UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID WONG, in his capacity as No. 19-56289 Trustee of the Anaplex Corporation Employee Stock Ownership Plan, D.C. No. Plaintiff-Appellant, 2:18-cv-04468- SJO-AFM v. DANETTE K. FLYNN-KERPER, as OPINION Executor of the Estate of Bernard M. Kerper; DOES, 1-20, inclusive, Defendants-Appellees.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted January 14, 2021 Pasadena, California

Filed June 7, 2021 Before: Michelle T. Friedland and Mark J. Bennett, Circuit Judges, and Frederic Block, * District Judge.

Opinion by Judge Bennett

* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. 2 WONG V. FLYNN-KERPER

SUMMARY **

ERISA

The panel reversed the district court’s dismissal, on the ground of equitable estoppel, of an ERISA action in which David Wong, Trustee of the Anaplex Corporation Employee Stock Ownership Plan, sought equitable and declaratory relief against Danette K. Flynn-Kerper, the holder of a promissory note from Anaplex.

Bernard Kerper, former trustee of the ESOP and late husband of Flynn-Kerper, acquired the promissory note in exchange for shares of Anaplex stock he sold to the ESOP. Alleging that the ESOP had paid greater than “adequate consideration” for the shares, Wong sought an adjustment to the purchase price and a declaration that the ESOP had overpaid. Flynn-Kerper moved to dismiss, arguing that Wong was equitably estopped from asserting his claims against her, based on an agreement between them that she alleged settled a prior lawsuit in which she had alleged Anaplex’s failure to repay promissory notes, including a note that Anaplex issued in connection with the challenged stock sale. The district court granted the motion to dismiss, concluding that ERISA did not bar promissory or equitable estoppel because Flynn-Kerper was not making a claim pursuant to the ERISA agreement, but instead was seeking to rebuff Wong’s claim for reformation of the promissory note.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. WONG V. FLYNN-KERPER 3

Reviewing under a summary judgment standard, the panel held that Flynn-Kerper could not equitably estop Wong, the ERISA Trustee, because doing so would contradict the clear terms of the ESOP. The panel held that, in addition to satisfying the traditional equitable estoppel requirements, a party bringing a federal equitable estoppel claim in the ERISA context must also allege: (1) extraordinary circumstances; (2) that the provisions of the plan at issue were ambiguous such that reasonable persons could disagree as to their meaning or effect; and (3) that the representations made about the plan were an interpretation of the plan, not an amendment or modification of the plan. The panel held that a party cannot maintain a federal equitable estoppel claim against a trust fund where recovery on the claim would contradict written plan provisions. Here, if Wong were correct that the Anaplex shares were overvalued during an appraisal, applying equitable estoppel would require Wong to pay Flynn-Kerper greater than the fair market value of the shares on the date of purchase. This would contravene Section 6(d) of the ESOP, which required that the shares be purchased at fair market value on the date of purchase. Joining the Fourth Circuit,