Full opinion text
MEMORANDUM OPINION PERRY, District Judge. This matter is before the Court following a bench trial. Plaintiffs were highly compensated executives who have sued their former employer and its owner for ERISA benefits allegedly due them under a phantom stock plan. All three plaintiffs claim that they were discharged in retaliation for exercising their rights under the plan. They seek benefits under the plan based on the “redemption value,” as opposed to the much-lower “book value,” of their phantom shares; two plaintiffs also seek severance pay benefits. Defendants contend that plaintiffs were terminated for various acts of negligence and misconduct and therefore are entitled to no more than book value under the plan. After due consideration of the voluminous record in this case, the Court will enter judgment in favor of plaintiffs on all counts remaining in their second amended complaint. I. Findings of Fact A. The Parties Plaintiff Charles Emmenegger (“Emme-negger”) is the former President and Chief Executive Officer of defendant Bull Moose Tube Company (“BMT”). Emmenegger served in this position from 1985 until his termination in the spring of 1996. He joined BMT in 1974. Plaintiff Robert Ritzie (“Rit-zie”) served as the vice president of finance for BMT from 1987 until his termination in the spring of 1996. Ritzie joined BMT in 1981. Plaintiff James Riley (“Riley”) joined BMT in the late 1970’s. In his last position with BMT, he served as the company's vice president of marketing development. In December 1994, Riley became vice president of operations of Caparo Steel Company (“Capa-ro Steel”). Defendant BMT, a Missouri corporation, is a steel tube manufacturer with plants in Trenton, Georgia, Gerald, Missouri, and Chicago, Illinois. Defendant Caparo, Inc., a Delaware corporation, purchased BMT in 1988. Defendant Bull Moose Tube, Ltd. (“BMT, Ltd.”), formerly known as Barton Tube, is a Canadian corporation and an affiliate of BMT. BMT, Ltd., and Caparo, Inc., are owned by Caparo Industries, Pic (“Caparo Industries”), a British corporation. Caparo Industries is a conglomerate consisting of more than a dozen companies that employ close to four thousand people worldwide; its annual revenues exceed nine hundred million dollars. Itself a subsidiary, Ca-paro Industries is owned by Caparo Group, Ltd., a family trust. The beneficiaries of the trust are Lord Swraj Paul of Marylebone (“Paul”), a defendant here, and his family. Paul is the chairman of Caparo Group, Ltd. A native of India, Paul currently resides in London, England. Paul, who has described himself as having been “born above a steel mill,” attended the Massachusetts Institute of Technology before returning to India to participate in his family’s steel business. Ambar Paul and Akash Paul, two of Paul’s sons, have been joint chief executive officers of Caparo Industries since 1993. A third son, Angad Paul, is also active in the family’s businesses. B. Inception of the Phantom Stock Plan (“PSP”) Prior to its acquisition by Caparo, Inc., BMT was a wholly-owned subsidiary of National Intergroup (“NI”). In 1988, NI decided to sell BMT through an open bidding process. Caparo Industries was the successful high bidder, purchasing BMT for approximately thirty-nine million dollars. Sometime before the sale’s closing, Paul learned that BMT’s senior management (plaintiffs and several others) wanted an equity stake in BMT. Paul complained to NI that he had not been informed of management’s position during the bidding process, and threatened to sue NI. In order to stave off this litigation, NI agreed to reduce the selling price by two million dollars if Paul took action to pacify BMT’s management. The acquisition of BMT by Caparo Industries closed on October 18, 1988. In the months both before and after the closing, BMT’s management and representatives of Caparo Industries attempted to negotiate the terms of a mutually acceptable stock ownership program. The negotiations went on for some time, and were occasionally tempestuous. Although BMT’s managers wanted to acquire actual stock in the company, representatives of Caparo Industries suggested a Phantom Stock Plan (“PSP”) as an alternative to equity participation. Under a PSP, ownership of so-called “phantom” shares is not evidenced by certificates and does not convey an equity interest in the company. However, like actual stock, the value of a phantom share is tied to the company’s performance. After initially rejecting the concept of a PSP, BMT’s managers agreed to its creation, and, on August 30, 1989, the BMT PSP was adopted. The PSP called for the issuance of a total of six hundred phantom shares that, initially, were distributed to seven BMT managers. Emmenegger received 204 shares, and the other six managers (Ritzie, Riley, Claude Burnett, David Lichtfuss, Richard Lind, and John Meyer) each received sixty-six shares. Paul and the seven PSP participants signed the PSP. The purpose of the PSP was to give BMT’s senior managers, the plan’s participants, an incentive to “grow” the company by deferring compensation. The consolidated financial statements of BMT and BMT, Ltd., indicate that after the plan’s adoption, and under the plaintiffs’ management, impressive growth did indeed occur. Between 1989 and 1995, the annual net income of the companies rose from $1,494,000 to $9,396,276, a cumulative increase of 529%. Under the original PSP’s terms, the BMT board served as plan administrator. Section 2.1 of the PSP concerned the operation of that board, and provided: Except as hereinafter provided, the Plan shall be administered by the Board, which may from time to time issue rules, regulations or orders, adopt resolutions and make determinations relating to the Plan, interpret the provisions of the Plan and supervise the administration of the Plan. Subject to the express provisions of the Plan, the Board shall have authority in its discretion to determine the number of Phantom Shares to be awarded to a Participant and the senior managers who will be Participants. All determinations shall be by the affirmative vote of the Board at [a] meeting called for such purpose or reduced to writing and signed by all of the members of the Board. Subject to the Corporation’s by-laws, all decisions made by the Board in the reasonable exercise of its discretion in good faith shall be final, conclusive and binding on all persons, including the Corporation, its stockholders and its officers. C. Adoption of the Revised Phantom Stock Plan On February 21, 1991, a revised PSP was adopted. Under the terms of the revised PSP, the board administering the plan changed from the BMT board to the board of Caparo, Inc. In its definitions section, the revised PSP states, “The term ‘Board’ means the Board of Directors of Caparo, Inc., a Delaware corporation.” During 1994 and continuing until early 1996, Paul, Emmeneg-ger, and Ritzie constituted the only members of the Caparo, Inc., board. Section 2.1 in the original PSP and Section 2.1 in the revised PSP are the same, with the exception that in the revised PSP, the word “Corporation” is pluralized throughout. Section 2.1 of the revised PSP stated that all determinations concerning the plan “shall be by the affirmative vote of the Board at [a] meeting called for such purpose or reduced to writing and signed by all of the members of the Board.” Paul testified at trial that despite the existence of § 2.1, he believed that Caparo Industries, and not the Caparo, Inc., board, was responsible for running the plan. Paul exercises complete control over both Caparo Industries and the Caparo Group, Ltd. D. Valuation of Phantom Stock Both the original and revised PSPs contemplated two possible calculations for valuing phantom stock: book value or redemption value. Book value of a phantom share was established by dividing the value of BMT’s assets by the number of shares of BMT common stock outstanding as of the date of the calculation. Redemption value of a phantom share was determined by a formula involving a multiple of adjusted net after-tax corporate earnings. A participant could redeem a vested share and receive either book value or redemption value at any time. Under § 8.1, an employee who was terminated “without cause” or by retirement, death, or disability, was entitled to redemption value. Anyone terminated for reasons other than those in § 8.1 would get only book value. Under the definitions section of the PSP, termination without cause means termination for reasons other than: (i)willful or gross misconduct or willful or gross negligence of Ms duties for the Corporations, (ii) intentional or habitual neglect of his duties for the Corporations or (iii) theft or misappropriation of the Corporations’ funds or the commission of a felony ... As noted above, the revised PSP defined “Corporations” to mean BMT and BMT Tube Ltd. E. Stock Sell-backs and Membership Changes Under the Revised Phantom Stock Plan Under section 5.2 of the revised PSP, original participants in the plan could sell back to Caparo, Inc., up to ten percent of their initial shares of phantom stock, wMeh would then be redistributed to new participants in the plan. Section 5.2 further provided that the price of these redistributed shares would be annually determined by the original plan participants subject to Board approval. The PSP shareholders met in November 1990. Anticipating the adoption of the revised PSP, and pursuant to § 5.02 of that plan, the participants decided to propose selling back a total of twelve shares to the company, and adding three new participants to whom the twelve shares would then be redistributed. Under the proposal, Emme-negger was to sell back 4.02 shares, and the other six original participants were to each sell back 1.33 shares, at a price of $5,000 per share. In February 1991, at the same time that the Caparo, Inc., board approved the revised PSP, it also approved adding the three new participants to the plan. At the November 25, 1991 annual meeting of the PSP shareholders, the participants decided to sell back to Caparo, Inc., an additional twenty-seven shares (again at $5,000 per share), and then to immediately redistribute those shares to non-original participants. The participants also voted to add another participant to the PSP. The Caparo, Inc., board agreed to the redistribution and the new participant at a February 1992, meeting, which was memorialized in a March 11, 1992, memorandum headed “Minutes to the Board of Caparo, Inc.” In January 1992, Emmenegger terminated two of the original participants, Lind and Burnett, from their employment at BMT for performance reasons. After they threatened to take legal action against BMT, BMT made lump sum settlement payments to them. However, Lind and Burnett did not receive any payment for their fully vested 123.42 phantom shares (“Lind/Burnett shares”), which were returned to the plan. On November 23, 1992, the PSP’s participants held their annual meeting. Ritzie prepared the minutes of the meeting, wMch are dated January 11, 1993. According to those minutes, the attendees at the meeting agreed to propose the following: (1) That two new participants be added to the PSP. (2) That the remaming five original- participants sell back a total of twenty-one shares (9.16 from Emmenegger and 2.96 each from the other four remaining original participants) to the company, again at $5,000 per share. (3) That those twenty-one shares then be redistributed to the six new participants. (4) That twenty-one of the Lind/Burnett shares be redistributed to the original participants to nullify the effect of the sale described in (2) above on their respective share holdings. (5) That 30.42 of the Lind/Burnett shares be redistributed to the original participants in order to return them to the same number of shares that they had at the plan’s commencement. (6) That thirty-two of the Lind/Bumett shares be redistributed to the new participants. In January 1993, the Caparo, Inc., board met and approved a “distribution of shares” reflecting the six above-described proposals. However, the board’s approval was not formally documented until January or February 1994, when “Amendment # 1” was signed by Paul and all of the plan’s current and added participants. The Court finds the above history relevant and significant for several reasons. First, it indicates that Paul was well aware — or should have been well aware — that redistribution of phantom shares was a common and ongoing practice (the issue of redistribution, as explained more fully below, later became a critical bone of contention between the parties). Second, it reveals the rather casual manner in which the PSP operated, as exemplified by the lengthy delay between the adoption of the proposals that became Amendment # 1 and the actual signing of that document. Third, it indicates that the Caparo, Inc., board both could, and did, take actions pursuant to § 2.1 of the PSP, which were arguably inconsistent with other of the plan’s provisions. This third point is illustrated by the Board’s decision to permit redistribution of the Lind/Burnett shares. Under § 8.2 of the revised PSP, a participant’s departure from BMT prior to the vesting of his shares results in the forfeiture of those shares. The section further provides that forfeited shares “shall be available for award to other Participants.” The negative implication apparent in that phrase is that a terminated employee’s vested shares cannot be forfeited. (Indeed, the word “vest” might reasonably be read to mandate such an interpretation.) The Caparo, Inc., board, including Paul, nevertheless deemed the Lind/Burnett shares forfeited, and allowed them to be reissued. F. The Lichtfuss Shares On January 3, 1994, Lichtfuss, one of the original PSP participants, submitted his resignation and simultaneously submitted a request to redeem his phantom shares (“the Lichtfuss shares”). With Lichtfuss’s resignation, a question arose whether Lichtfuss was entitled to receive book value or redemption value for those shares. As set forth above, under the terms. of § 8.1 of the plan, a fully vested BMT employee who is terminated without cause “shall” be paid the redemption value of any vested phantom shares that he owns. Section 8.2 of the plan provides that if a participant’s employment ceases for reasons other than those set forth in § 8.1, then that participant “shall” receive the book value of his vested phantom shares. BMT obtained a legal opinion that payment of book value to Lichtfuss was all that was required by the PSP’s terms. The Caparo, Inc., board met on April 25, 1994, to consider issues relating to the plan, including the valuation of the Lichtfuss shares. Paul, Emmenegger, and Ritzie, who then constituted the board, attended this meeting. The board determined that Licht-fuss was entitled to book value, or a total of $48,444 ($734 per share multiplied by sixty-six shares). Emmenegger and Ritzie proposed to. Paul that the Lichtfuss shares be redistributed to certain plan participants, including themselves and Riley, and that two new participants, Terry Rowles and Steve Birk, be added. Under the proposal, Emme-negger would receive six shares and Ritzie and Riley nine shares each. From the record in this case, it is absolutely clear that the involvement of Emmenegger and Ritzie in the Lichtfuss redistribution was the driving force behind their dismissals. Paul has consistently maintained that he did not approve the Lichtfuss redistribution, and claims that he considered the redistribution to have been only a suggestion. Emmeneg-ger and Ritzie testified to the contrary. The Court finds plaintiffs’ testimony in this regard to be credible, and Paul’s not so. A significant amount of circumstantial evidence supports the Court’s credibility determination. First, although the redistribution was not memorialized in writing, Paul admittedly received a shareholder worksheet detailing, the redistribution. At his deposition Paul claimed the subject of redistribution of the Lichtfuss shares “never came up” at the April 25 meeting, but at trial he admitted receiving the handwritten worksheet regarding the redistribution. Paul’s handwriting appears on the worksheet and it was found in the London files. Second, informal minutes taken by Ritzie during this meeting state that the redistribution was approved. Third, given Paul’s belief that the Caparo, Inc., board was not responsible for operating the plan, it is conceivable that Paul assented to the redistribution believing that he was merely endorsing a proposal that he would later have time to reconsider. Fourth, assuming Paul did realize that he was formally approving the redistribution, he probably thought little of it. At trial, Paul at least three times described the redistribution as a situation in which “more than a million dollars” was “being gifted away.” However, in April 1994, the sixty-six Lichtfuss shares were worth nowhere near that amount: they had a total redemption value of $95,556. A man of Paul’s substantial means may well have perceived that sum (to be distributed among seven top managers at one of his more than a dozen companies) to be relatively insignificant. Fifth, following the meeting, participants were informed of their additional shares and were issued certificates of entitlement. The two newly-added participants testified that they each received an individualized PSP statement from Ritzie. If Emmenegger and Ritzie really did not believe that Paul had agreed to the redistribution, issuing those statements would have been a totally irrational act. All the evidence at trial showed that although Emme-negger and Ritzie had the technical power to outvote Paul on the Caparo, Inc. board, they never even considered doing so on any issue, an entirely reasonable approach given that Paul owned the company. Finally, at trial, the Court had an opportunity to observe — at length — the three key parties, Paul, Emmenegger, and Ritzie, testify on the stand. The Court credits the testimony of the two plaintiffs not only because of its content but also because of the lucid and believable manner in which it was presented. While Ritzie’s and Emmenegger’s testimony was not always perfectly consistent, and did not always provide a precise or pat explanation for every document produced in evidence, these minor discrepancies are indicia of persons testifying honestly, and not attempting to embellish the facts in their favor. Paul’s testimony, in contrast, revealed him to be a man with little time for details and given to making snap judgments, whose testimony frequently changed with the context, when challenged on cross-examination, or to fit his current explanation of the events. For example, with regard to the PSP itself, Paul stated, “[I] do not understand the plan. I did not ever read the plan .At another point in his testimony, he admitted to reading the plan, but not in detail, and stated that somebody “must have done a full note to me ... [of] the main salient points and explained it to me.” At one point he claimed that in the negotiations leading up to the adoption of the PSP he simply relied on his attorneys at Wilkie Farr, but later claimed his negotiating position was hampered because he mistakenly relied on Emmenegger’s opinion about corporate law, rather than consulting Wilkie Farr on an important issue. Although he claims to have been born in a steel mill and brought up in the business, on cross-examination he denied having expertise in the steel making industry. On cross-examination, he stated that he did not know if he had the authority to terminate any of his employees, although at his deposition he testified that, as to the board of directors at BMT, “... I was the board. I was the shareholder. So if the board disagreed with me, ..., they will have to listen to me.” He also testified that, “... without my approval in Bull Moose, no decision will be taken.” At trial, Paul admitted telling some of the employees (in 1996) that he considered the Lichtfuss share redistribution to be “stolen property,” but at his deposition he flatly denied ever likening the transaction to “someone dealing in stolen property.” His testimony was most inconsistent when he described his management style: on the one hand, when details did not support defendants’ theories, he claimed he couldn’t be bothered with details, that he hired good people, delegated authority, and relied on his subordinates; on the other hand, he criticized Emmenegger for not obtaining his approval for extremely minor transactions, and claimed that even minor decisions could not be made without his express approval. Given Paul’s inconsistent testimony and professed inattention to detail, the Court finds it easy to believe that he did in fact approve the Lichtfuss redistribution in April 1994, and the Court so finds. Also at the April 25, 1994, meeting, Paul asked Emmenegger and Ritzie to develop proposals for improvements in the PSP. Paul asked John Smith and Colin Steel, both finance directors at Caparo Industries who were based in England, to review Emmeneg-ger’s and Ritzie’s proposals for changing the PSP. During the first quarter of 1995, Steele and Ritzie corresponded a number of times regarding the PSP. Steele testified that at that time, he was unaware that the Lichtfuss shares had been redistributed, even though he admitted receiving, in December 1994, a copy of the shareholder worksheet that had been given to Paul at the April 1994 meeting. (Steele stated that at the time he received the worksheet, he thought it of little significance, and quickly forgot about it.) While Steele was a credible witness, and his memoranda to Ritzie tend to support his testimony that he was ignorant of the Licht-fuss redistribution, the Court finds nothing untoward in the fact that Ritzie did not correct Steele’s misapprehension. Just as Steele testified that he did not recognize the significance of the shareholder worksheet, and never inquired of Ritzie as to its meaning, Ritzie testified he mistakenly believed that following the April 1994 redistribution, some Lichtfuss shares remained which had not been redistributed. As a result, Ritzie believed that Steele’s references to the Licht-fuss shares pertained only to those shares that (according to Ritzie’s erroneous belief) were still available for re-issuance. Ritzie viewed Steele’s main concern to be not one of re-issuance, but rather one of valuation, i.e., determining the basis to be assigned to redeemed shares that were to be re-issued in the future. Ritzie stated that he viewed re-issuance as a non-issue because he knew that redeemed shares could, in fact, be re-issued — as the Caparo, Inc., board had done at its April 1994, meeting. Ritzie made no secret of that view. For example, throughout his tenure as BMT’s vice president of finance, Ritzie made “full provision” for all 600 PSP shares on BMT’s books, including those that had been sold back to the plan. In other words, he always treated redeemed shares as a future liability of BMT. And, in a February 28, 1994, memorandum to Smith, hé and Emmenegger wrote, “If [the Licht-fuss] shares are determined to be worth $733.69 per share [i.e., book value], then that value will be deducted from all future pay outs of the shares when awarded and redeemed.” (Emphasis added.) After viewing Ritzie’s demeanor on the stand and considering the content of his testimony and the evidence as a whole, the Court finds that Ritzie’s failure to inform Steele of the Lichtfuss redistribution was the result of nothing other than an unfortunate, but innocent, miscommunication on the part of both parties. Certainly, the record does not support defendants’ contention that Rit-zie tried to hide the Lichtfuss transaction from Steele. Indeed, since the redistribution involved a number of individuals other than plaintiffs, it would have made no sense for Ritzie to have done so. G. Caparo Steel Company Sometime in 1992, Paul told Emmenegger that he was interested in entering the steel-making business in the United States. In April 1994, Emmenegger and Paul visited the Sharon Steel Company in Farrell, Pennsylvania. Sharon Steel was in bankruptcy; its steel works, consisting of approximately 180 buildings and roughly 400 acres of land, had been out of commission for over two years. Much of its equipment dated back to the 1960’s. In October 1994, the bankruptcy court authorized an auction of Sharon Steel’s assets. Caparo Industries made the high bid of $26 million, to purchase the existing plant and equipment on an “as is” basis. The transaction closed on December 2, 1994. The parties had initially projected an early October closing. A new company, Caparo Steel Company, was established to start up and operate the Farrell facility. On December 2, 1994, the day that Caparo Steel came into existence, the entire eompa-ny consisted of only Emmenegger, Ritzie, Riley, and Richard Klein, another BMT executive. Emmenegger became Caparo Steel’s president and chief executive officer, and also retained those positions at BMT. Ritzie became Caparo Steel’s vice president and chief financial officer, and also kept his position as BMT’s vice president of finance. Klein became Caparo Steel’s vice president of administration. Emmenegger, Ritzie, and Klein continued to live in the St. Louis area, but began visiting Farrell on a regular basis. Emmenegger asked Riley to leave BMT to become Caparo Steel’s vice president and chief financial officer. Riley agreed, and formally started working as a Caparo Steel employee on January 1, 1995. With Paul’s knowledge and consent, Riley was permitted to remain a participant in the BMT PSP through January 1,1996. Despite the two-month delay in the acquisition of Caparo Steel, Emmenegger and the others determined to meet their previously-announced goal of making the facility operational by April 1995. Emmenegger hired CMR Construction Company (“CMR”), a St. Louis-based contractor, to serve as general contractor during the start-up of Caparo Steel. BMT had used CMR in the past for several different projects. In addition, Em-menegger had for three years served on CMR’s board of advisors. No formal contract between Caparo Steel and CMR was ever signed. Once Caparo Steel became operational, Caparo Steel retained CMRI to act as maintenance contractor for the facility at a monthly rate. CMRI was a joint venture involving CMR and several of the larger subcontractors that worked on the Caparo Steel start-up. Caparo Steel’s management believed that using a maintenance contractor was cost-effective because it lowered the company’s fixed costs (i.e., it reduced the number of hourly or salaried personnel that Caparo Steel would otherwise have been required to hire). In October 1995, CMRI sent Emmenegger a proposal for an agreement. However, during a November 1995, visit to Caparo Steel, Paul forbade Caparo Steel’s management from entering into that agreement. Thus, during the relevant time period, no contract governed the relationship between Caparo Steel and CMRI. Caparo Steel met its goal of beginning production in April 1995. The company’s start-up costs, however, were higher than originally estimated, totaling over $24 million. On June 8, 1995, Caparo Steel held an open house to celebrate the facility’s re-opening. In a speech that day, Paul effusively praised the work of Emmenegger and Riley, and presented them with engraved watches. Paul stated, “It is difficult to single out colleagues, but I must mention the exceptional contribution of our American team and the leadership of Chuck Emmenegger, President of Caparo USA. I would especially like to mention our Vice President of Operations, Jim Riley, whose outstanding performance in getting the mill up and running in so short a time is a splendid example.” Paul further stated that the Caparo Group’s total investment in Caparo Steel would reach $150 million over the next three years. Caparo Steel began losing significant amounts of money almost immediately. These losses were due, in part, to frequent problems that it was experiencing with its aging equipment. During visits to the facility in August and November 1995, and again in January 1996, Paul expressed concern regarding the losses. In addition, Paul told Emmenegger that an internal auditor should be hired to perform the auditing of Bull Moose and Caparo Steel. When Ritzie brought the accounting firm of Coopers & Lybrand (“Coopers”) in to make a presentation regarding internal controls, however, Paul walked out of the meeting, declaring it a waste of time. Paul also told Emmenegger that Caparo Steel needed more managers who were permanently on-site. In response to Paul’s concerns, Emmenegger hired Anthony Kurley as president and chief operating officer of Caparo Steel in December 1995. On January 2, 1996, Kurley announced that Riley would continue as Caparo Steel’s vice president of operations. Paul questioned the role that CMR was playing in Caparo Steel, voicing concern that CMR might be exploiting its relationship with Emmenegger. After rejecting the Coopers’ suggestions on internal, controls, Paul asked Coopers to investigate CMR and CMRI’s role in Caparo Steel. Coopers then prepared several reports on Caparo Steel. None of the reports satisfied both Paul and Emmenegger, and Coopers revised the reports several times. On December 12, 1995, Coopers sent Paul an assessment report addressing two questions: (1) “What is behind your large maintenance demands and expenditures?” and (2) “Is CMRI a viable supplier?” With respect to the first question, Coopers found that Caparo Steel’s high maintenance costs had numerous causes, including: the age and condition of the physical assets, an experience curve associated with the performance of maintenance, inadequate maintenance planning, and past operating practices. The report also found that the company’s maintenance structure was fragmented, that procedures for using outside contractors were unclear, and that maintenance support systems were lacking. However, Coopers stated that CMRI had done “quality work,” had “made an investment,” and had “demonstrated a commitment to serving Caparo.” The report went on to explain, “The reason why so much of your maintenance dollar has gone to them ... is that your people have been eager to use them and they have been too opportunistic to offer ways of controlling these costs. These are not reasons to terminate the relationship but, instead, to insert controls and formality into your business arrangement.” Paul was dissatisfied with the December 12, Coopers report, and asked Coopers to obtain additional information regarding costs associated with the work performed or coordinated by CMR and CMRI during the start-up phase and continued operation of Caparo Steel. On February 14,1996, Coopers sent another draft report to Paul reviewing the costs associated with the work performed and coordinated by CMR and CMRI. The report indicated that Caparo Steel could have realized $222,000 in savings by contracting directly with the five largest subcontractors, rather than using CMRI as an intermediary. In addition, it found that CMRI was charging its 7% management fee on its fixed costs, which was contrary to Coopers’ “understanding” of the parties’ unwritten agreement. That discrepancy amounted to $53, 000. Coopers also identified another $538,000 in costs that it believed had not been allocated to specific projects. It referred to these as potential “savings,” but the evidence showed these costs were, at most, allocated improperly on the books. Emmenegger objected that this report failed to take into account the savings that Caparo Steel was experiencing by not dealing directly with the subcontractors. On February 28, 1996, Coopers issued yet another revised draft of its report on the situation at Caparo Steel. At Emmenegger’s suggestion, Coopers divided this draft into three segments: the start-up stage, the initial production stage, and the production enhancement stage. Regarding the last stage, Coopers stated, “Caparo Management has instituted a number of initiatives aimed at removing some of the improper elements of the CMRI business relationship such as ... eliminating the 7% markup on fixed overhead costs and rental equipment.” Coopers further noted that management had demonstrated “a more proactive approach in dealing with CMRI”' after the start up phase. Coopers concluded, “We believe outsourcing to a general contractor continues to make sense and, considering the controls now in place, and with the modifications management is contemplating, it is reasonable to stay with CMRI.” Paul objected to this report, and asked for revisions which he directed not be sent to Emmenegger. In response to this latest directive from Paul, Coopers sent a letter, dated March 8, 1996, to Paul explaining that “approximately $7 million” of the $30 million that Caparo Steel expended to complete its start-up and maintenance phases “represented unanticipated costs.” Of this $7 million, Coopers reported that $710,000 related to charges by CMR or CMRI. According to Coopers, the remaining $6 million plus was due to unexpected problems in the mill, low productivity, and operating practices in the melt shop. Coopers noted, “Variances such as these are not inconsistent in a mill startup, especially one that stood idle for so long.” In his trial testimony, Paul stated that this letter formed the basis of his belief that CMR and CMRI had “raped” him of two million dollars. Defendants cite the failures of Caparo Steel as an additional reason (that is, additional to the controversy surrounding the Liehtfuss share reissuance) for dismissing plaintiffs, refusing to give severance pay to Emmenegger and Ritzie, and denying plaintiffs the redemption value of their phantom shares. Defendants’ explanation does not withstand scrutiny. Long after plaintiffs’ departure from Farrell, Caparo Steel’s woes persisted (and, apparently, continue to persist). In the months following plaintiffs’ terminations, Caparo Steel continued to lose substantial amounts of money. For each month from July 1996 to February 1997 it lost an average of almost two million dollars per month. Caparo Steel never implemented the $100 million capital improvement plan to which Paul committed in June 1995. Instead, it shut down its two electric are furnaces, its blooming mill, its ingot facility, and its hot strip mill. It has laid off ninety of its three hundred and twenty employees. The February 1997 audit report of Caparo Steel’s financial statements for 1995 and 1996 contained a “going concern” qualification, which stated: “The Company has incurred significant recurring losses from operations and has required additional financing from its parent company which raises substantial doubt about the Company’s ability to continue as a going concern.” In sum, the record indicates conclusively that the bulk of the responsibility for Caparo Steel’s troubles cannot fairly be laid at plaintiffs’ collective doorstep. While it is true that Caparo Steel’s controls could have been stronger during the initial months that the company operated, and that CMRI was responsible for certain overcharges (albeit not approaching the scale that Paul believed), even the several Coopers reports show nothing more than, in hindsight, some poor management decisions. Certainly, they reveal no actual wrongdoing on the part of plaintiffs, and nothing that could even be characterized as negligence. Caparo Industries, at Paul’s direction, bought a bankrupt, decades old steel mill that had been out of operation for two years, and, again at Paul’s direction, failed to invest sufficient capital to bring it up to standards; it is now reaping the whirlwind its own actions sowed. H. Plaintiffs’ Final Months at Bull Moose I. Controversy Surrounding the Phantom Stock Plan (“PSP”) Despite the fact that the PSP’s participants submitted various proposals for revising the plan to Paul in late 1994, no action was taken to revise the plan in 1995. At the time Paul indicated to the participants that he was interested in revamping the plan; at trial he characterized this effort as a “useless exercise.” The participants began to grow anxious. Although the redemption price of vested shares was expected to be (and in fact was) at an all-time high in 1996, Paul was proposing to withdraw cash from BMT in order to cover Caparo Steel’s losses. The participants believed that such a withdrawal would stunt BMT’s ability to grow and thus adversely affect the value of their phantom shares. Accordingly, they wanted any such withdrawal to be in the form of a dividend'— rather than a loan — and they wanted to restore the original wording of § 1.6 of the PSP prior to the 1991 amendment. On December 28, 1995, the PSP’s participants held a meeting, and determined that they would redeem their shares en masse unless the plan was revised to include an expanded growth provision, retention of shares, and a four-year payout of current value. Jim Riley, of course, had to redeem his shares as of January 1, 1996, under the agreement he reached with BMT when he moved to Caparo Steel. The decision of the remaining participants was communicated to Paul at a January 22, 1996, meeting of the Caparo, Inc., board. At the January 22, 1996, board meeting, various issues relating to the PSP, including the Liehtfuss share redistribution, were discussed. Paul claimed that he had never approved the redistribution. In addition, Paul made a thinly veiled threat to fire any plan participant who attempted to redeem all of his phantom shares. Emmenegger’s contemporaneous notes of the meeting state, “Anyone cashing in — [Paul] said it’s our right but he would then decide if he wants them working for him.” Minutes of the meeting reveal that Paul stated that he would “question the commitment” of any shareholder who redeemed all of his shares in 1996. At his deposition, Paul flatly denied, three times, ever having made this comment or saying any words to that effect. At trial, however, on direct examination Paul readily admitted having said that if the managers cashed in all their PSP shares he “would really be interested to know what is their commitment to the company.” He explained that he was merely expressing his concern that any manager who cashed in all his shares would be indicating a lack of faith in the company and therefore should not be part of management. When confronted with his clearly inconsistent deposition testimony, he claimed that the questions were not sufficiently precise. Paul also acknowledged at the meeting that the plan was obligated to fulfill the redemption request that Riley had filed on January 1, 1996. Paul testified at trial that he felt the shareholders were attempting to threaten him by their statement that they would engage in an en masse redemption unless action was taken to revise the plan, although he contended he was not susceptible to such a threat because the amount of money involved was inconsequential. He also testified that he felt that Em-menegger was “blackmailing” him, and was acting as a “shop steward” rather than as president of the company. In the weeks following the January 22, 1996, meeting, Emmenegger and Paul exchanged several letters concerning the disputes. Each expressed concerns that the other was insufficiently interested in growing the company. On March 1, 1996, BMT and the phantom shareholders entered into a “standstill agreement” to run through March 20, 1996. Under the agreement, the parties agreed to meet to negotiate their differences over the plan. The standstill agreement farther provided that during the period that it remained in effect, “no firings nor disciplines will take place, and no extraordinary transactions will be initiated by any Party concerning the other.” On March 6,1996, the PSP’s participants sent a memorandum to Paul and Am-bar Paul raising thirteen issues about the plan. In the memorandum, the participants stated their position that the Liehtfuss share redistribution of April 1994 “must be confirmed.” Pursuant to the March 1, standstill agreement, meetings were held on March 18-20, 1996. Steele, Smith, and a Coopers partner represented BMT, while Vince Canby, Ritzie, and a KPMG Peat Marwick partner represented the shareholders. BMT’s representatives proposed a deal which required the participants to acknowledge that the Licht-fuss share redistribution never occurred. As part of the deal, the company sought to have the participants sign a release absolving the company of any legal liability for the Licht-fuss redistribution or the dispute over it. However, it would not agree to a similar release for the participants. Steele testified that the company refused to agree to a mutual release because it “didn’t want to prejudice any rights [it] m[ight] have against Mr. Em-menegger and Mr. Ritzie for having done the deed in the first place.” Given the company’s stance on the release issue, William Buckley, the attorney for the PSP’s participants, advised the participants against agreeing to the deal, and it thereafter fell apart. 2. Plaintiffs’ Termination On March 12, 1996, Paul advised Emme-negger and Ritzie that they were being relieved of their duties at Caparo Steel and Caparo, Inc. Also on March 12, Emmeneg-ger submitted a redemption request to BMT stating that he wished to redeem his 204 original phantom shares. He further stated that he was not redeeming his “remaining 6 [Lichtfuss] shares ... at this time.” On June 6, 1996, Emmenegger submitted a redemption request for those six shares. On March 21, 1996, the day after the standstill agreement expired, Paul sent a memorandum to all BMT employees announcing that Emmenegger was being terminated and Ritzie suspended, and naming Ambar Paul the new chairman and chief executive officer of BMT. Also on March 21, Caparo, Inc.’s board was reconstituted. Em-menegger and Ritzie were removed as directors, and a new board consisting of Am-bar and Akash Paul, Smith, and Steele was installed. Ambar Paul met with Ritzie on March 21, 1996, to advise him of his suspension. In a letter dated that same day, Ambar Paul wrote Ritzie advising him that he was suspended “to and including April 17, 1996.” Ambar Paul further stated, “it is my opinion, based upon the circumstances, that your conduct as a director and officer, with reference to the [PSP], including but not limited to the issue of the so called ‘Lichtfuss Shares’, created the appearance of impropriety.” Ambar Paul also stated his understanding that Rit-zie would submit “an acceptable letter of apology.” Ritzie duly submitted a letter of apology on April 14, 1996, but this letter was not acceptable because it did not acknowledge wrongdoing with regard to the Licht-fuss redistribution. On April 24, 1996, Smith sent a memorandum to Paul and Ambar Paul recommending that Ritzie be dismissed. In listing “the critical issues to take into account” in determining whether dismissal was warranted, Smith first cited Ritzie’s role as “a party to issuing Phantom Shares that were not authorized.” On April 30, 1996, the directors of Caparo, Inc. (Paul, Ambar Paul, Akash Paul, Angad Paul, John Smith, and Colin Steele) met by telephone and passed a resolution removing Ritzie from all of his positions at BMT “for reason [sic] other than those set out in Section 8.1 of the Bull Moose Tube Company Phantom Stock Agreement, as amended.” Ritzie submitted a redemption request for his PSP shares on May 1, 1996. On March 15, 1996, three days after firing Emmenegger and Ritzie from Caparo, Inc., and Caparo Steel, Paul dismissed Riley from Caparo Steel. Because of the standstill agreement, Caparo Steel paid Riley through March 21,1996. Although Paul testified that he fired Riley for “performance reasons,” Caparo Steel nevertheless paid him twelve weeks of severance pay. The Caparo Steel severance policy provided that the company would provide severance pay “to employees who are terminated for reasons other than disciplinary and who have given the Company excellent service during their employment at Caparo Steel.” As already mentioned, Riley had submitted a redemption request on January 1, 1996. The request included his original shares and his “reassigned” shares. Although the PSP defines the term “Payment Date” to mean “sixty (60) days after any event requiring payment,” (or March 2, 1996, in Riley’s case) BMT has never paid Riley for any of his phantom shares. The record indicates that Riley spoke with Steele on March 14, 1996. Steele told Riley that he was entitled to the redemption value of his sixty-six undisputed (i.e., non-Lichtfuss) phantom shares. In his trial testimony, Paul stated that “there was no question about [Riley’s] redemption or any argument about it.” Paul testified that Riley had simply not been paid because he was Emmenegger’s crony, and because he filed this suit. 3. Emmenegger and Ritzie’s Service Letters On March 21, 1996, Emmenegger wrote BMT requesting a service letter. In a May 3, 1996, letter drafted by Smith, Paul stated that Emmenegger’s employment was terminated “because of actions and inactions by you which, in the view of the Directors of Caparo Inc. and the Board of Directors of Bull Moose, constituted misconduct and neglect of duties on your part.” Paul then listed the following: (1) failure to obtain review or approval of bonus payments and salary increases to managers of BMT, Capa-ro, Inc., and Caparo Steel, (2) failure to appoint an internal auditor for Caparo, Inc.’s United States operations and to communicate regarding financial matters in a timely and accurate manner, (3) failure to follow proper procedures and to act in BMT’s best interests concerning the PSP, (4) failure to monitor or properly account for disbursements relating to BMT’s 1998 acquisition of the land adjoining its headquarters, and (5) failure to sufficiently control or properly monitor the start-up and operations of Caparo Steel as reflected in Coopers’ reports. Ritzie requested a service letter from BMT on May 1,1996, which Paul provided on June 12. In the letter, Paul stated, Your employment was terminated because of actions and inactions by you which, in the view of the Board of Directors of Capa-ro, Inc. and the Board of Directors of Bull Moose, constituted misconduct and neglect of duties on your part. Examples of such actions and inactions include the following: (1) your failure to implement and enforce adequate controls necessary to the successful financial operation of Caparo, Inc. and Caparo Steel Company; (2) your failure to follow proper procedures and otherwise act in the best interests of Bull Moose in matters relating to Bull Moose’s Phantom Stock Plan; and (3) your failure to properly monitor and report financial matters in regard to the start up and initial operation of Caparo Steel Company which, based on investigations conducted by Coopers & Lybrand, resulted in substantial cost overruns and financial losses. The Court cannot accept at face value the reasons set forth in the service letters sent to Emmenegger and Ritzie. The Court finds that, to a significant extent, the letters represent defendants’ calculated attempt to characterize plaintiffs’ conduct as falling outside § 8.1 of the PSP, and do not reflect the true reasons for the terminations. That characterization is not only inaccurate, it is also contrived. Several examples prove this point. First, the evidence shows that the salaries and bonuses were properly reported each year, in accordance with procedures established when Caparo purchased BMT. Second, as has already been explained, plaintiffs’ stewardship of Caparo Steel, while not beyond reproach, hardly caused the myriad hardships that befell (and continue to befall) Caparo Steel. Third, with respect to the internal auditor issue, Paul himself testified at trial that since Emmenegger’s departure, no one has been formally appointed to serve as internal auditor for Caparo, Inc.’s United States operations. The fourth example, involving the land transaction cited by Paul in his service letter to Emmenegger, requires the Court to go into more detail. In early February 1996, Paul asked Smith to travel to St. Louis to investigate several matters, including the details of a June 1993 transaction in which Bull Moose Tube Holdings (“BMT Holdings”), a corporation set up to manage BMT’s real estate holdings, acquired the land adjoining its headquarters from Charter Oaks. Smith appeared at BMT’s St. Louis office without previously notifying anyone in St. Louis that he was coming, and inspected books and asked questions about the land transaction and other items. The evidence shows that plaintiffs fully cooperated with this surprise inspection from London. In 1991, BMT Holdings purchased the office building where BMT had its headquarters from Clarkson Oaks Partnership for $2.8 million, which was below its appraised value. As part of this deal, BMT Holdings agreed to contract with Chestnut Consulting to provide the building’s management for a five-year period at an annual rate of $36,000. Under this contract, Chestnut agreed to handle all tenant complaints, negotiate contracts with maintenance vendors, and coordinate several improvements to the physical plant. The two principals of Chestnut were Mike and Chuck Rallo, who were also members of Clarkson Oaks, and who are principals of CMR. In December 1992 or January 1993, Paul told Emmenegger that he was interested in investing an additional one to two million dollars in U.S. real estate. In order to avoid paying a real estate commission, Emmeneg-ger negotiated with Chestnut to look for suitable property. He agreed to pay Chestnut a flat fee of $25,000 if BMT Holdings purchased property. After doing some research, Chestnut proposed that BMT Holdings buy a four acre parcel of land adjoining BMT’s headquarters. Charter Oaks owned the parcel, but was having trouble making payments on the unpaid mortgage balance of $970,000. Emme-negger obtained Paul’s approval to spend up to $750,000 for the property, which was below its appraised value and below the asking-price of $1.2 million. BMT Holdings then offered the bank holding the mortgage $700,-000 for the property. The bank rejected the offer, stating that it would be acceptable only if Charter Oaks provided some additional funds of its own. As a result of the bank’s stance, BMT Holdings wrote a $25,000 check to Charter Oaks to pay to the bank. The bank then accepted BMT Holdings’ offer of $700,000. Thus, in June 1993, BMT Holdings acquired the subject property for a total of $750,000 ($700,000 directly to the bank, $25,000 to the bank via Charter Oaks, and $25,000 in the form of Chestnut’s fee). At trial, Paul stated that February 1996 marked the first time that he heard of a $25,000 payment being funneled to the selling bank through Charter Oaks. Be that as it may, there is no evidence that Emmenegger made any attempt to cover up the transaction’s details. Indeed, Smith testified that all three payments appeared properly on the books. Furthermore, there is absolutely no evidence that any of the three plaintiffs obtained a financial benefit from the transaction. The Court believes that Paul’s February 1996 decision to send Smith from London, unannounced, to investigate a $25,000 payment relating to a two-year-old land transaction leads to a reasonable inference that following the January 1996 meeting at which the Lichtfuss share issue exploded, Paul made up his mind to get rid of plaintiffs, and was simply fishing for additional reasons to do so. Such an inference is supported by other instructions that Paul gave to Smith. For example, he asked Smith to look into such trivia as a $400 payment that Emme-negger had made to “Who’s Who of Corporate Executives.” He also asked Smith to examine Emmenegger’s involvement in Dynasty Interiors, a company owned by Emme-negger and his wife, which had on occasion provided goods and services to BMT. With respect to this last item, the record shows that on June 29, 1990, Emmenegger sent Paul a memorandum in which he disclosed that his wife had an ownership interest in Dynasty Interiors, and that BMT had used the company’s services. In his July 9, 1990 response to that memorandum, Paul wrote, “This is not material in this case in view of the small size.” At trial, Smith testified that prior to his February 1996 visit, he “had been aware that Dynasty Interiors was effectively run by Chuck’s wife, and [that] Chuck and his wife owned the business on a 50/50 basis.” He further testified that during his February visit, he examined the type of work that Dynasty had performed and the products and services that it had provided, and “generally concluded that the relationship seemed innocent and okay and everybody seemed to be happy that fair value was being received.” I. Aftermath On May 29, 1996, plaintiffs filed this case. Neither Emmenegger nor Ritzie nor Riley has received payment of either book value or redemption price for any of his phantom shares, including his disputed Liehtfuss shares. The value for a PSP redemption request made in 1996 would have been based on BMT’s 1995 financial statements. The 1996 book value of an originally-issued phantom share was $2,791.34. The 1996 book value of a Liehtfuss share was $2,057.65 ($2,791.34 less the $733.69 book value paid to Liehtfuss at the time of his departure from BMT). The 1996 redemption value for an originally-issued share was $17,232.91. The 1996 redemption value of a Liehtfuss share was $16,-499.72 ($17,232.91 less the $733.69 book value paid to Liehtfuss). Thus, in 1996, Emmeneg-ger’s 204 original phantom shares had a redemption value of $3,515,513.64, and the 66 original phantom shares owned by Ritzie and the 66 original phantom shares owned by Riley had a redemption value of $1,137,-372.06, respectively. With respect to the six Liehtfuss shares claimed by Emmenegger, those had a redemption value of $98,998.32, while the nine Liehtfuss shares claimed by Ritzie and the nine Liehtfuss shares claimed by Riley had a value of $148,497.48. Under the plan, participants entitled to the redemption value (rather than book value) of their shares were also entitled to a “gross up amount per share.” The plan instructs that this gross-up amount is to be determined by multiplying the redemption price per share by a percentage determined as follows: (PARTICIPANT’S FEDERAL INCOME TAX RATE - FEDERAL CAPITAL GAINS TAX RATE) / (100 - PARTICIPANT’S FEDERAL INCOME TAX RATE). For 1996, Emmenegger, Ritzie, and Riley were each subject to a federal income tax rate of 39.6%; the federal capital gains tax rate was 28%. Thus, if the redemption price per share is to be awarded to each plaintiff, it should be multiplied by 19.2053%. Emmeneg-ger would then receive a total of $4,308,-686.18 ($4,190,678.51 for his 204 original shares, and $118,007.67 for his six Liehtfuss shares). Ritzie and Riley would each receive $1,532,819.25 ($1,355,807.75 each for their sixty-six original shares and $177,011.50 each for their nine Liehtfuss shares). Following his departure from BMT, Em-menegger decided that he wanted an opportunity “to own the business.” He therefore rejected an offer from Hanna Steel to become its president. After Ritzie left BMT, he sent out a number of resumes in response to newspaper advertisements and also contacted one or two employment search agencies. His efforts were unsuccessful. In June 1996, Emmenegger contacted Rit-zie and asked him whether he would be interested in joining Emmenegger in starting a steel tube company of their own. They determined to do so. On November 14, 1996, Emmenegger and Ritzie, joined by Riley, started a steel tube company called Ex-ealibur Tubular Company. At Excalibur, Emmenegger draws an annual salary of $175,000, while Ritzie and Riley each earn $125,000. They estimate they will each receive an annual bonus amounting to ten percent of their respective salaries. At trial, Ritzie estimated that it would take plaintiffs five years to achieve the salaries which they enjoyed at BMT. His basis for that estimate was that “five years seemed like a reasonable time.” At the time of his departure from BMT, Emmenegger received a base salary of $250,-000 per year. Ritzie’s annual salary from BMT was $150,000, while Caparo Steel paid $150,000 annually to Riley. In addition, each enjoyed various bonuses, benefits, and perquisites. II. Conclusions of Law A. Plan Benefits In counts II, IV, and VII of their second amended complaint, plaintiffs seek benefits under the BMT PSP, invoking 29 U.S.C. § 1132(a)(1)(B). Specifically, plaintiffs claim that they are entitled to the redemption value of all of their phantom shares, including their Liehtfuss shares. Defendants contend that plaintiffs are entitled to only book value. Defendants argue that because § 2.1 of the plan gives the administering board discretion in making decisions concerning the plan, the Court should review defendants’ decision not to award plaintiffs the redemption price for their phantom shares using an abuse of discretion, rather than a de novo, standard of review. In general, if a benefits plan gives its “administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” a court reviews a decision made by that administrator or fiduciary for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998); Hawkeye Nat’l Life Ins. Co. v. AVIS Indus. Corp., 122 F.3d 490, 496 (8th Cir.1997). Under an abuse of discretion standard, a court will uphold a “reasonable” construction of the plan by the plan’s administrator. Buttram v. Central States, Southeast and Southwest Areas Health & Welfare Fund, 76 F.3d 896, 901 (8th Cir.1996). Five factors govern the reasonableness inquiry: (1) whether the administrator’s interpretation is consistent with the plan’s goals, (2) whether the interpretation renders any plan language meaningless or inconsistent, (3) whether the interpretation conflicts with ERISA’s requirements, (4) whether the administrator has interpreted the words at issue consistently, and (5) whether the interpretation is contrary to the plan’s clear language. Id. However, the abuse of discretion standard is not a constant. Under certain circumstances, a less deferential, “sliding scale” abuse of discretion standard applies. Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir.1998). For example, where the plan administrator labors under a conflict of interest, exercises his powers dishonestly or with an improper motive, or fails to use judgment, the resulting decision may be accorded somewhat heightened scrutiny. Buttram, 76 F.3d at 900. The plaintiff “must show only that the conflict or procedural irregularity had ‘some connection to the substantive decision reached.’” Woo, 144 F.3d at 1160 (quoting Buttram, 76 F.3d at 901). Plaintiffs contend that Firestone’s abuse of discretion standard is inapplicable because the rationale behind that standard is the fact that the plan administrator operates as a fiduciary of the plan’s participants. Plaintiffs point out that the BMT PSP is a “top hat” plan, and that, under ERISA, administrators of “top hat” plans are not held to the same strict fiduciary standards of loyalty and care applicable to ERISA fiduciaries. See Kemmerer v. ICI Americas Inc., 70 F.3d 281, 287 (3d Cir.1995), cert. denied, 517 U.S. 1209, 116 S.Ct. 1826, 134 L.Ed.2d 931 (1996). Plaintiffs further note that § 10 of the PSP explicitly disavows “a trust or other fiduciary relationship of any kind” between the PSP’s administrator (i.e., the Caparo, Inc., board) and the