Morrissey v. Boston Five Cent
U.S. Court of Appeals for the First Circuit
Morrissey v. Boston Five Cent
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 94-2220
WILLIAM P. MORRISSEY,
Plaintiff, Appellant,
v.
THE BOSTON FIVE CENTS SAVINGS BANK, ET AL.,
Defendants, Appellees.
____________________
[Hon. Patti B. Saris, U.S. District Judge] ___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
____________________
Before
Boudin, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Robert H. Quinn, with whom John P. Morrissey and Quinn & Morris ________________ __________________ ______________
were on brief for appellant.
Robert B. Gordon, with whom David M. Mandel and Ropes & Gray were ________________ _______________ ____________
on brief for appellees.
____________________
May 15, 1995
____________________
BOWNES, Senior Circuit Judge. Plaintiff-appellant BOWNES, Senior Circuit Judge. ____________________
William Morrissey, a twenty-year employee of defendant-
appellee Boston Five Cents Savings Bank, F.S.B. ("the Bank"),
was involuntarily retired from his position as Executive Vice
President for Corporate Affairs on November 1, 1992,
approximately one month after his sixty-fifth birthday, and
approximately one week after he filed age discrimination
claims against the Bank and its holding company, the Boston
Five Bancorp, with the Massachusetts Commission Against
Discrimination and the Equal Employment Opportunity
Commission. It is undisputed that the Bank forced
Morrissey to retire because of his age. The question before
us is whether the Bank's action was lawful under a narrow
exemption to the Age Discrimination in Employment Act, 29
U.S.C. 621-34 ("ADEA"), which permits compulsory
retirement, at age sixty-five and older, of certain employees
who occupy "bona fide executive" or "high policymaking"
positions for the two-year period immediately preceding
retirement, if such employees are entitled upon retirement to
an immediate nonforfeitable annual retirement benefit of at
least $44,000. See 29 U.S.C. 631(c)(1). We answer this ___
question in the affirmative, and therefore affirm the
district court's order granting summary judgment in favor of
the Bank.
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I. Background I. Background __________
On appeal from a grant of summary judgment, we view
the facts and all inferences that may fairly be drawn from
them in the light most favorable to the nonmoving party.
Coll v. PB Diagnostic Systems, Inc., No. 94-1680, slip op. at ____ ___________________________
10-11 (1st Cir. March 30, 1995).
The Bank hired Morrissey as a Vice President in
June of 1972, and later promoted him to the position of
Senior Vice President. In 1978 or 1979, the Bank's then
Chief Executive Officer ("CEO"), Robert Spiller, promoted
Morrissey to Executive Vice President for Corporate Affairs.
Morrissey continued to hold this position until the Bank
forced him to retire, at which time he was the fifth highest
paid employee at the Bank.
In his capacity as Executive Vice President for
Corporate Affairs, Morrissey reported directly to the CEO and
was responsible for (i) monitoring state and federal
regulations and advising the Bank with respect to the
influence and effect of these regulations upon the business
of the Bank, and recommending action where appropriate; (ii)
developing and recommending merger and acquisition
candidates; and (iii) developing sources of loan and deposit
business for the Bank. In addition to these duties,
Morrissey served as a member of the Asset and Liability
Committee, and regularly attended the meetings of the Board
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of Directors. He also attended the weekly meetings of the
Bank's six most senior officers ("Senior Officers Group").
In 1990, Robert Spiller retired and defendant
Peter Blampied succeeded him as CEO. The Bank does not
contest Morrissey's assertion that this event took place
shortly before the statutory two-year period immediately
prior to his involuntary retirement. By Morrissey's account,
his role in the formulation of Bank policy was greatly
diminished after Blampied took over as CEO. Morrissey
contends, for example, that whereas under former CEO Spiller,
the weekly meeting of the Senior Officers Group served as an
opportunity for the officers to discuss and to participate in
policymaking decisions, under CEO Blampied, this meeting
ceased to serve the same policymaking function. Instead, all
high policy decisions were made by the Board of Directors, or
by a subset of senior officers that did not include
Morrissey, which specifically excluded him from high policy
discussions of important issues such as the Bank's distressed
real estate holdings, its dealings with regulators, and its
three-year strategic business plan. Morrissey also asserts
that Blampied did not specifically solicit policy
recommendations from him, and that, at his deposition,
Blampied could recall specific comments by Morrissey with
respect to only one policy matter.
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On July 28, 1992, Blampied advised Morrissey that,
in view of the fact that his sixty-fifth birthday was
approaching, he should be thinking about retiring. Morrissey
replied that he had no intention of retiring and that he
could not afford to retire because he had to provide for his
young family. Morrissey turned sixty-five on September 29,
1992. On October 6, 1992, Blampied again told Morrissey
that, because he was sixty-five, he should be thinking of
retiring. Blampied also suggested the possibility of a year-
to-year paid consulting arrangement. The following day,
Morrissey received a memorandum outlining this arrangement,
to which he responded later in the day. Morrissey told
Blampied that he had not agreed to the proposed arrangement
and asked whether Blampied had consulted with any attorneys
on the matter. Blampied replied that he had "checked every
base," that he was going to "play hardball," and that the
proposed consulting arrangement was rescinded. At some point
during this meeting, Morrissey asked for the opportunity to
review the matter with attorneys and other consultants.
On October 13, 1992, Morrissey received written
notification that his retirement would be effective November
1, 1992. At the time of this notification, Morrissey was
entitled to receive $38,352 annually in nonforfeitable
pension benefits under his Qualified Benefit Plan ("QBP"),
plus $17,592 annually in pension benefits under his Executive
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Supplemental Benefits Plan ("SERP"). The SERP benefits were
forfeitable upon certain conditions specified in the
contract. On October 26, 1992, Morrissey filed state and
federal age discrimination claims with the Massachusetts
Commission Against Discrimination and the Equal Employment
Opportunity Commission. By his account, Morrissey gave the
Bank written notice of these claims on his October 28, 1992
application for pension benefits.
On October 29, 1992, the Executive Committee of the
Board of Directors held a special meeting via telephone
conference, during which the Committee voted to waive
irrevocably the forfeitability conditions of Morrissey's SERP
as to $6,000 of the annual pension benefit to which he was
entitled under that plan, as of November 1, 1992. The effect
of the Committee's vote was to increase the total amount of
Morrissey's nonforfeitable annual pension benefit from the
$38,352 to which he was entitled under his QBP, to slightly
more than the $44,000 minimum required under the ADEA
exemption. Morrissey was informed of the increase in the
amount of his nonforfeitable pension benefit on October 30,
1992. On November 1, 1992, he was forced to retire.
On August 20, 1993 (after having been granted
permission to withdraw his administrative claims), Morrissey
filed suit in the Massachusetts Superior Court against the
Bank, the Boston Five Bancorp, the individual members of the
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Executive Committee, and the administrators of the Bank's
pension benefits plan.1 The complaint alleged age
discrimination and retaliation in violation of the ADEA, the
Massachusetts Unlawful Discrimination Act, Gen. L. ch. 151B
4, and the Massachusetts Equal Rights Under Law Act, Gen. L.
ch. 93 102 and 103.2 The Bank removed the case to the
United States District Court for the District of
Massachusetts pursuant to 28 U.S.C. 1441, and subsequently
filed a motion for summary judgment on all claims, which the
district court granted.
II. Standard of Review II. Standard of Review __________________
On appeal, we review a grant of summary judgment de __
novo, evaluating the record in the light most favorable to ____
the party opposing the motion, and drawing all reasonable
inferences in that party's favor. Coll, No. 94-1680, slip ____
op. at 10-11. Summary judgment is appropriate only if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
____________________
1. The individuals named as defendants are John R. Furman,
William F. McCall, Jr., Richard J. Testa, George R. Baldwin,
Peter J. Blampied, Allan W. Fulkerson, Ernest E. Monrad,
Webster Collins, and Karen Hammond.
2. Mass. Gen. L. ch. 151B is the exclusive remedy under
Massachusetts law for employment discrimination claims. See ___
Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir. _____ ________________________
1994). Thus, we need not consider the ch. 93 claims.
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and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c).
"By its very terms, this standard provides that the
mere existence of some alleged factual dispute between the ____
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson v. Liberty _______ ________ ________ _______
Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are ___________
those "that might affect the outcome of the suit under the
governing law." Id. at 248. See also Coll, No. 94-1680, ___ ___ ____ ____
slip op. at 11. A dispute as to a material fact is genuine
"if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party." Id. "If the evidence is ___
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50 ________
(internal citations omitted).
III. Discussion III. Discussion __________
Morrissey raises three issues on appeal. First, he
argues that during the last two years of his employment with
the Bank, he was not, in fact, a high policymaker within the
meaning of the ADEA exemption, and that the district court
erred by failing to apply a functional test to determine his
status. Second, he contends that the district court erred in
interpreting the pension benefit prong of the exemption so as
to permit an employer to increase the amount of an employee's
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nonforfeitable pension benefit after the alleged act of
discrimination in order to meet the statutory minimum amount.
Finally, Morrissey argues that the district court's grant of
summary judgment was improper because the supplemental
affidavits he submitted in support of his Fed. R. Civ. P.
56(f) ("Rule 56(f)") motion demonstrated a genuine issue of
material fact. Alternatively, he argues that, in view of
these affidavits, the district court should have exercised
its discretion under Rule 56(f) to defer judgment until he
had an opportunity to depose the affiants. We address these
issues in turn.
A. The Bona Fide Executive or High Policymaker Exemption A. The Bona Fide Executive or High Policymaker Exemption _____________________________________________________
The ADEA makes it unlawful for an employer to
"discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. 623(a)(1).3
The prohibition applies only to individuals who are at least
forty years of age. 29 U.S.C. 631(a). The ADEA provides
the following narrow exemption from this prohibition:
Nothing in this chapter shall be
construed to prohibit compulsory
retirement of any employee who has
attained 65 years of age and who, for the
2-year period immediately before
retirement, is employed in a bona fide
executive or a high policymaking
____________________
3. Because Massachusetts age discrimination law tracks
federal law in all relevant respects, see Mass. Gen. L. ch. ___
151B 4(1B), we will confine our discussion to federal law.
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position, if such employee is entitled to
an immediate nonforfeitable annual
retirement benefit from a pension,
profit-sharing, savings, or deferred
compensation plan, or any combination of
such plans, of the employer of such
employee, which equals, in the aggregate,
at least $44,000.
29 U.S.C. 631(c)(1).
The parties agree that Morrissey was not a "bona
fide executive" under the ADEA; the dispute concerns whether
he was a "high policymaker." The ADEA itself does not define
the term "high policymaking position," and few published
opinions address the exemption. We find guidance, however,
in the EEOC interpretive regulations set forth in 29 C.F.R.
1625.12 (1994).
Section 1625.12(e) defines high policymakers as
"`certain top level employees who are not "bona fide
executives,"'" and as "`individuals who have little or no
line authority but whose position and responsibility are such
that they play a significant role in the development of
corporate policy and effectively recommend the implementation
thereof.'" 29 C.F.R. 1625.12(e) (quoting H.R. Conf. Rep.
No. 950, 95th Cong., 2d Sess. 10 (1978)). For example, the
chief economist or chief research scientist of a corporation
would likely be a high policymaker:
His duties would be primarily
intellectual as opposed to executive or
managerial. His responsibility would be
to evaluate significant economic or
scientific trends and issues, to develop
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and recommend policy direction to the top
executive officers of the corporation,
and he would have a significant impact on
the ultimate decision on such policies by
virtue of his expertise and direct access
to the decisionmakers. Such an employee
would meet the definition of a `high
policymaking' employee.
Id. ___
As to the scope of the exemption, 1625.12(b) of
the regulations admonishes that it should be construed
narrowly, and that "the burden is on the one seeking to
invoke the exemption to show that every element has been
clearly and unmistakably met."
Morrissey does not dispute that, as Executive Vice
President for Corporate Affairs, he held the title of a high
policymaker. Indeed, he concedes that under former CEO
Spiller, he was a high policymaker. Instead, he argues that
the district court failed to apply the proper standard in its
analysis and overlooked genuine issues of material fact.
Morrissey's argument rests upon two premises, one legal and
one factual. The legal premise is that the law requires that
his status as a high policymaker be determined, not on the
basis of what he calls the "appearances" or "trappings" of
his position -- i.e., title, salary, access to decisionmakers
-- but on the basis of his effectiveness as a policymaker, as
judged by his actual impact on Bank policy and
decisionmaking. The factual premise is that, although he may
have been a high policymaker under former CEO Spiller, and
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while he continued to hold the same title until the Bank
forced him to retire, he no longer functioned as a true high
policymaker during the two-year statutory period, with
Blampied as CEO.
We find that, even assuming arguendo the truth of ________
Morrissey's legal premise and applying the effectiveness test
he urges, the undisputed facts clearly demonstrate that he
was a high policymaker during the relevant time period.
Significantly, Morrissey does not dispute the following: (i)
He reported directly to the CEO and had direct access to the
Bank's decisionmakers. (ii) He attended the weekly meetings
of the Senior Officers Group. (iii) He alone was responsible
for monitoring state and federal legislative and regulatory
developments, and in that capacity recommended policies to
ensure that the Bank remained in compliance with them. (iv)
He worked closely with state legislators on legislation that
was important to the savings bank industry, and that had a
substantial impact on the welfare of the Bank. (v) He was
responsible for monitoring and coordinating important tax
litigation involving the Bank, and made recommendations
regarding the choice of legal counsel to handle it. (vi) The
Bank acted upon Morrissey's strong recommendation that it
lower the interest rate on its passbook savings accounts.
(vii) He recommended that the Bank acquire the First American
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Bank. (viii) He was responsible for the sale of the Bank's
deposits in a branch office.
Even assuming that a high policymaker within the
meaning of the ADEA must function at some minimum level of
effectiveness, Morrissey was more than effective enough to
make precise line-drawing unnecessary here. As the district
court stated:
Morrissey had direct access to the top
decisionmakers, he was responsible for
evaluating significant legislative and
regulatory trends and issues and working
with legislators on these issues, and he
recommended policy on acquisitions and
mergers, capitalization, and other areas
of importance to the Bank. If
Morrissey's position, the fifth highest
in the Bank, were not to qualify as a
high policymaking position, it would be
difficult to find a position that did.
Morrissey v. Boston Five Cents Sav. Bank, F.S.B., 866 F. _________ _____________________________________
Supp. 643, 647 (D. Mass. 1994).
Given our conclusion, based on the undisputed
facts, that Morrissey was a high policymaker during the
statutory two-year period, we need not dwell on his argument
that the district court failed to apply the "functional
analysis" set forth in Whittlesey v. Union Carbide Corp., 567 __________ ___________________
F. Supp. 1320 (S.D.N.Y. 1983), aff'd, 742 F.2d 724 (2d Cir. _____
1984) (concluding that the test Congress intended is "one of
function," and rejecting the argument that plaintiff's high
salary and title as chief labor counsel automatically brought
him within the ADEA exemption). We note, however, that the
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court in Whittlesey anticipated and rejected Morrissey's __________
attempt to turn
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the functional test into a test of policymaking
effectiveness: _____________
I would be inclined to agree that if the
organizational structure of the
enterprise makes clear that the position
in question has bona fide executive rank
or serves a high policymaking function,
courts probably should not allow the
occupant to disavow the attributes of his
position by seeking to prove, for
example, that no one paid attention to
his policy recommendations or followed
his executive orders. But such
considerations are not involved in this
dispute.
Id. at 1328. See also Colby v. Graniteville Co., 635 F. ___ ___ ____ _____ ________________
Supp. 381, 386 (S.D.N.Y. 1986) ("Plaintiff's attempt to
diminish the importance of his duties as a bona fide
executive not only flies in the face of the undisputed facts,
but also common sense."). Moreover, as the district court
below stated, "[i]t is unlikely that Congress intended, in
amending the ADEA, to allow compulsory retirement for only
the most effective movers and shakers, while prohibiting such
retirement for high level employees who have less impact,
despite their significant responsibilities." Morrissey, 866 _________
F. Supp. at 648.
It follows from this analysis that any remaining
facts that truly are in dispute are not material. Anderson, ________
477 U.S. at 247-48.
B. The Pension Benefit Prong of the High Policymaker B. The Pension Benefit Prong of the High Policymaker _________________________________________________
Exemption Exemption _________
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The ADEA exemption applies only "if [the high
policymaker] is entitled to an immediate nonforfeitable
annual retirement benefit from a pension, profit-sharing,
savings, or deferred compensation plan, or any combination of
such plans, of the employer of such employee, which equals,
in the aggregate, at least $44,000." 29 U.S.C. 631(c)(1).
The Bank contends that this requirement has been satisfied
because, as of the first day of his retirement, Morrissey was
immediately entitled to receive slightly more than the
statutory minimum nonforfeitable annual benefit through a
combination of his QBP benefit and the nonforfeitable portion
of his SERP benefit. Morrissey argues that the requirement
has not been met because the law forbids "last-minute
manipulations of the pension benefit to bring an employee
within the exemption." The district court's analysis of the
intended function of the pension benefit provision compels us
to agree with the Bank.
The district court considered two possible
interpretations of the pension benefit prong. Under one
interpretation, the exemption would apply to employees who
qualify as high policymakers "provided that these employees _____________
receive an adequate pension." Morrissey, 866 F. Supp. at _________
649. This view holds that the pension benefit prong is not
"part of the test to determine if an employee can be retired, __
but rather [i]s simply a requirement imposed on the employer
-16- 16
to pay out $44,000 annually in benefits for every high
policymaker compelled to retire." Id. Under the second ___
interpretation, both the job function and pension benefit ____
prongs of the exemption comprise the test to determine
whether compulsory retirement is permitted. Id. ___
We think the first interpretation is more faithful
to the statute. After all, Congress did not impose the same
two-year minimum on both prongs of the exemption. By the
district court's analysis, the exemption contains two
distinct temporal restrictions, one of which applies to the
high policymaker prong, and the other of which applies to the
pension benefit prong:
On the one hand, Congress prevented
manipulation of the high policymaker
prong of the exemption by requiring that
high policymakers serve for two years ___ _____
before the exemption applies; thus,
promotions followed by quick retirement
are not permissible. On the other hand,
more modest time restrictions attach to
the pension funds prong: Congress merely
required that an employee be entitled to
an immediate benefit of $44,000 annually _________
upon retirement.
Id. ___
Had Congress meant for both prongs to be subject to
the two-year minimum, it presumably would have limited the
exemption to the employee who "for the 2-year period
immediately before retirement, is employed in a . . . high
policymaking position, [and] . . . is entitled to an ___
immediate nonforfeitable annual retirement benefit . . . . "
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That, however, is not what Congress wrote. Under the ADEA,
the high policymaker who is compelled to retire need only be
entitled to the statutory minimum amount in nonforfeitable
annual pension benefits immediately upon retirement.
In sum, we find the district court's analysis to be
persuasive and consistent with what the plain language of the
exemption would seem to require.4
C. The Rule 56(f) Motion C. The Rule 56(f) Motion _____________________
In opposition to the Bank's motion for summary
judgment, Morrissey submitted a Rule 56(f) affidavit, urging
that summary judgment be denied or, alternatively, deferred
on the ground that he had not had an opportunity to engage in
____________________
4. Our reading of the exemption forecloses Morrissey's other
argument, that both prongs of the exemption must be satisfied
at least as of the date the employee receives notice of his
involuntary retirement. Morrissey characterizes the date of
notice of retirement as the time of the act of
discrimination. As we construe the statute, as long as the
employee is entitled to the statutory minimum benefit as of
the day of his involuntary retirement, and as long as the
employee is otherwise within the exemption, the act of
compelling the high policymaking employee to retire does not
constitute an act of discrimination.
It also forecloses his argument that the Bank's
modification of his benefits should be viewed as
"manipulation." In support of this argument, Morrissey urges
the case of Passer v. American Chem. Soc'y, 935 F.2d 322 ______ _____________________
(D.C. Cir. 1991). As the district court noted, Passer is ______
distinguishable from the case before us because it involved
"a material dispute of fact as to whether the employee was
`genuinely entitled by the terms of the governing pension ____________________________________________________________
plan to at least $44,000 in annual retirement income.'" ____
Morrissey, 866 F. Supp. at 650 (quoting Passer, 935 F.2d at _________ ______
330) (emphasis added). The "manipulation" in that case was a
matter of interpretive and accounting legerdemain. Here,
there is no question that Morrissey was genuinely entitled to
at least this amount by the terms of his plan as amended.
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"meaningful discovery."5 At the summary judgment hearing,
the court responded to the Rule 56(f) affidavit by ordering
the Bank to produce documents, including minutes of Board of
Directors meetings that Morrissey had requested. The court
also ordered Morrissey to file a more specific Rule 56(f)
affidavit. Morrissey responded by filing a supplemental
memorandum and affidavits by four individuals,6 which he
contends clearly demonstrated that he was removed from a high
policymaking position when Blampied became CEO. The
memorandum also requested permission to depose these
individuals. On appeal, Morrissey contends that, because
these affidavits demonstrated the existence of a genuine
dispute of material fact, the district court should have
____________________
5. Fed. R. Civ. P. 56(f) provides as follows:
Should it appear from the affidavits of a
party opposing the motion [for summary
judgment] that the party cannot for
reasons stated present by affidavit facts
essential to justify the party's
opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such
other order as is just.
6. The affiants were Vernon L. Blodgett, Senior Vice
President and Treasurer of the Boston Five Bancorp from 1990-
1993; J. Barbara Magnuson, Corporate Secretary at the Bank
from 1986-1993; Melissa J. Howard, Vice President for
Marketing from 1987-1993; and Robert Spiller, President and
CEO of the Boston Five and the Boston Five Bancorp from 1970-
1990.
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denied or deferred summary judgment to allow for further
discovery under Rule 56(f).
Rule 56(f) is the means by which a party opposing
summary judgment may obtain a denial or deferral of judgment
upon a demonstration of "an authentic need for, and an
entitlement to, an additional interval in which to marshal
facts essential to mount an opposition." Resolution Trust ________________
Co. v. North Bridge Assocs., 22 F.3d 1198, 1203 (1st Cir. ___ _____________________
1994). Although the rule is "intended to safeguard against
judges swinging the summary judgment axe too hastily," id., a ___
party who seeks to invoke the rule must (i) make an
authoritative and timely proffer; (ii) show good cause for
the failure to have discovered these essential facts sooner;
(iii) present a plausible basis for the party's belief that
facts exist that would likely suffice to raise a genuine and
material issue; and (iv) show that the facts are discoverable
within a reasonable amount of time. Id. See also Paterson- ___ ___ ____ _________
Leitch v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d ______ _______________________________________
985, 988 (1st Cir. 1988). We review a district court's
denial of a Rule 56(f) motion only for abuse of discretion.
Resolution Trust Co., 22 F.3d at 1203. ____________________
The supplemental affidavits support the argument
that, under CEO Blampied, the Bank's high policymaking group
was no longer the Senior Officers Group, as it had been under
CEO Spiller, but rather comprised a subset of senior officers
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that did not include Morrissey. These affidavits do not
address any of the undisputed facts set forth supra that _____
unequivocally establish that Morrissey was a high
policymaker. Accordingly, the district court did not abuse
its discretion by refusing to deny or defer summary judgment
on the basis of these affidavits.
IV. Conclusion IV. Conclusion __________
For the foregoing reasons, we affirm the district we affirm the district _______________________
court's order granting summary judgment for the Bank. Costs court's order granting summary judgment for the Bank. Costs _____________________________________________________ _____
awarded to defendants. awarded to defendants. ______________________
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