              United States Court of Appeals
                         For the First Circuit


    No. 98-1654

                      STANLEY A. RODOWICZ, ET AL.,
                         Plaintiffs, Appellants,

                                   v.

          MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, ET AL.,
                         Defendants, Appellees.

    No. 98-1690

                      STANLEY A. RODOWICZ, ET AL.,
                         Plaintiffs, Appellees,

                                   v.

          MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, ET AL.,
                         Defendants, Appellants.


                                 Before
                     Campbell, Senior Circuit Judge,
                       and Boudin, Circuit Judge.*

                          MEMORANDUM AND ORDER
                        Entered: November 3, 1999

         Defendant-appellees Massachusetts Mutual Life Insurance
    Company and Massachusetts Mutual Voluntary Termination Program’s
    (collectively, “MassMutual”) petition for panel rehearing is
    denied.
         There is no merit in their argument that our decision rests
    upon a mistaken finding of fact as to the timing of MassMutual’s
    consideration of a reduction in force. We stated on page 6 that
    “Susan Alfano, Senior Vice-President in Charge of Human Resources,


*
 Judge Aldrich, who sat on the panel that heard the appeal and
participated in the initial opinion, did not participate in this
Memorandum and Order, having ceased to sit as a judge in matters
pending before this court. See 28 U.S.C. § 46(d).
gathered data [concerning the costs and savings from a workforce
reduction]   from   the   Company’s   outside   employee   benefits
consultants. Between March and September, 1992, Alfano thoroughly
analyzed the costs and benefits of a reduction in force.” That
statement merely paraphrases, accurately, the district court’s own
published and supported assertion that Alfano’s “analysis [of costs
and benefits] occurred in the months between March and September
1992.”    See Rodowicz v. Massachusetts Mut. Life Ins. Co.,
3 F. Supp.2d at 1485, 1481 (D. Mass. 1998). For reasons set forth
in our opinion, we are also satisfied that factual issues,
precluding summary judgment, exist on the present record as to
whether three of the plaintiffs could rely on certain statements
alleged to have been made by MassMutual personnel. We have been
careful to point out that nothing in our current disposition is
intended as a final word on these matters.

     MassMutual makes a more convincing point regarding the
standard by which this court reviews the district court’s
determination that the termination program was not an ERISA “plan.”
After giving this matter further thought, the panel believes that
the standard of review in the circumstances is de novo rather than
clear error.   Accordingly, we have modified our opinion in the
manner set out in the attached errata sheet.

     While we are persuaded that the standard of review in the
present circumstances is de novo, the alteration in review standard
does not alter the outcome of the case. Reviewing the record in
what is undoubtedly a fairly close case, we are satisfied that the
voluntary termination program was not a “plan” within the meaning
of ERISA.

     Subject to the changes set forth in the attached errata sheet,
the petition for panel rehearing is DENIED.

                                      By the Court:

                                      PHOEBE MORSE,

                                              Clerk.

att.
          United States Court of Appeals
                      For the First Circuit

No. 98-1654
                   STANLEY A. RODOWICZ, ET AL.,
                      Plaintiffs, Appellants,
                                v.

      MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, ET AL.,
                     Defendants, Appellees.


No. 98-1690
                   STANLEY A. RODOWICZ, ET AL.,
                      Plaintiffs, Appellees,
                                v.
      MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, ET AL.,
                     Defendants, Appellants.


                           ERRATA SHEET

     The opinion of this Court issued on September 15,1999 is
amended as follows:

     Page 13, lines 1-7: delete “Our standard of review” to end of
paragraph, and replace with: “After briefing on the subject, the
district court ruled sua sponte that the VTP was not an ERISA plan,
considering a record that included the plan document, the affidavit
of Susan Alfano, and other relevant documents.      The court thus
treated the issue essentially as one for summary disposition, and
we review its ruling as we would a judgment arising under Fed. R.
Civ. P. 56. Cf. Fed. R. Civ. P. 12(b) (where parties present and
court accepts matters outside pleadings, motion treated as one for
summary judgment). The usual review standard in such circumstances
is de novo. See Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6
(1st Cir. 1997) (on summary judgment, in special circumstances
analogous to a case stated, the ultimate application of law to
facts in a Fair Labor Standards case was held subject to plenary
review, although findings of certain subsidiary factual inferences
were subject to review for clear error); compare Belanger v. Wyman-
Gordon Co., 71 F.3d 451, 453 (1st Cir. 1995) (clearly erroneous
review applied to district court’s determination of ERISA plan
status following a bench trial “as long as the trial court
accurately applies the relevant legal standards”).” In the present
summary judgment situation, we are satisfied that we should review
de novo whether or not the challenged retirement plan was so simple
as to fall outside of ERISA.”

Page 15, lines 20-21: after “the district court concluded” insert
“, and we agree,”

Page 16, line 12: after “required.” insert footnote:
“Indeed, requiring a “for-cause” determination would not, by
itself, necessarily transform a severance program into an ERISA
plan. See Delaye v. Agripac, 39 F.3d 235, 237 (9th Cir. 1994);
Rodowicz, 915 F.2d at 490 n.1 (district court reviewed severance
plan at issue in Belanger, noting that plan contained “for-cause”
exclusion).”

Page 16, line 21: replace “are unable to say that” with “agree
with” and replace “evaluation” with “determination”

Page 16, line 23: insert period after “plan,” and delete “was
clearly erroneous.”

Page 17, line 4: insert after Simas.: “See Simas, 6 F.3d at 853.
See also Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313,
1316 (9th Cir. 1997) (“minimal quantum of discretion” involved in
for-cause determination was not sufficient to turn a severance
agreement into an ERISA plan); James v. Fleet/Norstar Fin'l Group,
Inc., 992 F.2d 463, 468 (2d Cir. 1993) (requiring individual
determinations regarding eligibility, termination dates and payment
amount did not create an ERISA plan).      Nor did the VTP cross-
reference other state law requirements, as did the statute in
Simas. See Simas, 6 F.3d at 853.” Insert paragraph break.

Page 17, line 6: replace “See Simas, 6 F.3d at 853.” with “Id.”

Page 17, lines 9-10: replace “Simas, 6 F.3d” with “Id.”

Page 17, line 10: delete “district court’s”

Page 17, line 12: replace “was a supportable” with “seems to us a
reasonable” Replace “id.” with “Fort Halifax, 482 U.S.”

Page 17, lines 14-17: delete sentence beginning with “The court
identified . . .”
