Denial of benefits claim under the Employee Retirement Income Security Act (ERISA); 29 USC § 1132(a)(1)(B); Termination of employment “for cause”; Discovery; Applicability of the attorney-client privilege; Whether the “fiduciary exception” applied; United States v Jicarilla Apache Nation; Whether the Executive Severance Plan was an executive deferred-compensation plan (a “top hat” plan); Whether plaintiff was entitled to a jury trial; Whether CIGNA Corp v Amara & Montanile v. Board of Trs of Nat’l Elevator Indus Health Benefit Plan implicated the right to a jury trial; Whether the denial of benefits was arbitrary & capricious; American Electric Power Service Corporation (AEP)

The court held that plaintiff-Kramer was not entitled to benefits under defendant-American Electric Power Executive Severance Plan where the Plan’s conclusion that he was terminated for “cause” was not arbitrary and capricious. Kramer was previously employed by defendant-AEP. He sought to recover benefits under AEP's Executive Severance Plan, which provides a severance payment based on an employee’s base salary and performance for “‘an Involuntary Termination or a Good Reason Resignation.’” AEP terminated his employment after investigating him for allegedly approving an employee’s improper personal expenses and for “wiping” his company cell phone during the investigation. His claim for benefits under the Plan was denied on the basis his termination was for “cause.” The Plan’s appeal committee upheld that decision. He sued AEP and the Plan under ERISA for a denial of benefits. His jury demand was stricken. He then moved to conduct discovery, arguing that the Supreme Court had abrogated the Sixth Circuit’s precedent providing that discovery in ERISA denial-of-benefits actions is limited to procedural clams. Although the magistrate judge granted some discovery, plaintiff unsuccessfully requested additional discovery. Applying the arbitrary-and-capricious standard of review, the district court concluded the record supported a finding that he was terminated for cause and granted defendants judgment. On appeal, plaintiff relied on the fiduciary exception in challenging defendants’ assertion of the attorney-client privilege as to documents he sought in discovery. The court noted that the fiduciary exception did “not apply to the Plan if the Plan is an executive deferred-compensation plan, commonly referred to as a top-hat plan.” Further, the Plan was “a top-hat plan if AEP maintained it to pay compensation to participants, like Kramer, in the future. The plain language of the Plan shows that AEP maintained it to provide deferred compensation.” Because the Plan qualified “as a top-hat plan, the fiduciary exception to the attorney-client privilege does not apply. As a result, the district court did not abuse its discretion in denying Kramer’s motion to compel AEP and the Plan to produce privileged documents.” The court also held that the district court correctly ruled that plaintiff was not entitled to a jury trial under the Seventh Amendment, finding the cases he cited, CIGNA and Montanile, were inapplicable. Lastly, the court held that the district court properly granted defendants judgment on the merits because the denial of benefits was not arbitrary or capricious. Affirmed.