Opposition Brief — Kinam Gold, Inc. v. Lettes

Supreme Court, U.S.

FILED

No. 00-1631

—_———_—__—4 ————

In The

Supreme Court of the United States

-

KINAM GOLD INC., a Delaware corporation, formerly

known as Amax Gold, Inc.; AMAX GOLD, INC.

SEPARATION PLAN FOR KEY EMPLOYEES; AMAX

GOLD INC. BENEFITS COMMITTEE; KINROSS GOLD

CORPORATION BENEFITS COMMITTEE; and

KINROSS GOLD CORPORATION,

Petitioners,

MARK LETTES,

Respondent.

”

‘ On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

*

RESPONDENT'S BRIEF IN OPPOSITION

¢

Dennis B. PoLk

Eric E. ToRGERSEN

Counsel of Record

Houtey, ALBERTSON & Pork, P.C.

1667 Cole Boulevard

Suite 100, Buiiding 19

Golden, Colorado 80401

(303) 233-7838

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

PARTIES TO THE PROCEEDING AND

STATEMENT PURSUANT TO RULE 29.6

In addition to the parties listed by Petitioners, two

additional parties warrant mention. Kinam Gold, Inc.,

formerly known as Amax Gold, Inc. (“Amax”), is a sub-

sidiary of Kinross Gold Corporation (“Kinross”), by vir-

tue of a merger on June 1, 1998. Prior to the merger,

Amax was a subsidiary of Cyprus Amax Minerals Co.

(“Cyprus”); Cyprus remained a stockholder of Amax

Gold, Inc. after the merger. Phelps Dodge Corporation is

the successor by merger to Cyprus Amax Minerals Co.

il

TABLE OF CONTENTS

Page

Parties to the Proceeding and Statement Pursuant to

Rede FOB, oo oiinctincnscdwainwnaabad eee i

Table of Content... ...0. isi ccwssiceseatenceseneanees ii

Table of Authorities . ... 6.5 <6icissensoncduveaseceses iv

Statement of the Case ...4.606cvisasscccouaeeosseen 1

A. Factual Background .................seeeee pen

B. Proceedings Below. iiss sccciccsdsccunecencaces 3

There Is No Compelling Reason to Grant a Writ... 4

I. There Is No Important Federal Question of

' ERISA’s Coverage of Employer-Sponsored Bene-

es | Prerrerre re ror +

A. ERISA Does Not Distinguish a “Plan”

From a “Golden Parachute” ............. :

B. The Tenth Circuit Correctly Applied Fort

HOEe «so ocak ccxisccandeasnanereaseeeens 6

C. The Tenth Circuit’s Ruling Affects Only

These Pertiee. .os< icici ccnkacaeeseeabente 7

II. There Is No Conflict among the Circuit Courts on

an Important Federal Question of ERISA Pre-

CMT. . «oan saved ol eknen ee Penmaes sek ee ebn 8

A. Fort Halifax Articulates a Clear Standard to

Guide the Lower Courts................. 8

B. Fact-Based Decisions by Circuit Courts of

Appeals Do Not Create an Important Fed-

ered Le 6 ig enka chau 10

iii

TABLE OF CONTENTS - Continued

Page

C. All ERISA Plans Are Subject to Uniform

Federal Regulations .................+++- 12

RUN cao Uncncunccnenéscccdeccedocesaduceskel 12

a a ere cee ene nS Sr neh NR PANETT PE ES ES

iv

TABLE OF AUTHORITIES

Page

Cases

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

SE akncehevonnddwccndapabtbeguhensaewanenwasee 8, 9

Bogue v. AMPEX Corp., 976 F.2d 1319 (9th Cir.

PE cab icedesknccnedvnackseaiaueiaeeeutes 9, 10, 11

Collins v. Ralston Purina Co., 147 F.3d 592 (7th Cir.

Ps hi dvi kscesnsddekadeseneciatvssasesen 9, 10, 11

Custer v. Pan Am. Life Ins. Co., 12 F.3d 410 (4th Cir.

NR bebe. 5 64deae san eee ue chek sheeeedaven khan 9

Cvelbar v. CBI Ill. Inc., 106 F.3d 1368 (7th Cir. 1997) ..... 9

Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.

SEs 08s Sac c ad regedanesdce VuutadVlewewesreiie bee 9

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987). .passim

Johnston v. Paul Revere Life Ins. Co., 241 F.3d 623

Se Gb ek Ou oe cadbs cu kcdo ens cae Las nee 8

Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254

Se Sh, SOEs kad canchcieciurensdeauunsouseeenees 9

Marbury v. Madison, 5 U.S. 137 (1803) ................ 5

Massachusetts v. Morash, 490 U.S. 107 (1989)........ 4,5

Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904

ee 2 kee err er errr A alain 9

New England Mut. Life Ins. Co. v. Baig, 166 F.3d 1

COOE Taek: SO ook dda oa ae oa eae eae 8

Pane v. RCA Corp., 868 F.2d 631 (3d Cir. 1989) ....... 9

Vv

TABLE OF AUTHORITIES - Continued

Page

Rice v. Sioux City Cemetary, 349 U.S. 70 (1955)........ 4

Schonholz v. Long Island Jewish Med. Ctr., 87 F.3d 72

(ote Ae RU 0h ce dncuadhdiniengedasneaaanee 8, 9, 10

Siemon v. AT&T Corp., 117 F.3d 1173 (10th Cir.-

SOP Piiccdnastabacvrdghncesv¥desces bake couasbeteel 9

Tischmann v. ITT/Sheraton Corp., 145 F.3d 561 (2d

CRE: FONG) bh casetesvecstsasbustuebrsasisedeeeee 8, 9

Williams v. WCI Steel Co., 170 F.3d 602 (6th Cir.

js POPPE ere PT rey (hodbenhteeedetachsaeeunans Onmne 9

Williams v. Wright, 927 F.2d 1540 (11th Cir. 1991)..... 9

Young v. Washington Gas Light Co., 206 F.3d 1200

CRRA SE. PD wanes sncnsncsceuwas eevee 8

STATUTES

29 U.S.C. § 1002 (1994 & Supp. 1999)................ 5

29 U.S.C. § 1003(b)(5) (1994 & Supp. 1999)........... 5

29 U.S.C. § 1051(2) (1994 & Supp. 1999).............. 5

OTHER AUTHORITIES

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ee) oper re Poy eye rer ma 4

a? CPEs & Fee’ GO 65 hia cca 0s ee 5

STATEMENT OF THE CASE

A. Factual Background

In anticipation of a merger, Amax adopted the Amax

Gold, Inc. Separation Plan for Key Employees (“KESP”),

effective March 5, 1997. Appellant’s App. 689, 705. The

KESP was unfunded, App. L-11, § 2.5, terminable at any

time by Amax, and automatically terminated by Decem-

ber 31, 1999. App. L-15.

The KESP provided severance pay for certain “key”

employees who terminated employment under specified

circumstances. App. L-3, The KESP applied to nine “key”

employees, including Amax’s President and his direct

reports, of which Lettes was one. Appellant’s App. 539, Il.

17-22; Appellant’s App. 720. The KESP provided for a

lump sum severance payment to each “eligible” “key”

employee upon a “change of control,” which for practical

purposes, was a merger or acquisition of Amax, App. L-3

to L-5, unless certain exceptions applied, App. L-7; App.

L-25 to L-26. The amount of each “key” employee’s pay-

ment was fixed by a mathematical formula, based on the

employee’s salary and target bonus. App. L-5, L-6, L-8.

The KESP created a “plan administrator” and

appointed Amax to that position. App. L-11. Amax dele-

gated its duties to a previously established Benefits Com-

mittee, which consisted of three officers of Amax, two of

whom were “key” employees under the KESP, Appel-

lant’s App. 542, 1. 24 — 543, 1. 2. The Benefits Committee in

turn delegated its duties to Cyprus’ human resource

director, Appellant’s App. 541, ll. 17-22; Appellant’s App.

543, 1. 1 — 544, 1. 4, and took no other actions under the

KESP. Appellant’s App. 543, 1. 6 — 544, 1. 10.

In March 1998, Cyprus, as Amax’s majority share-

holder, approved the merger agreement with Kinross,

Appellant’s App. 744-745; om June 1, 1998, the merger

closed, Appellant’s App. 523, { 24. During the merger

transition, Kinross offered Lettes employment, Appel-

lant’s App. 521, { 17,-in a position that involved a sub-

stantial diminution in at least duties and responsibilities,

as well as long-term incentives, Appellant’s App. 522-23,

{ 22; Appellant’s App. 760-766. Before the merger closed,

Amax refused to pay Lettes severance without determin-

ing whether Kinross had offered Lettes “comparable

employment”, Appellant’s App. 650, p. 13, ll. 2-18; Appel-

lant’s App. 654, p. 26, ll, 6-16. Lettes was terminated and

separated from service as of the closing of the Kinross

merger on June 1, 1998. Appellant’s App. 135, { 2.

Cyprus’ human resource director took no part in the

decision to deny Lettes’ severance under the KESP,

Appellant’s App. 650, p. 11, ll. 17-23; for that decision, he

relied on legal advice that Lettes was not eligible under

the KESP until Lettes separated from service, after the

merger closed, Appellant’s App. -641, p. 118, ll. 2-12.

Although Amax obtained general legal advice, Appel-

lant’s App. 642, p. 122, 1. 5 - p. 123, l. 12, Amax did not

apply this advice to any other “key” employee, Appel-

lant’s App. 596, ll. 3-20. Without documentation, Cyprus’

human resource director approved the severance pay-

ments that were made under the KESP, Appellant’s App.

597, 1. 16-598, 1. 1; those payments were made on or ~

before the Kinross merger closed, Appellant’s App. 588, 1.

16 — 589, 1. 7, to all “key” employees, other than Lettes,

who were then employed by Amax, Appellant’s App. 588,

1. 16 — 589, 1. 7.

Amax took no action on Lettes’ request for severance

after the merger closed. Appellant’s App. 523 { 25;

Appellant’s App. 754. Kinross took no action on Lettes’

request before the merger closed. Appellant’s App. 524,

{ 27. There was no plan administrator for five months

after the merger closed, Appellant’s App. 752; Appel-

lant’s App. 682, p. 2 - 683, p. 5; Appellant’s App. 686, p.

17, although Kinross was aware that Amax had paid

severance benefits, because that cost was allocated to

Amiax, Appellant’s App. 677, pp. 26, 28. Kinross belatedly

appointed a plan administrator, Appellant’s App. 752,

and denied Lettes’ severance claim, Appellant’s App. 754,

on the advice of Petitioners’ counsel three months after

Lettes filed this lawsuit, Appellant’s App. 685, p. 13.

B. Proceedings Below

Lettes commenced an action in Colorado state court

against Amax and Kinross, asserting common law claims

and a statutory wage claim under Colorado law. Appel-

lant’s App. 8-11. Kinross removed the case to the District

Court and moved to dismiss Lettes’ state court complaint,

solely on the basis of ERISA pre-emption. Appellant’s

App. 12-15. The District Court granted that motion with-

out a hearing. App. 3la - 38a. On appeal, the Tenth

Circuit reversed and remanded with instructions to

remand the case to state court. App. 10a.

Neither the Tenth Circuit’s decision, see App. 1a; nor

the District Court’s decisions, App. 1la; App. 31a, is

reported.

THERE IS NO COMPELLING REASON

TO GRANT A WRIT

This case does not present an issue that merits review

by this Court. This case addresses the narrow question of

whether state law or ERISA should determine whether

one executive is entitled to severance pay under a

“golden parachute” agreement. The Tenth Circuit’s deci-

sion is a correct, unexceptional application of Fort Halifax

Packing Co. v. Coyne, 482 U.S. 1 (1987), and its Tenth

Circuit progeny, and does not conflict with decisions by

this Court or the decisions of any other Circuit Courts of

Appeals.

The Tenth Circuit Court of Appeals issued an Order

and Judgment that is not binding precedent. App. 1a; see

10th Cir. R. 36.3(A); see also 10th Cir. R. 36.1. The Tenth

Circuit’s Order and Judgment is limited to its facts, and is

faithful to the Fort Halifax decision. The outcome of this

case may be of paramount concern to the parties, but the

case does not present issues of importance “to the public

as distinguished from” the parties, Rice v. Sioux City

Cemetary, 349 U.S. 70, 79 (1955).

There is no compelling reason for the Court to exer-

cise its jurisdiction here.

I. THERE IS NO IMPORTANT FEDERAL QUESTION

OF ERISA’S COVERAGE OF EMPLOYER-SPON-

SORED BENEFIT PLANS.

A. ERISA Does Not Distinguish a “Plan” From a

“Golden Parachute” Agreement.

The “precise coverage” of ERISA is not “clearly set

forth in the Act.” Massachusetts v. Morash, 490 U.S. 107,

113 (1989). ERISA “covers ‘employee benefit plans,’

which it defines as plans that are either ‘an employee

welfare benefit plan,’ or an ‘employee pension benefit

plan,’ or both.” Massachusetts v. Morash, 490 U.S. 107, 113.

ERISA does not further define “plan.” See 29 U.S.C.

_ § 1002 (1994 & Supp. 1999). ERISA does, however, limit

its coverage for unfunded “employee benefit plans,” see

29 U.S.C. § 1003(b)(5) (1994 & Supp. 1999), particularly

plans that are “maintained by an employer primarily for

the purpose of providing deferred compensation for a

select group of management or highly compensated

employees,” 29 U.S.C. § 1051(2) (1994 & Supp. 1999).

ERISA’s regulations “identify[] certain practices”

that would not implicate ERISA’s coverage, e.g., 29 C.F.R.

§ 2510.3-1(a) (2000), but make no effort to distinguish an

ERISA “plan” from an employer’s agreement that does

not require an “ongoing administrative program,” Fort

Halifax, 482 U.S. at 11.

Because ERISA does not “clearly” supply a definition

of “plan”, Massachusetts v. Morash, 490 U.S. at 113, the

Tenth Circuit did not “contradict[ ] authoritative inter-

pretations” of ERISA, Pet. at 8; accord Marbury v. Madison,

5 U.S. 137, 177 (1803) (“[i]t is... the province and duty of

the judicial department to say what the law is”). The

Tenth Circuit correctly ruled, consistent with Fort Halifax,

482 U.S. at 11, that ERISA’s reach is limited only to

“plans” and not to mere “benefits”. The Tenth Circuit

' simply applied the iaw to a specific set of facts; nothing

suggests this is improper or even remarkable.

B. The Tenth Circuit Correctly Applied Fort Hal-

ifax.

ERISA preemption analysis is “guided by respect for

the separate spheres of governmental authority preserved

in our federalist system.” Fort Halifax, 482 U.S. at 19

(citations and internal quotations omitted). Congress

“intended pre-emption” only “with respect to benefits

whose provision by nature requires an ongoing adminis-

trative program to meet the employer’s obligation.” Fort

Halifax, 482 U.S. at 11. The requirement of a “one-time,

lump-sum payment. triggered by a single event requires no

administrative scheme whatsoever to meet the employer's

obligation.” Fort Halifax, 482 U.S. at 12 (emphasis sup-

plied). An ERISA “plan” does not exist where the

employer “assumes no responsibility to pay benefits on a

regular basis” and “faces no periodic demands on its

assets that create a need for financial coordination and

control,” Fort Halifax, 482 U.S. at 12.

The Tenth Circuit concluded that the “hallmarks of

an ERISA plan are whether the plan pays benefits trig-

gered by several events, as opposed to a one-time event,

and whether it requires regular periodic payments.” App.

6a. The district court found the “key factor” to be consid-

ered was “whether a plan required a case-by-case, discre-

tionary application of its terms.” App. 7a (citations and

internal quotations omitted). The Tenth Circuit “read [its]

precedent, however, to require consideration of addi-

tional factors.” App. 7a.

The Tenth Circuit held that whether a plan adminis-

trator “has discretion in determining eligibility for bene-

fits” may be “one factor” that should be considered in

deciding whether “an administrative scheme . . . is neces-

sary,” App. 9a, but does not by itself resolve “whether a

plan is sufficiently ‘ongoing’ to trigger ERISA regula-

tion,” App. 9a. The Tenth Circuit did not hold that the

KESP was not “sufficiently complex” for ERISA coverage,

Pet. at 15; rather, the Tenth Circuit concluded that simply

because a “golden parachute” agreement purported to

supply “an administrator” with “unfettered discretion in

determining eligibility” for severance did not mean “that

the employer has assumed a responsibility to pay benefits

on a regular basis, thus causing it to face periodic

demands on its assets that create a need for financial

coordination and control.” App. 9a (internal quotations

and citations omitted).

The Tenth Circuit’s holding is a straightforward

application of the Fort Halifax “ongoing administrative

program” standard, narrowly drawn to address the

“undisputed” facts. Amax’s “golden parachute agree-

ment,” App. 10a, was terminable at will, expired no later

than December 31, 1999, App. L 15, was “unfunded,

contingent on a one-time event that might never happen,

and expressly limited to a narrow time period. It

involved only nine employees and the benefit was to be

paid in a lump sum based on a mathematical formula.”

App. 10a.

C. The Tenth Circuit’s Ruling Affects Only These

Parties. .

Petitioners’ argument that the Tenth Circuit’s ruling

endangers employees is unfounded. The Tenth Circuit's

Order in this case affects only the parties. App. la. Of

Ee

those nine “key” employees offered the KESP, two did

not receive severance payments, Lettes and another “key”

employee who voluntarily terminated his employment

before Kinross closed its merger with Amax, App. 4a.

II. THERE IS NO CONFLICT AMONG THE CIRCUIT

COURTS ON AN IMPORTANT FEDERAL QUES-

TION OF ERISA PRE-EMPTION.

A. Fort Halifax Articulates a Clear Standard to

Guide the Lower Courts.

Fort Halifax, 482 U.S. at 11, distinguished between

“benefits” not subject to ERISA pre-emption and “plans”

subject to ERISA, based on whether the “provision” of

such benefits requires an “ongoing administrative pro-

gram”. This standard has furnished the Circuit Courts of

Appeals with ample guidance to develop “a variety of

factors,” Schonholz v. Long Island Jewish Med. Ctr., 87 F.3d

72, 76 (2d Cir. 1996), none of which is “determinative,”

Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 566 (2d Cir.

1998), because “no single act in itself necessarily consti-

tutes the establishment of a plan,” Belanger v. Wyman-

Gordon Co., 71 F.3d 451, 455 (1st Cir. 1995).

The Circuit Courts of Appeals do not lack a frame-

work to guide ERISA pre-emption decisions. The Circuit

Courts have applied, and continue to apply Fort Halifax to

specific facts and circumstances. See, e.g., Johnston v. Paul

Revere Life Ins. Co., 241 F.3d 623, 629 (8th Cir. 2001) (plan

must embody a set of “administrative practices”); Young !

v. Washington Gas Light Co., 206 F.3d 1200, 1203 (D.C. Cir.

2000) (plan involves “continuing administrative and

financial obligations”); New England Mut. Life Ins. Co. v.

Baig, 166 F.3d 1, 3 (1st Cir. 1999) (“continuing administra-

tive or financial obligations”); Collins v. Ralston Purina

Co., 147 F.3d 592, 595 (7th Cir. 1998) (“ongoing adminis-

trative program”); Tischmann, 145 F.3d at 565 (“ongoing

administrative program”); Siemon v. AT&T Corp., 117 F.3d

1173, 1178 (10th Cir. 1997) (“ongoing administrative pro-

gram”); Cvelbar v. CBI Ill. Inc., 106 F.3d 1368, 1375 (7th Cir.

1997) (“ongoing administrative scheme to administer the

plan’s benefits”); Schonholz, 87 F.3d at 75 (“ongoing

administrative program”); Belanger, 71 F.3d at 455 (“ongo-

ing commitment” to provide “employee benefits”);

Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257

(8th Cir. 1994) (“separate, ongoing administrative

scheme”); Bogue v. AMPEX Corp., 976 F.2d 1319, 1322 (9th

Cir. 1992) (“ongoing administrative program”); Williams

v. Wright, 927 F.2d 1540, 1544 (11th Cir. 1991) (“continuing

obligation necessitating ongoing . . . procedures”); Pane v.

RCA Corp., 868 F.2d 631, 635 (3d Cir. 1989) (“no adminis-

trative scheme”); cf. Williams v. WCI Steel Co., 170 F.3d

602, 604 (6th Cir. 1999) (applying Donovan v. Dillingham,

688 F.2d 1367 (11th Cir. 1982), to “ERISA qualification”

rather than ERISA “preemption”); Custer v. Pan Am. Life

Ins. Co., 12 F.3d 410, 417 (4th Cir. 1993) (applying Donovan

v. Dillingham to determine whether health insurance plan

qualified as ERISA plan); Memorial Hosp. Sys. v. North-

brook Life Ins. Co., 904 F.2d 236, 241 (5th Cir. 1990) (apply-

ing Donovan v. Dillingham to determine whether

insurance plan qualified under ERISA).

That the Circuit Courts of Appeals have relied

“heavily on the specific facts of cases,” Pet. at 20, in

applying the Fort Halifax standard is expected of courts

deciding justiciable cases. It is unremarkable, because the

10

Circuit Courts of Appeals have applied Fort Halifax to

differing facts, that not all cases have found an

employer’s agreement creates an ERISA plan.

B. Fact-Based Decisions by Circuit Courts of

Appeals Do Not Create an Important Federal

Question.

Petitioners cite opinions from the Second Circuit, see

Schonholz v. Long Island Med. Ctr., 87 F.3d at 72, the

Seventh Circuit, see Collins v. Ralston Purina, 147 F.3d at

592, and the Ninth Circuit Court of Appeals, see Bogue v.

AMPEX, 976 F.2d at 1319, as examples of a conflict on

how to determine if a severance agreement is an ERISA

“plan.” These cases merely illustrate the fact-specific

application of the Fort Halifax “ongoing administrative

program” standard, and each is distinguishable on its

facts.

Schonholz, 87 F.3d at 76, involved a separation plan

that “evidenced an ongoing commitment to provide sev-

erance benefits.” The severance plan’s “effective period

was unlimited” and the plan was not “limited either to a

single payment or to a short span of time upon a plant or

office closing.” 87 F.3d at 76-77. Unlike the KESP, the

severance plan in Schonholz contemplated payments to

“senior-level employees upon their involuntary dis-

charge” at any time, 87 F.3d at 74, rather than based on a

single event. The Schonholz plan also allowed the termi-

nated employee to “continue to receive other benefits,” 87

F.3d at 74, which contemplated ongoing administration.

11

Collins, 147 F.3d at 594, addressed multiple agree-

ments, numbering as many as 60, that required the pay-

ment of “six months [sic] salary (and a year of COBRA)

benefits” if the employee was terminated, apparently at

any time during the plan term. Unlike the KESP, the

Collins plan employer promised to pay, not only salary for

six months, but also to pay, and presumably administer,

COBRA health insurance benefits for one year after each

employee was terminated. The Seventh Circuit recog-

nized that “line drawing . . . is necessary,” because

“either [the] plan is preempted by ERISA or it is not.” 147

F.3d at 597.

The severance plan at issue in Bogue involved only

ten employees, but required unspecified “severance bene-

fits” if the employer were sold and the employee was

terminated, apparently at any time during the plan term.

976 F.2d at 1321. Although the Ninth Circuit in Bogue

found it significant that the plan required individualized

decision-making, 976 F.2d at 1322, the Court also found

that the seller-employer “remained obligated” to make

those decisions after any takeover, 976 F.2d at 1323.

The cases cited by Petitioners are necessarily limited

to their facts; the Circuit Courts have reached varying

results, but in doing so they have consistently employed

the Fort Halifax rationale. These cases do not, by them-

selves or collectively, raise an important question for this

Court’s review.

12

C. All ERISA Plans Are Subject to Uniform Fed-

eral Regulations.

Petitioners suggest that the Circuit Courts of Appeals

are unable to apply Fort Halifax, and consequently that

employers are subject to a “patchwork scheme of regula-

tion,” Fort Halifax, 482 U.S. at 12. Petitioners overlook

that “Congress pre-empted state laws relating to plans,

rather than simply to benefits,” Fort Halifax, 482 U.S. at 11,

because only a “plan embodies a set of administrative

practices vulnerable to the burden that would be

imposed” by conflicting state and federal regulations,

Fort Halifax, 482 U.S. at 11. Where, as here, that “concern”

does not “arise[ ],” because supplying a benefit does not

require “an ongoing administrative program,” Fort Hal-

ifax, 482 U.S. at 11, no ERISA plan is created. When no

ERISA plan exists, the fact that a ‘golden parachute’

severance agreement is subject to state law claims and.

remedies is not an important federal question.

¢

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Dennis B. PoLk

Eric E. ToRGERSEN

Counsel of Record

Ho.iey, ALBERTSON & Po k, P.C.

Attorneys for Respondent

1667 Cole Boulevard

Suite 100, Building 19

Golden, Colorado 80401

(303) 233-7838