                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 19 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TY DAUL and RAIMOND GRUBE,                       No. 10-36011

              Plaintiffs - Appellants,           D.C. No. 3:08-cv-00524-AC

  v.
                                                 MEMORANDUM *
PPM ENERGY, INC., now known as
Iberdrola Renewables, Inc. and CHANGE
IN CONTROL SEVERANCE
ENHANCEMENT FOR KEY PPM
EMPLOYEES PLAN,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                             Submitted July 13, 2011 **
                                Portland, Oregon

Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff-Appellants Ty Daul and Raimond Grube appeal the district court’s

grant of partial summary judgment for Defendant-Appellees, claiming that PPM

Energy, Inc. (PPM) breached an agreement to pay them severance benefits.

Because the parties are familiar with the factual and procedural history of this case,

we do not recount additional facts except as necessary to explain our decision. We

have jurisdiction under 28 U.S.C. § 1291. We affirm.

      As an initial matter, the district court did not err in holding that Daul and

Grube voluntarily eliminated their rights under the Value Appreciation Rights

(VAR) Plan. The district court correctly characterized the Replacement Value

Appreciation Rights (RVAR) Plan as a substituted contract, replacing all rights

under the VAR Plan. See Eagle Indus., Inc. v. Thompson, 900 P.2d 475, 482 (Or.

1995). In the alternative, Daul and Grube waived their rights under the VAR Plan

by signing the Election to Participate form, and by their conduct when they

accepted higher payments under the RVAR Plan. See Bennett v. Farmers Ins. Co.

of Or., 26 P.3d 785, 796 (Or. 2001).

      Moreover, Daul and Grube did not experience a material alteration in

compensation under the terms of the severance agreement. The RVAR Plan did

not adversely affect their “opportunity to earn comparable value appreciation for

the growth of PPM,” as specified in the agreement. The agreement also provides


                                           2
that a material alteration in compensation does not include a change “related to . . .

a restructuring of Participant’s pay components so that the Participant’s total direct

compensation . . . is comparable,” and, here, Daul and Grube’s direct compensation

actually increased.

      AFFIRMED.




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