Reply – Direct TV - Pensions, Flawed Valuations, Prohibited Transactions
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Direct TV - Pensions, Flawed Valuations, Prohibited Transactions
— by Ted Ted
News Release
EBSA News Release: [10/31/2014]
Contact Name: Laura McGinnis or Michael Trupo
Phone Number: (202) 693-4653 or x6588
Email: McGinnis.Laura.K@dol.gov or Trupo.Michael@dol.gov
Release Number: 14-1998-NAT

Trustees and owner of DirecTV installer ordered
to restore more than $6.48M to pension plan
s

MERIDIAN, Miss. — Following a 19-day trial, a U.S. District Court judge has issued a judgment and order requiring fiduciaries to pay more than $6.48 million to the two employee stock ownership plans sponsored by Bruister and Associates Inc. The order stems from a lawsuit filed by the U.S. Department of Labor in U.S. District Court for the Southern District of Mississippi, Northern Division, alleging that the fiduciaries caused the plans to pay too much for BAI stock.

“I’ve said many times that the U.S. Department of Labor is the ‘department of opportunity,’ and that includes the opportunity to retire with dignity after a lifetime of work,” said U.S. Secretary of Labor Thomas E. Perez.  “Workers rightfully expect that the money in their employer-sponsored retirement plan is going to be there when the time comes.”
“Plan fiduciaries have an obligation to work solely in the interest of plan participants,” said Assistant Secretary of Labor for Employee Benefits Security Phyllis C. Borzi. “When they fail to do so, the retirement security of workers is put in jeopardy, and we will take action to make plan participants whole.”

BAI was a home-service provider that installed and serviced satellite-television equipment for its sole client DirecTV. During a three-year period, from December 2002 to December 2005, Herbert Bruister, the sole owner of BAI, sold 100 percent of BAI’s shares to the plans for $24 million. In each instance, Bruister and Amy Smith served as trustees to the plans and members of the BAI Board of Directors..Jonda Henry served as trustee for the three purchases tried by the Court.

According to court documents, Bruister, Smith and Henry, as plan fiduciaries, engaged in prohibited transactions by causing the plans to pay excessive prices for BAI stock purchased from Bruister. For each purchase, the fiduciaries used flawed valuations prepared by Matthew Donnelly and his firm, Business Appraisal Institute.

The court also found that the three fiduciaries breached their duty of loyalty from start to finish. Additionally, Bruister and his attorney David Johanson went so far as to fire the initial attorney representing the plans because that attorney was too thorough. Moreover, the court found that Bruister and Johanson exercised undue influence over Donnelly’s valuations, and that as a result, Donnelly was not sufficiently independent to provide valuations for the plans.

The court concluded that Bruister, Henry and Smith, in their role as plan fiduciaries, failed to properly represent plan participants’ interests, and that they unreasonably relied on an appraiser who so obviously lacked independence. The court reasoned, “An informed trustee would not have remained idle while the seller communicated directly with the employee stock ownership trust’s independent appraiser and financial advisor in an effort to elevate the price at the participants’ expense.”

Although Johanson was not a fiduciary, the court found his conduct worthy of comment because he both was the attorney for the seller and structured each sale.   The court noted thatJohanson attempted to influence the valuations in Bruister’s favor, and the testimony Johanson gave at trial did not support his denials. The court even noted that Johanson coached Donnelly during a break in his deposition to retract his testimony that Johanson represented Bruister individually. “History rebuts Johanson’s suggestion that he did not interfere with Donnelly’s valuations and raises doubts as to each of the subject transactions,” the court said.

The order requires Bruister, Smith and Henry to jointly pay $4.5 million in restitution to the plans and requires Bruister to pay an additional $1.98 million in prejudgment interest. The order also held Bruister Family LLC liable with all defendants for $885,065 and jointly liable with Bruister for $390,604.

The lawsuit resulted from an investigation conducted by EBSA’s Atlanta Regional Office and was jointly litigated by the department’s Office of the Solicitor, Plan Benefits Security Division, Washington, D.C. and the Regional Solicitor’s Office in Atlanta. Employers and workers can reach EBSA’s Atlanta Regional Office at 404-302-3900 or toll free at 866-444-3272 for help with problems relating to private-sector retirement and health plans. For more information, visit http://www.dol.gov/ebsa.