AUBURN — A group of Maine Oxy Acetylene Supply Co. employees meet the criteria to proceed with a class action suit against the company, a federal judge has ruled. 

The ruling, made Nov. 5, clears the way for more than 100 workers to continue their legal action on claims that the company owner breached the Employee Stock Ownership Plan by misrepresenting the value of stocks. 

The ruling comes 18 months after the suit was first filed and just two months after the federal government filed its own civil action against Maine Oxy based on the same allegations. 

In her ruling, U.S. District Court Judge Nancy Torresen found that employees met federal criteria that governs class actions. Specifically, she found there are an adequate number of workers involved in the suit and that they have a common complaint. 

The judge also found there was no conflict of interest arising from the fact that the suit, originally filed in April 2019, involves current and former employees.  

Additionally, lawyers representing the company had argued that attorneys representing the workers “lack the experience to adequately represent the proposed class.” Judge Torresen found that claim invalid, as well. 

The U.S. Department of Labor filed its action in U.S. District Court in Portland in September, 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. 

According to the suits, after he assumed ownership of the company in 2013, Guerin told the Employee Stock Ownership Plan committee that Maine Oxy could no longer afford the plan and the Employee Stock Ownership Plan 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 Employee Stock Ownership Plan, preventing them from determining the value of their shares.  

“All told, the employee-owners were collectively offered $134 a share for the 24,500 minority interest shares comprising 49% of the total number of shares — approximately $3.3 million 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 Employee Stock Ownership Plan participants had already sold back their shares.  

“In May or June of 2016, an (Employee Stock Ownership Plan) 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 (Employee Stock Ownership Plan) 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 Employee Stock Ownership Plan 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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