At long last and after much effort, I think we may have succeeded in converting S.COTUS, the anonymous blogger on all things First Circuit at Appellate Law & Practice, into an ERISA hobbyist. How else to explain his (her?) expansive and insightful post yesterday on the First Circuit’s analysis of top hat plans in the decision the court issued yesterday in Alexander v. Brigham and Women’s Physicians Organization? As some of you may recall from our post on the district court ruling in that case, the dispute centered around a surgeon who was leaving the institution and a large amount of funds, attributable to services rendered by him while with the hospital that were not sufficiently exceeded by revenue brought in by him, that were deducted from his accounts in certain deferred compensation plans operated by the medical group. The central issue before the First Circuit was whether the deferred compensation plans constituted top hat plans for purposes of ERISA, and the First Circuit concluded that they did, because they involved only a small percentage of the defendant’s employees, each of whom was highly compensated from both an absolute and relative point of view. To the extent there is a takeaway from the First Circuit’s ruling, it really isn’t in the legal analysis, in that the court really simply applied the express language of the relevant provision of ERISA to the facts of the matter; what is of more interest and value is the manner in which the court did so, relying on a quantitative analysis of the number of physicians participating in the plan versus the employee base as a whole, as well as of the compensation of those individuals in comparison to the employee population as a whole. The case can certainly be cited for the proposition that this is the appropriate approach to determining whether the requirements for top hat status are satisfied in any particular case, and provides support for a litigant to delve into actual statistical data to prove or disprove such status.