AUBURN — The federal government this week filed a civil action against the owners of Maine Oxy Acetylene Supply Company as well as a manager, charging them with breaching an Employee Stock Ownership Plan by misrepresenting the value of the employees’ stock shares.
The U.S. Department of Labor filed the action Tuesday in U.S. District Court in Portland, naming as defendants Maine Oxy owners Daniel Guerin and Bryan Gentry along with Carl Paine, the business development manager and trustee of the company stock plan.
The civil action alleges that Guerin and Gentry schemed to conceal the true value of the stock shares so that participants in the ESOP received only a fraction of the value of those shares. Paine, as trustee, is accused of failing to carry out his fiduciary duties in the interest of the ESOP participants.
The complaint charges that the defendants violated the Employee Retirement Income Security Act by failing to protect the employees’ interest in connection with the sale of 49 percent ownership of the company.
“Relying on a flawed valuation of the stock, and without prudently investigating the merits of the transaction, Paine, with the aid and knowledge of Guerin, Gentry, and Maine Oxy, caused the ESOP to sell its shares back to the company for less,” according to the complaint.
The complaint also charges that Guerin engaged in a program of threats and harassment while encouraging ESOP participants to sell their shares.
“At the same time as he was mailing letters stating that the participants could hold onto their stock and continue to participate in the growth of the company,” according to court documents, “Guerin engaged in an aggressive campaign to pressure individual ESOP participants to sell their shares. Guerin’s tactics included personal meetings with employees and threats of possible adverse employment actions.”
The Department of Labor is seeking to hold the defendants responsible by forcing them to restore all the ESOP losses that occurred as a result of the alleged breach, and to “require Paine, Maine Oxy, Guerin, and Gentry to disgorge any and all ESOP assets obtained by them and to disgorge any and all profits earned by them because of their prohibited transactions,” according to the document.
Maine Oxy on Thursday released a statement through Lewiston attorney Peter J. Brann, co-counsel representing the company.
“We were surprised and disappointed that the (Department of Labor) filed this lawsuit,” according to the statement. “The ESOP plan relied on the independent appraisal of a reputable, national firm that had valued the Maine Oxy stock for years to determine the value of the stock when the ESOP was discontinued. The participants in the plan received exactly what the independent appraiser said their stock was worth. Maine Oxy’s goal then and now has been to treat employees fairly.”
The federal action is only the latest of legal woes faced by Maine Oxy in connection with its employee stock plan.
In April of 2019, a group of four former employees filed a class-action suit against Guerin, claiming that he breached the ESOP by misrepresenting the value of the stocks.
That case is still pending in U.S. District Court. One employee connected to the suit has passed away. Others fear that older employees may not live long enough to see their retirements.
According to the employee suit, after he assumed ownership of the company in 2013, Guerin told the ESOP committee that Maine Oxy could no longer afford the plan and that ESOP would have to be dissolved, its shares sold back to the company.
The stock option had been offered to employees since 2004. By 2006, employees had acquired 49 percent of the company.
The suit alleges that Guerin began a scheme to buy back the employee shares, threatening, harassing and otherwise intimidating employees who would not go along.
According to the suit, the harassment included “phone calls at work and at home as well as face-to-face meetings with defendant Mr. Guerin. During these confrontations, Mr. Guerin harassed and verbally harangued the employee to sell his stock back to the company post haste. The same employee was lobbied by other agents of the owner and bluntly informed that if he did not sign the stock over Mr. Guerin would find a reason — any reason — to fire him. One employee who initially refused to sell his stock back to the company was informed by defendant Mr. Guerin that he would ‘ruin’ the employee’s life and that the company would ‘write him a check’ and cash him out of the company.”
According to the suit, when Guerin took on ownership of the company, he refused to reveal the cost of the acquisition to employees participating in the ESOP, preventing them from determining the value of their shares.
“All told, the employee-owners were collectively offered $134 dollars a share for the 24,500 minority interest shares comprising 49% of the total number of shares — approximately $3.3 million dollars in total,” according to the suit.
However, according the court document, former owner Bruce Albiston later revealed the terms of the sale, although by then, many of the ESOP participants had already sold back their shares.
“In May or June of 2016, an ESOP participant met with Mr. Albiston,” according to the suit. “During this meeting, Mr. Albiston revealed that he had received 43 million dollars for his 51% share of the company. This was the first time that any of the ESOP participants learned that they may have unwittingly sold their shares back to the company at a steep discount.”
According to the suit, while Guerin insisted that the value of the employees’ stock shares was frozen, the value had actually risen roughly $1,000 a month in the period following Guerin’s acquisition of the company.
The suit claims that Guerin is personally liable to the employees and that he should be required to compensate them for all losses resulting from his “breach of fiduciary duty” and to restore any profits through the use of ESOP assets.
“At a minimum,” according to the suit, “the members of the class are entitled to receive the difference between the amounts paid by Maine Oxy to buy back their shares and the true value of these shares, as established by the sale of the company or otherwise.”
Shortly after the class action suit was filed, the allegations were vigorously denied by the company.
“During Maine Oxy’s 90-year history, our employees have always been our biggest asset and the reason behind our greatest achievements,” Marketing Manager Diana Picavet said at the time. “It is disheartening to learn that these four former employees felt they weren’t treated fairly during their time with the company. We will vigorously defend against this lawsuit and look forward to presenting our facts in court.”
Maine Oxy, founded in 1929, operates 16 locations in Maine, Massachusetts, New Hampshire, Connecticut and Vermont and three in Canada.
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