F I L E D

United States Court of Appeals

Tenth Circuit

MAR 24 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL E. HOCKETT,

Plaintiff - Appellee and

Cross - Appellant,

v. Nos. 95-5252 

and 95-5255

SUN COMPANY, INC., (R&M); SUN

COMPANY, INC., RETIREMENT PLAN,

Defendants - Appellants and

Cross - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. NO. 92-C-437-H)

Steven A. Broussard (Claire V. Eagan and J. Patrick Cremin with him on the briefs), Hall,

Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for DefendantsAppellants/Cross-Appellees.

Frederic N. Schneider III (John A. Burkhardt with him on the briefs), Boone, Smith,

Davis, Hurst & Dickman, Tulsa, Oklahoma, for Plaintiff-Appellee/Cross-Appellant..

Before SEYMOUR, Chief Judge, ANDERSON, and TACHA, Circuit Judges.

ANDERSON, Circuit Judge.
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Less than two months after Plaintiff Paul E. Hockett retired from his career with

Sun Refining and Marketing Company (“Sun R & M”), Sun R & M’s parent corporation,

Sun Company, Inc., announced a new early retirement plan that would have benefited him

had he delayed his retirement. Hockett sued Defendants Sun Company, Inc., and the Sun

Company, Inc, Retirement Plan, alleging breach of fiduciary duty under the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1009 et seq., wrongful denial

of his request for participation in the new retirement plan, and various state law claims. 

The district court found the state law claims preempted by ERISA. Following a bench

trial on the ERISA claims, the district court, relying upon Maez v. Mountain States

Telephone and Telegraph, Inc., 54 F.3d 1488 (10th Cir. 1995), held Defendants liable for

a breach of fiduciary duty, finding that Sun Company made material misrepresentations to

Hockett regarding the likely availability of a future retirement plan that was already under

“serious consideration.” The district court rejected, however, Hockett’s claim that

Defendants wrongfully denied him participation in the new plan. Defendants appeal from

the judgment imposing liability for a breach of fiduciary duty, while Hockett crossappeals from the denial of his participation claim.

We hold that the district court misapplied the concept of “serious consideration.” 

Serious consideration of a future ERISA offering does not occur until (1) a specific

proposal (2) is being discussed for purposes of implementation (3) by senior management

with the authority to implement the change. Because Sun Company did not seriously
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consider a future offering until after Hockett’s retirement, Defendants’ alleged

misrepresentations cannot constitute a breach of fiduciary duty, and we reverse the

portion of the district court order finding such a breach. We affirm in all other respects.

BACKGROUND

Sun Company produces and markets coal, oil, and natural gas worldwide. During

the period most relevant to this appeal, Sun R & M was Sun Company’s wholly-owned

oil refining and marketing subsidiary, and Sun R & M employees participated in the Sun

Company, Inc., Retirement Plan (“SCIRP”), a pension plan subject to ERISA. Sun R &

M’s operations have since been consolidated back into Sun Company, and Sun R & M

exists only as a legal entity. The parties agree that Sun Company is responsible for any of

Sun R & M’s outstanding liabilities to Hockett.

A. Hockett’s Retirement from Sun R & M

From 1988 to 1991, the SCIRP granted a 2-1/2% pension enhancement to 

employees terminated voluntarily or involuntarily. This 2-1/2% enhancement offer was

set to expire on July 1, 1991, and Sun Company had publicly announced that the offer

would not be extended past that date. As a subsidiary, Sun R & M did not have the

authority to amend the SCIRP or offer a different ERISA plan. Only Sun Company’s
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President or Chief Executive Officer had that authority, subject to approval by Sun

Company’s Board of Directors.

In 1990, Hockett turned 55, and began considering early retirement. He had

worked for Sun R & M (or its predecessors) for approximately twenty-five years, most

recently as manager of the Tulsa Credit Card Center. Hockett asked his supervisor, Peter

Waitneight, whether he could receive a “package” if he retired early. A “package”

referred to the severance pay, bonus pay, and other benefits that Sun R & M had granted

in the past, apparently on an ad hoc basis, to some retiring employees. Waitneight told

Hockett that a package was unlikely because Sun R & M’s President, David Knoll, had

established a policy of not granting packages unless the retiree’s job position was actually

eliminated. Waitneight considered Hockett’s position too important to eliminate.

In May, 1991, Waitneight and Hockett had a serious disagreement over whether

Hockett was entitled to a merit raise under Sun R & M’s new 1991-92 Salary

Administration Program. Waitneight told Hockett he did not merit the raise, and Hockett

informed Waitneight that if he did not get the raise, he would retire. The impasse ended

on June 7, 1991, when Hockett tendered his “official and irrevocable request for early

retirement effective July 1, 1991.” Appellant’s App. at 116. By making the retirement

effective July 1, 1991, Hockett qualified for the 2-1/2% SCIRP enhancement on the last

possible day.
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Even though Hockett had already tendered his irrevocable request for early

retirement, he decided to check again whether he could receive a package. On the day

Hockett tendered his retirement notice, he asked Waitneight whether he would still be

correct in assuming that no package would be offered to him upon his retirement. 

Waitneight said that was right. Dissatisfied with Waitneight’s response, Hockett

contacted William Rutherford on June 25, 1991. Rutherford was Sun Company’s Vice

President of Human Resources and Administration. Hockett explained to Rutherford his

decision to retire, and asked Rutherford to help him obtain a package. In response,

Rutherford asked Hockett if he wanted to “undo” his retirement. Hockett replied, “No, I

don’t think . . . [Waitneight] and I could work any more together. What I’m after is the

package.” Appellant’s App. at 122. Rutherford told Hockett he would “check into it and

see what he could do,” id., but Hockett did not hear back from Rutherford, and his

retirement became effective on July 1, 1991.

Despite Hockett’s July 1 retirement, Waitneight asked him to continue managing

the Credit Card Center under a consulting agreement. Hockett executed a “Professional

Services Agreement” with Sun R & M on July 3, 1991, which provided that he would

serve as an independent contractor in the Credit Card Center from July 1 to October 31,

1991.
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B. The Adoption of the Voluntary Retirement and Termination Program

In 1990, the Persian Gulf War caused a sharp increase in crude oil prices, the cost

of which Sun R & M was not recovering through sales. By May, 1991, Sun R & M

executives were examining several cost-cutting measures, and Sun R & M’s President,

David Knoll, knew that the cost-cutting would have to include a significant labor

reduction. On June 18, 1991, Knoll publicly announced the commencement of a

company-wide restructuring and downsizing project to be completed by September, 1991.

See Appellee’s App. Vol. V. at 1599-1602. Knoll’s announcement did not explain

whether labor reductions would occur through voluntary or involuntary terminations, nor

whether there would be any new retirement incentive plans.

In anticipation of the downsizing, Alfred Little, Sun R & M’s Director of Human

Resources, began studying in May, 1991, the potential benefits of a voluntary termination

program. Under a voluntary program, a company offers a mix of retirement/termination

benefits designed to induce a targeted number of employees to leave the company

voluntarily. Little asked his subordinate, Charles Fuges, to gather information comparing

the pros and cons of voluntary versus involuntary termination programs. Fuges contacted

Mitchell Anderman, Sun Company’s Manager of Employee Benefits Planning and

Design, for information regarding voluntary programs, and in a short memorandum dated

May 21, 1991, Anderman provided Fuges with a skeletal comparison of the general

merits of voluntary versus involuntary termination plans. Id. at 1584-87. Anderman
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attached to the memorandum two pages of data regarding what other companies had

included in past retirement plans. Id. at 1586-87. Anderman noted in the memorandum

that the data had not been updated since 1986. Id. at 1585.

On May 24, 1991, armed with Fuges’ information, Little met with David Knoll

and Pat Coggins, Sun R & M’s Vice President of Administration, to discuss the virtues of

a voluntary retirement program. Six days later, Little sent Knoll and Coggins a

memorandum stating: “I thought we had a good discussion on Friday, May 24, regarding

the question of whether to do a voluntary/involuntary termination package. Fortunately,

we do not need to make that decision at this time, but I thought I would give you a few

points to consider regarding the advantages of a voluntary.” Id. at 1588. The

memorandum then listed six general advantages of a voluntary plan.

On June 3, 1991, Fuges sent Little a one page memorandum outlining a potential

labor reduction strategy. Id. at 1590. Notably, Fuges states: “Any new pension

enhancements/severance package would be developed in response to the business

decisions made over the next several months and would be available in the fall/winter.” 

Fuges attached Anderman’s May 21 memorandum to his own.

On June 19, 1991, the day after Knoll announced the company-wide restructuring,

Knoll announced the formation of a special project team to coordinate the restructuring

and downsizing. On July 8, 1991, Nick Neuhausel was appointed Sun Company’s

Director of Compensation and Benefits Group. His new position pulled together all the
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functions involved in the planning, design, implementation and administration of Sun

Company benefits. In mid-July, Neuhausel directed Anderman to study and develop an

early retirement/termination program consisting of a voluntary plan followed by an

involuntary plan. Neuhausel told Anderman that the program needed to induce large

numbers of employees to terminate their employment. Anderman contacted actuaries,

began cost analysis, and instructed his staff to update information regarding what other

comparable companies were offering in the way of early retirement/termination programs.

On about July 26, 1991, Coggins, Neuhausel, Rutherford and Little met to further

discuss the early retirement/termination program. They agreed to recommend to Robert 

Campbell, Sun Company’s President, a voluntary termination program followed by an

involuntary termination program. On August 7, 1991, Campbell met with Anderman,

Rutherford, Neuhausel, Knoll, Coggins and Little. Campbell agreed to recommend the

voluntary/involuntary program to Bob McClements, Chief Executive Officer of Sun

Company. McClements accepted the recommendation on August 19, 1991.

On or about August 28, 1991, Sun Company announced it would amend the

SCIRP to include the new Voluntary Retirement and Termination Program (VRTP). For

eligible employees who terminated their employment between September 1 and October

15, 1991, the VRTP enhanced retirement benefits by crediting the employees with (1) an

additional three years of age and service, (2) severance payments equal to three weeks of
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base pay for every completed year of service, and (3) a bonus. These benefits were

superior to the 2-1/2% enhancement Hockett had received.

Rutherford knew by the time he spoke with Hockett on June 25, 1991, that there

was going to be a downsizing at Sun R & M, and he knew that Little and others were

discussing potential retirement/termination strategies. In fact, Little had discussed with

Rutherford his preference for a voluntary plan. It is undisputed that Rutherford did not

tell any of this to Hockett.

When Hockett heard the VRTP announcement, he contacted Rutherford and told

him he wanted to participate in the Plan. Rutherford inquired with Neil Horgan, Sun

Company’s Director of Compensation and Benefits, regarding Hockett’s eligibility. 

Horgan determined that Hockett was ineligible because he had retired prior to the

VRTP’s availability. Hockett left Sun R & M completely when his consulting agreement

expired on October 31, 1991.

C. Proceedings in the District Court

In the district court, Hockett based his breach of fiduciary duty claim on his June

conversations with Waitneight and Rutherford, whom he claims were both plan

fiduciaries under ERISA. Hockett argued that both Waitneight and Rutherford knew he

was interested in receiving a retirement package that was better than the 2-1/2%

enhancement, and that both men knew he felt compelled to retire on July 1, 1991, in order
1We style Hockett’s wrongful denial of benefits claim as an “alternative” claim

because it represents a theory of recovery inconsistent with the breach of fiduciary duty

claim. The breach of fiduciary duty claim is premised on the allegation that Hockett’s

July 1 retirement foreclosed his right to participate in the VRTP. The wrongful denial of

benefits claim, by contrast, is premised on the contention that Hockett never lost his

eligibility to participate in the VRTP.

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to receive at least the 2-1/2% enhancement. Most significantly, Hockett contended that

when Rutherford told him he would “check into it and see what he could do,” he falsely

suggested to Hockett that he did not know whether Sun Company was considering a new

retirement/termination plan, when Rutherford in fact knew that Sun Company and Sun R

& M were already examining a new retirement/termination plan to complement the

announced downsizing.

Hockett’s alternative claim that Defendants wrongfully denied his request to

participate in the VRTP was premised on the fact that he was still working for Sun R &

M under the Professional Services Agreement at the time the VRTP became available.1

Hockett claimed that he was Sun R & M’s common-law employee during the period of

the Agreement, and that as a common-law employee he qualified for the VRTP.

The district court determined that the breach of fiduciary duty claim was governed

by Maez v. Mountain States Telephone and Telegraph, Inc., 54 F.3d 1488 (10th Cir.

1995), in which we held that if an ERISA plan fiduciary communicates with potential

plan participants after serious consideration has been given concerning a future offering

under the plan, then any material misrepresentations may constitute a breach of fiduciary
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duty. The district court found that Rutherford was a fiduciary, but Waitneight was not. 

Hockett v. Sun Company, Inc. (R & M), No. 92-C-437-H, at 12 (N.D. Okla. Oct. 18,

1995). The court also found that by June 25, 1991, Sun Company and Sun R & M were

already seriously considering various alternative retirement/termination plans to be

implemented in connection with the anticipated downsizing. Id. at 8. Focusing on the

June 25, 1991, conversation between Hockett and Rutherford, the district court found that

Rutherford’s failure to tell Hockett that Sun was considering a new package when 

Hockett specifically asked him about the availability of such packages, along with

Rutherford’s statement that he would “look into” the possibility of a package, falsely

suggested that Rutherford did not know whether a package was under consideration and

that he would actively undertake to determine whether one was. The district court

concluded that this constituted misrepresentations which materially misled Hockett,

causing him to retire before implementation of the more beneficial package. Id. at 14-15. 

The court awarded Hockett stipulated damages compensating for his inability to

participate in the VRTP.

With respect to Hockett’s wrongful denial of benefits claim, the district court

found that when Hockett retired on July 1, 1991, he knew he was giving up his rights to

any benefits that might be offered under the SCIRP to active employees. Id. at 9. The

district court also found that Hockett was an independent contractor following his

retirement, was no longer on the “active payroll” of R & M, and “accordingly was not
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eligible to opt into the VRTP during the 45-day election period in which the VRTP was

offered to Sun employees.” Id. at 8, 10-11.

DISCUSSION

A. Breach of Fiduciary Duty

On appeal, the parties agree that Maez governs Hockett’s breach of fiduciary duty

claim. Defendants assert, however, that the district court’s interpretation of “serious

consideration” is inconsistent with ERISA’s statutory scheme. Specifically, Defendants

argue that at the time Hockett spoke with Rutherford, Sun Company and Sun R & M were

engaged only in preliminary research and discussion regarding potential downsizing

strategies. Defendants claim that this type of preliminary, internal business deliberation

falls within an employer’s non-fiduciary, “settlor” function, and does not invoke the rule

we announced in Maez. For the following reasons, we agree.

ERISA contemplates that an employer often will act as both employer and plan

fiduciary, and not all of an employer’s business activities implicate ERISA’s fiduciary

duties. Varity Corp. v. Howe, 116 S. Ct. 1065, 1071 (1996). In enacting ERISA,

Congress did not explicitly enumerate all the duties of an ERISA fiduciary, and did not

describe every instance in which an employer acts in a fiduciary capacity, but

intentionally left many of these details for the courts to develop in light of the special

nature and purpose of employee benefit plans. Id. at 1070. In Maez, we adopted a rule,
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common among the Circuits, to govern when an employer’s alleged misrepresentations

regarding a potential plan change constitute a breach of fiduciary duty. We held that

material misrepresentations about a future plan offering do not constitute a breach of

fiduciary duty unless the misrepresentations are made after the employer has “seriously

considered” the future offering. Maez, 54 F.3d at 1500; accord Muse v. International

Bus. Machs. Corp., 103 F.3d 490, 495 (6th Cir. 1996); Fischer v. Philadelphia Elec. Co.,

96 F.3d 1533, 1538 (3d Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3468 (U.S. Dec.

24, 1996) (No. 96-1038) (“Fischer II”); Wilson v. Southwestern Bell Tel. Co., 55 F.3d

399, 405 (8th Cir. 1995); Vartanian v. Monsanto Co., 14 F.3d 697, 702 (1st Cir. 1994);

Barnes v. Lacy, 927 F.2d 539, 544 (11th Cir. 1991). Maez, however, involved an appeal

from a Fed. R. Civ. P. 12(b)(6) dismissal, and our only task there was to determine

whether “serious consideration” had been adequately pleaded. Consequently, we did not

elaborate upon the meaning of “serious consideration.” We recognize that the district

court in this case was without the guidance we now provide.

The “serious consideration” requirement is designed to balance “the tension

between an employee’s right to information and an employer’s need to operate on a dayto-day basis.” Fischer II, 96 F.3d at 1539. This balancing respects Congress’ competing

desires, in enacting ERISA, to safeguard employee benefit plans, and yet not make such

plans so burdensome or threatening that employers would shy away from offering them. 

See Varity, 116 S. Ct. at 1070. As a practical matter, an employer’s “consideration” of an
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ERISA plan can fall anywhere along a continuum, beginning with the most casual

mention of a possible plan change and ending, perhaps, with a formal vote by the Board

of Directors. Between these two extremes are many stages of research, analysis, and

debate, which only some proposals will survive. “Serious consideration” marks the point

on the continuum at which imposing fiduciary-related duties will best serve the

competing congressional purposes.

We believe the proper point on this continuum has already been identified by the

Third Circuit in Fischer II. There, the court held that “serious consideration” of a change

in plan benefits does not exist until (1) a specific proposal (2) is being discussed for

purposes of implementation (3) by senior management with the authority to implement

the change. 96 F.3d at 1539. Until these three factors intersect, misrepresentations

regarding future plan changes cannot be material, and thus cannot constitute a breach of

fiduciary duty. Id. at 1538 (“Serious consideration forms the crux of the [materiality]

inquiry.”).

In our view, the Fischer II formulation appropriately narrows the range of

instances in which an employer must disclose, in response to employees’ inquiries, its

tentative intentions regarding an ERISA plan. Employers frequently review retirement

and benefit plans as part of ongoing efforts to succeed in a competitive and volatile

marketplace. If any discussion by management regarding possible change to an ERISA

plan triggered disclosure duties, the employer could be burdened with providing a
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constant, ever-changing stream of information to inquisitive plan participants. See id. at

1539 (“A corporation could not function if ERISA required complete disclosure of every

facet of these on-going activities.”); Pocchia v. Nynex Corp., 81 F.3d 275, 278 (2d Cir.)

(ERISA does not require that a fiduciary disclose its internal deliberations), cert. denied,

117 S. Ct. 302 (1996). And, most of such information actually would be useless, if not

misleading, to employees, considering that many corporate ideas and strategies never

reach maturity, or else metamorphose so dramatically along the way, that early disclosure

would be of little value. See Fischer II, 96 F.3d at 1539 (noting that precipitous

disclosure requirements could lead to “an avalanche of [employer] notices and

disclosures” that would actually impair an employee’s ability to make a sound decision

regarding retirement); Muse, 103 F.3d at 494; Pocchia, 81 F.3d at 278. Furthermore,

requiring employers to reveal too soon their internal deliberations to inquiring

beneficiaries could seriously “impair the achievement of legitimate business goals” by

allowing competitors to know that the employer is considering a labor reduction, a sitechange, a merger, or some other strategic move. Muse, 103 F.3d at 494 (“[I]f IBM had

been forced to disclose prematurely the fact that it was studying the closing or selling of

the Lexington site, which manufactured most of IBM’s typewriters, the information could

have been used by competitors to damage IBM seriously.”).

Even more importantly, we believe the Fischer II standard protects employees’

access to material information without discouraging employers from improving their
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ERISA plans in the first place. As recognized by the Sixth Circuit, “[c]hanging

circumstances, such as the need to reduce labor costs, might require an employer to

sweeten its severance package, and an employer should not be forever deterred from

giving its employees a better deal merely because it did not clearly indicate to a previous

employee that a better deal might one day be proposed.” Swinney v. General Motors

Corp., 46 F.3d 512, 520 (6th Cir. 1995). Moreover, employers often decide to “sweeten”

an early retirement plan only after the employer has determined that not enough

employees are opting to retire under the existing one. “If fiduciaries were required to

disclose such a business strategy, it would necessarily fail. Employees simply would not

leave if they were informed that improved benefits were planned if workforce reductions

were insufficient.” Pocchia, 81 F.3d at 279. Thus, precipitous liability could push

employers in the direction of involuntary lay-offs, a common alternative to early

retirement inducements. The Fischer II standard minimizes this possibility.

Before applying the proper definition of “serious consideration” to the facts in this

case, we briefly elaborate on the definition’s three elements. As explained by the Third

Circuit, the first element, a specific proposal, “distinguishes serious consideration from

the antecedent steps of gathering information, developing strategies, and analyzing

options.” Fischer II, 96 F.3d at 1539-40. Although the specific proposal need not be in

final form, it must be “sufficiently concrete to support consideration by senior

management for the purposes of implementation.” Id. at 1540. The second element,
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discussion for purposes of implementation, while further distinguishing serious

consideration from the preliminary steps of gathering data and formulating strategy, also

ensures that senior management can participate in the preliminary steps without

“automatically triggering a duty of disclosure.” Id.

[A] corporate executive can order an analysis of benefits alternatives or

commission a comparative study without seriously considering

implementing a change in benefits. Preliminary stages may also require

interaction among upper level management, company personnel, and

outside consultants. These discussions are properly assigned to the

preliminary stages of company deliberations. Consideration becomes

serious when the subject turns to the practicalities of implementation.

Id.

The third element, consideration by senior management with the authority to

implement the change, requires courts to focus on the “proper actors within the corporate

hierarchy.” Id. Middle and upper-level management employees frequently investigate

trouble spots and recommend change to their supervisors. This alone is not serious

consideration. “These activities are merely the ordinary duties of the employees. Until

senior management addresses the issue, the company has not yet seriously considered a

change.” Id. For purposes of this rule, senior management consists of those with

responsibility over company benefits who ultimately will make recommendations to the

Board. Id.
2Although we refer to Sun Company, we have considered all the activities of both

Sun Company and Sun R & M in determining when serious consideration began.

3The question of when “serious consideration” began is a mixed question of law

and fact. In reaching our determination in this case, we have not questioned the district

court’s factual findings, but instead reverse based on the application of the appropriate

legal standard to those findings.

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Applying these elements to this case, we conclude that Sun Company2

 did not

seriously consider a future ERISA offering until sometime after July 1, 1991.3

 In

examining the record, we find no intersection of the three Fischer II factors until late July

or early August, 1991. For example, it was on August 7, 1991, that Campbell, Knoll,

Anderman, Rutherford, Neuhausel, Coggins and Little all met to discuss a specific

voluntary termination proposal, and Campbell agreed to recommend the proposal to Sun

Company’s CEO. This meeting gathered together the heads of all departments related to

employee benefits, as well as the presidents of Sun R & M and Sun Company. While Sun

Company’s CEO made the ultimate decision regarding the VRTP, the August 7 meeting 

demonstrates the type of consideration envisioned by the Fischer II standard. While we

do not decide the precise date upon which serious consideration began in this case, we

note that nothing similar to the August 7 meeting occurred prior to July 1, the date on

which Hockett voluntarily terminated his employment with Sun R & M.

In arguing that serious consideration occurred prior to his June 25 conversation

with Rutherford, Hockett relies primarily on (1) the Little, Anderman, and Fuges

memoranda, (2) the May 24 meeting between Little, Knoll, and Coggins, and (3) the fact
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that Sun R & M had already publicly announced, on June 18, that a future downsizing

was planned, suggesting that company officials knew, at least by that time, that a change

in the retirement plan would be needed to accommodate the downsizing. Even assuming

that Sun Company’s senior management was relatively certain, prior to June 25, that an

early retirement plan would have to be offered soon, this does not mean that Sun

Company was yet seriously considering a plan. The May-June memoranda and meetings

do not support an inference that any specific proposal was being considered, at that time,

for purposes of implementation by senior management with the authority to implement

the change. Instead, the May and June activities are prime examples of preliminary

exploration and evaluation. Little’s May 24 memorandum provides the most general

comparison of voluntary and involuntary plans, and Fuges’ June 3 memorandum, far from

outlining a “sufficiently concrete” proposal, explicitly notes that “any new pension

enhancement/severance package would be developed in response to the business

decisions made over the next several months.” Notably, there is no evidence that any

fresh cost-analysis or actuarial work occurred until July. While cost-analysis or actuarial

work is not a necessary prerequisite to serious consideration, it is unlikely that a specific

proposal would be “sufficiently concrete” without some such information. See Fischer II,

96 F.3d at 1542 (“Serious consideration can only begin after information is gathered and

options developed.”).
4Having decided that serious consideration did not occur until after Hockett’s

conversations with Rutherford and Waitneight, we need not decide whether these men

actually qualified as fiduciaries under ERISA. And, since Hockett retired prior to serious

consideration, we do not address the open question of whether serious consideration

imposes upon plan fiduciaries a general duty to disclose. In Maez, we held only that

affirmative misrepresentations could constitute a breach of fiduciary duty--we expressly

did not decide whether a duty to disclose exists. 54 F.3d at 1501 n.6. Again, we reserve

that question. But see Muse, 103 F.3d at 494 (“Until a plan is adopted, there is no plan,

only the possibility of one. A fiduciary is therefore generally not required to disclose

changes in a benefit plan before it is adopted.”); Pocchia, 81 F.3d at 278-79 (adopting a

bright-line rule that fiduciaries need not voluntarily disclose changes in a benefit plan

until they are adopted).

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The parties dispute whether Little and Fuges were developing strategies at the

direction of senior management or as part of their self-initiated campaign to convince

senior management that a voluntary retirement plan was the best option. Ultimately, this

is unimportant. As previously mentioned, senior management may commission, and even

participate in, preliminary discussions or comparative studies without “automatically

triggering a duty of disclosure.” Fischer II, 96 F.3d at 1540. Before Sun Company’s

senior management could turn its attention to the practicalities of implementation, a

specific and developed proposal was needed. This was not available until after Hockett’s

retirement.

Because serious consideration did not occur until after July 1, neither Rutherford’s

nor Waitneight’s prior statements regarding the availability of a package could have

constituted a breach of fiduciary duty, and we reverse the portion of the district court

order finding such a breach.4
5Defendants have filed an unchallenged motion to file a supplemental appendix

with their cross-appellee’s brief. We grant the motion.

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B. Wrongful Denial of Plan Benefits

Having reversed the district court’s judgment on the breach of fiduciary duty

claim, we must determine whether the district court properly rejected Hockett’s claim that

Defendants wrongfully denied his request to participate in the VRTP.5

 On cross-appeal,

Hockett’s argument essentially follows a three-step path: (1) the VRTP was available to

“employees” who elected to terminate their employment between September 1 and

October 15, 1991; (2) the SCIRP defines “employee” in the same way as the commonlaw; and (3) Hockett was Sun R & M’s common-law employee from July 1 to October 31,

1991 (the period of the Professional Services Agreement). From these three premises,

Hockett concludes that he was eligible for the VRTP. We disagree.

We are doubtful that the VRTP, via the SCIRP, defines “employee” in a manner

identical to the common law, but we need not address that point. The district court found

that Hockett was an independent contractor, not an employee, during the term of the

Professional Services Agreement. The determination of whether an individual is an

employee for purposes of ERISA is a question of fact, reviewable under the clearly

erroneous standard. Roth v. American Hosp. Supply Corp., 965 F.2d 862, 865 (10th Cir.

1992). A finding is clearly erroneous only if it is without factual support in the record, or

if, in light of the entire record, the reviewing court is left with a definite and firm
6Typically, we would review a plan administrator’s decision regarding eligibility

under either the arbitrary and capricious or de novo standard, depending upon whether the

plan gives the plan administrator discretion in making such determinations. See

Trombetta v. Cragin Fed. Bank for Sav. Employee Stock Ownership Plan, 102 F.3d 1435,

1437 (7th Cir. 1996). The parties sharply dispute, however, whether Neil Horgan was the

plan administrator, and whether Horgan ever made any real determination regarding

Hockett’s eligibility. The district court made findings of fact and law independent of

Horgan’s determination. We have reviewed those findings without deference to any

determination Horgan made. Even under this standard of review, which is most favorable

to Hockett, we affirm the district court.

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conviction that a mistake has been made. Cowles v. Dow Keith Oil & Gas, Inc., 752 F.2d

508, 511 (10th Cir. 1985). Under this standard, we uphold “any district court

determination that falls within a broad range of permissible conclusions.” Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 400 (1990).6

In determining whether a hired party is an employee under the general common

law of agency, courts evaluate all factors relevant to the hiring party’s right to control the

manner and means by which the product is accomplished. Roth, 965 F.2d at 866. These

factors include:

(a) the skill required in the particular occupation;

(b) the source of the instrumentalities and tools for the person doing the 

work;

(c) the location of the work;

(d) the duration of the work relationship;

(e) the hiring party's right to assign additional projects to the hired party;
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(f) the hired party's discretion over when and how long to work;

(g) the method of payment, whether by the time or by the job;

(h) the hired party's role in hiring and paying assistants;

(I) whether the work is a part of the regular business of the hiring party;

(j) whether the hiring party is or is not in business;

(k) the provision of employee benefits;

(l) the tax treatment of the hired party.

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992). “A court may also

consider the intent of the parties and their beliefs as to whether they have created the

relation of employer and employee. Roth, 965 F.2d at 866. No single factor is

dispositive. Darden, 503 U.S. at 324.

The district court’s determination was not clearly erroneous. At trial, Hockett

repeatedly testified that he intentionally terminated his employment with Sun R & M by

retiring on July 1, 1991. The Professional Services Agreement Hockett subsequently

executed explicitly provided that he was an independent contractor, not Sun R & M’s

employee. Hockett understood the consulting arrangement would last for only a short

duration. Following July 1, Sun R & M did not withhold taxes from Hockett’s income ,

and Hockett actually drew retirement benefits, an act generally inconsistent with

continuing employment. Although the Professional Services Agreement granted Sun R &

M the right to make “changes, additions and/or deletions” to Hockett’s work, such
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changes had to be acceptable to Hockett. Appellee’s App. Vol. V. at 1786. Furthermore,

the management work Hockett performed was the type of skilled work suitable to a

consulting arrangement. These factors support the district court’s finding that Hockett

was not Sun R & M’s employee following July 1, 1991.

Admittedly, other factors cut in favor of Hockett. Sun R & M provided Hockett’s

work space, and paid Hockett by the hour. The work he performed was part of Sun R &

M’s regular business. The district court could fairly conclude, however, that these factors

were of less importance in light of Hockett’s deliberate decision to change his status at

Sun R & M. See Roth, 965 F.2d at 867 (noting that an individual’s “deliberate and

calculated choice” to not be an employee can reduce the relevance of many Darden

factors). In short, the district court decision was within “the range of permissible

conclusions,” and we will not upset it on appeal. Because Hockett was not Sun R & M’s

common-law employee during the availability of the VRTP, his argument fails by its own

terms.

CONCLUSION

We GRANT Defendants’ motion to file a supplemental appendix. We REVERSE

the portion of the district court order finding Defendants liable for a breach of fiduciary

duty. We AFFIRM the denial of Hockett’s claim for participation in the VRTP.