# Opposition Brief — Kinam Gold, Inc. v. Lettes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 929

## Text

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
SGU GM Be DORs isdn nas cine Magarin eee 4
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1125%3A2. Public record. Not legal advice.