                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                      _____________________

                           No. 92-8458
                      _____________________

                 LEONARD N. IZZARELLI, on Behalf
                    of Themselves and All 1986
              Participants in the El Paso Products
                Company Stock Bonus Plan who are
                   similarly situated, ET AL.,

                                              Plaintiffs-Appellees
                                                 Cross-Appellants,

                             VERSUS

               REXENE PRODUCTS COMPANY, A Delaware
                Corporation, REXENE CORPORATION, a
                 Delaware Corporation and EL PASO
                PRODUCTS COMPANY STOCK BONUS PLAN,

                                              Defendants-Appellants
                                                   Cross-Appellees,

                               and

                  TEXAS COMMERCE BANK - ODESSA,

                                        Defendant-Cross-Appellee.

*****************************************************************

                      _____________________

                           No. 92-8694
                      _____________________

               LEONARD N. IZZARELLI, ETC., ET AL.,

                                              Plaintiffs-Appellees,

                             VERSUS

                    REXENE PRODUCTS COMPANY, a
                  Delaware Corporation, ET AL.,

                                                        Defendants,

                  TEXAS COMMERCE BANK - ODESSA,

                                              Defendant-Appellant.
      ____________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
                  (MO-91-CA-016 and MO-91-CV-16)
      _____________________________________________________
                           June 22, 1994


Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     The primary issue in this action under the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461,

concerns when benefits accrued for the participants in a defined

contribution plan.     Each of the several parties appeals.         Rexene

Products Company, Rexene Corporation, and Rexene's Stock Bonus Plan

challenge   the   adverse    judgment     totalling   approximately   $7.2

million.     Leonard    N.   Izzarelli      and   Donald   J.   Schelfhout

(representing themselves and current and former Rexene Products

Company employees who were Plan participants in 1986) contest both

a credit the district court granted the Rexene defendants, and the

judgment as a matter of law granted the Plan trustee, Texas

Commerce Bank - Odessa, N.A.     And, the Bank disputes the denial of

its attorney's fees.    We AFFIRM in part and REVERSE in part.

                                   I.

     At stake is Rexene Products Company's contribution, for Plan

year 1986, to its Stock Bonus Plan (the Plan), an ERISA defined

contribution employee benefit plan, 29 U.S.C. §§ 1001-1461.1            In

1
     A defined contribution, or individual account, plan, such as
the Stock Bonus Plan, is "a pension plan which provides for an
individual account for each participant and for benefits based

                                  - 2 -
1983, Rexene Products Company (then The El Paso Products Company)

was a division of The El Paso Company.    Because the division was

not profitable, El Paso sold it in 1984 to Rexene Corporation (the

Corporation), a holding company formed and wholly owned by the

division's senior management.     The former division was renamed

Rexene Products Company (Rexene).

     Rexene established the Plan in 1985.2    Texas Commerce Bank -

Odessa was the Plan trustee; Rexene, the Plan's administrator and

sponsor.3 The Plan was administered by an Administrative Committee

made up of Rexene officers.       All Rexene employees, with the

exception of a few officers and members of senior management, were

eligible to participate in the Plan; and for Plan year 1986, there

were approximately 1,050 participants.       The Plan supplemented

existing benefits plans, including the Savings Plan, discussed in



solely upon the amount contributed to the participant's account,
and any income, expenses, gains and losses, and any forfeitures of
accounts of other participants which may be allocated to such
participant's account." 29 U.S.C. § 1002(34) (1985); see Connolly
v. Pension Ben. Guar. Corp., 475 U.S. 211, 230 (1986) (unlike
defined benefit plans, individual account plans "do[] not specify
benefits to be paid, but instead establish[] an individual account
for each participant to which employer contributions are made").
2
     Rexene had established earlier an ERISA-qualified Savings
Plan, under which Rexene would match voluntary employee
contributions up to a certain level. The contributions were to be
used to buy stock in Rexene.
3
     The Bank and the Administrative Committee appointed by Rexene
were named as Plan fiduciaries. As well, under ERISA § 33(21)(A),
Rexene (named as the Plan Administrator) was a fiduciary, because,
under the Plan, it "exercise[d] ... discretionary authority or
discretionary control respecting management of [the] plan ... [and]
ha[d] ... discretionary authority or discretionary responsibility
in the administration of [the] plan." 29 U.S.C. § 1002(21)(A)(i),
(iii).

                                - 3 -
note 2.      Under the Plan, Rexene had the discretion to decide

whether a contribution would be made for a given plan year, and, if

so, in what amount.

     The Plan specified that contributions would be made in the

form of cash or stock in the Corporation.               Rexene had set an

informal goal     of,    over   five    years,   contributing   to    the   Plan

approximately 22-25% of the Corporation's stock (approximately

543,000 shares).        In accordance with this goal, in early 1986,

Rexene contributed 135,725 shares for Plan year 1985.                The shares

were valued at $1.00 per share, using a valuation date of December

31, 1985 -- the last day of the tax year to which the 1985

contribution was attributed.

     In early 1987, Rexene again voted a contribution: 101,794

shares for the Plan year 1986.           The Corporation authorized it in

February 1987; and Rexene informed Plan participants of this in a

bulletin board notice. A stock certificate representing the shares

was prepared on March 2, 1987, and was listed on the Corporation's

books as being transferred on that date to the Bank as Plan

trustee.   But, the certificate was not delivered to the Bank until

that May; under cover letter dated May 1, it was received by the

Bank on May 13.

     The 1986 contribution was authorized before the shares were

appraised.    The first appraisal, not ordered until May 1, 1987,

used a valuation date of December 31, 1986, consistent with the

procedure that had been followed for the 1985 contribution.                 The

appraisal, delivered on June 15, 1987, reflected a marked increase


                                       - 4 -
in the value: $76.34 per share as of December 31, 1986.              The day

after the appraisal was delivered, Rexene notified the participants

of the value, and the approximate amount that would be allocated to

each participant's account.        By means of a bulletin board notice,

Rexene   informed      the    participants   that   they    would    receive

approximately one share for every $303 of 1986 straight-time

earnings.4     The notice stated that account statements would be

prepared and mailed within the next two weeks.

     Rexene's accountants then began to allocate the contribution

among the participants.        But, while the accountants were preparing

the account statements, they realized that the contribution, at

$76.34   per   share   (approximately    $7.7   million    total),   was   an

"overcontribution".          That is, it would cause many accounts to

exceed the Internal Revenue Code § 415 limit on excludable income

contributed to qualified benefit plans.5            Exceeding the § 415

limits could have disqualified the Plan under ERISA.         See 26 U.S.C.

§ 415(a)(1)(B). Accordingly, Rexene began considering ways to deal

with the problem. Regardless of what strategy Rexene chose, a Plan

amendment was needed.




4
     Rexene provided Plan participants with this information in
order to allow them to calculate the amount that would be allocated
to each account.
5
     Contributions to defined contribution plans are excludable
from taxable income if they do not exceed the lesser of $30,000 or
25% of the taxpayer's gross wages in a given year. 26 U.S.C. §
415(c).    The section aggregates amounts excluded under all
qualified benefit plans; for Rexene, therefore, contributions to
the Savings Plan would be aggregated with those to the Plan.

                                    - 5 -
      Outside counsel, who had helped to develop the Plan, first

suggested that Rexene follow the terms of the Plan, specifically §

4.3, as closely as possible.         That section provided that, if a

contribution would cause any account to exceed the § 415 limit, the

excess was to be "allocated and reallocated" to the other accounts,

until all participants reached their § 415 limits.           If any excess

still existed, it was, with the permission of the Internal Revenue

Service, to be held in a "suspense account" for allocation in

future years to the accounts of those who had been participants

when the overcontribution occurred.           Outside counsel advised,

however, that it might take five to six months for the IRS to issue

a   determination   letter   with   regard   to   the   suspense   account.

Despite this anticipated delay, he advised Rexene that IRS approval

of such an account was likely.6

      Rexene did not choose this alternative.           The district court

found that the determination letter delay made this alternative

unattractive to Rexene, because it had begun, in April 1987, to

investigate selling the company or taking it public.          By late July

1987, Rexene -- anticipating a sale -- had prepared a draft

Agreement of Merger.    (The sale occurred in April 1988.)




6
     But, outside counsel also advised that the IRS was not likely
to approve a suspense account of the exact type contemplated by §
4.3. That is, the account was to be allocated in later years to
only the accounts of those whose allocations had created the over-
contribution -- i.e., not also to the accounts of participants who
joined the Plan in later years.     Outside counsel considered it
unlikely that the IRS would approve this, because it could violate
26 U.S.C. § 404(a)(4)'s anti-discrimination provisions.

                                    - 6 -
      The district court found also that Rexene was motivated by a

desire to ensure that its employees had no reason to frustrate the

sale.    Many of the highly-paid employees -- who had voting rights

with respect to sales or mergers -- were dissatisfied with the

proposal to "allocate and reallocate" the 1986 overcontribution

pursuant to § 4.3.         These employees (part of the group whom the

parties classify as "heavy savers") had contributed large amounts

to the Savings Plan in 1986.       Thus, they were closer than others to

reaching § 415's limits.         Therefore, under the Plan's "allocate-

reallocate" strategy, the heavy savers would receive very little of

the     1986    contribution,    whereas       the   others    would   receive

comparatively more through the reallocation process.

      At trial, however, inside counsel emphasized repeatedly that

the   impending     sale   did   not    affect   Rexene's     Plan   decisions.

Consistent with this testimony, Rexene contends that its decision

to amend the Plan in the manner it did was motivated primarily by

its desire not to penalize the heavy savers.            Members of Rexene's

management testified that there "was a very, very strong feeling of

management, that the people who had [invested in the Savings Plan]

... [had indicated] commitment to the company", because the Savings

Plan's assets were used to purchase Rexene stock.                And, outside

counsel testified that, in addition to this concern, Rexene's

interest was in maintaining the Plan's ERISA-qualified status.

Similarly, inside counsel testified that Rexene did not follow Plan

§ 4.3 because

               it would not have achieved ... the equitable
               distribution that we wished to achieve. We had

                                       - 7 -
              never foreseen the possibility of the problem that
              we had gotten into.   And we did not want ... to
              penalize the savers and we felt [that] ...
              ultimately, everybody could receive the benefit of
              that 101,000 shares and ... we would continue to
              follow the equitable allocation based upon the
              ratio of their salary to the aggregate salary.

Although inside counsel testified that the value of the deduction

allowed for shares in a suspense account would affect Rexene's

value at the time of sale, he testified that Rexene was not

concerned as much with its value, as with "trying to determine a

solution to the over-contribution problem".

         As an alternative to following § 4.3's allocation-reallocation

process (with its attendant determination letter delay), outside

counsel suggested that the 1986 contribution be allocated to take

all participants up to their § 415 limits, with those who, but for

§ 415, would have received more stock, being given an additional

cash bonus outside the Plan, equivalent to the value of the stock

they would have received.       After this, the excess would be placed

in   a    suspense   account   that    would   be   used   as   part   of   the

contribution for subsequent plan years for all participants, not

just those who were participants when the overcontribution was

made.

         Unlike outside counsel's first alternative, this proposal

would not require waiting for a determination letter, because, he

advised, this type of allocation was "not unusual". Thus, although

the amendment would still have to be submitted to the IRS, Rexene

would "be safe in pursuing this course of action immediately and in

notifying the participants immediately as to their actual account


                                      - 8 -
balances without making the notification subject to[,] or the

actual allocation await[,] the determination letter."    But, Rexene

rejected this alternative also, partly because it would have

necessitated paying large bonuses outside the Plan, which Rexene

was not in a position to do, and partly because it, like the first

alternative, had the effect of penalizing heavy savers.

     Rexene decided on the following Plan amendment.    On September

9, 1987, it submitted for IRS approval the Second Amendment, which

would allocate to each participant shares valued at 6.32% of his or

her 1986 considered compensation.7 Using this system, Rexene could

allocate only about 26,000 shares;8 the remainder would revert to

Rexene.    The amendment's provision for the reversion was based on

a "mistake of fact" theory, one of the few justifications, under

the Plan, for a reversion.   Outside counsel advised, however, that

the IRS might not approve an amendment that allowed a reversion.

     On counsel's advice, therefore, Rexene authorized further

amendment as necessary to allow the Plan to maintain its qualified

status.9   This authorization was submitted to the IRS on February

1, 1988, as part of the Fourth Amendment to the Plan, discussed

7
     Rexene chose 6.32% because that percentage allowed it to
allocate shares up to the § 415 limits of most of the heavy savers.
Even using this relatively small percentage, however, 84 of the
approximately 1,050 participants would have exceeded their § 415
limits. When the 6.32% scheme was effected, these 84 participants
received an additional bonus outside the Plan.
8
     There is no dispute that this allocation was less than that
which could have been allocated without violating § 415.
9
     Rexene's outside counsel testified that it was customary to
authorize whatever further amendments were necessary, when
attempting to secure IRS approval of plan amendments.

                                - 9 -
infra.      On   February   11,   1988,   the   IRS   issued   a     favorable

determination letter, pursuant to which it implicitly disapproved

the reversion under the Second Amendment.             Pursuant to Rexene's

further amendment authorization, however, the IRS approved the

Fourth Amendment.      Under that amendment, each participant would

receive, as under the Second Amendment, shares valued at 6.32% of

1986 considered compensation; however, the excess would be placed

in a suspense fund, rather than reverting to Rexene.                The Fourth

Amendment called for the excess to be distributed in later years to

all participants, including those who joined after 1986.

     As stated, under the 6.32% allocation, Rexene could have

allocated approximately 26,000 shares ($76.34 per share).                    On

February 4, 1988, however -- while the IRS approval was pending --

Rexene commissioned another appraisal, with a valuation date of May

31, 1987.   The 1986 contribution had, as stated, been appraised at

$76.34 per share, using a valuation date of December 31, 1986, the

last day of the tax year to which the contribution was attributed.

As also noted, the same valuation method had been used for the 1985

contribution, made in early 1986.         And, while seeking approval of

the Second and Fourth Amendments, Rexene had on several occasions

advised the IRS that the 1986 contribution was made on February 26,

1987 (when approved by Rexene), and valued at $76.34 per share --

i.e., as of December 31, 1986.

     After Rexene had submitted its amendments to the IRS for

approval,   however,   outside    counsel   advised     that   it    would   be

preferable instead to value the contribution as of the date it was


                                   - 10 -
contributed to the trustee.           As discussed infra, he advised that

the contribution be re-appraised, to determine its value as of May

31, 1987, the last day of the month in which the stock certificate

representing the 1986 contribution was delivered to the Bank.

Using the May valuation date resulted in an appraisal of $158.37

per share, or approximately $16.2 million overall.10          Using this

value caused only 11,775 shares to be allocated, with the remaining

90,019    being   placed   in   the    suspense   account.   Again,   this

allocation was significantly less than the amount that could have

been allocated (even using the higher valuation) without violating

§ 415.    Plan participants were advised of the new valuation by a

bulletin board notice dated March 11, 1988. The notice also stated

that the IRS had approved a revised allocation method for the 1986

contribution, and that the change was required by law.

     Finally, in early 1988, shares were allocated under the 6.32%

formula, and statements distributed to participants, for Plan year

1986.11   When Rexene was sold in April 1988, the 90,019 suspense

account shares were sold, with the Plan receiving $203.95 per

share.    These proceeds were allocated among all participants for

Plan years 1987-1991, using the Fourth Amendment formula.         In all,


10
     As discussed infra, the higher the value attributed to the
contribution, the larger the tax deduction for Rexene. The value
of the contributed shares thus affected Rexene's value. As also
noted, however, Rexene contends that this was not its primary
motivation either in deciding to amend the Plan, or in deciding
when to value the stock.
11
     For its 1986 tax return, filed in September 1987, Rexene had
taken a deduction for the 25,580 shares, using the more
conservative $76.34 valuation.

                                      - 11 -
1986 participants received the equivalent of 82,248 of the 101,794-

share 1986 contribution.

     Plaintiffs -- 1986 participants -- brought this action in

February 1991, under ERISA § 502, 29 U.S.C. § 1132.12                   See, e.g.,

Christopher v. Mobil Oil Co., 950 F.2d 1209, 1220 (5th Cir.), cert.

denied, ___ U.S. ___, 113 S. Ct. 68 (1992) (discussing § 1132,

which provides for civil actions under ERISA).                  They sought to

enforce   ERISA   §   204(g),   29    U.S.C.     §    1054(g)   ("anti-cutback"

provision), and §§ 404 and 405, 29 U.S.C. §§ 1104, 1105 (fiduciary

duty provisions).       They    claim,    inter       alia,   that   Rexene,   the

Corporation, and the Bank breached their fiduciary duties and

violated ERISA's benefits protection provisions by failing to

follow the   Plan,    amending    the    Plan,       and   re-valuing    the   1986

contribution; and that this reduced the accrued benefits for 1986

participants.     (The Plan was also named as a defendant, for the

limited purpose of effectuating whatever relief was granted.                   The

Plan, Rexene, and the Corporation are "the Rexene defendants".)

     During a bench trial, at the conclusion of plaintiffs' case,

the district court granted the Bank judgment as a matter of law.

After trial, it held against the Rexene defendants, based on

finding that the 1986 contribution was contributed on March 2,

1987, and accrued then, at the $76.34 value.                In the alternative,

12
     Several months after suit was filed, Rexene and the
Corporation filed for bankruptcy.       While the bankruptcy was
pending, the district court certified the class, denied Rexene and
the Corporation summary judgment, and stayed the case pending
resolution of the bankruptcy proceedings.      In April 1992, the
bankruptcy court granted plaintiffs' motion to lift stay, and later
did so to permit this appeal.

                                     - 12 -
it   found   that    the   contribution   accrued        when   Rexene   gave

participants   the    information     necessary     to     calculate     their

individual balances.       (The first bulletin board notices stating

that participants would receive approximately one share for each

$303 of 1986 compensation were posted in March 1987.)              The court

concluded that these accrued benefits were decreased by the Fourth

Amendment, in violation of ERISA's anti-cutback provision, 29

U.S.C. § 1054, and in violation of Rexene's fiduciary duty under

ERISA, 29 U.S.C. § 1104.

     The Rexene defendants moved to modify the judgment, or in the

alternative for new trial; plaintiffs, to amend the findings of

fact and conclusions of law.      The district court entered amended

conclusions of law and findings of fact, and denied the new trial.

In an amended judgment, it awarded plaintiffs $4,807,636, together

with $1,786,689 for lost interest and earnings, and $594,856.15 for

attorneys' fees and costs.      The award was offset partially by a

credit awarded Rexene for the portions of the 1986 contribution

allocated to 1986 participants post-Plan year 1986.             Finally, the

court denied the Bank attorney's fees.

                                    II.

     The Rexene defendants assert, inter alia, that they neither

violated 29 U.S.C. § 1054(g) (the anti-cutback provision), nor

breached their fiduciary duty under 29 U.S.C. § 1104.             Plaintiffs

cross-appeal from both the credit granted the Rexene defendants,

and the judgment as a matter of law granted the Bank.               The Bank

appeals from the denial of its attorney's fees.


                                 - 13 -
      We review the district court's findings of fact only for clear

error.     Fed. R. Civ. P. 52(a); e.g., Anderson v. City of Bessemer

City, 470 U.S. 564 (1985); Brock v. El Paso Natural Gas Co., 826

F.2d 369 (5th Cir. 1987).          A finding of fact is clearly erroneous

if, "although there is evidence to support it, the reviewing court

on   the   entire     evidence    is    left     with    the   definite      and    firm

conviction that a mistake has been committed."                  Anderson, 470 U.S.

at 573 (internal citations and quotation marks omitted).

      We review freely conclusions of law, Salve Regina College v.

Russell, 499 U.S. 225 (1991).            Along that line, in actions brought

under 29 U.S.C. § 1132 involving the interpretation of an ERISA-

covered plan, we likewise construe a plan's terms, unless the

"benefit plan gives the administrator discretionary authority to

determine eligibility for benefits or to construe the terms of the

plan".     Haubold v. Intermedics, Inc., 11 F.3d 1333, 1336 (5th Cir.

1994) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989)); accord, Harms v. Cavenham Forest Indus., Inc., 984

F.2d 686, 688 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.

382 (1993); Morales v. Pan Amer. Life Ins. Co., 914 F.2d 83, 87

(5th Cir. 1990).

      Rexene had discretion to amend the Plan, § 10.1, and to decide

whether,    and   when,   to     make    contributions,        §   3.2.      And,   the

Administrative Committee had discretionary authority to determine

eligibility,      §   7.2(e),     to    allocate        contributed       stock    among

participants in the "time and manner" it saw fit, § 4.4., and to

construe the terms of the Plan, as well as to "correct any defect,


                                        - 14 -
supply any omission, or reconcile any inconsistency" in it, §

7.2(b), (c).

     Accordingly, when reviewing the Plan documents and decisions

made with regard to the Plan, we must defer to the Administrative

Committee's or Rexene's interpretation, reviewing it only for abuse

of discretion.   E.g., Salley v. E.I. DuPont de Nemours & Co., 966

F.2d 1011, 1014 (5th Cir. 1992).       (For ease of reference, and

because both were administrators and decision-makers for the Plan,

we refer to the Administrative Committee and Rexene as "Rexene".)

"In applying the abuse of discretion standard, we analyze whether

the plan administrator acted arbitrarily or capriciously."13    Id.

at 1014 (citing Penn v. Howe-Baker Eng'rs, Inc., 898 F.2d 1096,

1100 n.2A (5th Cir. 1990)); Vasseur v. Halliburton Co., 950 F.2d

1002, 1006 (5th Cir. 1992) (citing cases).    But, obviously,



13
     We note that our abuse of discretion/arbitrary and capricious
standard of review is informed by two additional factors. First,
as in Bruch, the Plan is a defined-contribution, rather than a
defined-benefit, plan.     All contributions were made by the
employer. Thus, "`every dollar provided in benefits is a dollar
spent by ... [Rexene], the employer; and every dollar saved by the
administrator on behalf of his employer is a dollar in [Rexene's]
pocket.'" Lowry v. Bankers Life & Cas. Retirement Plan, 871 F.2d
522, 525-26 & n.7 (5th Cir.) (quoting Third Circuit decision in
Bruch, 828 F.2d 134, 144 (3d Cir. 1987), and construing Bruch, 489
U.S. 101), cert. denied, 493 U.S. 852 (1989). This fact leads to
an inference that "the administrator or fiduciary is operating
under a possible or actual conflict of interest", see Bruch, 489
U.S. at 115.

     Second, as discussed infra, we obviously give no deference to
Rexene's decisions where they turn purely on questions of law.
These additional considerations "must be weighed as ... `factor[s]
in determining whether there is an abuse of discretion.'" Lowry,
871 F.2d at 525 (quoting Bruch, 489 U.S. at 115, 109 S. Ct. at 956
(citation omitted)).

                              - 15 -
              in contrast to the great deference we grant the
              [administrator's] interpretations of the Plan,
              which involve contract interpretation, we accord no
              deference   to   [its]   conclusions    as  to   the
              controlling    law,    which    involve    statutory
              interpretation. The interpretation of ERISA itself
              must be made de novo by the court.

Penn, 898 F.2d at 1100 (footnote and citations omitted).

                                         A.

      The Rexene defendants contend first that the district court

erred   in    concluding   that    the    1986      contribution    accrued,   and

therefore became subject to ERISA's anti-cutback provision, prior

to its formal allocation to the participants; second, that the

valuation date was May 31, 1987 (when the stock was valued at

$158.37), not, as the district court concluded, either December 31,

1986, or February 26 or March 2, 1987 (when the district court

found the stock was worth $76.34 per share); third, that it was

error to conclude both that amending the Plan was a breach of

fiduciary duty, and that the 1986 contribution was required to be

allocated only to 1986 participants; and, fourth, that a prior

settlement in another action bars some plaintiffs from asserting

claims in this action.

                                         1.

      Section 204(g)(1) of ERISA, 29 U.S.C. § 1054(g)(1) (anti-

cutback provision), with exceptions not applicable here, prohibits

plan amendments which decrease participants' "accrued benefits".

29   U.S.C.    §   1054(g)(1).14     The      key    to   the   district   court's

14
      The section provides:

              The accrued benefit of a participant under a plan

                                    - 16 -
conclusion that the amendments violated § 1054(g) was its finding

that, when the Plan was amended, the 1986 contribution was already

an "accrued benefit" protected by § 1054(g), pursuant to its

finding that the contribution accrued when it was contributed to

the Plan.      As noted, we review only for abuse of discretion

Rexene's administrative decisions with regard to the Plan. But, in

this instance, the record does not show that Rexene made any

decision with regard to when benefits would accrue.           Further, the

Plan does not define the term "accrued benefits".        In sum, we are

faced instead with a question of law, reviewed freely, involving

the interpretation of ERISA and the Plan documents. Penn, 898 F.2d

at 1100.

                                   a.

     Rexene maintains that the 1986 contribution did not accrue

until April 1988, when it formally notified participants of their

account    balances.15   For   defined    contribution   or   "individual

account" plans, ERISA defines accrued benefits as "the balance of

the individual's account".     29 U.S.C. § 1002(23)(B).       It does not



            may not be decreased by an amendment of the plan,
            other than an amendment described in section
            1082(c)(8) or 1441 of this title.

29 U.S.C. § 1054(g)(1) (1988). The Plan tracks this section; §
10.1(c) prohibits amendments that "[d]ecrease the accrued benefit
of any" participant.
15
     Under the Plan, each participant's account was defined as "the
ledger account maintained by the Administrative Committee to set
out [the participant's] proportionate interest" in the common Plan
trust fund. Until a contribution was allocated to a participant's
account, it would not appear on the ledger account statements that
the Administrative Committee sent to that participant.

                                 - 17 -
state, however, when a contribution becomes part of that balance;

and few cases have addressed the issue.16   In one of the few cases

to do so, the court remanded for further fact finding on when

benefits accrue, because

          [w]hile   `allocations'    are   made    to   each
          participant's account monthly ... the financial
          balance of ... each individual's account is
          valuated [sic] annually according to [the plan].
          How the contributions have been made under past
          practice and when they become accrued benefits for
          ERISA purposes are undeveloped in the record.



16
     As the Rexene defendants note, the vast majority of cases that
discuss the definition of "accrued benefits" involve defined
benefit, rather than defined contribution, plans. These defined
benefit cases are of little use to the present inquiry, however.
Under ERISA § 3(23), 29 U.S.C. § 1002(23), the definition of
"accrued benefits" differs completely, depending on whether a
defined benefit or a defined contribution plan is involved.

     Accrual of benefits in defined benefit plans focuses on when
the plan is funded and participants complete eligibility
requirements.     See, e.g., Independent Assn. of Publishers'
Employees, Inc. v. Dow Jones & Co., Inc., 671 F. Supp. 1365, 1368
(S.D. N.Y. 1987) (in defined benefit plan, benefits must be funded,
not "merely contemplated or expected", to be "accrued benefits");
Lynch v. J.P. Stevens & Co., Inc., 758 F. Supp. 976, 1001 (D. N.J.
1991) (in defined benefit plan, funded benefits did not become
accrued until participants satisfied length-of-service requirements
in Plan document).

     By contrast, for defined contribution plans, the key is when
a contribution becomes part of -- is allocated to -- a
participant's account. E.g., Hickerson v. Velsicol Chem. Corp.,
778 F.2d 365, 376 (7th Cir. 1985) ("accrued benefit ... in a
defined-contribution plan is the balance allocated to [a
participant's] individual account"; upon conversion of defined
contribution to defined benefit plan, participants are entitled to
"value of the accounts allocated to [them] at the time of
conversion", but not to value of future returns on trust assets)
(emphasis added), cert. denied, 479 U.S. 815 (1986); Rummel v.
Consol. Freightways, Inc., No. C-91-4168 DLJ, 1992 WL 486913 at *3
(N.D. Cal. 1992) (not reported in F. Supp.) (upon plan termination,
participants have no legally recognized interest in unallocated
(i.e., unaccrued) plan assets held in suspense fund).

                              - 18 -
Johnson v. St. Francis Xavier Cabrini Hosp., 910 F.2d 594, 597-98

(9th Cir. 1990) (emphasis added).       Thus, the crucial question is

how, and when, benefits were allocated according to the Plan.

     In finding that the 1986 contribution became accrued benefits

when it was contributed, the district court stated:

            [Rexene] intended the 101,794 shares [the 1986
            contribution] to be contributed and allocated to
            the 1986 Plan participants.       No employee was
            required to do anything else to qualify as a 1986
            Plan participant. All the information necessary to
            make allocations under the Plan's formula were
            either known or readily available to [Rexene].
            Although REXENE argues to the contrary, the task of
            allocation   was   "ministerial"   ...   thus   the
            contribution when made was an "accrued benefit" for
            purposes of ERISA.

(Emphasis added.)

     As the district court found, the Plan did specify a formula

for allocating contributions; it contemplates that allocation will

occur according to that formula, at some time after a contribution

is made.    Rexene does not dispute that the contribution was made

with the intention that it would be distributed among participants'

accounts.    Further, when the stock certificate was issued, and

transferred to the Bank to be contributed to the Plan -- and until

it discovered the overcontribution problem -- Rexene no doubt

contemplated that the contribution would be allocated to 1986

participants.    But, the mere fact that the 101,794 shares were

contributed to the Plan does not, according to the Plan, mean that

their allocation was either automatic or simultaneous with that

contribution.




                               - 19 -
     The    Plan    draws   a    distinction   between   contribution   and

allocation.        Even had the 1986 contribution not caused § 415

problems, the Plan does not require it to be allocated immediately

upon contribution.      Under Plan § 1.21, contributions initially are

held in the "Unprorated Fund", i.e., "that portion of the assets or

property in the [Plan] ... which at any particular time, has not

been allocated to a particular Member's Account...."             (Emphasis

added.)17     A contribution cannot remain in the Unprorated Fund

indefinitely; Plan § 4.4 requires that a contribution be allocated

before the end of the Plan year in which it was contributed.18 Other

than these restrictions, however, Plan § 4.4 gives Rexene "complete

discretion" to control the "time and manner of allocating Stock

among [participants'] Accounts".

     In addition, allocation of the 1986 contribution was not

merely "ministerial".           Rexene concedes that the allocation was

intended to be ministerial, and that it had been so for the 1985

17
     Also, the Plan prohibits the reversion of a contribution to
Rexene or the Corporation, unless it (1) was made because of a
mistake of fact; (2) caused the plan to become disqualified under
I.R.C. § 401, 26 U.S.C. § 401; or (3) is determined by the IRS not
to be deductible under I.R.C. § 404, 26 U.S.C. § 404. The Plan was
never disqualified under § 401; and the entire 1986 contribution
was determined to be deductible under § 404.         As discussed,
although Rexene attempted originally to amend the Plan based on a
mistake of fact theory (the Second Amendment), the IRS implicitly
rejected this justification when it approved the Fourth Amendment
to the Plan, instead of the Second Amendment.
18
     We note, however, that this did not occur in this case; on
counsel's advice, even the initial 11,775 shares of the 1986
contribution apparently were not allocated (or at least account
statements were not distributed showing the allocation) until 1988.
Pursuant to the Fourth Amendment, however, the normal allocation
procedure set out in § 4.4 -- including the one-year allocation
deadline -- was suspended until the 101,794 shares were allocated.

                                     - 20 -
contribution.      The 1986 contribution, however, was different, due

to the tremendous -- and somewhat unexpected -- increase in the

stock's value.     Outside counsel advised Rexene not to make even a

partial    allocation,     because    to   do    so   without   knowing   "what

[Rexene's] problems were under the [tax] code", i.e., § 415, would

risk disqualification.      Outside and inside counsel testified that,

regardless of whether the stock was valued at $76.34 or $158.37,

the increase in value made it impossible to allocate the entire

101,794 shares for Plan year 1986, without reaching § 415's limit

for all participants, and exceeding it for some.

     The    Plan    does   not   provide        for   dealing   with   such    an

overcontribution.      If allocation to one account would cause that

account to exceed § 415's limit, the Plan provides for the excess

to "be reallocated to the Accounts of other [participants]".                   In

such cases, however, the Plan allows this "allocate-reallocate"

procedure only on the condition that "the Excess amount allocated

to each such other [participant's] Account shall not exceed the

amount which can be allocated without ... exceeding" § 415.                   The

1986 contribution, even if allocated and reallocated among all

participants' accounts, would have exceeded § 415's limit.

     The Plan does contain some guidance for when the allocate-

reallocate process causes some accounts to reach (and potentially

exceed) § 415's limit.           It authorizes creation of a suspense

account for overcontributions, to be used for future contributions

to the accounts of the participants whose accounts had created the

excess.    The Plan does not specify, however, whether a suspense


                                     - 21 -
account could be created where, as here, all participants' accounts

would reach or exceed § 415's limit.         Further, as stated, creation

of such a suspense account was conditioned on IRS approval.19

       Finally, even with such approval, the creation of a suspense

account was proper only if the overcontribution was the result of

(1) allocation of previous forfeitures; (2) a mistake in estimating

a participant's considered compensation, or (3) "other facts and

circumstances which the Commissioner of the [IRS] finds justify"

the creation of a suspense account.           Plan § 4.3.    Only the third

circumstance would have applied.          Thus, in order to allocate the

shares according to the Plan, the Commissioner would have had to

find   that   the   circumstance   that     created   the   overcontribution

justified the creation of a suspense account, and also would have

had to approve the operation of the suspense account as specified

by the Plan.

       In sum, the Plan did not, by its terms, contain a method for

dealing with the overcontribution; nor did it seem likely that the

IRS would approve creation of the suspense account contemplated by

the Plan.     See supra note 19.   Therefore, Rexene was unable simply

to follow the Plan allocation process.            When it made the 1986

contribution, Rexene did not -- as the district court characterized


19
     As discussed, outside counsel advised, in the process of
drafting the challenged amendments, that the IRS was unlikely to
approve the creation of a suspense fund that would be used only for
1986 participants, because it might be considered discriminatory in
favor of one group of employees, and thus might violate I.R.C. §
401(a)(4), 26 U.S.C. § 401(a)(4). See supra note 6. Based on the
record, then, it appears that the IRS might not have approved a
suspense fund created under Plan § 4.3.

                                   - 22 -
it -- know "[a]ll the information necessary to make allocations

under the Plan's formula".           Instead, Rexene lacked two crucial

pieces of information: the stock value, and whether, if that value

was too great to be allocated under the Plan, the IRS would approve

the   creation   of   a   suspense    fund   to   benefit     only    the   1986

participants.    Under these circumstances, the allocation process

was not merely "ministerial"; a full allocation simultaneously with

the   contribution,       or    automatically     thereafter,       would   have

disqualified the Plan.         In sum, the finding that the contribution

accrued when contributed was clearly erroneous.

                                      b.

      Plaintiffs assert, as an alternative to the contribution

accruing when contributed, that it accrued when Rexene posted a

series of bulletin board notices regarding the allocation.                  They

contend that these notices effected a "de facto" allocation.20                We

construe this claim -- made without citation to any authority -- as

a form of estoppel, i.e. that plaintiffs relied on the notices to

calculate the amount that they expected to be allocated, and that

they therefore are entitled to it.

      ERISA   disfavors     generally   arguments     based    on    promissory

estoppel or on alleged modifications of plan documents that are not

made via the plan's internal amendment process.               See Williams v.

Bridgestone/Firestone, Inc., 954 F.2d 1070, 1072-73 (5th Cir. 1992)

(citing Cefalu v. B.F. Goodrich, 871 F.2d 1290 (5th Cir. 1989)

20
     As noted, Rexene concedes that the bulletin board notices
concerning the contribution were intended to help participants
calculate the amount that would be allocated to their accounts.

                                    - 23 -
(oral modifications cannot be the basis of a breach of contract

claim under ERISA); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th

Cir. 1989); Rodrigue v. Western & S. Life Ins. Co., 948 F.2d 969,

971 (5th Cir. 1991) (plain meaning of plan cannot be altered based

on equitable estoppel argument)); Meadows ex rel. Meadows v.

Cagle's, Inc., 954 F.2d 686, 690-91 (11th Cir. 1992) (citing

cases); Musto v. American Gen. Corp., 861 F.2d 897, 910 (6th Cir.

1988), cert. denied, 490 U.S. 1020 (1989).          In most cases, however,

plaintiffs    have    attempted    unsuccessfully    to   base   estoppel   on

alleged oral modifications of the plan.        Here, plaintiffs rely on

written notices, which purported to describe the allocation they

would receive.       Assuming arguendo that an estoppel argument based

on these documents could succeed, we turn to the notices.

     The first two informed participants of the contribution, its

appraised value, and the approximate amount they could expect to

receive on allocation.        But, they were posted before Rexene's

accountants informed it that the contribution, valued at $76.34,

was an overcontribution.          Had the approximate allocation of one

share per $303.00 of earnings been followed, the Plan would have

exceeded § 415 limitations.21        Plaintiffs cannot base a "de facto

allocation" argument on a strategy which, if followed, would have

resulted in Plan disqualification.

     Nor do the later notices provide a foundation for a de facto

allocation.    After Rexene learned of the problem, it continued to

21
     As stated, this is true regardless of which valuation is used.
Even at the lower $76.34 valuation, only some 80,000 shares could
have been allocated without exceeding § 415 limitations.

                                    - 24 -
post notices.   A July 30, 1987, notice advised that Rexene had

undertaken a complete review of the Plan and the Savings Plan as a

result of the increased valuation, delaying the production of

account statements.22   Another notice, dated that same day, advised

22
     The notice stated:

                                                      July 30, 1987

                        BULLETIN BOARD NOTICE

          TO:   ALL STOCK BONUS PLAN PARTICIPANTS

               Because of the unexpected higher appraisal
          value on our company stock, we have undertaken a
          very complete review of the impact of this bonus
          and the IRS regulations as they apply to our
          employees. Section 415 of the IRS Code requires
          the   company   to   add   together   the   company
          contribution to the Stock Bonus Plan, the Savings
          Plan and the employee's contribution to the Savings
          Plan in determining the maximum amount that can be
          granted to any employee. The total cannot exceed
          25% of the employee's compensation.

               This review has caused an unforeseen delay in
          the production of the individual employee Stock
          Bonus statements, but was absolutely necessary to
          ensure that both the Savings and Stock Bonus Plans
          maintain their IRS-approved tax-deferred status.

               The company will contribute the 101,794 shares
          of stock as previously announced. When the company
          announced it would contribute the 101,794 shares,
          it was not known what value would be placed on the
          shares by the independent appraisal. The appraised
          value of the shares was substantially higher than
          the value projected at the time of announcement.
          This higher-than-expected value ($76.34) of the
          shares will impact our Savings Plan for 1987,
          particularly in view of the anticipated dollar-for-
          dollar matching in the Savings Plan. It appears
          that we will have to temporarily halt contributions
          to the Savings Plan until we are able to calculate
          the 1987 impact of company contributions on each
          plan participant individually. The IRS regulations
          require us as a company to keep plan participants
          in compliance with the Section 415 limits.

                               - 25 -
that Rexene hoped to distribute individual account statements

within the next ten days.      Later notices advised that it was not

possible under § 415 to allocate the entire 1986 contribution for

1986; that the Board had decided to allocate shares up to the § 415

limits   of    those   employees   who   had   contributed   the   greatest

percentage to the Savings Plan; that Rexene had applied to the IRS

for approval of Plan amendments; and that the stock had been re-

appraised at $158.37 per share.

     Plaintiffs could not have relied on these notices for the

proposition that their accounts had already been allocated a

portion of the 1986 contribution.        The notices do not constitute a

de facto allocation.      And, because the 1986 contribution did not

accrue until actually allocated, after the Plan amendments, those

amendments cannot have violated § 1054(g). "`ERISA simply does not

prohibit a company from eliminating previously offered benefits

that are neither vested nor accrued.'"         Wise v. El Paso Natural Gas

Co., 986 F.2d 929, 935 (5th Cir.) (quoting Phillips v. Amoco Oil

Co., 799 F.2d 1464, 1471 (11th Cir. 1986), cert. denied, 481 U.S.

1016 (1987)), cert. denied, ___ U.S. ___, 114 S. Ct. 196 (1993);

accord, Bass v. Retirement Plan of Conoco, Inc., 676 F. Supp. 735,

745 (W.D. La. 1988).




                   We regret the disappointment that this
              announcement may cause, but please be assured that
              we are contributing the maximum number of shares
              and maximum dollars permitted under our federally-
              qualified plans.      We must follow the IRS
              regulations to the letter of the law to maintain
              the tax-deferred status of our plans.

                                   - 26 -
                                        2.

     Concerning     valuation,     Plan      §§   4.2,     4.4    require    that   a

contribution be valued as of the date it is contributed to the

Plan.   The district court found that "the Trustee was deemed for

purposes of the Plan to have received the contribution as of

December 31, 1986.      The actual date of contribution was no later

than March 2, 1987." And, it found that "[f]or valuation purposes,

the date of contribution ... was December 31, 1986.                 The appraised

value of the 101,794 shares was $76.34 per share as of December 31,

1986."23

     The Rexene defendants counter that the stock was properly

valued at $158.37 per share, as of May 1987.                Rexene contends that

the Plan mandates valuation as of the actual date of contribution,

despite the fact that, for tax purposes only, Plan § 3.3 allows a

contribution made after the end of the calendar year to be treated

as if contributed on the last day of that year.

     As discussed, the Plan gives Rexene discretion to interpret

its terms.      Unlike the purely legal question of when benefits

accrued, Rexene's decisions regarding the date(s) of contribution

and valuation were Plan interpretations, specifically, of § 3.3.

Those      interpretations     conflict      with     the    district       court's.

Nonetheless,     they   were   made    by    Rexene   in    the    course    of   its

discretionary functions, allocated to it by the Plan; accordingly,


23
     The district court concluded also that the value remained
$76.34 per share on February 26, 1987 (when the Board of Directors
voted on the 1986 contribution), and on March 2, 1987 (when the
stock certificate was issued).

                                      - 27 -
as discussed, we review them only for abuse of that discretion.

Bruch, 489 U.S. at 115.    To the extent that the district court

based its findings of fact on a de novo review, those findings are

predicated on an erroneous standard of review; and, as a result, we

cannot give them deference.24

     Accordingly, we review only for abuse of discretion Rexene's

decisions regarding the dates on which the 1986 contribution was

contributed and valued.   As noted, in reviewing a decision under

that standard,

          [f]irst, the court must determine the [legally]
          correct interpretation of the Plan's provisions.
          Second, the court must determine whether the Plan
          administrators acted arbitrarily or capriciously in
          light of the interpretation they gave the Plan in
          the particular instance.

Batchelor v. Int'l Bhd. of Elec. Workers Local 861 Pension &

Retirement Fund, 877 F.2d 441, 444 (5th Cir. 1989) (brackets in

Batchelor).   If the Plan interpretation was legally correct, the



24
     Plaintiffs contend that the Rexene defendants have waived the
more deferential standard of review. But, a standard of review
cannot be waived. See United States v. Vontsteen, 950 F.2d 1086,
1091-92 (5th Cir.) (en banc) (failing to bring proper standard of
review to court's attention until appellate oral argument is
"unfortunate, but not fatal"), cert. denied, ___ U.S. ___, 112 S.
Ct. 3039 (1992). "The parties' failure to brief and argue properly
the appropriate standard may lead the court to choose the wrong
standard.... If neither party suggests the appropriate standard,
the reviewing court must determine the proper standard on its own".
Id. at 1091 (citations omitted).

     Certainly, it would have been preferable -- and indeed, might
have obviated the need for this appeal -- if the Rexene defendants
had presented the proper standard of review to the district court,
either as part of the pretrial order, or at some other point in the
proceedings.   Rexene's not having done so at an earlier stage,
however, does not excuse us from applying the proper standard now.

                                - 28 -
court need not proceed to the second step.25   E.g., Duhon v. Texaco,

Inc., 15 F.3d 1302, 1306-08 & n.3 (5th Cir. 1994); Wildbur v. Arco

Chem. Co., 974 F.2d 631, 637 (5th Cir.), modified, 979 F.2d 1013

(5th Cir. 1992), appeal after remand, No. 93-5069 (5th Cir. argued

May 5, 1994); Jordan v. Cameron Iron Works, Inc., 900 F.2d 53, 56

(5th Cir.) (citing Batchelor, 877 F.2d at 444), cert. denied, 488

U.S. 939 (1990).

     In determining the legally correct interpretation of the

Plan's contribution and valuation provisions, we are guided by the

three-factor test set out in Dennard v. Richards Group, Inc., 681

F.2d 306, 314 (5th Cir. 1982), cited and quoted in Batchelor, 877

F.2d at 444.   We consider "(1) `uniformity of construction [i.e.,

previous construction of the same provisions]; (2) fair reading and

reasonableness of that reading; and (3) unanticipated costs'" to

the plan under a particular interpretation. Batchelor, 877 F.2d at

444 (quoting Dennard, 681 F.2d at 314); see also Duhon, 15 F.3d at

1307-08 & n.3 (court may, but is not required to, follow Dennard

test in evaluating interpretation for abuse of discretion); cf.

Wildbur, 974 F.2d 631 (remanding for district court to explain its

reasoning according to Dennard test).

                                 a.

     Plan § 3.3 provides that a contribution by Rexene after the

last day of its taxable year (December 31) but prior to filing its

tax return for that year,


25
     Because we conclude that Rexene's interpretation was legally
correct, we do not reach the second step of the test.

                              - 29 -
                 shall, for purposes of the Plan[,] be treated as if
                 it had been received by the [Bank] on the last day
                 of such taxable year if (1) [Rexene designates the
                 payment as being] on account of such taxable year,
                 or (2) [Rexene] claims such Contribution as a
                 deduction on its tax return for such taxable year.

This provision follows the language of I.R.C. § 404(a)(6), 26

U.S.C.       §    404(a)(6),      which    provides        that    for   purposes   of

deductibility of ERISA contributions, the contributor

                 shall be deemed to have made a payment on the last
                 day of the preceding taxable year if the payment is
                 on account of such taxable year and is made not
                 later than the time prescribed by law for filing
                 the return for such taxable year (including
                 extensions thereof).

26 U.S.C. § 404(a)(6).                 (Rexene's 1986 tax return was filed

September 14, 1987, pursuant to its application for an automatic

extension of time until September 15, 1987.) Rexene contends that,

under    a       fair   reading   of    the   Plan,    this       provision   and   the

corresponding Plan § 3.3, do not determine the date of contribution

for   valuation         purposes.         Instead,    it    maintains     that   these

provisions determine the contribution date only for purposes of

determining the taxable year to which it is attributable.

      Rexene asserts that, on the other hand, the date for valuation

purposes is the date the shares were actually contributed to the

Plan.    In support, it cites Revenue Ruling 73-583, in which an

ERISA plan sponsor claimed a deduction based on a $50 per share

value of the stock it contributed to the plan.                     The contribution,

pursuant to § 404(a)(6), was deemed for tax purposes to have been

made on the last day of the company's taxable year, although it was

not actually contributed until the next year.                       On the company's


                                          - 30 -
books, the contribution was entered as a liability as of the last

day of the taxable year.        By the time the contribution was actually

made, however, the value had declined to $35 per share.

       The   IRS   determined     that     the    company    was   entitled   to   a

deduction only of $35, not $50, per share.                  It stated: "the value

of the stock at the time the liability was incurred has no bearing

on the amount of the employer's deduction in this case".                         The

proper valuation was the value on the date of actual contribution,

"not the value at the time the liability to make a contribution was

accrued on the employer's books."                Rev. Rul. 73-583, 1973-2 C.B.

146.   Similarly, Treasury Regulation § 1.415-6(b)(4), dealing with

valuation of contributions for purposes of determining § 415

limitations, requires valuation as of the date of contribution,

rather than as of the date a deduction is claimed for that

contribution.       Treas. Reg. § 1.415-6(b)(4) (as amended in 1992).

       Because     the   Plan   was   in   only    its   second    year   when   the

contribution for 1986 was made, there is little guidance with

regard to a "uniform construction" of the Plan.                     As noted, the

contribution for 1985 -- the first made -- was appraised as of

December 31, 1985, and valued at $1.00 per share.

       While instructive, the 1985 appraisal date does not control

the date of contribution for valuation purposes for the 1986

contribution.       The date used for 1985 was erroneous; according to

outside counsel's testimony, the IRS's position was consistently

that stock should be valued as of the date it was delivered to the

trustee.     Thus, using December 31, 1985, as the valuation date for


                                      - 31 -
the 1985 contribution was improper.        In any event, in 1985, such an

error was immaterial.     As several witnesses testified, Rexene was

unconcerned with the exact value of the 1985 contribution; because

the   share   value   remained   constant    at   around   $1.00,   it   was

irrelevant whether the stock was valued as of December 31, 1985, or

as of February 1986.     But, the contribution for 1986 appreciated

rapidly between the first (December 31, 1986) and second (May 31,

1987) appraisal dates.     The valuation date was crucial; and when

Rexene realized it initially had made the same mistake (using the

wrong valuation date) in valuing the contribution for 1986 as it

had done for 1985, it moved to correct its error.

      The second Dennard factor is a "fair reading" of the Plan,

i.e., an interpretation of its plain language.        See Batchelor, 877

F.2d at 444.    A fair reading of the Plan indicates that § 3.3 is

concerned with the contribution date only for purposes of applying

the contribution to a particular taxable year.              For valuation

purposes, other provisions define when a contribution is made.

      Plan § 1.6 defines "Contribution" as "the total amount which

[Rexene] pays to the [Bank] ..."; §§ 4.2 and 4.4 provide that the

cost to Rexene and the valuation of contributed shares shall be

computed at "Market Value as of date of contribution".          Because a

contribution is defined in terms of payment of shares to the

trustee, rather than in terms of the amount claimed as a deduction,

it seems consistent to value the contribution as of date of

payment, rather than as of the last day of the preceding taxable

year.


                                  - 32 -
     Finally, Dennard cautions considering any unanticipated costs

to   the    Plan    which   would    result     from     the    administrator's

interpretations. Batchelor, 877 F.2d at 444. If an interpretation

would result in "`substantial unanticipated costs to the Plan'", it

is less likely to be legally correct.           Id. at 445 (quoting Lowry v.

Bankers Life & Cas. Retirement Plan, 865 F.2d 692 (5th Cir.), cert.

denied, 493 U.S. 852 (1989)).             It is unclear whether Rexene's

interpretation would have resulted in such costs.               What is clear is

that Rexene was attempting to avoid the substantial unanticipated

costs to participants that would have resulted if the Plan had been

disqualified.      That is, had the stock been allocated at a value of

$76.34, and that value later had been determined by the IRS to be

erroneous    --    with   the   result   that   the    Plan    was   disqualified

(because, at the correct, higher valuation, e.g., $158.37, the Plan

would have far exceeded its § 415 limit) -- the participants would

have had stock in the company, and corresponding tax liability, but

no corresponding income to pay it.26

26
     As Rexene's expert witness testified, disqualification is a
particular problem

            [i]n a stock bonus plan like this, [where] you have
            a company that is closely held, the participants
            can't do anything with the stock, yet the stock has
            value.     If the plan is disqualified, the
            participants now get this block of stock that may
            be worth thousands of dollars. They can't sell it.
            They now have income on their tax return, they have
            no money to pay their taxes. And at the same time,
            unless the plan is terminated, they won't even
            receive the shares of stock until the plan is
            terminated.   So they lose their retirement, they
            get a tax impact, they don't have any money to pay
            the tax, the company may or may not lose the
            deduction,.... [I]t is a catastrophic problem.

                                    - 33 -
     In sum, we conclude that the correct legal interpretation of

the Plan's relevant language is essentially as presented by Rexene,

i.e.,   that   the   date   of     actual    contribution    should   control

valuation, regardless of when, as provided by § 3.3, it may have

been claimed as a tax deduction.27

                                      b.

     We turn next to the proper appraisal value of the shares.              By

advising a     re-appraisal   as    of   May   1987,   outside   counsel   was

attempting to avoid a problem similar to that covered by Rev. Rul.

73-583, 1973-2 C.B. 146, discussed supra. As plaintiffs point out,

outside counsel had advised Rexene to use the earliest possible

date of contribution (February 26, 1987) when discussing amendments

to the Plan with the IRS.        In discussions with the IRS and in the

amendments submitted to it, Rexene had designated the date of

contribution as February 26, 1987 (the date the Board authorized

the contribution).      Outside counsel testified that he advised

Rexene to use this date when discussing possible amendments to the

Plan, because it was the earliest possible contribution date.              Any

Plan amendment that resulted in a reversion of shares to the Plan

(as contemplated by the Second Amendment) would have had to be made

within a year of the date of contribution.             Thus, by choosing the

earliest possible contribution date in communications with the IRS,

outside counsel was "[taking] the most conservative point of view



27
     As noted, Rexene claimed a deduction of $1,952,777 for
contributions to the Plan in fiscal year 1986; this corresponds to
a contribution of 25,580 shares valued at $76.34 per share.

                                    - 34 -
[with regard to the deadline for any amendment to the Plan], which

was the date that [the contribution] was first authorized".

     Outside counsel testified, however, that at some point between

the submission of the Second Amendment to the IRS and the passage

of the Fourth (i.e., in late 1987 or early 1988), he realized that

the value might have increased rapidly so that the $76.34 appraisal

would no longer be accurate.   Out of concern that Rexene might be

audited, outside counsel "hit the books" in an attempt to determine

the correct valuation date.

     With regard to the proper valuation date, outside counsel

testified that both he and the IRS "on all fronts said the same

thing ... a contribution is [valued] on the date that you actually

give it to the trustee, and that was the position they took."   In

determining the date for valuation purposes, then, outside counsel

attempted to use the latest possible one -- May 1987 -- again out

of concern for what the IRS might do.28   Outside counsel testified

that, although Rexene executives would have preferred to use the

$76.34 valuation, he advised using $158.37, because "if they had

made the other choice, they may very well have disqualified the

plan."   Outside counsel explained that, using $76.34, more shares

could have been allocated than using $158.37.        If the lower

valuation were used, and the IRS had audited the Plan (which

outside counsel testified he "felt certain" would occur) and


28
     At oral argument, Rexene's counsel stated that the re-
appraisal was commissioned as of May 31, instead of May 13, 1987,
because it was necessary to have a "cut-off" date for bookkeeping
purposes.

                               - 35 -
determined that the $158.37 was correct, the change in valuation

"would have busted [the § 415 limit]".          Because an audit would

likely have come after the one-year deadline for amendments, "[w]e

would have had no chance to amend or do anything else" to correct

the problem, and the Plan would have been disqualified.

       In short, the decision to re-appraise the stock as of the date

of its delivery to the trustee was a considered decision, which

Rexene made on the advice of counsel, and out of concern that the

Plan would be disqualified if an earlier valuation date was used.

Because we hold that Rexene's interpretation of the Plan -- that

§ 3.3 governs the date of contribution only for purposes of

deductibility, and that the contribution otherwise is valued as of

the    date   of   actual   contribution   --   is   the   correct   legal

interpretation, we need not reach whether it acted arbitrarily and

capriciously in making that interpretation. Wildbur, 974 F.2d at

637.    The Rexene defendants did not violate § 1054(g) when they

amended the Plan.

                                    3.

       Plaintiffs charge also that the Rexene defendants' decisions

concerning the Plan constituted a breach of their fiduciary duty,

in violation of ERISA § 404, 29 U.S.C. § 1104.29           This contention




29
     Although a Plan amendment may be permissible under other
applicable sections of ERISA, including 29 U.S.C. § 1054, it also
must satisfy ERISA's fiduciary duty requirements, contained in 29
U.S.C. § 1104.

                                  - 36 -
centers on three subsections of § 1104; we need consider only

(a)(1)(A).30

      Plaintiffs contend that by using $158.37, instead of $76.34,

the   Rexene    defendants     breached    their      fiduciary    duty   under   §

1104(a)(1)(A), which requires Plan fiduciaries to

           discharge [their] duties with respect to a plan
           solely in the interest of the participants and
           beneficiaries and ---

                  (A)   for the exclusive purpose of:

                        (i)    providing benefits to participants
                               and their beneficiaries; and

                        (ii) defraying reasonable expenses                 of
                             administering the plan[.]

29 U.S.C. § 1104(a)(1) (1988) (emphasis added). They contend that,

by amending the Plan in such a way that 1986 participants received

less than 100% of the 1986 contribution, Rexene and the corporation

violated their duty to administer the Plan "for the exclusive

purpose of ... providing benefits to participants".                       Id.     In

support, plaintiffs make much of Rexene's selling all of its stock

in April 1988 -- shortly after the Fourth Amendment to the Plan was

approved   in   February      1988   by   the   IRS    --   and   negotiating     in

preparation for the sale since the fall of 1987.

      According to plaintiffs, the Plan amendments were motivated

primarily by the impending sale:                because the shares in the

suspense account were included in Rexene's value, the greater their

30
     Because we hold that Rexene was not acting as a plan fiduciary
when it amended the Plan, and therefore that it cannot have
violated § 1104, we need not consider §§ 1104(a)(1)(B) (failure to
manage the plan with the requisite care, skill and prudence),
1104(a)(1)(D) (failure to follow plan documents).

                                     - 37 -
value,   the    greater   the   company's   value,     and    the   larger   the

deduction a buyer could take for the shares.                 Thus, plaintiffs

contend, Rexene had an incentive to re-value the shares at as high

a value as possible, and to ensure that as few shares as possible

were allocated to participants in advance of the sale.                       The

district court agreed, finding that the decisions with regard to

the Plan were made "because of the Company's concern for the

Savings Plan contributions [i.e., for the heavy savers] and the

imminent sale." This motivation is the cornerstone of the district

court's conclusion that the Rexene defendants were acting in

Rexene's self-interest, rather than as fiduciaries of the Plan for

its benefit and that of the participants.

     Rexene's witnesses testified that Rexene acted only to ensure

that the contribution was allocated in a fashion that did not cause

the Plan to be disqualified, and did not penalize the heavy savers.

But, we give special deference to the district court's assessment

of the witnesses' credibility, and must defer to its assessment of

the evidence, if it is

              plausible in light of the record viewed in its
              entirety ... even though convinced that had [we]
              been sitting as the trier of fact, [we] would have
              weighed the evidence differently. Where there are
              two permissible views of the evidence, the
              factfinder's choice between them cannot be clearly
              erroneous.

Anderson v. City of Bessemer City, 470 U.S. at 574.

     Accordingly, we accept the district court's findings with

regard   to     the   motivation   of   Rexene   and    the    Administrative

Committee.     With this in mind, we turn to § 1104(a)(1).


                                   - 38 -
                                      a.

      Section 1104 mandates that a plan be administered "solely in

the interest of the participants and beneficiaries".                29 U.S.C. §

1104(a)(1) (emphasis added).          Plaintiffs read this to require

Rexene to manage the Plan solely in the interest of 1986 Plan

participants and their beneficiaries.            But, a fiduciary's duty

"runs to the plan as a whole," not to any individual beneficiary or

group of beneficiaries.        Williams v. Caterpillar, Inc., 944 F.2d

658, 665 (9th Cir. 1991).        Plaintiffs' concern, at bottom, is that

the entire 101,794-share 1986 contribution was not allocated to

them; and while it is true that 1986 participants received only the

equivalent of 82,248 shares, this does not mean, ipso facto, that

the Rexene defendants failed to administer the Plan for the benefit

of all its participants and their beneficiaries.31             Indeed, as in

Williams, plaintiffs do not assert that the challenged actions

"were   detrimental   to   all    claimants    under    ...   the    plan[]    in

question; they have sued only on their own behalf."             Id.    In sum,

the   record   supports    a   conclusion     that,    in   addition    to    the

motivation found by the district court, the Rexene defendants acted

out of concern for the long-term viability of the Plan, including

its continued status as an ERISA-qualified plan.



31
     But see Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d
572, 578-79, 581 (11th Cir. 1987) (finding amendment to Plan that
benefitted certain participants at expense of others, to be
arbitrary and capricious, and breach of fiduciary duty under ERISA,
even though, if adopted "absent from or insulated from any
conflicts of interest," same amendment might not violate ERISA),
cert. denied, 484 U.S. 1005 (1988).

                                    - 39 -
                                 b.

     Moreover, even if Rexene's decisions with regard to the Plan

were made with the primary motive of benefitting Rexene, those

decisions had the secondary purpose of benefitting (or at least,

not harming) the Plan as a whole.     In this situation, we are faced

with two lines of authority.

     The first counsels that such an incidental benefit cannot

"legitimize" a fiduciary's improper (self-interested) motives.

Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 579-81

& n.12 (11th Cir. 1987), cert. denied, 484 U.S. 1005 (1988).       In

Deak, the plaintiff was a participant in an ERISA plan administered

by employees of the Union that had created it.    Id. at 597-98.   The

administrators' decision to amend the plan was, at least in part,

motivated by a desire to benefit the Union, rather than, as ERISA

commands, solely the plan participants and beneficiaries.          In

analyzing the decision, the court stated:

               It is difficult to conceive of a situation
          where a benefit to the Union would not have
          incidental benefit to the Plan....    However, the
          statute requires the Trustees to act for the sole
          benefit of the Plan beneficiaries.     The District
          Court was entitled to find from the evidence at
          trial that the actions of the Trustees were for the
          benefit of the Union.     The benefit to the Plan
          cannot legitimize their motives, especially in
          light of the findings of fact that the Plan was
          underfinanced at the time and that the Trustees
          made no actuarial investigation of [the amendment].

Id. at 580 n.12 (emphasis added).       Quoting Donovan v. Bierwirth,

680 F.2d 263, 271 (2d Cir.), cert. denied, 459 U.S. 1069 (1982),

the Deak court noted that "`officers of a corporation who are

Trustees of its pension plan ... must [act] with an eye single to

                               - 40 -
the interest of the participants and beneficiaries.'"   Id. at 580

(citation omitted).

     As noted, the district court found that Rexene acted, at best,

with a dual motivation: to avoid the Plan being disqualified and

heavy savers being penalized on the one hand, and on the other, to

facilitate the impending sale.   Under the reasoning in Deak, 821

F.2d at 578-81, then, Rexene's decision to amend the Plan would be

a breach of fiduciary duty under § 1104(a)(1)(A), because -- in the

view of the district court -- it was not enacted primarily, or

solely, for the benefit of the participants.

     Another line of cases weighs in favor of the opposite result.

It provides that, when an employer is also a fiduciary for its

ERISA plans, it acts as a fiduciary "only when and to the extent

that [it] function[s] in [its] capacity as plan administrator[],

not when [it] conduct[s] business that is not regulated by ERISA."

Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1158 (3d Cir.

1990) (internal quotation marks and citations omitted); accord,

McGath v. Auto-Body North Shore, Inc., 7 F.3d 665, 670 (7th Cir.

1993) (citing Hozier).   Business not regulated by ERISA has been

widely held to include decisions to amend or terminate ERISA plans;

as part of a balance between the employer's need to manage its

business and Congress's "desire to regulate" ERISA plans, an

employer is given broader discretion to act with regard to a plan

when it does so as employer, instead of as fiduciary.   See Hozier,

908 F.2d at 1159-60 (discussing policy rationale for distinction

between actions available to employer-as-employer and employer-as-


                              - 41 -
fiduciary); cf. McGann v. H&H Music Co., 946 F.2d 401, 407 (5th

Cir. 1991) (non-fiduciary issue; Congress intended "that employers

remain    free    to    create,    modify     and     terminate     the   terms    and

conditions       of    employee     benefit     plans       without   governmental

interference."), cert. denied, ___ U.S. ___, 113 S. Ct. 482 (1992);

Wise v. El Paso Natural Gas, 986 F.2d at 937 (employer generally

may modify or discontinue non-vested benefits without violating

ERISA).     "An employer can wear two hats:                   one as a fiduciary

administering a pension plan and the other as the drafter of a

plan's terms....        [A]n employer does not act as a fiduciary when it

amends or otherwise sets the terms of a plan."                    McGath, 7 F.3d at

670-71    (citing      cases,    including     Jos.    Schlitz     Brewing   Co.    v.

Milwaukee Brewery Workers' Pension Plan, 3 F.3d 994 at 1001, 1002

(7th Cir. 1993), petition for cert. filed, 62 U.S.L.W. 3378 (U.S.

Nov. 12, 1993) (No. 93-768)).

     Of course, an employer does not have "unfettered discretion to

amend or terminate plans at will", Hozier, 908 F.2d at 1162;

"ERISA's detailed accrual and vesting provisions substantially

limit    this    power",    as    do   the   terms     of   the    plan   documents,

collective      bargaining       agreements,    and     other     ERISA   provisions

relating to the form of amendments.                   Id.    But, in general, an

employer that decides to terminate, amend, or renegotiate a plan

does not act as a fiduciary, and thus cannot violate its fiduciary

duty, provided that the benefits reduced or eliminated are not

accrued or vested at the time, and that the amendment does not




                                       - 42 -
otherwise violate ERISA or the express terms of the plan.32 See id.

at 1160-61.

     A majority of the circuits have followed this approach; we

consider it the sound one, as did the Third Circuit in Hozier.   Id.

(citing cases); see also McGann, 946 F.2d at 407 & n.9 (citing

language from Musto, 861 F.2d at 911, which notes that a company

acts as fiduciary when administering plan, but not when deciding

plan's terms).33   Accordingly, we bring our circuit into line with

the majority, adopting the reasoning that, in amending the Plan as

it did, Rexene was not acting as fiduciary, but as employer.

Accordingly, it did not breach a § 1104 fiduciary duty.34

32
     As discussed, plaintiffs had no accrued or vested interest in
the 1986 contribution when the Plan was amended; and, as stated,
"ERISA simply does not prevent a company from eliminating
previously offered benefits that are neither vested nor accrued."
Phillips, 799 F.2d at 1471.
33
     Hozier's list of decisions in accord includes Musto, 861 F.2d
at 912 (6th Cir. 1988); Young v. Standard Oil (Indiana), 849 F.2d
1039, 1045 (7th Cir. 1988), cert. denied, 488 U.S. 981 (1989);
Anderson v. John Morrell & Co., 830 F.2d 872, 876 (8th Cir. 1987);
Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1432-33 (9th Cir. 1986)
(employer not acting as fiduciary when it made "business decision"
to terminate plan); Phillips v. Amoco, 799 F.2d at 1471 (11th Cir.
1986); Amato v. Western Union Int'l, 773 F.2d 1402, 1417 (2d Cir.
1985) (officers acted on behalf of corporation, rather than as
fiduciaries, when amending corporate pension plan), cert.
dismissed, 474 U.S. 1113 (1986); and Sutton v. Weirton Steel Div.
of Nat'l Steel Corp., 724 F.2d 406, 411 (4th Cir. 1983), cert.
denied, 467 U.S. 1205 (1984) (employer's decision "to renegotiate
or amend" unfunded benefits was not fiduciary action). Further,
Hozier states that "[w]e know of no decision by any court of
appeals to the contrary." 908 F.2d at 1161.
34
     Because we reverse the district court on the §§ 1054(g) and
1104 claims, we need not reach the following issues:       (1) the
Rexene defendants' assertion that most of the plaintiffs are barred
from pursuing claims against them, because of a settlement in a
prior state action against Rexene's predecessor; (2) plaintiffs'
challenge to the credit granted the Rexene defendants for the

                               - 43 -
                                B.

     Finally, the Bank appeals from the denial of its attorney's

fees motion.   We review the denial only for abuse of discretion,



portions of the 1986 contribution allocated to 1986 participants in
plan years 1987-1991; and (3) as discussed below, plaintiffs'
cross-appeal from the Bank's judgment as a matter of law.

     Plaintiffs' cross-appeal concerns claims under 29 U.S.C. §§
1104 and 1105 (fiduciary and co-fiduciary liability).     Because
there was no breach of fiduciary duty on the part of the Rexene
defendants, it goes without saying that the Bank cannot be liable
as a co-fiduciary for the same conduct. Accordingly, we need not
address the § 1105 claims.

     With regard to § 1104, the district court found correctly that
the Bank was a directed custodial trustee, with no

          right, power, or duty to determine how the [Plan]
          assets would be allocated....   Further, the Bank
          did not possess information necessary to make
          allocation determinations and did not have access
          to the information or any right to use the
          information ... [or to play] any role in the
          allocation process.

The Bank was a fiduciary "only with respect to those aspects of the
plan over which [it] exercise[d] authority or control." Sommers
Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enters.,
Inc., 793 F.2d 1456, 1459-60 (5th Cir 1986) (citing Brandt v.
Grounds, 687 F.2d 895, 897 (7th Cir. 1982), cert. denied, 479 U.S.
1034 (1987)); ERISA § 2(21)(a), 29 U.S.C. § 1002(21)(A). It is
undisputed that, by the Plan's plain terms, the Bank had no duty,
discretion, or responsibility to value or allocate contributions or
amend the Plan.    Under the Plan, the Bank's only duties were
custodial: to hold, preserve, and invest the assets of the Plan,
subject to directions from Rexene.        A breach of the Bank's
fiduciary duty, then, could occur only if the Bank breached those
duties. See Sommers Drug, 793 F.2d at 1459-60; Brandt, 687 F.2d at
897.

     Plaintiffs stipulated that the Bank did not improperly invest
the assets. They contend, nevertheless, that it breached its duty
to hold and preserve the assets by consenting to the Second and
Fourth Amendments, on the basis that the amendments had the effect
of decreasing the assets' value. Again, we need not address this
argument, because we hold that the amendments did not violate
ERISA.

                              - 44 -
pursuant to ERISA § 502, 29 U.S.C. § 1132(g)(1), which provides

that "the court in its discretion may allow a reasonable attorney's

fee and costs of action to either party."      See also Salley, 966

F.2d at 1017 (attorney's fees awards under ERISA are reviewed for

abuse of discretion).

     The Bank contends, essentially, that it is entitled to the

fees because -- as evidenced by the judgment in its favor --

plaintiffs' claims against it were "not substantially justified".

The Bank relies heavily on the "degree of the opposing parties' ...

bad faith", the first of the five factors this court uses to rule

on fees under ERISA.    Iron Workers Local No. 272 v. Bowen, 624 F.2d

1255, 1266 (5th Cir. 1980).35    Despite granting the Bank judgment

as a matter of law, the district court found that

          [p]laintiffs' case was not brought in bad faith,
          the case was sufficient to withstand [the Bank's]
          Motion for Summary Judgment, and [the Bank's] being
          granted a Judgment as a Matter of Law fails to

35
     The Bowen factors are:

          (1) the degree of the opposing parties' culpability
          or bad faith; (2) the ability of the opposing
          parties to satisfy an award of attorneys' fees; (3)
          whether an award of attorneys' fees against the
          opposing parties would deter other persons acting
          under similar circumstances; (4) whether the
          parties requesting attorneys' fees sought to
          benefit all participants and beneficiaries of an
          ERISA plan or to resolve a significant legal
          question regarding ERISA itself; and (5) the
          relative merits of the parties' positions. No one
          of these factors is necessarily decisive, and some
          may not be apropos in a given case, but together
          they are the nuclei of concerns that a court should
          address in applying [ERISA] section 502(g) [29
          U.S.C. § 1132(g)].

Bowen, 624 F.2d at 1266, quoted in Harms, 984 F.2d at 694.

                                - 45 -
              support any claim that Plaintiffs'                 claim   was
              groundless. (Emphasis added.)

      Nor do the remaining Bowen factors aid the Bank.                 Especially

because we reverse the judgment awarded plaintiffs, it is not clear

that, under the second factor, they would be able to satisfy a fees

award. And, there is no evidence that, pursuant to the fourth

factor, the Bank sought (by its actions in defending this suit) to

benefit the participants or beneficiaries of the Plan or that it

sought to resolve an important question under ERISA.                  Moreover, in

light of the district court finding that plaintiffs' claim against

the Bank was not meritless or groundless, we cannot say that the

"relative merits" of the parties' positions assist the Bank, per

the   fifth    factor;   nor    that    there   is   a   particular      need   for

deterrence under the third.            As this court stated in Harms, 984

F.2d at 694, "we believe the absence of any culpability or bad

faith on the defendants' part ... coupled with the closeness of the

legal issues presented ... supports our conclusion" that the

district court did not abuse its discretion in denying the Bank's

motion for attorney's fees.36

                                        III.

      For the foregoing reasons, we REVERSE the judgment against the

Rexene defendants;       as    to   Texas   Commerce     Bank,   we    AFFIRM   the

judgment that it is not liable and that it is not entitled to

attorney's fees.

                  AFFIRMED in PART; REVERSED in PART

36
     This is especially true given that Rexene has agreed to
reimburse some part of the Bank's costs in this suit.

                                       - 46 -
