KMK's multi-disciplinary ESOP team includes lawyers who focus on ERISA, tax, employment, employee benefits, corporate, securities, and other laws that impact ESOPs.
Our lawyers have significant experience in implementing ESOPs and fiduciary compliance for ESOPs. We advise on regulatory matters affecting ESOPs and on DOL audits of ESOPs. We also advise clients on mergers and acquisitions of ESOP companies.
KMK's ESOP team also includes trial lawyers who have experience in the defense of ESOP and other ERISA fiduciaries. KMK lawyers regularly counsel ESOP fiduciaries, sponsor company board members, institutional and internal ESOP trustees and state law fiduciaries about transactional structures, plan administration and the best practices designed to avoid litigation and place fiduciaries in the best position to defend should litigation arise.
Representative ESOP, ERISA, Employee Benefits & Fiduciary Litigation Experience
- Currently representing corporate executive selling shareholders against breach of fiduciary duty and knowing participation in breach of fiduciary duty claims arising out of ESOP transaction
- Currently representing ESOP trustee in federal court litigation filed by ESOP participants alleging that trustee breached fiduciary duties by allowing management buyout of company from participants and ESOP for inadequate consideration
- Currently representing ESOP trustee in federal court litigation alleging that trustee breached fiduciary duties by overvaluing sponsor company stock
- Successfully obtained dismissal of claims against ESOP trustee in adversary proceeding in federal bankruptcy court alleging that trustee assisted sponsor company management directing excessive compensation to themselves and in overvaluing sponsor company stock
- Successfully represented ESOP trustee in federal appeal resulting in affirmance of the district court's dismissal of state law claims against trustee based on ERISA preemption
- Currently representing plan sponsor, board of directors, and investment policy committee in federal court litigation alleging defendants breached their ERISA fiduciary duties by selecting imprudent investment options to make available to plan participants and allowing the plan to pay excessive recordkeeping fees
Currently representing ESOP trustee in federal court litigation alleging that the trustee’s evaluation of a sale of the sponsor company’s assets included improper compensation and other benefits paid by the buyer to the sponsor company’s directors
- Defended ESOP trustee against ERISA Section 404, 405, and 406 claims; obtained dismissal of all claims with prejudice
- Defended individual selling shareholders against ERISA Section 405 and 502 claims; obtained dismissal of all claims with prejudice
Represented three ESOP fiduciary clients in 15-week trial in Chicago from claims by ESOP participants alleging breach of fiduciary duty and prohibited transaction liability claimed to be greater than $220 million. Court issued lengthy, precedent-setting favorable opinion.
- KMK also defended the fiduciary conduct of the transactional trustee, GreatBanc Trust Company, which had settled before but whose conduct remained relevant due to derivative liability theories. The Plaintiffs dismissed their appeal when the defendants agreed not to pursue their legal fees under ERISA’s discretionary fee-shifting provisions. (Fish v. GreatBanc Trust Co., et al.)
- Represented former corporate officers and directors for breaches of fiduciary duty in regard to a proposed management buyout of ESOP shares, and other state and federal claims arising out of fiduciary relationships; case yielded multiple favorable summary judgment opinions from district court and two fully favorable appellate decisions from the United States Court of Appeals for the Sixth Circuit. (Antioch Co. Litigation Trust v. Morgan)
- Represented trustee of an ESOP plan in claim against the buyer of 100% of the ESOP’s shares, alleging that the predecessor ESOP trustee’s conduct both pre- and post-transaction were not in the participants’ best interests; case resolved with favorable settlement (Fifth Third Bank v. CW-Gallo, Inc.)
- Represented large financial institution against claims brought under ERISA for alleged breaches of fiduciary duty arising out of the defendants’ investment in bank stock and purportedly excessive and unreasonable fees charged to participants; court entered defense judgment for firm client (Shirk v. Fifth Third Bancorp)
- Represented ERISA fiduciary and sponsor company against benefits claims brought in context of a dispute among an individual participant’s heirs; case resolved with favorable settlement (Harvill et al v. Cincinnati Financial Corporation et al)
- Senior Partner
News & Resources
- American Society of Appraisers ESOP Virtual Conference,
- The ESOP Association National Conference,
- 2019 NCEO Employee Ownership Conference, April 9-11, 2019
- 3rd Annual Great Lakes Regional ESOP Conference
- The Antioch Company ESOP: A Prudence Playbook for Board Members, Independent Fiduciaries and Conflicted FiduciariesOhio Employee Ownership Center
- NCEO Employee Ownership Conference 2017
- Annual Spring ESOP Association Conference (OH/KY Chapter)
- IRS Extends CARES Act and Relief Act Deadlines | Company Stock Over -Valuation Puts Plan Sponsor and Trustee Under Water | Flagrant Foul by NBA Player Guilty of Defrauding Health Plan
- The ESOP Association Report,
- Teachings from the Antioch Company SagaNational Center for Employee Ownership Issue Brief