                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                                July 2, 2013
                                    PUBLISH
                                                          Elisabeth A. Shumaker
                                                              Clerk of Court
                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT


 WADE JENSEN; DONALD D. GOFF,
 individually and on behalf of all others
 similarly situated,

       Plaintiffs-Appellants,

 v.
                                                    No. 11-8092
 SOLVAY CHEMICALS, INC.;
 SOLVAY AMERICA, INC.; SOLVAY
 AMERICA COMPANIES PENSION
 PLAN,

       Defendants-Appellees.


                 Appeal from the United States District Court
                         for the District of Wyoming
                       (D.C. No. 2:06-CV-00273-ABJ)


Stephen R. Bruce, Stephen R. Bruce Law Offices, Washington, D.C. (Allison C.
Pienta, Stephen R. Bruce Law Offices, Washington, D.C., and Richard H.
Honaker, Honaker Law Offices, LC, Rock Springs, Wyoming, with him on the
briefs) for Plaintiffs-Appellants.

J. Richard Hammett, Baker & McKenzie LLP, Houston, Texas (Scott M. Nelson,
Baker & McKenzie LLP, Houston, Texas, and Paul J. Hickey and O’Kelley H.
Pearson, Hickey & Evans, LLP, Cheyenne, Wyoming, with him on the brief), for
Defendants-Appellees.


Before KELLY, MURPHY, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.


      Solvay could never be sure just how much its pension plan would affect its

bottom line. Because it promised retirees a defined benefit, the company was on

the hook to cover the difference whenever the plan’s performance fell short. In

2000, Solvay didn’t have to contribute anything. But in 2003, it had to meet a

$23 million shortfall. Displeased with the volatility of this arrangement — not to

mention the cost — Solvay decided to change how it provided retirement benefits.

It converted its defined benefit plan into a so-called “cash balance” plan that in

essence required only a defined contribution from the company. This gave the

company what it wanted, but many employees didn’t like the change: among

other things, it resulted in the elimination of popular early retirement subsidies.

      Federal law didn’t prohibit Solvay, both the plan’s sponsor and its

administrator, from making this move, but it did require the company to provide

its employees with detailed notice of the changes. See ERISA § 204(h), 29

U.S.C. § 1054(h). In the company’s § 204(h) notice, a six-page document it

distributed to employees, Solvay tried to meet this challenge.

      Trouble soon arose. Employees complained that the notice didn’t explain a

variety of things well enough to meet the statute’s specifications, including what

early retirement subsidies already existed under their preexisting plan. The

employees brought suit and, in the end, this court agreed that Solvay violated its


                                        -2-
§ 204(h) notice obligations when it came to describing the company’s preexisting

early retirement subsidies, even while finding the company’s notice sufficient in

all other respects. After reaching its holding, this court remanded the case to the

district court to determine whether and what relief was warranted. See Jensen v.

Solvay Chems., Inc., 625 F.3d 641 (10th Cir. 2010).

      Now back before the district court, the employees sought the return of their

lost early retirement benefits. As remedy for Solvay’s defective notice, they said

the company should restore the benefits in whole. But a district court’s discretion

to award so much relief for a § 204(h) notice violation is extremely limited: a

district court may award “the benefits to which [the employees] would have been

entitled” but only on a showing that the company’s notice failure was

“egregious.” 29 U.S.C. § 1054(h)(6)(A).

      What qualifies as “egregious”? Happily, the statute defines the term for us

and two of the listed meanings are relevant here. First, a company’s failure may

be said to be “egregious” if the failure was “within [its] control” and was

“intentional.” Id. § 1054(h)(6)(B)(i). Second, a company’s failure may be

deemed “egregious” if the failure was “within [its] control” and the company

failed “to promptly provide the required notice or information after [it]

discover[ed] an unintentional failure to meet the requirements of” § 204(h). Id.

      After a bench trial the district court found Solvay’s failure wasn’t

egregious under either of these meanings. Far from intentionally failing to

                                        -3-
disclose information on early-retirement benefits, the court found that “Solvay did

its best to comply with” § 204(h). The court further found that “the earliest time

Solvay discovered its failure was after the filing of this case” and that the

company “sought the advice of its ERISA counsel to ensure it remained

compliant” as soon as it discovered the problem.

      The employees now appeal again, asking us to overturn both of these

holdings.

      In the first place, they argue the district court misunderstood the term

“intentional.” The employees say the district court effectively required them to

prove Solvay intended to break the law, even though on their reading of the

statute they only had to show that Solvay intentionally failed to make its

statutorily required disclosures. This argument, however, ultimately proves

beside the point. The district court’s findings make plain that Solvay’s failure

wasn’t “intentional” even under the definition the employees advance. The

district court found that the company wanted to make all the disclosures the law

required, that the company’s omission was accidental, no more than an oversight

in the process of drafting a complex statutorily mandated notice.

      Retreating, the employees say this finding is itself in error. To overturn a

district court’s factual finding, however, the employees must show that it isn’t

just wrong but clearly wrong, so wrong as to be “pellucid to any objective

observer.” Watson v. United States, 485 F.3d 1100, 1108 (10th Cir. 2007). And

                                         -4-
this they are unable to do. Solvay executives testified that they never intended to

leave out details on existing early-retirement benefits. Solvay’s outside lawyers

and actuaries testified that their marching orders were to ensure the § 204(h)

notice contained everything the law required. They swore, too, that no Solvay

executive ever pushed back against their advice and recommendations on what to

include in the § 204(h) notice.

      To be sure, the employees presented competing evidence. Among other

things, they suggested Solvay had a financial motive to keep information under

wraps, and they observed that at least a few Solvay executives understood that the

§ 204(h) notice had to explain how retirement benefits were calculated under the

old plan. But we simply cannot say that this competing evidence forces any

objective viewer to the conclusion that the district court got the facts wrong.

District courts often (almost always) must choose between competing factual

accounts. In this case, the district court’s choice wasn’t just rational and

affirmable: if anything, it was consistent with the greater weight of the evidence

presented.

      The employees reply that the district court improperly took into account

testimony by one Solvay employee that the company wouldn’t “intentionally do

anything to not comply with the law.” This, the employees argue, ran afoul of

Federal Rule of Evidence 404(a)(1) and its general prohibition against using

character evidence “to prove that on a particular occasion [a] person acted in

                                         -5-
accordance with” that character. But even assuming the district court

impermissibly entertained character evidence as the employees allege, we are

confident the error was harmless. As we have seen, there was considerably more

(admissible) evidence suggesting that Solvay’s goal in this particular case (quite

apart from the character of its management generally) was to comply with the

law. See McCue v. State of Kan., Dep’t of Human Res., 165 F.3d 784, 790 (10th

Cir. 1999) (“[A] new trial should not be granted for an [evidentiary] error ‘unless

refusal to take such action appears to the court inconsistent with substantial

justice.’” (citing Fed. R. Civ. P. 61)).

      Even if they can’t show Solvay’s omission was intentional, the employees

argue they can show the company engaged in “egregious” misconduct because it

knew of the defect in its § 204(h) notice long ago and failed to correct it

promptly. But on this score too the district court’s findings are determinative.

The district court found that Solvay didn’t discover its failure until after this

litigation began. And nothing suggests that finding was clearly erroneous. To the

contrary, considerable evidence in the record suggests that no earlier employee

complaint or inquiry alerted the company to the § 204(h) notice’s deficiency.

      Without a path to the extraordinary relief they seek under § 204(h), the

employees turn to ERISA § 102(a). See 29 U.S.C. § 1022(a). They remind us

that Solvay intended its § 204(h) notice to satisfy § 102(a) as well, a provision

that required the company to furnish the employees with “a summary of any

                                           -6-
material modification in the terms of the plan.” And, the employees stress,

§ 102(a) doesn’t require a showing of egregiousness to win relief. As they point

out, they are entitled to recover “appropriate equitable relief” for any violation of

§ 102(a). See ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).

      To this new line of attack, Solvay cries foul. The company says the

§ 102(a) issue just isn’t in the case. It isn’t, the company insists, because when

this court remanded the case to the district court after its last visit here, we

instructed the district court only to take up the § 204(h) issue.

      Fortunately, to resolve this appeal we don’t have to address the company’s

objection — or the spirited response it has invited from the employees. We don’t

because on remand the district court assumed that the § 102(a) issue was properly

before it and proceeded to hold that the employees couldn’t secure relief under its

terms either. The district court expressly found that the employees knew and

understood all along the effect the new plan would have on their early retirement

benefits, even if the company’s notice happened to be statutorily deficient. It

found, too, that Solvay didn’t act in bad faith and that it didn’t “substantively

harm” the employees. In light of these findings, it concluded the employees

weren’t entitled to equitable relief.

      To be sure, the employees dispute this holding. But thanks to the Supreme

Court’s decision in Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011), we know that

§ 502(a)(3)’s authorization of “appropriate equitable relief” incorporates “those

                                          -7-
categories of relief that, traditionally speaking (i.e., prior to the merger of law and

equity) were typically available in equity.” Id. at 1878 (emphasis omitted)

(internal quotation marks omitted). We know, too, that the statute incorporates

whatever requirements “come from the law of equity” when “the specific remedy

being contemplated imposes” them. Id. at 1881. And we know that plaintiffs

who seek “the remedy of estoppel” must demonstrate that “the defendant’s

statement ‘in truth, influenced the conduct of’ the plaintiff, causing ‘prejudice.’”

Id. (alteration omitted) (emphasis omitted) (quoting James W. Eaton, Handbook

of Equity Jurisprudence § 61, at 175 (1901)); see also 3 Spencer W. Symons,

Pomeroy’s Equity Jurisprudence § 810, at 219 (5th ed. 1941) (“If, at the time

when [the party claiming the benefit of the estoppel] acted, such party had

knowledge of the truth, . . . he cannot claim to have been misled by relying upon

the representation or concealment.”). In light of all this, we know at the very

least that the employees in our case cannot obtain an estoppel remedy. The

district court found that Solvay’s deficiency did not influence their conduct

because they already knew they were losing benefits under the new plan, and the

employees don’t challenge that finding on appeal.

      Of course, the employees might be entitled to other equitable remedies the

district court’s findings do not otherwise foreclose. But we just don’t know

whether that’s the case. We don’t because the plaintiffs didn’t tell the district

court which other forms of equitable relief (if any) they sought for the violation of

                                          -8-
§ 102(a) they claimed. In these circumstances, it seems to us the plaintiffs

forfeited any argument that they are eligible for another remedy. See Richison v.

Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[W]e will reverse a

district court’s judgment on the basis of a forfeited theory only if failing to do so

would entrench a plainly erroneous result.”). Worse still, even now before us the

employees do not tell us which other forms of equitable relief they seek, leaving

their argument inadequately developed in yet another way. See United States v.

Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004); Craven v. Univ. of Colo. Hosp.

Auth., 260 F.3d 1218, 1226 (10th Cir. 2001). The employees may secretly harbor

a wish for some form of equitable relief not foreclosed by the district court’s

findings, but they have yet to identify it to anyone else after six-and-a-half years

of litigation and to know that much is to know it is time to call this matter to a

close.

         The judgment is affirmed.




                                         -9-
