functions 17 17

18 Issue 1: Who Are the Fiduciaries? cont. To the extent necessary, designate specific individuals to handle fiduciary responsibilities Educate and train designated individuals concerning their fiduciary responsibilities under ERISA If any of the individuals have any questions, consult with the appropriate ERISA advisor, such as an attorney 18 18

19 Issue 1: Who Are the Fiduciaries cont. Follow-up with each individual on a periodic basis 19 19

20 Issue 2: The Valuation of Company Stock Whose valuation is it, anyway? Who prepares the valuation? Who makes the final determination of value? Do the fiduciaries understand the methodology used in the valuation report? Does the valuation firm have accurate and complete information? 20 20

21 Issue 3: Transactional Concerns New ESOPs: Who is going to make the decision to buy the Company Stock? Who is going to provide financial/valuation advice to such fiduciary? Does the Trustee and the Trustee s Advisors have accurate and complete information? 21 21

22 Issue 3: Transactional Concerns Cont. Second Stage ESOPs: What is the primary motivation for the ESOP to buy more Company Stock? How will the additional debt incurred to buy the new Company Stock impact the value of the existing ESOP shares? Who is going to make the decision to buy the additional shares of Company Stock? 22 22

23 Issue 3: Transactional Concerns Cont. Do the Trustee and the Trustee s advisors have accurate and complete information? If the ESOP will acquire control with the new shares, what will be done to maintain control? 23 23

24 Issue 4: Tough Times for the Plan Sponsor When do adverse circumstances require the ESOP fiduciaries to try to liquate the Company Stock? Do the ESOP fiduciaries have a special duty to communicate bad news to the participants? In the event of litigation, is it every fiduciary for him (or her) self? 24 24

25 Issue 5: State Corporate Law Concerns: State law derivative claims present a number of technical issues for ESOP fiduciaries. Examples: Excess compensation for officers and board members Usurpation of corporate opportunities Unfair dealings with related, non-esop companies 25 25

26 Issue 5: State Corporate Law Concerns: Cont. Do the ESOP participants have standing to assert state derivative claims in state court? What, short of resigning, should an ESOP fiduciary do to minimize his (or her) liability in such situation? 26 26

27 Paint it Black: Recent ESOP Fiduciary Litigation Developments 27 27

28 Cases Involving Fiduciary Breach in Transactions: Chesemore v. Alliance Holding, Inc. Joseph Enneking v. Schmidt Builders Supply, Inc

29 Stock Drop Cases Involving the Moench Presumption: In Re Fannie Mae 2008 ERISA Litigation Slaymon v. SLM Corp. Smith v. Delta Airlines In Re: Wilmington Trust ERISA Litigation White v. Marshall & Ilsley Corp

30 Cases Involving Indemnification and Contribution of Fiduciaries: Guididas v. Community National Bank Corp. Seth D. Harris v. GreatBanc Trust Company, et al. Bernard Shafer, et al. v. Multiband Corp

31 Thank you for attending today s presentation and Keep on Rocking! Gordon Earle Nichols Bradley Arant Boult Cummings LLP 1600 Division Street, Suite 700 P. O. Box Nashville, TN gnichols@babc.com Eileen Wyatt Atlanta West Carpets P.O. Box Thornton Road Lithia Springs, GA eileen.wyatt@atlwest.com 31 31