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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 06-20632

______________________

HALLIBURTON COMPANY BENEFITS COMMITTEE, In Its Capacity as Plan

Administrator of the Halliburton Energy Services, Inc. Welfare

Benefits Plan, including its constituent benefit program, the

Dresser Retiree Life and Medical Program; HALLIBURTON CO;

HALLIBURTON ENERGY SERVICES INCORPORATED WELFARE BENEFITS PLAN

Plaintiffs - Appellants

v.

JAMES GRAVES; PHIL GRIFFIN; PAUL M BRYANT, individually and as

representatives of a requested class of all similarly situated

persons

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas, Houston

No. 4:04-CV-280

ON PETITION FOR REHEARING EN BANC

(Opinion 8/30/06, 5th Cir., Halliburton Co. Benefits Comm. v.

Graves, 463 F.3d 360)

Before KING, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is DENIED. 

No member of the panel nor judge in regular active service of the

court having requested that the court be polled on Rehearing En

United States Court of Appeals

Fifth Circuit

F I L E D

February 13, 2007

Charles R. Fulbruge III

Clerk
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Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for

Rehearing En Banc is DENIED.

Having carefully considered the petition for rehearing, we

clarify that this decision results from and is limited to the

specific language used in the corporate documents involved in the

Halliburton-Dresser merger. For the reasons stated in the panel

opinion, this court held that section 7.09(g)(i) of the merger

agreement amended the Dresser retiree medical plan to obligate

Halliburton and Dresser to maintain the Dresser retiree medical

plan for eligible participants “except to the extent that any

modifications thereto are consistent with changes in the medical

plans provided by [Halliburton] for similarly situated active

employees.” This is not a case, for example, in which an

acquiring company limited a benefit continuation covenant to a

specified time period or included an express statement that the

merger agreement was not intended to modify or amend any

particular plan. We express no view on whether such language

would successfully limit the application of ERISA or a plan

participant’s right to sue.

Similarly, this is not a case that involved a provision

seeking to vest plan benefits. Because section 7.09(g)(i)

conditions the rights of the participants under the Dresser

retiree medical plan on Halliburton’s maintenance of benefits for

similarly situated active employees, it gives the plan sponsor

the ability to amend or terminate the plan, consistent with the
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condition. Should the provision simply have stated that the plan

would be “maintained,” without any exception allowing the plan

sponsor to amend or terminate the plan, the vesting analysis in

our decision might be different. Relatedly, we express no view

on how the other plans mentioned in section 7.09(g) of the merger

agreement would fare under our analysis, as those provisions of

the merger agreement and the complete records for those

provisions, plans, and any related agreements are not before us.