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directives of the ESOP committee, and that such actions were a
reasonable exercise of its discretion in its capacity as the
ESOP’s trustee. At that time, 32.27 percent of the outstanding
shares in petitioner were held by the ESOP.
V. Eihusen counterclaimed in the ESOP litigation, alleging
conflict of interest and self-dealing on the part of the ESOP
committee. He sought a ruling that the ESOP’s trustee was
required to allow passthrough voting of the ESOP’s shares in
petitioner in accordance with the direction of the participants.
In September 1995, the District Court ruled that petitioner could
direct the ESOP’s trustee on the voting of the ESOP’s shares in
petitioner. V. Eihusen’s counterclaims were not included in this
ruling, and they remained pending.
V. Eihusen had in his answer also cross-claimed against the
ESOP committee, alleging a breach of fiduciary duty, conversion,
and civil conspiracy. He sought through these cross-claims both
equitable relief and compensatory damages. The District Court
found these cross-claims to be preempted by Federal law and
dismissed them on October 10, 1995.
4. Intermodal Litigation
On or about May 15, 1995, petitioner and Mid-Am Intermodal
Sales Co. (Mid-Am) entered into a plan of reorganization (Mid-Am
purchase agreement). The Mid-Am purchase agreement was
negotiated and executed without the knowledge of V. Eihusen, who
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