Jim Miller v. Eric Olsen, an individual, president of the Board of Directors of Euterpe, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIM MILLER,
Plaintiff-Appellant,
v.
ERIC OLSEN, an individual, president of
the Board of Directors of Euterpe, Inc., and
administrator of the Euterpe, Inc. Emplyee
Equity Growth Plan; et al.,
Defendants-Appellees.
No. 16-35717
D.C. No. 3:15-cv-00571-AC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted May 18, 2018
Portland, Oregon
Before: McKEOWN and PAEZ, Circuit Judges, and LASNIK,** District Judge.
Plaintiff Jim Miller appeals the district court’s order granting defendants’
motion for summary judgment on Miller’s Employment Retirement Income
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
MAY 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Security Act (“ERISA”) claims, on the basis that the Euterpe Employee Equity
Growth Plan (“EGP”) was not a defined contribution plan subject to ERISA. 29
U.S.C. § 1011-1461. We have jurisdiction under 28 U.S.C. § 1291, and we affirm
the district court.
We recently explained that whether or not the primary purpose of a plan is to
provide deferred compensation or retirement income is the “paramount
consideration” in determining whether a compensation plan qualifies as an
employee pension benefit plan under ERISA. See Rich v. Shrader, 823 F.3d 1205,
1210 (9th Cir. 2016); see also 29 C.F.R. § 2510.3-2(c) (exempting “bonus
payments” from the definition of a “pension plan” “unless such payments are
systematically deferred to the termination of covered employment or beyond, or so
as to provide retirement income to employees”).
The “primary purpose” of the EGP is not to provide retirement benefits or
deferred income, but rather to encourage longevity and provide increased
compensation to select Euterpe employees. Although the EGP provided
participants with shares that vested over twenty years, participants were allowed to
“retire” their shares prior to completing twenty years of service and prior to
retirement. Cf. Rich, 823 F.3d at 1208 (stating that an expectation that participants
hold their shares until leaving the firm did not mean that the primary purpose of the
plan was to provide retirement benefits or deferred income); see also id. at 1211

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(finding that a vesting schedule in the plan reinforces the conclusion that the plan
is not subject to ERISA). Given the option to retire shares early under the EGP,
there is no “systematic deferral” of redemption until retirement or termination. Id.
at 1210. Additionally, the selection of employees to participate in the EGP was at
the sole discretion of the Board of Directors of Euterpe, which further
demonstrates that the primary purpose of the EGP was not to provide retirement or
deferred income. Id.
Defendants argue that we could also affirm the district court on the basis that
the EGP lacks a source of financing and that it does not have an ongoing
administrative scheme. As the EGP fails the primary purpose test, we need not
reach either of these issues. Id. Additionally, Miller argues that the “surrounding
circumstances” test adopted in Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.
1982), applies, while defendants argue against applying that test. We need not
resolve whether to apply the test, as even considering all the surrounding
circumstances, a “reasonable person” could not conclude that the EGP passed the
“primary purpose” test. Id. at 1373.
AFFIRMED.

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