In this case presenting claims under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. (1985), defendants appeal the district court's grant of summary judgment in favor of the plaintiff employees' entitlement to certain severance and pension benefits. The employees cross-appeal, asserting as error the summary judgment against them on their claims to severance benefits as to one of the named defendants and the dismissal of their state law claims as preempted by ERISA, and seeking an award of their costs and attorney's fees incurred in pursuing this appeal. Although we agree with the district court's ultimate disposition of the case, our reasoning is different.

Plaintiffs Jan C. Harms, Robert E. Heinz, Sue C. Magee, Timothy H. Rush, James T. Quitta, and Eddie Welch (the "beneficiaries") are former employees of Crown Zellerbach ("CZ") and Cavenham Forest Industries, Inc. ("CFI"). Attempting to fend off a hostile takeover bid, CZ developed for its employees--who controlled the largest bloc of outstanding CZ stock--an enhanced severance of employment program known as the CZ Change of Control/Restructuring Severance Program, which is an addition to the CZ Salaried Employees Involuntary Separation Salary Continuation Plan ("Continuation Plan") and constitutes part III of that plan. Also at this time, CZ added benefits to its separate Retirement Plan by means of a document entitled "Supplement C." The effective date of both additions was April 1, 1985; the beneficiaries were employed by CZ as of that date. Employees became eligible for these additional benefits only in the event of a "change in control" of CZ.

In July 1985, the anticipated change of control took place, and CZ's various operations were split up, sold off, or taken over by other companies. CZ's Timber and Wood Products operation was acquired by CFI, which extended employment to the beneficiaries on May 5, 1986. By an Employee Benefits Agreement ("EBA") dated March 28, 1986, CZ previously had relinquished, and CFI had assumed, liability for benefits relating to CZ personnel who were shortly to be transferred to CFI. On May 6, 1986, immediately after the sale of the business to CFI and the transfer to it of CZ's former employees, CZ amended its Retirement Plan to eliminate Supplement C.

Within one year's time, each of the beneficiaries was involuntarily separated from CFI and received benefits pursuant to the CFI severance plan. Collectively, the beneficiaries already have received a total of $334,457.75 from CFI in lump-sum payments equivalent to the Paid Terminal Leave owed to them under the original CZ Involuntary Separation Program. The parties agree that the beneficiaries also are entitled to vested and accrued retirement benefits under the CFI Retirement Plan, to which, according to CZ and CFI, CZ's pension obligations were transferred.

Our dispute centers on the beneficiaries' contention that benefits are also owing to them under the CZ Severance Program and Supplement C and that these claims were wrongly denied. On October 26, 1988, the district court granted CFI's motion for partial summary judgment, concluding that the enhanced severance and Supplement C benefits properly were classified as employee welfare benefits, not pension benefits, and therefore were not subject to ERISA's vesting, accrual, and nonforfeitability provisions. As such, CFI's modification of its employee severance plan to exclude both these benefits did not violate ERISA.

By Memorandum and Order dated December 16, 1991, the district court again granted partial summary judgment, this time in favor of the beneficiaries, holding that they were entitled to both Paid Terminal Leave under the CZ Involuntary Separation Plan and Supplement C benefits under the CZ Retirement Plan. The court's ruling was leavened, however, by its grant of partial summary judgment to CFI, to the effect that the beneficiaries could not collect the full amount of benefits owing under both the CZ and the CFI plans. While CZ legitimately could transfer its severance obligation to CFI, so long as it did not cancel or modify benefits, the court apparently reasoned, the beneficiaries were not entitled to a double-recovery windfall by way of collecting severance payments from both plans for their combined term of service with CZ/CFI.

On appeal of a district court's grant of summary judgment, we review de novo the court's application of the law to the evidence adduced before it. Samaad v. City of Dallas, 940 F.2d 925, 937 (5th Cir.1991). In cases involving the interpretation of an ERISA-covered plan, we likewise construe the terms of the plan de novo, "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 956, 103 L. Ed. 2d 80 (1989). The parties agree that the instant plans contain no language according any such authority to the plan fiduciaries.

Accordingly, we must look to the plan language as a guide to our de novo interpretation, buttressed only by admissible evidence as to the settlor's intent where the plan terms are ambiguous. Id. at 112, 109 S.Ct. at 954 (quoting RESTATEMENT (SECOND) OF TRUSTS § 4 cmt. d (1959)). We must defer, however, to the plan fiduciary's factual determinations made in the course of determining benefits eligibility, unless those determinations reflect an abuse of discretion. Pierre v. Connecticut Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 453, 116 L. Ed. 2d 470 (1991).

The first issue we address concerns the district court's 1991 order granting partial summary judgment in favor of the beneficiaries on their Supplement C claim. CFI disputes the order, contending that the beneficiaries are not eligible to receive Supplement C benefits.

To be eligible for Paid Terminal Leave, an employee first had to meet the eligibility requirements set out in section III.A. of the CZ Salary Continuation Plan. See Intro. to Summary Plan Description. It is undisputed that sections III.A.5, III.B.4, and IV.D. of that plan apply to the beneficiaries, and CFI argues that the interpretation of these provisions governs the beneficiaries' eligibility for Supplement C benefits as well. The relevant paragraphs of the Plan's section III provide that

[a]ll active salaried employees of Crown Zellerbach and its U.S. subsidiaries as of April 1, 1985 who are Involuntarily Separated from Crown Zellerbach are eligible for Paid Terminal Leave under the Change of Control/Restructuring Program except:

....

5. Employees who, in connection with the sale of an operation, are offered employment with a successor employer which acquires an operation, shall not receive benefits except in the event that such employees are Involuntarily Separated by the successor employer within two years from the Change of Control or within one year from the sale or other disposition of the subsidiary or division, whichever period ends first, in which case the employee will be entitled to the Salary Continuation provided in this Section III.

....

....

4. A lump sum payment equivalent to Paid Terminal Leave provided above will be paid to an eligible employee who, after a Change of Control, accepts employment with a successor employer in connection with the sale of an operation and is Involuntarily Separated by the successor employer within two years of the Change of Control or within one year from the sale of the operation, whichever first occurs.

Pursuant to the above provisions, the beneficiaries received a lump sum payment equivalent to, and in lieu of, Paid Terminal Leave from the CFI Severance Program. CFI contends, however, that the excerpted provisions of the Severance Program unambiguously exclude Supplement C benefits from the range of benefits available to former CZ employees in the position of the beneficiaries. CFI points to the language in Supplement C, stating its purpose "to provide special benefits in lieu of Early Retirement Benefits and Vested Benefits to eligible Participants who are involuntarily separated under the Severance Program." Retirement Plan at C-1 (Supplement C). These special benefits set forth in Supplement C, CFI argues, are logically entailed by section III.A.5's reference to "benefits" that employees similarly situated to the beneficiaries "shall not receive"--the sole exception being the lump sum Salary Continuation benefit specified in section III.B.4. Accordingly, CFI urges, the beneficiaries are entitled to the lump sum payment but are precluded from receiving Supplement C benefits.

Our review of the various plan documents refutes CFI's interpretation. Supplement C was adopted as an amendment to the CZ Retirement Plan, not the Salary Continuation Plan. In addition to being appended physically to the Retirement Plan, Supplement C's purpose is to provide special benefits in lieu of certain retirement benefits.2 Although Supplement C benefits admittedly are limited to "eligible Participants who are involuntarily separated under the Severance Program," see Retirement Plan at C-1 (emphasis added), it is not the Severance Program that sets forth the eligibility requirements for Supplement C benefits; rather, Supplement C specifies its own criteria.3

CFI concedes that the beneficiaries meet the literal terms of these criteria. Given our conclusion that Supplement C is a part of the Retirement Plan, and not the Salary Continuation Plan, CFI's argument that the limitation of benefits contained in section III.A.5 of the Salary Continuation Plan/Severance Program includes Supplement C benefits does not survive analysis. The Paid Terminal Leave that the Severance Program accords employees involuntarily separated is neither textually nor logically exclusive of Supplement C's Special Early Retirement Benefit. We find that the plain language of the various plan documents supports the beneficiaries' eligibility to receive Supplement C benefits.

That conclusion, however, does not necessarily compel our finding that the beneficiaries are entitled to receive Supplement C benefits, inasmuch as CFI contends that CZ modified the Severance Program to eliminate Supplement C benefits on May 6, 1986. The district court rejected CFI's reliance upon that amendment because of the wording of section III.D. of the Salary Continuation Plan, which prohibits the cancellation or modification of Severance Program benefits following a change of control.4

In light of our conclusion above that Supplement C benefits are not to be deemed a part of the Severance Program for purposes of determining eligibility, we cannot agree with the district court that section III.D. bars the amending of Supplement C benefits after a change of control. Section III.D. does not incorporate Supplement C by reference; indeed, by its own terms its application is limited to "[t]he Change of Control/Restructuring Severance Program described above...." Supplement C, we reiterate, is appended to the Retirement Plan; it is not included in the Salary Continuation Plan of which section III.D. is a part. It would be an odd construction of the plans at issue in this case to deem Supplement C a part of the Severance Program for purposes of applying section III.D.'s non-cancellation provision, but not when applying section III.A.5's limitation of benefits.

Even though section III.D. thus poses no obstacle to CZ's post-change-of-control cancellation of Supplement C, that cancellation may yet have been barred by operation of section 204(g)(2) of ERISA, 29 U.S.C. § 1054(g)(2), which prohibits the elimination or reduction of retirement benefits that have already vested or accrued.5 If Supplement C contains the type of early retirement or retirement-type benefits protected by ERISA, then section 204(g) may prevent its cancellation, at least to the extent that Supplement C's benefits may be deemed to have accrued to the beneficiaries. Because the district court's October 26, 1988, summary judgment order held that Supplement C provided a welfare-type, and not a retirement-type, benefit, and therefore could not be protected by section 204(g), we must review the correctness of this determination before finally deciding whether the beneficiaries are entitled to receive Supplement C benefits.

In addition to its status as an amendment to the CZ Retirement Plan, Supplement C bills itself as a benefit "in lieu of Early Retirement Benefits and Vested Benefits." Retirement Plan at C-1. Moreover, its benefits are offered to discharged employees in lieu of their normal retirement benefits and are payable for life. In a case involving the application of the identical plans to a similar set of circumstances, an Oregon district court noted that "[t]he benefits provided to employees by Supplement C are essentially the same retirement benefits offered in the original Crown retirement plan, but are to be paid without applying a discount factor for early retirement." Wallace, 707 F. Supp. at 460.

Nonetheless, the district court in the instant case determined that Supplement C benefits were best viewed as contingent, unaccrued welfare benefits unprotected by section 204(g).6 Although acknowledging the retirement-like aspects of the Supplement C benefits, the court ultimately found as dispositive the fact that eligibility is contingent upon an employee's involuntary separation from CZ.7 Admitting the absence of caselaw directly on point, the court relied upon two cases in which arguably retirement-type benefits were deemed welfare-type severance benefits because conditioned upon the occurrence of a plant shutdown. See Ross v. Pension Plan for Hourly Employees of SKF Indus., 847 F.2d 329, 332-34 (6th Cir.1988); Flinchbaugh v. Chicago Pneumatic Tool Co., 531 F. Supp. 110, 114 (W.D.Pa.1982). Analogizing plant shutdowns to the hostile takeover and spin-off of operations at issue here, the court concluded that the caselaw supported its emphasis on the severance-based condition attached to the Supplement C benefits.

The cases relied upon by the district court are, we believe, distinguishable from the instant case. Flinchbaugh, for example, involved the interpretation of a plan that expressly granted broad discretion to the pension trustees to determine eligibility. Where an ERISA plan so provides, Firestone permits a reviewing court to sustain the plan administrator's or fiduciary's determination so long as it was not arbitrary or capricious. It is precisely that standard that the Flinchbaugh court applied in upholding the plan trustees' characterization of the plant shut-down benefits at issue there as a severance allowance. See Flinchbaugh, 531 F. Supp. at 113 ("If the actions of the trustees in determining pension eligibility are not arbitrary or capricious then we must confirm those actions.").

Ross presents a rather more persuasive case, inasmuch as the plan vested no discretion in the administrator, and the eligibility requirements for the benefits at issue closely resembled those set out in Supplement C. See Ross, 847 F.2d at 333 (describing plant shut-down benefit payable to participant with fifteen years' service and whose service ceases because of permanent plant shutdown, provided that he is at least fifty-five years old or his combined age and service equal or exceed eighty). Ross rejected the contention that such a benefit constitutes a retirement-type subsidy within the meaning of section 204(g).

The conclusion in Ross was predicated, however, upon the express statement in the legislative history of the 1984 amendment to section 204(g)(2) to the effect that "a plant shutdown benefit (that does not continue after retirement age) will not be considered a retirement-type subsidy." 847 F.2d at 334. The history additionally exempts qualified disability, medical, and death benefits, and social security supplements from the definition of "retirement-type subsidy," while stating as the general rule that "[t]he Committee intends that under these regulations, a subsidy that continues after retirement is generally to be considered a retirement-type subsidy." Id. at 333.

Significantly enough for the application of this general rule, Supplement C benefits--both the Special Early Retirement Benefit set out in section 4(a) and the Special Vested Benefit provided in section 4(b), see Retirement Plan at C-2--are payable for life. Moreover, these benefits are calculated similarly to retirement subsidies in general--by multiplying the participant's final average pay figure (the "Dollar Amount") by his years of service--and the age and service eligibility requirements (age fifty-five and minimum five years' service) are substantially the same. Compare Retirement Plan at 7 with id. at C-1.

Lastly, when one is calculating the Supplement C benefits, "a Participant's Period of Benefit Service shall not include any period during which the Participant receives Paid Terminal Leave." Retirement Plan at C-2, §§ 4(a), 4(b). This exclusion, from the calculation of Supplement C benefits of the period during which Paid Terminal Leave is provided pursuant to the Severance Program, confirms our conclusion that Supplement C does not duplicate severance obligations but is, in fact, a retirement-type subsidy protected by ERISA section 204(g). We are bolstered in this result by the identical conclusion reached in the only published opinion previously reviewing these plans. See Wallace, 707 F. Supp. at 460.

As noted above, section 204(g) prohibits the elimination or reduction of the Supplement C benefits by plan amendment "with respect to a participant who satisfies (either before or after the amendment ) the preamendment conditions for the subsidy." 29 U.S.C. § 1054(g)(2) (emphasis added). It is undisputed that the beneficiaries met the age and service requirements imposed by Supplement C at the time of their termination. The sole remaining eligibility requirement is that the beneficiaries incur an involuntary separation within the meaning of sections III.A.5 and III.B.4 of the Salary Continuation Plan.8

The beneficiaries eventually did fulfill this final requirement but, as CFI points out, not before CZ's May 6, 1986, amendment of its Plan to eliminate Supplement C benefits. Nevertheless, the beneficiaries have met all the preamendment conditions for Supplement C benefits; the fact that they have satisfied them only after the amendment is, as we read section 204(g), irrelevant. These were, in short, vested pension benefits that had accrued and could not be reduced or eliminated by subsequent plan amendment. Although we reach our conclusion based upon an analysis different from that employed by the district court, we agree with it that summary judgment in favor of the beneficiaries on this issue was proper.V.

We next consider whether the district court was correct in its December 16, 1991, summary judgment ruling that the beneficiaries were not entitled to severance benefits from Crown Zellerbach. It is undisputed that the beneficiaries were involuntarily separated by CFI within the period required under sections III.A.5. and III.B.4, that the Severance Program was intended to, and did, apply to employees in the beneficiaries' position, and that neither CZ nor the CZ Salary Continuation Plan has paid beneficiaries any severance benefits. The beneficiaries contend that they are entitled to Paid Terminal Leave from CZ in addition to that which they have received under CFI's separate severance plan and that the district court erred in holding otherwise.

CFI counters that it expressly assumed CZ's obligation in the 1986 Employee Benefits Agreement. Under the EBA, CFI assumes the liability for severance benefits payable to "CFI employees," which term includes beneficiaries. CFI states that it incorporated the CZ Paid Terminal Leave benefits into its severance plan and that, by paying beneficiaries pursuant to that plan, it satisfied CZ's obligation.9

Section III.D. of the CZ Severance Plan forbids attempted modifications or cancellations of benefits after a change of control has occurred. The beneficiaries rely upon this provision for the proposition that CFI's attempt to substitute its own plan for CZ's was impermissible. Although the EBA and CFI's severance program were created after the change of control, the district court dismissed the beneficiaries' argument on the grounds that CFI had merely sought to fulfill its obligations under the EBA and accordingly to compensate the beneficiaries for the benefits owed them by CZ by means of adopting its own plan, and that no redundant benefit had been intended.

The district court correctly resolved this issue. There is no provision in the CZ Plan prohibiting transfer of its obligation to pay severance benefits to another entity. Nor is any such transfer necessarily a modification of such benefits, so long as the CFI plan does not reduce the benefits already accrued to beneficiaries by virtue of their service to CZ.10 What the beneficiaries seek, as they forthrightly conceded at oral argument, is merely a double-recovery windfall--a result abhorred by ERISA. See, e.g., Lakey v. Remington Arms Co., 874 F.2d 541, 545 (8th Cir.1989) (citing cases).

In its March 11, 1988, Minute Entry, the district court dismissed, as preempted by ERISA, the beneficiaries' pendent state law claims of breach of fiduciary duty, breach of duty of good faith and fair dealing, and negligent and intentional misrepresentation of the terms and conditions of employment. ERISA section 514(a) provides that "the provisions of this subchapter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." 29 U.S.C. § 1144(a) (1985). Because the Supreme Court has declined to extend this broad language to its outermost contours, see Shaw v. Delta Air Lines, 463 U.S. 85, 97-99, 103 S. Ct. 2890, 2900-01, 77 L. Ed. 2d 490 (1983), we must ask "whether the state law affects relations among the principal ERISA entities." Sommers Drug Stores v. Corrigan Enters., 793 F.2d 1456, 1468 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S. Ct. 884, 93 L. Ed. 2d 837, 479 U.S. 1089, 107 S. Ct. 1298, 94 L. Ed. 2d 154 (1987).

ERISA's preemptive scope thus may be considerable. In Sommers, however, we found no preemption of a state law claim for breach of fiduciary duty where the facts that the corporate director was an ERISA plan fiduciary and that the shareholder was the ERISA plan were incidental and fortuitous circumstances entirely unrelated to the facts underlying the cause of action. See id. at 1470. The district court rejected the beneficiaries' attempt to come within Sommers, asserting that the denial of benefits under CZ's and CFI's severance and retirement plans, and the representations made as to the benefits available under the plans, constituted the essence of the beneficiaries' state law claims. The heart of these claims undeniably relates to the employee benefit plan and to relations among the principal ERISA entities. The district court did not err in holding that the beneficiaries' state law claims are preempted.

Lastly, the beneficiaries assert that they are entitled to an award of court costs and attorney's fees on their successful ERISA-based claims. Section 502(g) of ERISA provides that a court "in its discretion may allow a reasonable attorney's fee and costs...." 29 U.S.C. § 1132(g)(1). In deciding whether to award attorney's fees to a party under ERISA,

a court should consider such factors as the following: (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties' positions. No one of these factors is necessarily decisive, and some may not be apropos in a given case, but together they are the nuclei of concerns that a court should address in applying section 502(g).

Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir.1980) (footnotes and citations omitted).

Despite the beneficiaries' citation to cases from our sister circuits asserting that a presumption exists under ERISA in favor of awarding costs and attorney's fees, that is not the law of this circuit. In Bowen, cited to us in beneficiaries' petition for rehearing, we distinguished section 502(g) from analogous provisions in Title II of the Civil Rights Act of 1964 and section 718 of the Emergency School Aid Act of 1972, both of which contained similar discretionary fee provisions that the Supreme Court had interpreted and applied as mandatory where plaintiffs act as "private attorneys general." Instead, we concluded that "incentives in the form of attorneys' fees are, on the whole, less necessary to insure that the statute is enforced." 624 F.2d at 1265-66.

Applying Bowen's five factors to the case at hand, we are not persuaded that the beneficiaries have sought to benefit all participants and beneficiaries of the instant plan, but only themselves and those similarly situated to them, nor have the beneficiaries resolved a significant legal question regarding ERISA (factor 4).11 And while we have few doubts as to the abilities of the named defendants to pay an award (factor 2), we believe the absence of any culpability or bad faith on the defendants' part (factor 1), coupled with the closeness of the legal issues presented--with the concomitant near-equivalence of merit in the parties' positions that that implies (factor 5)--supports our conclusion that an award to the beneficiaries of their costs and attorney's fees incurred in pursuit of this appeal is unwarranted.12

We venture no opinion as to the propriety of an award by the district court, which determination the court expressly reserved, in its final judgment, until the completion of this appeal. Having presided over this case since its inception, and being necessarily familiar with the parties and their positions, the district court is well-positioned to know of any bad faith in the handling of this case, as to which we express no opinion.

AFFIRMED.

April 7, 1993.

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

The Petition for Rehearing is DENIED. Because the original panel opinion erroneously applied the Seventh Circuit standard to determine the appropriateness of an award of costs and attorney's fees to the beneficiaries,1 however, the decision is hereby amended to revise only the discussion of costs and attorney's fees to read as follows: