Appeal from an order of the Superior Court of Orange County, Stephen J. Sundvold, Judge. Affirmed in part, reversed in part, and remanded. Motion to augment denied. (Super. Ct. No. 00CC05905).
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
We now have before us Donald R. Roden (Roden) and AmerisourceBergen Corporation (AmerisourceBergen) in the fourth round of their dispute concerning Roden's entitlements arising out of his employment termination. In the third appeal, we addressed a postjudgment order concerning retirement benefits, a severance payment, a stock option award, and loan forgiveness. As concerns the retirement benefits, we reversed the portions of the postjudgment order with respect to the amount of the change in control benefit and the amount of any excise taxes and resultant income taxes owing to Roden under the company's supplemental executive retirement plan (SERP). "We remand[ed] those issues to the trial court with directions to further remand them to the plan administrator for determination in the first instance." (Roden v. AmerisourceBergen Corp. (2007) 155 Cal.App.4th 1548, 1552 (Roden III).)
On remand, the trial court rejected the determination of the administrative review official to the effect that Roden was entitled to a change in control benefit in the amount of $7,503,300. The court awarded Roden a change in control benefit in the amount of $14,432,141.74 instead. However, it affirmed the determination of the administrative review official to the effect that Roden was not entitled to an additional amount for excise taxes and resultant income taxes. AmerisourceBergen appeals from those portions of the order pertaining to the amount of the change in control benefit, the postjudgment interest rate applied, and the manner of application of payments made towards principal and interest. Roden also appeals, seeking to overturn the portions of the order pertaining to the prejudgment interest rate, the date from which postjudgment interest begins to accrue, the denial of his request for excise taxes and resultant income taxes, and the denial of his request for attorney fees and costs.
We hold that the trial court erred in concluding the review official had abused his discretion in calculating the amount of Roden's change in control benefit. The review official properly followed actuarial principles, methods and assumptions found to be appropriate by the plan actuary. We reverse the portion of the order overturning the review official's award and awarding Roden a $14,432,141.74 change in control benefit. We remand the matter to the trial court with instructions to modify its order to affirm the review official's determination of the change in control benefit, as expressed in his February 6, 2009 order.
The trial court was correct in affirming the decision of the review official to the effect that Roden is not, at this time, entitled to any payment with respect to potential excise tax liability. It would result in an absurdity to construe the SERP as requiring the payment of over $8 million with respect to excise taxes that are extremely unlikely ever to become due. Furthermore, as the review official held, and AmerisourceBergen has agreed, in the unlikely event excise taxes ever do become due, AmerisourceBergen will indemnify Roden as required by the SERP.
The trial court also did not err in affirming the decision of the review official as to the application of prejudgment interest at the federal bank discount rate. Federal law controls with respect to the application of prejudgment interest to benefits paid under the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.), and Roden has not shown that the review official erred in his application of Ninth Circuit law in the determination of that interest rate.
We further hold the trial court did not err in applying the state statutory postjudgment interest rate. Postjudgment interest, unlike prejudgment interest, is not a part of the ERISA benefit, and there is no reason to apply the federal statutory postjudgment interest rate to a state court judgment. The trial court was also correct in applying postjudgment interest from the date of the order that is the subject of this fourth appeal. As we held in Roden III, supra, 155 Cal.App.4th 1548, Roden's legal entitlement to a change in control benefit was established in the order that was the subject of the third appeal, but the trial court had no authority, at the time it made that order, to award damages. (Id. at p. 1551.) It was not until after the plan administrator, on remand, had determined the amount of the change in control benefit in the first instance, and the matter had gone through the administrative review process, that the court first had the authority to award damages. No money judgment was properly entered with respect to the change in control benefit until the order that is the subject of this fourth appeal was entered on April 9, 2009. Postjudgment interest runs from that date.
We also hold that the trial court did not err in providing that payments made pursuant to the order, which is in essence a money judgment, are to be applied first to interest and then to principal. This mandate is consistent with Code of Civil Procedure section 695.220. However, two sizeable payments were made to Roden before the date of the order, and the rules on application of payments to a money judgment are inapplicable to those two payments.
Finally, the trial court did not err in declining to award Roden attorney fees and costs. It did not abuse its discretion in concluding that neither party was the prevailing party at trial.
We affirm in part, reverse in part, and remand.
"'As discussed in our [first] opinion, Bergen hired Roden as its president and chief operating officer in 1995. [Citation.] Roden later became chief executive officer. Bergen terminated Roden's employment in 1999 and a disagreement ensued concerning Roden's rights under his employment contract and the company's benefit plans. Rancorous litigation followed. [Citation.]' [Citation.]" (Roden III, supra, 155 Cal.App.4th at p. 1552.)
"'The matter [first] came to this court on the interpretation of a Code of Civil Procedure section 998 settlement agreement that had been reduced to judgment. The judgment required, inter alia, the payment to Roden of $5 million... and the continuation of certain benefits as provided in section 5 of Roden's employment contract. [Citation.] We affirmed the postjudgment order at issue. [Citation.] In doing so, we stated, "Bergen agreed to pay a $5 million lump sum to get rid of the litigation, and to continue the section 5 employment benefits, including retirement benefits." [Citation.]' [Citation.]" (Roden III, supra, 155 Cal.App.4th at p. 1552.)
The next time we saw the parties, they were fighting over an order permitting postjudgment discovery. That appeal ended in dismissal. (Roden III, supra, 155 Cal.App.4th at p. 1551.)
Judgment in hand, "'Roden sought to collect the amounts due him.... However, the parties disagreed as to the amount of the employment benefits to which he was entitled.' [Citation.] Consequently, Roden filed a motion for a second postjudgment order interpreting and implementing the judgment. He sought an order regarding his rights under the company's supplemental executive retirement plan (SERP)...." (Roden III, supra, 155 Cal.App.4th at p. 1553.) "The court awarded Roden $14,432,141.74 in SERP benefits.... Roden and AmerisourceBergen both appeal[ed]." (Ibid.)
"In [the third] appeal,... Roden claim[ed] the court erred in awarding him only $14,432,141.74 in employment benefits, over and above the $5 million settlement amount previously awarded.... In its cross-appeal, AmerisourceBergen..., successor by merger to Bergen Brunswig Corporation (Bergen),*fn1 counter[ed] that the court erred in awarding the additional $14,432,141.74." (Roden III, supra, 155 Cal.App.4th at p. 1551.)
In the third appeal, we held that "[t]he trial court did not err in determining that Roden was entitled to a change in control benefit under the retirement plan. However, the court did err in calculating the amount of that benefit. The benefit amount must be determined in the first instance by the retirement plan administrator, not by the trial court. It is also the province of the plan administrator to determine in the first instance whether the terms of the retirement plan require the employer to pay excise and/or income taxes with respect to the change in control benefit. To the extent the court made a decision with respect to such taxes, the court erred." (Roden III, supra, 155 Cal.App.4th at p. 1551.)
"Accordingly, we affirm[ed] the portions of the order holding that Roden was entitled to a change in control benefit.... We reverse[d] the portions of the order concerning the amount of the change in control benefit, and the amount, if any, of excise and/or income taxes owing to Roden under the retirement plan. We remand[ed] those issues to the trial court with directions to further remand them to the plan administrator for determination in the first instance." (Roden III, supra, 155 Cal.App.4th at p. 1552.)
B. Proceedings on Remand after Third Appeal
On remand, Roden demanded $14,432,141.74 for the change in control benefit, minus the amount of a partial payment he had received. He also demanded reimbursement for any excise taxes, and resultant income taxes, for which he might become liable with respect to the change in control benefit. In addition, he requested attorney fees and costs. Finally, he claimed interest at the rate of 10 percent per annum from August 29, 2001.
By letter of June 10, 2008, claims official Donna Dasher denied Roden's claim. She stated: "I have determined that pursuant to the SERP you should be awarded a [change in control] benefit in the amount of $6,876,487, less the $1,898,066 already paid to you by Wachovia in July 2004, plus interest on the [change in control] benefit (less the $1,898,066 Wachovia payment) from August 29, 2001, to present at the rate specified by 28 U.S.C. § 1961(a)." The claims official also stated: "It is my further determination that you are not entitled to any gross[-]up payment to compensate for Internal Revenue Code ('Code') Section 4999 excise taxes, as you are not a 'disqualified individual' subject to the Section 4999 excise tax within the meaning of Code Section 280G(c). Therefore, you cannot reasonably be expected to become liable for the excise tax for which any gross-up payment is intended to compensate. As your claims have been denied, I have also determined that you are not entitled to any award of attorneys' fees under the Fourth SERP, Section 10.8, which provides that attorneys' fees shall only be awarded in the event a claim is granted by the Plan Administrator."
Roden filed an administrative appeal. The matter was once again heard before the Honorable Eugene F. Lynch, retired, as the review official. In a 21-page interim statement of decision dated October 31, 2008, the review official concluded: "1. In calculating Claimant's [change in control] benefit pursuant to Section 5.1, the term Equivalent refers to the actuarial Equivalent as defined in Section 2.14, and thus the Plan actuary properly discounted his benefit to [its] present value based on Claimant's actual age (i.e. 54) at the time of the [change in control]. [¶]... [¶] 4. Claimant is not entitled to an excise tax gross-up payment pursuant to Section 5.1(b)(iii). If there is such a tax respondent of [course] would have the duty of indemnity. [¶] 5. Claimant will be awarded interest for the time period he was without his [change in control] benefit at the federal bank discount rate...."
In the interim statement of decision, the review official observed that "the parties [had] agreed that once a ruling was issued on the various disputes that they would be able among themselves to agree on the exact amount owed and [would] submit such a stipulation re: said amounts to the Review Official." In a subsequent order dated February 6, 2009, he stated that the plan actuary, implementing the rulings contained in the interim statement of decision, had calculated the change in control benefit, "which amounted to $7,503,300, and applying compounded interest at the federal discount rate from August 29, 2001 to November 24, 2004 (less offsets), [had] determined the total net lump sum payment to be awarded Roden to be $6,954,305."
Dissatisfied, Roden filed, in the superior court, a motion for a third order in implementation of judgment. He challenged portions of the calculations of the SERP change in control benefit, sought interest on his benefit at the rate of 10 percent per annum from the date of the merger, and further sought a gross-up payment with respect to excise taxes.
The court awarded Roden SERP benefits in the amount of $14,432,141.74, plus interest thereon at the federal bank discount rate from August 29, 2001 through the date of the order, less the amount of any prior payments to Roden. The court further ordered that the award would bear interest at the rate of 10 percent per annum until paid. The court affirmed the review official's decision with regard to excise taxes. In addition, the court denied attorney fees and costs.
AmerisourceBergen filed an appeal from the third order in implementation of judgment and Roden filed a cross-appeal. In addition, Roden filed a motion to augment the record, to which AmerisourceBergen has filed objections.
As a preliminary matter, we address Roden's motion to augment. He seeks to augment the record with a copy of the 2009 W-2 wage and tax statement issued by AmerisourceBergen Services Corporation with respect to the change in control benefit paid to him. AmerisourceBergen opposes the motion contending, inter alia, that the record on appeal cannot be augmented to include items that were not before the trial court. AmerisourceBergen is correct. The W-2 form was issued after the third order in implementation of judgment was entered and, indeed, after this appeal was filed. We do not consider matters that were not before the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) The motion to augment is denied.
We start off with much ado about the standard of review. "We review de novo a district court's choice and application of the standard of review to decisions by fiduciaries in ERISA cases. [Citations.] We review for clear error the underlying findings of fact. [Citation.]" (Abatie v. Alta Health & Life Ins. Co. (9th Cir. 2006) 458 F.3d 955, 962; accord, Montour v. Hartford Life & Acc. Ins. Co. (9th Cir. 2009) 588 F.3d 623, 629 (Montour).)
The big question here is the standard of review to apply to the determinations of the review official. Taking the same positions they did in the third appeal, AmerisourceBergen says the abuse of discretion standard of review applies, while Roden contends the de novo standard of review applies. (Roden III, supra, 155 Cal.App.4th at pp. 1558-1559.) The answer is not a simple one and, in this case, varies depending on the particular determination at issue. We begin our analysis with a review of the principles we noted in our third opinion, since it appears that there has been some misunderstanding, even on the part of the trial court, as to the scope of our holding therein with respect to the applicable standard of review.
"While the parties agree that the SERP is governed by the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.), they nonetheless disagree as to the standard of review applicable to the administrative decisions at issue here.... Both parties cite Firestone Tire & Rubber Co. v. Bruch (1989) 489 U.S. 101 in support of their positions." (Roden III, supra, 155 Cal.App.4th at pp. 1558-1559.)
"That case addressed the standard of review applicable to certain challenges to benefit denials under ERISA-governed plans, in particular challenges brought under 29 U.S.C. § 1132(a)(1)(B). [Citation.] That section 'allows a suit to recover benefits due under the plan, to enforce rights under the terms of the plan, and to obtain a declaratory judgment of future entitlement to benefits under the provisions of the plan contract.' [Citation.] The Firestone court held 'that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.' [Citation.]" (Roden III, supra, 155 Cal.App.4th at p. 1559.)
"Interpreting Firestone Tire & Rubber Co. v. Bruch, supra, 489 U.S. 101, the court in Abatie v. Alta Health & Life Ins. Co. (9th Cir. 2006) 458 F.3d 955, stated that 'if the plan does confer discretionary authority as a matter of contractual agreement, then the standard of review shifts to abuse of discretion. [Citation.]' (Abatie v. Alta Health & Life Ins. Co., supra, 458 F.3d at p. 963[; accord, Conkright v. Frommert (2010) __ U.S. __ [130 S.Ct. 1640, 1646]].) '[F]or a plan to alter the standard of review from the default of de novo to the more lenient abuse of discretion, the plan must unambiguously provide discretion to the administrator. [Citation.] The essential first step of the analysis, then, is to examine whether the terms of the ERISA plan unambiguously grant discretion to the administrator. Accordingly, we first turn to the text of the plan.' [Citation.]" (Roden III, supra, 155 Cal.App.4th at p. 1559.)
(3) Discretionary Authority Under SERP Section 7.5, Now Inapplicable
"In the case before us, SERP section 7.5 unambiguously gives the plan administrator the discretion to construe the terms of the SERP and specifically states that an arbitrary and capricious standard of review shall apply. However, section 7.5 concludes with the following language: 'This Section shall cease to apply upon the occurrence [of] a Change in Control... and it shall thereafter never be reinstated in any way.'" (Roden III, supra, 155 Cal.App.4th at p. 1559.)
"Up until the time of the merger, then, the plan administrator clearly had a discretionary authority, under SERP section 7.5, that would have been subject to the abuse of discretion standard of review. Once the merger took place, however, SERP section 7.5 became inapplicable." (Roden III, supra, 155 Cal.App.4th at p. 1559.) In the third appeal, AmerisourceBergen argued that, after the date of the merger, the provisions of the "Master Trust Agreement for Bergen Brunswig Corporation Executive Deferral Plans" dated December 27, 1994 (Master Trust Agreement) governed and gave rise to an abuse of discretion standard of review. Roden disagreed. (Id. at pp. 1553-1554, 1559-1560.) We determined that we did not need to resolve the issue because, unlike the situation in Firestone Tire & Rubber Co. v. Bruch, supra, 489 U.S. 101, we were not then addressing the standard of review to be applied when the question was the interpretation of an ERISA plan provision, but rather were addressing "the interpretation of a state court judgment encapsulating a Code of Civil Procedure section 998 settlement agreement, a postjudgment order implementing the judgment, [and] an appellate court opinion addressing both the judgment and the order." (Roden III, supra, 155 Cal.App.4th at p. 1560.)
Interestingly, in this fourth appeal, AmerisourceBergen does not renew its arguments concerning the effect of the Master Trust Agreement, and Roden does not mention the document either. However, Roden reminds us that we previously stated SERP section 7.5, granting the plan administrator certain discretionary authority, became inapplicable once the merger took place. (Roden III, supra, 155 Cal.App.4th at p. 1559.) Reinforcing this statement, Roden also points out that another SERP provision, section 5.1(b)(iv), additionally declared that SERP section 7.5 became inapplicable upon the change in control. Consequently, he maintains, in this fourth appeal, that the de novo standard of review must apply. While it is true that SERP section 7.5 is now inapplicable, it is not the only plan provision concerning the plan administrator's discretionary authority.
(4) Disretionary Authority Under SERP Section 2.14, Affecting Change in Control Benefit
In our third opinion, after we concluded that the judgment entitled Roden to a SERP change in control benefit, we turned to address the proper calculation of that benefit. (Roden III, supra, 155 Cal.App.4th at p. 1563.) We stated: "As we have already discussed, when an ERISA plan unambiguously confers discretionary authority on the plan administrator to determine benefits or to interpret plan provisions, we apply an abuse of discretion standard of review to his or her decision. (Abatie v. Alta Health & Life Ins. Co., supra, 458 F.3d at p. 963.) At this juncture, we are no longer talking about interpreting the provisions of either the judgment or the first implementation order -- a judicial function. Now, we are talking instead about interpreting the complex SERP provisions concerning benefits calculations, based on certain actuarial principles, methods and assumptions. In this context, SERP section 2.14 clearly vests discretion in the plan administrator to determine the actuarial equivalent of the Executive Participant's vested accrued benefit under SERP subsection 5.1(b)(i)(F), based on principles, methods and assumptions proffered by the plan actuary. In short, the abuse of discretion standard of review applies with respect to the plan administrator's determination of the actuarial equivalent in question. However, we have no plan administrator's determination to review. Because the plan administrator concluded that Roden was not entitled to a change in control benefit, it did not interpret the SERP provisions pertaining to the change in control benefit calculation." (Roden III, supra, 155 Cal.App.4th at p. 1565-1566.)
We concluded that we had no choice but to "remand the matter of the change in control benefit calculation to the trial court with direction for it to further remand the matter to the plan administrator for determination in the first instance. [Citations.]" (Roden III, supra, 155 Cal.App.4th at p. 1566.) Although we did not review the amount of the change in control benefit, we did determine the standard of review with respect to the determination of that one benefit. The abuse of discretion standard applies, given the unambiguous grant of discretionary authority upon the plan administrator in SERP section 2.14. It is important to note that, in the third appeal, we did not determine the standard of review to be applied with respect to the determination of any other benefit.
(5) Discretionary Authority Under SERP Subsection 5.1(b)(iii), Affecting Tax Benefits
SERP section 2.14 does not apply with respect to every issue we are addressing in this fourth appeal. The section defines the term "Equivalent" for the purposes of the SERP, but that term is not at issue in SERP subsection 5.1(b)(iii), pertaining to excise taxes and resultant income taxes. Since SERP section 2.14 has no bearing on the determination of tax benefits, we must take a separate look at the standard of review applicable to that determination.
SERP subsection 5.1(b)(iii) does not give the plan administrator the discretionary authority to interpret its terms. So, to the extent we must resolve whether the terms of SERP subsection 5.1(b)(iii) provide Roden with any benefit at all, we must apply the de novo standard of review to the interpretation of those terms.
If Roden is entitled to a benefit under subsection 5.1(b)(iii), the review of the determination of the amount of that benefit is another matter. Subsection 5.1(b)(iii) provides: "In the event that the Company and the Executive Participant are unable to agree upon the amount of the payment required under this subsection (iii), such amount shall be determined by Tax Counsel.... The decision of such Tax Counsel shall be final and binding upon both the Company and the Executive Participant...." This language unambiguously grants discretionary authority to tax counsel to make the final determination with respect to the amount of the payment to be made to the executive participant with respect to excise taxes and resultant income taxes. Consequently, the abuse of discretion standard applies to a review of tax counsel's determination on that topic.
(6) Effect of Conflict of Interest
In this fourth appeal, Roden raises a new argument with respect to the abuse of discretion standard of review. He contends that even if this court determines to apply an abuse of discretion standard of review, the plan administrator's exercise of discretion must be highly scrutinized because of a conflict of interest. Roden, without citation to the record, says there is a conflict of interest because AmerisourceBergen both funds the SERP and has the authority to determine who qualifies for benefits.
We admonish Roden that we need not address any argument that is unsupported by record references. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) However, we nonetheless chose to check a few items in the record that, as it turns out, provide support for his assertion that there is a conflict of interest.
Section 7.4 of the SERP sets forth the claim and review procedures. Subsection 7.4(b) provides that the claim shall be determined by a claims official appointed by the plan administrator. Subsection 7.4(d) states that the claimant may appeal the decision to a review official, also designated by the plan administrator. SERP section 2.23 defines the "Plan Administrator" as Bergen Brunswig Corporation. That company, after the merger, has been supplanted by AmerisourceBergen. In the matter before us, these portions of section 7.4 were clearly implemented in the manner specified. The initial claims decision was made by claims official Donna Dasher, who provided her determination to Roden on AmerisourceBergen letterhead. AmerisourceBergen thereafter appointed Lynch to act as the review official.
It does then appear, as Roden asserts, that there was a conflict of interest inherent in the review procedure. AmerisourceBergen does not contend otherwise. However, that fact does not change the standard of review, only the manner in which it is applied. (Montour, supra, 588 F.3d at p. 631.) "Abuse of discretion review applies to a discretion-granting plan even if the administrator has a conflict of interest. But Firestone also makes clear that the existence of a conflict of interest is relevant to how a court conducts abuse of discretion review. In discussing abuse of discretion review, the Supreme Court cautioned that, 'if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a "facto[r] in determining whether there is an abuse of discretion." [Citation.]' [Citation.]" (Abatie v. Alta Health & Life Ins. Co., supra, 458 F.3d at p. 965, fn. omitted.)
When "weighing a conflict of interest as a factor in abuse of discretion review [we engage in] a case-by-case balance...." (Abatie v. Alta Health & Life Ins. Co., supra, 458 F.3d at p. 968.) The court should "tailor its review to all the circumstances before it. [Citation....] The level of skepticism with which a court views a conflicted administrator's decision may be low if a structural conflict of interest is unaccompanied, for example, by any evidence of malice, of self-dealing, or of a parsimonious claims-granting history. A court may weigh a conflict more heavily if, for example, the administrator provides inconsistent reasons for denial [citation]; fails adequately to investigate a claim or ask the plaintiff for necessary evidence [citation]; fails to credit a claimant's reliable evidence [citation]; or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record." (Id. at pp. 968-969; accord, Joas v. Reliance Standard Life Insurance Company (S.D. Cal. 2007) 621 F.Supp.2d 1001, 1007 (Joas).)
However, while Roden flags the existence of a conflict of interest, he does not discuss any of the factors the court should consider in evaluating how heavily to weigh that conflict of interest. He does not, for example, cite any evidence of self-dealing, malice, a stingy claims-granting history, inconsistent reasons for claims denial, failure to adequately to investigate a claim, or repeatedly making decisions against the weight of the evidence in the record. (See Abatie v. Alta Health & Life Ins. Co., supra, 458 F.3d at pp. 968-969.) He simply declares that the plan administrator has interpreted the terms of the SERP incorrectly and urges this court to scrutinize the claim denial. He cites Joas, supra, 621 F.Supp.2d 1001 for the proposition that "where a plan confers discretion upon a conflicted plan administrator to interpret the plan, a district court reviews the decision of the conflicted plan administrator for abuse of discretion, ...