UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

No. 05-1168

 

E. THOMAS BYRD, JR.,

Plaintiff - Appellant,

versus

CANADIAN IMPERIAL BANK OF COMMERCE; CIBC WORLD

MARKETS,

Defendants - Appellees.

 

Appeal from the United States District Court for the District of

South Carolina, at Charleston. Patrick Michael Duffy, District

Judge. (CA-04-783-23-2)

 

Argued: October 26, 2005 Decided: December 9, 2005

 

Before WIDENER, MOTZ, and DUNCAN, Circuit Judges.

 

Affirmed by unpublished per curiam opinion.

 

ARGUED: Stanley Eugene Barnett, SMITH, BUNDY, BYBEE & BARNETT,

P.C., Mount Pleasant, South Carolina, for Appellant. Amy Yager

Jenkins, NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Charleston,

South Carolina, for Appellees. ON BRIEF: W. H. Bundy, Jr., SMITH,

BUNDY, BYBEE & BARNETT, P.C., Mount Pleasant, South Carolina, for

Appellant. Stephanie E. Lewis, NELSON, MULLINS, RILEY &

SCARBOROUGH, L.L.P., Charleston, South Carolina, for Appellees. 

 

Unpublished opinions are not binding precedent in this circuit. 

See Local Rule 36(c).
1

Byrd’s amended complaint originally alleged eight counts,

including breach of contract, fraud, estoppel, breach of fiduciary

duty, refusal to provide information, and wrongful denial of

benefits. Only the wrongful denial claim remains at issue on

appeal.

2

PER CURIAM:

Thomas Byrd, who prior to becoming disabled, participated in

his employer’s deferred compensation plan, brings this action under

the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A.

§ 1001 (West 1999). Byrd contends that his employer wrongfully

denied him a benefit guaranteed by that plan.1 The district court

disagreed, entering summary judgment on behalf of Byrd’s employer.

Finding no error, we affirm.

I.

In March 1999 Canadian Imperial Bank of Commerce (“CIBC”)

recruited Byrd, a securities broker then employed at Prudential

Securities, to become an Executive Director in the Private Client

Division of CIBC Oppenheimer Corp. The employment offer provided

that Byrd would receive a 40% commission payout for the first 12

months of his employment (with normal commission rates thereafter),

an additional bonus if the assets under his management reached $76

million during his first 12 months of employment, and --

importantly for this case -- an “up-front loan of 50% of [his]

proven trailing-12 months commissions in the form of a five year

forgivable loan.” This employee forgivable loan totaled $664,000,
3

and would be forgiven in five equal increments of $132,800 per

year.

On November 16, 2000, CIBC informed Byrd that he was eligible

to participate in the Company’s Wealth Plus Plan (“WPP” or “the

Plan”), a “long-term wealth” accumulation plan that allowed account

executives to earn deferred compensation based on their

“performance and business-building.” Each participating executive

possessed a WPP account. CIBC credited funds to that account over

time if the employee met certain performance targets. The funds

vested according to specific rules set out in the WPP, but

employees were generally not able to withdraw those funds until

they had retired, were terminated, or had experienced severe

financial hardship. 

One of the WPP credits CIBC provided -- the credit central to

this case -- was the “Firm Initial Credit.” That credit rewarded

an employee by depositing “an amount equal to 20%” of the

employee’s annual compensation into his account. If an employee

received a “Special Payout Arrangement,” however, the Plan provided

that CIBC would not award this Firm Initial Credit until the

“expiration” of the “Special Payout Arrangement.” The WPP defined

a Special Payout Arrangement as “any individual [Account Executive]

payout arrangement specifically negotiated by said individual that

provides a payout in excess of the Firm’s Standard Commission

Payout Policy.” 
2Byrd suffers from a degenerating eye disease. CIBC’s long

term disability insurance carrier confirmed his disability on

December 5, 2002.

4

At issue in this case is whether Byrd’s employee forgivable

loan constituted a “Special Payout Arrangement” that disqualified

him, under the terms of the WPP, from receiving the Firm Initial

Credit. Byrd, whose rights under the WPP have fully vested now

that he has become disabled,2 asserts that the employee forgivable

loan did not disqualify him from receiving the Firm Initial Credit.

Byrd contends that the word “payout” in the Plan refers only to

commissions, and hence does not extend to the forgivable loan,

which he maintains was more in the nature of a signing bonus.

Hence, he contends that he is entitled to the Firm Initial Credit

under the WPP’s plain language. 

CIBC counters that the WPP’s plain language supports its view

because “[r]eferences to ‘any’ payout . . . clearly could be

construed to include the $664,000 EFL [employee forgivable loan]

given to Byrd at the time of hire.” CIBC also notes that it has

consistently interpreted the WPP to deny the Firm Initial Credit to

employees with outstanding forgivable loans; the first letter

notifying Byrd of his eligibility to participate in the WPP

informed him, “[a]s a result of having an up-front forgivable loan,

the initial firm contribution is not credited to your account

balance until the loan has expired.” 
5

II.

The district court began its analysis by noting that it is

undisputed that the WPP is an ERISA plan within the meaning of 29

U.S.C. § 1002(1)(A). The court then recognized that the WPP gave

CIBC’s WPP Committee, as the plan administrator, discretionary

authority to interpret the WPP. In light of this discretion, the

court noted that it could review the administrator’s interpretation

of the plan only for abuse of discretion, see Ellis v. Metropolitan

Life Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997), and it found no

abuse of discretion in the administrator’s decision here.

Alternatively, the district court held that even if it “were to

employ a de novo standard of review,” it would reach the same

conclusion, i.e., grant summary judgment to CIBC. 

The court explained that the Plan language was “broad” and it

“could think of no plausible reason why a forgivable loan issued to

[Byrd] that was clearly in excess of his standard commission would

not fall within” the Plan’s definition of a Special Payout

Arrangement. The court concluded that Byrd’s contrary

interpretation of the Plan “forces a strained reading of the

special payout provision, particularly given the evidence that

within the brokerage community, the term ‘special payout

arrangement’ commonly includes forgivable loans.” Byrd now

appeals.
6

III.

We review the grant of summary judgment de novo, “employing

the same legal standards applied by the district court.” Elliott

v. Sara Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999). After

careful review of the record, the parties’ briefs and oral

arguments, and the relevant case law, we affirm on the reasoning of

the district court. Like the district court, we find CIBC’s

interpretation of the plan correct, no matter what standard of

review is applied. We agree that the Plan’s language unambiguously

excludes recipients of employee forgivable loans from eligibility

for receipt of the Firm Initial Credit; there is no reason not to

construe the up-front cash payment to Byrd as anything other than

a “payout in excess of” the standard commission policy. Under the

plain language of the Plan the employee forgivable loan therefore

disqualified Byrd from receiving the Firm Initial Credit.

For these reasons, the judgment of the district court is

AFFIRMED.