JOHNSON v. COUTURIER

Nos. 08-17369, 08-17373, 08-17375, 08-17631.

572 F.3d 1067 (2009)

Gregory JOHNSON; William Rodwell; Edward Rangel; Kelly Morrell, Plaintiffs-Appellees, and Darleen Stanton, Plaintiff, Roorda Piquet & Bessee, Inc., Nonparty appearing witness, Witness, v. Clair R. COUTURIER, Jr., Defendant, David R. Johanson; Noll Manufacturing Company Employee Stock Ownership Plan and Trust; Pensco, Inc.; Johanson Berenson LLP; the Employee Ownership Holding Corporation, Employee Stock Ownership Plan; N & NW Manufacturing Holding Company, Inc.; Noll Manufacturing Company, Defendants, and Robert E. Eddy, Defendant-Appellant. Gregory Johnson; William Rodwell; Edward Rangel; Kelly Morrell, Plaintiffs-Appellees, and Darleen Stanton, Plaintiff, Roorda Piquet & Bessee, Inc., Nonparty appearing witness, Witness, v. Clair R. Couturier, Jr., Defendant, Robert E. Eddy; Noll Manufacturing Company Employee Stock Ownership Plan and Trust; Pensco, Inc.; Johanson Berenson LLP; the Employee Ownership Holding Corporation, Employee Stock Ownership Plan; N & NW Manufacturing Holding Company, Inc.; Noll Manufacturing Company, Defendants, and David R. Johanson, Defendant-Appellant. Gregory Johnson; William Rodwell; Edward Rangel; Kelly Morrell, Plaintiffs-Appellees, and Darleen Stanton, Plaintiff, Roorda Piquet & Bessee, Inc., Nonparty appearing witness, Witness, v. Clair R. Couturier, Jr., Defendant-Appellant, and Robert E. Eddy; David R. Johanson; Noll Manufacturing Company Employee Stock Ownership Plan and Trust; Pensco, Inc.; Johanson Berenson LLP; the Employee Ownership Holding Corporation, Employee Stock Ownership Plan; N & NW Manufacturing Holding Company, Inc.; Noll Manufacturing Company, Defendants. Gregory Johnson; William Rodwell; Edward Rangel; Kelly Morrell, Plaintiffs-Appellees, and Darleen Stanton, Plaintiff, Roorda Piquet & Bessee, Inc., Nonparty appearing witness, Witness, v. Clair R. Couturier, Jr., Defendant-Appellant, and Robert E. Eddy; David R. Johanson; Noll Manufacturing Company Employee Stock Ownership Plan and Trust; Pensco, Inc.; Johanson Berenson LLP; the Employee Ownership Holding Corporation, Employee Stock Ownership Plan; N & NW Manufacturing Holding Company, Inc.; Noll Manufacturing Company, Defendants.

United States Court of Appeals, Ninth Circuit.

Filed July 27, 2009.


Attorney(s) appearing for the Case

Theodore M. Becker (argued), Thomas M. Peterson, Joseph E. Floren, and Elizabeth A. Frohlich, Morgan, Lewis & Bockius LLP, for appellant Clair R. Couturier, Jr.

Christopher J. Rillo, Lars C. Golumbic, and Dipal A. Shah, Groom Law Group Chartered, for appellant David R. Johanson.

Gary D. Greenwald (argued), Ron Kilgard, and Gary A. Gotto, Keller Rohrback, PLC, and Terence J. Devine, Devine, Markovits & Snyder, LLP, for the appellees.

Carol A. De Deo, Deputy Solicitor of Labor, Timothy D. Hauser, Associate Solicitor, Plan Benefits Security Division, Elizabeth Hopkins (argued), Counsel for Appellate and Special Litigation, and Robyn M. Swanson, Trial Attorney, U.S. Department of Labor, for the Secretary of Labor as amicus curiae supporting appellees.

Before: PROCTER HUG, JR., HAWKINS, and RICHARD C. TALLMAN, Circuit Judges.


TALLMAN, Circuit Judge:

In his capacity as president of Noll Manufacturing Company ("Noll") and its successors, Clair R. Couturier, Jr., together with his fellow directors, diverted almost $35 million of corporate assets—at least a third of the corporation's value, even in Couturier's own estimation—to his own possession through the buyout of deferred compensation agreements. Plaintiffs, all of whom are participants in Noll's employee stock ownership...

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