ERISA-Seventh Circuit Again Says That A Defendant, Who Along With His Co-fiduciaries Breached Their Duties Under ERISA, Could Be Required To Indemnify Co-Fiduciaries

Chesemore v. Fenkell, Nos. 14-3181, 14-3215 & 15-3740 (7th Cir. 2016), involved the following situation. Trachte Building Systems, Inc., a Wisconsin manufacturer, established an employee stock ownership plan (“ESOP”) in the mid-1980s when ESOPs were a popular employee-benefits instrument. In the late 1990s, David Fenkell and Alliance Holdings, Inc., a company he founded and controlled, developed a niche specialty in buying and selling ESOP-owned, closely held companies with limited marketability. In the typical transaction, Fenkell would merge the ESOP of an acquired company into Alliance’s own ESOP, hold the company for a few years with its management in place, and then spin it off at a profit (assuming everything went as planned).


In accordance with this business model, Alliance acquired Trachte in 2002 for $24 million and folded its ESOP into Alliance’s ESOP. Fenkell projected that the company would fetch around $50 million in five years. When the time came to sell, however, Trachte’s profits were flat, its growth had stalled, and no independent buyer would pay anywhere near that price. So Fenkell offloaded the company to its employees in a complicated leveraged buyout. When all was said and done, Trachte and the new Trachte ESOP had paid $45 million for 100% of Trachte’s stock and incurred $36 million in debt. The purchase price was inflated and the debt load was unsustainable. By the end of 2008, Trachte’s stock was worthless. The losers in this deal—the employee participants in the new Trachte ESOP—sued Alliance, Fenkell, his handpicked trustees, and several other entities alleging breach of fiduciary duty in violation of ERISA.


The district court held a bench trial and issued a comprehensive opinion finding the defendants liable. After an additional hearing, the judge crafted a careful remedial order making the class and a subclass whole. The judge later awarded attorney’s fees and approved settlements among some of the parties. Fenkell appealed. He concedes liability but raises many objections to the remedial order, the award of attorney’s fees, and the settlements by his codefendants. The only substantial issue on appeal is a challenge to the judge’s order requiring him to indemnify his cofiduciaries. As to this issue, the Seventh Circuit Court of Appeals (the “Court”) said that it held more than 30 years ago that ERISA allows this. Since then a circuit split has arisen on this subject, but the Court was not persuaded that its earlier decision should be overruled. Accordingly, the Court affirmed the district court’s rulings in all respects.

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