Balestracci v. NSTAR Electric & Gas Corp.

United States Court of Appeals
For the First Circuit

No. 05-1894

LOUIS BALESTRACCI, ET AL.,

Plaintiffs, Appellants,

v.

NSTAR ELECTRIC AND GAS CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before

Selya, Lynch, and Lipez,
Circuit Judges.

Warren H. Pyle, with whom Pyle, Rome, Lichten, Ehrenberg &
Liss-Riordan, P.C. was on brief, for appellants.
Keith B. Muntyan, with whom Robert P. Morris and Morgan, Brown
& Joy were on brief, for appellee.

May 31, 2006
 LYNCH, Circuit Judge. The question in this case is

whether, under the Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. §§ 1001-1461, non-union retirees of NSTAR

Electric & Gas Corporation ("NSTAR") were entitled to vested

lifetime dental benefits which could not be changed by NSTAR, under

the terms of one of two early retirement programs ("ERPs"), one in

1997 and one in 1999. The district court granted summary judgment

to NSTAR on the plaintiffs' claims under ERISA. We affirm.

I.

Much of the relevant background is detailed in the

companion case, Senior v. NSTAR Electric & Gas Corp., No. 05-2015,

slip op. at 4-20 (1st Cir. May 31, 2006). That case involved the

question of whether certain labor agreements which allowed the

retirees to take advantage of the same ERPs at issue here gave

former union employees an entitlement to vested lifetime dental

benefits which could not be modified by the company. Id. at 2. In

Senior, we focused on interpretation of the labor agreements under

§ 301 of the Labor Management and Relations Act (LMRA), 29 U.S.C.

§ 185. Id. at 22. In this case, by contrast, there are no labor

agreements to be analyzed under § 301 of the LMRA; only ERISA

claims are raised.

Well before the establishment of the ERPs, the company

had provided non-union retirees with dental benefits. The summary

plan descriptions (SPDs) for the dental plan both before and after

-2-
the establishment of the ERPs, reserved the right of the company to

"amend, modify or terminate the Plan at any time" and did not vest

dental benefits. These SPDs were part of the dental plan

documents. The plaintiffs all received copies of these SPDs at the

time they took advantage of the ERPs.

The ERPs were described in program brochures distributed

to the plaintiffs. For plaintiffs retiring under the 1997

Personnel Reduction Program ("1997 PRP"), the brochure stated two

points of importance to the case:

Health and Dental Insurance Coverage:
. . . .
Employees who were at least age forty (40) and
had completed at least twelve (12) full years
of System service as of January 1, 1993 and
currently meet the "Rule of 75"[1] will be
entitled to medical and dental insurance
coverage providing they pay ten percent (10%)
of the current medical and dental premium
until age sixty two (62). At age 62 the
Company will pay 100% of the premium.

The 1997 PRP brochure at the same time made those dental benefits

subject to the ERISA dental plan documents:

This summary is not intended to offer detailed
descriptions of the System's employee benefit
plans. All information furnished is governed
by the provisions of the actual plan documents
pertaining to the appropriate benefit plans.
If any conflict arises between this summary
and the System's employee benefit plan
documents, or if any point is not covered, the
terms of the appropriate plan documents will
govern in all cases.

1
The "Rule of 75" refers to the age of the employee plus the
years of service.

-3-
Thus, the 1997 PRP brochure referred employees to plan documents,

which themselves contained a reservation of the company's right to

alter the benefits.

As to the 1999 Voluntary Severance Program ("1999 VSP"),

a brochure distributed to non-union employees stated generally that

for "those employees who are eligible for post-retirement . . .

benefits," "[c]overage will continue to employee and eligible

dependents." That brochure provided no further details regarding

the retirement dental plan coverage. Importantly, it did contain

a similar reference to the plan documents, as had the 1997 PRP

brochure, stating that "the appropriate plan documents . . . will

govern in all cases." In addition, the 1999 brochure contained its

own explicit reservation of rights to the company:

The Company reserves the right to change and
terminate coverage for current and former
employees at any time. Any such change may be
in the benefits provided, the contributions
required, or in any other aspect in accordance
with applicable laws.

Thus, the 1999 VSP brochure both referred to the plan documents and

contained its own reservation of rights by the company.

Each of the plaintiffs took advantage of one or the other

of the two ERPs, and received individualized retirement benefits

summaries. The plaintiffs' case relies on two categories of

evidence which contained no language about the company's

reservation of rights. As to dental benefits, the summaries

provided the exact same terms for all plaintiffs, regardless of

-4-
which ERP they took advantage of: "Your dental coverage will be for

your life. Your spouse and/or eligible dependents will be covered

for 12 months after your death." The summaries did not include an

express statement reserving the company's right to alter the plan,

but did contain a reference to the plan documents, which themselves

contained the reservation:

This summary is not intended to offer detailed
descriptions of employee benefit plan. All
information furnished is governed by the
provisions of the actual plan documents
pertaining to the appropriate benefit plans.
If any conflict arises between this summary
and the System's employee benefit plan
documents, or if any point is not covered, the
terms of the appropriate plan will govern in
all cases.

The plaintiffs do not claim that company representatives

orally promised that the benefits were vested, or that they could

not be modified or terminated by the company; they do argue that

the company representatives omitted the fact that retirement dental

benefits could be modified or terminated by the company at any

time.

In December 2002, the company notified the plaintiffs and

other employees who had participated in the ERPs that their dental

benefits would cease once they reached age 65, if they had not

already reached that age by April 1, 2003.

The plaintiffs filed suit on May 25, 2004. They alleged

that the company had violated ERISA by violating the terms of the

ERPs, in that the dental benefits were vested and so could not be

-5-
discontinued until the death of the retiree. In the alternative,

they alleged that if the ERPs did not provide for vested lifetime

dental benefits, the company was in breach of its obligation as an

ERISA fiduciary to "discharge [its] duties with respect to a plan

solely in the interest of the participants and beneficiaries," 29

U.S.C. § 1104(a)(1), by having misrepresented to them, at the time

they were considering the ERPs, that the benefits were vested.

On May 31, 2005, the district court granted the company's

motion for summary judgment in its entirety. The court relied

entirely on the reasoning from its decision rejecting the union

retirees' ERISA claims for vested retirement benefits under the

ERPs, see Senior v. NSTAR Elec. & Gas Corp., 372 F. Supp. 2d 159,

166-68 (D. Mass. 2005), which had issued that same day.

The district court stated that there was a "strong

presumption against the automatic vesting of welfare benefits" and

that a promise to vest "is not to be inferred lightly." Id. at

165. It noted that the plaintiffs could only point to the

individualized benefits summaries and program brochures to support

their claim for vested retirement dental benefits. Id. at 166-67.

The district court rejected the plaintiffs' claims that the welfare

benefits were vested and unchangeable, "refus[ing] to infer a

vesting requirement based on personalized documents that plainly

state they are not governing" and that "explicitly direct

prospective retirees to consult the 'actual plan' documents, which,

-6-
in turn, properly reserve for the [company] the right 'to amend,

modify or terminate the Plan at any time.'" Id. at 167.

The district court also rejected the plaintiffs' claims

of breach of fiduciary duty, finding no evidence that the company

intended to mislead the retirees about the scope of the benefits.

Id. at 167-68. It noted that the statement regarding "lifetime"

benefits was contained not in a governing plan document, but in

individualized benefits summaries which were not governing. Id. at

168. The district court also noted the company's position that, at

the time of the ERPs, the company had thought it would be able to

provide lifetime benefits, but had continued to reserve its right

to "amend, modify, or terminate the Plan at any time" should future

conditions change. Id. The court found this position "consistent

with the documentation." Id.

On appeal, the plaintiffs challenge the district court's

conclusion that the 1997 and 1999 ERPs did not provide vested

lifetime dental benefits. In the alternative, they argue that the

company was in breach of its fiduciary duties under ERISA by having

misrepresented the plan benefits when the plaintiffs were

considering whether to take advantage of the ERPs.

II.

We first dispose of an issue about the governing law.

The company argues that the ERPs are not themselves ERISA benefit

plans, and therefore the plaintiffs' claims are not cognizable

-7-
under ERISA. See Senior, 372 F. Supp. 2d at 166 n.6 (rejecting the

argument). The company relies on our opinion in O'Connor v.

Commonwealth Gas Co., 251 F.3d 262 (1st Cir. 2001), a case

involving one of the same retirement programs (the 1997 PRP). The

company is wrong in its premises and in its analysis. Whether the

ERPs themselves constitute ERISA plans, or whether they concern

preexisting ERISA welfare benefits, is beside the point. The

plaintiffs' claims are about dental benefits under an ERISA plan

and ERISA.

The plaintiff retirees in O'Connor, two former non-union

employees of Commonwealth Gas, had retired just before the

implementation of the 1997 PRP. Id. at 265. They brought suit

"claiming that material misrepresentations made by agents of [the

company] misled them into retiring before the effective date of the

[1997 PRP]" in breach of the company's fiduciary duties under

ERISA. Id. At issue were the significant severance benefits that

were offered to those taking advantage of the 1997 PRP, not the

dental benefits at issue here. Id. We noted that those severance

benefits "fit[] comfortably within the category of benefits we have

deemed not subject to ERISA coverage because of their limited non-

discretionary nature." Id. at 268. We found that, to the extent

the 1997 PRP increased other benefits that may have implicated

ERISA, those changes were "little more than afterthoughts to the

-8-
severance bonus" and thus insufficient to move the plaintiffs'

misrepresentation claims into the realm of ERISA. Id.

By contrast, the retirement dental benefits at issue here

are undoubtedly ERISA welfare benefits. See 29 U.S.C. § 1002(1)

(defining welfare benefit plans as plans that provide "medical,

surgical, or hospital care or benefits, or benefits in the event of

sickness, accident, disability, death or unemployment"). Provision

of these dental benefits requires the sort of "continuing

administrative and financial obligations by the employer to the

behoof of employees or their beneficiaries" that the Supreme Court

has required before finding the existence of an ERISA plan.

Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir. 1995)

(citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12 (1987);

Dist. of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130

n.2 (1992)). These dental benefits had been provided by the

company to retirees for a number of years prior to the ERPs, under

terms provided by the dental plan documents.

That the aspect of the ERPs at issue in O'Connor, the

severance payment, was found to be not enforceable under ERISA does

not make the retirement dental benefits at issue here similarly

unenforceable under ERISA. "[I]n dealing with a multi-faceted

. . . early retirement Program, some facets may be governed by

ERISA . . . , while others may be governed by state law . . . . If

a facet is governed by ERISA, any dispute over the terms of that

-9-
benefit must be resolved by looking to ERISA's statutory provisions

and relevant case law." Stearns v. NCR Corp., 297 F.3d 706, 710

(8th Cir. 2002).

We turn to the plaintiffs' claims under ERISA.

III.

We review the district court's entry of summary judgment

de novo, drawing all reasonable inferences in favor of the

plaintiffs as the non-moving party. Fenton v. John Hancock Mut.

Life Ins. Co., 400 F.3d 83, 87 (1st Cir. 2005). Summary judgment

is appropriate if there is no genuine dispute as to material facts

and the moving party is entitled to judgment as a matter of law.

Id. We may affirm on any ground supported by the record.

Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).

Further, the parties agree that the company's interpretation of the

plan is subject to de novo review under ERISA.

A. Violation of the Terms of the ERISA Welfare Benefit Plan

ERISA draws a distinction between welfare benefit plans

and pension benefit plans. Unlike pension benefit plans, which are

subject to strict vesting requirements, welfare benefits are not

automatically vested under ERISA. "ERISA does not create any

substantive entitlement to . . . welfare benefits," and

"[e]mployers or other plan sponsors are generally free under ERISA,

for any reason at any time, to adopt, modify, or terminate welfare

-10-
plans." Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78

(1995). As the Supreme Court has noted:

The flexibility an employer enjoys to amend or
eliminate its welfare plan is not an accident;
Congress recognized that "requir[ing] the
vesting of these ancillary benefits would
seriously complicate the administration and
increase the cost of plans." Giving employers
this flexibility also encourages them to offer
more generous benefits at the outset, since
they are free to reduce benefits should
economic conditions sour. If employers were
locked into the plans they initially offered,
"they would err initially on the side of
omission."

Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa Fe

Ry., 520 U.S. 510, 515 (1997) (alteration in original) (internal

citation omitted) (quoting S. Rep. No. 93-383, at 51 (1973); Heath

v. Varity Corp., 71 F.3d 256, 258 (7th Cir. 1995)).

An employer may "contractually cede[] its freedom" to

amend and terminate the plan and may provide retirees with vested

retiree welfare benefits that cannot be changed unilaterally. Id.

An employer may cede this freedom in bilaterally negotiated

contracts, like collectively bargained labor agreements, see

Senior, slip op. at 2, or in the ERISA plan itself, see Am. Fed'n

of Grain Millers v. Int'l Multifoods Corp., 116 F.3d 976, 980 (2d

Cir. 1997).

The interpretation of the provisions of an ERISA benefit

plan proceeds under federal substantive law, and is guided by

"common sense principles of contract interpretation," Filiatrault

-11-
v. Comverse Tech., Inc., 275 F.3d 131, 135 (1st Cir. 2001),

although principles from the law of trusts are employed in certain

cases, Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir. 1992).

See also Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d

580, 585 (1st Cir. 1993); Burnham v. Guardian Life Ins. Co., 873

F.2d 486, 489-90 (1st Cir. 1989).

The rules of interpretation of ERISA welfare benefit

plans when dealing with unambiguous terms are uncontroversial. See

Grain Millers, 116 F.3d at 980 (citing cases). Under ERISA,

unambiguous language in a plan is enforced according to its terms.

See Filiatrault, 275 F.3d at 135; Burnham, 873 F.2d at 490-91. The

question of whether an ERISA plan term is ambiguous is generally a

question of law for the judge. See Allen, 967 F.2d at 698.

It is also the rule that ambiguity in a plan term does

not necessarily foreclose summary judgment, as when "the evidence

presented about the parties' intended meaning [is] so one-sided

that no reasonable person could decide the contrary." Id. at 698

(quoting Boston Five Cents Sav. Bank v. Sec'y of Dep't of HUD, 768

F.2d 5, 8 (1st Cir. 1985)).

However, there is substantial disagreement among the

courts, and between the parties here, about whether ambiguous plan

language may support a finding that a company has promised to vest

ERISA welfare plan benefits. See Grain Millers, 116 F.3d at 980.

-12-
Under ordinary rules of ERISA plan interpretation, if a party

demonstrates ambiguity in a plan on a particular question,

reference may be made to extrinsic evidence to determine the

parties' intended meaning. See Smart v. Gillette Co. Long-Term

Disability Plan, 70 F.3d 173, 178 (1st Cir. 1995). If such

extrinsic evidence is not one-sided, the issue of the parties'

intent might be for the fact-finder. Allen, 967 F.2d at 698.

The company argues for a departure from these ordinary

rules. It asserts that the intent to vest lifetime welfare

benefits that cannot be changed by the company must be found in

clear and express language in the ERISA plan documents. In other

words, the company argues that if the plan language is ambiguous on

the question, there is a presumption that welfare benefits are not

vested. The plaintiffs argue that there is no such presumption

against the vesting of ERISA welfare benefits.2

The circuits have adopted different rules of construction

as to vesting of welfare benefits. Such rules may be helpful in

2
The plaintiffs make an offhand suggestion that ambiguous
terms should be construed against the company as the drafter, under
the principle of contra proferentem. It is unclear whether
application of this principle would be appropriate in the context
of retirement dental benefits under an ERP. Compare Allen, 967
F.2d at 695 & n.6 (declining to apply the doctrine in a case
involving interpretation of a severance pay plan and finding that
"application of the doctrine in ERISA cases generally would be
inappropriate"), with Hughes v. Boston Mut. Life Ins. Co., 26 F.3d
264, 268 (1st Cir. 1994) (suggesting doctrine is appropriate in the
context of insurance contracts). Since the terms of the plan are
not ambiguous, and in the absence of developed argumentation, we do
not address the point further.

-13-
particular factual situations but are certainly not a starting

point for analysis. We reject the analysis apparently used by the

district court, see Senior, 372 F. Supp. 2d at 165, 166-67, that

there can never be vesting of retirement welfare benefits unless

there is a clear and express statement of such vesting.

Congress's decision to give employers, in the absence of

an affirmative promise to vest welfare benefits, the flexibility to

amend and terminate ERISA welfare benefit plans does not mean that

ERISA requires a strict rule of construction against vesting of

retirement welfare benefits. The company has pointed to nothing

else in ERISA or its legislative history to suggest Congress

intended these questions to start with such a presumption.

Furthermore, the Supreme Court has "analogized ERISA benefit plans

to trust agreements and observed that trust agreements are to be

construed 'without deferring to either party's interpretation.'"

Allen, 967 F.2d at 701 (quoting Bruch, 489 U.S. at 112).

Our case does not involve a special situation. The

dental plan documents are express that the company reserves the

right to change even promises of lifetime benefits. In that sense,

the benefits are not vested. And the 1997 PRP program brochure and

the individualized benefits summaries expressly refer to the dental

plan documents, which contain those reservations. The 1999 VSP

brochure not only refers to those same plan documents, but contains

its own express reservation.

-14-
 The plaintiffs argue that the ERPs, nonetheless,

unambiguously vest lifetime retirement dental benefits that cannot

be changed. Plaintiffs' argument is that to give content to the

lifetime benefits language in the ERPs, it is necessary to construe

the ERPs as creating a new ERISA plan, independent of the

continuing ERISA dental plan. That is why, they say, the ERPs do

not themselves refer to any specific dental plan. They ask us to

focus on the language in the ERP program brochures and the

individualized benefit summaries.3 They acknowledge that those

documents reference the SPDs, which contain an express reservation

of the company's right to amend the plan. But they argue that the

"vague reference . . . to the plan documents would not inform the

reasonable employee that he or she should review the entirety of

several lengthy policies" to determine his or her rights under the

dental benefit plans.

3
The company argues that the program brochures and
individualized benefits summaries are merely "informal
communications," and do not govern the company's obligations at
all. Some courts have held that informal communications that do
not meet the requirements in 29 U.S.C. § 1102(b) (providing
requisite features of a "plan") or 29 U.S.C. § 1022(b) (providing
requirements for an SPD) cannot alter the terms of an ERISA welfare
benefit plan as provided in documents meeting such requirements.
See Gable v. Sweetheart Cup Co., 35 F.3d 851, 857 (4th Cir. 1994);
Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1523 & n.1 (9th
Cir. 1993); Alday v. Container Corp. of Am., 906 F.2d 660, 665
(11th Cir. 1990); see also Deboard v. Sunshine Mining and Refining
Co., 208 F.3d 1228 (10th Cir. 2000) (letters regarding an early
retirement program met the requirements for establishing a separate
ERISA plan). We do not reach this question.

-15-
 The argument fails on several grounds. There is no basis

for the plaintiffs' assertion that the ERPs themselves constitute

their own separate ERISA plan. The plaintiffs admit that the

brochure and the plan documents do not meet the requirements of an

ERISA plan or SPD. They counter by asserting that the "creation of

an ERISA plan does not depend on the existence of formal

documentation." But the ERPs themselves refer to existing ERISA

plans as providing the more specific terms. The references to the

plan documents in the ERP brochures and the individualized plan

summaries are prominent. For example, the 1997 PRP brochure states

in bold letters that the plan documents are "The Last Word."

Furthermore, under ERISA, we cannot ignore the SPDs which

do contain the reservation, because SPDs play a key role in

"communicat[ing] to beneficiaries the essential information about

the plan." Curtiss-Wright, 514 U.S. at 83. ERISA requires SPDs to

be "written in a manner calculated to be understood by the average

plan participant, and . . . be sufficiently accurate and

comprehensive to reasonably apprise such participants and

beneficiaries of their rights and obligations under the plan." 29

U.S.C. § 1022(a). Given the important informational role SPDs play

under the ERISA scheme, it would be improper to ignore the terms

provided by the SPDs.

The plaintiffs further argue that, even considering the

reservation of rights in the SPDs, a reasonable fact finder could

-16-
conclude that the dental benefits are vested. They suggest that

the best way to reconcile the reservation of rights in the SPDs and

the language regarding lifetime benefits in the individualized

summaries, is to read the reservation as only permitting the

company to terminate the services of a particular dental plan

provider, while continuing to be obligated to provide the

plaintiffs with dental plan coverage.4

No reasonable reader of the documents could reach that

conclusion. The SPDs reserve to the company "the right . . . to

amend, modify, or terminate the Plan at any time." Given the rule

under ERISA that an employer is generally free at any time, absent

an undertaking to the contrary, to cancel a welfare benefit plan,

see Curtiss-Wright, 514 U.S. at 78, this language can only be

reasonably read to allow the company to terminate dental plan

coverage. See Gable, 35 F.3d at 856 (rejecting a similar

argument). The only reasonable reading of the ERPs is that the

company would provide lifetime benefits to its retirees subject to

its reservation of the right to modify, alter, or terminate dental

plan coverage should future circumstances require such changes.

The past practice of the company in the provision of

retirement dental benefits confirms our conclusion. See Allen, 967

4
In their reply brief, plaintiffs state that they do not
claim dental coverage with no alteration of benefits. But the only
changes they appear to agree are permitted are those changes
incident to a change in the dental plan provider.

-17-
F.2d at 698, 702 (relying, in part, on past practice in

interpreting an ERISA severance pay plan). The company had

provided non-union retirees with dental benefits well before the

ERPs were created. The plaintiffs do not claim that the benefits

provided during this time were vested. Rather, they argue the ERPs

changed the prior practice, and are new ERISA plans that guarantee

vested lifetime dental benefits. However, the reservation of the

company's right to amend, modify, and terminate the dental plan in

the dental plan SPDs does not reflect such a change after the

creation of the ERPs. The individualized plan summaries and

program brochures that plaintiffs claim created the new ERISA plan

clearly state that the plan documents are governing. The oral

statements made by the company representatives which omitted the

reservation are similarly insufficient to overcome the unambiguous

reservation of rights in the plan documents. See Bellino v.

Schlumberger Techs., Inc., 944 F.2d 26, 32-33 (1st Cir. 1991); see

also 29 U.S.C. § 1102(a)(1) ("Every employee benefit plan shall be

established and maintained pursuant to a written instrument."

(emphasis added)). A number of courts have held that, since ERISA

requires that plans be "established and maintained pursuant to a

written instrument," oral statements cannot amend the terms of an

ERISA plan. See, e.g., Perreca v. Gluck, 295 F.3d 215, 225 (2d

Cir. 2002); In re Unisys Corp. Retiree Med. Benefit "ERISA"

Litigation, 58 F.3d 896, 902 (3d Cir. 1995).

-18-
B. ERISA Breach of Fiduciary Duty

The plaintiffs' alternative argument is that the company

was in breach of its fiduciary obligation5 as administrator of the

retirement plans when it "misrepresented" the terms of that plan to

the employees. We do not think that there is enough evidence to

create a misrepresentation case here. The plaintiffs only claim

that the company omitted the fact that the dental benefits could be

terminated or amended during meetings prior to their participation

in the ERPs. But the plaintiffs were put on notice of the

company's right to modify, amend, and terminate the plan by the

individualized benefits summaries and program brochures, which

pointed to the underlying plan documents that contained the

reservation of rights.6

5
The Supreme Court has limited individual claims for breach
of fiduciary duty under ERISA "to those participants who are unable
to avail themselves of other remedies." Mauser v. Raytheon Co.
Pension Plan for Salaried Employees, 239 F.3d 51, 58 (1st Cir.
2001) (availability of other relief precludes claims for breach of
fiduciary duty based on alleged misrepresentations in the summary
plan description (citing Varity Corp. v. Howe, 516 U.S. 489, 512-13
(1996))). The parties have not discussed the question of whether
a breach of fiduciary duty would be duplicative of other remedies
under ERISA for the misrepresentations claimed here.
6
Plaintiffs also raise state law promissory estoppel claims
on appeal. The district court ruled that ERISA preempted
plaintiffs' state law claims, see Senior, 372 F. Supp. 2d at 164-65
& n.3, and plaintiffs do not explain why this conclusion was
incorrect. In any event, the argument is waived for lack of
developed argumentation on appeal. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).

-19-
 IV.

For the foregoing reasons, we affirm the grant of summary

judgment. The parties shall bear their own costs.

-20-