Senn Moses v. THE NIELSEN COMPANY, INC., a Corporation Erroneously Sued As The Nielsen Company…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SENN MOSES,
Plaintiff - Appellant,
v.
THE NIELSEN COMPANY, INC., a
Corporation Erroneously Sued As The
Nielsen Company (US), Inc., FKA VNU,
Inc.; ADMINISTRATIVE COMMITTEE
OF THE NIELSEN COMPANY (US),
INC. CAREER TRANSITION PLAN,
Defendants - Appellees.
No. 08-56897
D.C. No. 2:07-cv-04137-ODW-SS
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted March 4, 2010
Pasadena, California
FILED
APR 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable John R. Tunheim, United States District Judge for the**
District of Minnesota, sitting by designation.
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Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge, and
TUNHEIM, District Judge.**
Senn Moses (“Moses”) appeals the district court’s denial of his motion to
remand this case to state court. The district court determined that Moses’s state
law claims were preempted by the Employment Retirement Income Security Act
(“ERISA”). Moses also appeals the district court’s grant of summary judgment to
The Nielsen Company (“Nielsen”). We affirm both decisions of the district court.
For his arguments against preemption and in favor of remand, Moses relies
heavily on Graham v. Balcor Co., 146 F.3d 1052 (9th Cir. 1998). In Graham,
neither party disputed that the agreement giving rise to Graham’s claims was made
outside of the context of any ERISA plan, although such a plan was the subject of
the agreement. Here, Nielsen argues that the agreement giving rise to Moses’s
claims is part of its Career Transition Plan (“Plan”), which is governed by ERISA.
Moses counters that his agreement with Nielsen is separate from the Plan, like the
agreement in Graham. In order to decide the merits of Moses’s claims, a court will
have to interpret Plan language. For example, a crucial disclaimer is found on a
form document used in Plan administration, and the disclaimer’s language
explicitly references the Plan’s terms and summary description. Because it would

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be impossible to decide this case without interpreting Plan language, this case
relates to an employee benefit plan as required for ERISA preemption. See 29
U.S.C. § 1144(a); Providence Health Plan v. McDowell, 385 F.3d 1168, 1172 (9th
Cir. 2004).
As to summary judgment, we agree with the district court. Nielsen’s
Committee did not abuse its discretion as Plan administrator. The summary Moses
received concerning his severance pay clearly indicated that the amount of pay was
subject to the terms and conditions of the Plan. The Plan provided for a maximum
benefit equal to the employee’s annual salary. Only Nielsen’s CEO had the
authority to grant greater benefits, and no evidence in the record indicates that he
did so or that Moses believed he had done so. Correcting the amount of severance
specified in the summary Moses received, by reducing it to the amount specified in
the Plan, was not an abuse of discretion. Moses was on notice of the correct
amount from the outset and only eight days had passed before the correction was
made.
For the foregoing reasons, we AFFIRM the district court’s denial of the
motion to remand and its grant of summary judgment to Nielsen.

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