Browe v. CTC Corp. (331 F. Supp. 3d 263, 2018)

From December 6-8, 2017 and March 5-6, 2018, the court conducted a bench trial. On March 26, 2018, the parties submitted supplemental briefing, at which time the court took the matter under advisement.

Patrick J. Bernal, Esq. and John D. Stasny, Esq. represent Plaintiffs. A. Jay Kenlan, Esq. represents Defendants.

I. Findings of Fact.

Based upon the preponderance of the evidence, the court makes the following findings of fact:

Absence of Relevant Records.

1. The court's ability to make findings of fact in this matter is severely hampered by the destruction of most of CTC's corporate records and by Plaintiffs' failure to retain copies of the documents that they rely on for their claims.

2. In many instances, there is a lack of reliable evidence especially with regard to key issues such as the number of CTC employees; the number of employees to whom the Plan was offered; the number of Plan Participants; and the salary and wages of CTC employees including Plaintiffs.

The Parties.

3. Plaintiff Donna Browe was employed by CTC from its inception until on or about November 12, 2012. Ms. Browe began her work at the company as a "minimum-wage" clerk, and continued working as a "clerk" in CTC's accounting department. She became the manager of CTC's accounting department in approximately 2000. Ms. Browe voluntarily left the employ of CTC on or about November 12, 2012 for a position at Morris Repair Company in Bennington, Vermont.

4. Beverly Burgess was employed by CTC from the time of its formation in 1980 until approximately 2004. She passed away on November 29, 2004.

Plaintiffs Tyler Burgess and Bonnie Jamieson are the children of Ms. Burgess and are the sole beneficiaries of their mother's estate.

5. Plaintiff Philip Jordan was employed by CTC from its inception until on or about October 1986 and again from on or about October 1988 until January 4, 2008. Mr. Jordan worked initially as a salesman and eventually became the sales manager for CTC in or around 1997.

6. Plaintiff Lucille Launderville began her employment with CTC at its inception. She was initially employed in customer service and was eventually promoted to, among other positions, President of CTC, Director, and general manager/Chief Operating Officer ("COO"). She resigned from CTC in 2008 for a position at Plasan Industries.

7. Defendant Bruce Laumeister was CTC's sole shareholder, Chief Executive Officer ("CEO"), and Chairman of the Board of Directors throughout its existence. He was CTC's President from 1979 until 2000 and from 2008 until its dissolution in 2014. He is an experienced business executive with a bachelor's degree in engineering and a master's degree in business administration, as well as an honorary Ph.D. from Southern Vermont College. Prior to forming CTC, he held executive positions in several major companies, supervised over three hundred employees, and managed a multi-million dollar company.

8. Defendant CTC is a dissolved corporation that ceased doing business in 2014.

CTC's History.

9. In approximately 1979, Mr. Laumeister formed CTC, a photo-finishing and processing company, for the purpose of acquiring the assets of Cap Tan, a film developing and photo processing plant and photographic equipment retail store. In addition to acquiring Cap Tan's business assets, CTC hired several Cap Tan employees. When CTC purchased its assets, Cap Tan was generating approximately $800,000 in annual sales and had approximately thirty employees.

10. From approximately 1979 until 2014, CTC operated a retail photo-finishing facility and retail store located on Benmont Avenue in Bennington, Vermont (the "Bennington facility") from which it serviced walk-in and mail-order customers under the tradename "Vermont Color Photo Lab."

11. In addition to its headquarters in Bennington, CTC operated between twenty-three and twenty-six one-hour photo labs in Vermont, Connecticut, Massachusetts, New Hampshire, and New York (the "One-Hour Labs") which were engaged in developing, processing, and printing film as well as operating retail stores selling photographic equipment and supplies.

12. The One-Hour Labs were incorporated in the states in which they conducted business, filed their own tax returns, and paid their employees through three corporations which held separate bank accounts controlled by CTC: VSL Corporation (New Hampshire) ("VSL"), LWB Corporation (Massachusetts) ("LWB"), and BRL Corporation (Vermont and New York) ("BRL").

13. Although Mr. Laumeister testified that the One-Hour Labs were CTC's wholly owned subsidiaries and that the One-Hour Labs' employees should be considered employees of CTC, Defendants have proffered no evidence to support this claim beyond Mr. Laumeister's testimony. LWB was not a wholly owned subsidiary but was instead owned by Mr. Laumeister and Christopher Belknap, a fact which Mr. Laumeister conceded when impeached.

14. To avoid liability after a major accident with one of its route drivers, Mr. Laumeister formed a separate Vermont corporation, ES Services ("ESS") to employ the drivers who serviced the One-Hour Labs and the convenience stores, drugstores, and other customers that offered CTC photo processing. All of the route drivers were employed part-time although some drivers worked up to thirty hours per week. Mr. Laumeister created a chart that indicated that there were eight part-time route drivers. He, however, also testified that they had "at least 15 or 16" route drivers and "16 to 18[,]" all of whom worked part-time. (Doc. 209 at 134.) He and his wife owned ESS's stock.

15. In 1990, CTC acquired an interest in Weybridge Partners, LP ("Weybridge Partners"), a Vermont limited partnership that owned and operated an apartment complex in Middlebury, Vermont. At the time CTC acquired its limited partnership interest in Weybridge Partners, Mr. Laumeister was Weybridge Partners' general partner. The residential housing property owned by Weybridge Partners was a federally subsidized property that generated significant tax losses. Approximately ninety-five percent of those losses were allocated to CTC, allowing CTC to shelter a significant amount of its income from state and federal taxation.

16. Starson Services ("Starson") was a corporation formed prior to CTC and owned by Mr. Laumeister and his wife. Starson acted as the property manager for Weybridge Partners' apartment complex, providing services such as rent assessment and collection, property management and maintenance, and general, administrative, and accounting services. Weybridge Partners paid Starson fees for its property management services. Starson also owned the photo-finishing equipment and other equipment in the Bennington facility and leased it to CTC.

17. The records of both Weybridge Partners and Starson appear to have been destroyed with the CTC records, although the parties did not address this issue directly.

18. Ms. Launderville claims she was never employed by Starson, however, she admits she received a bonus check on at least one occasion from Starson. She testified that the amount in question was approximately $20,000. In contrast, Mr. Laumeister testified that both Mr. Massari and Ms. Launderville received substantial bonuses from Starson, that almost half of their compensation was paid by Starson in certain years, and that they received bonuses in some years of approximately $50,000.

19. In 2009, Weybridge Partners sold its real property, paid its creditors, and dissolved.

20. Between 1980 and around 2000, CTC grew significantly. At its peak operation, CTC's Bennington facility operated three and sometimes four shifts per day, depending on the seasonal volume of the film to be developed and printed. During peak times, CTC and One-Hour Labs employed additional employees, typically on a part-time basis.

Credibility and Reliability of Mr. Laumeister's Testimony.

21. Although at times in his testimony Mr. Laumeister demonstrated an impressive recall of the relevant facts, the court did not find his testimony wholly reliable or credible because Mr. Laumeister issued a number of statements under the penalties of perjury which he now concedes are incorrect. For example:

A. In his declaration dated May 23, 2016 (the "5/23/16 declaration") he averred that: "From 1997 until about 2000, I was the president and chief operating officer of CTC Corporation." (Doc. 195 at 11.) In cross-examination, Mr. Laumeister testified that the date should be "late 1995." Id. This date, however, conflicts with his testimony that he was president of CTC from 1979 until 1996. Id. at 7.

B. In his 5/23/16 declaration, Mr. Laumeister stated that: "In 2000, when I retired to Tucson, Arizona, [Lucille Launderville] was promoted to president of CTC Corporation and made a member of the board of directors[.]" Id. at 12. In his testimony, he admitted that this was incorrect and averred that the correct year was 1996. Id. at 12-13. In his February 24, 2017 deposition he testified: "When she was made president and director, I think that was about 1990. Maybe later. Maybe as late as '95, but there's a record of that. I'm sure I have a copy somewhere." Id. at 16. Elsewhere he stated that he never actually retired.

C. In his 5/23/16 declaration, he averred that Ms. Launderville was CEO of CTC in November 2004. In his testimony, he admitted that that was in error and was a "typo." (Doc. 195 at 26.)

D. In his testimony, he testified that the Mission Management & Trust account was opened while Mr. Massari was still working at CTC. Id. at 53. When confronted with account documentation, he agreed his testimony was incorrect and the account in question was opened in 2003 after Mr. Massari's stroke. Id. at 54.

E. Although he initially testified that both he and Ms. Launderville made the decision regarding how much Mr. Massari should receive in deferred compensation, in his deposition he testified that the decision "probably came down to me." Id. at 56.

F. Mr. Laumeister testified that Ms. Launderville advised Hope Leonard that CTC would cease paying her benefits. Id. at 57 ("Had to be Lucille. I didn't."). However, in a December 31, 2007 letter he authored to Ms. Leonard, he advised her that there would be no further deferred compensation payments.

G. Mr. Laumeister testified that ESS was a wholly owned subsidiary of CTC but acknowledged that in 1995, his wife, Elizabeth Small, owned all outstanding ESS stock. He also inconsistently testified that CTC and Ms. Small owned the shares in ESS.

H. Although Mr. Laumeister testified that in 1997 the gross receipts for CTC were approximately five million dollars, CTC's 1997 corporate income tax return shows gross receipts of $2.78 million. Mr. Laumeister explained that this discrepancy reflects his inclusion of the revenue from Weybridge Partners.

22. For the foregoing reasons and in the absence of corroboration by CTC's business records, the court concludes that Mr. Laumeister's testimony regarding the number of CTC employees and specific employees' compensation is not wholly reliable. Accordingly, all of the facts governing the number of CTC employees and their compensation remain an approximation.

23. In 1997, CTC employees Wayne Massari and Ms. Launderville each received a combined annual compensation with bonuses of approximately $105,000.

24. The hourly employees at CTC's Bennington facility were paid at or slightly above the federal minimum wage.

25. With the exception of the managers of the Keene, New Hampshire and Manchester, Vermont locations, managers of One-Hour Labs were full-time employees who were paid between $18,000 and $19,000 in annual compensation.

26. Because of the size of the stores and the volume of business, the managers of the Keene, New Hampshire and Manchester, Vermont One-Hour Labs were salaried employees who were paid approximately $24,000 per year between 1990 and approximately 2006.

27. The remaining One-Hour Labs employees were paid at or slightly above minimum wage and were generally employed part-time.

28. The federal minimum wage on September 1, 1997 was $5.15 for all covered, non-exempt workers.

The Number of CTC Employees.

29. Defendants assert that CTC employed 196 people at its peak. Mr. Laumeister testified that this number is based on his memory and his consideration of the One-Hour Labs. He did not consult any records in determining this number. He further testified that by 1997 CTC and its affiliates employed "between 150 and 180" employees (Doc. 209 at 120), that, "total employment [was] about 150, including 23 retail stores, with 90 part-time and 20 part-time at CTC Bennington. That's all on the asterisk in 2005" (Doc. 195 at 73), and that total employment was "[s]omewhere around 175 to 185" but "during ... the summer months we actually got up over 200." (Doc. 209 at 137.) In his interrogatory responses dated August 10, 2016, he averred: "To the best of my knowledge, CTC Corporation employed approximately 196 people each year during the years from about 1990 until about 2006 when ... CTC Corporation's business began to decline significantly as a result of the digital photo revolution." (Doc. 195 at 100.) During his deposition, he estimated that "CTC Corporation, at its peak, employed approximately 185 employees." Id. at 101. Julia Case, a former CTC employee, testified that at its peak there were 186 employees but that this number includes VSL, LWB, BRL, and ESS employees.

30. Based upon Mr. Laumeister's review of CTC's tax returns from 2004 to 2006, he opined that CTC's total payroll in 1997 was $623,502. (Doc. 196 at 12.) CTC's corporate income tax return for 1997 shows: $113,230 for compensation of officers; $262,845 for salaries and wages (less employment credits); $623,785 costs of labor; and $31,547 for employee benefit programs. CTC's total payroll in 1997 was therefore $999,860. Mr. Laumeister further testified that in 1997, other than Mr. Massari and Ms. Launderville, there were eleven Plan Participants with an average salary of $27,000, for a total of $297,000, and that each of the One-Hour Labs had a full-time manager who was paid no less than $18,000 per year ($18,000 × 23 = $414,000). Id. at 13. Using the $999,860 total payroll and subtracting the compensation of officers ($113,230), the One-Hour Lab managers ($414,000), and the Plan Participants ($297,000) leaves $175,630 to pay the remaining employees during a year in which he testified he did not "recall that that was ever a problem[ ] ... [with] sufficient cash flow." Id.

31. As a matter of arithmetic, Mr. Laumeister's estimate of the number of CTC employees is unsupported by CTC's 1997 tax return. The remaining payroll of $175,630 would only be sufficient to pay 17.05 additional full-time employees at minimum wage (2,000 hours × $5.15 = $10,300 per employee) or 34.10 part-time employees at minimum wage (1,000 hours × $5.15 = $5,150 per employee). Mr. Laumeister was presented with these calculations and had no explanation for the discrepancy between CTC's 1997 tax return and his estimate of the number of its employees.

32. Ms. Launderville offered an estimate of sixty CTC employees in the late 1990s. Her testimony also reflects a lack of precision.

33. The court finds there is no reliable evidence of the number of CTC employees during much of the company's existence. There is also no reliable record of how many employees worked full-time versus part-time. The best evidence is that CTC had no more than sixty full-time employees in 1997.

Roles and Identities of CTC's Corporate Officers and Directors.

34. Mr. Massari served as CTC's Treasurer, Chief Financial Officer ("CFO"), and a Director until he suffered a stroke in 1999, became disabled, and retired. In his work for CTC, Mr. Massari was a meticulous, detail-oriented, honest, competent, and reliable employee.

35. The parties dispute Ms. Launderville's role in CTC. Mr. Laumeister testified that Ms. Launderville was named a President and Director of CTC and that press releases regarding her assumption of the role of President were disseminated among stakeholders in their industry. He further testified that her status as CTC's President was reflected in CTC's corporate filings with the Vermont Secretary of State. He contends she participated in annual Board of Directors meetings.

36. In contrast, Ms. Launderville testified that she was President "in name only" at CTC, was never a member of the Board of Directors, and never participated in Directors meetings. (Doc. 196 at 247.) The court does not find her testimony on this point credible. Although CTC may not have formally designated its end of the year meetings as meetings of the Board of Directors, there is credible evidence that Ms. Launderville attended and participated in those meetings and played a role in CTC's business decisions. Mr. Massari prepared and disseminated meeting minutes reflecting her attendance and participation and provided a copy of those minutes to Ms. Launderville. Those minutes describe Ms. Launderville as a Director of CTC as of December 16, 1995. In addition, the court found credible the testimony of Ms. Case that Ms. Launderville acted as President of CTC during her employment there from 1999 until Ms. Launderville's resignation.

37. Ms. Launderville has a high school education and was a competent and dedicated CTC employee and corporate officer.

The Plan.

38. In late 1989 to early 1990, CTC decided to offer certain employees a deferred compensation plan. It appears that some form of earlier plan, funded by life insurance purchased by CTC, may have been offered to a few employees, but no copy of this plan was introduced and no witness claims to have seen it. The 1990 and 1997 Plans are thus the only retirement or deferred compensation plans CTC offered to its employees. Plaintiffs concede this point in their Proposed Statement of Undisputed Facts for Trial. (Doc. 164 at 4, ¶ 10.)

39. Mr. Massari drafted the 1990 Plan. Although Mr. Laumeister contends that Mr. Massari did so with the assistance of Massachusetts Mutual Insurance Company ("Mass. Mutual"), he testified inconsistently on this point, claiming Mass. Mutual did not handle "nonqualified plans" which is the type of plan he believes Mr. Massari drafted. Id. at 82. In any event, no evidence was introduced of the type of assistance, if any, Mass. Mutual provided. Similarly, although Mr. Laumeister testified at one point that Peter Holden, Esq. reviewed both the 1990 and 1997 Plans, the court found this testimony uncorroborated and inconsistent with Mr. Laumeister's testimony that Mr. Massari drafted both Plans based on his "knowledge of the tax laws."

40. Mr. Laumeister intended the 1990 Plan to accomplish three objectives. First, to reward CTC's senior managers for the performance and growth of the company. Second, to incentivize CTC's senior managers to remain as employees of CTC until their retirement at age sixty-five or their death or disability while in CTC's employ. And third, to encourage CTC's senior managers to make annual contributions of a minimum of 3% of their salary to their own Individual Retirement Accounts.

41. Mr. Laumeister intended the 1990 Plan to be a nonqualified "top hat" plan that was offered to a select group of management level, highly compensated employees of CTC so that it would satisfy the requirements of ERISA. Defendants' expert witness James Herlihy credibly testified that he advises that such plans be offered only to "a small percentage of the total work force" and "they should be managerial or highly compensated people." (Doc. 196 at 203.) The 1990 Plan does not state that it is a "top hat" plan, does not state it is a "nonqualified plan," and does not refer to ERISA.

42. In relevant part, the 1990 Plan states: "The employer agrees to contribute an amount sufficient to provide a total retirement benefit, including social security, and the participant's personal IRA account, which will approximately equal each participant's salary at the date of this Plan." (Doc. 29-1 at 2, ¶ 5.) The Plan states that CTC's Directors shall be the Plan Administrators. When CTC adopted the 1990 Plan, Mr. Laumeister and Mr. Massari were CTC's only Directors. After Mr. Massari's stroke, Ms. Launderville became a CTC Director.

43. According to Mr. Laumeister, Ms. Launderville and Mr. Massari proposed each of the Plan Participants. This testimony however, was at odds with his further testimony regarding to whom he decided to offer the Plan. Mr. Laumeister testified that in selecting Plan Participants, he examined employees' "job duties and their level of responsibility in accomplishing their job duties and their job descriptions and how that contributed to [CTC's] success in faster turnaround and higher quality." (Doc. 209 at 87.) They needed to be "employees that did not need to be managed or coddled all the time" and "knew what they were supposed to do and how they were going to do it." Id. at 91-92. He also considered "their employment history before [CTC]" and with CTC, "what was their personal life like[,]" where they lived and whether they had "nice homes" and "good families," and whether "their kids [got] in big trouble or themselves." Id. at 95.

44. Ms. Launderville testified that she had no voice and no role in Plan administration. The court did not find this testimony credible. As President, a Director, and the COO of CTC, she had the most knowledge of employee performance and proposed employees for Plan participation on this basis. She also participated in Plan administration and was identified as a Plan Administrator on a cover letter that was disseminated to Plan Participants. (Plaintiffs' Ex. 14.)

45. Mr. Massari's role in Plan administration appeared to be confined to managing the financial aspects of the Plan, attending Board of Directors meetings, and approving Plan Participants. After Mr. Massari left CTC's employ, there is no evidence that the remaining Plan Administrators, Mr. Laumeister and Ms. Launderville, complied with ERISA's reporting and disclosure requirements.

46. To fund the 1990 Plan, CTC established accounts with Mass. Mutual into which CTC deposited funds with which it intended to pay deferred compensation (the "Mass. Mutual accounts"). In addition, 1990 Plan Participants were required to establish and fund their own IRA accounts. No Plaintiff claims entitlement to deferred compensation under the 1990 Plan.

47. By 1997, Mr. Laumeister had become dissatisfied with the investment returns generated by investments in the Mass. Mutual accounts. As a result, CTC terminated its relationship with Mass. Mutual and adopted a new deferred compensation plan (the "1997 Plan") that, by its terms, superseded and replaced the 1990 Plan.

48. Mr. Massari drafted the 1997 Plan, which Mr. Laumeister again intended to be a "top hat" nonqualified plan. Mr. Laumeister intended that the 1997 Plan further the same objectives as the 1990 Plan. The 1997 Plan does not state it is a "top hat" plan, does not indicate that it is "nonqualified," and contains no reference to ERISA.

49. The 1997 Plan provides in relevant part that it is an "employer paid fund[,]" and that CTC "agrees to contribute funds which will accumulate and be payable in accordance with Section 6." (Defendants' Ex. B at 1, ¶¶ 2, 5.)

50. Section 6 of the 1997 Plan states:

6. BENEFITS UNDER PLAN-The Plan provides for alternative types of payment as follows:

Deferred Compensation Payments, payable upon the happening of any of the following events:

1) Retirement of the Participant

2) Death Benefits, payable when a Participant dies before Deferred Compensation payments start.

a) death benefit equals market value of a participant's account, less any insurance payment provided under 2b.

b) employer has also funded, group term life insurance equal to one time participant's annual salary, for which the participant has named a beneficiary. (This benefit is in addition to the one time salary provided with the participant's group insurance benefit package, and will be equal to one time the Participant's current annual salary.)

The Employer and each Participant will execute an agreement in writing, confirming their assumptions of the obligations set forth in this Plan and the method of Death Benefits payable.

Subject to all provisions hereof, the Employer agrees to pay Deferred Compensation Payments, as follows:

In the event of normal, or postponed retirement, and in the event of disability, to the Participant so qualifying, payment for 120 consecutive months .... A monthly payout amount will be computed, subject to periodic review and adjustment based on the rate of growth, to [P]lan exhaustion of the Participant's fund at the final, 120th, payment.

Id. at 2, ¶ 6.

51. The 1997 Plan defines the term "retirement" as "withdrawal from full time active employment at or after age 65." Id. at 1, ¶ 3(c). The parties dispute whether this provision requires the employee to retire from CTC. Other than Plaintiff Browe, no Plaintiff testified that they understood the 1997 Plan to offer retirement benefits if they were no longer in CTC's employ when they retired. See Doc. 209 at 61, 65. The court does not find Plaintiff Browe's testimony credible as it is inconsistent with her proposal that Mr. Laumeister include her in his will because she would not receive deferred compensation under the Plan. It is also inconsistent with her own testimony. See id. at 65 (Browe testimony: "Q. Up until Ms. Launderville contacted you about this suit did you have any belief or basis for claiming deferred compensation under the plan? A. No.").

52. The 1997 Plan provides that death benefits would "commence on the first day of the month following the Participant's death and be payable for 120 consecutive months, or lump sum at the option of the beneficiary."Id. at 3, ¶ 6. It provides that "[a] Participant may designate one or more beneficiaries, but any named beneficiaries must be a member of his/her immediate family, that is spouse and or children under the age of twenty-one, of Participant." Id.

53. The 1997 Plan further states that:

[Neither] [t]he Employer, nor the plan Administrators make any guarantee to the Participant, nor the ... Participant's beneficiary, as to the market value of the Participant's account upon retirement or in the event of disability payments or death benefit payments. The account balance is not targeted to any preconceived amount nor [is it] associated to a percentage of the Participant's salary. The balance of the account will be driven only by the economic market growth of the funds which the Employer has funded. The monthly payout amount will be reviewed and adjusted annually to reflect the growth of the account and to exhaust the fund balance over the remainder of the 120 month payout period.

Id.

54. Under the 1997 Plan, CTC's Board of Directors were Plan Administrators and were authorized to make "[a]ll decisions concerning withdrawal, payment, method of payment, [and] investments of funds[.]" Id. at 1, ¶ 4. Participants in the 1997 Plan have the same rights as a "general creditor of the Employer[,] ... and then solely to the extent of the net value of the Participant's deferred compensation account." Id. at 3, ¶ 7.

55. Pursuant to the 1997 Plan, Plan Administrators were required to "advise the Participant[s] of the actual cash value of their account annually, and at the time of retirement." Id. at 3, ¶ 6.

56. The 1997 Plan prohibits "funding" as follows:

11. PROHIBITION AGAINST FUNDING-If the Employer acquires a mutual fund, an annuity contract or life insurance policy, or any other asset in connection with its liabilities hereunder, neither a Participant nor any beneficiary of the Participant shall have any right with respect to, or claim against, such contract, policy or other asset and the Employer shall be named the owner and beneficiary of any such contract, policy or other asset. Such contract, policy, or other asset shall not be held under any trust for the benefit of a Participant or [beneficiaries] of a Participant or held in any way as collateral security for the performance of any obligation of the Employer under the Plan. Any such policy or other asset shall be, and remain, a general, unpledged, unrestricted asset of the Employer.

Id. at 4-5, ¶ 11.

Plan Application.

57. Each employee to whom the 1997 Plan was offered signed an "Application to Participate in the CTC Corporation Deferred Compensation Plan" that provided in relevant part:

To: Plan Administrators

Please be advised that I wish to participate in the Deferred Compensation Plan. I understand that the company funding of this Plan is contingent upon my annual contribution of a minimum of 3% of my base salary to my personal individual retirement account for each year I participate in the Plan.

I understand that the corporate funding of this Plan and some provisions have changed from the original Plan document. I further understand that this Plan supersedes any and all Deferred Compensation Plan documents provided by CTC Corporation.

I wish to designate the following beneficiary (or beneficiaries) in accordance with the articles of the Plan agreement:

* * *

I acknowledge receipt of a copy of the Deferred Compensation Plan agreement and confirm that I have reviewed and understand all of the terms and conditions thereof.

Signed

Home Address

Date

This document must be signed, dated and returned to the Employer in order to participate in this Plan. It is the responsibility of the Participant to notify the Employer of any intended change in the designated beneficiaries.

(Defendants' Ex. C) (the "Plan Application").

58. Defendants introduced into evidence Exhibit D, which is a one-page document dated August 20, 1997, signed by Mr. Massari, and entitled "CTC Deferred Compensation Plan" which states as follows:

The Assumption for rate of growth used to illustrate your fund balance is 10%. This is an assumption only, based on previous growth of this mutual fund. Your account will be adjusted periodically to reflect the actual growth rate and fund balance of your account.

Please complete and sign the last page "Application" and return this to me. I will return a copy to you for your files.

Please provide evidence of your current active "IRA" account as required by the Plan Document. This is not necessary if you are funding your IRA by payroll deduction.

Contact me if you have any questions regarding this Plan.

(Defendants' Ex. D.)

Plan Statements.

59. Defendants periodically provided the Plan Participants with account statements showing the amounts held in the Plan, however, there is no evidence that those reports were provided with any regularity. Mr. Laumeister does not recall ever providing a statement, although he believes Mr. Massari and Ms. Browe may have done so.

60. Neither Defendants nor Plaintiffs retained copies of Plan statements with the exception of one "worksheet" retained by Ms. Launderville and two documents retained by Mr. Laumeister.

61. Ms. Launderville credibly testified that she was given the undated worksheet identified as Plaintiffs' Exhibit 3 by Mr. Massari. Plaintiffs' Exhibit 3 identifies fifteen "Retirees": Wayne Massari; Lucille Launderville; Donald Loseby; Don Hollner; Eileen Bliss; Donna Browe; Beverly Burgess; Ed Hojnowski; William Elliott; Sharon Fish; Phil Jordan; Robin Secord; Steve Brown; Garry Pleasant; and Hope Leonard. The spreadsheet purports to show an "Initial Investment" for each individual, "Additional Annual Funding," "Total CTC Funding," projected retirement years, projected payouts (annual and monthly), fund balance at the time of retirement, and fund balance after payout. It indicates that payouts will occur over 180 months/fifteen years at ten percent growth. (Plaintiffs' Ex. 3.)

62. Plaintiffs' Exhibit 3 reflects the following "Assumptions:"

• Projections "assume" continued corporate funding of $20,325.00 15% current payroll per year through year 2000 (see notes below for additional funding explanation)

• Funding will continue as prescribed above, at a rate of 5% of participants earnings (adjustment for increased future earnings not reflected in worksheet)

• Growth rate of fund 10%

• Benefits paid out monthly for 15 years

• Benefits amount paid calculated to exhaust fund balance at the end of fifteen years

• Fund balance continues to grow as benefits are paid, until exhausted at end of 15 years

• Benefits subject to change relative to actual rate of fund growth and balance at retirement[.]

Id.

63. Plaintiffs' Exhibit 3 contains notes specific to certain "Retirees," including the following: "Initial funding for these new entrants is a dollar amount determined by Bruce Laumeister, paid from the surrender proceeds of terminated participants. The balance of the proceeds from terminated employees was allocated 55% to Lucille Launderville, and 45% to Wayne Massari, as instructed by Bruce Laumeister[.]"Id.

64. Plaintiffs' Exhibit 3 also contains the following general "Notes:"

• All accounts adjusted to actual mutual discovery balance at 03-18-97

• Account for Don Hollner closed at 03-18-97, balance of $4,582.9 transferred to the account of Donna Browe per instructions of Bruce Laumeister

• Don Hollner will be considered for plan participation in 1998, per Bruce Laumeister

• Account established for Garry Pleasant 6-97 per Bruce Laumeister[.]

Id.

65. Plaintiffs' Exhibit 3 indicates "total CTC funding" of $261,368.14 and total CTC funding for Plaintiffs as follows: Lucille Launderville: $40,104.75; Donna Browe: $15,611.14; Beverly Burgess: $19,906.23; and Phil Jordan: $17,417.30. Assuming a ten percent rate of growth, "total payouts" of $3,034,470 were projected to be made, including $215,280 to Ms. Browe; $169,920 to Ms. Burgess; $269,280 to Mr. Jordan; and $592,470 to Ms. Launderville. Id.

66. The assumption of a fifteen year payout in Plaintiffs' Exhibit 3 conflicts with the 1997 Plan which reflects a ten year payout. Although Plaintiffs' Exhibit 3 reflects an annual percent of payroll annual contribution by CTC, the 1997 Plan does not require this contribution. The amounts set forth in Plaintiffs' Exhibit 3 conflict with Mr. Laumeister's testimony that when the 1990 Plan was replaced by the 1997 Plan approximately $130,000 to $140,000 remained in the Mass. Mutual accounts. These funds were deposited in a CTC account with Mission Management & Trust Company and in an investment account referred to as the "Mutual Discovery Account."

67. Plaintiffs' damages estimate offered by their expert witness, economist Richard Heaps, is based on the amounts set forth in Plaintiffs' Exhibit 3. Mr. Heaps opined that performing the same calculations as set forth in Plaintiffs' Exhibit 3, he was able to project account balances for each Plaintiff's deferred compensation account as of the time of trial.

68. The court finds Plaintiffs' Exhibit 3 "worksheet" reliable for the following purposes. First, to establish that Mr. Laumeister was the primary decision-maker with regard to the 1997 Plan. Second, to reflect account balances adjusted to reflect "Actual Mutual Discovery Balance at 03-18-97." Third, to confirm that it was a document generated by Mr. Massari to project how the 1997 Plan might perform under certain assumptions, several of which are inconsistent with the 1997 Plan.

69. In addition to Plaintiffs' Exhibit 3, the only other financial statements related to the Plan and introduced into evidence were two statements retained by Mr. Laumeister. A May 1998 statement introduced as Plaintiffs' Exhibit 14 provides a "revised projection" of Ms. Launderville's retirement account and shows "total payouts" to Ms. Launderville of $657,900 upon her retirement, assuming a ten percent growth rate. (Plaintiffs' Ex. 14 at 1-2.) Defendants' Exhibit Al is a statement dated December 23, 2004 that indicates a balance of $279,803, above which Mr. Laumeister wrote "I met with Wayne [Massari] on this. He had data which agreed with this." (Defendants' Ex. Al at 1.)

70. Plaintiffs' Exhibit 14 is a statement sent from Mr. Laumeister to Ms. Launderville with the following cover letter:

Dear Lucille [name handwritten]

Attached is [a] revised projection of your retirement fund as a participant in the CTC Corporation Deferred Compensation Plan. A strong stock market has reflected a substantial growth in your fund balance. While the projection attached reflects a more conservative 10% market growth, this projection will be adjusted each year to reflect actual market conditions. Pursuant to the plan document you have received, CTC Corporation nor the plan Administrators guarantee the value of the value of your account upon your retirement or in the event of your death, payments to your beneficiaries. The fund balance will be driven only by the economic market growth of the funds which have been invested. The fund is currently invested with the Franklin Mutual Series Class Z Fund.

Your participation in this fund continues to be contingent upon the terms and conditions expressed in the plan document which you have received. If you have any questions about this plan, please direct them to me, Lucille or Wayne.

Please note that you have been selected to receive benefits under this plan based on your service to CTC Corporation. This plan is entirely funded and owned by the employer and has not been open to all employees. Therefore I ask that you discuss this matter only with the above mentioned plan Administrators.

(Plaintiffs' Ex. 14 at 1) (emphasis supplied).

71. The spreadsheet attached to Plaintiffs' Exhibit 14 reflects "total payouts [of] 180 months" and ten percent growth. Id. at 2. It depicts the same annual funding of $2,850 of Ms. Launderville's account reflected in Plaintiffs' Exhibit 3. It notes that the account balance for March was "Adjusted to Actual 3/18/98[,]" id., one year after the notation in Plaintiffs' Exhibit 3 that "all accounts adjusted to Actual Mutual Discovery Balance at 03-18-97[.]" Plaintiffs' Ex. 3. The monthly balance in March 1998 is $46,550.06 in Plaintiffs' Exhibit 14 and $40,104.75 in March 1997. The court concludes that Plaintiffs' Exhibits 3 and 14 are both business records of CTC, despite their inconsistencies with the 1997 Plan.

72. Ms. Launderville was provided with the 1997 Plan which states that CTC's Directors are the Plan Administrators. She is identified in Plaintiffs' Exhibit 14 as a person to whom questions about the Plan could be directed. She proposed participants to the Plan, discussed potential Plan Participants with Mr. Laumeister and Mr. Massari, and voted on certain decisions with regard to the 1997 Plan.

73. Between 1990 and 2014, CTC paid deferred compensation to approximately four Plan Participants in accordance with the 1997 Plan: Don Loseby, Hope Leonard, Eileen Bliss, and Wayne Massari. In addition, the Plan Administrators determined that both Sharon Fish and William Elliott should be permitted to retire early and receive Plan benefits on that basis. In Ms. Fish's case, she was tired of the commute from Rutland to Bennington and was offered Plan participation even though she worked part-time. In Mr. Elliott's case, his family had a history of early mortality and he wanted to enjoy his remaining years through an early retirement.

74. Between 1997 and about 2001, CTC continued to deposit funds in its Mission Management & Trust and Mutual Discovery accounts from which it intended to pay deferred compensation.

CTC's Decline and Dissolution.

75. In approximately 2004, CTC experienced a significant decline in sales due to the advent of digital photography and internet photo-finishing services. In addition, a change of policy purportedly announced by the U.S. Postmaster regarding the speed with which first class U.S. mail would be delivered impaired CTC's ability to deliver expeditious service to its customers.

76. From 2004 until its dissolution, CTC's cash flow from its annual sales became insufficient to support its operating expenses. As a result, all monies deposited in CTC's deferred compensation accounts were transferred to CTC's general business account and used to pay CTC's general business expenses, including payroll. In 2004, Mr. Laumeister told Ms. Launderville "that because of the deteriorating financial condition of CTC, the [P]lan was being terminated and the funds would be used to pay business operating expenses." (Doc. 195 at 69.) It does not appear that CTC, Mr. Laumeister, or Ms. Launderville otherwise announced the termination of the 1997 Plan.

77. Ms. Launderville and Ms. Browe kept Mr. Laumeister apprised of CTC's operating shortfalls. Mr. Laumeister then directed withdrawals from CTC's deferred compensation accounts to cover them. When CTC's cash reserves were exhausted, Mr. Laumeister made a series of personal loans to CTC to fund operating expenses. Both Ms. Launderville and Ms. Browe were aware of both the use of the deferred compensation accounts and the personal loans from Mr. Laumeister.

78. In approximately 2006, Mr. Laumeister convened a meeting attended by Ms. Launderville and others during which he explained that CTC was in financial distress. He proposed that employees accept a twenty percent pay-cut which was apparently accepted by those employees who chose to remain in CTC's employ.

79. By February 2008, the only remaining employees of CTC who were 1997 Plan participants were Ms. Browe and Ms. Launderville. At the time, CTC's cash flow was insufficient to pay its general creditors or to fund its deferred compensation accounts. Both Ms. Browe and Ms. Launderville were aware of this fact.

80. By 2014, Mr. Laumeister's outstanding unpaid loan balance to CTC was approximately $600,000. Because of the significant decline in CTC's sales, he realized that CTC could not repay those loans and decided he would no longer try to keep CTC operational.

81. On October 6, 2014, at the direction of Mr. Laumeister, CTC ceased doing business and filed Articles of Dissolution with the Vermont Secretary of State.

82. When CTC dissolved in 2014, Starson sold the film developing and photo processing equipment that it had leased to CTC at a loss of approximately $450,000.

83. At the time of its dissolution, CTC purportedly had no outstanding accounts payable, other than its obligations with regard to the loans from Mr. Laumeister.

84. With regard to the destruction of CTC's business records, Mr. Laumeister testified that in 2012:

[W]e had a small business advisory service. We got monthly information from them, especially on taxes and so on. And I asked Donna [Browe] to contact them and ask them what was the requirement when you dissolved a corporation, what records had to be kept, and that was eight years back plus tax returns.

(Doc. 196 at 52-53.)

85. Ms. Browe credibly denied any involvement in the destruction of business records and denied giving Mr. Laumeister any advice or guidance on this point. The records were not destroyed until 2014 after Ms. Browe left CTC's employ.

It appears that the true impetus for their destruction was Mr. Laumeister's desire not to leave them behind in the Bennington facility for which CTC had not paid its property taxes.

Retention of Plan Documents.

86. Defendants' expert witness, Mr. Herlihy, testified that Plan records should be maintained over the life of the Plan. He opined that even with a non-qualified "top hat" plan, although an employer can use the assets in the plan, it retains the obligation to pay plan participants the amounts it contributed to their accounts consistent with the terms of the plan:

Q. [I]f the company goes completely out of money, spends all their money, does that bear on how much money they ultimately wind up paying the participant?

A. Well, if they-yeah. If they don't have the money to pay them, then they can't pay it because they're paying it out of the assets of the company.

Q. I'm sorry. I should rephrase that. In terms of how you would have your clients account for what they owe to that participant.

A. They would still-then our bookkeeping entry would indicate that they still owed it.

* * *

Q. The last questions that came up went to the obligations of the company that established the nonqualified plan to the plan participants, right? And you had indicated that if a company has a thousand dollars in a plan participant's name in its account, and spent 900 of those dollars on other company obligations, that the company would still owe that $900 to the plan participant; is that correct?

A. Yes.

Q. Okay. Under what circumstances would that $900 be owed to the plan participant?

A. It would be owed to the plan participant according to the provisions in the plan document where they were entitled to get the benefit that they had been promised by either the-by the formula in the document.

Q. Supposing the formula in the document said to participate in the benefits of a plan you have to be employed by the company until age 65, and the person whose account had the $900 in it left the employment of the company at age 45, would that person be entitled to payments under the plan?

A. No, they wouldn't.

(Doc. 196 at 208-10.)

Employees Offered Participation in 1997 Plan.

87. The parties dispute the number of CTC employees who were offered participation in the Plan. Mr. Laumeister testified that fifteen employees were offered the Plan and thirteen accepted but he also testified that eighteen employees were offered participation, all of whom were proposed by Ms. Launderville. Plaintiffs contend eighteen CTC employees were offered Plan participation. Ms. Launderville further testified that all Plan Participants were chosen by Mr. Laumeister. The court finds that the best evidence is that the 1997 Plan was offered to eighteen CTC employees.

88. Participation in the 1997 Plan was offered by CTC to all of the participants in the 1990 Plan and to additional employees selected by the Plan Administrators. Evidence regarding employees to whom the Plan was offered is limited and is for the most part uncorroborated by business records. Mr. Laumeister testified regarding the duties and responsibilities of each of the employees to whom the Plan was offered, often exaggerating their managerial responsibilities while Plaintiffs' witnesses denied certain Plan Participants had any management responsibility. The court found neither version of the facts wholly credible. On balance, it appears that there is insufficient evidence to support a conclusion that Hope Leonard, Pat DeCoff, William Elliott, Ed Hojnowski, Donald Loseby, and Sue Carman/Caraman were either highly compensated employees or had significant management responsibilities. The court briefly recites the limited facts introduced regarding individuals to whom the 1997 Plan was offered.

Wayne Massari.

89. Wayne Massari was CTC's Treasurer and CFO as well as a CTC Director and Plan Administrator until he experienced a stroke in 1999, became disabled, and retired. Mr. Laumeister and Ms. Launderville agreed that he was entitled to deferred compensation benefits under the 1997 Plan. Of the Plan Participants who received deferred compensation benefits, Mr. Massari received the most.

90. Mr. Massari's maximum combined compensation was approximately $105,000, which reflected Starson bonuses.

Lucille Launderville.

91. Lucille Launderville was born on November 18, 1951. She was employed by Cap Tan in customer service and paid approximately minimum wage as an hourly employee. CTC hired Ms. Launderville on the same terms in 1980 when it purchased the assets of Cap Tan. In addition, Ms. Launderville performed secretarial work for Mr. Laumeister.

92. Ms. Launderville credibly testified that she had a poor recall for dates and could not recall when she received certain promotions and changes in her compensation at CTC. Mr. Laumeister's testimony regarding Ms. Launderville's employment also reflected inconsistencies.

93. In 1982 or 1983, Ms. Launderville was promoted to assistant to the plant manager. She received a raise with her promotion and worked in that position for approximately three years. In 1989-92, Ms. Launderville was promoted to plant manager of the Bennington production facility and received compensation of approximately $22,000 per year. In 1994, she was promoted to Vice President and General Manager with a salary increase to approximately $44,000 per year. In 1995, she was promoted President of CTC and general manager/COO handling CTC's day-to-day operations and received an increase in compensation. As of December 16, 1995, she was a Director of CTC.

94. During the period between 1990 and 2008, Ms. Launderville was a salaried employee of CTC with annual compensation for the years from 1985 until 1999 ranging between approximately $22,000 and $59,000, with bonuses during the years between 1990 and approximately 2004 ranging between approximately $12,000 and $50,000. As a result of the bonuses paid by Starson, Ms. Launderville's maximum combined total compensation was approximately $105,000.

95. In 2008, Ms. Launderville voluntarily left employment at CTC and accepted employment at Plasan Industries in Bennington, Vermont. At the time, Ms. Launderville was fifty-seven years old and was not disabled. She testified as follows with regard to her understanding of the 1997 Plan:

Q. Now, doesn't section six of the plan tell you that because you were not 65 at the time you left the employ of CTC Corporation, that-you hadn't died, of course, and you were not disabled, that you were not entitled to any benefits under the plan? Isn't that what section six says?

A. That's what it says.

Q. And that's what you agreed to?

A. At the time, but that's also why I contacted Bruce before I left the company regarding the deferred compensation plan, because of my concern.

(Doc. 197 at 45.) She also agreed that under the terms of the 1997 Plan, her rights in CTC's deferred compensation accounts were no greater than that of a general creditor.

96. Before accepting employment at Plasan Industries, Ms. Launderville emailed Mr. Laumeister on February 24, 2008 and stated in relevant part: "I have been offered a position. I think it is a good move for me, but before I accept, I wonder what this will mean regarding my Deferred Compensation." (Plaintiffs' Ex. 10 at 2.) Mr. Laumeister responded to her inquiry in pertinent part as follows: "My intention is exactly what I showed you before. I am putting in my will and trust and instructing Mission Trust to pay your d.c. when you are 65 or when I check out. Donna [Browe]'s will be in the same instruction." Id. at 1.

97. While employed at Plasan Industries in Human Resources, Ms. Launderville determined that ERISA might apply to the 1997 Plan and contacted counsel on that basis. In 2015, she also contacted each of the other Plaintiffs in this lawsuit and encouraged them to join her in a lawsuit against Defendants.

Donna Browe.

98. In 1986, Donna Browe earned $15,850 from CTC. In approximately 2000, she became the manager of CTC's accounting department. From 1990 until 2013, Ms. Browe was a salaried employee of CTC with a salary ranging between approximately $28,000 and $37,000, with bonuses during the years between 1990 and approximately 2001 ranging between approximately $2,000 and $4,000. Her highest annual compensation at CTC was in 2001 and was $37,692.

99. At the time Ms. Browe left the employ of CTC on November 12, 2012, she was sixty-one years old and not disabled. She did not request any information about the 1997 Plan or make any claim or request that 1997 Plan funds be transferred to her or to her new employer. No claim was made by Ms. Browe against CTC for deferred compensation until after she was contacted by Ms. Launderville in 2015 and encouraged to participate in this litigation.

Philip Jordan.

100. As CTC's sales manager, Philip Jordan was responsible for managing and overseeing the sales and distribution of CTC's photo processing, photo printing, and photo equipment retail businesses, CTC's One-Hour Labs, the retail stores, and the convenience stores and drug stores with which CTC had agreements to provide film developing and printing services for their customers.

101. During the period between 1990 and the termination of his employment at CTC in 2008, Mr. Jordan was a salaried employee with a salary ranging between approximately $22,000 and $28,000, with bonuses during the years between 1990 and approximately 2001 ranging between approximately $2,000 and $4,000. Mr. Jordan's highest annual salary with CTC was $30,009.

102. Mr. Jordan did not deposit a minimum of 3% of his CTC salary into an IRA during the years that he was employed by CTC and was a participant in the Plan. When he voluntarily left the employ of CTC in October 1988 for a position with another company, Mr. Jordan had not reached the age of sixty-five and was not disabled. At the time he left CTC, he did not request any information about the Plan, or make any claim or request that the Plan funds be transferred to him or to his new employer. No claim was made by Mr. Jordan against CTC for deferred compensation until after he was contacted by Ms. Launderville in 2015 and encouraged to participate in this litigation.

Beverly Burgess.

103. In 1990, CTC offered the Plan to Beverly Burgess, who at that time served as manager of the CTC retail store at the Bennington facility. She was also responsible for management of retail inventory and sales activities at the One-Hour Labs operated by CTC. In 1997, her job responsibilities were essentially unchanged.

104. During the period between 1990 and 2004, Ms. Burgess was a salaried employee and earned between $10,811.61 and $29,039.32.

105. Mr. Burgess and Ms. Jamieson do not have a copy of their mother's Plan Application and she apparently did not retain a copy of the 1997 Plan or any Plan statements. According to Mr. Laumeister, he was unable to find any evidence of a Plan Application by Ms. Burgess although she is mentioned as a "Retiree" in Plaintiffs' Exhibit 3.

106. Ms. Launderville advised Ms. Jamieson shortly after Ms. Burgess's death on November 29, 2004 that there was nothing available to her under the Plan other than her mother's own IRA. Mr. Laumeister testified that he believed Ms. Burgess had applied for long-term disability based on her representation that she was no longer employed by CTC. Ms. Jamieson recalled her mother receiving short-term disability payments prior to her death. There is no other evidence regarding Beverly Burgess's status as a CTC employee at the time of her death. Ms. Jamieson testified that her mother's death was sudden, while Mr. Laumeister testified that it was preceded by a lengthy period of hospitalizations and absences from work.

107. Following Ms. Launderville's denial of benefits based on Ms. Burgess's participation in the 1997 Plan, neither Ms. Jamieson nor Mr. Burgess spoke with Mr. Laumeister about any possible claim that they may have had against CTC for deferred compensation payable as death benefits. Neither Ms. Jamieson nor Mr. Burgess made any other claim against the Plan until after they were contacted by Ms. Launderville in 2015 and encouraged to join in this lawsuit. Ms. Launderville told Ms. Jamieson that she "thought it was unfair, that people were not getting their benefits that they deserved." (Doc. 196 at 98.)

Sharon Fish.

108. Sharon Fish was the administrative manager of Wilson Photo when CTC absorbed that company in 1988. Thereafter, she became employed by CTC and assisted with the transition. Her job responsibilities included transporting and logging in product from Rutland to the Bennington facility. She was allowed to work part-time because she lived in Rutland and commuted to Bennington. In 1992, she requested approval to retire early from employment at CTC before she reached age sixty-five. Her retirement was approved, and, as a Plan Participant, she received deferred compensation payments.

109. During the period between 1990 and her retirement from CTC in 1992, Ms. Fish was a salaried employee of CTC with an annual compensation of approximately $23,000, with bonuses during the years between 1990 and approximately 1992 ranging between approximately $2,000 and $4,000. The most she earned at CTC was between $28,000 and $32,000.

Hope Leonard.

110. Hope Leonard was employed by Cap Tan in its production and inspection department prior to CTC's purchase of Cap Tan's assets. She was employed by CTC from the time of its formation in 1980 until her retirement. She credibly testified that she was a print operator who never managed employees throughout her employment at CTC. The court finds Mr. Laumeister's testimony that Ms. Leonard managed part-time seasonal employees not credible.

111. In 1990, CTC offered the Plan to Ms. Leonard who accepted participation. She was offered participation because she was a reliable and competent employee. In 1997, her job responsibilities remained essentially unchanged and she accepted participation in the 1997 Plan. She retired from employment at CTC in 2002, when she reached age sixty-five and was paid deferred compensation under the 1997 Plan.

112. Ms. Leonard credibly testified that she was never a salaried employee.

113. After her retirement, Ms. Leonard received a December 31, 2007 letter from Mr. Laumeister stating that he had overpaid her deferred compensation benefits and would cease doing so. She was angered by the letter because she believes he underpaid her.

William Elliott.

114. In 1980, prior to becoming employed by CTC, William Elliott was plant engineer/parts manager at Cap Tan. Mr. Elliott was employed in this same capacity at CTC until his retirement at age sixty-five in 2000. Mr. Elliott was responsible for maintaining the film developing and photo processing equipment at the Bennington facility, including retrofitting or fabricating parts to keep the outdated equipment operating. Mr. Elliott was available on-call to address equipment breakdowns. He also trained other CTC employees in maintenance and repair.

115. In 1990, CTC offered the Plan to Mr. Elliott who accepted participation in it. In 1997, his core duties remained the same but were on a greater scale in light of CTC's growth.

116. During the period between 1990 and his retirement in 2000, Mr. Elliott was a salaried employee of CTC with a salary ranging between approximately $18,000 to $24,000, with bonuses during the years between 1990 and his retirement ranging between approximately $2,000 and $4,000.

117. The Plan Administrators approved the decision to allow Mr. Elliott to retire at age sixty because of his family history of early mortality.

Don Hollner.

118. In 1998, Don Hollner was employed at CTC as the director of marketing, a position that Mr. Laumeister previously held. Mr. Hollner was employed by CTC until 2008. Although he participated in the 1997 Plan, due to his departure from CTC before reaching age sixty-five he received no deferred compensation. There is no evidence that he claimed any benefits under the 1997 Plan after he left CTC's employ.

119. During the period between 1990 and his termination of employment with CTC in around 2008, Mr. Hollner was a salaried employee with annual compensation of approximately $41,000.

Eileen Bliss.

120. Eileen Bliss was employed as an hourly production worker by Cap Tan. In 1980, CTC employed her in this same capacity. During her employment with CTC, she was promoted in 1990 to production manager for CTC's Bennington facility's film developing and photo processing operations. In this position, she scheduled plant production, evaluated job applications, hired new employees, appointed workers to shifts, and started and tested developing and photo processing machinery. She worked independently and made production decisions without direct supervision from senior management.

121. During the period between 1990 and her retirement in around 2005, Ms. Bliss was a sa