No. 14-60811

__________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

THOMAS E. PEREZ, Secretary of Labor, U.S. Department of Labor,

Plaintiff-Appellee Cross-Appellant,

v.

HERBERT BRUISTER; AMY SMITH,

Defendants-Appellants Cross-Appellees.

__________________

On Appeal from the United States District Court

for the Southern District of Mississippi, Northern Division

The Honorable Daniel P. Jordan III (D.C. No. 3:13cv1001-DPJ-FKB)

__________________

BRIEF FOR THE SECRETARY OF LABOR

__________________

M. PATRICIA SMITH ELIZABETH HOPKINS

Solicitor of Labor Counsel for Appellate

and Special Litigation

G. WILLIAM SCOTT THOMAS TSO

Associate Solicitor STEPHEN SILVERMAN

Plan Benefits Security Division Attorneys

U.S. Department of Labor

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

(202) 693-5623

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STATEMENT REGARDING ORAL ARGUMENT

The Secretary requests oral argument. The factual background is substantial

and the record is voluminous, this matter having proceeded through extensive

discovery and a four-week bench trial. The Secretary believes that oral discussion

of the facts and applicable precedent will benefit the Court's consideration of this

case.

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ii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF JURISDICTION..........................................................................1

STATEMENT OF THE ISSUES...............................................................................1

STATEMENT OF THE CASE..................................................................................2

I. Factual Background...............................................................................2

II. Legal Background .................................................................................3

III. Decision Below .....................................................................................6

A. Bruister's Fiduciary Status...............................................................6

B. Defendants' Liability .......................................................................7

C. Remedies .......................................................................................11

STANDARD OF REVIEW .....................................................................................13

SUMMARY OF THE ARGUMENT ......................................................................14

ARGUMENT ...........................................................................................................17

I. The District Court Committed No Clear Error in Concluding That

Bruister, a Plan Trustee, Acted as a Fiduciary With Regard to the

Sale of his Stock to the ERISA Pension Plans....................................17

A. Bruister Was a Fiduciary as a Plan Trustee and Failed to

Establish that he Abstained From the Stock Transactions........17

B. Bruister Was Also A Fiduciary Because He Appointed the

Other Trustees...........................................................................28

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iii

TABLE OF CONTENTS-(continued)

II. The District Court Committed No Clear Error In Finding that

Bruister and Smith Acted Disloyally From Beginning to End and

Committed Prohibited Transactions in Selling Bruister's Stock to

the Plans For More Than Adequate Consideration.............................29

A. The District Court Properly Concluded that Bruister and

Smith Violated Their Duties of Loyalty Throughout the

Transactions ..............................................................................29

B. The District Court Properly Concluded that Defendants Were

Not Entitled to the Prohibited Transaction Exemption in

Section 408(e) ...........................................................................30

C. Donnelly Received Inaccurate and Incomplete

Information............................................................31

D. Defendants' Failure to Appeal Bruister's Co-Fiduciary

Liability Gives Rise to a Distinct, Undisputed Basis for

Bruister's Fiduciary Liability.....................................................37

III. Defendants' Arguments Regarding Remedies Lack Merit..................38

A. The District Court Properly Considered the ESOP's Debt in

Determining Losses...................................................................38

B. Defendants' Remaining Arguments Lack Merit .......................44

1. The ESOP's $3.8 Million Payment on the December

2004 Promisory Note Caused a Loss to the Plan .........44

2. The District Court did not Abuse its Discretion By

Using Messina's Report to Calculate

Losses..........................................................45

3. The District Court Acted Within its Discretion in

Ordering Prejudgment Interest..............................48

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iv

TABLE OF CONTENTS-(continued)

4. The District Court Properly Issued a Fiduciary and

Service Provider Bar.........................................50

IV. Given the District Court's Factual Findings on Liability, the Court

Clearly Erred in Relying on Defendans' Expert in Part in Calculating

the Amount of the Overpayment.........................................................51

A. The District Court's Reliance on Range's Fair Market Value

Calculations Cannot Be Squared With the Court's Factual

Findings.....................................................................................52

1. Range's Assumption about BAI Conflicted with the

Court's Findings...............................................53

2. Range's Calculations Were Inflated Based on the Court's

Own Findings.................................................56

3. The Court's Weighting of the Three Experts Was Also in

Error............................................................58

B. The District Court Should have Resolved Uncertainties

Regarding Fair Market Value in the Plans' Favor, and

Not in Favor of the Breaching Fiduciaries................................59

C. Alternatively, If Fair Market Value Cannot be Calculated

With Certainty, Rescission is the Most Appropriate

Remedy .....................................................................................62

1. Trust Law Supports Rescission ............................63

2. ERISA Supports Rescission as an Approriate Remedy

Where Fiduciaries Have Engaged in Prohibited

Transactions and Difficulties in Determining What The

Plans Should Have Paid is Directly Tied to Their

Breaches.......................................................65

.

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v

TABLE OF CONTENTS-(continued)

3. The District Court Was Wrong In Concluding that

Rescission Would Constitute a Windfall for the

Plans.............................................................68

CONCLUSION.......................................................................................................70

CERTIFICATE OF COMPLIANCE..........................................................................

CERTIFICATE OF SERVICE ...................................................................................

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vi

TABLE OF AUTHORITIES

Federal Cases:

Ackerman v. F.D.I.C.,

973 F.2d 1221 (5th Cir. 1992)..............................................................................48

Am. Fed. of Unions Local 102 Health & Welfare Fund v. Equitable Life

Assurance Soc'y of the U.S.,

841 F.2d 658 (5th Cir. 1988)..............................................................................4, 5

Anderson v. City of Bessemer, N.C.,

470 U.S. 564 (1985) .............................................................................................52

Baldwin v. Taishan Gypsum Co., Ltd.,

742 F.3d 576 (5th Cir. 2014)................................................................................13

Beck v. Levering,

947 F.2d 639 (2d Cir. 1991) ........................................................................ 50 n.12

Bender v. Brumley,

1 F.3d 271 (5th Cir. 1993)....................................................................................30

Burkhart Grob Luft und Raumfahrt GmbH & Co. KG v. E-Systems, Inc.,

257 F.3d 461 (5th Cir. 2001)................................................................................13

Bussian v. RJR Nabisco, Inc.,

223 F.3d 286 (5th Cir. 2000)..................................................................... 4, 31, 35

C.I.R. v. Keystone Consol. Indus., Inc.,

508 U.S. 152 (1993) .............................................................................................66

Chao v. Merino,

452 F.3d 174 (2d Cir. 2006) .................................................................................50

Chesemore v. Alliance Holdings, Inc.,

948 F. Supp. 2d 928 (W.D. Wisc. 2013)....................................................... 39, 40

Dickerson v. Lexington Ins. Co.,

556 F.3d 290 (5th Cir. 2009)................................................................................13

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vii

Federal Cases-(continued):

Donovan v. Bierwirth,

680 F.2d 263 (2d Cir. 1982) .......................................................................... 27 n.4

Donovan v. Bierwirth,

754 F.2d 1049 (2d Cir. 1985) ........................................................................ 60, 61

Donovan v. Cunningham,

716 F.2d 1455 (5th Cir. 1983)............................................................... 4 & passim

Dunn v. C.I.R.,

301 F.3d 339 (5th Cir. 2002)................................................................... 14, 58, 62

Eaves v. Penn,

587 F.2d 453 (10th Cir. 1978),.............................................................................69

Estate of Jameson v. C.I.R.,

267 F.3d 366 (5th Cir. 2001),...............................................................................53

Fifth-Third Bancorp v. Dudenhoeffer,

134 S. Ct. 2459 (2014)............................................................................................4

Fish v. GreatBanc Trust Co.,

749 F.3d 671 (7th Cir. 2014)..................................................................................6

Fisher v. Miocene Oil and Gas Ltd.,

335 F. App'x 483 (5th Cir. July 2, 2009)..............................................................65

Ford v. Uniroyal Pension Plan,

154 F.3d 613 (6th Cir. 1998)................................................................................48

French v. Allstate Indem. Co.,

637 F.3d 571 (5th Cir. 2011)......................................................................... 25, 27

Grilletta v. Lexington Ins. Co.,

558 F.3d 359 (5th Cir. 2009)......................................................................... 45, 46

Gustafson v. Alloyd Co., Inc.,

513 U.S. 561 (1995) .............................................................................................67

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viii

Federal Cases-(continued):

Hans v. Tharaldson,

2011 WL 7179644 (D.N.D. Oct. 31, 2011)................................................... 39 n.8

Harris Trust & Sav. Bk. v. Salomon Smith Barney, Inc.,

530 U.S. 238 (2000) .................................................................................. 5, 65, 66

Henry v. Champlain Enterprises, Inc.,

445 F.3d 610 (2d Cir. 2006) .................................................................................59

Henry v. U.S. Trust Co.,

569 F.3d 96 (2d Cir. 2009) ............................................................................ 39, 40

Herman v. S.C. Nat'l Bank,

140 F.3d 1413 (11th Cir. 1998)................................................................... 50 n.12

Horn v. McQueen,

215 F. Supp. 2d 867 (W.D. Ky. 2002) .......................................................... 39, 40

Huddleston v. Herman & MacLean,

640 F.2d 534(5th Cir. 1981), modified on other grounds by,

459 U.S. 375 (1983) .............................................................................................68

In re Dynegy, Inc. Erisa Litig.,

309 F. Supp. 2d 861 (S.D. Tex. 2004)..................................................................35

Invengineering, Inc. v. Foregger Co.,

293 F.2d 201 (3d Cir. 1961) .................................................................................63

In re GWI PCS 1 Inc.,

230 F.3d 788 (5th Cir. 2000)................................................................................64

In re SeaQuest Diving, LP ,

579 F.3d 411 (5th Cir. 2009)................................................................................63

James v. Home Constr. Co. of Mobile, Inc.,

621 F.2d 727 (5th Cir. 1980)................................................................................64

Kim v. Fujikawa,

871 F.2d 1427 (9th Cir. 1989)..............................................................................60

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ix

Federal Cases-(continued):

Klepeis v. J & R Equip., Inc.,

2012 WL 2849390 (S.D.N.Y. May 31, 2012) adopted by,

2012 WL 2849750 (S.D.N.Y. July 11, 2012).......................................................49

Kuhn v. Wyeth, Inc.,

686 F.3d 618 (8th Cir. 2012)................................................................................47

Lake Charles Harbor & Terminal Dist. v. Henning,

409 F.2d 932 (5th Cir. 1969)....................................................................... 62 n.14

Landry v. Air Line Pilots Ass'n Int'l AFL-CIO,

901 F.2d 404 (5th Cir. 1990)................................................................................28

Landwehr v. Dupree,

72 F.3d 726 (9th Cir. 1995)..................................................................................67

League of United Latin Am. Citizens #4552 (LULAC) v. Roscoe Indep.

Sch. Dist.,

123 F.3d 843 (5th Cir. 1997)................................................................................45

Leigh v. Engle,

727 F.2d 113 (7th Cir. 1984)............................................................................4, 60

Lindy Investments v. Shakertown Corp.,

209 F.3d 802 (5th Cir. 2000)................................................................................63

Lowen v. Tower Asset Mgmt.,

829 F.2d 1209 (2d Cir. 1987) ...............................................................................18

Martin v. Feilen,

965 F.2d 660 (8th Cir. 1992)................................................................................50

Mertens v. Hewitt Assocs.,

508 U.S. 248 (1993) .............................................................................................50

Mills v. Elec. Auto-Lite Co.,

396 U.S. 375 (1970) ...................................................................................... 66, 67

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x

Federal Cases-(continued):

Nat'l Sec. Sys., Inc. v. Iola,

700 F.3d 65 (3d Cir. 2012) ...................................................................................66

Neil v. Zell,

767 F. Supp. 2d 933 (N.D. Ill. 2011)............................................................. 39, 40

Nieto v. Ecker,

845 F.2d 868 (9th Cir. 1988)................................................................................67

Novella v. Westchester Cnty.,

661 F.3d 128 (2d Cir. 2011) .................................................................................49

Pegram v. Herdrich,

530 U.S. 211 (2000) ...................................................................................... 27 n.4

Pinter v. Dahl,

486 U.S. 622 (1988) .............................................................................................67

Pipitone v. Biomatrix, Inc.,

288 F.3d 239 (5th Cir. 2002)....................................................................... 47 n.11

Princess Lida of Thurn and Taxis v. Thompson,

305 U.S. 456 (1939) .............................................................................................63

Provident Life & Acc. Ins. Co. v. Sharpless,

364 F.3d 634 (5th Cir. 2004)................................................................................64

Randall v. Loftsgaarden,

478 U.S. 647 (1986) .............................................................................................69

Reich v. Compton,

57 F.3d 270 (5th Cir. 1995)..................................................................................67

Reich v. Lancaster,

55 F.3d 1034 (5th Cir. 1995)................................................................................35

Reich v. Rowe,

20 F.3d 25 (1st Cir. 1994) ....................................................................................67

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xi

Federal Cases-(continued):

Reich v. Stangl,

73 F.3d 1027 (10th Cir. 1996)..............................................................................67

Reich v. Valley Nat'l Bank of Arizona,

837 F. Supp. 1259 (S.D.N.Y. 1993).............................................................. 39, 40

Rivera v. Benefit Trust Life Ins. Co.,

921 F.2d 692 (7th Cir. 1991)................................................................................49

Rosenfield v. HSBC,

681 F.3d 1172 (10th Cir. 2012)............................................................................63

Rosenzweig v. Azurix Corp.,

332 F.3d 854 (5th Cir. 2003)................................................................................67

Roth v. Sawyer-Cleator Lumber Co.,

61 F.3d 599 (8th Cir. 1995)..................................................................................60

Secretary of Labor v. Gilley,

290 F.3d 827 (6th Cir. 2002)................................................................................60

Schloegel v. Boswell,

944 F.2d 266 (5th Cir. 1993)......................................................................... 19 n.3

Smith v. Sydnor,

184 F.3d 356 (4th Cir. 1999)................................................................................67

Sommers Drug Stores Co. Emp. Profit Sharing Trust v. Corrigan Enters., Inc.,

793 F.2d 1456 (5th Cir. 1986)..............................................................................64

Transamerica Mortg. Advisors, Inc. v. Lewis,

444 U.S. 11 (1979) ...............................................................................................67

United States v. Martinez,

263 F.3d 436 (5th Cir. 2001)................................................................................37

United States v. U.S. Gypsum Co.,

333 U.S. 364 (1948) ...................................................................................... 53, 55

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xii

Federal Cases-(continued):

Whitfield v. Lindemann,

853 F.2d 1298 (5th Cir. 1988)....................................................................... 48, 63

Federal Statutes:

Investment Advisers Act of 1940, Section 215, 29 U.S.C. § 80b-15......................67

Internal Revenue Code:

26 U.S.C. § 4975(f)(5) .............................................................................................66

26 U.S.C. § 4975(h) .................................................................................................66

Judiciary and Judicial Procedure:

28 U.S.C. § 1291........................................................................................................1

Employee Retirement Income Security Act of 1974,

as amended, 29 U.S.C. § 1001 et seq:

Section 3(14), 29 U.S.C. § 1002(14)...................................................................5

Section 3(18), 29 U.S.C. § 1002(18)...................................................................6

Section 3(21)(A), 29 U.S.C. § 1002(21)(A)........................................................7

Section 3(21)(A)(i), 29 U.S.C. § 1002(21)(A)(i) ............................................... 5

Section 402(a)(2), 29 U.S.C. § 1102(a)(2)........................................................17

Section 403(a), 29 U.S.C. § 1103(a) .............................................................4, 17

Section 404(a), 29 U.S.C. § 1104(a) ...................................................................4

Section 404(a)(1), 29 U.S.C. § 1104(a)(1)..........................................................6

Section 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A)...........................................4, 6

Section 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B) .............................................35

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xiii

Federal Statutes-(continued):

Section 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D).............................................69

Section 405(a), 29 U.S.C. § 1105(a) ....................................................... 5, 37,38

Section 406, 29 U.S.C. § 1106 ........................................................................5, 9

Section 406(a) 29 U.S.C. § 1106 (a) .................................................................67

Section 406(a)(1), 29 U.S.C. § 1106 (a)(1)........................................... 5, 65, 66

Section 406(a)(1)(A), 29 U.S.C. § 1106(a)(1)(A)...........................................5, 6

Section 408, 29 U.S.C. § 1108 ........................................................................5, 6

Section 408(e), 29 U.S.C. § 1108(e) ........................................... 6, 9, 10 , 30, 37

Section 409, 29 U.S.C. § 1109 ................................................................... 45, 67

Section 502(a)(2), 29 U.S.C. § 1132(a)(2)....................................................1, 50

Section 502(a)(5), 29 U.S.C. § 1132(a)(5)....................................................1, 50

Section 502(e)(1), 29 U.S.C. § 1132(e)(1)..........................................................1

Federal Regulations:

26 C.F.R. § 53.4941(e)-1(c)(3) ................................................................................66

29 C.F.R. § 2509.75-8..............................................................................................28

29 CFR § 2550.408b-2(e)(2)....................................................................................18

Miscellaneous:

Fed. R. Evid. 702 ............................................................................... 46, 47, 47 n.11

Fed. R. App. P. 28(a)(9)(A) .....................................................................................37

H.R. Conf. Rep. No. 93-1090,

120 Cong. Rec. 29942 (Aug. 22, 1974) ...............................................................66

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xiv

Miscellaneous-(continued):

George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 701

(2014)....................................................................................................................64

Dan B. Dobbs, Law of Remedies § 4.3 (1973) .......................................................64

Restatement (Second) of Contracts § 347 (1981)............................................. 41, 43

Restatement (Second) of Trusts § 205 (1959) .........................................................64

Restatement (Second) of Trusts § 206 cmt. c (1959) ..............................................65

Restatement (Second) of Trusts § 214 (1959) .........................................................68

Restatement (Third) of Trusts: Prudent Investor Rule § 205 (1992) ......................64

DOL Adv. Op. No. 99-09A,

1999 WL 343508 (May 21, 1999) .......................................................................18

Uniform Trust Code § 1002(a) (2000) ....................................................................64

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STATEMENT OF JURISDICTION

The Secretary of Labor brought this action under sections 502(a)(2) and

(a)(5) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29

U.S.C. §§ 1132(a)(2) and (a)(5). The district court had subject matter jurisdiction

over the action pursuant to ERISA section 502(e)(1), 29 U.S.C. § 1132(e)(1), and

entered a final judgment on October 16, 2014. The appeal by Herbert Bruister,

Amy Smith and Jonda Henry was timely filed on November 13, 2014, and the

Secretary's cross-appeal was timely filed on December 12, 2014.1This Court has

jurisdiction of the appeal under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

As restated by the Secretary, the issues raised by Herbert Bruister and Amy

Smith are:

1. Whether the district court clearly erred in finding that Bruister, a plan

trustee who sold all of his company's stock to the pension plans for his employees,

was an ERISA fiduciary with regard to these sales.

2. Whether the district court clearly erred in finding that Bruister and Smith,

the two trustee defendants in this appeal, violated their fiduciary duties by acting

disloyally and failing to make a good faith determination of the fair market value

of the employer stock prior to approving the purchase of the stock by the ERISA

1

Pursuant to a settlement, Henry was dismissed from this appeal on June 18, 2015.

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pension plans, thereby causing the plans to significantly overpay Bruister for the

stock.

3. Whether the district court clearly erred in including both cash paid and

debt incurred by the plans in calculating the overpayment remedy and in relying in

part on testimony from the Secretary's expert in averaging fair market value of the

stock at the time of each sale, or otherwise abused its discretion in ordering

prejudgment interest and injunctive relief.

The Secretary, in his cross-appeal, raises the following issue:

1. Whether in light of its findings of fact on liability, the district court erred

in relying on defendants' expert in calculating damages.

STATEMENT OF THE CASE

I. Factual Background

Bruister and Associates, Inc. ("BAI") was a privately-held DirecTV

installation company. ROA.25316. BAI set up a trust to purchase stock for two

ERISA defined contribution pension plans for its employees, the Bruister &

Associates Employee Stock Ownership Plan and the Bruister & Associates Eligible

Individual Account Plan (collectively, the "Plans"), which were both employee

stock ownership plans ("ESOPs"). ROA.25315-16, 25357. In a series of five

transactions from 2002 to 2005, the Plans bought all of BAI either directly from

Herbert Bruister (who owned and ran BAI and was also a trustee to the Plans), or

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through the Bruister Family, LLC ("BFLLC"), an entity controlled by Bruister and

his wife. ROA.25316-17. As relevant to this appeal, the final three stock

transactions occurred on December 21, 2004, September 13, 2005, and December

13, 2005. Id. The Plans' three named trustees during the time of these transactions

were Bruister, Amy Smith (a BAI employee), and Jonda Henry (BAI's outside

CPA). ROA.25316-17. In each instance, the price the Plans paid for the stock was

based on valuations prepared by Matthew Donnelly, an appraiser who was retained

by the trustees. ROA.25318-19. In August 2008, the stock became worthless

when BAI went out of business. ROA.25334-36, 25388.

Following an investigation, the Secretary filed a complaint on April 29,

2010, alleging that Bruister, Smith, and Henry breached their fiduciary duties and

engaged in prohibited transactions in violation of ERISA when they caused the

ESOPs to buy stock from Bruister without an adequate investigation into the worth

of the stock and for more than fair market value. ROA.91-109. Two Plan

participants, Joel Rader and Vincent Sealy, filed a separate suit based on the same

transactions, which was consolidated for trial, but is now on separate appeal.

ROA.25319; Rader, et al. v. Bruister, et al., No. 14-60814 (5th Cir.).

II. Legal Background

The ERISA Plans here are ESOPs, which, like all ERISA retirement plans,

are designed to secure "financial benefits (such as retirement income) that trustees

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who manage investments typically seek to secure for the trust's beneficiaries" and

to "maximize retirement savings for participants" in the ESOP. Fifth-Third

Bancorp v. Dudenhoeffer, 134 S. Ct. 2459, 2467-68 (2014). The Plan fiduciaries

are held to stringent fiduciary obligations of loyalty and care under ERISA section

404(a). 29 U.S.C. § 1104(a). These fiduciary duties are the "highest known to the

law." See, e.g., Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 294 (5th Cir. 2000).

The duty of loyalty requires fiduciaries to act with "complete and undivided loyalty

to the beneficiaries of the trust" and with an "eye single to the interests of the

participants and beneficiaries." See, e.g., Leigh v. Engle, 727 F.2d 113, 123 (7th

Cir. 1984); 29 U.S.C. § 1104(a)(1)(A).

The term "fiduciary" is liberally construed in keeping with the remedial

purpose of ERISA. Am. Fed. of Unions Local 102 Health & Welfare Fund v.

Equitable Life Assurance Soc'y of the U.S., 841 F.2d 658, 662 (5th Cir. 1988).

Trustees, such as defendants in this case, are fiduciaries who are either identified in

the trust documents or appointed by a "named fiduciary;" they "have exclusive

authority and discretion to manage and control the assets of the plan." 29 U.S.C. §

1103(a). In addition to trustees and named fiduciaries, ERISA makes a "functional

fiduciary" of any person "to the extent" that "he exercises any discretionary

authority or discretionary control respecting management of such plan or exercises

any authority or control respecting management or disposition of its assets." 29

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U.S.C. § 1002(21)(A)(i). Moreover, those who have or exercise the discretionary

authority to appoint and remove plan fiduciaries are themselves fiduciaries, with an

attendant duty to appropriately review and monitor the actions of their appointees.

See Am. Fed. of Unions, 841 F.2d at 665. All fiduciaries also have liability for the

breaches of their co-fiduciaries if, among other things, they know of breaches by

their co-fiduciaries and do not attempt to remedy them. 29 U.S.C. § 1105(a).

ERISA section 406, 29 U.S.C. § 1106, supplements the statute's exacting

fiduciary standards of prudence and loyalty "by categorically barring certain

transactions deemed 'likely to injure the pension plan.'" Harris Trust & Sav. Bk. v.

Salomon Smith Barney, Inc., 530 U.S. 238, 241 (2000) (citation omitted);

Donovan v. Cunningham, 716 F.2d 1455, 1464-65 (5th Cir. 1983). ERISA section

406(a)(1), 29 U.S.C. § 1106(a)(1), prohibits a wide range of transactions between

plans and related parties (referred to as "parties in interest," 29 U.S.C. § 1002(14)),

who could otherwise take advantage of their insider status to benefit themselves at

the plans' expense. As relevant here, section 406(a)(1)(A), 29 U.S.C. §

1106(a)(1)(A), prohibits the sale or exchange of property between the plan and a

party in interest, such as the Plans' purchases of stock from Bruister, a Plan trustee.

ERISA section 408, 29 U.S.C. § 1108, provides limited exemptions from

this and other prohibitions, but the burden is on the fiduciary to prove that an

otherwise prohibited transaction falls within the terms of an exemption.

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Cunningham, 716 F.2d at 1467-68 & n.27; Fish v. GreatBanc Trust Co., 749 F.3d

671, 686 (7th Cir. 2014) (section 408 is an affirmative defense that must be proven

by the party asserting it). One such exemption is found in ERISA section 408(e),

29 U.S.C. § 1108(e), for purchases by a plan of employer stock for no more than

"adequate consideration." Cunningham, 716 F.2d at 1465. ERISA defines

"adequate consideration" for securities, such as BAI stock, that are not publicly

traded as the "fair market value of the asset as determined in good faith by the

trustee or named fiduciary." 29 U.S.C. § 1002(18).

III. Decision Below

On October 16, 2014, following a 19-day bench trial, the district court

entered judgment for the plaintiffs, concluding that defendants breached their

duties of loyalty and prudence codified in ERISA section 404(a)(1), 29 U.S.C. §

1104(a)(1), and engaged the Plans in non-exempt prohibited transactions under

ERISA section 406(a)(1)(A), 29 U.S.C. § 1106(a)(1)(A). ROA.25315-98.

A. Bruister's Fiduciary Status

The court first addressed whether Bruister, a trustee and named fiduciary of

the Plans, was a fiduciary for purposes of the stock sales. Despite Bruister's claim

that he abstained from all votes pertaining to his sale of stock to the Plans, the

court concluded that he was a fiduciary for purposes of the Secretary's and Rader

plaintiffs' claims because he exercised authority and control over the disposition of

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the Plans' assets during the stock transactions. ROA.25340-45 (citing 29 U.S.C. §

1002(21)(A)).2The court relied on the fact that Bruister admittedly "participated

in many of the trustee meetings and closings and participated in . . . 'informal

meetings' with the other trustees." ROA.25342. Moreover, the court noted that

Bruister not only was "the driving force behind BAI," but also was a respected

figure with close personal relationships with Smith and Henry, and thus had

influence over them. ROA.25342-43. In addition, the court concluded that "the

strongest evidence that Bruister exercised fiduciary authority" were the actions of

his personal attorney, David Johanson, to affect and increase Donnelly's valuations

in Bruister's favor – and to the ESOPs' detriment. ROA.25343-44.

B. Defendants' Liability

Turning to liability, the district court explained that "an ERISA fiduciary

must avoid conflicts of interests," and the presence of such conflicts requires

fiduciaries "to take precautions to ensure that their duty of loyalty is not

compromised," including "at minimum, undertak[ing] an intensive and scrupulous

independent investigation of the fiduciary's options." ROA.25346 (quotations and

citations omitted). The court concluded that the trustees failed to do so; instead,

2

It is undisputed that Smith and Henry were fiduciaries with regard to the

transactions. ROA.25340.

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ERISA's "duty of loyalty was breached [by defendants] from start to finish."

ROA.25346.

The court pointed out that the Plans were structured to provide "no

independent or professional trustees," but instead to provide "three trustees –

Bruister [the seller] and two individuals loyal to him." ROA.25346. Moreover,

although the trustees retained and relied on an appraiser and attorneys in setting up

the stock sales, the court found that the trustees' "actions with respect to these

individuals and the transactions reveal split loyalties." ROA.25346-47. For

instance, Bruister, "the seller – acting through an agent [attorney Johanson] –

terminated the buyer's [the Plans'] independent counsel" for being "too thorough

and expensive." ROA.25347. Likewise, the court concluded that "Bruister

(usually through Johanson) had undue influence over Donnelly [the appraiser]."

Id. And "Donnelly was clearly more loyal to Bruister and Johanson" than to the

Plans. ROA.25348. As the Court explained, Donnelly, "the independent appraiser

was sending valuation drafts to [Bruister] before sending them to the [Plans] to

whom he owed his sole allegiance," behavior that "fiduciaries acting in the best

interest of the ESOP would not have countenanced." ROA.25349 (emphasis in

opinion). Finally, the court noted that "both Smith and Henry testified that they

were always concerned about Bruister's interests." ROA.25356. On these bases,

the court concluded that the Plans' stock purchases from Bruister "were not arms-

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length transactions" and defendants "failed to discharge their 'duties with respect to

a plan solely in the interest of the participants and beneficiaries.'" ROA.25356-57.

The court also held that defendants engaged in non-exempt prohibited

transactions in violation of ERISA section 406. ROA.25357-79. Because the

Plans purchased stock in the three transactions at issue from one of the trustees,

Bruister, these transactions were prohibited unless defendants could prove that the

stock was purchased for no more than "adequate consideration," under ERISA

section 408(e), 29 U.S.C. § 1108(e). ROA.25357.

To prove adequate consideration, the court held that, because BAI stock was

not publicly traded, defendants were required to prove that they made a good faith

determination of the stock's fair market value at the time they entered into the

transactions. ROA.25357-59. Moreover, in order to rely on an expert's valuation

of the fair market value of the stock, the court noted that fiduciaries must: (1)

investigate the expert's qualifications; (2) provide the expert with complete and

accurate information; and (3) ensure that reliance on the expert is reasonably

justified. ROA.25359 (citations omitted). The court found that none of these

criteria were met. First, defendants failed to investigate Donnelly's background

and qualifications, which would have revealed that he lacked a college degree and

might have led them to uncover his prior felony conviction for embezzling over

$2.5 million from several entities, including two trusts, P-64 ¶ C, and use of an

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assumed name. ROA.25360-62. Second, much of the information in the financial

statements given to Donnelly was by Donnelly's own account "mysterious," and

did not comply with Generally Accepted Accounting Principles ("GAAP"), nor did

defendants give Donnelly critical negative information about BAI, but instead

painted a "rosy picture" for Donnelly of the company that "conflicted with their

internal emails and communications" at the time. ROA.25362-25373. Third,

knowing "that Johanson was communicating directly with Donnelly in an effort to

increase the valuations," Smith and Henry simply "abdicated their responsibilities

and deferred to Johanson regarding Donnelly" and were themselves "ill equipped

to exert independent judgment." ROA.25373-79. Instead, the "purchase price was

always Donnelly's number." ROA.25378. Given all these shortcomings and

others, the court concluded that the fiduciaries failed to show a good faith

determination of the stock's fair market value for purposes of the section 408(e)

exemption. ROA.25379.

Based on the foregoing findings, the court also concluded that Bruister and

Smith, as members of the BAI's board of directors, breached their fiduciary duties

to monitor the ESOPs' trustees and that all three defendants were liable as cofiduciaries for the others' actions. ROA.25379-81.

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C. Remedies

The district court noted that, in this case, the "remedies questions are more

difficult than the liability questions." ROA.25381. Turning to those questions, the

court first flatly rejected defendants' argument that the Plans suffered no loss

because Bruister purportedly retained for BAI some $3.8 million paid by the trusts

for the Plans to purchase stock rather than pay it to BFLLC, the corporation he set

up for the stock sales. ROA.25383-84. The court reasoned that "Bruister

controlled both BAI and BFLLC" and "[i]f . . . Bruister elected to keep the $3.8

million in BAI, that would not alter the fact that the ESOP expended assets to

release the shares." ROA.25384. The court also rejected defendants' argument that

the Plans' losses in two of the transactions were limited because the Plans only

partially paid with cash and mostly paid with loans on which the Plans only made

relatively small principal payments. ROA.25393-94. The court relied on the

unanimous case law and the fact that whether loans are repaid does "not affect the

fact that [the Plans] purchased [stock] at an inflated price." Id.

The court turned next to the Secretary's request for an order of rescission,

noting the "appealing argument that rescission avoids the difficult factual findings

regarding BAI's true [fair market value] at the time the transactions occurred."

ROA.25388. The court concluded, however, that fair market value "can be

determined without 'speculation or guess,'" and further concluded that the

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considerably larger return of the $8.77 million paid for the now-worthless stock

under a rescission remedy would be a windfall because the participants understood

that the purpose of the ESOPs was to purchase BAI stock, albeit at a fair price.

ROA.25388-89. Given this, the court determined that the correct measure of

damages was the amount the ESOPs overpaid – i.e., the difference between the

Plans' purchase price in the transactions and the fair market value of the stock at

the time of the transactions. ROA.25382, 25388.

To determine the fair market value, the district court turned to the three

valuation experts who testified at trial (Dana Messina for the Secretary,

Christopher Mercer for Rader plaintiffs, and Gregory Range for defendants).

ROA.25389-93. Because the court concluded that "no expert was more reliable

than the others," and the three reports "were of similar value," the court averaged

the fair market value numbers arrived at by the three experts. ROA.25390-91.

To do so, the court first averaged the value from Rader plaintiffs' expert with

that of the Secretary's expert for each year in question, and then averaged these

numbers with values offered by defendants' expert. ROA.25392. The court then

subtracted this value from the price the ESOPs paid for BAI shares and concluded

that the total overpayment was $4,504,605.30. Id. In addition, the court awarded

$1,988,008 in prejudgment interest. ROA.25392, 25395-97. Finally, the court

granted "injunctive relief prohibiting all Defendants from acting in the future as

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fiduciaries or service providers to ERISA-covered plans, as they engaged in

egregious misconduct." ROA.25397.

STANDARD OF REVIEW

"In the appeal of a bench trial," the Fifth Circuit will "review findings of fact

for clear error and conclusions of law and mixed questions of law and fact de

novo." Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir. 2009). A

factual finding is only "clearly erroneous" if there "is no evidence to support it, or

if the reviewing court, after assessing all of the evidence, is left with the definite

and firm conviction that a mistake has been committed." Baldwin v. Taishan

Gypsum Co., Ltd., 742 F.3d 576, 584 (5th Cir. 2014). Bruister and Smith's

challenges to the district court's liability determinations are primarily, if not

exclusively, challenges to factual findings that fall under this very deferential

"clearly erroneous" standard.

Defendants and the Secretary also challenge the court's remedial holdings.

Whether to apply a particular equitable remedy is "entrusted to the discretion of the

district court," which this Court reviews "only for an abuse of discretion."

Burkhart Grob Luft und Raumfahrt GmbH & Co. KG v. E-Systems, Inc., 257 F.3d

461, 469 (5th Cir. 2001). This Court has also specifically addressed the standard

of review for a trial court's determination of fair market value of closely held stock

in a tax case and stated that "[t]he mathematical computation of fair market value

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is an issue of fact [reviewable under a clear error standard], but determination of

the appropriate valuation method is an issue of law that we review de novo." Dunn

v. CIR, 301 F.3d 339, 348 (5th Cir. 2002).

SUMMARY OF THE ARGUMENT

Defendant Bruister sold all of his stock in a series of transactions to two

pension Plans that he set up for his employees. After conducting a month-long

trial, the district court, in a thoughtful and lengthy decision, concluded that Bruister

and the two other Plan trustees violated their duties of loyalty "from start to finish"

and engaged in illegal transactions with regard to three of these transactions

because they failed to determine in good faith the true value of the stock and

instead caused the Plans to spend a great deal more money for the stock than it was

worth. These findings are unassailable, and defendants' scattershot arguments to

the contrary are nothing more than an attempt to retry the case.

1. Defendants first contend that the district court erred in concluding that

Bruister was acting as a fiduciary in the transactions. As a Plan trustee and thus an

indisputable fiduciary to the Plans, the burden under this Court's decision in

Cunningham was on Bruister to prove that he removed himself from all

consideration of the transactions. Despite Bruister's self-serving assertions that he

abstained from the transactions, the court correctly concluded that the weight of the

considerable evidence, including Bruister's own prior testimony, showed

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otherwise. Not only did Bruister participate in the actual trustee meetings in which

the sales were discussed, but he used his considerable influence over the other

trustees, over the plan attorneys and over the supposedly independent appraiser to

ensure that the transactions were favorable to himself. For these reasons, among

others, Bruister was a fiduciary with the obligation to ensure that the interests of

the Plans were protected in the stock transactions.

2. Bruister and the other trustees, however, entirely failed to live up to

their duties as Plan fiduciaries, as detailed at great length in the district court's

decision. They acted disloyally in encouraging or at least allowing Bruister's

lawyer to work with the appraiser to come up with higher and higher values for the

stock based on faulty or incomplete information, even as it became apparent that

the company's value had declined. And, by causing the Plans to purchase stock

from Bruister, a plan sponsor and one of the trustees, without making a good faith

determination of the value of the stock, they engaged in prohibited transactions.

3. The court also correctly concluded that the Plans vastly overpaid for

the stock. Although defendants complain that the court included both the cash paid

and the debt incurred by the Plans in calculating the amount that the Plans paid for

the stock, this treatment of debt is consistent with the uniform case law and with

the realities of what occurred. For the most part, the trustees' remaining arguments

are little more than complaints that the trial court somehow treated them unfairly.

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In fact, despite correctly concluding that they breached their fiduciary duties from

"start to finish" and engaged in "egregious misconduct," the court bent over

backwards to be fair to them and, as discussed next, gave great (and in fact

insupportable) weight to their expert and refused to rescind the transactions.

4. Although the court's liability determinations are unassailable, the

court's determination of the fair market value of the purchased stock, and thus the

amount of the overpayment, was in clear error. The court rejected a rescissionary

remedy in favor of awarding compensatory damages based on the amount of the

overpayment. To do so, the court averaged the fair market value calculations of all

three experts and without explanation gave greater relative weight to defendants'

expert, Range. Given the incompatible underlying assumptions about the company

(e.g., whether the company was a growth company or in financial trouble) and the

widely divergent resulting numerical values between Range, and the experts for the

Secretary and the private plaintiffs, the court clearly erred in this approach.

Indeed, because the court had already found that the appraiser at the time of the

transactions was fundamentally flawed in his optimistic view of the company and

worked with Bruister's attorney to purposefully inflate the value, the court erred in

relying to any extent on Range, whose assumptions and resulting calculations were

even more optimistic than the flawed appraisals done at the time of the sales. The

court instead should have based its overpayment calculation on the fair market

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value calculations of the Secretary's expert or, if it considered that testimony too

uncertain, it should have rescinded the illegal and abusive transactions.

ARGUMENT

I. The District Court Committed No Clear Error in Concluding

That Bruister, a Plan Trustee, Acted as a Fiduciary With Regard

to the Sale of his Stock to the ERISA Pension Plans

A. Bruister Was a Fiduciary as a Plan Trustee and Failed to Establish

that he Abstained From the Stock Transactions

There is no dispute that Bruister served as a named trustee, and thus was a

fiduciary of the Plans with control over the Plan assets, during the three

transactions in which he sold his stock to the Plans. ROA.25316; ROA.25341; see

29 U.S.C. §§ 1102(a)(2), 1103(a). Indeed, the Plans' Trust Agreements identified

Bruister as a trustee with control over the ESOPs' assets for purposes of these stock

sales. J-121 ¶¶ B, C (Sec'y R. Excerpts 1-3). On appeal, however, Bruister

rehashes the argument, rejected by the district court as unsupported by the

evidence, that despite his role as trustee, he completely "abstained" from his

fiduciary role during these transactions and therefore lacks any fiduciary liability.

Defs.' Br. 1, 14-21. Instead, after a lengthy trial and review of "an enormous

record," ROA.25319, the district court concluded that Bruister in fact acted as a

fiduciary with regard to the transactions, but failed to live up to his responsibilities

as such. ROA.25340-57. Bruister cannot show clear error in this regard.

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Indeed, this Court's decision in Cunningham directly supports the district

court's conclusion. In Cunningham, the defendant served as an appointed trustee,

but argued he did not participate in the vote or decision concerning the ESOP's

purchase of stock and thus was not liable as a fiduciary. 716 F.2d at 1459. This

Court noted that although the defendant did not vote in the transaction, the

unrefuted testimony showed that "he did participate in the fiduciaries' decision to

pay" for ESOP stock, and therefore did not meet his burden of establishing

abstention. Id. at 1468. Cunningham therefore requires a named trustee claiming

abstention to remove himself completely from all fiduciary decision-making. Id.;

see Lowen v. Tower Asset Mgmt., 829 F.2d 1209, 1219 (2d Cir. 1987) (fiduciary

must "avoid any connection with that transaction" and "unequivocally cease to

serve in [fiduciary] position . . . before playing any role in transactions denied to

fiduciaries by Section 406" because "fiduciary obligations may not be turned on

and off like running water"). The Secretary has issued formal guidance consistent

with Cunningham. See 29 CFR § 2550.408b-2(e)(2) ("mere approval of the

transaction by a second fiduciary does not mean that the first fiduciary has not used

any of the authority, control or responsibility which makes such person a

fiduciary"); DOL Adv. Op. No. 99-09A, 1999 WL 343508, at *4 (May 21, 1999)

("recusal would be sufficient only if the Committee member recuses him or herself

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from all consideration by the [Plans] of whether or not to engage in the

transaction").

The district court correctly found that Bruister simply failed to make the

showing necessary under Cunningham and the Secretary's guidance to establish

that he removed himself from all consideration of the transactions.3The court

correctly noted that Bruister's own "prior statements" revealed that he

"participated, at least to some extent" in the transactions. ROA.25342. Bruister

testified that he "attended many of the trustee meetings and closings and

participated in what he referred to as 'informal meetings' with the other trustees."

ROA.25342-43. Bruister "explained his role further during sworn testimony,"

stating that he could not say that he "had absolutely no input." ROA.25343.

Instead, Bruister testified that he "never walked out of the room," and he made sure

to give the other trustees his input and opinion. Id. In claiming clear error,

Bruister simply ignores the court's reliance on this evidence.

Bruister likewise ignores the district court's conclusion that he utilized his

3 Defendants' reliance on Schloegel v. Boswell, 994 F.2d 266 (5th Cir. 1993), and

similar cases is misplaced. Defs.' Br. 16. Schloegel addressed whether a nonfiduciary insurance salesman became a fiduciary by influencing an ERISA

fiduciary, and concluded that he did not. 994 F.2d at 271-72. Unlike the salesman

in Schloegel, there is no question here that Bruister, as a trustee of the Plans, was a

fiduciary. The only question, as in Cunningham, was whether, despite his

fiduciary status, Bruister abstained from any involvement in the stock sales at

issue.

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position as founder, owner and "the driving force behind BAI," to ensure that

"Smith, Henry, and Donnelly were aware of [his] preferences." ROA.25343. The

court reasoned that Bruister may have been "a good boss and a highly respected

figure who was admired . . . [b]ut these attributes also created influence." Id.

Smith worked for Bruister "and "she was clearly devoted to him." Id. "Henry

considered Bruister a friend, and he was a major client of her CPA firm," so she

discussed the ESOPs' transactions with Bruister. Id. The court credited "Smith

and Henry['s] testi[mony] that they were always concerned about Bruister's

interests," even when purportedly acting for the ESOPs. ROA.25356. The Plans'

interests were therefore represented by three trustees who lacked independence:

Bruister "and two individuals loyal to him," ROA.25349, ROA.25351, 25356, and

their actions "reveal[ed] split loyalties. ROA.25346-47. In short, the whole

arrangement enabled Bruister to exert fiduciary authority over his sale of stock to

the Plans he created for his employees. ROA.25351, 25356.

Bruister also ignores the district court's findings that his own attorney, David

Johanson, was "deeply involved with Bruister's personal finances and various

business interests," and "clearly the driving force behind the ESOP and each

transaction." ROA.25343-44. "Johanson acted with apparent – if not actual –

authority as Bruister's agent." ROA.29344. Indeed, from the start, Johanson

acknowledged: "[w]e represent the seller, Herb Bruister, in this deal," id. (citing P-

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166), which "matches Bruister's trial testimony that he generally viewed Johanson

as his attorney," and "coincides with Donnelly's testimony that he viewed Johanson

as attorney for BAI and Bruister." Id. (citation omitted). Johanson's intent was

clearly to convey to the appraiser, Donnelly, Bruister's expectations of a higher

valuation, because his firm "represents the seller, so we are looking for the highest

FMV possible within reason." ROA.25350 (emphasis in opinion). Importantly,

"the record evidence is undisputed that Johanson copied Bruister on emails to

Donnelly and others" in which Johanson, used his authority to "advance[ ]

Bruister's personal interests." Id. (citation omitted); see ROA.25346-57. Johanson

was "clothed with authority to act on Bruister's behalf regarding [plan] matters,"

and "his actions provide the strongest evidence that Bruister exercised fiduciary

authority" at the time of the stock transactions. ROA.25344-45.

Defendants likewise do not identify any error with the court's findings that

Bruister's control over the Plans extended to the Plans' supposedly independent

counsel and appraiser. The first plan counsel, Steve Lifson, was fired by Bruister

for being "too thorough and expensive;" put another way, "the seller . . . terminated

the buyer's independent counsel." ROA.25347. Lifson was replaced with one of

Johanson's former law partners, William Campbell, whose "role in the transactions

was far more limited than Lifson's." Id.

As for the appraiser, "Bruister (usually through Johanson) also had undue

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influence over Donnelly," who, "[d]espite the presumed loyalty to the [Plans], . . .

was clearly more loyal to Bruister and Johanson." ROA.25347-48. Bruister

"essentially decided to hire Donnelly," ROA.25360, even though "a proper

investigation [of Donnelly's background and qualifications] was lacking."

ROA.25362. Donnelly had also initially "work[ed] directly for the seller,"

Bruister, to prepare a feasibility study, which "cemented" Donnelly's loyalty to

Bruister and compromised his independence "from the beginning." ROA.25348.

Early on, Donnelly wrote Bruister that he "look[ed] forward to working with you

as you extract millions from your company tax free. That's my idea of fun," and

that "Dave [Johanson] and I will see that your trust has not been misplaced." Id.

(citations omitted; emphasis in opinion). Similarly, in 2004, Donnelly emailed

Bruister "[i]sn't this a great way to get tax free dollars." ROA.25349. Donnelly

"sen[t] valuation drafts to [Bruister] before sending them to the [trustees] to whom

[Donnelly] owed his sole allegiance" so that Johanson could make changes, which

further "evidence[d] coercion" by Bruister and his agent, Johanson. Id. (emphasis

in opinion). Bruister and Johanson willingly interfered with Donnelly's valuations,

and Donnelly was eager to please them to the exclusion of the Plans and their

representatives. ROA.25356.

Overall, Bruister built the framework for a "pattern that continued into the

Subject Transactions," whereby he and Johanson influenced the valuations in

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Bruister's favor; Smith and Henry knew about Donnelly's "allegiance" to Bruister

and Johanson, and permitted Bruister to advance his own agenda. ROA.25348

n.15, 25349, 25351. For example, when Donnelly discovered, a few months after

the 2004 transaction closed, that he erroneously overstated BAI's value by more

than $6 million, he raised the issue only with Johanson but not the Plan's trustees

or counsel. ROA.25351.

Bruister's and Johanson's influence over Donnelly continued unabated

through the final transaction. Id. Because Donnelly "lacked knowledge of some

fairly standard valuation issues," he used a separate company called Business

Equity Appraisal Reports, Inc. ("BEAR") to input data that Donnelly supplied into

its software to generate a report. ROA.23551. During preparations for the final

transaction, Donnelly received a draft report from BEAR showing a significant

drop in BAI's value from the prior transaction. ROA.25352. Donnelly asked

BEAR to adjust certain data to increase the valuation because Bruister "needs to

get his fair share or the ESOP will get it all." Id. (emphasis in opinion). Donnelly

also advised only Johanson – but not Campbell or the plan trustees – that he was

"working on [the report] to see what I can tweak" to increase the valuation. Id.

Bruister's concerns were not eased, because "[o]nce informed about the lower

value, Johanson immediately admonished Donnelly, in large-font, bolded letters"

to consider other factors that would increase the value. ROA.25352-53.

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Donnelly's "tweaks" increased BAI's FMV in the next draft valuation, but

"Johanson was dissatisfied [and] pressed harder" in a series of emails – that now

included Smith and Henry – for Donnelly to make further adjustments that would

increase BAI's FMV. ROA.25353-54. Donnelly followed Johanson's orders and

asked BEAR to make further changes that would increase BAI's FMV.

ROA.25354-55. At this late juncture, Johanson finally included the ESOPs'

counsel, Campbell, in the email exchanges. ROA.25355. Campbell asked for a

draft valuation, but Donnelly responded that it was not yet ready for him. Id. The

court found that: "[W]hile Donnelly had already provided drafts to Johanson and

attempted to incorporate Johanson's value-increasing recommendations, he

declined to provide the drafts to [the Plans'] counsel, promising instead to provide

one at the same time he sent it to the seller." Id. (emphasis in opinion). Donnelly's

final valuation showed a $39 million value – more than $9 million above his initial

number from days earlier and higher than any prior BAI valuation even though

there was "no legitimate reason this appraisal was higher than the previous

appraisals." ROA.25355-56. The court considered this clear evidence that

Bruister (through Johanson) successfully increased Donnelly's valuations.

ROA.25356, ROA.25347, ROA.25351.

Defendants simply fail to identify any error with these factual findings,

which, certainly cumulatively, clearly establish Bruister's fiduciary authority and

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control at the time of the three stock transactions.

Defendants narrowly attack two of the district court's factual findings: (1)

that Bruister attended trustee meetings and the closings and also participated in

"informal meetings" with the other trustees for the stock sales at issue; and (2) that

he was involved with and approved the Plans' retention of Donnelly as their

appraiser. Defs.' Br. 15-21. But even for these limited challenges, Bruister relies

on one-sided snippets of trial testimony, lacking even a single citation to contrary

deposition testimony or contemporaneous documents. Id. Thus, Bruister's

approach ignores the district court's decision to place "greater emphasis on

documents and sworn deposition testimony, which occurred several years before

trial," than on the less credible testimony of the same witnesses because of faded

memories and reconstructions of the events in the decade following the stock sales.

ROA.25342 n.11. "[T]he burden of showing that the findings of the district court

are clearly erroneous is heavier if the credibility of witnesses is a factor in the trial

court's decision." French v. Allstate Indem. Co., 637 F.3d 571, 577 (5th Cir.

2011). Defendants' few trial excerpts do not carry this heavy burden.

Bruister's citations to his own trial testimony concerning his abstention are

misleading. Bruister's conclusory insistence at trial that he abstained, Defs.' Br. 16,

is contrary to earlier testimony that the lower court credited, ROA.25342-45, and

conflicting documents. See, e.g., J-82 (Bruister on emails influencing December

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2005 transactions); P-101 (Bruister sends 2004 valuation to Smith). Bruister also

selectively quotes Smith's trial testimony to support his argument that Bruister

abstained from the decision making, Defs.' Br. 17-19, but this is contradicted or at

least tempered by her admission that she discussed valuations with Bruister to get

his approval, ROA.26928:12-17, and that her main concern with the December

2005 transaction was Bruister's comfort level. ROA.27046:13-20. And while

defendants state that "Smith knew she could vote against a proposed Transaction,"

Defs.' Br. 18, Smith's testimony to this effect is contradicted by her earlier

deposition testimony that the court found more believable. ROA.25375-76 ("her

prior testimony suggests that she may have thought she was obligated to go

forward with the transactions at Donnelly's price"); ROA.26932:19-26933:3.

Similarly, Smith's testimony that she knew her ERISA fiduciary duties and

discussed them with the ESOPs' counsel, Defs.' Br. 17-18, contrasts with her own

emails that show that she "never viewed herself as qualified to serve as a trustee."

ROA.25375 (citing P-146, P-121). The Court properly concluded that Smith did

not carry out her independent fiduciary duties. ROA.25374.

Bruister's references to Henry's testimony are similarly misrepresentative.

Defs.' Br. 19-20. The court correctly concluded that, like Smith, Henry was clearly

not independent and interacted with Bruister with respect to her decisions on these

transactions. E.g., ROA.25343 (Henry considered Bruister a friend, he was a

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major client of her firm, and "at minimum" she testified to discussing the ESOPs'

transactions with him); ROA.25356 & J-117 (Henry acquiesced to Johanson's

influence on the transactions in Bruister's favor, and "testified that [she was]

always concerned about Bruister's interests," which demonstrates "divided

loyalties"); ROA.25375 ("Smith and Henry abdicated their responsibilities and

deferred to Johanson regarding Donnelly") (citing P-29, P-101); id. (Smith and

Henry were "simply ill equipped to exert independent judgment"); ROA.25376

(Henry relied on Campbell, who "denied any responsibility for checking the

valuations [or] providing any opinions on valuation."). Bruister's excerpts do not

accurately characterize the decision below or the record, much less provide "a

definite and firm conviction" that the district court's findings, mostly unchallenged,

in support of Bruister's fiduciary status were clearly erroneous. French, 637 F.3d

at 577.4

4 Bruister also suggests that the court's conclusion that he acted as a fiduciary is

somehow undercut by the fact that he served multiple roles at BAI. Defs.' Br. 21.

No one suggests that serving in multiple roles violates ERISA. "ERISA does

require, however, that the fiduciary with two hats wear only one at a time, and

wear the fiduciary hat when making fiduciary decisions." Pegram v. Herdrich, 530

U.S. 211, 225 (2000). In circumstances where a fiduciary has multiple roles and

conflicting loyalties with respect to a transaction, the burden is on the fiduciary to

establish that he was acting solely in the plan's interest. Donovan v. Bierwirth, 680

F.2d 263, 271 (2d Cir. 1982). Thus, far from helping Bruister, the fact that he

played multiple, conflicting roles heightens – not lessens – Bruister's burden to

show that he was not exercising his fiduciary authority during the transactions.

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B. Bruister Was Also A Fiduciary Because He Appointed the Other

Trustees

Whether or not Bruister acted as a fiduciary with regard to the three stock

sales at issue, as a member of BAI's Board of Directors, Bruister (and Smith for

that matter) appointed and had the power to remove the plan Trustees.

ROA.25379-80; see ROA.24271, 24287 (Order, Dec. 20, 2013). For this reason

alone, Bruister was a fiduciary with the well-established duty to appropriately

review and monitor the actions of their fellow trustees. See Landry v. Air Line

Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 418 (5th Cir. 1990); 29 C.F.R. §

2509.75-8 (D-4; FR-17).

Moreover, contrary to defendants' argument, Defs.' Br. at 24-25, the district

court properly concluded that Bruister breached his duties as an appointing

fiduciary. ROA.25379-80. Bruister allowed Smith to be a trustee even though

Smith acknowledged that she was "unqualified to serve as a trustee," ROA.25380

(citing P-146); see P-145, and "Bruister was aware of her concerns about her

qualifications." Id. Bruister watched as Henry and Smith blindly relied on

Donnelly's FMV valuations, which Bruister influenced, and he knew that Smith

and Henry "never negotiated." ROA.25378. Bruister also knew that Smith and

Henry were copied on emails showing Johanson's efforts to increase Donnelly's

valuations. ROA.25380. As the district court explained, and as discussed further

in the next section of the brief, "[d]ealing directly with the seller to the exclusion of

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the buyer is an obvious breach, and fiduciaries acting in the best interest of the

ESOP would not have countenanced this procedure." ROA.25349. Thus, Bruister

"remained idle while the seller [Bruister] communicated directly with the ESOT's

independent appraiser . . . to elevate the price at the participant's expense. Bruister

was aware of these breaches but did nothing." ROA.25380.

II. The District Court Committed No Clear Error In Finding that

Bruister and Smith Acted Disloyally From Beginning to End and

Committed Prohibited Transactions in Selling Bruister's Stock to

the Plans For More than Adequate Consideration

A. The District Court Properly Concluded that Bruister and Smith

Violated Their Duties of Loyalty Throughout the Transactions

As detailed above, the district court found that from the beginning, Bruister

cemented Donnelly's loyalty to him (rather than the ESOPs), and leveraged

Donnelly's loyalty to influence his valuations, supra at 23-26, 30-31. And, as

detailed in the district court's decision, all the trustees, including Smith, were

copied on the email exchanges in which Johanson and Donnelly cynically worked

together to come up with a faulty appraisal that showed a significant increase in the

value of the company following Hurricane Katrina, rather than the drop in value

that even defendants' expert recognized. ROA.25351-56. As the court quite

rightly found, this "demonstrates their divided loyalty and made it "unreasonable to

rely on an appraiser who so obviously lacked independence." ROA.25356.

Moreover, the court also noted that "both Smith and Henry testified that they were

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always concerned about Bruister's interests." Id. On the extensive record, the

court correctly concluded that the "duty of loyalty was breached from start to

finish." ROA.25346-57.

Although defendants make a half-hearted attempt to argue that the evidence

was somehow insufficient to show "Donnelly was deferential to Bruister," and that

the weight of the evidence actually shows that Donnelly acted properly in doing

the stock valuations, Defs.' Br. 22-24, this is far from sufficient to establish clear

error given the overwhelming evidence of misfeasance. Moreover, defendants'

fiduciary breaches turn on their own well-documented failures to act solely in the

interest of the ESOPs, not whether Donnelly was per se unqualified, whether

Donnelly used BEAR's valuation software, or Donnelly's valuation conclusions.

The district court held that "Donnelly's reports . . . are not credible" and noted that

at trial "Defendants made no real effort to validate his work." ROA.25392.

Defendants' belated attempt now to prop up Donnelly's work is inapposite and

untimely. See Bender v. Brumley, 1 F.3d 271, 275 (5th Cir. 1993).

B. The District Court Properly Concluded that Defendants Were Not

Entitled to the Prohibited Transaction Exemption in Section 408(e)

The district court properly held that defendants could not carry their burden

of proving the "adequate consideration" exemption under ERISA section 408(e),

and therefore they engaged in non-exempt prohibited transactions in violation of

ERISA section 406. ROA.25357-79. Defendants relied on Donnelly for purposes

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of showing that they met the exemption's requirement of a "good faith"

investigation of the stock's value, but failed to meet the three criteria for doing so:

(1) investigating the expert's qualifications; (2) providing the expert with complete

and accurate information, and (3) making certain that reliance on the appraiser is

reasonably justified. ROA.25359-79 (citing Bussian, 223 F.3d at 301). On appeal,

defendants contend that the district court clearly erred in faulting the trustees for

relying on BAI's financial information and projections. Defs.' Br. 14-31.

However, at most, this goes to whether they met the second criterion (complete and

accurate information), ROA.25352, and so would not be a basis for reversal even if

defendants were correct because they fail to dispute the district court's conclusions

that they did not meet the other two criteria (investigation into Donnelly's

background and reasonable reliance on his appraisals). See Bussian, 223 F.3d at

300-01 (fiduciaries "must" fulfill three criteria); see also ROA.25360-61, 70

(addressing defendants' failure to meet these criteria). In any event, defendants fail

to establish clear error with respect to the court's ruling that they failed to meet the

second criterion by showing that they provided Donnelly with complete and

accurate information.

C. Donnelly Received Inaccurate and Incomplete Information

The district court correctly concluded the trustees failed to provide complete

and accurate information to Donnelly. ROA.25362. As to accuracy, defendants

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wrongly contend that no inaccuracies were identified by the court. Defs.' Br. 26.

In fact, the district court identified "a threshold problem regarding the reliability of

BAI's financial statements," which Donnelly had difficulty "decipher[ing]," and

which defendants acknowledged issues with. ROA.25363 (citations omitted).

Indeed, even defendants' expert "counsel[ed] caution," stating that BAI's financial

data "should be viewed with caution" due to "known accounting inaccuracies and

divergences" from established accounting principles; the data does "not necessarily

[contain] actual economic results." ROA.25363 (citing J-52).5For this reason,

neither the Secretary's nor defendants' expert used the financial statements that

Donnelly did. See ROA.25364 ("Range worked around" inaccuracies);

ROA.25391 (Messina assumed "BAI financial statements were unworkable [and]

ignored most of it").

As to completeness, defendants nowhere contest (much less identify "clear

error" with) the district court's conclusion that Donnelly was not provided

complete information about BAI's relationship with DirecTV. That information

5 Defendants cite Messina's supposedly supporting testimony regarding BAI's

revenue, Defs.' Br. 26, but fail to mention the list of problems Messina identified in

other areas of the financial statements. See, e.g., ROA.28280:14-24 (overstated

book value); ROA.28281:18-28282:19 (debt levels); 28318:19-28319:1 (missing

cash flow statement); ROA.28320:12-19, 28326:17-24 (EBITDA, profitability);

ROA.28329:12-20 (return on invested capital); ROA.28333:16-28337: (items

missing, impossibly low accrued expenses and accounts payable results in

overstatement of net income, inaccurate inventory) (Sec'y R. Excerpts 8-14, 16-21).

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showed that BAI faced "risks [that] flowed from BAI's singular reliance on DTV

as basically its only client and the lopsided leverage DTV enjoyed." ROA.25364.

For example, DirecTV's contract with BAI granted it a unilateral right of

cancellation, which made BAI unsellable to outside investors, but Donnelly was

unaware of this information. ROA.25364-65. Defendants also failed to advise

Donnelly about other important risk factors:

a. Rate reductions: DirecTV had the exclusive right to reduce the rates it paid

BAI, but Donnelly was unaware of this. ROA.25365-67. In fact, Donnelly

was completely unaware how DirecTV paid BAI or whether the pay rates

were negotiable. Id. In 2004, DirecTV announced that it would reduce these

rates, thus lowering BAI's profit margins, but defendants did not convey the

rate changes to Donnelly even though it is "patently obvious that a legitimate

appraiser would want to know that the company's sole client had begun

slashing rates on the bulk of the company's services with the promise of more

to come." Id.

b. Inventory: Donnelly was unaware that DirecTV implemented a new policy

requiring installers like BAI to purchase the installation equipment (rather

than receive it on consignment), which negatively affected BAI's profit

margins and altered its financial statements. ROA.25367.

c. Vehicle Policy: In 2004, DirecTV announced a new policy requiring

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installers like BAI to own or lease service vehicles, starting in 2005. Id. This

policy "was a game changer that the trustees should have explained to

Donnelly" because it "had a dramatic impact on BAI" by significantly

increasing expenses and altering the way BAI paid its workers to a costlier

and riskier hourly pay model. ROA.25367-68.

d. Cash Flow Issues: As a result of the foregoing, BAI experienced cash-flow

problems in 2004 and 2005. ROA.25370. "[T]he picture Defendants painted

for Donnelly . . . conflicted with their internal emails and communications in

December 2005," which expressed alarm about the company's cash flow.

ROA.25371-73.

The district court concluded that "Donnelly was generally oblivious to these

dramatic shifts." ROA.25369. "There is no dispute that BAI and others knew

about the potential for decreased rates and increased expenses in 2004, saw them

happen in 2005, and were already complaining about them before the Subject

Transactions." ROA.25369. Bruister knew that DirecTV "was trying to 'squeeze'

as much profit out of them as possible," to the point that Bruister thought the

DirecTV installers like BAI " could only make a 'sustenance living.'" ROA.25368-

69. Defendants "knew these risk factors, openly discussed them among

themselves, and had an obligation to make full disclosures to [Donnelly] so that he

could determine whether they would affect FMV. Instead, the trustees continued

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to paint a rosy picture and stood by silently as Johanson coaxed Donnelly to" come

up with ever higher valuations. ROA.25373 (emphasis in original). In short,

Donnelly's receipt of inaccurate and incomplete data "demonstrates the lack of

quality information" from defendants, and precluded Donnelly from accurately

analyzing BAI's value. ROA.25369-70. The district court's findings in this regard

are fully supported.

Defendants also argue that the court's criticisms of defendants' reliance on

BAI's financial projections were unsupported. Defs.' Br.26-31. Defendants

conflate two different concepts in discussing the use of projections: prudent

investigation and hindsight. As the district court explained in its summary

judgment opinion, prudence "is an objective standard, and a fiduciary's subjective

good faith 'is not a defense to a claim of imprudence.'" ROA.24294 (citing In re

Dynegy, Inc. ERISA Litig., 309 F. Supp. 2d 861, 875 (S.D. Tex. 2004); Reich v.

Lancaster, 55 F.3d 1034, 1046 (5th Cir. 1995); Cunningham, 716 F.2d at 1467);

see 29 U.S.C. § 1104(a)(1)(B). When considering the use of projections or any

other financial information, courts must "objectively assess whether the fiduciary,

at the time of the transaction, utilized proper methods to investigate [and] evaluate"

the information. Bussian, 223 F.3d at 299 (citation omitted). Defendants complain

that the district court engaged in improper hindsight analysis, Defs.' Br. 26-31, but

in fact the district court determined that defendants failed to meet the fiduciary

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standard based on information available at the time of the ESOP transactions.

ROA.25373-79. "All three Defendants knew the problems facing BAI in 2004

and saw them materialize in 2005, yet they did not fully disclose those problems to

Donnelly or ask whether he had accounted for them." ROA.25374.

Defendants' contention that they reasonably relied on projections concerning

BAI's business prospects, Br. at 26-31, fails for three reasons. First, their repeated

assertion that they had a subjective "good faith" belief in the projections is legally

irrelevant. Cunningham, 716 F.2d at 1467 ("a pure heart and an empty head are

not enough"). It is also factually inaccurate and baseless. ROA.25371-73 ("picture

Defendants painted for Donnelly (and again at trial) conflicted with their internal

emails and communications" from the time of the transactions); ROA.26862:6-13

(Smith "relied on [Bruister's] knowledge of our relationship with DirecTV and

where things were going"); ROA.28683:25-28684:3, 28732:5-28733:25 (Henry

lacked information from DirecTV, instead relying "on what Mr. Bruister or Amy

would tell me."). Second, there was no objective basis for relying on the treatment

of the financial projections in the valuations given the inaccuracy of the financial

statements and defendants' knowledge that Donnelly "had not been informed about

dramatic changes in BAI's business model that threatened its very existence."

ROA.25362-73. Third, even if accurate information had been provided, Smith

lacked the tools to meaningfully review the valuations, ROA.25375-76, and failed

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to critically analyze the reports – including the impact of the undisclosed DirecTV

information on projections. ROA.25373-79. Accordingly, the district court rightly

held that defendants failed to meet ERISA section 408(e)'s "good faith" exemption.

ROA.25357-58, 25373-74.6

D. Defendants' Failure to Appeal Bruister's Co-Fiduciary Liability

Gives Rise to a Distinct, Undisputed Basis for Bruister's Fiduciary

Liability

Defendants do not appeal Bruister's co-fiduciary liability under ERISA

section 405(a), 29 U.S.C. § 1105(a), and therefore that ruling (ROA.25381) can be

affirmed independent of all other issues raised. United States v. Martinez, 263

F.3d 436, 438 (5th Cir. 2001); see also Fed. R. App. P. 28(a)(9)(A). There is no

dispute that Bruister was always an ESOP; he never resigned, he merely claimed to

abstain from the stock transactions at issue. Accordingly, he always faced

potential co-fiduciary liability for Smith and Henry's breaches, which are

established: Henry has withdrawn her appeal of the court's decision, and

defendants' appeal hardly defends Smith. Bruister's liability as a co-fiduciary is

distinct from his breaches in acting imprudently himself and in engaging in the

6 Defendants contend that "good faith" was established because the district court

credited the valuation of their expert, Range, whose fair market value calculations

were higher than Donnelly's. Defs.' Br. 37-38. However, as discussed in Section

IV, infra, at 53-61 (Section IV.A.), the district court's partial reliance on Range's

calculations was not justified and cannot be squared with the court's factual

findings on liability.

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prohibited transactions, as well duties as an appointing fiduciary, because cofiduciary liability includes an obligation to remedy any harm to the Plans caused

by a known breach of duty by one's co-fiduciaries. 29 U.S.C. §1105(a);

ROA.25381. Defendants do not seek review of that ruling, and it should be

summarily upheld.

III. Defendants' Arguments Regarding Remedies Lack Merit

A. The District Court Properly Considered the ESOPs' Debt in

Determining Losses

For the December 2004 and 2005 transactions, the district court properly

measured the overpayment based on the difference between the purchase price and

BAI stock's FMV at the time of sale. ROA.25393-94. The stock purchase

agreements at the time of the transactions state the ESOP paid $6.7 million in 2004

and $10.5 million in 2005 for ownership of the BAI stock. ¶¶ 1, 2 of J-20, J-22

(Sec'y R. Excerpts 4-7). In order to pay these purchase prices, the ESOP incurred

substantial debt. Defendants correctly note that the ESOP did not fully pay off this

debt, Defs.' Br. 38-40, but they err in their belief that the ESOP's losses stemming

from there two transactions are limited by the ESOP's debt payments, Defs.' Br.

41-47.7

7

The September 2005 transaction was all cash and defendants therefore do not

challenge the calculation of losses for that transaction on this basis. ROA.25393.

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As the district court correctly summarized, every court to consider the issue

has included the full purchase price (including the full value of any debt incurred at

the time of the transaction to pay that purchase price) as the basis for calculating an

ESOP's losses where the ESOP overpaid for closely-held company stock.

ROA.25394 (citing Chesemore v. Alliance Holdings, Inc., 948 F. Supp. 2d 928,

943 (W.D. Wisc. 2013); Henry v. U.S. Trust Co., 569 F.3d 96, 100 n.4 (2d Cir.

2009); Neil v. Zell, 767 F. Supp. 2d 933, 941 (N.D. Ill. 2011); Reich v. Valley

Nat'l Bank of Ariz., 837 F. Supp. 1259, 1287 (S.D.N.Y. 1993)); see also Horn v.

McQueen, 215 F. Supp. 2d 867, 889-90 (W.D. Ky. 2002).8 When an ESOP

assumes debt in order to finance the purchase price the "debt contracted as part of a

leveraged ESOP transaction 'represents actual consideration with concrete financial

implications as well as forgone employee benefits.'" Chesemore, 948 F. Supp. 2d

at 943-44. Indeed, as the Second Circuit has aptly stated, there is "no legal

authority for [defendants'] contention that only repayments of debt, and not the

assumption of indebtedness itself, constitute a loss." Henry, 569 F.3d at 100 n.4.

The courts uniformly reach this conclusion due to "the obvious fact that the

assumption of indebtedness has immediate legal and economic consequences even

8 Hans v. Tharaldson, 2011 WL 7179644 (D.N.D. Oct. 31, 2011), cited by

defendants, Defs.' Br. 46, did not address the debt issue presented here, except to

say that in "analyzing the proposed methods of calculating damages . . . [n]o one in

this litigation has claimed that the debt financing should not be considered." Id. at

*10.

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before the borrower begins to repay the debt." Henry, 569 F.3d at 100 n.4; accord

Chesemore, 948 F. Supp. 2d at 943-44 (citation omitted). Thus, future payments

on the debt used to finance the purchase price are irrelevant to the loss caused by

the overpayment. See Horn, 215 F. Supp. 2d at 889-90. To illustrate this point,

one court found it useful to analogize these ESOP transactions to a home purchase.

An ESOP that purchases stock in a leveraged transaction, as in this case, is like

"the purchaser of a home [who] borrows, from the seller himself, [money] with

which to buy that home." Neil, 767 F. Supp. 2d at 941. Under those

circumstances, "[n]o one would seriously contend that the buyer did not purchase

the home . . . even if he borrowed the money for the transaction." Id. If the buyer

purchases a house with a $100,000 loan even though the house's FMV is only

$50,000, the buyer still overpaid by $50,000; whether loan payments were made is

inapposite. See id. Similarly, here, the ESOP overpaid for BAI stock at the time

of the transactions; whether the stock subsequently lost its value or whether the

ESOP ever fully repaid the debt incurred to pay for the stock is irrelevant. "The

fact that the money to purchase the [now worthless] stock was borrowed does not

mean that the money was not lost." Id.; see id. at 941-43 (rejecting argument to

"view the [leveraged] purchase as an apparition"); accord Chesemore, 948 F. Supp.

2d at 944; Valley Nat'l Bank, 837 F. Supp. at 1287.

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Lacking any supporting authority, defendants' position rests on a series of

self-serving misconstructions. First, defendants assert that the only payments the

ESOPs made for BAI stock were the debt repayments, Defs.' Br. 40, ignoring the

fact that under the Stock Purchase Agreements, the ESOP was required "[a]t the

Closing . . . [to] deliver the Purchase Price to the seller," ¶¶ 1, 2 of J-21, J-22, and

it did so in the two disputed transactions. Defendants' own actions, moreover,

belie their argument that the only payment they received was in the form of debt

repayments; instead, they reaped "immediate tax benefits for BAI" and Bruister

after closing based on the purchase price. ROA.25393.

Defendants also cite the Restatement (Second) of Contracts section 347,

Defs.' Br. 42, which states that "[a]ny cost or other loss that [an injured party] has

avoided by not having to perform" can be subtracted from the loss caused by a

contractual breach. The contract at issue here is the prohibited transaction that

exchanged Bruister's stock for a combination of cash and promissory notes from

the Plans. The Secretary does not allege that the contract was breached, so the

Restatement of Contracts is inapplicable. The issue here is not damages from a

contractual breach but rather injury caused by the trustees' approval of these

prohibited and completed transactions. Governing case-law uniformly holds that

the injury in such cases includes both the cash paid and the indebtedness incurred

to purchase the stock, because the Plans, for example, could have leveraged this

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debt and cash for other non-prohibited and more productive purposes.

ROA.25394.

Thus, defendants are misguided in focusing on what they say happened to

these promissory notes after the transactions. Indeed, they ignore the fact that the

Plans did repay over $7.5 million on the two loans (most on the earlier),

ROA.25317-18, part of which constitutes very real and substantial losses even

under defendants' post hoc view of the transactions. Though the ESOP stopped

paying down the loans years after the transactions, ROA.25332-36, it was not

because of defendants' generosity in "forgiving" the loans, or the ESOP's neglect,

but rather because the struggling company was no longer financially able to make

contributions, as it became clear that the company was going out of business and

the stock in the company was becoming worthless. See ROA.25334. Defendants

cannot now seek credit for having agreed to take notes as part of the purchase price

and then forgiving the loans when they became worthless.

These post-transaction events surrounding the promissory notes constitute an

independent contractual relationship. Whether that contract remained unfulfilled

does not eliminate the Plans' injury caused by the prohibited transactions. Even if

post-transaction events surrounding the promissory notes somehow relate to the

stock purchase transactions for damages purposes, the Restatement of Contracts

still does not support defendants' argument. The Restatement is clear that "[l]oss

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avoided is subtracted only if the saving results from the injured party not having to

perform rather than from some unrelated event." Restatement (Second) of

Contracts § 347 (1981). In undisputed findings, the court found that the Plans' debt

payments were tied to BAI's contributions to the Plans, as BAI was obligated to do.

ROA.25317, ROA.25316 (quoting Cunningham, 716 F.2d at 1459); ROA.25393

(citing D-225 at 109 (BAI "will make contributions to the ESOT in amounts which

. . . will be sufficient to enable the ESOT to make" payments on the note)). BAI's

post-transaction deterioration caused the "complete discontinuance of

contributions," and, hence, the cessation of the Plans' debt payments on the notes.

ROA.25336. These post-transaction events were not an effort to "avoid" the loss

caused by the initial prohibited transaction; the Plans' failure to fulfill the notes was

caused by an unrelated event.

Finally, defendants argue that the proper remedy under ERISA makes the

plan whole by returning the ESOP to where they would have been had the wrong

not been committed. Defs.' Br. 42-43. As set forth in more detail infra, at 64-72

(Section IV.C.), one such "make whole" remedy in this case would be rescission,

which the Secretary supports. Alternatively, the district court properly held that

the ESOP is made whole by returning the amount that the ESOPs overpaid for

BAI's shares in the stock transactions, which includes amounts paid with incurred

debt.

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B. Defendants' Remaining Arguments Lack Merit

1. The ESOPs' $3.8 Million Payment on the December 2004

Promissory Note Caused a Loss to the Plan

The district court saw through defendants' smoke and "mirror loans"

argument when it correctly concluded that the only question for purposes of

calculating losses is what the ESOPs paid, which was $3.8 million to BAI on the

refinanced December 2004 loan to release shares from the suspense account.

ROA.2538-84.9To be crystal clear, nobody disagrees with the district court's

finding that that the ESOPs made this $3.8 million payment. See Defs.' Br. 48-53

(referring to the ESOP's payment).

Nevertheless, defendants contend that the ESOPs suffered no loss because

BAI, through Bruister, never paid the $3.8 million it received from the ESOPs to

BFLLC, the corporation set up by Bruister for the transactions, and therefore

BFLLC did not benefit from the ESOPs' $3.8 million payment. Defs.' Br. 48-53.

This argument was succinctly rejected by the district court: it "emphasizes the

wrong issue . . . [t]he fact that BAI did not pay BFLLC is of no moment."

ROA.25384. ERISA remedies fiduciary breaches by, among other things,

restoring "losses to the plan," which is a function of money paid out of the plan

9

The Court only needs to reach this issue if it reverses the lower court's

calculation of damages based on the full contract price. ROA.25393-95.

 Case: 14-60811 Document: 00513134028 Page: 59 Date Filed: 07/29/2015
assets – not third-party receipts. 29 U.S.C. § 1109.10 Accordingly, whether

Bruister elected to keep the $3.8 million that BAI received or pay it to another

entity that he controlled does "not alter the fact that the ESOP expended assets to

release shares;" this undisputed payment is all that matters for purposes of

measuring the ESOP's overpayment loss. ROA.25383.

2. The District Court did not Abuse its Discretion By Using

Messina's Report to Calculate Losses

Defendants contend that the district court erred in using Messina's report to

calculate losses because their expert, Range, disagreed with: (a) Messina's expense

calculations; and (b) Messina's treatment of debt. Defs.' Br. 54-61. As is often the

case, however, "[m]uch of this trial was a familiar battle of experts. 'The credibility

determination of witnesses, including experts, is peculiarly within the province of

the district court.'" League of United Latin Am. Citizens #4552 (LULAC) v.

Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir. 1997) (citation omitted).

"When reviewing a district court's factual findings, this court may not secondguess the district court's resolution of conflicting testimony or its choice of which

experts to believe." Grilletta v. Lexington Ins. Co., 558 F.3d 359, 365 (5th Cir.

10 Defendants' hypothetical in support of this argument has too many erroneous

assumptions to address. Defs.' Br. 50-52. Fundamentally, it rests on the entirely

incorrect and unsupportable premise that a company's receipt of tax benefits

somehow eliminates the injury to the ESOP caused by an initial overpayment for

shares.

 Case: 14-60811 Document: 00513134028 Page: 60 Date Filed: 07/29/2015
2009). With respect to both issues, Range and Messina provided ample testimony

criticizing each other's expense calculations and debt levels, and they were crossexamined for days regarding their methods and alleged errors. ROA.25321.

Defendants' argument that Messina's expense and debt calculations were

erroneous is based solely on Range's own opinions about Messina's methods.

Defs.' Br. 54-61. At trial, Messina repeatedly testified that BAI's financial

statements, including the purported "actual expenses" contained therein, were

inaccurate and could not be relied upon for valuing BAI, and that he handled the

problem by extrapolating expenses based on more reliable industry data.

ROA.28326:17-28327:12, 28333:16-28337:1, 28386:17-28387:9, 28422:16-24,

28425:9-16, 28434:9-28436:11, 28514:15-25, 28515:22-28516:5 (Sec'y R.

Excerpts 14-15, 17-21, 32-40). Messina likewise explained that the debt levels in

the financial statements were unreliable, so he determined BAI's debt in a manner

most consistent with the available information. ROA.28282:14-19, 28343:18-

28344:24, 28351:16-28356:25, 28357:13-28358:18 (Sec'y R. Excerpts 10, 22-31).

The district court's finding that Messina provided an "adequate explanation"

for his methods, such as dealing with the expense and debt issues, certainly is not

clear error – particularly where the asserted error is based on the thin reed that the

opposing expert disagrees. See Grilletta, 558 F.3d at 365; Fed. R. Evid. 702, Adv.

Committee's Note (one expert's reliability "does not necessarily mean that

 Case: 14-60811 Document: 00513134028 Page: 61 Date Filed: 07/29/2015
contradictory expert testimony is unreliable"); Kuhn v. Wyeth, Inc., 686 F.3d 618,

625 (8th Cir. 2012). That Range "worked around" problems with BAI's financials

differently, ROA.25363-64, does not make Messina's approach unreliable. Indeed,

under defendants' rationale, the lower court should not have considered Range's

report merely because Messina believed Range was in error as to, for example, his

debt assumptions, see, e.g., ROA.29045:7-29048:9, 29051:3-13, weighted average

cost of capital, ROA.28303:23-28304:20, and revenue growth rate, ROA.28321:6-

25. This argument obviously fails.11

Lastly, Range and Messina's disagreements on these two points are the

byproduct of the inaccurate financial statements for which defendants were

responsible. ROA.25363. If the financial statements had been reliable, the experts

could have at least agreed on the appropriate underlying data. See ROA.29051:3-

13 (noting that it is "very unusual" for experts not to agree on debt number, which

speaks to unreliability of financial statements). Defendants' own neglect in

authorizing the transactions despite unreliable financial data at the time is precisely

what created the uncertainties, and these types of uncertainties should be resolved

against defendants so that they do not benefit from their failures at the expense of

11 Defendants are also incorrect that the court was required to issue a specific

factual finding on each expert dispute. See Pipitone v. Biomatrix, Inc., 288 F.3d

239, 249 (5th Cir. 2002) (quoting Fed. R. Evid. 702, Advisory Committee Notes).

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the ESOP participants they were supposed to protect. See infra, at 61-64 (Section

IV.B.).

3. The District Court Acted Within its Discretion in Ordering

Prejudgment Interest

Defendants correctly acknowledged that a district court's award of

prejudgment interest that is assessed "as compensation for the use of funds,"

Whitfield v. Lindemann, 853 F.2d 1298, 1307 (5th Cir. 1988), is subject to abuse

of discretion review. See Defs.' Br. 61-62. The district court correctly observed

that prejudgment interest is used to compensate the ESOPs' participants, the

victims of the prohibited transactions. ROA.25396; see Ford v. Uniroyal Pension

Plan, 154 F.3d 613, 620 (6th Cir. 1998) (recognizing that prejudgment interest

under ERISA is used to compensate plan participants' "lost opportunity to use or

invest the benefit payment"). Defendants improperly focus, once again, on the

supposed unfairness to the breaching fiduciaries. See, e.g., Defs.' Br. 63. When

viewed from the ESOP participants' perspective, they incurred massive debt to pay

Bruister (or BFLLC) for overvalued stock that ultimately lost all its value in a

prohibited transaction. In consideration for their stock, Bruister and BFLLC

received promissory notes from the company on behalf of the ESOP at the time of

the transactions. See, e.g., Ackerman v. F.D.I.C., 973 F.2d 1221, 1222 (5th Cir.

1992) (buyers' promissory note is "consideration for their interests" in limited

partnership). Rather than enter into disloyal and prohibited transactions, the

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trustees for the ESOP could have avoided this debt load or used debt for a different

investment. See Rivera v. Benefit Trust Life Ins. Co., 921 F.2d 692, 697 (7th Cir.

1991) (prejudgment interest is used to compensate the unnecessary incurrence of

debt and impairment of credit).

On the other side, Bruister and BFLLC (but not Smith and Henry) received

the tax and other benefits of the purchase at an inflated value over the same time

period, which Bruister and BFLLC accepted as equivalent value for the stock they

sold to the ESOP at the time of the transaction. The court acted within its

discretion in determining that the ESOP should not be penalized by Bruister and

BFLLC's choice to accept and hold the promissory notes instead of cash as

consideration for BAI stock; whether that choice, in hindsight, resulted in a

promissory note that lost value over time or did not produce its expected return

does not affect the interest needed to compensate the victims of the initial

overpayment. Cf. Klepeis v. J & R Equip., Inc., 2012 WL 2849390, at *2

(S.D.N.Y. May 31, 2012), adopted by 2012 WL 2849750 (S.D.N.Y. July 11, 2012)

(rejecting attempts to calculate prejudgment interest based on negative returns on

what defendants allege to be the plaintiffs' alternative investments in hindsight);

Novella v. Westchester Cnty., 661 F.3d 128, 150 (2d Cir. 2011).12

12 Defendants' argument (Defs.' Br. 64-65) that the district court somehow erred in

entering two judgments – one in the Radar suit and one in the Secretary's suit – is

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4. The District Court Properly Issued a Fiduciary and Service

Provider Bar

The Secretary's claims were brought pursuant to ERISA sections 502(a)(2)

and (a)(5), both of which authorized the district court to impose injunctive or other

"equitable relief" to remedy Bruister's and Smith's substantial violations, described

above. ROA.3685-3744 (Second Am. Compl.); 29 U.S.C. §§ 1132(a)(2), (a)(5).

Contrary to defendants' argument, which lacks any supporting authority, Defs.' Br.

66, ERISA authorizes a court to issue injunctive relief to remedy ERISA violations

irrespective of the magnitude of harm. See Mertens v. Hewitt Assocs., 508 U.S.

248, 255 (1993). In any event, given the extent of violations here, which the court

described as "egregious misconduct," ROA.25397, there is no basis for concluding

that the district court's fiduciary and service provider bars against Bruister and

Smith were an abuse of discretion. Compare Chao v. Merino, 452 F.3d 174, 185-

86 (2d Cir. 2006); Beck, 947 F.2d at 641-42; Martin v. Feilen, 965 F.2d 660, 673

(8th Cir. 1992).

"frivolous." Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991). Two judgments

in parallel ERISA suits filed by the Secretary and private plaintiffs are

commonplace. See Herman v. S.C. Nat'l Bank, 140 F.3d 1413, 1424 (11th Cir.

1998) (listing cases). In such cases, as here, it is clear that "the judgment here is

concurrent, and appellants are not subject to double recovery because the judgment

merely decreases the amounts recouped by the Plans by the sums recovered by the

private plaintiffs." Beck, 947 F.2d at 642.

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IV. Given the District Court's Factual Findings on Liability, the

Court Clearly Erred in Relying on Defendants' Expert in Part in

Calculating the Amount of the Overpayment

As described above, the district court correctly concluded that defendants, as

fiduciaries to the ESOPs, acted disloyally and engaged in prohibited transactions

by completely failing to ascertain the true value of the stock purchased by the

ESOPs prior to the purchase transactions, thereby causing the ESOPs to

significantly overpay for this stock. The court recognized two potential remedies

for the disloyal and prohibited transactions: (1) compensatory damages based on

the amount of the overpayment for the stock; or (2) rescission of the stock

transactions through return of the (now-worthless) stock to Bruister, the seller, and

refund of the purchase price to the ESOPs (the buyer). ROA.25388-89.

The court selected the compensation remedy, measured by "'the difference

between the price paid and the price that should have been paid.'" ROA.25386

(citations omitted). To make this calculation, the court had to determine, based on

the evidence, what "should have been paid" - i.e., the stock's fair market value at

the time of sale. ROA.25386-87. The court abused its discretion in doing so,

however, by averaging the fair market value estimates of the three experts (and

without explanation giving greater relative weight to the testimony of defendants'

expert), particularly given the flaws in defendants' data and Range's conclusion that

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the price paid by the ESOP was within the range of the stock's FMV and, therefore,

no loss occurred.

Range's testimony was in contrast to the district court's own conclusion that

the valuations performed at the time of the transactions were not performed in

good faith in large part because they were based on overly optimistic views of

BAI's prospects. Rather than crediting and indeed giving great weight to Range's

testimony, the court should have resolved any doubts against the breaching

fiduciaries and in favor of the innocent plan participants who were harmed in the

illegal transactions. Accordingly, the court should either have relied on the expert

for the Secretary and Rader plaintiffs' expert (whose numbers were quite close

despite some differences in methodology) in assessing an overpayment remedy, or,

to the extent that this Court concludes that fair market value cannot be assessed

with any degree of certainty, ordered rescission of the transactions.

A. The District Court's Reliance on Range's Fair Market Value

Calculations Cannot Be Squared With the Court's Factual Findings

"Clear error" occurs if there is an internal inconsistency in the district court's

credibility findings. See Anderson v. City of Bessemer, N.C., 742 f,3D 576, 575

(1985). Thus, while a trial court's "decision to credit the testimony of one of two

or more witnesses, each of whom has told a coherent and facially plausible story

that is not contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error," this does not mean that "the trial

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judge may insulate his findings from review by denominating them credibility

determinations, for factors other than demeanor and inflection go into the decision

whether or not to believe a witness." Id. (emphasis added). For instance,

"[d]ocuments or objective evidence may contradict the witness' story; or the story

itself may be so internally inconsistent or implausible on its face that a reasonable

factfinder would not credit it." Id. In such circumstances, "the court of appeals

may well find clear error even in a finding purportedly based on a credibility

determination." Id. (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396

(1948)). The district court here committed just such error by crediting and indeed

giving great weight to Range's conclusions even though they were inconsistent in

significant respects with the district court's well-supported findings in the case.

Estate of Jameson v. C.I.R., 267 F.3d 366, 372 (5th Cir. 2001) (reversing tax court

decision on fair market value due to "internally inconsistent" analysis of expert

testimony on discount rates and investment strategy).

1. Range's Assumptions about BAI Conflicted with the Court's

Findings

The district court credited Range's fair market value calculations even

though these valuations relied on assumptions that conflicted with the court's own

findings. The court concluded that "no expert was more reliable than the others,"

and observed that many of the differences between plaintiffs' experts and

defendants' expert, Range, "turned on whether the appraiser saw BAI as a growth

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company" or a "no-growth company." ROA.25390-91. Range viewed BAI's

prospects favorably, Messina and Mercer negatively; the court's resolution was that

"the issues offset." ROA.25391. However, Range's assumption that BAI was a

"growth company" conflicts fundamentally with the court's own findings about

what the trustees knew about the company at the time of the transactions.

For example, the district court found that BAI faced risks from its "singular

reliance on DTV as basically its only client [with] lopsided leverage."

ROA.25364. This allowed DirecTV to unilaterally terminate BAI's contract and to

modify or take away its service areas. ROA.25364-65. The district court found

that, prior to the stock sales at issue, DirecTV announced or implemented plans to

reduce BAI's payment rates, to impose costlier inventory requirements, and to

institute a new vehicle policy. ROA.25365-68. The court determined that the

latter policy resulted in such a "substantial and permanent" increase in BAI's

expenses that it was a "game changer." ROA.25367-68. The court viewed these as

"dramatic changes in BAI's business model that threatened its very existence." Id.

Moreover, when Hurricane Katrina made landfall in August 2005, BAI lost

its ability to repay loans, and the court explained that, by December 2005, "[e]very

expert, including defendants' expert Gregory Range, opined that the value dropped

between September and December 2005." ROA.25356. BAI was in trouble

because BAI "incurred lots more debt between the two appraisal dates," and the

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court stated that the "added debt should have raised questions." ROA.25352

(internal quotations and citations omitted). The court also noted that BAI was

leasing its vehicles, and "an ongoing lease requirement would hurt EBITDA

margins and presumably decrease the valuation." ROA.25354. The district court

even credited Johanson's candid "conclu[sion] that '[g]iven these circumstances, it

is a wonder that Bruister has made anything [in 2005.]'" ROA.25354 (citation

omitted). The court concluded that, "most significantly," defendants' own internal

communications emails from this period reflect BAI's declining prospects.

ROA.25371-72 (referring to BAI's "downturn"); ROA.25373 (defendants painted a

too "rosy picture"). These findings are inconsistent with Range's assumption that

BAI was a "growth company."

Compounding this problem, Range relied on information gathered from

interviews with defendants during the litigation, which the district court had

determined "was not entirely consistent with the record (especially the emails from

that period) and overestimated the company's projected EBITDA margins and

long-term prospects." ROA.25390; cf. U.S. Gypsum Co., 333 U.S. at 396

("[w]here such testimony is in conflict with contemporaneous documents we can

give it little weight").

In other words, the court's own findings concerning BAI's business

prospects at the time of the stock sales at issue were unequivocally pessimistic.

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These factual findings clearly undermine Range's assumption that the company

was a "growth" company and support plaintiffs' experts' assumption that the

company was not. ROA.25391. Given all of this, the court clearly erred in

concluding that Range's values, which were based fundamentally on false

assumptions about the company's growth prospects at the time of the transactions,

were entitled to equal weight in "offsetting" the estimated values given by the

plaintiffs' experts.

2. Range's Calculations Were Inflated Based on the Court's Own

Findings

The court's factual findings further confirm that Range's values were

inflated. The district court found that Donnelly was "motivated to inflate the

valuations and [he] did so," ROA.25392, and that Donnelly's numbers were

inflated as result of his receipt of incomplete information regarding BAI. See

supra, at 33-39 (Section II.B.). For these reasons, the court determined that

"Donnelly's reports will not be included [in the damages calculation] because they

are not credible. Indeed Defendants made no real effort to validate his work."

ROA.25392. The district court's substantial (and unappealed) findings that

Donnelly was loyal to Bruister, who (often through Johanson) pushed Donnelly to

issue ever higher valuation reports, as well as its conclusion that defendants failed

to advise Donnelly of the litany of "dramatic changes in BAI's business model that

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threatened its very existence" led it to conclude that Donnelly's values were

inflated and thus not credible. See supra, at 23-26, 30-31, 33-39.

Yet, when one compares Range's values to Donnelly's inflated values,

Range's values are consistently higher than Donnelly's overstated figures:

Transaction Donnelly Total Price for Shares

Purchased

Range FMV for Shares

Purchased

December 2004 $6,700,000 $7,700,000 to $9,000,000

September 2005 $1,199,999.72 $1,350,000 to $1,590,000

December 2005 $10,507,421.34 $10,400,000 to $12,200,000

ROA.25392; J-51 (Defs.' R. Excerpts, at 183). The magnitude of this difference

was increased by the court's use of the average between Range's high and low

values:

Transaction Average of Range's FMV

Range for Share Purchased

Amount Higher Than Donnelly's

Price (absolute and percentage)

December 2004 $8,350,000 $1,650,000 (or 24.6% higher

than Donnelly's Price)

September 2005 $1,470,000 $270,000.28 (or 22.5% higher)

December 2005 $11,300,000 $792,578.66 (or 7.5% higher)

Id.

Defendants also note that Range's values were consistently above Donnelly

but draw exactly the wrong conclusion from this, asserting that the district court's

"acceptance of the Range valuations" is "the most significant evidence that

Donnelly did not inflate his [fair market value] determinations." Defs.' Br. 23. In

fact, this is perhaps the strongest reason that the district court clearly erred in

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relying on Range's higher values when it had already found that Donnelly's

"inflate[d]" values were based on his lack of complete information about BAI's

dire straits and his erroneous assumption that it was a growth company.13

ROA.25392-93.

3. The Court's Weighting of the Three Experts Was Also in Error

For these reasons, the court's factual findings concerning the flaws in

Donnelly's calculation logically support giving no weight to Range's even higher

estimates. The district court, however, did the exact opposite and weighted

Range's conclusions twice as heavily (50%) as each of plaintiffs' experts (25%

each). Cf. Dunn, 301 F.3d at 357 ("[i]rrespective of whether . . . the assignment of

relative weights to the results of the different valuation approaches is deemed to be

an issue of law or a mixed question of fact and law, we review it de novo). The

court's unbalanced weighting further undermined by the district court's own

rationale that all of the experts were qualified, that "no expert was more reliable

than the others," that "they all had strengths and weakness," and that "the various

13 Indeed, it was also illogical for the court to "check" its fair market value

numbers against Donnelly's "initial" fair market value numbers before he

"'tweaked' the numbers to further increase value." ROA.25392-93. The fact that

Donnelly's pre-tweaked numbers were "comparable" to the court's determination of

fair market value should have been an indication that the court's estimate was far

too high, not that it was "what one would expect," because the court already

determined that Donnelly did not have the information necessary about the

company's true financial picture. See supra, at 33-39 (Section II.B.).

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reports were of similar values." ROA.25320-21, 25390-91. If the three experts'

opinions were indeed equally reliable, their reports should have – at a minimum –

been weighted equally (one-third weight to each valuation expert). Instead, the

court took the unusual approach of giving greater weight to the expert whose

testimony was internally inconsistent with the court's own factual findings. This

was an abuse of discretion See Henry v. Champlain Enterprises, Inc., 445 F.3d

610, 622 & n.4 (2d Cir. 2006) (Sotomayor, J.) (rejecting contention that the district

court's valuation was justified because it fell between the values advanced by each

side where court found both sides "incredible" and did not adequately explain how

it reached its number) (citations omitted).

B. The District Court Should have Resolved Uncertainties Regarding

Fair Market Value in the Plans' Favor, and Not in Favor of the

Breaching Fiduciaries

Even setting aside the inconsistencies between the factual findings and

Range's conclusions, the court should have favored plaintiffs' experts in its

calculations of damages if the experts had equally credible valuation conclusions.

As the district court noted, the "'[a]ppraisal of closely held stock is a very inexact

science' with a 'level of uncertainty inherent in the process.'" ROA.25389 (quoting

Cunningham, 716 F.2d at 1473). The court recognized that "[t]he truth of that

statement is evident" in this case, where the three experts each "employed several

valuation approaches that included different methods and models," none of the

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methods were "clearly correct or incorrect," and "each method within the experts'

valuations involved a large number judgment calls." ROA.25389-91. Despite

these variations, the court concluded that the "reports were of similar value."

ROA.25391. Under such circumstances, uncertainties about the calculation of

damages should be resolved in favor of the innocent plan participants who were

harmed by the transactions and against the breaching fiduciaries who acted

disloyally and imprudently and engaged in prohibited ERISA transactions. See

Kim v. Fujikawa, 871 F.2d 1427, 1430-31 (9th Cir. 1989) ("In determining the

amount that a breaching fiduciary must restore to the [ERISA plan] as a result of a

prohibited transaction, the court 'should resolve doubts in favor of plaintiffs'");

Secretary of Labor v. Gilley, 290 F.3d 827, 830 (6th Cir. 2002); Roth v. SawyerCleator Lumber Co., 61 F.3d 599, 602 (8th Cir. 1995); Donovan v. Bierwirth, 754

F.2d 1049, 1056 (2d Cir. 1985); Leigh, 727 F.2d at 138-39.

While the district court acknowledged this established principle, it failed to

apply the principle to this case. The district court concluded that the experts'

different "methodologies were not clearly correct or incorrect," although the court

identified no specific flaws with the Secretary's and Rader plaintiffs' experts (but

just assumed that their opinions were infected with 20/20 hindsight). ROA.25391.

The court found that "judgment calls are just that, and though [Mercer] and

Messina differed with Range on many of them, the court cannot say that any one

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result was better." ROA.25390. In each instance where the court identified

uncertainties concerning the correctness of the experts' approaches, it never

resolved the doubts in plaintiffs' favor. Rather, the court resolved doubts in

defendants' favor by averaging the numbers provided by all three experts and

incongruously giving greater weight to defendant's expert.

If the experts were equally credible on these "judgment calls," the court

should have resolved the uncertainty in the favor of the innocent plan participants

by relying solely on plaintiffs' experts' judgment calls, their assessment of BAI as a

"no-growth" company, and their methodologies concerning adjustments to certain

valuation methods and the use of financial data, particularly given the problems

described above with relying on Range's values. This principle is especially apt

here where there were in fact significant uncertainties about the company's fair

market value stemming from the company's failure to keep accurate financial

records and the fiduciaries' failure to determine the fair market value before they

purchased all the stock in the company for the pension plan. Likewise, it has long

been recognized in ERISA as in trust law that the "burden of proof in an

accounting is on the fiduciary to show that he derived no unfair advantage from his

relationship." Bierwirth, 754 F.2d at 1056.14 Based on these principles, this Court

14 Policy considerations also weigh against the district court's averaging

approach. The district court expressed understandable concern that experts in this

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should reject Range's flawed estimates for all the reasons we have described, and

instead rely on the determination of fair market value provided by the Secretary's

expert, Messina (whose independently derived numbers were remarkably close to

the numbers proposed by Rader plaintiffs' experts). Cf. Dunn, 301 F.3d at 357

(reviewing de novo the relative weights to be given to different valuation

approaches).

C. Alternatively, if Fair Market Value Cannot be Calculated With

Certainty, Rescission is the Most Appropriate Remedy

Alternatively, if the fair market values simply cannot be determined based

on the testimony and evidence presented at trial with a sufficient level of certainty,

given the faulty contemporaneous financial records, this Court should order

rescission of the transactions – which were flatly prohibited under ERISA section

kind of case will, on the defendants' side, inflate their numbers as much as possible,

and experts on the plaintiffs' side will deflate their numbers as much as possible.

ROA.25391 ("at the risk of appearing jaded, it was not surprising that Plaintiffs'

experts achieved low values and Defendants' expert achieved a high value"). But

its approach – to simply accept numbers provided by each side's experts and

average them without resolving whose numbers are more supported and credible –

exacerbates rather than solves this problem by signaling to experts on each side

that their approach will be taken into account even where, as here, their

assumptions and numbers are far apart. This is inconsistent with precedent from

this Court which has stressed that averaging valuations "cannot be resorted to to

reconcile greatly divergent estimates." See Lake Charles Harbor & Terminal Dist.

v. Henning, 409 F.2d 932, 936-37 & n.7 (5th Cir. 1969) (citations

omitted). Because the estimates provided by Range, on the one hand, and Messina

and Mercer on the other, were far apart numerically and incompatible as a matter

of methodology, averaging was inappropriate under Lake Charles.

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406 and the result of imprudent and disloyal conduct by the fiduciaries – and return

to the ESOPs the amount it paid in the prohibited stock transactions.

As this Court has recognized, "[w]hen considering equitable remedies, 'only

such damages should be awarded as will place the injured party in the situation it

would have occupied had the wrong not been committed.'" Whitfield, 853 F.2d at

1305–06. Rescission is an equitable remedy that seems ideally suited to that task

in this case. "The effect of a rescission of an agreement is to put the parties back in

the same position they were in prior to the making of the contract." Jones v. Saxon

Mortgage, Inc., 537 F.3d 320 (4th Cir. 1998) (citing Invengineering, Inc. v.

Foregger Co., 293 F.2d 201, 204 (3d Cir.1961); Rosenfield v. HSBC Bank USA,

681 F.3d 1172 (10th Cir. 2012). In ERISA stock transactions such as the ones at

issue here, rescission returns the entire consideration paid for the stock to the

ESOP. See In re SeaQuest Diving, LP, 579 F.3d 411, 419 (5th Cir. 2009); Lindy

Investments v. Shakertown Corp., 209 F.3d 802, 804 (5th Cir. 2000). Cf. Princess

Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 463-64 (1939) (court may

order trustees to "take back" improper investments and "restore the amount

expended for them to the trust estate").

1. Trust Law Supports Rescission

The trust law treatises confirm that, in the context of the breach of a trustee's

investment duties, "the general rule [is] that the object of damages is to make the

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injured party whole. Stated otherwise, the goal is to put injured parties in the same

condition in which they would have been had the wrong not been committed." G.

Bogert & G. Bogert, The Law of Trusts and Trustees § 701 (2014) ("Bogert"); see

Unif. Trust Code § 1002(a) (2000); Restatement (Third) of Trusts: Prudent

Investor Rule § 205 (1992).

Here, the fiduciaries entered the Plans into transactions prohibited by

ERISA. ROA.25357-60. The most appropriate remedy would put the injured

Plans in "the same condition in which they would have been had the wrong not

been committed." Bogert, § 701. Because the stock purchases were prohibited, a

rescission of the purchases most appropriately returns the Plans to a condition

before the transactions. See Dan B. Dobbs, Law of Remedies § 4.3, p.255 (1973);

James v. Home Constr. Co. of Mobile, Inc., 621 F.2d 727, 730 (5th Cir. 1980)

(citation omitted) ("[T]he purpose of the rescission remedy is to restore the parties,

as much as possible, to the status quo ante."); In re GWI PCS 1 Inc., 230 F.3d 788,

796 n.14 (5th Cir. 2000). This Court and other courts, including the district court

here, ROA.24302-03, 25387, rightly recognize rescission as an available remedy

under ERISA. See Provident Life & Acc. Ins. Co. v. Sharpless, 364 F.3d 634, 639-

40 (5th Cir. 2004); Sommers Drug Stores Co. Emp. Profit Sharing Trust v.

Corrigan Enters., Inc., 793 F.2d 1456, 1463 (5th Cir. 1986).

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Under the law of trusts, rescission is used especially in cases of self-dealing

transactions, such as the stock sales here from Bruister to the Plans for which he

was a trustee. Compare Cunningham, 716 F.2d at 1460 (discussing similar

transactions). Here, the district court correctly held that, "[t]he duty of loyalty was

breached from start to finish." ROA.25346. Under the law of trusts, "a selfdealing transaction itself constitutes an injury vel non, the undoing of which is an

available remedy. A fiduciary's self-dealing transaction is not void per se, but is

instead voidable at the election of the beneficiary." Fisher v. Miocene Oil and Gas

Ltd., 335 F. App'x 483, 487 (5th Cir. July 2, 2009) (emphasis in original) (citation

omitted). If the "trustee in breach of trust sells his individual property to himself as

trustee, and the price paid by him as trustee was more than the value of the

property at the time of the sale, . . . the beneficiary can set aside the purchase and

compel the trustee to repay the amount of the purchase price with interest thereon."

Restatement (Second) of Trusts § 206 & cmt. c (1959).

2. ERISA Supports Rescission as an Appropriate Remedy Where

Fiduciaries Have Engaged in Prohibited Transactions and

Difficulties in Determining What The Plans Should Have Paid is

Directly Tied to Their Breaches

Even aside from trust law principles, Congress's explicit prohibition of selfdealing transactions, such as the ones here, favors rescission as an appropriate

remedy. "Congress enact[ed] ERISA § 406(a)(1), [to] categorically bar [ ] certain

transactions deemed 'likely to injure the pension plan.'" Harris Trust, 530 U.S. at

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241-42 (quoting C.I.R. v. Keystone Consol. Indus., Inc., 508 U.S. 152, 160

(1993)). For example, "transaction[s] between a pension plan and its sponsor . . .

provided an open door for abuses such as the sponsor's sale of property to the plan

at an inflated price." Keystone, 508 U.S. at 160. Bruister's sale of BAI stock for

millions more than it was worth is precisely the type of harmful transaction that

Congress and the Supreme Court have identified as "entail[ing] a high potential for

abuse," and is therefore "illegal per se" under ERISA section 406(a)(1).

Cunningham, 716 F.2d at 1464-65; Nat'l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 82 (3d

Cir. 2012).

ERISA's text and legislative history confirm that Congress understood that

rescission was available to remedy these prohibited transactions. Specifically,

ERISA Title II defines "correction of [a] prohibited transaction," 26 U.S.C. §

4975(h), to mean "undoing the transaction to the extent possible." 26 U.S.C. §

4975(f)(5); see 26 C.F.R. § 53.4941(e)-1(c)(3) ("correction" requires "rescission of

the sale where possible"). In addition, ERISA's legislative history explains that the

Secretary is permitted to "void[ ]" prohibited transactions. H.R. Conf. Rep. No.

93-1090, 120 Cong. Rec. 29942 (Aug. 22, 1974).

ERISA's remedial scheme is therefore consistent with the established

principle that a statutory prohibition renders a transaction "voidable" through

rescission. Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 386-88 (1970) (transaction

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prohibited by federal securities law is "voidable" so as to protect the victims of the

transaction); see Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 18-19

(1979) (contract rescission available under Investment Advisers Act of 1940,

Section 215, 29 U.S.C. 80b-15). For example, section 12 of the 1933 Securities

Act grants a buyer the right to rescind a stock purchase agreement containing

material misrepresentations made by sellers in violation of the Act. Gustafson v.

Alloyd Co., Inc., 513 U.S. 561, 567 (1995); Rosenzweig v. Azurix Corp., 332 F.3d

854, 861 (5th Cir. 2003); see Pinter v. Dahl, 486 U.S. 622, 642 (1988) (Section 12

"was adapted from common law (or equitable) rescission) (citations omitted).

Accordingly, courts have long recognized that rescinding an ERISA section

406 prohibited transaction is inherent in remedying the transaction's deleterious

nature. See Smith v. Sydnor, 184 F.3d 356, 363 (4th Cir. 1999) (rescission of

preferred stock sale among remedies that are "precisely what ERISA § 409

provides"); Reich v. Stangl, 73 F.3d 1027, 1030-31 (10th Cir. 1996) (quoting with

approval language from Nieto v. Ecker, 845 F.2d 868, 874 (9th Cir. 1988) (noting

courts' equitable power to "undo such illegal [406(a)] transactions")); Landwehr v.

Dupree, 72 F.3d 726, 734 (9th Cir. 1995) (same); Compton, 57 F.3d at 286 (same);

Reich v. Rowe, 20 F.3d 25, 33 (1st Cir. 1994) (similar). And rescission is

especially appropriate in a case such as this because it would allow the Plan

participants, as victims of the prohibited stock sale to their pension plans, to

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recover exactly the amount of employee compensation that was used in these selfserving and prohibited stock transactions, and reconstructing the amount of

overpayment is difficult precisely because of defendants' misconduct in failing to

make a good faith determination of the stock's value at the time of the transactions.

3. The District Court Was Wrong that Rescission Would Constitute

a Windfall for the Plans

In this case, the district court concluded that, despite the difficulties of

determining the fair market value of the stock at the time of each of the contested

sales, rescission would be a windfall to the Plans because the stock is now

worthless. ROA.25388. Under the trust law, however, breaching fiduciaries and

not the innocent beneficiaries should bear the risk of the intervening decline. See

Restatement (Second) of Trusts, § 214 (1959) ("if the property has fallen in value

the court will charge the trustee with the amount of the trust funds expended in the

purchase rather than merely require him to account for the property so purchased").

Likewise, in the securities context, this Court has explained that rescission

applies "to cases involving . . . some specific fiduciary duty owed" to the customer.

Huddleston v. Herman & MacLean, 640 F.2d 534, 554 (5th Cir. 1981) modified on

other grounds by 459 U.S. 375 (1983). Under those circumstances, "the

rescissional measure permits the defrauded securities buyer to place upon the

defendant the burden of any decline in the value of the securities between the date

of purchase and the date of sale even though only a portion of that decline may

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have been proximately caused by the defendant's wrong." Id.; Randall v.

Loftsgaarden, 478 U.S. 647, 659 (1986) (victim of securities fraud may "demand

rescission upon tender of the security[;] Congress shifted the risk of an intervening

decline in the value of the security to defendants, whether or not that decline was

actually caused by the [defendants' conduct]").

This is true even where, as here, the plan language contemplates an

investment in company stock. Eaves v. Penn, 587 F.2d 453, 463 (10th Cir. 1978)

(where stock became worthless, thereby undermining the plan participants'

"legitimate expectations of cash distributions upon retirement or termination," this

"intervening decline" should be borne by the fiduciaries who violated their ERISA

duties rather than the participants whose interests section 406 is designed to

protect); cf. 29 U.S.C. § 1104(a)(1)(D) (fiduciaries must follow plan documents

only if otherwise consistent with ERISA's requirements). For these reasons, the

district court erred in considering it a windfall to return to participants and

beneficiaries pension contributions the trustees wasted on now-worthless stock in a

transaction that was prohibited in the first place.

Here, there are certainly reasons to think that determining fair market value

is a very uncertain proposition given the district court's findings that the financials

were almost wholly unreliable, were not compliant with GAAP, as required in the

plan documents, and were furnished by plan fiduciaries who were found by the

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court to have violated their ERISA duties from start to finish. These factual

findings of the district court underscore the appropriateness of a rescission remedy

in this case.

CONCLUSION

For the foregoing reasons, the Secretary respectfully requests that this Court

affirm the district court's holding that Bruister and Smith acted disloyally and

engaged in prohibited transactions that caused the Plans to purchase stock from

Bruister for more than adequate consideration. The Secretary also requests that

this Court reverse the district court's calculation of damages and either recalculate

the loss without reliance on defendants' expert or order rescission of the illegal

transactions.

July 29, 2015

Respectfully submitted,

M. PATRICIA SMITH ELIZABETH HOPKINS

Solicitor of Labor Counsel for Appellate

and Special Litigation

G. WILLIAM SCOTT /s/ Stephen Silverman

Associate Solicitor STEPHEN SILVERMAN

Plan Benefits Security Division THOMAS TSO

Attorneys

U.S. Department of Labor

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

silverman.stephen@dol.gov

(202) 693-5623

Counsel for the Secretary of Labor

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CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULES 28.1 & 32 and 5TH CIR. R. 28.1 & 32.3

1. This brief complies with the type-volume limitation of FED. R. APP. P.

28.1(e) and 32(a)(7)(B) and Fifth Cir. R. 28.1 and 32.2 because: this brief

contains 16,474 words, excluding the parts of the brief exempted by FED. R.

APP. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of FED. R. APP. P.

32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6)

because: this brief has been prepared in a proportionally spaced typeface

using Microsoft Word 2010 in 14-point, Times New Roman font.

/s/ Stephen Silverman

Counsel for the Secretary

July 29, 2015

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CERTIFICATE OF SERVICE

I, undersigned attorney for the Secretary, do hereby certify that I have this

day, July 29, 2015, filed the foregoing with the Clerk of the Court for the United

States Court of Appeals for the Fifth Circuit using the CM/ECF system, and in

accordance with Fed. R. App. P. 25, which sent notification and caused service of

such filing to all counsel of record.

Dated: July 29, 2015

/s/ Stephen Silverman

Stephen Silverman

Counsel for the Secretary

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