Whether the Oregon District Court and Ninth Circuit erred in applying the 'primary purpose' test rather than the 'surrounding circumstances' test to determine whether a written 'retirement' plan is governed by ERISA, where there existed no ERISA plan against which to reference that plan

QUESTION PRESENTED Whether (1) the Oregon District Court and Ninth Circuit erred in applying the “primary purpose” test rather than the “surrounding circumstances” test to determine whether a written “retirement” plan is governed by the Employee Retirement Income Security Act (ERISA), where there existed no ERISA plan against which to reference that plan in making this determination; and (2) whether those Courts erred in their application of the “primary purpose test” in the event that the test provided the appropriate analytic framework under the circumstances of the case.