US Department of Labor files suit requiring fiduciaries to restore $5.9M in losses to Triple T Transport Employee Stock Ownership Plan

COLUMBUS, Ohio – A federal lawsuit alleges action taken by fiduciaries resulted in losses exceeding $5.9 million to the Triple T Transport Inc. Employee Stock Ownership Plan, directly affecting the retirement savings funds of employees of the Lewis Center, Ohio, company and violating the Employee Retirement Income Security Act.

An investigation by EBSA’s Cincinnati Regional Office determined Thomas E. Potts Jr., the owner of Fiduciary Trust Services Inc., authorized the plan to purchase 80 percent of the company’s stock for $17.46 million in January 2011, an amount at least $5.9 million higher than the stock’s fair market value. 

The complaint alleges that Fiduciary Trust Services and Potts caused the plan to overpay by, among other things, failing to properly review and recognize the errors in a valuation analysis and fairness opinion provided to the company by ComStock Valuation Advisors Inc.  

EBSA investigators found the ComStock report:

• Used an unreasonably high long-term growth rate for the company
• Added an improper control premium.
• Erred in its calculation of the weighted average cost of capital.
• Selected comparable companies that were drastically different from the company.
• Failed to value warrants for the selling shareholders correctly. 

Based on the errors in ComStock’s report, Potts failed to accurately determine the fair market value of the company and arrived at a value $5.9 million more than the actual value.   

Triple T Transport Inc. is the plan administrator and plan sponsor of the ESOP. Triple T Transport hired Potts and Fiduciary Trust Services to act as the independent fiduciary for the ESOP transaction.

The suit seeks to require Fiduciary Trust Services Inc. and Potts to restore all losses suffered by the ESOP, plus interest.

EBSA protects the retirement, health and other workplace-related benefits of America’s workers, retirees and their families. The agency oversees approximately 684,000 active private sector retirement plans, 2.4 million health plans and other plans that provide benefits to more than 141 million Americans. Collectively, these plans hold more than $7.6 trillion in assets. Additional information can be found at www.dol.gov/ebsa/.

Court: U.S. District Court, South District of Ohio, Eastern Division, Columbus

Docket Number: 2:16-cv-00612