Jeffrey Plotnick v. Computer Sciences Corporation , 875 F.3d 160 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1606
JEFFREY PLOTNICK; JAMES C. KENNEDY, on behalf of themselves,
individually, and on behalf of all others similarly situated,
Plaintiffs - Appellants,
v.
COMPUTER SCIENCES CORPORATION DEFERRED COMPENSATION
PLAN FOR KEY EXECUTIVES; COMPUTER SCIENCES CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior U.S. District Judge. (1:15-cv-01002-TSE-TCB)
Argued: September 13, 2017 Decided: November 8, 2017
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judges Motz
and Wynn joined.
ARGUED: Matthew W.H. Wessler, GUPTA WESSLER PLLC, Washington, D.C., for
Appellants. Deborah Shannon Davidson, MORGAN, LEWIS & BOCKIUS LLP,
Chicago, Illinois, for Appellees. ON BRIEF: R. Joseph Barton, Kira Hettinger, COHEN
MILSTEIN SELLERS & TOLL PLLC, Washington, D.C.; Deepak Gupta, Rachel S.
Bloomekatz, GUPTA WESSLER PLLC, Washington, D.C., for Appellants. Christopher
A. Weals, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees.
2
DUNCAN, Circuit Judge:
Plaintiffs-Appellants Jeffrey Plotnick and James Kennedy, former executives of
Computer Sciences Corporation (“CSC”), brought claims under § 1132(a) of the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et.
seq., as amended, alleging denial of benefits under their deferred executive compensation
plan after a plan amendment changed the applicable crediting rate. Plotnick and Kennedy
sought class certification on behalf of all retired plan participants affected by the
amendment, and CSC moved for summary judgment. The district court denied class
certification and granted summary judgment for CSC. For the reasons that follow, we
affirm the district court.
I.
As select, highly compensated CSC executives, Plotnick and Kennedy were
eligible to participate in the Computer Sciences Corporation Deferred Compensation Plan
for Key Executives (the “Plan”). The Plan is a type of unfunded, deferred-compensation
plan commonly known as a “top-hat plan,” through which key executives could elect to
forgo compensation during their employment in exchange for payments in retirement.
See 29 U.S.C. § 1051(2).
Plan participants’ deferrals accrue in a notational account, and the company makes
payments to participants after their retirements from CSC’s general assets. CSC applies a
crediting rate to participants’ notational account balances. In practice, CSC pegs the
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crediting rate to a market-based valuation fund, though Plan documents do not require
this. Furthermore, since the Plan is unfunded, CSC applies this crediting rate to calculate
each participant’s payout but need not invest actual assets in the correlating valuation
fund. After retirement, Plan participants receive their deferred income, plus credits
earned according to this crediting rate, via either a lump-sum payment or in annual
payments over a predetermined number of years. If a participant decides to take annual
payments, the Plan directs that CSC make these payments in “approximately equal
annual installments.” J.A. 412, 434. 1
The Plan grants its administrator broad discretionary authority to delegate
functions, to determine questions of eligibility, to interpret the Plan and any relevant facts
for purpose of the administration of the Plan, and to conduct claims procedures. J.A.
415–16, 441. By its terms, the Plan also may be “wholly or partially amended by the
[CSC] Board from time to time, in its sole and absolute discretion.” J.A. 422, 448. The
crediting rate, in particular, is explicitly “subject to amendment by the Board.” J.A. 411,
432. However, the Plan cabins the Board’s authority to amend by mandating that “no
amendment shall decrease the amount of any . . . [participant’s account] as of the
effective date of such amendment.” J.A. 422, 448.
1
“J.A.” refers to the Joint Appendix filed by the parties.
4
Plan documents do not distinguish between active-employee participants and
retired participants. Rather, the Plan defines a participant as any key executive who
elects to participate in the Plan and who has not yet received all benefits due under the
Plan. The Plan also requires “uniform[] and consistent[]” administration with respect to
all participants similarly situated. J.A. 416, 441.
Since the Plan’s establishment in 1995, the Board twice amended the crediting
rate. From the Plan’s inception in 1995 until 2003, it used a crediting rate equal to 120%
of the 120-month rolling average yield to maturity on 10-year U.S. Treasury Notes. After
2003, the Board changed the crediting rate to track the 120-month rolling average yield to
maturity of the Merrill Lynch U.S. Corporates, A Rated, 15+ Years Index as of December
31 of the prior Plan year (the “Merrill Lynch Rate”). Application of this latter crediting
rate generally gave Plan participants above-market yields on their deferred income and
very low volatility. Furthermore, the method of calculating this crediting rate smoothed
out market fluctuations and made annual payments predictable and even.
While using the Merrill Lynch Rate between 2003 and 2012, CSC calculated the
amounts of most future annual payments before the first installment was ever paid.
Because the Merrill Lynch Rate was so predictable, CSC divided a participant’s account
value by the number of total installments to be paid and amortized based on an estimate
of the crediting rate derived from the most recent Merrill Lynch Rate. CSC paid an equal
amount every year, until the final year’s payout, which CSC adjusted to account for the
actual performance of the Merrill Lynch Rate over the distribution period. This last
5
payment served as a “true up” and could be less than or greater than the payments for
prior years. Thus, over the time that CSC used the Merrill Lynch Rate, the annual
installments a participant received were not only “approximately equal” as required by
the Plan, but they also were actually equal until the final payment that closed out the
participant’s account. This final “true-up” payment accounted for market volatility and
would be higher or lower depending on the actual performance over the payment term of
the valuation fund from which the Merrill Lynch Rate was derived.
In May 2012, the Board amended the crediting rate again (the “2012
Amendment”). In contrast to earlier crediting rates, the 2012 Amendment resulted in a
more flexible crediting rate linked to a participant’s selection of one (or more) of four
valuation funds. The four valuation funds include a money-market fund, an S&P index
fund, a core bond fund, and a target-date retirement fund. This system permits
participants to choose crediting rates derived from valuation funds with characteristics
that they value, whether that means low volatility, steady growth, or high earning
potential. Each fund varies in its potential offerings of risk and reward, and participants
can allocate funds in their notational accounts between or among the four valuation fund
types in any combination. Participants can even choose to change their allocation mix
daily. The 2012 Amendment took effect on January 1, 2013, and applied uniformly to all
participants.
6
With the 2012 Amendment’s expansion of choice comes the potential for volatility
and risk, including the possibility of losing value in a participant’s notational account. 2
Also, the lack of predictability in the crediting rates from year to year means that annual
installment payments can no longer be made strictly equal, as they had been (at least prior
to the final “true up” year) when the Merrill Lynch Rate applied. Because the valuation
funds will rise and fall with the market--and because participants can now move funds at
any time between valuation funds--CSC can no longer predict future payments with
precision. Instead, each year CSC calculates a retired participant’s notational account
value and divides the total value by the number of annual payments still due to the
participant to calculate the “approximately equal annual installment” to distribute that
year. Because account values can change over time depending on the valuation fund(s)
selected by the participant and their performance, this new system does not generate
strictly equal payments from year to year.
Plotnick and Kennedy elected to participate in the Plan beginning in the 1990s.
Plotnick retired in September 2012 with an account value of approximately $3.5 million,
and Kennedy retired in March 2012 with an account value of approximately $4 million.
Neither Plotnick’s account nor Kennedy’s account decreased in value at the time that the
2012 Amendment took effect.
2
Accordingly, the 2012 Amendment also clarified that a participant’s notational
account would have gains or losses attributed to it by the application of the crediting rate.
7
On May 20, 2013, Plotnick and Kennedy each sent CSC a letter claiming benefits
under the Plan. Each letter argued that: (1) the Plan was a unilateral contract that could
not be amended after a participant’s retirement; (2) the 2012 Amendment was invalid
because the new crediting rates permitted participants’ accounts to lose as well as gain
value; (3) the 2012 Amendment was invalid because it did not use a 120-month rolling
average, as the previous crediting rates had done, to smooth out market volatility; and (4)
the new crediting rate violated the Plan’s requirement that distributions be made in
approximately equal annual installments. CSC denied both Appellants’ claims for
benefits on July 22, 2013. 3
Plotnick filed a putative class-action suit under ERISA § 1132(a) 4 on January 15,
2014, in the U.S. District Court for the District of New Jersey, and the case was
transferred to the U.S. District Court for the Eastern District of Virginia shortly
thereafter. Kennedy intervened in January 2016.
On April 26, 2016, the district court denied Appellants’ motion for class
certification on adequacy grounds, noting the existence of “an actual conflict between the
3
As the district court noted, CSC’s denial was “inter alia, untimely,” but Plotnick
and Kennedy did not identify any way in which this untimeliness harmed them or
indicated abuse of discretion. See Plotnick v. Comput. Scis. Corp. Deferred Comp. Plan
for Key Execs., 182 F. Supp. 3d. 573, 605 (E.D. Va. 2016).
4
“Top-hat” plans are exempted from ERISA vesting, participation, and funding
requirements, as well as fiduciary responsibilities, but these plans are not exempted from
compliance with reporting, disclosure, administration, or enforcement provisions,
including denial-of-benefits claims under § 1132(a). See 29 U.S.C. 1101–14, 1131–45.
8
interests of the named plaintiffs and certain class members for whom the 2012
Amendment is an economic benefit, not an economic injury.” Plotnick, 182 F. Supp. 3d.
at 589. The district court also granted summary judgment to CSC at that time, holding
that the 2012 Amendment was valid and thus that Plotnick and Kennedy were not entitled
to relief on their denial-of-benefits claim. Id. at 605. This appeal followed. 5
II.
Plotnick and Kennedy appeal both the district court’s denial of class certification
and grant of summary judgment in favor of CSC. We review the district court’s grant of
summary judgment. The first section that follows discusses the standard of review,
which has generated some confusion among our sister circuits and to which we have not
spoken. The next section considers the Appellants’ arguments on the appropriateness of
summary judgment. We reach the same conclusions as the district court, and thus we
affirm.
Because affirmance of the district court’s grant of summary judgment disposes of
Plotnick and Kennedy’s claims, we decline to address the district court’s denial of class
certification.
5
Plotnick and Kennedy only appeal the district court’s determination of class
certification and summary judgment on their denial of benefits under ERISA. They do
not appeal the district court’s granting of summary judgment on other claims.
9
A.
This court reviews appeals under ERISA “de novo, employing the same standards
governing the district court’s review of the plan administrator’s decision.” Johnson v.
Am. United Life Ins. Co., 716 F.3d 813, 819 (4th Cir. 2013) (quoting Williams v. Metro.
Life Ins. Co., 609 F.3d 622, 629 (4th Cir. 2010)). Circuits have split over the standard of
review that a district court should apply to a top-hat plan administrator’s benefits
decision, and this circuit has no binding authority on this issue.
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court
set forth the standard of review for denial of benefits under ordinary ERISA plans. Under
the Firestone standard, a court reviews challenges brought under ERISA § 1132(a) for
denial of benefits “under a de novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” Id. at 115. For example, under the Firestone standard, if
a benefit plan were to give discretion to its administrator or fiduciary to carry out an
interpretative task, then the court would defer to that administrator or fiduciary’s
interpretation on that issue; but if not, the court would review the administrator or
fiduciary’s decision de novo.
Since top-hat plans involve non-fiduciary administrators, circuit courts have
disagreed about whether the Firestone standard applies to a district court’s review of
these plans. The Third Circuit explained that since “a top hat plan is a unique animal
10
under ERISA’s provisions,” the ordinary Firestone standard did not apply. Goldstein v.
Johnson & Johnson, 251 F.3d 433, 442 (3d Cir. 2001). Instead, the Third Circuit held
that top-hat plans are to be “treated as unilateral contracts” and reviewed “de novo,
according to the federal common law of contract” and without regard to whether
administrative “discretion” is “explicitly written into” the top-hat plan. Id. at 443.
The Eighth Circuit adopted a similar unilateral-contract approach, but it noted that
even under de novo review the court was required to “ultimately . . . determine whether
the Plan’s decision was reasonable.” Craig v. Pillsbury Non-Qualified Pension Plan, 458
F.3d 748, 752 (8th Cir. 2006).
In contrast, the Seventh Circuit extended the logic of Firestone to top-hat plans,
reasoning that “Firestone tells us that a contract conferring interpretive discretion must be
respected, even when the decision is to be made by an ERISA fiduciary.” Comrie v.
IPSCO, Inc., 636 F.3d 839, 842 (7th Cir. 2011). Since top-hat plans lack fiduciary
administrators, “[i]t is easier, not harder . . . , to honor discretion-conferring clauses in
contracts that govern the actions of [these] non-fiduciaries.” Id.
The Ninth Circuit also applied the Firestone standard of review to top-hat plans
but added an additional analysis for structural conflicts of interest when the plan
administrator both determines eligibility for benefits and pays those benefits. Sznewajs v.
U.S. Bancorp Amended & Restated Supp. Benefits Plan, 572 F.3d 727, 733 (9th Cir.
2009), overruling on other grounds noted by Salomaa v. Honda Long Term Disability
Plan, 642 F.3d 666, 673–74 (9th Cir. 2011).
11
However, after considering each of these approaches to top-hat plans’ standards of
review, the First Circuit noted that, at least for cases in which the plan grants
discretionary powers to its administrator, applying the Firestone standard (as opposed to
a contract-based standard) creates a distinction without a difference. The First Circuit
thus declined to decide which standard of review applied and proceeded with arbitrary-
and-capricious review of the administrator’s use of discretion. Niebauer v. Crane & Co.,
Inc., 783 F.3d 914, 923–24 (1st Cir. 2015). The Second Circuit charted a similar course
in an unpublished opinion, noting that it was unnecessary to determine the standard of
review because, based on the facts in that case, “even making a de novo determination on
the administrative record, we reach the same conclusion as did the Administrator.” See
Am. Int’l Grp., Inc. Amended & Restated Exec. Severance Plan v. Guterman, 496 F.
App’x 149, 151 (2d Cir. 2012).
Here, the district court’s discussion of the standard of review mirrored that of the
First and Second Circuits. Because the Plan granted its administrators full discretion to
interpret the Plan, the district court reasoned that, under Firestone, an abuse-of-discretion
standard would apply. Meanwhile, under a contract-based approach, the district court
would evaluate the administrators’ determination by analyzing “whether the exercise of
discretion was done in good faith, the touchstone of which is reasonableness.” Plotnick,
182 F. Supp. 3d at 597. Furthermore, the district court noted that courts in this circuit
applying Firestone’s abuse-of-discretion standard will not disturb discretionary decisions
if they are “reasonable.” See id. at 598 (quoting Booth v. Wal-Mart Stores, Inc. Assocs.
12
Health & Welfare Plan, 201 F.3d 335, 342 (4th Cir. 2000)). Thus, under either an abuse-
of-discretion or a contract-based standard, a “reasonable” exercise of discretion would
stand, essentially closing any rhetorical distance between the two competing standards of
review.
The district court thus proceeded in its analysis without determining whether
Firestone or contract-based principles would apply, asking instead simply: “Was the
administrator’s determination to deny plaintiffs’ claims for benefits on the ground that the
2012 Amendment is valid a reasonable interpretation of the Plan?” Id. From here, the
district court analyzed the reasonableness of the Plan administrator’s interpretation under
this circuit’s eight Booth factors. Id. (citing Helton v. AT&T, 709 F.3d 343, 353 (4th Cir.
2013)). The district court held that under any standard of review, “CSC correctly
interpreted the Plan as permitting the 2012 Amendment, and CSC’s denial of plaintiffs’
claims for benefits was therefore appropriate.” 6 Id. at 600.
Because, on the facts presented here, we agree that the competing standards of
review present a distinction without a difference, we decline to decide which standard of
review applies. Instead, we proceed as the district court did and reach the same
conclusions. Whether we proceed under a “reasonableness” inquiry, an abuse-of-
discretion standard, or even de novo review, we agree that the 2012 Amendment and
6
The district court also explained that it would reach the same conclusion under
even pure de novo review. Id.
13
CSC’s denial of benefits were valid. Accordingly, we are compelled to affirm the district
court’s grant of summary judgment to CSC.
B.
This court “applies the federal common law of contracts to interpret ERISA
plans,” Ret. Comm. of DAK Ams. LLC v. Brewer, 867 F.3d 471, 480 (4th Cir. 2017), and
will enforce “the plain language of an ERISA plan . . . in accordance with its literal and
natural meaning,” id. (quoting United McGill Corp. v. Stinnett, 154 F.3d 168, 172 (4th
Cir. 1998)). The district court considered both the procedural and substantive validity of
the 2012 Amendment and determined that, under any standard of review, this amendment
and CSC’s denial of benefits were valid. 7
On appeal, Plotnick and Kennedy focus on the alleged substantive invalidity of the
2012 Amendment. They argue that the Plan was a unilateral contract and that the post-
retirement 2012 Amendment impermissibly rendered the Plan’s promises “illusory.” See
Appellants’ Br. at 28–47.
7
As the district court noted, Plotnick and Kennedy failed to comply with the local
rule of the district court requiring point-by-point responses to the opposing party’s
statement of asserted undisputed facts, and thus effectively admitted the procedural
validity of the 2012 amendment. Plotnick, 182 F. Supp. 3d at 592 n.22. Nevertheless,
the district court analyzed the procedural validity of the CSC Board’s 2012 amendment
under ERISA § 1132(a)(3) and independently found it valid. Id. at 592–93.
14
Plotnick and Kennedy principally challenge three features of the 2012
Amendment: (1) the change to the crediting rate; (2) the introduction of potential for risk
and volatility into the Plan; and (3) variations in annual distributions, which Plotnick and
Kennedy argue are no longer “approximately equal.” We consider each in turn.
1.
First, regarding amendment of the crediting rate, a plain reading of the Plan
permits the Board to change the crediting rate so long as the change does not decrease the
value of a participant’s notational account at the time of amendment. The Plan also
generally requires that administration be uniform and consistent. The 2012 Amendment
changed the crediting rate but did not decrease the value of any notational account at the
time the amendment took effect and applied uniformly to all participants.
Under any standard of review, the Board amended the Plan in accordance with the
Plan’s plain text. Plotnick and Kennedy seek to characterize the 2012 Amendment as
rendering the promises of the Plan illusory, but the Plan made no promise that the
crediting rate would remain the same forever. Rather, the opposite was true; by its clear
and unambiguous terms, the crediting rate was always “subject to amendment by the
Board.” J.A. 411, 432.
Furthermore, the Plan’s plain language does not support treating the accounts of
retired and active-employee participants differently. First, the Plan’s definition of
“participant” does not distinguish between retired and active employees, and thus we
15
decline to draw such a distinction in contravention of the text. Second, the Plan requires
uniform administration of participants’ accounts. Applying different rates to different
participants based on their employment status would not achieve “uniform
administration,” and we are not persuaded that such dissimilar administration of
participants’ accounts is appropriate under the Plan’s terms. Thus, the Board acted
reasonably when it applied the 2012 Amendment uniformly to all participants, whether
retired or still employed at CSC.
Plotnick and Kennedy point to no other limiting language in the Plan to support
the idea that the Plan prohibited the 2012 Amendment. The Plan does not require, for
example, that the Board use a 120-month rolling average feature in the crediting rate that
it selects, nor does the Plan require that a crediting rate provide some minimum rate of
return for participants. By its terms, the Plan explicitly permitted amendment of the
crediting rate, the 2012 Amendment conformed to the Plan’s requirements and
limitations, and the change to the crediting rate did not render illusory any promised
benefit under the Plan. Thus, under any standard of review, the change to the crediting
rate was valid and reasonable.
2.
Next, with regard to the introduction of risk and volatility into the Plan, Plotnick
and Kennedy seek to read into the Plan another guarantee that simply does not exist. As
noted above, the Plan’s textual requirements--that there be uniform administration of
16
participants’ accounts and that amendments not reduce the value of these accounts at the
time of amendment--limited the Board’s discretion in meaningful ways. For example,
CSC could not apply a negative crediting rate, because this would reduce the value of
accounts at the time the amendment took effect. Furthermore, the Plan administrator
could not exclude Appellants’ accounts from the 2012 Amendment because this might
violate the requirement of uniform administration.
But as noted above, the text of the Plan simply does not limit the Board’s selection
of a crediting rate in the way in which Plotnick and Kennedy argue. The relative level of
risk or volatility in a crediting rate merely follows from the crediting rate that the Board
selects, and the Plan places no limit on a crediting rate’s exposure to market-based risk.
Since the 2012 Amendment, one participant may choose to allocate funds in a way that
maximizes potential account growth, while another participant can choose a crediting rate
based on a single, low-volatility valuation fund. The effects of volatility are more evenly
spread over the payment term because payments are calculated annually instead of in
advance, but this simply means that the volatility that was once accounted for in the
“true-up” period is now spread more equally across annual installments.
Thus, the Board’s selection of new crediting rates in the 2012 Amendment with a
different expected volatility did not violate the Plan’s terms, regardless of the standard of
review applied. Phrased differently, since the Plan made no promises about the levels of
risk or volatility in the crediting rate, the 2012 Amendment could not render such a
promise illusory.
17
3.
Third, with regard to the variation in annual distributions that the 2012
Amendment created, this court cannot offer the relief that Plotnick and Kennedy seek.
Plotnick and Kennedy are correct that if a participant elected to receive annual payments,
the Plan directs that CSC make payments in “approximately equal annual installments.”
See J.A. 412, 434. Before the 2012 Amendment, these “approximately equal”
installments happened to be actually equal--at least until the last “true-up” payment,
which accounted for volatility in the crediting rate over the account’s payment term and
thus was different in amount from the other annual payments. However, this predictable
payment schedule was merely a derivative effect of the application of a crediting rate that
pegged earnings in participants’ notational accounts to a crediting rate associated with a
valuation fund featuring very low volatility. By tracking a single, low-volatility valuation
fund, the pre-2012 crediting rate smoothed out market fluctuations and accordingly
allowed CSC to predict with greater accuracy what future payments would be due to
participants.
Nevertheless, as explained above, Plotnick and Kennedy are not entitled to their
preferred crediting rate in perpetuity. Before the 2012 Amendment, most participants’
annual payments happened to be equal, but the Plan does not promise such precision. In
fact, participants’ last “true-up” payment had never been equal to the other payments over
the payment term.
18
Since the 2012 Amendment, eligible participants’ payments are no longer the
same from year to year, but CSC still pays participants in “approximately equal annual
installments.” Because the new crediting rate introduced the potential for more market
volatility into participants’ notational accounts, CSC developed a process of dividing the
amount in a retired participant’s notational account in a given year by the number of
years remaining under the Plan. By doing so, CSC achieves “approximately equal”
annual payments to eligible participants. In practice, these payments cannot be strictly
equal over time. CSC cannot predict the actual performance of an S&P index fund over a
year’s time, much less over a decade, and even if CSC attempted to predict future
performance of a particular valuation fund, it still could not predict how a participant’s
allocation decisions across funds might influence future credited earnings or losses.
Participants who select valuation funds with lower but steadier rates can expect similar
annual installment payments, while participants who select riskier but possibly more
rewarding valuation funds can expect greater variation from year to year. The new
system cannot deliver more than “approximately equal” annual payments, yet this is all
that the Plan requires.
The Plan grants the Board authority to amend the crediting rate, including by
selecting a rate with more volatility than past rates. From here, the Plan requires only
approximate equality in annual payments. We do not read the Plan’s direction that
payments be approximately equal as a mandate requiring that the Board select low-
volatility crediting rates that assure actually equal payments over time. If the Plan
19
intended this effect, we would expect it to do so explicitly alongside its other clearly
articulated limitations on the Board’s amendment authority and not through a direction
that payments be “approximately” equal.
Though Plotnick and Kennedy apparently preferred the predictability of payments
that flowed from use of a low-volatility crediting rate pegged to a single valuation fund,
the Plan does not promise that this system would remain in place. The current method of
dividing the amount in a participant’s notational account by the number of annual
payments remaining to calculate an approximately equal annual installment is, at the very
least, a reasonable interpretation of the Plan’s requirements.
In sum, we find that--regardless of the standard of review applied--the 2012
Amendment is valid and does not render any contractual promise illusory. The Plan did
not require the Board to select crediting rates with a particular mix of risk and reward,
nor did the introduction of potential volatility breach any Plan provision. Thus, the
derivate impact of volatility on the amount of participants’ annual installment payments
after retirement--which remain approximately equal, if not actually equal--also does not
violate any Plan provision. Despite Plotnick and Kennedy’s shared disappointment in the
current scheme, CSC’s denial of benefits did not represent an abuse of or unreasonable
exercise of discretion. Thus, we conclude that summary judgment in CSC’s favor was
proper.
III.
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For these reasons, the judgment of the district court is
AFFIRMED.
21