Several employees brought an action in state court in Colorado relating to their compensation benefit under a phantom carried interest plan sponsored by a subsidiary of Fidelity Investments. The defendant removed the case to federal court, and the employees asked the court to remand the case back to state court. The district court found that the plan, while an incentive compensation plan, was covered under ERISA because it constituted an employee pension benefit plan. Under the terms of the plan, certain payments would be made only at the time the participant separates from the company or if there is a change in control. The court found that because the plan by its terms postponed certain payments under the plan until termination of employment, and the timing of such payment was more than mere happenstance, the plan met the definition of a pension benefit plan because it systematically defers payment to the termination of covered employment or beyond. While the exact terms of the plan were not set out, it may well be the case that the payment terms occurring at termination of employment or upon a change in control may have been structured to comply with permissible payment requirements of Internal Revenue Code Section 409A. Payment tied to termination has become a more common payment trigger under 409A and, as a result, may bring more incentive compensation-type plans within the ERISA definition of an employee pension benefit plan.