Gregory Y. Porter

Two valuations of Constellis Group, Inc. were prepared in 2013, a few months apart. The McLean Group, an investment bank that had regularly provided annual share valuations for the company, put one share at $1,838.11. Stout Risius Ross, which Wilmington Trust hired as its financial advisor while serving as trustee of a new employee stock ownership plan, put its median at $4,235. On December 20, 2013, the ESOP bought Constellis at $4,235 a share. SRR’s report never mentioned McLean’s. At least one Wilmington official knew of the earlier valuation, and no one from Wilmington asked about it or questioned the difference between two valuations of the same company. Three years later, Greg Golden, the Wilmington vice president who had known of the McLean valuation before the price was set, testified at trial that he had still never read it.

The McLean Report became evidence in Brundle v. Wilmington Trust, the ERISA case Gregory Y. Porter and his Bailey & Glasser colleagues brought for Tim P. Brundle, a former Constellis employee and ESOP participant who lived in McAllen, Texas. After a six-day trial in Alexandria, Virginia, in November and December 2016, U.S. District Judge Leonie M. Brinkema found that Wilmington had caused the ESOP to overpay for Constellis stock and held it liable to the plan for $29,773,250. Porter argued the appeal. On March 21, 2019, the Fourth Circuit affirmed in all respects, holding that a trustee who invokes ERISA’s adequate-consideration exemption bears the burden of proving it and that an independent appraisal does not by itself discharge the trustee’s duty to investigate. Wilmington paid the judgment, and a notice of satisfaction was filed in August 2019.

Price First, Terms Later

Constellis was the closely held parent of a group of private security companies, and its employees were primarily retired members of the U.S. Armed Forces. Thomas Katis and Matthew Mann had founded its largest subsidiary, Triple Canopy, in 2003, and the State Department and the Defense Department were its main clients. The company offered its employees some form of deferred compensation, and an employer’s contributions to an ESOP, the Fourth Circuit later wrote, “constitute a valuable form of deferred compensation, rather than a gift to employees.” Four individuals owned 77 percent of the stock. In mid-2013, having twice tried and failed to sell the company, the owners began exploring an ESOP as an “exit strategy.” CSG, the investment bank working on the sale, reported that selling to an ESOP would let them liquidate their shares and save 23.8 percent in federal capital-gains taxes. To maximize those savings, Constellis had to complete the sale by the end of the calendar year.

A 2007 negotiation with Cerberus Capital Management had fallen through, and in 2012 Vestar Capital Partners lowered its offer from the $340 million to $350 million range to $275 million as the closing approached, which Katis called a “classic private equity move.” CSG’s first ESOP presentation to the owners, dated September 25, 2013, and titled “Preliminary ESOP Structural Analytics,” told them that the status quo left them with “no exit strategy.” An ESOP, it said, “optimizes results for all parties”: for the sellers, “$307.8MM net of taxes over 6 years” and “control until fully paid.” The next day CSG reported that it had “looked at every possible scenario” and had not “seen any possible alternative that produces more after tax cash than the ESOP.” Constellis management and the sellers decided to go ahead immediately afterward.

CSG proposed a departure from the usual practice. Instead of selling 100 percent of their shares to the plan, the owners would sell 90 percent and exchange the remaining 10 percent for “equity-like” warrants that entitled them to buy back equity from the ESOP at a designated price and guaranteed them a majority on the board of directors. Constellis would contribute 24 percent of the purchase price, and the ESOP would borrow the rest from Constellis and from the owners themselves. On CSG’s recommendation, Constellis engaged Wilmington Trust, N.A., as the ESOP’s trustee, and Wilmington hired SRR as its financial advisor. CSG, Wilmington, and SRR had worked together on more than twenty ESOP deals.

Juliet Protas, Constellis’s general counsel, approved the choice of Wilmington after speaking with Golden, consulting outside counsel, and researching the bank online; she considered Wilmington a “household name.” Inside Wilmington, a fiduciary committee with four voting members, chaired by vice president Jennifer Matz, oversaw the deal. CSG had already referred 23 ESOPs to Wilmington, and between 2010 and 2015 it was the referral source for more than half of Wilmington’s ESOP projects. SRR and Wilmington had worked together at least 25 times, and Matz could not recall Wilmington ever asking SRR to revise one of its valuation reports. One of SRR’s two primary analysts on Constellis, Aziz El-Tahch, had conducted roughly 750 ESOP valuations.

Wilmington and its agents completed their due diligence, made their pricing decisions, negotiated, and launched a tender offer in less than two months. SRR submitted its draft valuation on November 12, 2013: a fair market value of $3,865 to $4,600 a share, a rounded median of $4,235, and an enterprise value of $275 million to $330 million. The report reached Wilmington’s committee at 4:58 p.m. that Tuesday, less than two days before a meeting set for 1:00 p.m. Thursday, and not every member had read all of it; the court credited Matz’s deposition testimony that she could not specifically recall reading the report over her contrary account at trial. On November 14, Wilmington met with SRR’s analysts by conference call and came away authorized to offer between $3,900 and $4,235 a share.

Constellis had opened on November 13 at $4,525 a share, $75 below the top of SRR’s range. On November 15, Wilmington opened at $3,900. At 3:02 p.m., George Thacker of CSG countered at $4,350 and suggested that the two sides agree on a price first and adjust the terms of the agreement later, because the tender-offer documents were due to go out the following Monday; Wilmington agreed and raised its bid to $4,100. Thacker came back at $4,250 and asked for an answer on price “in the interest of time.” At 4:50 p.m., Wilmington sent its “best and final offer”: $4,235—the very top of Wilmington’s authorized range—on condition that the warrant holders’ control of the board be limited to 12 years. Thacker accepted the price at 4:59 p.m. The parties had settled by the end of the day, after little more than five hours of negotiating.

The ESOP issued its tender offer on November 18, with a closing date of December 20. In between, SRR lowered its enterprise-value range to $275 million to $325 million, and the price per share stayed at $4,235. SRR sent its 125-page fairness opinion to the committee at 4:06 p.m. on December 18. On December 19, after meeting with SRR for half an hour, Wilmington approved the purchase; one of the four voting members did not attend, and those present asked very few questions. Over the whole transaction, Wilmington’s employees met to discuss the deal only three times and met with Constellis management just once; every meeting lasted less than ninety minutes, several team members were absent from each, and, the district court found, Wilmington repeatedly violated its own policy by taking less than forty-eight hours between receiving a valuation report and meeting to discuss it.

Less than a year after its creation, the ESOP’s stock was sold. In February 2014, as Constellis was losing expected revenue on its contracts in Iraq and Kuwait, the head of the firm that owned ACADEMI, the private security company formerly known as Blackwater, contacted Katis; the press release announcing the sale to the ESOP had caught his interest. Katis and Mann had built Triple Canopy partly in reaction to the reputation Blackwater had given the industry, but Katis was persuaded that new investors had “bought the ashes of what had been Blackwater.” On July 25, 2014, ACADEMI bought all of the Constellis stock at an implied enterprise value of $288.3 million, and the ESOP, which had about 1,800 participants, received $20 million in cash. Matz testified that the speed troubled her, because “any benefit plan is supposed to be a long-term benefit, not something you set up and terminate in a matter of months.” El-Tahch had worked on about 200 ESOP transactions and only one other that lasted less than a year.

Golden’s Notes and El-Tahch’s Pamphlet

Brundle sued Wilmington in the Eastern District of Virginia on behalf of the plan, alleging that the purchase was a transaction ERISA prohibits and that the ESOP had paid an inflated price. Porter, Ryan T. Jenny, and Thanos Basdekis signed the third amended complaint, and Brian A. Glasser and Patrick Muench were also on the team. They reviewed about 20,000 documents and deposed nine fact witnesses and Wilmington’s valuation expert. An ESOP’s purchase of its sponsor’s stock from the company’s owners escapes ERISA’s prohibition only if the plan pays no more than adequate consideration, and a trustee claiming that exception bears the burden of proving it. In October 2016, Judge Brinkema granted Brundle summary judgment that Wilmington had caused the ESOP to buy stock from a party in interest, which left one question for trial: whether Wilmington could prove that the price was adequate. Wilmington’s defense rested on SRR: an independent expert had valued the stock, and Wilmington had relied on that valuation.

The trial began on November 28, 2016. Brundle testified that he had been an administrative employee working on Constellis’s base-security subcontract in Kuwait and on a State Department task order in Baghdad. He had worked at least 1,000 hours in both 2013 and 2014, so he was 20 percent vested when the company was sold, and he testified that participants had received no advance warning of the sale. His share of the ACADEMI proceeds was $20,000, and none of it would be paid until the IRS concluded its investigation; the IRS had put the plan’s termination on hold after the Department of Labor opened an investigation into Wilmington and the plan’s other fiduciaries. Brundle told the court that the amount did not adequately reflect his value to the company and that his co-workers had generally taken the news of the termination poorly.

Wilmington’s trial witnesses said the McLean Report would not have helped, because McLean had valued a single share for stock options rather than a controlling interest for sale. El-Tahch likened the two reports to a homeowner’s two appraisals, a low one for tax purposes and a high one for listing the house. Andy Smith, who had prepared McLean’s valuations and was a neutral party to the case, testified that he would have wanted to see a report like his even in SRR’s position, because more data is always better, and that the different purposes had not affected how he calculated Constellis’s enterprise and equity values. Judge Brinkema, relying on Smith’s uncontradicted testimony and finding him “highly credible,” concluded that the two reports used “essentially the same methodology.” McLean’s summary page alone, she wrote, would have shown an enterprise value nearly $100 million below SRR’s, eleven months earlier. Constellis officers testified that the company’s business prospects had not changed dramatically between the two reports. El-Tahch offered reasons the value might have risen in the meantime—easing uncertainty over federal budget cuts, a 20 to 25 percent rise in comparable companies’ stock prices, $60 million in debt repaid—and the judge answered that these were precisely the kinds of information Wilmington should have sought while it was reviewing the valuation. A prudent trustee in Wilmington’s position, the court found, would have asked why SRR left the earlier valuation out.

SRR’s valuation rested on growth projections from Constellis management, and management stood to receive 5 percent of the purchase price in cash bonuses. On the morning of the November 14 meeting, a CSG banker had emailed El-Tahch that the projections sent to Vestar the year before were “more aggressive for the purposes of putting the company in a better light,” while those prepared for the ESOP were “more realistic and frankly, conservative.” SRR’s report cited the Vestar offer as support for its valuation; El-Tahch did not pass that warning to Wilmington, and the report left out the lower price Vestar finally offered. Constellis was also the subject of an ongoing government investigation into accounting and record-keeping errors, which the court concluded “should have raised questions about the reliability” of those projections; asked about the audit, Constellis management offered a statute-of-limitations defense instead of denying the charges. About 70 percent of the company’s revenue depended on two government contracts, yet SRR used a beta of 0.7, a figure that treated Constellis stock as less risky than the average stock. The court found that Wilmington ignored or downplayed these warnings.

“We did a different level of due diligence,” Golden testified, and he pointed to the representations and warranties in the purchase agreement: a buyer outside the ESOP world pays for its own investigation, he said, because it has no such indemnification to protect it. Judge Brinkema found that the key warranty about the company’s financial health had been made by Constellis, which the ESOP now owned outright, and that no one at Wilmington had pressed the sellers to make representations of their own. Making the company pay the ESOP, she wrote, “would be equivalent to robbing Peter to pay Paul.”

The largest errors concerned control. The ESOP’s plan document and trust agreement each required Wilmington to vote the plan’s shares as the Constellis board directed, and the owners’ warrants guaranteed them a majority of that board. In November 2013, Constellis’s own outside counsel had asked how many seats the warrant holders would get, noting that they “nor[m]ally have the right to appoint a minority, so two of five, three of seven, etc.” Thacker replied that in CSG’s deals they had “been given the right to appoint a majority,” which was “how they retain operational control over the company until they’ve been paid.” Smith testified that the only other ESOP he knew of that owned all of a company’s shares without controlling its board was under investigation by the Department of Labor. Asked at trial how the ESOP could stop the board, Protas said the only recourse would be to “file a lawsuit to fight about it,” and added, “I guess [the board] could do anything.” The ESOP could exercise independent voting authority only by filing a lawsuit, which the Fourth Circuit called “the same limited relief available to a minority shareholder.” SRR nonetheless applied a 10 percent control premium and no discount for lack of control, and its report, the district court found, “devoted just one sentence to articulating its decision”; Wilmington never asked SRR about the premium. Judge Brinkema called that failure “inexplicable.”

SRR also rounded its figures upward, consistently, and the rounding repeatedly raised the price the ESOP had to pay. Its November report put the median at $4,235 a share when the figure was $4,232.50, and El-Tahch defended the practice by saying that “[e]veryone accepts the fact that fair market value is not a single point estimate.” Wilmington, the Fourth Circuit wrote in summarizing Judge Brinkema’s conclusion, “ought to have asked why SRR consistently engaged in the upward rounding to the ESOP’s detriment.” Nor did SRR deduct the value of stock appreciation rights, incentives Constellis would have owed management if the company’s value reached a certain price by a particular date, although Constellis intended to issue them. Wilmington and SRR argued that the rights did not count because they had not been issued; Judge Brinkema called that position “disingenuous,” since Protas acknowledged that Constellis meant to issue them and they went unissued only because the company was sold to ACADEMI so quickly.

Judge Brinkema took the measure of Wilmington’s duty from El-Tahch himself. He had co-written a pamphlet called Things My ESOP Advisor Never Told Me, which said that a fiduciary cannot justify relying on an independent financial advisor unless it has “read and understood the valuation report; identified, questioned, and tested the underlying financial data and assumptions; verified that the conclusions are consistent with the data and analyses; and verified that the valuation report is internally consistent and makes sense.” Wilmington, she found, had not lived up to those obligations. It had rushed its evaluation, failed to follow its own policies, and shown a “tendency to rubber stamp whatever Constellis and SRR put in front of it.” Golden and Matz, she noted, could not recall details of the deal without their handwritten notes, although the events were less than three years old.

The negotiation itself counted against Wilmington. Told by SRR that fair market value began at $3,865 a share, it had opened at $3,900. Denny Summers of Taylor English, the law firm that negotiated for Wilmington, testified that a far lower bid would have cost the trustee its credibility: you “want to make sure that you’re not coming up with something that’s ridiculous.” Judge Brinkema answered that Wilmington could have opened at $3,865, SRR’s own floor, and that with more than 47,000 shares in play each dollar off the price saved the ESOP over $47,000. The Fourth Circuit, summarizing her findings, wrote that Constellis’s “principal motivation for creating the ESOP was to further the Sellers’ interests, not the interests of the ESOP participant buyers.” Smith described the ESOP world as “a very incestuous community,” and Golden could not identify a single occasion when Wilmington had declined to approve an ESOP transaction after it was formally engaged as trustee. Judge Brinkema found no bad faith, but ERISA, she wrote, “demands more to excuse a fiduciary from liability.”

Six Line Items in the Judgment

Brundle’s valuation expert, Dana Messina, chief executive of the financial services firm Kirkland Messina, had 25 years of experience valuing businesses in ESOP transactions and had consulted for the Department of Labor in more than 100 investigations. He was the only witness who calculated damages, and he priced each of SRR’s errors separately. Wilmington’s expert, Jeffrey Tarbell, co-head of the ESOP valuation practice at Houlihan Lokey, called the line-item method conceptually flawed because valuation estimates depend on one another, but he offered no alternative, and Judge Brinkema worked from Messina’s figures. Messina’s calculation of the cost of the 0.7 beta went uncontradicted, and she accepted it; on the control premium she agreed with him that SRR should not have applied one at all.

Having concluded that Wilmington “engaged in a prohibited transaction by failing to ensure that the ESOP paid no more than adequate consideration for the stock,” Judge Brinkema assigned each failure a dollar figure: $4,325,000 for reliance on management’s growth projections, $2,936,000 for the 0.7 beta, $8,186,000 for the control premium, $9,715,250 for the missing discount for lack of control, $1,611,000 for the stock appreciation rights, and $3,000,000 for the rounding. Together they came to $29,773,250, the sum she awarded the ESOP in her decision of March 13, 2017. The ESOP, she found, should have paid $3,609.33 a share.

Wilmington had offered two answers on damages. It argued that the measure should run only from the bottom of SRR’s range, which would have produced about $12,166,000; Judge Brinkema called that argument “overly simplistic,” because the whole range should have shifted downward and Wilmington had treated SRR’s median as the most it would pay. It also argued that the ESOP had lost nothing, because at a lower price the sellers would never have sold. That argument, she wrote, was “pure speculation,” and a fiduciary allowed to escape liability by claiming that a proper valuation would have ended the deal would be using “heads I win, tails you lose” logic that would make damages all but impossible to award in ESOP cases.

Constellis’s employees had not put a cent of their own money into the plan, and Judge Brinkema held that ERISA asks whether the ESOP itself was damaged. At an April 2014 meeting Protas had called the ESOP a “lottery ticket” for participants, and the judge identified that view as the one Congress meant to combat when it imposed the “highest duty known to the law” on ERISA fiduciaries. She quoted the Eleventh Circuit: the essential purpose of ERISA is “to prevent employees from getting ‘nothing for something’”.

Porter gave his reading of the decision two days later. It “lays out important new guidance for ESOP trustees on many valuation issues,” he said. “Two stand out.” Valuation firms and trustees had to test management’s projections against earlier projections and against the self-interest of the managers who made them. And when the selling shareholders kept control of the board, the ESOP should not have paid a control premium; “instead, the ESOP should have received a discount for lack of control.” “Both are common problems in ESOP transactions,” he said.

Who Must Prove the Price

Carter G. Phillips of Sidley Austin argued Wilmington’s appeal in the Fourth Circuit on December 11, 2018, and Porter argued for Brundle, with Tillman J. Breckenridge and Ryan T. Jenny on the brief. The American Society of Appraisers filed an amicus brief supporting Wilmington. The Secretary of Labor filed as amicus in support of Brundle, and Robin Springberg Parry argued for the Department of Labor.

Wilmington opened both its brief and its oral argument by emphasizing that no one claimed it had acted in bad faith. It argued that SRR’s valuation was expert advice on which a prudent trustee could rely, that a 10 percent control premium was justified because the ESOP owned all of the shares and obtained “elements of control,” and that a later sale proved the ESOP had paid fair market value: ACADEMI’s purchase implied an enterprise value of $288.3 million, inside SRR’s range. Wilmington pointed to setbacks it said Constellis had suffered between the two deals—a formal State Department demand for $62.2 million arising from an audit of its accounting and record-keeping, a cut of more than $100 million in projected revenue from a contract in Iraq, a drop of tens of millions in projected revenue from a contract in Kuwait, and the loss of a $338 million contract in Germany it had expected to win. It also asked that any damages be offset by the $20 million the ESOP received in the ACADEMI sale.

Judge Diana Gribbon Motz wrote the opinion, joined by Chief Judge Gregory and Judge Floyd, and its first paragraph announced that the court would “affirm the careful findings of the district court.” An ESOP participant, she wrote, “need not prove that the fiduciary acted in bad faith.” The question was whether Wilmington had acted “solely in the interest” of the participants, and, as the Fifth Circuit had put it, “a pure heart and an empty head are not enough.” Because Wilmington invoked the adequate-consideration exception to avoid liability for an otherwise prohibited transaction, it bore the burden of proving by a preponderance of the evidence that the sale was for adequate consideration—a burden the court, quoting earlier authority, called “a heavy one.” Expert advice could serve as evidence of prudence, but in words the court took from an earlier decision, such advice “is not a magic wand that fiduciaries may simply wave over a transaction to ensure that their responsibilities are fulfilled.” A trustee relying on an appraiser must show that it investigated the appraiser’s qualifications, gave the appraiser complete and accurate information, and was reasonably justified in relying on the result.

Judge Brinkema had turned the ACADEMI price against Wilmington. Because ACADEMI, a private security company like Constellis, stood to gain synergies from the purchase, she found, it would have been willing to pay significantly more than the ESOP; “that ACADEMI actually paid less for Constellis stock,” the Fourth Circuit wrote in describing her finding, “suggested a significantly lower fair market value for the stock at the time of the ESOP purchase.” At trial Messina had valued those synergies at about $23 million, a figure El-Tahch did not dispute. After discounting the synergies, the sellers’ $33 million debt write-off, and an expected tax refund from the sale, she concluded that the ACADEMI price pointed to a fair market value closer to $200 million, almost $100 million less than the enterprise value implied by the ESOP transaction. A price inside the range of fair market value would not have been enough in any event. Adequate consideration also requires a price that is “the product of a determination made by the fiduciary in good faith,” and the Fourth Circuit found no error in the finding that Wilmington had failed to prove it.

Neither court subtracted the $20 million. The loss in an overpayment case is what the ESOP paid minus the fair market value of what it bought, and gains the ESOP would have received regardless of the overpayment do not reduce it. Courts, the Fourth Circuit noted, “have uniformly rejected analogous offsets to damage awards in overpayment cases,” and it quoted the Second Circuit’s illustration: “If an investor pays $100 for 20 shares of stock and later sells those shares back to the original seller for $25, the result is not that the investor paid only $75 for the shares.” Wilmington had described the ACADEMI sale as “pure gain” for the ESOP, arguing that the plan “made $20 million for the nominal cost of carrying $200 million in non-recourse debt for a few months.” The burden of additional debt from a $30 million overpayment, the court answered, “is far from ‘nominal,’ even for ‘just’ seven months.” Had the ESOP not overpaid by $30 million, it “would have shouldered tens of millions of dollars less in debt.”

On August 23, 2019, after Wilmington paid the judgment, a notice of satisfaction was filed in Alexandria. The judgment ran to the ESOP itself; participants had been told in a court-authorized notice that money recovered in the lawsuit would be deposited into the plan’s trust and that their benefits would be determined under the plan’s terms.

In 2020 Wilmington sued Stout Risius Ross in federal court in Manhattan, alleging that SRR had breached contractual and common-law duties it owed Wilmington and seeking the nearly $30 million Wilmington had paid to satisfy the Brundle judgment. In March 2021, U.S. District Judge Louis L. Stanton dismissed the contract and negligence claims and allowed a contribution claim to proceed, holding that ERISA does not bar Wilmington’s contribution claim against a non-fiduciary merely because the judgment it paid rested on an ERISA violation.

A Product Listed as “TBD”

Isagenix Worldwide, Inc., a multi-level marketing company that sells weight-loss and nutrition products, created an ESOP in 2018. Founded in 2002, it had grown from $262 million in net sales in 2011 to $958 million in 2017. On January 1, 2018, it converted from a limited liability company to a corporation, formed the ESOP, and created 30,000 shares representing 30 percent of its value. That year Argent Trust Company, as the plan’s independent trustee, approved its purchase of 30,000 shares for $382.5 million—$12,750 a share—on revenue projections tied to new markets, new products, and expansion in Asia. Argent’s advisor, Duff & Phelps, relied on Isagenix’s projection of $5.7 billion in revenue over five years and put the fair market value at $365.3 million to $458.2 million; the purchase closed on June 14, 2018. By the end of 2018 the company’s equity value had fallen by $550 million, and a share was worth $6,051.15. The projected sales in China, Japan, and South Korea never materialized, the new products did not sell, and membership fell. Isagenix terminated the ESOP in 2023, and the plan made small payouts to vested participants from a $1 million company contribution. Shana Robertson, a former Isagenix employee, held 9.5 shares when the plan ended and received a payout of $1,083.84.

Robertson sued Argent and the selling shareholders in federal court in Arizona on October 7, 2021, alleging breaches of fiduciary duty and a prohibited transaction. Under the plan’s arbitration provision, the case went to a panel of three arbitrators. Porter led the Bailey & Glasser team, with Patrick Muench and Laura Babiak. The respondents produced more than 26,000 pages of documents, Robertson’s lawyers took or defended six expert depositions, twelve witnesses testified in a five-day evidentiary hearing held over the course of nine months, and the parties filed 233 pages of closing briefs.

The five-year revenue projection behind the price included $330 million from sales in new markets and $305 million from new products. The new markets included China, Japan, and South Korea, where Isagenix had very little presence at the time of the transaction; the new products included an essential-oils line, children’s nutrition and digestive-health products, and an unknown product listed as “TBD.” On June 10, 2025, the panel issued a unanimous order finding that Argent and the selling shareholders had engaged in prohibited transactions under ERISA. The revenue projected from new markets and new products should have been omitted from the valuation, the panel held, because it was “fanciful,” merely speculative. Argent had breached its fiduciary duties by causing the ESOP to pay $38.25 million more than fair market value, $1,275 a share, and the selling shareholders’ trusts were liable as parties in interest. The panel set the damages to Robertson’s account at $11,029.50.

On July 28, 2025, the panel awarded Robertson her attorneys’ fees and costs, rejecting the respondents’ argument that the fees were excessive for a single participant’s claim. Robertson, the panel wrote, had to establish plan-wide losses in order to prove her own damages, and “all parties to this arbitration treated this case as something far greater than a claim for $20,000 by a single Plan participant.”

The plan’s arbitration clause barred Robertson and the arbitrators from disclosing “the existence, content, subject matter, or results of any arbitration” without the consent of Isagenix and Argent, and it required the parties, in any action to confirm or set aside an award, to seek to file the award under seal. When the case returned to the District of Arizona in the late summer of 2025, the motion papers came in heavily redacted, and no party filed either award on the public docket. On September 18, 2025, U.S. District Judge Dominic W. Lanza denied the requests to seal. The parties’ agreement was the only reason offered, he wrote, and secrecy would leave the public with no basis for evaluating his decision to enforce or vacate the awards; he quoted another court: “The parties are privileged to arbitrate in secret, but they must litigate in public.”

In October 2025, Porter’s team, joined on the filing by Ron Kilgard of Keller Rohrback and Daniel Feinberg of Feinberg, Jackson, Worthman & Wasow, moved in the District of Arizona to confirm both awards, setting out the panel’s findings, the “TBD” product among them, in a public filing. The selling shareholders’ trusts moved to vacate them, arguing that, as nonsignatories to the arbitration provision, they were not proper parties to the arbitration, and Argent joined their motion. On February 20, 2026, Judge Lanza confirmed the awards and denied the motion to vacate, holding that the trusts had waived their objection by taking part in the arbitration without raising it in time, and the court entered judgment.

A related question is pending in Chicago. In Laidig v. GreatBanc Trust Co., employees of Vi-Jon, a personal-care products manufacturer, allege that the company’s ESOP bought Vi-Jon at a price inflated by unrealistic projections of hand-sanitizer sales during the COVID-19 pandemic. By March 2026, the federal court in the Northern District of Illinois had denied a motion to dismiss filed by company directors who argued they were not fiduciaries, reasoning that “a defendant’s or group of defendants’ ability to control the appointment and approval of a trustee through their positions may support a reasonable inference regarding fiduciary status.” Porter, Muench, and Babiak represent the employees with co-counsel Nichols Kaster.

Infantry, NORML, and the Law Review

Porter served in the U.S. Army’s infantry branch and was executive director of the National Organization for the Reform of Marijuana Laws. He graduated from the University of Massachusetts Amherst in 1989 and from the University of Southern California Gould School of Law in 1996, where he was an articles editor of the Southern California Law Review and a member of the Order of the Coif. He is admitted in the District of Columbia, New York, and Virginia, and he has argued appeals in the Second, Fourth, Sixth, and Eighth Circuits.

His trial record includes a pension case tried for the other side: in Dupree v. Prudential Insurance Company, he won a trial for the defendant against claims of hundreds of millions of dollars in pension losses. He now leads Bailey & Glasser’s ERISA, Employee Benefits & Trust Litigation Practice Group in Washington, D.C., and his docket includes other ESOP cases alleging that trustees caused employees to pay more than fair market value for their employer’s stock.

Actual Knowledge and Affirmative Defenses

Porter also represented the Intel employees who challenged hedge-fund and private-equity investments in their retirement plans, a case that reached the Supreme Court as Intel Corp. Investment Policy Committee v. Sulyma, and he was on the brief for Christopher Sulyma, the former Intel employee who brought it. Sulyma had worked at Intel from 2010 to 2012. Intel’s plan committee showed that he had visited the plan website repeatedly and argued that the disclosures available to him had started the clock on his claims; Sulyma testified that he did not remember reviewing those disclosures and had been unaware that his retirement money had been invested in hedge funds or private equity. In February 2020 the Court ruled unanimously for the employees on Intel’s statute-of-limitations defense. To have “actual knowledge” of a piece of information, Justice Samuel Alito wrote, “one must in fact be aware of it.”

In Brundle, Wilmington carried the burden of proving the adequate-consideration exemption at trial. In April 2025 the Supreme Court addressed ERISA’s prohibited-transaction exemptions at the pleading stage in Cunningham v. Cornell University, a suit by participants in two Cornell retirement plans. Porter and his partner Mark G. Boyko represented fourteen law professors who filed an amicus brief asking the Court to reverse the dismissal of the participants’ claims. The professors, from schools including Yale, Duke, Georgetown, and the University of Virginia, argued that the Second Circuit had improperly borrowed a pleading standard from Jones v. Harris Associates, a case under the Investment Company Act, which does not require fees to be reasonable; ERISA does, and when a transaction is otherwise prohibited it puts on the defendant fiduciary the burden of proving that the plan paid no more than reasonable compensation. On April 17 the Court ruled unanimously that ERISA’s exemptions from its prohibited-transaction rules are affirmative defenses, which Justice Sonia Sotomayor described as “the responsibility of the party raising them,” so participants who plausibly allege a prohibited transaction need not plead that no exemption applies.

Lawyers for plan sponsors predicted a surge of suits. Kent Mason, outside counsel for the American Benefits Council, said the ruling meant “plaintiffs can sue every defined contribution plan in the country and survive the motion to dismiss,” and called it a “sad day for ERISA plans.” Porter expected less. Plaintiffs’ firms are business-oriented, he said, and “don’t tend to chase cases unless there’s money to be recovered”; an attorney has little reason to take a case that a readily available exemption will defeat. “There’s going to be more litigation here, but it’s not going to be a sea change,” he said. “Cases are going to get a little farther along before the parties get together.”