In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3287
K ENNETH A. C ARTER, et al.,
Plaintiffs-Appellants,
v.
P ENSION P LAN OF A. F INKL & S ONS C OMPANY
FOR E LIGIBLE O FFICE E MPLOYEES, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 7169—Rebecca R. Pallmeyer, Judge.
A RGUED M AY 5, 2011—D ECIDED A UGUST 15, 2011
Before M ANION, W OOD , and W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. When a qualified pension plan
decides to terminate, it must follow a careful and exacting
process that ends with the plan purchasing annuities for
all its beneficiaries from a third-party private insurance
company. The A. Finkl & Sons Pension Plan decided
to voluntarily terminate, but after going through some
extensive initial steps, it realized that it would be too
2 No. 10-3287
expensive and formally withdrew from the process. At
the heart of its decision was an amendment to the
Plan that provided that if the Plan terminated, the em-
ployees could keep working at Finkl while still
receiving the annuities that Finkl purchased for them.
The costs associated with this benefit were far more
than Finkl anticipated.
After Finkl notified its employees and the govern-
ment agency that it had decided not to terminate the
Plan, a group of Finkl employees sued. They claimed
that the Plan had taken away some of their protected
rights, rights that are guaranteed under the Employ-
ment Retirement Income Security Act of 1974, 29 U.S.C.
§§ 1001, et seq. and under the Plan’s own provisions.
Under the Act and Finkl’s own Plan, some benefits are
protected from amendment—that is, certain benefits
once given cannot be taken away or decreased. This
is commonly referred to as the anti-cutback provision or
anti-cutback clause, depending on whether it is con-
tained in the Act or the plan’s own terms.
Plaintiffs argued that their ability to receive an annuity
while still working at Finkl was protected both by the
Act and under the language of Finkl’s Plan. The Plan
protects beneficiaries from amendments that decrease
“accrued benefits.” Plaintiffs recognized that the amend-
ment gave them the right to receive an annuity while
still working only if the Plan terminated. Thus, they
claim that the Plan had in fact terminated and their
right to the annuity while still working had accrued.
The district court found that plaintiffs’ ability to receive
an annuity while still working is not a protected right
No. 10-3287 3
under either the Act or the Plan’s own terms. The Act
only protects certain benefits, and those relevant here
are all tied to benefits available at retirement. The district
court also found that plaintiffs’ ability to receive an
annuity while still working was contingent on the Plan
terminating. Despite plaintiffs’ argument to the contrary,
the Plan never terminated—it was in the process of termi-
nating but quickly withdrew from the process prescribed
by the Act and the governing regulations when it dis-
covered the unexpected financial impact.
Plaintiffs now appeal and we affirm. The district court
was correct that plaintiffs’ right to an immediate
annuity while still working at Finkl was not a right pro-
tected by the Act. Further, the plaintiffs would only
have an accrued and thus protected benefit under the
Act if the Plan terminated, and the Plan did not termi-
nate. Instead, it withdrew from the process before it was
completed. Thus, plaintiffs do not have an accrued right
that was protected from amendment.
A. Background
Finkl is a large steel company based in Chicago. Among
the benefits it offers employees is a defined benefit
pension plan that qualifies under the Employment Re-
tirement Income Security Act of 1974, 29 U.S.C. § 1001, et
seq. At some point in 2006, Finkl decided to terminate
its Plan. [Tab 1]. The record isn’t completely clear why,
but it seems that Finkl anticipated merging with another
company; apparently, the outstanding liability that at-
tached to the Plan was a stumbling block. So in hopes
4 No. 10-3287
of moving forward with the merger, Finkl decided to
terminate the Plan. [Tab 2-3]. Although Finkl and its
Plan are separate legal entities, for clarity’s sake we
sometimes refer to them as one.
1. Plan Termination Process
Under the Act, a plan may only terminate after an
involved process. Depending on how you count the
steps there are over thirteen with many, many regula-
tions to follow. First, there must be sufficient assets to
cover the plan’s liabilities—the benefits promised to its
beneficiaries, namely the employees. Then, if the plan
anticipates that it has enough assets, it must get permis-
sion from the federal agency that oversees and insures
pension plans: the Pension Benefit Guaranty Corporation,
which we refer to as the Agency. Once that happens, a
detailed timeline for terminating the plan is set by
the Agency and the governing regulations. Under this
schedule, the plan proceeds through several steps in-
volving various accountings, forms, and approvals.
Finally, the plan buys annuities from a third-party in-
surance company to ensure that the beneficiaries receive
all the retirement benefits they have earned. This is re-
ferred to as the distribution of assets.
After the distribution of assets occurs, the plan certifies
to the Agency that it has completed the process. The
Agency reviews all the documents and either agrees
or issues a notice of non-compliance. A notice of non-
compliance nullifies all the plan’s previous actions and
renders it ongoing, which means that under the law
No. 10-3287 5
the plan has not terminated. Thus, it is still operating
and must comply with all of the Act’s provisions—this
includes funding the plan. If a plan fails to comply with
the Act’s provisions, it can lose its qualified tax status,
opening itself and its beneficiaries up to severe tax conse-
quences and penalties. 26 U.S.C. § 411(d)(6)(A); Id.
§ 402(b)(1) (employees pay taxes on the contributions
as gross income), Id. § 404(a)(5); Flight Attendants
Against UAL Offset v. Comm’r of Internal Revenue, 165 F.3d
572, 574-75 (7th Cir. 1999); e.g., John D. Colombo, Paying
for Sins of the Master: An Analysis of the Tax Effects of
Pension Plan Disqualification and a Proposal for Reform, 34
Ariz. L. R. 53, 54-57 (1992). Plans want to avoid losing
their qualified tax-status at all costs. In fact, some refer
to the threat of losing the qualified tax-status as the
“ ‘nuclear bomb’ method of enforcement.” Id. at 55.
2. The Finkl Plan Termination
Believing that the Plan’s assets could cover its liabilities,
Finkl began the tedious process for terminating the Plan.
After it received permission from the Agency to proceed
with the termination, the Agency set a target date for
the Plan to finish the accountings and disburse its assets.
Finkl also notified employees about the decision to termi-
nate the Plan. Soon thereafter, the Plan adopted Amend-
ment 1, which provided, in relevant part, that
[i]f a Participant has not begun to receive a benefit
under the Plan at the time benefits are to be distributed
on account of termination of the Plan, he may elect
6 No. 10-3287
to receive his benefit . . . under the Plan in the form of
an immediate annuity or a deferred annuity . . . regardless
of whether he remains employed by the Employer. (Empha-
sis added.)
Much of this case centers on Amendment 1 and its effect.
After amending the formal, written pension plan
and sending out notice, problems began to arise. Citing
the fact that it had taken “considerably longer than antic-
ipated to complete benefit election forms,” the Plan
wrote to the Agency and asked for more time. The
Agency granted it an extension. And months later, the
Plan again sought and was granted another extension
for completing the process.
Following this second extension—and fifteen months
after it was first scheduled to terminate—the Plan sent
the beneficiaries a benefit-election form. This form
showed the employees a dollar figure for the benefits
they individually should anticipate receiving every
month; it also let the employees choose whether they
wanted to receive an immediate annuity or wait for
retirement to start receiving benefits. A number of
Finkl’s employees—several of them the plaintiffs in
this case—returned the forms with their own benefit
calculations on them, correcting what they believed
were erroneous calculations on the Plan’s part. On the
forms, several of the employees also elected to receive
immediate life annuities while remaining employed
with Finkl. This would enable them to take full ad-
vantage of the benefit that Amendment 1 provided.
No. 10-3287 7
3. Finkl Withdraws from the Termination
Four days after receiving these forms, Finkl balked
at finishing the termination process. Apparently
when the forms were returned, Finkl realized that it
had underestimated the Plan’s outstanding obligations.
In the words of Finkl’s Human Resources Director,
“[it] became concerned that the additional contribution
Finkl would be required to make could be more than
originally estimated.” After Finkl realized that ter-
minating the Plan would be too expensive, on May 28
it sent a letter to all the beneficiaries to notify them
that the company was not going to terminate the Plan.
At the same time, the Plan sent a letter to the Agency
letting it know that the Plan would not continue with
the termination process. Responding to the Plan’s letter,
on June 6 the Agency informed the Plan that as far as it
was concerned the termination was withdrawn and the
Plan remained ongoing. It also directed the Plan to
notify its beneficiaries that “the Plan did not (or will not)
terminate.” Soon after, the Plan amended the contract
a second time, nullifying Amendment 1 with Amend-
ment 2, which provided that “[Amendment 1] is hereby
deleted in its entirety.”
4. Plaintiffs’ Demands
Less than two weeks after this second amendment,
the plaintiffs hired an attorney and demanded that the
Plan immediately comply with Amendment 1 and distrib-
ute the Plan’s assets. Specifically, the plaintiffs claimed
that Amendment 2 violated the Act’s anti-cutback provi-
8 No. 10-3287
sion. That provision prohibits pension plans from taking
away beneficiaries’ protected rights, lest the Plan lose
its tax-qualified status. The Plan’s attorney wrote back
and told the plaintiffs that they were not entitled to
the benefits they sought. The attorney articulated the
same position that the Plan has taken throughout this
litigation: the plaintiffs’ right to receive the benefit
offered under Amendment 1 was contingent on the
Plan terminating, but since it was only in the process of
terminating when Finkl decided to withdraw from
the process, the Plan did not terminate. And since the
Plan did not terminate, the plaintiffs did not have
any right to the benefits promised under Amend-
ment 1. The Plan also continued to operate as though
it were an ongoing Plan complete with Finkl making
periodic contributions.
Five months passed from the initial letter from Finkl’s
attorney, when the plaintiffs sent the Plan’s attorney a
second letter demanding that the pension committee
review the claim forms that the plaintiffs had orig-
inally filed. On the original claim forms, the plaintiffs
had opted to receive the annuity while working and
claimed that the Plan had calculated their benefits incor-
rectly. In particular, the plaintiffs claimed that the
Plan improperly excluded certain bonuses Finkl paid
them from their pension-benefit calculation. Plaintiffs’
second claim rests on how these bonuses are calculated.
Like many companies, Finkl paid its employees bonuses.
Initially, these bonuses were not counted towards the
employees’ pension benefits. But in 1991, Finkl amended
the contract and started to categorize its bonuses, as
No. 10-3287 9
either special or regular. Under the contract’s terms,
regular bonuses counted towards an employee’s benefit
calculation for retirement, while special bonuses did not.
The plaintiffs claimed that they didn’t know about this
distinction and that both should have been counted
towards their final benefit calculation.
Ultimately, the Plan denied both claims. And when the
plaintiffs appealed the denial through the Plan’s review
process, that appeal was also denied. In its decision,
the pension committee echoed the reasoning given
months earlier by the Plan’s attorney: namely, the plain-
tiffs’ right to an annuity while still working under Amend-
ment 1 was contingent on the Plan terminating, but
since the Plan never terminated, the plaintiffs weren’t
entitled to the annuity. The pension committee also
rejected the plaintiffs’ argument concerning the special
bonuses.
After this, the plaintiffs filed suit repeating the claims
and arguments they had made before the pension com-
mittee, while also claiming they were entitled to
attorney’s fees. In a very thorough order, the district
court granted summary judgment in the Plan’s favor.
The court held that Amendment 2 did not violate the
Act’s anti-cutback provision, nor did it violate the
Plan’s own anti-cutback clause. The court also held that
the plaintiffs had no legitimate claim to enhanced
benefits by counting both regular and special bonuses
in their pension-benefit calculation. And it held that
the plaintiffs were not entitled to attorney’s fees. The
plaintiffs appeal, pressing the same arguments.
10 No. 10-3287
B. Anti-Cutback Rule
The crux of this appeal is whether plaintiffs are en-
titled to the benefits promised them under Amendment 1—
that is, do they have the right to receive a life annuity
while still working at Finkl. Normally, beneficiaries
do not receive their pension benefits before they actu-
ally retire. As a general matter, if a plan disburses
plan assets to a beneficiary before he retirees, the plan
will lose its protected tax-status. 26 U.S.C. § 401(a);
Rev. Rule 56-693, 1956-2 CB 282 modified by Rev.
Rule 60-323, 1960-2 CB 148; IRS Notice 2007-8 (noting “a
qualified pension plan is generally not permitted to
pay benefits before retirement”). There are narrow ex-
ceptions to this general statement, including an ex-
ception for terminating plans. Rev. Rule 60-323, 1960-2
C.B. 148 (1960). Terminated plans are allowed to dis-
burse benefits to those enrolled in the plan regard-
less of their employment status, for the reason that a ter-
minating plan is winding up its affairs by distributing
the assets to the beneficiaries. But as we will see, the
Plan here did not terminate, and so this exception does
not apply.
Indeed, the general rule reflects the Act’s purpose: to
ensure that employers keep the promises they’ve made
to retirees—“retirees” being the key term. Cent. Laborers’
Pension Fund v. Heinz, 541 U.S. 739, 743 (2004). While
plan administrators may freely and unilaterally amend
the plan to address challenges and changes that arise,
the Act has a specific provision that forbids plan admin-
istrators from amending plans in such a way that they
No. 10-3287 11
decrease beneficiaries’ protected benefits. 29 U.S.C.
§ 1054(g); Herman v. Central States, S.E. and S.W. Areas
Pen., 423 F.3d 684, 691 (7th Cir. 2005) (“Plan amendments
are permitted . . ., but an amendment may not
decrease benefits that have already accrued.” (quotation
omitted)). We commonly refer to this as the anti-cutback
provision. Under it, changes that diminish certain
benefits are prohibited—in other words, there are
certain promises the Plan must keep or lose its tax-pro-
tected status. Heinz, 541 U.S. at 746-47; see also Board of
Trustees of Sheet Metal Workers’ Nat’l Pension Fund v. C.I.R.,
318 F.3d 599, 602 (4th Cir. 2003) (“Under ERISA and
the Tax Code, a qualified pension plan is exempt from
taxation, and to remain qualified for tax-exempt status,
a plan may not violate the anti-cutback rule which pro-
hibits a plan’s elimination or reduction of an accrued
benefit.”). Additionally, a plan can have its own anti-
cutback clause that protects benefits beyond those listed
in the statute. See Call v. Ameritech Mgmt. Pension
Plan, 475 F.3d 816, 820 (7th Cir. 2007) (outlining one
such case). And the Plan is obligated to abide by its own
contract.
Here, the plaintiffs argue that they are entitled to relief
under both the Act’s anti-cutback prohibition and the
pension plan’s anti-cutback clause. So, there are two
questions: first, whether Amendment 2 violated the
Act’s anti-cutback provision; second, whether Amend-
ment 2 violated the contract’s own anti-cutback clause.
Concerning the first question, we don’t offer the plan
administrator’s decision any deference—it is a legal
question. Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640,
643 (7th Cir. 2007). Concerning the second question,
12 No. 10-3287
because the Plan gave the plan administrator discretion
when interpreting the contract, we review its decision
under the arbitrary-and-capricious standard. Jenkins v.
Price Waterhouse Long Term Disability, 564 F.3d 856, 861
(7th Cir. 2009). Under that standard, we look to ensure
that the administrator’s decision “has rational support
in the record.” Davis v. Unum Life Ins. Co. of Am., 444
F.3d 569, 576 (7th Cir. 2006) (quotation omitted).
1. Protected Rights under the Act
For the plaintiffs to make a claim under the Act, they
have to establish that Amendment 2, which simply
deleted Amendment 1 in its entirety, diminished a benefit
protected by the anti-cutback provision. 29 U.S.C.
§ 1054(g). That provision protects retirement subsidies,
early-retirement benefits, and “accrued benefits,” which
are defined as any “annual benefit commencing at
normal retirement age.” Id. § 1002(23); 26 U.S.C. 411(d)(6).
But Amendment 1 gave the plaintiffs the right to an
immediate annuity while still working. It was not tied
in any manner to the plaintiffs’ actual retirement—and
retirement is a necessary condition for a benefit to be
considered an accrued benefit or an early-retirement
benefit. Thus, Amendment 1 is not a protected benefit
under any of those sections.
The anti-cutback provision also keeps plans from re-
ducing an “optional form of benefit” offered in the
pension plan. 29 U.S.C. § 1054(g)(1)(2)(B). The Act
doesn’t define the phrase “optional form of benefit,”
but the Treasury regulations define it as:
No. 10-3287 13
a distribution alternative (including the normal form
of benefit) that is available under the plan with
respect to an accrued benefit or a distribution alter-
native with respect to a retirement-type benefit.
26 C.F.R. § 1.411(d)-3(g)(6)(ii). Although that isn’t a par-
ticularly clear definition, parsing the language gives
some clarity to the regulation’s meaning. The “distribu-
tion alternative” the regulation refers to means a bene-
ficiary’s right to choose how his pension payments
will be made. See Call, 475 F.3d at 821. So, for example, a
beneficiary can opt for a lump-sum payment instead of
a fixed annuity when he retires. Wetzler v. Illinois CPA
Soc. & Foundation Ret. Income Plan, 586 F.3d 1053, 1059 (7th
Cir. 2009); 26 C.F.R. § 1.411(d)-4(b)(2) (providing other
examples). Regardless of the form that the distribution
alternative takes, an “optional form of benefit” is always
tied to “an accrued benefit” or “a retirement-type bene-
fit.” 26 C.F.R. § 1.411(d)-3(g)(6)(ii). That is, with immate-
rial exceptions, the lump-sum payment has to be con-
nected with the employee actually retiring. 29 U.S.C.
1002(23).
But here, the plaintiffs aren’t retiring or taking a
retirement-type benefit. They want to receive the
annuity and keep on working for Finkl. Yet nothing in
the Act, regulations, or case law suggests that an
annuity to non-retired workers would qualify as
an “optional form of benefit” under the Act. Cf. Arndt
v. Security Bank S.S.B. Employees’ Pension Plan, 182 F.3d
538, 549-42 (7th Cir. 1999) (holding that disability
benefits are not retirement-type benefits); Ross v. Pension
14 No. 10-3287
Plan for Hourly Employees of SKF Industries, Inc., 847 F.2d
329, 333 (6th Cir. 1988) (holding that a plant-shutdown
benefit is not an “optional form of benefit”). Indeed,
a distribution of that form could cause the Plan to
violate § 401(a) and lose its tax-qualified status. IRS
Notice 2007-8 (providing “a qualified pension plan
is generally not permitted to pay benefits before retire-
ment”). Thus, the benefit offered under Amendment 1
is not the type of promise that the Act’s anti-cutback
provision protects from revision.
2. The Plan’s Anti-Cutback Clause
That doesn’t mean the Plan’s own anti-cutback clause
cannot give broader protection than the Act and keep
the beneficiaries from having Amendment 1 taken away
from them. See Call, 475 F.3d at 821 (holding that the
pension plan’s anti-cutback language offered more pro-
tection than the Act’s). Broadly written, the con-
tract—Article 11.1(a) of the Plan, to be precise—protects
against amendments that diminish benefits that have
already accrued:
No pension benefit already accrued at the time of
such revocation, termination, amendment, alteration,
modification, or suspension shall be discounted or
reduced thereby. (Emphasis added.)
When the Plan denied the plaintiffs’ claim, it viewed
Amendment 1 as providing a protected benefit to the
plaintiffs only if the Plan terminated. Absent its termina-
tion, the beneficiaries did not have a “pension benefit
No. 10-3287 15
already accrued” and thus a protected right to the im-
mediate annuity while still working at Finkl. The plain-
tiffs argue first that this is an unreasonable reading of
the Plan. And second, the plaintiffs argue that even if
they only had an accrued right after the Plan terminated,
the Plan did, in fact, terminate. So, under the Plan’s
logic, their rights under Amendment 1 have vested.
a. Plan’s Interpretation Was Reasonable
The plaintiffs’ first argument—that the plan admin-
istrator’s interpretation was arbitrary and capricious—rests
on Amendment 1’s text. Amendment 1 provides that
the beneficiary’s right to elect this annuity while
working comes “at the time benefits are to be distributed
on account of termination of the Plan.” We read these
contracts “sensibly.” Call, 475 F.3d at 821. And a rea-
sonable reading of Amendment 1 is that beneficiaries
can elect to receive the benefit once the Plan terminates;
until then, the beneficiaries don’t have that right. Put
differently, if the Plan’s assets are not distributed, which
does not happen unless the Plan terminates, then a bene-
ficiary cannot choose to take the annuity and keep on
working. Based on Amendment 1’s text, the Plan’s
reading is reasonable.
b. The Plan Did Not Terminate
In their briefs, the plaintiffs anticipated that we
might read Amendment 1 this way, so they argue that
if the Plan must terminate before they can receive the
16 No. 10-3287
annuity while still working, then the Plan has, in fact,
terminated. As we noted above, a plan’s termination is
not a trifling affair. This is a highly regulated area of
the law, and there is a prescribed and comprehensive
process that pension plans must follow when they ter-
minate, complete with forms, notifications, steps, ap-
provals, deadlines, and finally, the distribution of assets.
E.g., Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 446
(1999). And the Act does not provide any method
for voluntarily terminating a plan, except what is found
in § 1341. To be sure, the Plan went through the
initial steps—over a period of many months, it received
permission from the Agency and gave employees no-
tice. But the process goes beyond giving notice. In fact, the
Plan did not come close to finishing the process the Act
prescribes: the Plan never distributed its assets. 29 U.S.C.
§ 1341(b)(1)(D); 29 C.F.R. § 4041.21(a)(4) (to have a valid
termination, a plan must distribute “the plan’s assets”).
Beyond that dispositive fact, everything else that
attaches to a termination establishes that the Plan
did not terminate. Indeed, Finkl was still making con-
tributions to the Plan. Even more, the Agency and the
IRS still consider the Plan an ongoing plan in full compli-
ance with the Act. And if the Plan had gone through
with some unauthorized, non-standard termination,
those entities would not consider it in conformity with
the Act. Had the Plan done that or if it had proceeded
to give the plaintiffs the benefits they sought without
having first terminated, the Plan would not conform
with the Act. Again, plaintiffs aren’t seeking an early
retirement benefit—they don’t want to retire, they want
No. 10-3287 17
to keep on working. This would not comply with the
Act and would lead to immediate and severe tax conse-
quences for the Plan and for the beneficiaries. Besides
the immediate penalties that would be levied against
the Plan, its beneficiaries would be taxed on all the
Plan’s contributions, even though they wouldn’t have
access to these benefits. Against this backdrop, nothing
suggests that the Plan terminated, while everything
points to the fact that the Plan has never terminated
and remains ongoing. Thus, the Plan’s decision that
it never terminated and therefore the plaintiffs never
accrued the right to receive an annuity while remaining
employed with Finkl is reasonable and fully supported
by the record.
C. Benefit Calculation
While that resolves much of the plaintiffs’ first claim,
their second claim is a bit different. They allege that Finkl
incorrectly calculated some of the plaintiffs’ pension
benefits. As noted above, Finkl awarded some of its
employees bonuses, broken into two categories: regular
and special. Originally the bonuses were not part of the
employees’s benefit calculations under the Plan. But
Finkl amended the pension plan in 1991 to reflect that
regular bonuses were figured into the beneficiary’s
benefit calculation, but special bonuses were not.
Finkl has consistently followed this practice for twenty
years. In support of its motion for summary judgment,
it produced substantial evidence, including the Plan
documents, an affidavit, and its accounting records
18 No. 10-3287
that detail how these bonuses were calculated. In op-
position, the plaintiffs refute these facts with a simple
“not so” and an affidavit from one of the plaintiffs that
he was unaware of the practice of counting regular
bonuses but not special bonuses. But being unaware of
a practice does not mean it is not a legitimate, accepted
practice or that Finkl has not been abiding by it for
twenty years. And plaintiffs’ claimed ignorance of how
these bonuses were distinguished and calculated is not
enough to avoid summary judgment for the Plan.
Koszola v. Board of Educ. of City of Chicago, 385 F.3d
1104, 1111 (7th Cir. 2004) (noting “summary judgment
is the ‘put up or shut up’ moment in a lawsuit, when
a party must show what evidence it has that would
convince a trier of fact to accept its version of events.”
(Quotation omitted.)). The plaintiffs have not produced
any evidence that establishes a genuine issue of
material fact for trial. Thus, the district court did not
err in granting summary judgment in favor of Finkl.
D. Attorney’s Fees
The fact that plaintiffs cannot prevail on either of
their substantive claims also resolves their claim for
attorney’s fees. A prerequisite to a party having a claim
to an award of attorney’s fees under the Act is that the
petitioner has “achieved ‘some success on the merits.’ ”
Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct. 2149,
2159 (2010). The plaintiffs have not; thus the district
court did not abuse its discretion by denying their claim.
No. 10-3287 19
E. Conclusion
The plaintiffs’ right to an annuity while working
for Finkl is not a right protected by the Act. And
Finkl’s plan administrator gave a reasoned explanation
for finding that the plaintiffs’ right to such a benefit
was not protected by the pension plan’s anti-cutback
clause. Thus, there was no error in granting summary
judgment for the Plan. Further, the plaintiffs have failed
to establish that the Plan’s benefit calculation was
arbitrary and capricious, and the district court did not
err in denying the plaintiffs’ claim for attorney’s fees. Ac-
cordingly, the judgment of the district court is affirmed.
8-15-11