U.S. Department of Labor and First Bankers Trust Settle ESOP Lawsuits; Agreement Includes $15.75 Million Recovery for Retirement Plans

NEW YORK, NY – The U.S. Department of Labor has reached agreements to resolve three lawsuits with First Bankers Trust Services Inc. (FBTS). The lawsuits alleged that FBTS violated the Employee Retirement Income Security Act (ERISA) when it approved stock purchases by three Employee Stock Ownership Plans (ESOPs). As part of the agreements, FBTS will pay $15.75 million to the plans and reform its procedures for handling ESOP transactions.

The Department filed suit against FBTS in 2012 in the U.S. District Courts for the Southern District of New York and the District of New Jersey. The lawsuits followed investigations by the New York office of the Department’s Employee Benefits Security Administration (EBSA) into the FBTS decisions to authorize ESOPs sponsored by Maran Inc., Rembar Co. Inc., and SJP Group, Inc., to purchase stock in their respective companies. FBTS will pay $8 million to the SJP ESOP; $6,642,857 to the Maran ESOP; and $1,107,143 to the Rembar ESOP.

“These settlements provide not only for reimbursement to these ESOPs and their participants, they commit First Bankers Trust Services to clear procedures to enhance and ensure proper compliance in the future,” said the Department’s Regional Solicitor of Labor Jeffrey S. Rogoff, in New York.

“It is imperative that the price a plan pays for the plan sponsor’s stock reflects its true market value and that those retained to advise a plan about the stock purchase fulfill their fiduciary duties,” said EBSA Regional Director Jonathan Kay, in New York.

In each of the three cases, FBTS served as a trustee and fiduciary of the ESOP, charged under ERISA with ensuring that the ESOP paid no more than fair market value for the employer stock. The Department alleged in all three cases that FBTS approved transactions without undertaking the due diligence required of an ERISA fiduciary, and ultimately caused the ESOPs to overpay by millions of dollars for the stock they purchased.

In the SJP case, the New Jersey district court held – after a 17-day trial – that FBTS breached its duties of prudence and loyalty when it caused the ESOP to overpay for shares of SJP’s stock. The Maran case was the subject of a two-week trial before the New York district court in April 2017, but no judgment had been returned as the parties discussed settlement. The Rembar case was awaiting trial in New York.

As part of the settlement of the Maran case, FBTS also agreed to follow specific policies and procedures when it acts as a trustee or fiduciary to an ESOP that is purchasing, selling, or considering the purchase or sale of employer securities that are not publicly traded. These policies and procedures include requirements for the selection and oversight of a valuation advisor, the analysis required as part of the fiduciary review process, and the documentation of the valuation analysis.

Carol Herzog, Nichelle Langone, Ivette Maddi, Matthew Manfredi, and Melanie Munoz of EBSA conducted the investigations. Attorneys Matthew Sullivan, Micole Allekotte, Andrew Katz, Andrew Karonis, and Michael Hartman in the New York Regional Office of the Department’s Office of the Solicitor (SOL), and attorneys Robert Furst, Jeffrey Hahn, Eric Lund, and Stephen Silverman in SOL’s Division of Plan Benefits Security litigated the cases for the Department.

EBSA is one of several federal agencies responsible for administering provisions of the ERISA, which provides certain protections and guarantees for participants and beneficiaries in private-sector employee pension and welfare benefit plans. Employers and workers can reach EBSA’s New York office at 212-607-8600 or toll-free at 866-444-3272 for help with problems relating to private-sector retirement and health plans. Additional information can be found at www.dol.gov/ebsa/.

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• Acosta v. First Bankers Trust Services, Inc., Maran, Inc., et al. Southern District of New York, Civil Action Number: 12-8648

• Acosta v. First Bankers Trust Services, et. al. Southern District of New York, Civil Action Number: 12-8649

• Acosta v. First Bankers Trust Services, et. al. District of New Jersey, Civil Action Number: 12-4450