Employee Stock Ownership Plans: Uncertainties Plaguing the Duties of the ESOP Fiduciary With Respect to Voting and Defensive ESOPs

This article will examine two particular dilemmas that challenge ESOP fiduciaries: voting rights and the use of defensive ESOPs. First, this article will discuss the development of ESOPs and their general mechanics. Second, it will explore the creation of ERISA, including the policy behind the statutory scheme. It will then set forth ERISA fiduciary law, noting the interplay of ERISA fiduciary standards and trust law. Third, this article will address problems confronting the ESOP fiduciary, specifically, voting and tendering shares of ESOP stock and the effect of using an ESOP as an anti-takeover device. In doing so, this article will look not only at how federal courts have interpreted and applied ERISA fiduciary standards to ESOP fiduciaries, but will also critique the standards which the Department of Labor have proposed to police this area. Finally, it will suggest simpler yet more definitive standards than those which the courts and the Department of Labor have formulated, in an attempt to provide workable guidelines for ESOP fiduciaries to follow in the exercise of their duties