Case: 10-20493 Document: 00511631606 Page: 1 Date Filed: 10/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 13, 2011
No. 10-20493 Lyle W. Cayce
Clerk
ROBERT E. EVANS; RELMOND H. HAMILTON; DENNIS HARTHUN,
Plaintiffs – Appellants
v.
STERLING CHEMICALS, INCORPORATED, Individually and as successor-in-
interest to Sterling Chemicals Holdings Incorporated; STERLING CHEMICALS
INCORPORATED EMPLOYEE BENEFITS PLANS COMMITTEE, in its
capacity as Plan Administrator of the Sterling Chemicals Incorporated Medical
Benefits Plan for Salaried Employees and the Sterling Chemicals Incorporated
Prescription Drug Benefits Plan for Salaried Employees; STERLING
CHEMICALS INCORPORATED MEDICAL BENEFITS PLAN FOR SALARIED
EMPLOYEES; STERLING CHEMICALS INCORPORATED PRESCRIPTION
DRUG BENEFITS PLAN FOR SALARIED EMPLOYEES; STERLING
CHEMICALS INCORPORATED MEDICAL BENEFITS PLAN FOR RETIREES;
STERLING CHEMICALS INCORPORATED PRESCRIPTION DRUG
BENEFITS PLAN FOR RETIREES,
Defendants – Appellees
Appeals from the United States District Court
for the Southern District of Texas
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
HAROLD R. DeMOSS, JR., Circuit Judge:
This appeal requires that we determine what effect, if any, a retiree
benefits-related provision included in an asset purchase agreement had on the
acquiring company’s retiree benefits plans governed by ERISA. For the following
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reasons we find that the provision constituted a valid plan amendment.
Moreover, we find that the provision was assumed, not rejected, in bankruptcy.
Reversed and remanded.
I. FACTUAL BACKGROUND
A. The Corporate Acquisition
In 1994, American Cyanamid Corporation (Cyanamid) spun off its fibers
business unit into three separate companies: Cytec Acrylic Fibers, Inc., Cytec
Technology Corp., and Cytec Industries, Inc. (collectively, “Cytec”). In 1996,
Cytec sold the assets of its acrylic fibers business to Sterling Fibers, Inc.
(Sterling Fibers), a newly-formed company created to accomplish the acquisition
and a wholly-owned subsidiary of Sterling Chemicals, Inc. (Sterling Chemicals).
Sterling Chemicals is itself a wholly-owned subsidiary of Sterling Chemicals
Holdings, Inc. (collectively with Sterling Fibers and Sterling Chemicals,
“Sterling”). The acquisition was consummated pursuant to an Asset Purchase
Agreement dated December 23, 1996 (the APA). The APA was authorized by the
boards of directors of the six respective companies and was signed by the
chairman of the three Sterling companies and representatives of the three Cytec
companies.
In connection with the acquisition, Sterling offered employment to certain
Cytec employees. The APA designated those Cytec employees who accepted
employment with Sterling as “Acquired Employees.” The APA also included a
provision devoted to continued medical benefits for Acquired Employees when
they retired. Pursuant to Section 5.05(f), Sterling guaranteed its Acquired
Employee retirees a certain level of benefits and a certain level of premiums,
which benefits could only be reduced and which premiums could only be
increased if Cytec provided prior written consent. For its part, Cytec guaranteed
that it would notify Sterling and provide Sterling with prior written consent if
Cytec reduced its own retiree benefits or raised its own retiree premiums.
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Section 5.05(f) of the APA provided in relevant part:
[Sterling] shall continue to provide postretirement medical and life
insurance benefits for such [qualifying] Acquired Employee that are
no less favorable to such Acquired Employee than those benefits
provided by [Cytec] under the [Cytec benefit plans] as in effect on
the date hereof, and [Sterling] shall not reduce the level of such
benefits without the prior written consent of [Cytec]; provided, that
such consent shall not be withheld to the extent that [Cytec] or
Cyanamid has similarly reduced the level of such benefits. For
purposes of this Agreement, an increase in premiums required to be
paid for postretirement benefits shall be considered a reduction in
such benefits. [Cytec] shall notify [Sterling] in writing to the extent
that [Cytec] becomes aware of a reduction in postretirement medical
and life insurance benefits under the [Cytec benefit] plans.
(emphasis in original).
Following the acquisition, Plaintiffs (a group of approximately one
hundred Acquired Employees) became employees of Sterling Fibers and
participants in Sterling’s various employee benefits plans, each of which were
sponsored and operated by Sterling Chemicals. When Plaintiffs retired, they
became participants in Sterling’s retiree medical and prescription drug benefits
plans (collectively, the Sterling Plan). As retirees and participants in the
Sterling Plan, they continued to pay the same level of premiums and receive the
same level of benefits as were agreed upon in Section 5.05(f). From
December1996 until April 2003, Plaintiffs’ premiums were lower than those
premiums paid by participants in the Sterling Plan who were not Acquired
Employee retirees.
Sterling immediately included Plaintiffs in the Sterling Plan, collecting
premiums and providing benefits, but it did not write any new provisions into
the formal documents that made up the Sterling Plan. Each of the formal plan
documents contained reservation-of-rights provisions permitting amendment or
modification of the Sterling Plan “at any time and from time to time” by action
of Sterling’s Employee Benefits Plans Committee (the Committee). Additionally,
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multiple summary plan descriptions (SPDs), which “provide communication with
beneficiaries about the plan, but . . . do not themselves constitute the terms of
the plan,” CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1878 (2011), also provided
that the Sterling Plan “may be amended at any time by [the Committee] or the
Board of Directors.” The first SPD issued after the acquisition, dated February
1997, included a provision expressly permitting Acquired Employee retirees to
participate in the Sterling Plan. It also noted that premium rates could be
obtained from Sterling’s human resources department. At least one SPD also
included language indicating that certain plan participants had special rights
related to premiums. However, none of the formal Sterling Plan documents or
the various SPDs describing the Sterling Plan ever expressly referenced Section
5.05(f) of the APA.
B. The Sterling Bankruptcy Proceedings
On July 16, 2001, more than four years after the acquisition, Sterling filed
for Chapter 11 bankruptcy. Throughout the bankruptcy proceedings, Plaintiffs’
benefits and premiums under the Sterling Plan remained unchanged.
On October 18, 2002, Sterling filed a motion seeking the bankruptcy
court’s authorization to reject certain executory contracts, including the APA,
and on November 13, 2002, the bankruptcy court granted the motion. On
November 20, 2002, the bankruptcy court entered an order (the Confirmation
Order) confirming Sterling’s Plan of Reorganization effective as of December 19,
2002. The Confirmation Order provided: “Any retiree benefits within the
meaning of 11 U.S.C. § 1114 will be treated as executory contracts and assumed
pursuant to Section 7.5 of the Plan [of Reorganization]. Thus, the requirements
of 11 U.S.C. § 1129(a)(13) are satisfied.” Relatedly, Section 7.5 of the Plan of
Reorganization provided in relevant part:
Except to the extent (a) previously assumed or rejected by an order
of the Bankruptcy Court on or before the Confirmation Date, or (b)
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the subject of a pending motion to reject filed by [Sterling] on or
before the Effective Date, all other employee compensation and
benefit programs of [Sterling’s], including all pension plans and
including all programs subject to Sections 1114 and 1129(a)(13) of
the Bankruptcy Code, entered into before or after the Petition Date
and not since terminated, shall be deemed to be, and shall be
treated as though they are executory contracts that are assumed
under the Plan. All pension plans shall continue in effect on and
after the Effective Date. Nothing contained herein shall be deemed
to modify the existing terms of such employee compensation and
benefit programs, including, without limitation, [Sterling’s] rights
of termination thereunder.
Having “assumed” the Sterling Plan as a benefit program, and having
“rejected” the APA as an executory contract, Sterling emerged from bankruptcy
on December 19, 2002.
C. Bankruptcy-Related Communications with Plaintiffs
On the bankruptcy filing date, July 16, 2001, Sterling sent two letters and
a handout communicating with Plaintiffs about the bankruptcy proceedings. The
first letter stated: “As a routine matter, [Sterling’s] various benefit programs are
being presented to the Court today for approval. We don’t expect to see any
changes in these programs, including the pension and retiree medical plans.”
The second letter stated: “As a routine matter, [Sterling’s] various employee
benefit programs are being presented to the Court for approval. We don’t expect
to see any changes in these programs, and all plan assets are safe, secure and
protected by law.” The handout asked and answered: “What is happening to the
active and retiree medical plans? These plans are expected to continue as is.”
During the bankruptcy, Plaintiffs also received bankruptcy proof of claim
forms. Plaintiff Robert Evans was invited to serve on the creditors’ committee
but he declined to do so. Evans was, however, included on the bankruptcy
pleadings service list and admits to monitoring the bankruptcy case. At least
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some Plaintiffs were also aware that Sterling filed a motion to reject the APA as
an executory contract.
On December 9, 2002, ten days prior to Sterling’s emergence from
bankruptcy and after the bankruptcy court’s confirmation of the Plan of
Reorganization, Plaintiffs were sent a letter indicating that their benefits and
premiums were guaranteed only through March 31, 2003.
D. Post-Bankruptcy Premiums
On April 1, 2003, several months after it emerged from bankruptcy,
Sterling raised Plaintiffs’ premiums to levels consistent with the premiums paid
by the participants in the Sterling Plan who were not Acquired Employee
retirees. Thereafter, Plaintiffs’ premiums were raised twice more, effective
January 1, 2004, and January 1, 2005.1 There is no indication that either
Cyanamid or Cytec made similar increases to their retiree benefit plan
premiums, and Sterling did not receive prior written consent from Cytec to
increase Plaintiffs’ premiums.
II. PROCEDURAL HISTORY
On February 16, 2007, Plaintiffs filed this case in the Southern District of
Texas. On August 23, 2007, the district court denied Sterling’s motion to dismiss,
stating that the APA amended the Sterling Plan, but it did not decide what
effect the APA’s rejection in bankruptcy had on the Sterling Plan or on
Plaintiffs’ rights thereunder. The district court then stayed the case for much of
2008 in order to permit Plaintiffs to exhaust their administrative remedies.
The Committee (acting as administrator of the Sterling Plan) denied
Plaintiffs’ claims on April 30, 2008, finding that: (i) the APA did not amend the
1
The increases were substantial. For example, the record shows that the three lead
Plaintiffs’ original monthly premiums under the Sterling Plan were $67.50, $14.73, and
$83.45, respectively. Their monthly premiums were increased in 2003 to $1,600, $392.12, and
$392.12, respectively. The third Lead Plaintiff Dennis Harthun’s monthly premiums were
further increased to $575.83 in 2004 and $903.91 in 2005.
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Sterling Plan; (ii) Sterling’s contractual obligation to Cytec was terminated when
the APA was rejected in bankruptcy; and (iii) the increase in premiums
beginning in 2003 was permitted by the Sterling Plan. The Committee denied
Plaintiffs’ appeal and issued a final determination on August 12, 2008.
Thereafter, the district court held a bifurcated trial in November 2009, and
post-trial briefing was completed in March 2010. The parties’ arguments focused
largely upon whether Halliburton Co. Benefits Committee v. Graves, 463 F.3d
360 (5th Cir. 2006), a case where this court found that a provision in a merger
agreement constituted a valid amendment to an ERISA plan, was controlling.
On July 1, 2010, the district court issued a 46-page Memorandum Opinion
and Order granting judgment for Sterling on all claims and holding, inter alia,
that: (i) Section 5.05(f) of the APA did not amend the Sterling Plan and the
Halliburton case was “wholly distinguishable;” (ii) in the alternative, the
“contractual limitation imposed by [Section 5.05(f)] was removed once the
Sterling entities rejected the APA during their bankruptcy proceeding and
decided to increase premiums thereafter;” and (iii) Plaintiffs’ claim that Sterling
did not meet the constitutional due process requirements regarding adequate
notice was meritless. In making each of its holdings, the district court relied
upon “record evidence” which included witness and expert testimony extrinsic
to the terms of the APA and the Sterling Plan documents. Plaintiffs timely
appealed each of the holdings.
III. DISCUSSION
Plaintiffs first claim that Section 5.05(f) of the APA constituted an
amendment to the Sterling Plan and, as a valid plan amendment, it was
“assumed” and not “rejected” in bankruptcy. In the alternative, Plaintiffs claim
that they were denied due process when Sterling made “false assurances” that
their rights would not be adversely affected by the bankruptcy proceedings. For
the following reasons, we find that Section 5.05(f) constituted a valid plan
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amendment and was assumed in bankruptcy. Therefore we express no opinion
as to whether constitutional due process was satisfied when Sterling sent
communications to Plaintiffs stating that it did not “expect” the Sterling Plan to
be affected during the bankruptcy proceedings. See In re Kendavis Holding Co.,
249 F.3d 383, 388 (5th Cir. 2001) (holding that “perfunctory knowledge of the
bankruptcy proceeding did not constitute adequate notice to satisfy
constitutional due process requirements” where the debtor assured the plaintiff-
retiree his rights would not be affected by the bankruptcy).
A. Section 5.05(f) Constituted A Valid Plan Amendment
1. Standard of Review is De Novo
This court generally performs a two-step review of a plan administrator’s
denial of an ERISA claim, see Wildbur v. Arco Chem. Co., 974 F.2d 631, 637 (5th
Cir.), modified, 979 F.2d 1013 (5th Cir. 1992), but whether a provision in a
corporate document such as the APA constitutes a valid plan amendment is a
question of law which this court reviews de novo. See Halliburton, 463 F.3d at
370.
Sterling concedes that the question of whether Halliburton controls this
case is subject to de novo review, but it states that this court must still perform
the second step of the analysis and review the administrator’s rejection of
Plaintiffs’ claims for abuse of discretion. Sterling is incorrect. If this court
determines that, as a matter of law, Section 5.05(f) of the APA amended the
Sterling Plan, that is the end of our inquiry. See id. at 370–71. No party argues
that Section 5.05(f) is ambiguous. Therefore, if Section 5.05(f) is part of the
Sterling Plan, it controls the determination of Plaintiffs’ rights, and if it is not
part of the Sterling Plan, there is no other provision that otherwise restricts
Sterling from raising Plaintiffs’ premiums. See Nickel v. Estate of Estes, 122 F.3d
294, 298 (5th Cir. 1997) (“We review de novo questions of law, such as whether
an ERISA plan’s terms are clear and, if they are, how those terms should be
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interpreted.”); Sunbeam-Oster Co., Inc. Group Benefits Plan for Salaried and
Non-Bargaining Hourly Emps. v. Whitehurst, 102 F.3d 1368, 1373 (5th Cir.
1996) (stating that “the preliminary determination whether an ERISA plan’s
language is silent or ambiguous” is reviewed de novo).
2. Halliburton is Analogous and Controls
a. Factual Background in Halliburton
Whether Section 5.05(f) of the APA constituted a valid amendment to the
Sterling Plan turns on whether this court’s analysis in Halliburton is controlling.
In Halliburton, a merger agreement between Halliburton and Dresser Industries
included a provision whereby Halliburton agreed to maintain Dresser’s retiree
plans, except to the extent that any modifications were consistent with changes
in Halliburton’s medical plans for its own similarly situated active employees.
463 F.3d at 362. The merger agreement provided in relevant part:
[Halliburton] shall and shall cause the Surviving Corporation and
each Subsidiary of the Surviving Corporation to take all corporate
action necessary to: (i) maintain with respect to eligible participants
(as of [September 29, 1998]) the [Dresser] retiree medical plan,
except to the extent that any modifications thereto are consistent
with changes in the medical plans provided by [Halliburton] and its
subsidiaries for similarly situated active employees . . . .
Id. at 365 (alterations in original).
The merger agreement also provided that its provisions were solely for the
benefit of Halliburton and Dresser and that it did not confer any right, benefit,
or remedy to any other person except for members of Halliburton’s board of
directors, who were permitted to enforce the provisions for three years. Id. The
stated reason Halliburton and Dresser included the retiree benefits provision in
the merger agreement was to permit Dresser retirees to keep their benefits while
also giving Halliburton the flexibility to change the Dresser retiree plans as long
as it made similar changes for active Halliburton employees. Id. at 366. The
merger agreement was executed on February 25, 1998, and became effective on
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September 29, 1998. Id. at 364. The respective boards of directors of Halliburton
and Dresser approved the merger. Id.
On July 16, 1999, Halliburton entered into a separate agreement to
assume the sponsorship of, adopt, and continue the Dresser retiree plans. Id. at
366–67. The agreement expressly vested Halliburton’s benefits committee with
the power to administer the Dresser retiree plans, and vested the Halliburton
chief executive officer with the power to amend or terminate the Dresser retiree
plans. Id. at 367. Halliburton could have adopted and sponsored the Dresser
retiree plans pursuant to the merger agreement, but instead elected to do so
pursuant to the subsequent agreement. Id. at 367 n.5. At the end of 2002,
Halliburton combined all of the Halliburton and Dresser plans, including the
Dresser retiree plans, and shortly thereafter made the Dresser retiree plans sub-
parts of the combined plan. Id. at 367. At all times following the merger in 1998,
the Dresser retiree plans and the Halliburton active employee plans remained
unchanged. Id.
In November 2003, over five years after the merger, Halliburton modified
the Dresser retiree plans so that the Dresser retirees’ benefits would be more
closely aligned with the Halliburton retirees’ benefits. Id. It did so by freezing
Halliburton’s contribution costs, thereby making Dresser retirees responsible for
any future increase in premiums. Id. Halliburton did not make similar
modifications to the combined plan for its own similarly situated active
employees. Id. at 362, 367. One of the Dresser retirees complained, and the
Halliburton benefits committee denied the retiree’s request to withdraw the
November 2003 amendments. Id. at 367–68. The committee concluded that the
amendments were consistent with Halliburton’s obligations under the merger
agreement and that nothing in the merger agreement limited its right to modify
the Dresser retirees’ benefits. Id.
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Thereafter, Halliburton initiated a declaratory action in district court, and
the Dresser retirees filed counter-claims and third-party claims. Id. at 368. The
district court found that the retiree benefits-related provision in the merger
agreement constituted a valid plan amendment, and held that “Halliburton must
maintain the [Dresser retiree plans] for eligible participants and may adjust
benefits in that program only if it makes identical changes to benefits for
similarly situated active employees.” Id. at 369.
b. The Halliburton Court’s Analysis
On appeal Halliburton argued that: (i) the retiree benefits provision in the
merger agreement did not “effect a plan amendment” because it did not properly
follow plan amendment procedures; (ii) the retirees could not enforce the
provision because only Halliburton directors were permitted to enforce the terms
of the merger agreement; and (iii) requiring Halliburton to maintain the Dresser
retiree plans amounted to an impermissible vesting of benefits. Id. at 369–70.
The court reviewed de novo the question of whether the retiree benefits provision
of the merger agreement constituted a plan amendment. Id. at 370.
The Halliburton court began by noting that the Dresser retiree plans
reserved the right for “the Company” to amend or terminate the plan at any
time. Id. at 371. Then, after determining that Halliburton succeeded to the
rights and obligations under the Dresser retiree plans when it executed the July
1999 agreement, it returned to the question of whether the merger agreement
“effectively amended the Dresser [retiree plans] so that Halliburton may amend
or terminate the program only to the extent it makes the same changes to the
plans for its similarly situated active employees.” Id. Its analysis proceeded as
follows:
In order to amend a welfare benefit plan governed by ERISA, the
employer must provide a procedure for amending such plan, and for
identifying the persons who have authority to amend the plan.
ERISA imposes no additional formalities on plan amendments. In
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particular, there is no requirement that a document claimed to be
an amendment to a welfare plan be labeled as such. Clearly then, a
provision in a merger agreement could amend a welfare plan, even
if it is not labeled as a plan amendment. However, only an
amendment executed in accordance with the plan’s procedures is
effective.
Id. at 371–72 (internal quotations and citations omitted).
The court determined that the Dresser retiree plans’ procedure for
amendment provided that “[t]he Company may amend, modify, change, revise,
discontinue or terminate the Plan . . . at any time by written instrument signed
by the Vice President, Human Resources.” Id. at 372. It looked to corporate law
principles to determine that “officers generally have authority to take action on
behalf of the company when that action is approved by the board of directors,”
and it concluded that the merger agreement effectively amended the Dresser
retiree plans. Id. at 372–73.
With respect to the question of “who” was permitted to amend the Dresser
retiree plans, Halliburton argued that the merger agreement could not effect a
plan amendment because Dresser’s Vice President of Human Resources did not
sign the merger agreement. Id. at 373. The court, again citing corporate law
principles, stated that while the amendment procedure making reference to the
Vice President of Human Resources “constitute[d] a delegation of authority for
one way in which the Company may amend the plan[, it did] not, however,
constitute the only way in which ‘[t]he company’ may amend the plan.” Id. It
noted that, “[u]nder corporate law principles, Dresser could revoke its delegation
of authority and act to amend the plan in some other manner.” Id. It held that,
because Dresser’s board of directors approved the merger and its chairman
signed the agreement, such actions “were more than sufficient to constitute an
action by the company to amend the plan.” Id. at 374. It then held that the
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benefits provision in the merger agreement constituted a valid amendment to
the Dresser retiree plans. Id.
In the alternative, the court noted that because “Halliburton administered
its obligations under the [Dresser retiree plans] consistent with” the merger
agreement’s benefits provision, “to the extent it [was] necessary, Halliburton’s
ex post actions ratified [such provision] as a valid plan amendment.” Id. at 375.
Finally, the court addressed Halliburton’s two other arguments: that the
Dresser retirees could not enforce the provision, and that the provision was an
impermissible grant of permanent benefits. Id. at 376–78. The court succinctly
rejected both arguments. First, it pointed out that “enforcement of a plan’s
provision, including any amendments thereto, falls exclusively in ERISA’s
remedial scheme,” noting that while the retirees could not sue for breach of
contract, they could seek clarification of their rights under the terms of the
Dresser retiree plans. Id. at 375–76. And second, it explained that instead of
vesting an “unalterable and irrevocable” benefit on the Dresser retirees, the
merger agreement provision simply required that, if Halliburton wanted to
amend or terminate the Dresser retiree plans, it could do so as long as it did the
same for its own similarly situated active employees. Id. at 377. The Halliburton
court noted that, “[e]mployers generally are free under ERISA to modify or
terminate plans, but if the plan sponsor cedes its right to do so, it will be bound
by that contract.” Id. at 378. It ultimately held that:
Halliburton [could not] unilaterally take away the ‘bargained-for
rights’ that Dresser and Halliburton negotiated and made on the
retiree program as part of their merger agreement. The parties were
free to impose contractual obligations on the right to amend or
terminate the Dresser [plans], and they did. Because of these
limitations, Halliburton cannot alter the retiree program, except as
consistent with the plan as amended by [the merger agreement
provision].
Id. (internal citations omitted).
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c. Halliburton Controls Sterling’s Case
This appeal turns on whether, under Halliburton, Section 5.05(f) of the
APA constituted a valid amendment to the Sterling Plan. Halliburton
established that a corporate agreement can amend an ERISA plan, whether or
not the agreement was expressly intended to effect an amendment. Id. at 372
(citing JOHN F. BUCKLEY, ERISA LAW ANSWER BOOK 7 (5th ed. 2006) (“[A]ny act
that is directed to a provision of an ERISA plan may be deemed to constitute a
plan amendment even though it does not recite that it is intended to amend the
plan and it is not included in a plan document.”); see also Horn v. Berdon, Inc.
Defined Benefit Pension Plan, 938 F.2d 125, 127 (9th Cir. 1991) (finding all that
is needed to effect an amendment is a properly authorized written instrument
directed at plan provisions). Therefore, as long as an agreement is in writing, it
contains a provision directed to an ERISA plan, and the plan amendment
formalities are satisfied, such agreement or other document will constitute a
valid plan amendment. Halliburton, 463 F.3d at 370–74.
The APA is a written corporate agreement, and Section 5.05(f) is directed
to provisions of both Cytec’s and Sterling’s ERISA plans (i.e., directing the
maintenance of benefits and premiums). Thus, the first two requirements are
satisfied.
With respect to the two other amendment formalities—having a procedure
for amendment and having a procedure for identifying the persons with
authority to amend—the formal documents constituting the terms of the Sterling
Plan permit amendments or modifications “at any time and from time to time”
by the Committee. Various SPDs that describe the terms of the Sterling Plan but
which are not themselves part of the Sterling Plan, see CIGNA, 131 S. Ct. at
1878, also state that the Sterling Plan “may be amended at any time by [the
Committee] or the Board of Directors.” Both formalities were satisfied in this
case.
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The APA required and was granted approval by each of the three Sterling
companies’ boards of directors, and it was signed by the chairman of each of the
three Sterling companies. This approval satisfies the first formality, as
Halliburton made it clear that, at least pursuant to Delaware law which applied
there and which also applies here, a corporation’s board of directors retains
ultimate control over delegating authority and authorizing corporate actions. See
Halliburton, 464 F.3d at 372–73. Thus, even if the Committee was the only
entity expressly authorized to modify or amend the Sterling Plan under the
formal plan documents, the board of directors was empowered to revoke such
delegation and authorize the chairman to amend the Sterling Plan by signing
the APA. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 80 (1995);
Halliburton, 463 F.3d at 372–74. The SPDs describing the plan amendment
process acknowledge as much.
The approval of the APA by Sterling’s boards of directors and the
execution of the APA by Sterling’s chairman on December 23, 1996, satisfied
both plan amendment formalities. Under Halliburton, at that moment, Section
5.05(f) of the APA became a valid amendment to the Sterling Plan.
3. Sterling’s Arguments Are Unpersuasive
Sterling’s various arguments do not alter our analysis and conclusion.
First, Sterling’s argument regarding (and the district court’s reliance on)
testimony stating that Section 5.05(f) was never intended to amend the Sterling
Plan or directly benefit the Acquired Employee retirees is unpersuasive. Sterling
asserts that Section 5.05(f) was included in the APA primarily to benefit Cytec
with respect to a separate contractual obligation Cytec had with Cyanamid, and
that any benefit to Plaintiffs was incidental. However, when addressing the
intent-to-amend issue, the Halliburton court only referenced the purpose and
intent for including the retiree benefits provision in the merger agreement in the
factual background section of its opinion. See Halliburton, 463 F.3d at 366. It did
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not include any reference or analysis of the parties’ intent in its determination
that the merger agreement provision constituted a valid plan amendment. See
id. at 370–74. That the APA generally, and Section 5.05(f) in particular, did not
expressly state an intention to effect a plan amendment is immaterial because
such an additional formality is not required by law or by the Sterling Plan’s
terms. See id. at 372.
In this context at least, whether the parties to a corporate agreement
which contains a provision directed to an ERISA plan “intend” to amend the plan
is irrelevant. Additionally, in its response to the petition for rehearing, the
Halliburton court stated:
This is not a case, for example, in which an acquiring company
limited a benefit continuation covenant to a specified time period or
included an express statement that the merger agreement was not
intended to modify or amend any particular plan. We express no
view on whether such language would successfully limit the
application of ERISA or a plan participant’s right to sue.
Halliburton Co. Benefits Comm. v. Graves (Halliburton II), 479 F.3d 360, 361
(5th Cir. 2007). Because the same is true in this case, we likewise express no
view as to whether an additional provision in the APA stating that no plan
amendment was intended could have effectively prevented Section 5.05(f) from
being a valid plan amendment by operation of law.
Second, Sterling argues that Section 5.05(f) “was a contractual obligation
owed by Sterling Fibers to Cytec and not an amendment.” This argument is also
unpersuasive and misses the point of this court’s analysis to determine whether
or not this contractual provision could constitute a valid plan amendment. Of
course Section 5.05(f) was a contractual obligation upon which Sterling or Cytec
could sue each other for breach. But that fact does not mean that it was only a
contractual obligation and not also a plan amendment. The benefits provision in
the Halliburton merger agreement was also a contractual obligation between the
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parties to the agreement. 463 F.3d at 378. But by being directed at the
provisions of an ERISA plan and by satisfying the amendment formalities, such
merger agreement provision became a valid plan amendment as well. Sterling
cites no statute or case law that supports the idea that contractual obligations
and plan amendments are mutually exclusive concepts.2 Pursuant to the
foregoing analysis, Section 5.05(f) is a valid plan amendment whose terms can
be enforced by Plantiffs under ERISA; whether it is (or was) also a contractual
obligation between corporate parties is besides the point for these purposes.
Third, Sterling argues that because it never included the Section 5.05(f)
language in its formal plan documents or distributed it to plan participants,
Section 5.05(f) could not be part of the plan. Sterling is incorrect. While case law
does provide that ERISA plans include the documents distributed to the
employees and participants, see, e.g., Curtiss-Wright, 514 U.S. at 83, it does not
automatically follow that what otherwise would constitute a plan document is
not part of the plan if it has not been distributed to plan participants or if its
terms have not otherwise been included in the formal plan documents. This is
precisely the same situation faced by the Halliburton court, and that court was
unconcerned with the fact that Halliburton had never included the merger
agreement itself or the terms of the retiree benefits-related provision in its
formal plan documents or distributed the agreement to the plan participants.
Simply because Sterling failed to include the Section 5.05(f) language in its other
plan documents and failed to distribute the APA to its plan participants does not
mean Section 5.05(f) was not a valid plan amendment. Failure to include or
2
Sterling cites an ERISA case dealing with a collective bargaining agreement (CBA)
that included a retiree benefits-related provision in support of its contention that its obligation
under Section 5.05(f) was only contractual. See Int’l Ass’n of Machinists & Aerospace Workers,
Woodworkers Div., AFL-CIO v. Masonite Corp., 122 F.3d 228 (5th Cir. 1997). But the Masonite
court did not address the issue of whether the CBA could itself have constituted an ERISA
plan amendment, and it is unclear whether the plan amendment formalities were satisfied by
the execution of the CBA at issue in that case.
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distribute all plan documents—including valid amendments—may be a separate
violation of Plaintiffs’ rights under ERISA, but it does not change Section
5.05(f)’s status as a valid plan amendment.
Fourth, Sterling’s argument that Sterling Fibers, not Sterling Chemicals,
had the obligation to maintain the Acquired Employee retirees’ benefits under
Section 5.05(f) changes nothing. In 1996, the boards of directors of each of the
three Sterling companies approved the APA, and the chairman of each of the
three Sterling companies signed the APA.3 At all relevant times, Sterling
Chemicals maintained each of Sterling’s ERISA plans and provided benefits for
all of the Sterling companies’ employees and retirees, including those of its
wholly-owned subsidiary Sterling Fibers. Immediately after the acquisition,
Sterling Fibers placed Plaintiffs into the Sterling Plan maintained by Sterling
Chemicals (as was its obligation under Section 5.05(f)) because Sterling Fibers
had no plan of its own. Moreover, during the bankruptcy, Sterling Fibers was
sold and withdrawn as a participating employer in the Sterling Plan, while
Sterling Chemicals retained its obligations under the Sterling Plan to all of
Sterling Fibers’ retirees (including Plaintiffs). Even if Sterling Fibers was
originally the sole contractual obligor under Section 5.05(f), a proposition that
does not appear to be correct, Sterling Chemicals became the obligor during the
bankruptcy and remained the obligor prior to the first premium increase in
2003. The inter-company organization of the various Sterling ERISA plans does
not change Section 5.05(f)’s status as a valid plan amendment.
Finally, Sterling’s citation to the Halliburton court’s response to the
petition for rehearing stating that the court’s “decision results from and is
limited to the specific language used in the corporate documents involved in the
Halliburton-Dresser merger,” does not change our analysis or conclusion. See
3
In this case, the chairman of each of the three Sterling companies was the same
person.
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Halliburton II, 479 F.3d at 361. Insofar as its rules and analysis are sound and
its facts are analogous, Halliburton is controlling precedent that we must follow.
See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006); FDIC v.
Abraham, 137 F.3d 265, 268 (5th Cir. 1998).
As none of Sterling’s arguments to the contrary are persuasive, we hold
that Section 5.05(f) constituted a valid amendment to the Sterling Plan as of
December 23, 1996, the date the APA was executed.
B. Section 5.05(f) was Assumed, Not Rejected, in Bankruptcy
After determining that Section 5.05(f) of the APA constituted a valid
amendment to the Sterling Plan, we must determine whether Section 5.05(f) was
assumed or rejected in bankruptcy. This bankruptcy-related question was not
before the Halliburton court, and the parties do not cite any precedent directly
on point. However, the bankruptcy court’s Confirmation Order, Sterling’s Plan
of Reorganization, and various provisions of the Bankruptcy Code help guide our
analysis.
The bankruptcy court’s Confirmation Order provided that all retiree
benefits were “treated as executory contracts and assumed pursuant to [the Plan
of Reorganization].” The Plan of Reorganization similarly provided that
Sterling’s various benefits plans were deemed to be and were treated as
“executory contracts that [were] assumed under the Plan [of Reorganization],”
and that nothing in the Plan of Reorganization modified the terms of such plans.
Therefore, because Section 5.05(f) was part of the Sterling Plan beginning in
1996, it was expressly assumed by Sterling pursuant to both the Confirmation
Order and Plan of Reorganization. Moreover, the Sterling Plan’s
terms—including the terms of Section 5.05(f)—were not modified by either the
Confirmation Order or the Plan of Reorganization.
The only difficulty in the analysis is the fact that the APA was rejected by
Sterling on November 13, 2002, and the Plan of Reorganization, which was
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approved on November 20, 2002, and became effective December 19, 2002,
provided that the Sterling Plan was assumed “[e]xcept to the extent (a)
previously assumed or rejected by an order of the Bankruptcy Court on or before
the Confirmation Date.” Thus, it is theoretically possible that Section 5.05(f) fell
within this exception and was rejected as part of the APA before it was assumed
as part of the Sterling Plan. However, the distinction between (i) a contractual
obligation between corporate parties, and (ii) an ERISA plan provision
enforceable by plan participants, provides the best answer to this interpretive
dilemma.
As noted above, Sterling provided no support for the idea that a provision
in a corporate agreement must be only a contractual obligation or only an ERISA
plan amendment and that it cannot be both. In fact, the district court in
Halliburton specifically noted that the merger agreement “could be a plan
modification, contractual commitment of Halliburton, or both. The distinction
does not matter.” Halliburton Co. Benefits Comm. v. Graves, No. Civ. A.
H–04–280, 2004 WL 2938645 (S.D. Tex. Dec. 20, 2004). The correct answer in
this case is “both,” and the distinction does matter.
Sterling maintains that Section 5.05(f) was a contractual term bargained
for to benefit Cytec and enforceable by Cytec and Sterling against each other.
This is certainly true. Also true is the fact that the executory portions of the
APA—i.e., those contractual terms still enforceable by Cytec and Sterling
against each other—were expressly rejected by order of the bankruptcy court on
November 13, 2002, prior to Sterling’s assumption of the Sterling Plan. But
simply because Section 5.05(f) was a contractual term that was enforceable
between Cytec and Sterling until the APA was rejected in bankruptcy, does not
necessarily mean that Section 5.05(f) was not also part of the Sterling Plan that
was expressly assumed by order of the bankruptcy court. When Sterling rejected
Section 5.05(f) of the APA, it was only rejecting its ongoing contractual obligation
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to Cytec; it was not rejecting its separate and ongoing ERISA obligation to
Plaintiffs. This is because Section 5.05(f) was incorporated into the Sterling Plan
in 1996 by operation of law, creating an ERISA obligation completely separate
from Sterling’s and Cytec’s contractual obligations to each other. As a plan
amendment Section 5.05(f) was not an executory contract provision found in a
corporate agreement; rather, it was part of the Sterling Plan enforceable by the
plan participants. See Halliburton, 463 F.3d at 375–76. Sterling’s rejection of the
APA therefore had no effect on the Sterling Plan because the continued validity
of the Sterling Plan’s terms was not dependent on the continued validity of the
APA.4
Sterling successfully argued below and continues to argue on appeal that
neither Section 1114 nor Section 1129 of the Bankruptcy Code—both of which
were cited in the Confirmation Order and Plan of Reorganization—restricted its
ability to modify Plaintiffs’ premium benefits during or following bankruptcy
because the premium benefits (embodied by Section 5.05(f)) did not qualify as
“retiree benefits” within the meaning of Section 1114. See 11 U.S.C. §§ 1114(a),
1129(a)(13). However, we need not determine whether Sterling and the district
court are correct that Plaintiffs’ premium benefits do not qualify as “retiree
benefits.” As discussed previously, Section 5.05(f) became part of the Sterling
4
This is essentially an ERISA version of the common contractual practice of
incorporation by reference. Once the Sterling Plan was amended to incorporate the language
of Section 5.05(f), such language became part of the Sterling Plan without regard to what could
happen to the APA in the future. The Sterling Plan’s incorporation of Section 5.05(f) did not
automatically tie the fate of that amendment to the fate of the APA. All that mattered was
that the incorporation of Section 5.05(f)’s language satisfied the plan amendment formalities.
The APA was simply the vehicle Sterling used to amend its ERISA plan; it was not the
foundation upon which the amendment depended for its continued validity.
Additionally, that the bankruptcy court drew distinctions between garden variety
executory contracts and other benefits programs and plans that were “deemed to be” and
“treated as” executory contracts further indicates that there is a distinction between typical
executory contracts and ERISA plan provisions that may have been initially contained in
corporate agreements such as the APA.
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Plan in 1996, and pursuant to its own terms Sterling could only modify such
provision after obtaining Cytec’s prior written consent. Sterling admits that it
never received prior written consent to increase Plaintiffs’ premiums. Therefore,
for these purposes, it does not matter whether or not Sterling’s ability to modify
the premium benefit during or after bankruptcy was restricted by either Section
1114 or Section 1129 because its ability to modify premiums was already
restricted by the Sterling Plan’s own terms.5
Finally, Sterling’s argument that maintaining Section 5.05(f) as part of the
Sterling Plan is not workable after the other provisions in the APA were rejected
lacks legal support and fails as a practical matter. Sterling cites to no case law
supporting the idea that if a term of an ERISA plan becomes more difficult to
comply with, it becomes, in Sterling’s words, “a nullity.” Section 5.05(f)’s
requirement that Sterling receive prior written consent from Cytec in order to
raise the Sterling Plan premiums may make Sterling’s compliance more difficult
because Cytec’s and Sterling’s mutual contractual obligations were severed in
bankruptcy (at Sterling’s request), but it does not make the provision completely
unworkable. Sterling is in no way prevented from requesting information from
Cytec regarding Cytec’s relevant retiree plan premiums, or from requesting
written consent from Cytec when Sterling seeks to raise its own premiums. It is
possible that Sterling will have to negotiate (and possibly pay) to obtain such
information and consent from Cytec in the future (thereby creating new
contractual obligations), but this business development and potential additional
cost to Sterling has no effect on Plaintiffs’ rights under ERISA to receive benefits
under Section 5.05(f)’s terms.
5
We also note that the bankruptcy court’s approval of Sterling’s rejection of the APA
was not also approval—express or implied—of Sterling’s later attempt to modify Plaintiffs’
premium benefits without following the procedures required by Section 5.05(f)’s terms or by
the Bankruptcy Code.
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We find that the APA’s rejection in bankruptcy did not destroy Section
5.05(f)’s status as a valid plan amendment, and that Section 5.05(f) was assumed
in bankruptcy pursuant to Sterling’s Plan of Reorganization.
IV. CONCLUSION
“Employers generally are free under ERISA to modify or terminate plans,
but if the plan sponsor cedes its right to do so, it will be bound by that contract.”
Halliburton, 463 F.3d at 378. Sterling voluntarily ceded its right to modify
Plaintiffs’ premiums when it entered into the APA and approved of Section
5.05(f)’s terms. We therefore hold that, pursuant to Halliburton and as a matter
of law, Section 5.05(f) of the APA constituted a valid amendment to the Sterling
Plan. We also hold that Section 5.05(f) was assumed and not rejected in
bankruptcy and remained at all times a valid and enforceable provision of the
Sterling Plan. Because Sterling was required to receive Cytec’s prior written
consent before it raised Plaintiffs’ premiums, something it acknowledges it did
not do, we REVERSE the order of the district court and REMAND for additional
proceedings consistent with this opinion.
23