Calvin Ball and ESOP Governance

Calvin and Hobbes has long been a favorite treat of mine. (I don't have permission to embed a likeness but you can click here for a peek.) This long-running cartoon strip ceased in 1995, ten years after the creation of a mischievous six-year old and his furry feline friend. The brainchild of cartoonist Bill Watterson, Calvin entertained and moralized at the same time, charming a global audience of adults and children alike. In a rare interview, Washington Post reporter Michael Cavna (March 10, 2015) learned from the somewhat reclusive Mr. Watterson that "fantasies are drawn more realistically than reality, since that says a lot about what's going on in Calvin's head." In "America's Most Profound Comic Strip" (Wall Street Journal, March 6, 2015), senior editor at the Weekly Standard, Christopher Caldwell, adds that "...Calvin keeps running into evidence that the world isn't built to his ... specifications" and that his "favorite sport is 'Calvinball,' in which he is entitled to make up the rules as he goes along."

I thought of Calvin and his world views yesterday as I listened to ERISA attorney Ted Becker talk about Employee Stock Ownership Plan ("ESOP") governance. As the lead speaker for an NCEO-sponsored webinar entitled "What the DOL v. GreatBanc Trust Co. ESOP Court Settlement Means for ESOPs," this Drinker Biddle & Reath LLP partner gave some nuts and bolts recommendations that are concrete and therefore radically different from the actions of ERISA trustee "Calvins" who comfort themselves that sloppy work is okay.

Mr. Becker and co-speaker Loren Rodgers (Executive Director of the National Center for Employee Ownership) explained that changing regulatory emphasis on employer security valuation led to what is known as the Fiduciary Process Agreement. Described as a "playbook," the U.S. Department of Labor ("DOL") and "GreatBanc Trust Company agreed that it could be used for future transactions by an ESOP fiduciary in which the ESOP purchases or sells employer securities that are not publicly traded." Engaging an independent and qualified valuation advisor and then adequately reviewing (and understanding) the resulting information used to carry out the valuation are two of the recommendations for trustees.

In the official source file ("Agreement Concerning Fiduciary Engagements And Process Requirements For Employer Stock Transactions" dated June 2, 2014), readers are reminded of the importance of process for multiple tasks. Among other things, this roadmap details what should be documented by the ESOP Trustee when choosing a valuation advisor, to include:

  • "The reason for selecting the particular valuation advisor;
  • A list of all the valuation advisors that the Trustee considered;
  • A discussion of the qualifications of the valuation advisors that the Trustee considered;
  • A list of references checked and discussion of the references' views on the vauation advisors;
  • Whether the valuation advisor was the subject of prior criminal or civil proceedings; and
  • A full explanation of the bases for concluding that the Trustee's selection of the valuation advisor was prudent."

This guiding document likewise lays out suggestions about process regarding the fiduciary review of any potential transaction such as buying or selling employer securities that are not publicly traded, the reliance on the valuation report and much more. As independent fiduciary Mitch Shames writes in "Once Again, Strong Process and Substance Matters" (September 11, 2014), "... DOL requires that the fiduciary be an active participant in an ESOP transaction...far from a passive role."

Having been trained as an appraiser and someone who has (a) rendered opinions of value (b) reviewed others' valuations (c) critiqued valuation models (d) taught valuation courses and (e) served as an expert witness, I know firsthand that inappropriate assumptions, bad data and short cuts are likely to create headaches. Quality of valuations that are used for statutory and commercial reasons can and do vary - sometimes materially so. A "quickie" appraisal that ignores fundamentals about an industry let's say or proceeds from grossly inflated management projections are two potential vulnerabilities. The danger is that an inadequate valuation report potentially creates a domino effect of unwanted outcomes because it is used as a driver to make subsequent decisions. For example, ESOP trustees with multiple suitors may select the "wrong" buyer or approve a recapitalization that would not otherwise occur had a better valuation assessment been used. Valuation numbers are frequently inputs as opposed to the end goal.

Big numbers are involved so it's no surprise that ESOP governance is garnering close scrutiny. According to "The Current State of ESOPs," 2012 ESOP assets exceeded $1.059 trillion with 13.824 million participants in 6,908 plans.

On a separate note, I am speaking at the annual conference of the National Center for Employee Ownership, to be held this year in Denver from April 20, 2015 to April 23, 2015. Entitled "Effective Boards of Directors: Obligations, Recruitment and Compensation," my panel will "cover the standards and responsibilities of directors in the board room, how committees function, building a sustainable board structure and standards and surveys for establishing and measuring compensation to reward the performance of directors." Attorney Kevin G. Long (Shareholder with Chang Ruthenberg & Long PC) and Ms. Nancy Wiefek (Research Project Director with NCEO) will co-present.

Bad Hair Day in Investment Fiduciary Land

From time to time, I have allowed students at the local beauty school to learn on a real head - mine. Invariably, I regret my decision, so much so that I am now resigned to using a professional service for future visits. Originally, I thought I could save some money for services that I always thought of as routine. Too many "bad" visits later, I have decided that hair cuts and coloring should be carried out by experienced persons who may charge more money but save me time and grief. Really, how often does one need to have a beauty disaster before the truth sets in that paying for knowledge is a good trade?

Applied to retirement plan fiduciaries, this "aha" moment begs the question as to what constitutes knowledge. Not surprisingly, the U.S. Department of Labor ("DOL") has recognized the need for fiduciary education and responded with its campaign called "Getting It Right - Know Your Fiduciary Responsibilities." According to the DOL website, this program "emphasizes the obligation of plan sponsors and other fiduciaries to:

  • Understand the terms of their plans
  • Select and monitor service providers carefully
  • Make timely contributions to fund benefits
  • Avoid prohibited transactions; and
  • Make timely disclosures to workers and their beneficiaries and reports to the government."

During a presentation I made last week in Atlanta as part of the National Center for Employee Ownership ("NCEO") annual conference and entitled "ESOP Company Strategic Decision Making," I suggested that sponsors include a budget line for training. Whether that takes the form of internal training or having an outside expert develop and lead an educational curriculum for fiduciaries will depend on a few factors, including the current status of fiduciary literacy. Continued learning is important for existing fiduciaries as well, especially now with so many new rules and regulations. My co-speaker, Mr. Robert Gross - a Senior Managing Director with Prairie Capital Advisors, Inc. - concurred when the topic switched to the use of outside and corporate counsel. Regular meetings with ERISA legal professionals can be invaluable. At a minimum, a get-together can kick start a meaningful dialogue about the role of the fiduciary, decisions that must be made in a timely fashion and how to select, monitor and evaluate the work being done by individuals with fiduciary responsibilities.

Don't wait for purple hair to realize the high cost of getting a "budget" deal. Focus instead on making sure that everyone involved at the plan level has a solid understanding of what has to be done, when and by whom.