In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1907
JAMES R. BUNN,
Plaintiff‐Appellant,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for
Valley Bank Illinois,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:15‐cv‐04053 — Sara Darrow, Judge.
____________________
ARGUED OCTOBER 31, 2018 — DECIDED NOVEMBER 8, 2018
____________________
Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.
FLAUM, Circuit Judge. After its appointment as receiver for
Valley Bank Illinois (“Valley Bank”), the Federal Deposit In‐
surance Corporation (“FDIC”) disaffirmed a benefits agree‐
ment between Valley Bank and James Bunn, a bank executive.
Bunn sued the FDIC to recover a “change of control termina‐
tion benefit” he claims he is entitled to receive pursuant to this
agreement. The district court granted summary judgment to
2 No. 18‐1907
the FDIC because it determined the benefit Bunn seeks is a
“golden parachute payment” prohibited by federal law. We
affirm.
I. Background
A. Factual Background
James Bunn worked for Valley Bank as Executive Vice
President from 2001 until the bank’s failure on June 20, 2014.
He also served as the bank’s Director beginning in 2008 or
2009. During Bunn’s employment, Valley Bank was an FDIC‐
insured, state‐chartered nonmember bank regulated by both
the FDIC in its corporate capacity (“FDIC‐C”) and the Illinois
Department of Financial and Professional Regulation
(“IDFPR”).
1. The Salary Continuation Agreement
In 2003, Valley Bank entered into a Salary Continuation
Agreement (the “Agreement”) with Bunn “to provide salary
continuation benefits to [Bunn] that are payable from [Valley
Bank’s] general assets for the purpose of encouraging [Bunn]
to remain an employee of [Valley Bank].” After amending and
restating the document in 2005 and 2008, the parties signed
the operative version of the Agreement on July 22, 2008.
In this Agreement, Valley Bank agreed to provide Bunn
with certain termination benefits in the event Bunn “ceases to
be employed by [Valley Bank] for any reason, voluntary or
involuntary.” The Agreement provides for benefits to Bunn in
various scenarios, including the event of his death, normal re‐
tirement, early termination before retirement, disability, and
termination after a “change of control” in Valley Bank’s own‐
ership.
No. 18‐1907 3
The “change of control” termination benefit is the only po‐
tential benefit provision that is relevant to this appeal. Ac‐
cording to this provision, if Valley Bank terminated Bunn’s
employment “within twelve months of a Change [of] Control,
for reasons other than death, Disability, or retirement,” then
Bunn was entitled to receive from Valley Bank “the dollar
amount equal to the liability accrued on the books of [Valley
Bank] at the effective time of closing of said Change of Con‐
trol, which shall be reported to [Bunn] on an annual basis by
[Valley Bank].”1
The Agreement provides that a “change of control” trig‐
gering Bunn’s entitlement to this benefit would occur upon
“either a change in the ownership of [Valley Bank]’s capital
stock … or the sale or other disposition of substantially all of
[Valley Bank]’s assets.” Bunn would be entitled to payment of
this benefit within sixty days following his termination under
such circumstances.
Valley Bank purchased two life insurance policies, one
from Massachusetts Mutual Life Insurance Company and one
from New York Life Insurance and Annuity Corporation, for
which Bunn was the named insured. Valley Bank retained
ownership of these policies but, according to Bunn, Valley
Bank purchased these policies for the express purpose of
1 The Agreement sets out a calculation for the value of this benefit, which
is based on the performance of River Valley Bancorp, Inc.’s stock during
each year of Bunn’s employment that the Agreement is in effect. River
Valley Bancorp, Inc., a multi‐bank holding company in Iowa, owned Val‐
ley Bank. For each plan year the company’s stock value increased a spe‐
cific percentage, Bunn would be entitled to receive 11.11% of his target
retirement benefit ($66,667 payable for 15 years, for a total of approxi‐
mately $1 million).
4 No. 18‐1907
funding the Agreement. The Agreement references the exist‐
ence of such policies:
[Bunn] and beneficiary are general unsecured
creditors of [Valley Bank] for the payment of
benefits under this Agreement. The benefits
represent the mere promise by [Valley Bank] to
pay such benefits. The rights to benefits are not
subject in any manner to anticipation, aliena‐
tion, sale, transfer, assignment, pledge, encum‐
brance, attachment, or garnishment by credi‐
tors. Any insurance on [Bunn]’s life is a general
asset of [Valley Bank] to which [Bunn] and ben‐
eficiary have no preferred or secured claim.
The Agreement further provides that Bunn’s “rights and
the benefits provided under this Agreement are subject to and
conditioned upon compliance with all applicable federal and
state laws, regulations, rules and regulatory orders relating to
the safety and soundness of banking institutions and the com‐
pensation of bank officers and employees.”
2. Valley Bank Suffers Financial Trouble and Ultimately
Fails
Valley Bank began to experience financial trouble in 2009.
Specifically, in February 2009, the FDIC‐C and IDFPR down‐
graded Valley Bank’s rating after an examination to a compo‐
site “4” under the Uniform Financial Institutions Rating Sys‐
tem (the “CAMELS” rating system).2 The bank maintained its
2 The CAMELS rating system “evaluat[es] the soundness of financial in‐
stitutions on a uniform basis” and “identif[ies] those institutions requiring
special attention or concern.” Uniform Financial Institutions Rating Sys‐
No. 18‐1907 5
4 rating through later examinations until April 2013, when it
received a downgraded composite CAMELS rating of 5, the
lowest possible score.3
On June 20, 2014, the IDFPR took possession and control
of Valley Bank, closed it after determining the bank was “con‐
ducting its business in an unsafe and unsound manner,” and
requested the FDIC immediately accept appointment as Val‐
ley Bank’s receiver. The FDIC accepted this appointment in
its “FDIC‐R” receiver capacity. See Veluchamy v. FDIC, 706
F.3d 810, 812 (7th Cir. 2013) (the FDIC can act both in its cor‐
porate capacity as insurer of a bank’s depositors and in its re‐
ceiver capacity as receiver of a failed bank). By accepting this
appointment, the FDIC succeeded “by operation of law” to
Valley Bank’s “rights, titles, powers, and privileges.” 12
U.S.C. § 1821(d)(2)(A); see also FDIC v. Ernst & Young LLP, 374
F.3d 579, 581 (7th Cir. 2004) (“FDIC–Receiver acquires the as‐
sets and legal interests of the failed bank and proceeds much
as a trustee in bankruptcy … .”).
Upon its appointment as receiver, the FDIC entered into a
Purchase and Assumption Agreement with Great Southern
Bank. Pursuant to this agreement, the FDIC transferred a por‐
tion of Valley Bank’s assets to Great Southern Bank on June
20, 2014. The FDIC did not employ Bunn after these events;
tem, 62 Fed. Reg. 752‐01, 752‐01 (Jan. 6, 1997). A CAMELS rating of 4 indi‐
cates the institution “generally exhibit[s] unsafe and unsound practices or
conditions,” and “[f]ailure is a distinct possibility if the problems and
weaknesses are not satisfactorily addressed and resolved.” Id. at 753‐01.
3 A CAMELS rating of 5 indicates the financial institution “exhibit[s] ex‐
tremely unsafe and unsound practices or conditions” and its “failure is
highly probable.” 62 Fed. Reg. at 753‐01–54‐01.
6 No. 18‐1907
Great Southern Bank did, but only for approximately one
week.
3. The FDIC Disaffirms the Agreement
As receiver for a failed institution, the FDIC has the au‐
thority to “disaffirm or repudiate any contract or lease” to
which the institution is a party, the performance of which it
“determines to be burdensome,” and “the disaffirmance or re‐
pudiation of which [it] determines, in [its] discretion, will pro‐
mote the orderly administration of the institution’s affairs.”
12 U.S.C. § 1821(e)(1). The FDIC must determine whether or
not to exercise this authority “within a reasonable period” fol‐
lowing its appointment as receiver. Id. § 1821(e)(2).
On September 16, 2014, the FDIC advised Bunn in a letter
that pursuant to these statutory provisions, it would disaffirm
the Agreement. The FDIC further notified Bunn that if he in‐
tended to pursue a claim for the Agreement’s benefits against
the receivership estate, he was required to file a proof of claim
with the FDIC within ninety days. Bunn submitted his proof
of claim on September 28, 2014, seeking $230,000 to $240,000
for his “accrued and vested” change of control benefits under
the Agreement. However, the FDIC disallowed Bunn’s claim.
B. Procedural Background
After the FDIC disallowed his claim, Bunn filed the instant
lawsuit in federal court. In his operative amended complaint,
Bunn sought either $240,000 as the sum of the benefits he
claimed to have accrued under the Agreement or, in the alter‐
native, the $443,944 accrued cash value of the two bank‐
owned life insurance policies Valley Bank had purchased, as
No. 18‐1907 7
well as his costs and attorney’s fees. The FDIC moved to dis‐
miss the amended complaint. The district court denied the
motion, and the parties proceeded with discovery.
On May 1, 2017, the FDIC moved for summary judgment,
arguing in part that the change of control termination benefit
was a “golden parachute payment” prohibited by 12 U.S.C.
§ 1828(k) and its implementing regulations, meaning Bunn
was not entitled to payment. Bunn opposed the motion, argu‐
ing the Agreement qualified for an exception to the prohibi‐
tion on golden parachute payments as a “bona fide deferred
compensation plan.”
The district court granted the FDIC’s motion for summary
judgment. It held the change of control termination benefit
met the definition of a golden parachute payment and did not
qualify for the definition’s bona fide deferred compensation
plan exception. Therefore, Bunn could not recover any dam‐
ages based on the FDIC’s disaffirmation of the Agreement.
The court further held that, even if the benefit was not a
golden parachute payment, Bunn still could not prevail be‐
cause he had not presented evidence of any damages incurred
by virtue of the FDIC’s disaffirmation. The district court en‐
tered judgment in the FDIC’s favor, and Bunn appeals.
II. Discussion
We review a district court’s summary judgment ruling de
novo. See C.G. Schmidt, Inc. v. Permasteelisa N. Am., 825 F.3d
801, 805 (7th Cir. 2016). “Summary judgment is proper if the
moving party ‘shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.’” Spurling v. C & M Fine Pack, Inc., 739 F.3d
1055, 1060 (7th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). A
8 No. 18‐1907
genuine dispute exists if “the evidence is such that a reasona‐
ble jury could return a verdict for the nonmoving party.” An‐
derson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We “con‐
sider all of the evidence in the record in the light most favor‐
able to the non‐moving party, and we draw all reasonable in‐
ferences from that evidence in favor of the party opposing
summary judgment.” Feliberty v. Kemper Corp., 98 F.3d 274,
276–77 (7th Cir. 1996).
The party moving for summary judgment has the initial
burden of demonstrating there is no genuine dispute of mate‐
rial fact: “it may discharge this responsibility by showing ‘that
there is an absence of evidence to support the nonmoving
party’s case.’” Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“To overcome a motion for summary judgment, the nonmov‐
ing party must come forward with specific facts demonstrat‐
ing that there is a genuine issue for trial.” Id. (quoting Matu‐
shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). We may affirm a grant of summary judgment on any
ground supported by the record. Goodman v. Nat’l Sec. Agency,
Inc., 621 F.3d 651, 656 (7th Cir. 2010).
Bunn argues the district court erred by holding the change
of control termination benefit in the Agreement is a golden
parachute payment. We agree with the district court that the
benefit meets this definition, and Bunn has presented no evi‐
dence sufficient to establish the benefit qualifies for the bona
fide deferred compensation plan exception to such a pay‐
ment.
No. 18‐1907 9
A. The Benefit is a Golden Parachute Payment.
Federal law authorizes the FDIC in its corporate capacity
to “prohibit or limit, by regulation or order, any golden para‐
chute payment or indemnification payment.” 12 U.S.C.
§ 1828(k)(1). The FDIC has done so through implementing
regulations that provide, “[n]o insured depository institution
or depository institution holding company shall make or
agree to make any golden parachute payment.” 12 C.F.R.
§ 359.2. Therefore, if the change of control termination benefit
qualifies as a golden parachute payment, it is not something
Valley Bank could agree to give to Bunn under the plain terms
of the Agreement making benefits contingent on compliance
with applicable federal laws.4 And, if Bunn is not entitled to
receive this payment, he has suffered no damages for which
the FDIC could be liable based on its disaffirmation of the
Agreement. See 12 U.S.C. § 1821(e)(3)(A)(i) (receiver’s liability
for disaffirmance of a contract is “limited to actual direct com‐
pensatory damages”).
A golden parachute payment is:
[A]ny payment (or any agreement to make any
payment) in the nature of compensation by any
insured depository institution or covered com‐
pany for the benefit of any institution‐affiliated
party pursuant to an obligation of such institu‐
tion or covered company that—
4 Certain types of golden parachute payments are permissible pursuant to
12 C.F.R. § 359.4. Bunn does not claim that the change of control termina‐
tion benefit is authorized by this specific regulation, however.
10 No. 18‐1907
(i) is contingent on the termination of such
party’s affiliation with the institution or cov‐
ered company; and—
(ii) is received on or after the date on
which—
(I) the insured depository institution or
covered company, or any insured depos‐
itory institution subsidiary of such cov‐
ered company is insolvent;
(II) any conservator or receiver is ap‐
pointed for such institution;
(III) the institution’s appropriate Federal
banking agency determines that the in‐
sured depository institution is in a trou‐
bled condition …
(IV) the insured depository institution
has been assigned a composite rating by
the appropriate Federal banking agency
or the Corporation of 4 or 5 under the
[CAMELS] System; or
(V) the insured depository institution is
subject to a proceeding initiated by the
Corporation to terminate or suspend de‐
posit insurance for such institution.
Id. § 1828(k)(4)(A).
The change of control termination benefit meets this defi‐
nition. It is an agreement to make a “payment,” that is in the
“nature of compensation,” by Valley Bank to Bunn. Bunn
No. 18‐1907 11
acknowledges Valley Bank is an “insured depository institu‐
tion”5 and he is an “institution‐affiliated party.”6 This satisfies
the threshold requirements of § 1828(k)(4)(A). The benefit is
also a contingent payment that Bunn can only receive upon
his termination of employment with Valley Bank, meeting the
requirement of § 1828(k)(4)(A)(i). And while the parties do
not agree on the exact event terminating Bunn’s employment,
Bunn acknowledges this did not happen before June 20, 2014.
Thus, any receipt of payment by Bunn pursuant to this provi‐
sion would occur after his termination and on or after at least
two of the potentially‐qualifying events listed in
§ 1828(k)(4)(A)(ii). Specifically, any payment of the benefit
would be after June 20, 2014, when a receiver was appointed
for Valley Bank, and it would be after February 2009, when
Valley Bank received a composite CAMELS rating of 4. Id.
§ 1828(k)(4)(A)(ii)(II), (IV).
The FDIC has met its burden and demonstrated the
change of control payment falls within the ambit of prohib‐
ited golden parachute payments. Bunn does not contest this.
Instead, he argues the benefit he seeks qualifies as a bona fide
deferred compensation plan exception to such payments.
B. The Benefit is Not a Bona Fide Deferred Compensa‐
tion Plan.
Section 1828(k)(4)(C) excludes some payments from the
golden parachute payment definition, meaning a bank is free
5 This term refers to “any bank or savings association the deposits of which
are insured by [the FDIC‐C].” 12 U.S.C. § 1813(c)(2).
6 This term refers to, as relevant here, “any director, officer, employee or
controlling stockholder … of, or agent for, an insured depository institu‐
tion.” 12 U.S.C. § 1813(u)(1).
12 No. 18‐1907
to make them even though they meet the above‐stated re‐
quirements. As relevant here, “any payment made pursuant
to a bona fide deferred compensation plan” is not a golden
parachute payment. Id. § 1828(k)(4)(C)(ii). In opposing sum‐
mary judgment, Bunn argues he has demonstrated that the
change of control termination benefit qualifies for this exclu‐
sion, and he is therefore entitled to receive this benefit.
Implementing regulations promulgated under 12 U.S.C.
§ 1828(k) define this exclusion. See 12 C.F.R. § 359.1(d). A bona
fide deferred compensation plan is “any plan, contract, agree‐
ment or other arrangement” that meets the initial threshold
requirements listed in either § 359.1(d)(1) or § 359.1(d)(2). A
plan under § 359.1(d)(1) is one whereby “[a]n [institution‐af‐
filiated party] voluntarily elects to defer all or a portion of the
reasonable compensation, wages or fees paid for services ren‐
dered which otherwise would have been paid to such party
at the time the services were rendered,” and the institution
recognizes that expense or otherwise segregates assets in cer‐
tain ways. Id. § 359.1(d)(1). A plan under § 359.1(d)(2) is one
whereby “[a]n insured depository institution or depository
institution holding company establishes a nonqualified de‐
ferred compensation or supplemental retirement plan” either
“[p]rimarily for the purpose of providing benefits for certain
[institution‐affiliated parties] in excess of the limitations on
contributions and benefits imposed by” certain sections of the
Internal Revenue Code, id. § 359.1(d)(2)(i), or “[p]rimarily for
the purpose of providing supplemental retirement benefits or
other deferred compensation for a select group of directors,
management or highly compensated employees …,” id.
§ 359.1(d)(2)(ii). Even if the threshold provisions of either
§ 359.1(d)(1) or § 359.1(d)(2) are met, § 359.1(d)(3) lists seven
No. 18‐1907 13
further criteria that “shall apply” to a plan in order for it to
meet the bona fide deferred compensation plan exception.
Although Bunn argues his change of control termination
benefit fits this exception to golden parachute payments, his
argument runs into two problems that independently prevent
his recovery. First, Bunn has not come forward with any spe‐
cific facts demonstrating the benefit could satisfy the thresh‐
old requirements in § 359.1(d)(1) or § 359.1(d)(2) for bona fide
deferred compensation plans. Bunn quotes the language of
§ 359.1(d)(2) and affirmatively states the Agreement meets its
criteria. But Bunn does not explain how the change of control
termination benefit, or any other provision of the Agreement,
meets the requirements of either § 359.1(d)(2)(i) or
§ 359.1(d)(2)(ii).
Bunn does state that the Agreement meets the statutory
requirements for a “non‐qualified deferred compensation
plan” under 26 U.S.C. § 409A, a separate tax code provision.
However, he does not explain why that is relevant to
§ 359.1(d)(2)(i). Additionally, the Agreement itself states it
“was entered into … to provide salary continuation benefits
to [Bunn] that are payable from its general assets for the pur‐
pose of encouraging [Bunn] to remain an employee.” This
clause could refer to the type of supplemental benefit
§ 359.1(d)(2)(ii) contemplates, but it does not clearly place the
Agreement under its purview. Cf. Mulholland v. FDIC, 12‐cv‐
1415, 2014 WL 2593645, at *4 (D. Colo. June 9, 2014) (section
359.1(d)(2)(ii) satisfied when agreements at issue expressly
stated they created an “unfunded arrangement maintained
primarily to provide supplemental retirement benefits for the Ex‐
ecutive” and described “Executive” as someone with “excep‐
tional merit”).
14 No. 18‐1907
Bunn intimates through his other arguments that
§ 359.1(d)(2) applies, but he provides no evidence that this is
so. As has become “axiomatic” in our Circuit, “‘[j]udges are
not like pigs, hunting for truffles buried in’ the record.” John‐
son v. Advocate Health & Hosps. Corp., 892 F.3d 887, 898 (7th
Cir. 2018) (quoting Albrechtsen v. Bd. of Regents of Univ. of Wis.
Sys., 309 F.3d 433, 436 (7th Cir. 2002)). It is Bunn’s responsibil‐
ity in opposing summary judgment to identify the evidence
that would sufficiently raise a disputed issue for trial. Absent
such evidence or an adequate explanation why the Agree‐
ment meets these threshold requirements, Bunn has waived
any argument the Agreement is a bona fide deferred compen‐
sation plan. See United States v. Cisneros, 846 F.3d 972, 978 (7th
Cir. 2017) (“We have repeatedly and consistently held that
‘perfunctory and undeveloped arguments, and arguments
that are unsupported by pertinent authority, are waived.’”
(quoting United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991)).
Second, even assuming Bunn had come forward with evi‐
dence that the change of control termination benefit meets the
threshold requirements of § 359.1(d)(2), Bunn runs into an‐
other problem. Bunn did not come forward with any evidence
sufficient to raise at least a material dispute of fact that the
Agreement meets all seven required criteria listed in
§ 359.1(d)(3). Without such evidence, Bunn cannot recover the
benefit as a bona fide deferred compensation plan exception
to golden parachute payments.
The district court focused its analysis on § 359.1(d)(3)(vi)
and (vii). We agree with the district court’s conclusion that
No. 18‐1907 15
Bunn has not offered any evidence sufficient to raise a credi‐
ble dispute that the Agreement meets these two criteria.7
Section 359.1(d)(3)(vi) requires that:
The insured depository institution … has previ‐
ously recognized compensation expense and ac‐
crued a liability for the benefit payments ac‐
cording to GAAP[8] or segregated or otherwise
set aside assets in a trust which may only be
used to pay plan benefits, except that the assets
of such trust may be available to satisfy claims
of the institution’s or holding company’s credi‐
tors in the case of insolvency.
12 C.F.R. § 359.1(d)(3)(vi). A plain reading of this provision
creates two ways in which the depository institution could
sufficiently identify the assets subject to a bona fide deferred
compensation plan. The institution could “recognize[] com‐
pensation expense and accrue[] a liability for the benefit pay‐
ments according to GAAP,” or the institution could “segre‐
gate[] or otherwise set aside assets in a trust which may only
be used to pay plan benefits.” Id.; see Encino Motorcars, LLC v.
7 Regarding the other criteria, because the original Agreement was signed
in 2003, FDIC does not dispute that it meets the first requirement: “[t]he
plan was in effect at least one year prior” to Valley Bank having a receiver
appointed or receiving a 4 CAMELS rating. 12 C.F.R. § 359.1(d)(3)(i). How‐
ever, the FDIC argues that Bunn has failed to provide any evidentiary sup‐
port that the Agreement satisfies § 359.1(d)(3)(ii)–(v). We find it unneces‐
sary to address each of these criteria individually; assuming Bunn had
presented evidence that the Agreement satisfies them, the deficiencies in
Bunn’s presentation regarding § 359.1(d)(3)(vi)–(vii) prevent him from
claiming this exception for the benefit.
8 “GAAP” refers to generally accepted accounting principles.
16 No. 18‐1907
Navarro, 138 S. Ct. 1134, 1141 (2018) (“‘[O]r’ is ‘almost always
disjunctive.’” (quoting United States v. Woods, 571 U.S. 31, 45
(2013))).
Bunn argues the two bank‐owned life insurance policies
in his name satisfy this first pathway: Valley Bank purchased
them for the express purpose of satisfying its obligations un‐
der the Agreement, they were approved in 2008 for use in this
manner, and Valley Bank acknowledged it would follow
GAAP applicable to these life insurance policies. Bunn also
points to his testimony at his deposition that Valley Bank had
listed on its general ledger an accrued liability of $4,300,000
for all of its executive employees under all of the Salary Con‐
tinuation Agreements it had in place. According to Bunn, the
combination of these two facts raises a credible dispute as to
whether Valley Bank “recognized compensation expense”
and “accrued a liability” for the purpose of paying his change
of control termination benefit.
In the district court, Bunn did not argue the life insurance
policies represented the kind of asset segregation sufficient to
meet this requirement: his only mention of the policies in op‐
posing summary judgment was to “concede[] that he does not
have entitlement to the cash value of the bank owned life in‐
surance based on … the [Agreement].” Bunn has waived this
point by not arguing below that the life insurance policies
themselves represented the necessary segregation of assets
for this requirement. See Walker v. Groot, 867 F.3d 799, 802 (7th
Cir. 2017) (“A ‘party may not raise an issue for the first time
on appeal.’” (quoting Williams v. Dieball, 724 F.3d 957, 961 (7th
Cir. 2013)).
In any event, the combination of the bank‐owned life in‐
surance policies and the $4,300,000 liability on Valley Bank’s
No. 18‐1907 17
ledger cannot satisfy § 359.1(d)(3)(vi). Bunn has only pre‐
sented evidence that Valley Bank accrued liability for all Val‐
ley Bank executives in the aggregate amount of $4,300,000.
This does not indicate what accrued liability exists, if any, for
Bunn pursuant to his own specific Agreement. In fact, he
acknowledges the bank did not ever designate liability that is
specific to him and the terms of his own potential benefits as
outlined in the Agreement he signed.
Additionally, Bunn did not present any evidence suffi‐
cient to satisfy § 359.1(d)(3)(vii). This subsection requires that
“[p]ayments pursuant to such [bona fide deferred compensa‐
tion] plans shall not be in excess of the accrued liability com‐
puted in accordance with GAAP.” 12 C.F.R. § 359.1(d)(3)(vii).
Bunn seeks approximately $240,000 for his change of control
benefit, but without evidence of his own accrued liability, a
court cannot evaluate whether this request exceeds the ac‐
crued liability for Bunn’s plan.9 Cf. Mulholland, 2014 WL
9 Bunn does present evidence that, as of May 31, 2014, the value of the
Massachusetts Mutual Life Insurance Company policy in his name was
$230,854.89, and the value of the New York Life Insurance and Annuity
Corporation policy was $230,372.95. However, Bunn correctly disclaimed
any right to the full value of these policies in the district court: The Agree‐
ment provided these policies were “general asset[s]” of Valley Bank to
which Bunn had no preferred claim. And even if these policies were pur‐
chased to give the Bank the funds to pay out the benefits under the Agree‐
ment, that does not indicate what portion of those policies represents the
liability accrued under the Agreement for him personally. Moreover,
Bunn’s proof of claim requests approximately $240,000, and his deposition
testimony shows that he “believe[d]” the bank’s holding company was
hitting its target objectives such that his benefits had been accruing over
the life of the Agreement. But this does not show where on its books or
elsewhere Valley Bank accrued liability according to the terms of Bunn’s
18 No. 18‐1907
2593645, at *5 (plaintiffs satisfied the bona fide deferred com‐
pensation plan exception by providing the bank’s liability
statements, “which reflect the accrued balances of each
[p]laintiff’s benefits under the Agreements” (emphasis
added)). And without such evidence, Bunn cannot demon‐
strate the Agreement, and the payment he seeks pursuant to
that Agreement, satisfies the bona fide deferred compensa‐
tion plan exception to golden parachute payments.
In sum, Bunn has not provided evidence that the benefit
he seeks is anything other than a prohibited golden parachute
payment. The payment is therefore prohibited under federal
law, and Bunn cannot demonstrate he suffered any damages
from the FDIC’s disaffirmation of the Agreement.10
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
Agreement. In other words, Bunn does not provide evidence of where Val‐
ley Bank accrued and documented the $240,000 liability he seeks.
10 The FDIC further argues that Bunn is not entitled to payment of the
change of control termination benefit because 12 C.F.R. § 359.7 precludes
recovery and because he did not establish a “change of control,” as defined
in the Agreement, actually occurred. Bunn also makes various arguments
challenging the adequacy of the FDIC’s disaffirmation of the Agreement.
Because we conclude the benefit Bunn seeks is a prohibited golden para‐
chute payment not subject to any exception, we need not address these
alternative arguments.