We affirmed in part, reversed in part, vacated in part and remanded. Steiner Corp. Retirement Plan v. Johnson Higgins, 31 F.3d 935 (10th Cir. 1994), cert. denied, 115 S. Ct. 732 (1995). In so doing we directed that the merits of defendant Johnson Higgins' defenses of laches and contributory negligence, inter alia, be considered on remand because the district court's opinion before us then was silent as to these issues and they involved factual determinations that we were unwilling or unable to make.

Steiner appealed, apparently "accept[ing] as true the factual findings of the district court." Steiner Corp. Retirement Plan v. Johnson and Higgins, 31 F.3d 935, 936 (10th Cir. 1994), cert. denied, 513 U.S. 1081 (1995) ("Steiner I"). The Tenth Circuit reversed this court's determination that Steiner could not have amended its lump sum actuarial equivalency factors retroactively, even if the amendment had been accomplished prior to October 31, 1985, the deadline for making plan amendments under ERISA. In this regard, the Steiner I court held that "the district court erred when it held that the Layered Formula could not be amended to reduce the lump sum optional benefit at the time [Steiner] adopted the 1985 Plan."

A lump sum payment however — the benefit at issue in Clark's anti-cutback allegation — "is not an accrued benefit as that term is defined in 29 U.S.C. § 1002(23)." Steiner Corp. Ret. Plan v. Johnson Higgins of Cal., 31 F.3d 935, 939 (10th Cir. 1994). Instead, a lump sum payment is considered an optional form of benefit under ERISA.

The phrase "retirement-type subsidy," though employed in the anti-cutback provision, is not otherwise defined in ERISA. In Steiner Corp. Retirement Plan v. Johnson Higgins of Cat, 31 F.3d 935 (10th Cir. 1994), this court concluded, after examining the legislative history of ERISA, that the term "subsidy," as employed in the phrase "retirement-type subsidy," refers to a benefit that "`continu[es] after retirement,'" and thus does not include a lump sump payment payable in full to an employee upon retirement. Id. at 940 (quoting S.Rep. No. 575, 98th Cong., 2d Sess. 30, reprinted in 1984 U.S.C.C.A.N. 2547, 2576).

We are not persuaded that employees subject to mandatory lump sum plans enjoy no statutory protection from cut-backs in their benefits. See Steiner Corp. Retirement Plan v. Johnson Higgins, 31 F.3d 935, 939 (10th Cir. 1994).See Steiner, 31 F.3d at 936, 940.

And the Court found that "a lump sum benefit is an optional form of benefit." Steiner Corp. Ret. Plan v. Johnson Higgins of Cal., 31 F.3d 935, 939 (10th Cir. 1994); see also Wetzler v. Ill. CPA Soc. Found. Ret. Income Plan, 586 F.3d 1053, 1059 (7th Cir. 2009) ("A plan participant's ability to take a lump-sum distribution of benefits is an `optional form of benefit' as defined by the anti-cutback provision of ERISA.").

Employer brought professional malpractice action against actuarial firm which handled aspects of employer's retirement plan. Judgment for firm on employer's malpractice claim was affirmed in part, reversed in part and remanded, 31 F.3d 935. Upon remand, the District Court again entered judgment for firm, and employer appealed.

To be sure, there is some question as to whether ERISA protects the right to a lump sum benefit calculated at a specific rate against a plan amendment changing that rate. See Steiner Corporation Retirement Plan v. Johnson Higgins of California, 31 F.3d 935, 939-940 (10th Cir. 1994). Nevertheless, it is the case that an employer is contractually bound to honor the terms of a plan until it is amended, and that amendments must be in writing to be effective.

C.A. 10th Cir. Certiorari denied. Reported below: 31 F. 3d 935.

We review the district court's findings of fact for clear error and its conclusions of law de novo. Steiner Corp. Retirement Plan v. Johnson Higgins, 31 F.3d 935, 939 (10th Cir. 1994), cert. denied 513 U.S. 1081 (1995). COBRA requires that employers allow former employees the opportunity to continue health care coverage under the employer's plan (at their own expense, not to exceed 102 percent of the employer's cost) if a qualifying event occurs.