dissenting:
I would affirm the district court’s judgment and hold that the deferred-compensation provisions in the Cantrells’ Employment Agreements constitute an ERISA plan.
Based on the Supreme Court’s reasoning in its seminal decision in Fort Halifax Packing Co. v. Coyne,1 as well as decisions from the Fifth Circuit, the Cantrells’ deferred-compensation plan is an ERISA plan. In Fort Halifax, the Supreme Court held that a Maine statute requiring “a onetime, lump-sum payment triggered by a single event” was not preempted by ERISA because it “require[d] no administrative scheme.”2 The Court emphasized that the Maine statute did not require employers to pay benefits on a regular basis, did not place periodic demands on employers’ assets, and was contingent on a single event that might never occur.3 The Court subsequently described Fort Halifax as “construing] the word ‘plan’ to connote some minimal, ongoing ‘administrative’ scheme or practice.”4 Relying on Fort Halifax, this court has held that benefits are governed by ERISA when they require management to maké “case-by-case determinations”;5 the employer cannot carry out its obligations “with ... unthinking, one-time, nondiscretionary application of the plan”6 and therefore must “make ongoing discretionary decisions based on subjective criteria”;7 and the benefits create an ongoing demand on the employer’s assets.8 The deferred-compensation provisions of the Employment Agreements have these attributes.
For the Cantrells, there is a cap on the aggregate quarterly deferred-compensation benefits that are to be paid by B & V, which is 25% of B & V’s adjusted net profit *454for the previous fiscal year.9 For fifteen other employees, the cap is calculated differently.10 B & V must at least annually calculate the cap under the Cantrells’ agreements and the cap under the other agreements and to compare those caps to the aggregate quarterly payment. If additional employees become eligible to receive benefits during a particular quarter, B & V must repeat the comparison using the revised aggregate quarterly payment amount. If one of the caps is triggered, B & V is required to reduce the quarterly payments for the affected employees. If there are reductions in payments, there is a provision for carrying forward these amounts and paying them at a later date.11 These are not uncomplicated calculations, and the caps require B & V to perform repeated calculations and to monitor aggregate benefit payments.
B & V must also make a number of discretionary decisions under the deferred-compensation agreements, including decisions about whether an employee has forfeited her benefits by being terminated with cause or by competing with B & V.12 Another hallmark of an ERISA plan is present in this case. Unlike the “one-time, lump-sum payment triggered by a single event” at issue in Fort Halifax,13 the deferred-compensation benefits owed to the Cantrells create an ongoing demand on B & V’s general assets over a period of ten years. Benefit payments can be triggered by any one of a number of events, which are likely to occur at different times for individual employees.14 The benefits require an “an ongoing administrative program” under Fort Halifax and under this court’s precedent. Our court has held that *455ERISA governs benefits requiring less administration than the benefits in this case.15 '
The majority opinion concludes that the Cantrells’ agreements require B & V to do nothing more than “writ[e] a check each quarter.”16 This assertion is not supported by the record. The majority opinion reasons that “the possibility the cap would ever be triggered is remote” and later opines that it is “unlikely” that the cap will be reached.17 But that ignores the fact that unless and until B & V makes the calculation, at least annually, it cannot be determined if the cap is to be applied. The only evidence in the record to support the majority opinion’s conclusion regarding the “remote[ness]” of the likelihood that the cap will limit payments is a draft presentation to shareholders that indicates that the cap “should never be reached assuming normal growth and therefore deferred compensation should be payable, out of current profits.” Here again, even were this true, the calculation must be performed to determine the applicability of the cap. Additionally, the draft of the presentation to the board, assuming it was accurate, is evidence only that the cap “should” not be reached if B & V continues to grow normally. Any number of events could affect B & V’s growth over the payout period, and the aggregate quarterly payment will continue to increase as additional B & V employees become eligible to receive benefits. The majority opinion’s conclusion that there is no ERISA plan relies, imper-missibly, on the prediction that B & V will remain financially stable and will experience steady growth through the ten-year duration of the Cantrells’ payments.
This is not only a prediction but an irrelevant prediction. The Employee Agreements plainly require administration even if B & V continues to grow normally. For example, B & V must monitor former employees to ensure that they are not competing with B & V during the payout period and, in the event of alleged competitive activity, to make discretionary decisions about whether the employee has forfeited benefits. The majority opinion concludes that B & V’s handling of Patrick Cantrell’s benefit payments — i.e., that B & V terminated Patrick’s payments after its fortuitous discovery of Carol’s C & C invoice and not because B & V independently monitored its employees — “illustrates that there is no administrative scheme set up.”18 But the inquiry under Fort Halifax is whether the disputed provisions “require [ ] an ongoing administrative program to meet the employer’s obligation,” 19 not whether the employer has *456an adequate administrative scheme in place.
The majority opinion cites Peace v. American General Life Insurance Co.20 to support its position, but in Peace the employer purchased a single-premium annuity and argued that “as owner of the annuity for a brief period of time, it could have made various discretionary decisions.”21 We rejected that assertion, holding that “it is insufficient to provide a benefit and then create an unnecessary administrative scheme around it to invoke ERISA.”22 This court emphasized in Peace that the activities performed by the employer were “performed only once or over a brief period of time and never performed again.”23 By contrast, B & V here maintains authority and control over the scheme; it has not relinquished its responsibility to make ongoing determinations regarding the Can-trells’ benefits. The fact that B & V may not have yet “set up” competent monitoring procedures does not detract from the fact that such procedures are required to administer the benefits in accordance with the Cantrells’ Employment Agreements.24
The majority opinion “reject[s] the notion” that the discretionary determination of whether an employee was terminated with cause “is enough to necessitate an ongoing administrative scheme.”25 However, this court recently held in Clayton v.■ ConocoPhillips Co.26 that a severance arrangement that provided benefits to employees terminated after a change in corporate control was an ERISA plan.27 Under the severance provisions, employees were eligible for benefits if they resigned for “Good Reason,” which was defined in the provisions as any one of a number of events or conditions.28 An employee who was denied benefits under the severance provisions contended that the provisions were not an ERISA plan because they consisted of a “one-time, lump-sum payment triggered by a single event.”29 Conoco contended that the provisions fell within ERISA because, inter alia, the trustee had to exercise discretion in determining whether “Good Reason” existed for a resignation.30 We agreed that this seemingly limited “claims eligibility discretion” necessitated an ongoing administrative program.31 Here, as in Clayton, B & V must determine whether a terminated employee was terminated “with cause.” There is no principled distinction between this “with cause” determination and the “Good Reason” determination at issue in Clayton.
The majority opinion cites Velarde v. PACE Membership Warehouse, Inc.,32 in which the Ninth Circuit concluded that the “minimal quantum of discretion” involved in determining whether an employee was terminated for cause was insuffi*457cient to render severance benefits an ERISA plan.33 Even if we were to find Velarde’s reasoning persuasive, the Ninth Circuit in that case noted that “the employer.was simply required to make a single arithmetical calculation to determine the amount of severance benefits” and concluded that the cause determination was not sufficient by itself to bring the benefits within the scope of ERISA.34 The cause determination, however, is only one feature of the deferred-compensation provisions that requires B & V to implement. an administrative scheme. B & V must also monitor employees for violations of their Employment Agreements and make forfeiture determinations when a violation occurs. Additionally, as already discussed above, although the total amount of benefits to be paid is calculated only once, B & V is required to make yearly, and perhaps quarterly, computations to ensure compliance with the cap. If the cap is triggered, B- & V must decrease payments and recalculate the remaining installments. This is more than the “single arithmetical calculation” contemplated in Velarde. This case is therefore distinguishable from Velarde.
The Supreme Court has emphasized that ERISA requires “some minimal, ongoing ‘administrative’ scheme or practice.”35 The provisions in the Cantrells’ Employment Agreements surpass that threshold requirement. Under Fort Halifax and under this court’s precedent, the Cantrells’ deferred-compensation benefits fall within the scope of ERISA. I therefore respectfully dissent.
. 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987).
. Fori Halifax, 482 U.S. at 12, 107 S.Ct. 2211.
. Id.
. District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 n..2, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) (emphasis added).
. Tinoco v. Marine Chartering Co., 311 F.3d 617, 621 (5th Cir.2002) (citing Bogue v. Am-pex Corp., 976 F.2d 1319, 1323 (9th Cir. 1992)).
. Id. (quoting Bogue, 976 F.2d at 1323) (internal quotation marks omitted).
. Id. at 622; see also Crowell v. Shell Oil Co., 541 F.3d 295, 307 (5th Cir.2008) (rejecting the plaintiffs' contention that a deferred-compensation scheme was not an ERISA plan because it “provided no opportunity for any exercise of discretion regarding the determination of whether an employee would receive compensation ... or how much compensation would be received” and noting that the plaintiffs failed "to. recognize the discretion required in making benefits determinations under several portions” of the compensation scheme, including various calculations of monthly amounts owed and tax limitations); Fontenot v. NL Indus., Inc., 953 F..2d 960, 963 (5th Cir. 1992) (noting that a severance plan might fall under ERISA if "the circumstances of each employee’s termination [had to be] analyzed in light of [certain] criteria” but that no administrative scheme is required if the employees “receive benefits upon termination regardless of the reason for termination” (alterations in original) (quoting Pane v. RCA Corp., 667 F.Supp. 168, 171 (D.N.J.1987)) (internal quotation marks omitted)).
.See Peace v. Am. Gen. Life Ins. Co., 462 F.3d 437, 441 (5th Cir.2006) (holding that benefits were not part of an ERISA plan in part because the employer "made a one-time payment into an annuity, after which there was no subsequent demand on its assets”).
. Under the Cantrells’ Employment Agreements, "in no event may [B & V’s] Aggregate Quarterly Deferred Compensation Payment in any quarter exceed twenty five percent (25%) of [B & V’s] Adjusted Net Profit for the previous fiscal year ... divided by four (4).”
. The Employment Agreements of the fifteen other employees provide that “in no event may [B & V’s] Aggregate Quarterly Deferred Compensation Payments exceed 5% of gross ' revenue on a cash basis of accounting for the previous fiscal year.”
. Both the Cantrells’ agreements and the agreements of the other employees provide that
If the Aggregate Quarterly Deferred Compensation Payment for any quarter would exceed the Limitation Amount the EMPLOYEE'S Installment Amount shall be reduced to an amount equal to her proportionate share of the EMPLOYER'S Aggregate Quarterly Deferred Compensation Payment for such quarter times the Limitation Amount. In the event the EMPLOYEE’S Installment Amount is reduced by application of previous sentence, such reduced amount shall be, added to the EMPLOYEE'S Installment Amount due in subsequent quarters until paid, provided that each subsequent quarter’s payment will also be subject to the Limitation Amount.
. The Employment Agreements provide
If during the Pay-Out Period the EMPLOYEE competes, directly or indirectly, with the EMPLOYER ... by engaging or participating in any business that is engaged in the EMPLOYER'S or its Affiliate's business or proposed business within fifty (50) miles where the EMPLOYER or its Affiliate engages or proposes to engage in business at the time of the Termination Event, the EMPLOYEE forfeits all remaining balance of the Deferred Compensation Amount____ Furthermore, if the EMPLOYEE is terminated With Cause ... the EMPLOYEE forfeits all rights [to deferred compensation under the agreement].
. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987).
. Under the Employment Agreements, employees become eligible for deferred-compensation payments after a qualifying Termination Event, i.e., retirement, disability, death of the employee during employment, or termination of the employee by a majority vote of B & V's board of directors.
.See Perdue v. Burger King Corp., 7 F.3d 1251, 1253 & n. 5 (5th Cir.1993) (holding that the Burger King Job Elimination Program, which provided that employees terminated as a result of a' reduction in workforce were entitled to receive certain severance benefits for three years, was an ERISA plan because it “was in effect for three years, applied to two nation-wide personnel reorganizations, and required an administrative set-up to monitor and facilitate provision of benefits” (internal quotation marks omitted)); Whittemore v. Schlumberger Tech. Corp., 976 F.2d 922, 923 (5th Cir. 1992) (holding that "a provision of the company's management policy manual that ... provided for severance pay in lieu of notice of termination” was an ERISA plan because it was “not created with a particular closing in mind,” "had been in existence for some time,” and “plainly required some sort of an administrative set-up in order to make payments to employees”).
. Ante at 450-51.
. Ante at 451.
. Ante at 452.
. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) (emphasis added); see also Peace v. Am. Gen. Life Ins. Co., 462 F.3d 437, 441 (5th Cir.2006) ("Halliburton was not required to create an *456administrative scheme to provide the annuity benefit.”).
. 462 F.3d 437 (5th Cir.2006).
. Peace, 462 F.3d at 441.
. Id.
. Id. at 440.
. See Fort Halifax, 482 U.S. at 11, 107 S.Ct. 2211; Peace, 462 F.3d at 441.
. Ante at 452.
. 722 F.3d 279 (5th Cir.2013).
. Clayton, 111 F.3d at 293-96.
. Id. at 283 & n. 2.
. Id. at 296 (quoting Fort Halifax, 482 U.S. at 12, Í07 S.Ct. 2211) (internal quotation marks omitted).
. Id.
. Id. at 296.
. 105 F.3d 1313 (9th Cir.1997).
. Velarde, 105 F.3d at 1317!
. Id.
.District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 n. 2, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992).