Fiduciary Compliance in ESOP Transactions: Recent Settlement Agreements and Guidance on Avoiding Litigation

Description

The DOL's ESOP enforcement project has continued its focus on valuation issues regarding ESOPs established by privately held companies. Most often, the DOL has focused on the reasonableness and reliability of valuations, which, if not undertaken correctly, can lead to the ESOP paying too much for shares of employer stock. The DOL's focus on valuation issues has resulted in several enforcement actions and settlement agreements that now serve as guidance to fiduciaries and counsel.

Over the past few years, DOL settlement agreements became an accepted guide for the due diligence process for ESOP transactions, providing trustees with guidelines and procedures to satisfy their fiduciary duties in ESOP transactions. These procedures have been expanded over time as more cases unfold but are riddled with continued ambiguity and uncertainties regarding ESOP transactions.

The most pertinent elements of these settlement agreements focus on the selection of valuation advisers, oversight of appraisers, financial statements, and document preservation, as well as the fiduciary review process. Counsel must recognize the differences and additions of each settlement agreement to understand the DOL's perspective on the duties of ESOP trustees and advisers in such transactions.

Listen as our panel provides guidance to counsel on rules and procedures governing fiduciary and compliance responsibilities of trustees and advisers in ESOP transactions, the implications of recent DOL settlement agreements, and best practices in satisfying fiduciary duties in ESOP transactions and avoiding litigation.