NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0717n.06 No. 12-1214 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

WI L L I AM TATE, ET A L ., Plaintiffs-Appellants,

v. GENERAL

MOTORS L L C, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : SI L ER, MOORE, and ROGERS, Circuit J udg es. SI L ER, Circuit J udg e. Appellants, executive re tirees ( “Retiree s”) of Gene ral Motors L L C (“G M”), broug ht suit ag ainst GM pursuant to t h e E m p l oy ee Retirement I ncome Security Act (“ERI SA”), 29 U.S.C. § 1132(a) (1)( B) , challeng ing an adver se deter mination of their enti tlement
to benef its under GM’s Ex ecutive Retirement Plan (“ERP” or the “Plan”)

. For the rea sons explained below, we AF F IRM the district court’s g rant of G M’s motion to di smiss. I. The Retirees are participa nts in and/or benef

iciarie s of GM’s ERP. The ERP is an unfunded, non-qualified, retire ment benef it plan that provides defe rre d compensa tion for a selec t g roup of manag ement or highly compensa ted employ ees. I n 2 0 0 8 , as a condition of its bankruptc y and its subsequent purcha se by the United States T re as u ry , GM was require d to cut cer tain retire ment benef its, including two-thirds of particula r ERP benef

its exceeding $100,000. The calc ulation of theNo. 12-1214

Tate v. Gene ral Motors ERP reduction is the source of controve rsy in this l awsuit. The ke y

provision, Article I V Section I I(g ) of the Plan, r eads: [F]or executive retire es who have a combined tax-qualified SRP plus non-qualified benef it under this Plan in excess of $100,000 per annum on a life annuity basis, the amount of benef

its under this Plan over the combined $100,000 per annum threshold shall be re duced by

2/3rds. I n 2010, in acc ordanc e with t h e E R P ’s Claim and Denial proce dures, Retirees soug ht a rede termination of their benef its rec eived under the ERP. They trea ted GM’s subsequent failure to respond within 60 day s as a denial and filed an appea l with the Ex ecutive Compensation Commi ttee (“ECC”) for the Boa

rd of Direc tors in 2011. GM responde d, denying the claims. I n its response, GM m i s q u o t ed the ERP terms and omitted from the key provision the second appea ranc es of t h e phra s e “u nder this plan,” and the word “thre shold.” A few months later, when the ECC also responde d denying the appea ls, it t oo omitted these same ter ms and misquoted the provision. Following these de nials, Retirees f iled suit ag ainst GM in the United States District Court. They asser

ted in Count 1 that GM failed to proper ly calc ulate their benef its in violation of ERI SA § 502(a) (1)( B) , 29 U.S.C. § 1132(a)(1)(B)

. They argued that GM incorre ctly interpre ted the key provision of Article I V S ection I I (g ), which led t o an erroneous calcula tion of their ERP benefits. I n Count 2, Retirees asser

ted that GM, as plan administrator, failed to provide them with require d plan information within 30 day s of their req u es t , as require d under ERI SA § 501(c) (1), 29 U.S.C. § 1132(c) (1). Retiree s i n s i s t ed t hat GM, as the plan administrator, is subject to a penalty for this proce dural e rror .

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Tate v. Gene ral Motors GM moved to dismiss the amende d complaint pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6 ), arg uing that the key provision is unambig uous and that GM’s interpre tation is the only plausible and re asonable interpre tation. To its motion, GM attache d sever al documents supporting its interpre tation of the provision. The district court g rante d GM’s motion, finding that Retirees’ interpre tation of the provision was implausible. II. We r eview a district court’s g rant of a motion to dismiss de novo. Orton v. Johnny’ s Lunch Franchis e , L L C, 668 F.3d 843, 846 (6th Cir. 2012). Where, as here , a policy g rants a plan administrator discretion to interpre t the policy , our decision is limit ed to a deter mination of whether the denial of benef

its wa s arbitra

ry and ca pricious. Davis v. Ky. Fin. Cos. Re t. P lan , 887 F.2d 689, 694 (6th Cir. 1989). This standard is not altere d by the exis tence of GM’s inhere nt conflict of interest

cre ated by acting as both the admi n i s t ra t o r an d issuer of the Plan, but we consider it “a fac tor in deter mining whe ther the [plan administrator’s] decision wa s arbitra ry and ca pricious.” Id. at 694. A. I n order to sur

vive a motion to dismiss , a complaint must “ contain suff icient fac tual matter,

ac cepte d as t rue, to state a claim t o relief that is plausible on its fac e.” Ashcroft v. Iqbal , 5 5 6 U. S

. 662, 678 (2009). Count 1 of the amende d complaint alleg es that GM wron gfu l ly denied Retirees additional benef

its in violation of ERI SA § 502(a) (1)( B) , 29 U.S.C. § 1132(a) (1)( B)

. Retirees claim they are entitled to these benef its under Ar t i cl e I V Section I I of the Plan. GM argues that the key provision at issue is unambig uous beca use it is only open to one rea sonable interpre tation–that ERP benef its under the Plan are subject to a two-thirds reduc tion when a combination of SRP benef its and - 3 -No. 12-1214

Tate v. Gene ral Motors ERP benef

its toge ther exceed a $100,000 thr es hold. Retirees counter that the provision should be

rea d as comprising two distinct parts, separ at ed by the comma approximately midway throug h the p ara g raph. They contend that the first part is the condition prec edent which rende rs t h e p ro v i s i o n applicable to only employ ees wh o h av e (1 ) an SRP and (2) an annual ERP benef it in excess of $100,000. Thus, the $100,000 threshold applies only to ERP benefits, not SR P benefits. After revie wing Retirees’ position, the plan administrator denied their claims, concluding that their “propose d interpre tation of the Plan languag e [w a s ] inconsistent with both the Plan lang uag e and its intended application.” The primary issue befor e us is whether Retirees have shown that the plan administrator’s int erpr etation i s arbitra ry and c apricious. The crux of t he parties’ di sag ree ment on this iss ue is the ef

fec t of the word “ combined” in the pr ovision. ERI SA plan provisions are interpre ted “ac cording to their plain meaning , in an ordinary and popular sense .” Perez v . Aetna Life Ins. Co. , 150 F.3d 550, 556 (6th Cir. 1998)

. As define d by the Oxford English Dictionary , the term “combined,” as ref ere nced by both parties, means “possess[ed]

or exhibi t[ ed] in union,” “couple d,” “united,” and “[r]esulti ng from, or produce d by , combination.” 515-16 (2d ed., 1989). Thus, the provision’s first clause ref err ing to “executive retire es who have a combined tax-qualified SRP plus non-qualified b en ef i t u n d er this Plan in excess of $100,000 per

annum on a life annuity basis,” must indicate the union or sum of more than one part. The parties ag ree that these two pa

rts are the “tax-qualified SRP” and “non- qualified benefit under this Plan,” and their dispute turns on whether the final phrase “in ex cess of $100,000” refer s to o nly the l atter non-qualified be nefit or a combination of both the tax-qualified SRP and non-qualified be nefit.

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Tate v. Gene ral Motors I f this wer e the only challeng ed portion of the provision, Retirees’ insistence that the former interpre tation be adopted might be plausible. Howeve r, the provision g oes on to state in the second clause that for retire es to meet this require ment, “the amount of benef its under this P l an o v er t he combined $100,000 per annum threshold shall be reduc ed by 2/3rds.” The wo rd “combined,” as it appea rs i n the s econd clause must, ag ain, i n keeping with its ord i n ar y m ea n i n g, ref er to a union or combination of multipl e parts. Thus, the threshold, as deter mined by the provision’s first clause , must comprise two items which, in sum, exceed $100,000. GM’s interpre tation is wholly consistent with this conclusion, while Retirees’ interpre tation rende rs the second appea ranc e of “combined” meaning less beca

use it eliminates the nece ssity of having two p arts which, when added toge ther, exceed $100,000. Retirees attempt to save their ar g ument by rely ing on the last antec edent rule, a princ iple of
contra ct interpre tation which provides that “a limit ing clause or phrase

. . . should ordinarily be rea d

as modify i n g o n l y t h e noun or phrase that it immediately follows.” Cracker Barrel Old Country Store, Inc. v. Cincinnati Ins. Co. , 499 F. App’x 559, 564 (6th Cir. 2012) (citations omitted). Under this rule, Retirees insist that the clause “in excess of $100,000” applies only to non-qualified benef its, since this item appea

rs just befor e the modification. Howeve r, they overlook that “[l] ike all canons of interpre tation, the rule of the last antec edent can be overc ome by t ex tual indication of contra ry meaning .” Dec ker v. Nw. Envtl. Def. Ctr. , 133 S. Ct . 1326, 1343-44 (2013)

. Her e, the appea ranc e of “combined” twice in the provision indicates that the $100,000 threshold comprises more than one item, which can only be rea d to ref ere nce tax-qualified SRP benef its and non-qualified ERP benef its

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Tate v. Gene ral Motors beca use these are the only two items ref ere nced in the provision. This text ual indication superse des
a contr ary rea ding unde r the last ante cede nt rule. B. Retirees next argue that the provision is ambig uous beca use the term “SRP” is n o t define d within the Plan. Howeve r, this does not cre ate a materia l ambig uity within the provision. See W itmer

v. Acume nt Global Techs., Inc. , 694 F.3d 774, 778 (6th Cir. 2012). The definition of “SRP” does not implicate Retirees’ interpre tation of the Plan and they do not e x plain how a failure to de fine “SRP” aff ects their cl ai med benef

its. For this rea son, the Plan’s failure to define “SRP” does not save Retirees’ argument or dee m the provision ambiguous. C. The ERP f

a lls into a cate g ory of retire ment benef it plans commonly known as “top hat” plans. Whil e “top hat” plans are g overne d by ERI SA, they ar e n o t s u b j ec t to many of the substantive standards require d of other retire ment plans, such as participa tion, vesting , acc rual, funding , fiduciar y responsibility , disclosure, and repor ting. Simpson v. Mead Corp. , 187 F. App’x 481, 483-84 (6th Cir. 200 6 ) (citations omitted). These exceptions are made in rec og nition of the ability of high level employ ees to inf

luence or neg otiate elements of their compensa tion pa ckag es, eliminating the need for protec tions aff

orded other employ ees under ERI SA. Bakri v. Venture Mfg. Co. , 473 F.3d 677, 678 (6th Cir. 2007). Retirees arg

ue that beca

use this case involves a t o p-hat plan, the district court applied an

err oneous “pla

usibili ty ” standa

rd and should have allowed more fac tual development of the rec ord

or ex trinsic evidenc e bef

ore r uling on GM’ s motion t o dismiss . Although top- hat plans ar e larg ely

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Tate v. Gene ral Motors exempted from ERI SA, we have not extended the exemption so far as to demand that district courts admit extrinsi c evidenc e b efor e dismiss ing a plaintiff’s claims. “When interpre ting ERI SA plan provisions, g ener al principles of contract law apply . . . .” Lipker v. AK St eel Corp. , 698 F.3d 923, 928 (6th Cir. 2012). We have consistently stated that extrinsi c evidenc e should only be admitted afte r

a provision has been found to be ambig uous. See Pollet v. Rinker Materials Corp. , 477 F.3d 376, 380 (6th Cir. 2007). Thus, Retirees’ argument that extrinsi c evidenc e is neede d at this stag e of litigation fails bec ause, a s expl ained a bove, they

have not f

irst established that the provision is ambig uous. Whil e Retirees insist that extrinsi c evidenc e should be admitted at this stag e of litigation, they arg ue in the s ame breath that the district court err ed in permitt ing GM to attach documents outside the administrative rec ord to its m o t i o n t o d ismiss

. Although GM did attach extrinsi c evidenc e in support of its interpre tation of the Plan, the district c ourt found Retirees’ interpre tation implausible and the provision unambig uous. There fore , the dist ri ct co urt never considere d the documents submitt ed by defe ndant on this issue. The challeng e to GM’s submissi on of extrinsi c evidenc e fails beca use th e evidenc e did not aff ect the district court’s ruling

. Even assuming it did, howeve r, we aff irm beca use, afte r our independe nt r eview of only the amende d complaint and its attachme nts, it is clear that Retirees f

ailed to state a

plausible claim for

relief

. D. As a final matter, Retirees contend they alleg e fac ts showing p ro ce d ural shortcoming s in GM’s revie w proce ss which war rant substantive reme dies. They note specific all y t h at the plan administrator was untimely in issuing it s interpre tive ruling and in prese nting the issue to the EC C for revie w, and that both the plan administrator and the ECC blatantly misquoted the Plan lang uag e. - 7 -No. 12-1214

Tate v. Gene ral Motors What Retirees do not offe r is how a slight misquoti ng of the provision aff ects either the quali t y of revie w g iven to their claims or their entitleme n t to benef its. Procedur al violations war rant substantive

reme dies “only when some useful purpose would be serve d.” Kent v. United of Omaha Life Ins. Co. , 96 F.3d 803, 807 (6th Cir. 1996) (citations omitted). Acc ording ly , deter minations of benef

its will still be upheld whe re pla

n administrators substantially comply with ERI SA, even where mere technica l

or proce dural defe cts are prese nt. Id

. at 808. Be cause Retirees do not show that the proce dural err ors they alleg e aff

ect the substance of their claims, they are not entitled to substantive reme dies from the
court. AF F IRMED.

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