Robert Olszewski, individual; v. SYMYX TECHNOLOGIES INC. and ELSEVIER, INC., corporations

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NOT FOR PUBLICATION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
ROBERT OLSZEWSKI, individual; et al.,
Plaintiffs - Appellants,
v.
SYMYX TECHNOLOGIES INC. and
ELSEVIER, INC., corporations,
Defendants - Appellees.
No. 09-17489
D.C. No. 5:08-cv-03657-HRL
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Robert Olszewski and plaintiffs (“Olszewski plaintiffs”) appeal the district
court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of their
claims for severance benefits under ERISA. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
FILED
JAN 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
The Olszewski plaintiffs were longtime employees of MDL Information
Systems, Inc. (“MDL”), a subsidiary of Elsevier, Inc. (“Elsevier”). As MDL
employees, they were eligible for severance benefits from Elsevier as provided in
Elsevier’s “U.S. Policies Handbook.” The Elsevier employee welfare benefit plan
(“Elsevier Plan”) contained a discretionary set of guidelines for the award of
severance benefits and conferred discretion on Elsevier to rescind or change its
policies and procedures at its absolute discretion. In 2007, Elsevier entered an
agreement to sell MDL to Symyx Technologies (“Symyx”). At the close of the
sale, all Elsevier employees would cease benefit coverage under the Elsevier Plan
and would commence eligibility under Symyx’s employee welfare benefit plan
(“Symyx Plan”). The severance benefits under the Symyx Plan were less generous
than those under the Elsevier Plan. Symyx terminated the Olszewski plaintiffs
shortly after the corporate sale.
The Olszewski plaintiffs brought suit against Elsevier under ERISA §
502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] for severance benefits under the Elsevier
Plan. They also brought a claim against Elsevier and Symyx under ERISA § 510
[29 U.S.C. § 1140] for interference with protected rights, claiming that Elsevier
and Symyx conspired to deprive the Olszewski plaintiffs of their severance
benefits under the Elsevier Plan.

-- 2 of 4 --

3
We review the district court’s dismissal for failure to state a claim de novo,
taking all allegations of material fact as true and construing them in the light most
favorable to plaintiffs. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001). We may affirm on any grounds supported by the record. Tahoe-Sierra
Pres. Council v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1076-77 (9th Cir.
2003).
The district court did not err in its dismissal of the Olszewski plaintiffs’
claim under ERISA § 502(a)(1)(B) against Elsevier. The severance benefit policy
at issue in the Elsevier Plan was entirely discretionary and allowed the employer to
grant severance benefits on a case-by-case basis or to modify or rescind the policy
entirely, at any time, for whatever reason, without the consent of or prior notice to
employees. Pursuant to the corporate sale agreement (contained in the pleadings),
severance benefits under the Elsevier Plan were adopted and modified on the date
of the corporate sale to Symyx. Given Elsevier’s absolute discretion, the
concurrent adoption and modification of the severance benefits in the course of the
sale was not improper. While such events certainly do not inure to the benefit of
the Olszewski plaintiffs, it does not fall outside of Elsevier’s discretion to amend
its own employee welfare benefits. In short, the Elsevier Plan severance benefits
to which the Olszewski plaintiffs claim entitlement are simply no longer available,

-- 3 of 4 --

4
having been modified in the course of the corporate sale. See Curtiss-Wright Corp.
v. Schoonejongen, 514 U.S. 73, 78 (1995) (no cognizable claim arose against
company with freedom to adopt, modify, or terminate its welfare benefits plan for
any reason and at any time for amending its plan to deprive employees of post-
retirement health care coverage unless it did so in an impermissible manner).
Moreover, with respect to the modified severance benefits under the Symyx Plan,
the Olszewski plaintiffs do not allege that Symyx has refused payment. Thus, they
have not alleged the loss of any benefit to which they are entitled and do not allege
a cognizable claim under ERISA § 502(a)(1)(B).
The Olszewski plaintiffs’ second claim under ERISA § 510 for interference
with protected rights also fails. As discussed above, the Olszewski plaintiffs have
not averred any protected right to severance benefits under the Elsevier Plan;
therefore, any claim of interference with that right necessarily fails.
AFFIRMED.

-- 4 of 4 --