     Case: 16-31174      Document: 00514293788         Page: 1    Date Filed: 01/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 16-31174                              FILED
                                                                          January 4, 2018
                                                                           Lyle W. Cayce
EARL E. OWENS; JOSEPH WAYNE ESPAT,                                              Clerk

                                                 Plaintiffs - Appellants
v.

WESTERN & SOUTHERN LIFE INSURANCE COMPANY; WESTERN &
SOUTHERN LIFE INSURANCE LONG TERM INCENTIVE & RETENTION
PLAN,


                                                 Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-4782


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Earl Owens and Joseph Espat sued Defendants–
Appellees Western & Southern Life Insurance Company and Western &
Southern Life Insurance Long Term Incentive and Retention Plan for payment
of benefits under a retirement plan in which Owens and Espat participated.
Both sides filed motions for summary judgment. The district court granted


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-31174
summary judgment in favor of the defendants. As Owens and Espat violated
the forfeiture provision of the retirement plan, they are not entitled to the
plan’s post-retirement benefits. Accordingly, we AFFIRM.
                                       I.
      Earl Owens and Joseph Espat are retired former employees of Western
& Southern Life Insurance Company (“Western & Southern”). Western &
Southern sells life and health insurance in addition to providing other financial
investment products and services. Both Owens and Espat participated in a
retirement plan with Western & Southern—the Western & Southern Agency
Group Long Term Incentive and Retirement Plan (the “Plan”). According to its
purpose statement, the Plan was “designed to provide an incentive for selected
key field associates . . . to maximize performance and remain with the
organization and . . . to attract well-qualified candidates.” To be eligible to
participate in the Plan, an employee must be “in the top 5% of Employees when
ranked by annual Compensation as measured during the previous calendar
year.” Owens became eligible to participate in the Plan in 2006 and retired in
2010; Espat became eligible in 2008 and retired in 2012. Both began receiving
payments after they retired.
      The Plan has a forfeiture provision, which states in relevant part:
      4.7 Forfeitures. The contingent right of Participant or Beneficiary
      to receive future payments hereunder with respect to both vested
      and nonvested Performance Units shall be forfeited upon the
      occurrence of any one or more of the following events:
      ...
      (b) If the Participant within three years after termination of
      employment with the Company or any Affiliate (1) enters into a
      business or employment which is competitive with the business of
      the Company or any Affiliate, (2) solicits the Company’s or any
      Affiliates’ employees, agents or clients to work for or buy products
      from, or (3) acts in any other way which, had the Participant been
      employed with the Company or any Affiliate, would have provided
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      the Company with “Cause”[1] to terminate such Participant’s
      employment.
Western & Southern had a policy that employees would be subject to
termination if they were appointed to sell policies for another insurance
company.
      After Owens and Espat retired from Western & Southern, they became
licensed by other life insurance companies and began selling policies for these
other companies. Western & Southern sent letters to Owens and Espat in
November and December 2012, respectively. These letters stated that Western
& Southern had discovered that Owens and Espat were appointed by other
insurance companies and that they had forfeited their rights under the Plan
by “enter[ing] into a business relationship or employment with” these other
companies within three years of retirement. The letters incorporated a demand
for repayment of already paid benefits under the Plan. Neither Owens nor
Espat responded to the letters.
       Subsequently, in March 2013, Western & Southern sued Owens in Ohio
state court to recoup the already paid benefits under state law theories of
recovery. The following month, the lower court dismissed the action for lack of
jurisdiction, finding that Western & Southern’s claims arose under an
Employee Retirement Income Security Act (“ERISA”) plan and were
preempted by 29 U.S.C. § 1144. Western & Southern appealed, and the appeals
court affirmed the lower court’s decision. In its opinion, the appeals court noted
that “[b]oth parties agree that [the Plan] is a top hat employee benefit plan as
defined under ERISA.”


      1  “Cause” is defined in the Plan to include “the failure of an Employee, for reasons
other than disability or incapacity, to perform his duties faithfully, competently, and in
accordance with the standards determined by the Company for the position and title which
he holds,” as well as “other conduct by the Employee which is demonstrably and materially
injurious to the Company or any Affiliate, monetarily or otherwise.”
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                                   No. 16-31174
      While the state court action was pending, Owens and Espat initiated this
action against Western & Southern in June 2013, seeking payment of benefits
under the Plan. Both sides filed motions for summary judgment. The district
court then stayed this action, pending the resolution of the state court appeal.
The district court stated that one of the issues on appeal was whether the Plan
is a top hat plan and that the implications from the resolution of that issue
would affect the district court’s decision related to the motions for summary
judgment. After the state court appeal ended, the district court reopened this
action and reconsidered the motions for summary judgment. In their motion,
the defendants had argued that Owens and Espat did not exhaust their
administrative remedies under the Plan. The district court agreed and
therefore remanded the case to the plan administrator. In its order, the district
court acknowledged the state appeals court’s statement that both parties
agreed that the Plan is top hat.
      While waiting for Owens and Espat to pursue the administrative
process, the district court again stayed this action. Eventually, the plan
administrator denied Owens and Espat’s claim for benefits. It concluded that
they violated the forfeiture provision of the Plan by engaging in “business
affiliations with organizations competitive with” Western & Southern and
participating in activity that if done while employed would have been “Cause”
for termination. The district court again reopened this action, and the parties
again cross-motioned for summary judgment. The district court granted the
defendants’ motion for summary judgment and denied Owens and Espat’s. It
held that the plan administrator did not abuse its discretion in denying the
benefits because the conditions for forfeiture had been met. Owens and Espat
then filed a motion for reconsideration, which the district court denied.
Subsequently, they timely appealed.


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                                    No. 16-31174
                                           II.
                                           A.
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. See Hagen v. Aetna Ins. Co.,
808 F.3d 1022, 1026 (5th Cir. 2015). Where, as here, the language of the ERISA
plan “grants the plan administrator discretionary authority to interpret the
plan and determine eligibility for benefits, the plan administrator’s denial of
benefits is reviewed for an abuse of discretion.” 2 Id. (quoting Cooper v. Hewlett–
Packard Co., 592 F.3d 645, 651–52 (5th Cir. 2009)). In order to avoid reversal,
the plan administrator’s decision “must be supported by substantial evidence
in the administrative record.” Id. (quoting High v. E–Systems Inc., 459 F.3d
573, 576 (5th Cir. 2006)). “Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quoting Cooper, 592
F.3d at 652). The plan administrator’s determination should fall “somewhere
on a continuum of reasonableness—even if on the low end.” Id. (quoting Corry
v. Liberty Life Assurance Co. of Bos., 499 F.3d 389, 398 (5th Cir. 2007)). As the
payer of benefits is the plan administrator in this case, we consider this conflict
of interest as “one factor among many” in determining whether there has been
an abuse of discretion. Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247–
48 (5th Cir. 2009).
      In evaluating whether the plan administrator abused its discretion in
denying the claim for benefits, we engage in a two-step analysis. See Vercher
v. Alexander & Alexander Inc., 379 F.3d 222, 227 (5th Cir. 2004). First, we
determine whether the plan administrator gave a legally correct interpretation



      2 The Plan states that the administrator “shall have the discretionary authority to
determine eligibility for benefits and to construe the terms of the Plan.”
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                                  No. 16-31174
of the plan. See Pickrom v. Belger Cartage Serv., Inc., 57 F.3d 468, 471 (5th Cir.
1995). Determining the legally correct interpretation entails examining
(1) whether the administrator has given the plan a uniform construction,
(2) whether the administrator’s interpretation is fair and reasonable, and
(3) whether different interpretations of the plan will result in unanticipated
costs. See id. Here, as the Appellants do not claim that the interpretation of
the Plan was not uniform or that there were unanticipated costs, the only
inquiry at hand is whether the construction of the Plan is fair and reasonable.
See Vercher, 379 F.3d at 228. If the plan administrator’s interpretation is
legally correct, then no abuse of discretion has occurred, and the analysis ends.
See id. at 227. However, if we decide that the interpretation is not legally
sound, we then move on to step two and determine whether the interpretation
itself constitutes an abuse of discretion. See id. at 227–28.
      Owens and Espat contest whether their actions violated § 4.7(b)(1) of the
forfeiture provision. Section 4.7(b)(1) provides that a participant forfeits his
benefits if he “within three years after termination of employment . . . enters
into a business or employment which is competitive with the business of the
Company or any Affiliate.” The Appellants argue that they did not violate this
clause because they were not employees, but instead independent agents. They
also argue that the work they did was not “competitive with” Western &
Southern’s business because they did not sell the same insurance policies or
target the same buyers. Their contentions are unpersuasive. An “employee”
can be defined as a “person who works for another in return for financial or
other compensation.” Employee, The American Heritage Dictionary (4th ed.
2000). Employment can be competitive if the goods or services sold by one
company are in the same market as those sold by another; they need not be the
exact goods or services or be sold to identical consumers. See Competition, The
American Heritage Dictionary (4th ed. 2000) (defining competition as “[r]ivalry
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                                   No. 16-31174
between two or more businesses striving for the same . . . market”). Thus, it is
fair and reasonable to interpret becoming appointed with another life
insurance company and getting compensated to sell that company’s policies as
“employment which is competitive with” Western & Southern’s business of
selling life insurance policies.
      Owens and Espat undisputedly became appointed to sell and in fact sold
policies for other life insurance companies within three years of their
retirement from Western & Southern. Therefore, they violated § 4.7(b)(1) by
engaging in employment competitive with Western & Southern’s business.
Even assuming arguendo that the Appellants did not violate § 4.7(b)(1), their
actions still satisfied the conditions for forfeiture by violating § 4.7(b)(3).
Section 4.7(b)(3) provides that a participant forfeits his benefits if he “within
three years after termination of employment . . . acts in any other way which,
had the Participant been employed with the Company or any Affiliate, would
have provided the Company with ‘Cause’ to terminate such Participant’s
employment.” Western & Southern had a policy that employees would be
subject to termination if they became appointed by another insurance
company. Owens and Espat undisputedly knew this policy and became
appointed to sell policies for other life insurance companies within three years
of their retirement from Western & Southern. Thus, they violated § 4.7(b)(3)
and forfeited their benefits. Accordingly, the plan administrator did not abuse
its discretion in denying Owen and Espat’s claim for benefits.
                                       B.
      Next, the Appellants contend that the Plan is not top hat and therefore
ordinary ERISA disclosure requirements apply. They claim that Western &
Southern violated such requirements by not providing them with a summary
plan description containing the forfeiture provision, which in turn renders the


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provision unenforceable. We agree with the district court’s conclusion that the
Appellants are judicially estopped from making this argument.
      We review a district court’s invocation of judicial estoppel for an abuse
of discretion. Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir.
2014) (citing Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir.
2003)). “Judicial estoppel is an equitable doctrine that defies ‘inflexible
prerequisites or an exhaustive formula.’” Id. (quoting New Hampshire v.
Maine, 532 U.S. 742, 751 (2001)). This doctrine “prevents a party from
asserting a position in a legal proceeding that is contrary to a position
previously taken in the same or some earlier proceeding.” Id. (quoting Ergo
Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). This doctrine “prevent[s]
litigants from playing fast and loose with the courts,” id. (quoting Hall, 327
F.3d at 396), and protects “the integrity of the judicial process,” id. (quoting
United States ex rel. Am. Bank v. C.I.T. Constr. Inc. of Tex., 944 F.2d 253, 258
(5th Cir. 1991)). Two elements are necessary for judicial estoppel: (1) the
estopped party’s position must be “clearly inconsistent with its previous one,”
and (2) “that party must have convinced the court to accept that previous
position.” Id. (quoting Hall, 327 F.3d at 396). But we need not consider these
two elements exclusively. Other factors such as inadvertence or mistake may
provide a reason not to apply judicial estoppel. See New Hampshire, 532 U.S.
at 753; Hall, 327 F.3d at 399–400; see also Reed v. City of Arlington, 650 F.3d
571, 574 (5th Cir. 2011) (collecting cases).
      Judicial estoppel applies in this case. The two principal elements are
found here. First, Owens and Espat represented to the district court in this
action that the Plan is top hat at least four times. 3 Their representations


      3  Owens and Espat recognized the top hat nature of the Plan in the following
pleadings: (1) their November 26, 2013, Memorandum in Opposition to Defendants’ Rule
12(b)(6) Motion to Dismiss, (2) their September 8, 2014, Memorandum in Support of the
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conflict with their later claim in their June 2016 motion for summary judgment
that the Plan is not top hat. Second, their representations were adopted in the
order remanding the case to the plan administrator when the district court
accepted the state appeals court’s statement that the Plan is top hat. See Hall,
327 F.3d at 398 (“[A]cceptance of a party’s argument could be ‘either as a
preliminary matter or as part of a final disposition.’” (quoting In re Coastal
Plains, Inc., 179 F.3d 197, 206 (5th Cir. 1999))).
      Owens and Espat argue that their representations were inadvertent. We
find their contention unpersuasive. First, there were several representations
that the Plan is top hat. Second, the first representation to the district court
was in November 2013—about two-and-a-half years prior to the June 2016
motion for summary judgment. During this time, the Appellants had the
opportunity and incentive to contend that the Plan is not top hat, but they did
not. Cf. id. at 399 (rejecting the estopped party’s defense of mistake because
the estopped party had the “opportunity or incentive” to discover the
information upon which he based his second position at the time he adopted
his first position). For example, Owens and Espat did not raise this argument
in their first summary judgment motion in November 2014. Further, the
Appellants did not raise this contention in the proceeding before the plan
administrator. Permitting them to evade judicial estoppel now would give them
a strategic benefit and incentivize parties to play “fast and loose.” See id. at
396. In this case, the equities are in favor of the defendants. Accordingly, under
our deferential abuse of discretion standard, the district court did not err by
invoking judicial estoppel.




Motion to Compel Production of Documents, (3) their September 30, 2014, Memorandum in
Opposition to the Motion for Leave to file a Counterclaim, and (4) their October 2, 2014,
Supplemental Memorandum in Support of the Motion to Compel Discovery.
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                                        No. 16-31174
                                               C.
       Finally, the Appellants contend that even if the Plan is top hat, the
forfeiture provision is unenforceable. They argue that top hat plans are still
subject to ERISA’s ordinary disclosure requirements with which Western &
Southern failed to comply. Alternatively, they argue that if top hat plans are
exempt from such requirements and subject only to a minimal filing
requirement, Western & Southern did not meet the latter requirement. 4 Their
contentions are meritless.
       A top hat plan is an ERISA plan “which is unfunded and is 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.
§ 1101(a)(1). ERISA’s regulation of top hat plans is more relaxed because of
Congress’s view that “high-echelon employees, unlike their rank-and-file
counterparts, are capable of protecting their own pension interests.” Alexander
v. Brigham & Women’s Physicians Org., Inc., 513 F.3d 37, 43 (1st Cir. 2008).
ERISA expressly exempts top hat plans from its participation and vesting
provisions (29 U.S.C. §§ 1051–61), its funding provisions (29 U.S.C. §§ 1081–
86), and its fiduciary responsibility provisions (29 U.S.C. §§ 1101–14). See
Reliable Home Health Care, Inc. v. Union Cent. Ins. Co., 295 F.3d 505, 512 (5th
Cir. 2002); accord Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283,
287 (2d Cir. 2000). Although top hat plans are not exempt from ERISA’s
reporting and disclosure requirements, see Reliable, 295 F.3d at 515—which



       4The Appellants contend in their reply brief that Western & Southern had a fiduciary
duty to disclose material information. Their argument is forfeited as they did not raise it in
their opening brief. See, e.g., United States v. Magana, 837 F.3d 457, 459 n.1 (5th Cir. 2016).
The Appellants also contend that under general principles of contract law, Western &
Southern’s failure to give notice of the forfeiture clause renders the clause unenforceable.
They also forfeited this argument as they did not raise it to the district court. See, e.g., In re
Deepwater Horizon, 814 F.3d 748, 752 (5th Cir. 2016) (per curiam).
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include the provision of a summary plan description 5 and annual reports to the
beneficiaries of the plan, see 29 U.S.C. § 1024(b)—the Secretary of Labor is
authorized by 29 U.S.C. § 1030 to promulgate regulations that prescribe
alternative methods for satisfying these requirements, see Demery, 216 F.3d at
290.
       One such regulation, 29 C.F.R. § 2520.104-23(b), allows a top hat plan to
be deemed to satisfy ERISA’s reporting and disclosure requirements if the plan
administrator files a short statement with the Secretary of Labor and provides
plan documents to the Secretary upon request. See Demery, 216 F.3d at 290.
The short statement must include:
       the name and address of the employer, the employer identification
       number (EIN) assigned by the Internal Revenue Service, a
       declaration that the employer maintains a plan or plans primarily
       for the purpose of providing deferred compensation for a select
       group of management or highly compensated employees, and a
       statement of the number of such plans and the number of
       employees in each.
29 C.F.R. § 2520.104-23(b)(1). This statement must be filed within 120 days of
the plan becoming subject to ERISA. Id. § 2520.104-23(b)(2).
       Western & Southern has met the requirements of 29 C.F.R. § 2520.104-
23(b) and has therefore satisfied the ERISA reporting and disclosure
requirements. The Plan was formed in 2006, and Western & Southern filed a
short statement that complied with the requirements of 29 C.F.R. § 2520.104-
23(b)(1) on April 21, 2006. 6



       5  According to Western & Southern, its practice was to provide a summary plan
description, which includes the grounds for forfeiture, to employees when they became
eligible for the Plan. Owens and Espat claim that they never received a copy of this
description until after litigation commenced. As a summary plan description is not required
for top hat plans, this factual dispute is not dispositive.
        6 Western & Southern also submitted an updated short statement that complied with

the requirements of 29 C.F.R. § 2520.104-23(b)(1) on October 11, 2012.
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                              No. 16-31174
                                  III.
     For the foregoing reasons, the district court’s grant of summary
judgment in favor of the defendants is AFFIRMED.




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