This program will review how the Department of Labor approaches ESOP investigations and how that has frequently escalated to litigation. Using late 2021 decision of the Federal District Court for the District of Hawaii, David Johanson, the lead trial counsel in the case, will review the process of how a successful defense judgment was obtained by the ESOP selling shareholders and how all the Department of Labor allegations that the ESOP paid greater than fair market value were successfully defeated.
The program will also cover how the DOL allegations regarding the monitoring of an independent trustee were defeated and why the allegations regarding the purported inflation of profitability projections for the ESOP sponsor were rejected by the Court. A discussion of the post-trial rulings and other recent ESOP case law will be included as well as a review of best practices to avoid the threat of DOL claims in ESOP transactions.
The program will also include an update on the pending federal legislation mandating that the Department of Labor issue proposed regulations for public comment on the ESOP adequate consideration standard.
Presenter Bios
David R. Johanson is Partner-in-Charge of the Napa office of Hawkins Parnell Thackston & Young LLP. He also has offices in San Francisco, Los Angeles, and New York to cover his national practice.
Mr. Johanson assists clients in general corporate matters and in employee ownership, benefit, ERISA, and related business matters, with an emphasis on executive compensation, equity incentive plans, non-qualified deferred compensation, employee stock ownership plans (ESOPs), ESOP transactions, mergers and acquisitions (and related tax planning), and business succession and estate planning.
Mr. Johanson has served as outside general counsel to numerous corporate clients over the past 32 years. Mr. Johanson also frequently appears on behalf of clients in business and employment-oriented defense litigation in state and federal courts throughout the country, before regulatory agencies (e.g., U.S. Department of Labor, California Labor Commissioner, and the U.S. Equal Employment Opportunity Commission), in tax controversies before the Internal Revenue Service and comparable state regulatory agencies, against felony criminal indictments in U.S. Federal Court, and in dispute resolutions of various kinds.
Mr. Johanson represents corporations in shareholder and non-competition disputes. Mr. Johanson is a member of the Southern California Mediation Association and a frequent Lecturer for the University of Southern California Mediation Clinic. Mr. Johanson has actively served as a Temporary Judge on a pro bono basis for the Los Angeles County Superior Courts since October of 2009.
Mr. Johanson has defended ERISA fiduciaries, plan sponsors, selling shareholders, and investment advisers in ERISA litigation matters involving ESOPs and business transactions in federal and state courts throughout the country in a wide range of controversies covering ERISA fiduciary responsibilities, ESOP valuation disputes, disclosure obligations, investment issues, and tax matters. He has extensive experience in negotiating ESOP, ERISA, and other issues with government regulatory agencies and in representing ERISA fiduciaries in litigation.
Recognized nationally for his experience and expertise in the ESOP and executive compensation field, Mr. Johanson is a past chair (1993-1995 and 2005-2007) of the legislative and regulatory advisory committee of The ESOP Association. He also is a past chair of The ESOP Association’s advisory committee chairs council and is a former member of its board of directors.
Mr. Johanson was honored at the 17th annual conference of The ESOP Association as the outstanding committee chair for 1993-94. Mr. Johanson served for more than ten years as General Counsel to The National Center for Employee Ownership and on its board of directors.
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