A potential client came to an attorney’s office because his claim for disability benefits had been denied by his employer’s group disability insurer. During their initial consultation, the attorney learned that the employee also lost his job as well as his company provided health insurance. The employee had repeatedly asked his employer for a copy of the long-term disability benefit booklet and for health insurance information, but to no avail.

The attorney took the case and filed in state court what he thought was a clear-cut “bad faith” lawsuit against the insurance company that made the decision to deny disability benefits. He soon learned that ERISA preempted the state law claims and provided a basis for removal to federal court. Next, the case was dismissed for failure to exhaust administrative remedies. A case that was sure to result in significant mental anguish and punitive damages was over before discovery commenced. Unfortunately, the attorney not only failed to exhaust his client’s administrative remedies, but also overlooked two potential civil penalty claims that could have been asserted in federal court.

This particular employer had been careless with other employee requests for information and notices as well. The company had been operating under the belief that there was little chance of ever being liable for significant damages since the benefits it offered were “fully insured” and governed by ERISA. The employer let the insurance companies “do all the work”, but it was listed as the plan administrator in all plans. The employer laid off thirty employees without providing them with mandated COBRA notices under ERISA § 502(c)(1)(A).

When defense counsel became involved, she calculated that after one year the company’s maximum penalty exposure was $1.2 million dollars. Moreover, the company failed to provide its employees with a copy of its most recent disability summary plan description. Twenty-four terminated employees had asked for it without a response for 300 days, thereby exposing the company to an additional $700,000 in potential penalties. This employer was soon to learn that employees do not forfeit all remedies in exchange for receiving the right to participate in an employer sponsored benefit plan. ERISA’s civil enforcement scheme has a variety of remedies, but one form of relief – civil penalties – can potentially result in significant liability for a plan administrator.

I. Why Do We Have ERISA?

The Employee Retirement Income Security Act (“ERISA”) was passed in 1974 “to protect … the interests of participants in employee benefit plan … by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefits plans, and by providing for appropriate remedies … and ready access to the Federal courts.” ERISA § 2(b). Congress was motivated by a desire to protect against private sector mismanagement of employee benefit plans which placed participants’ potential benefits at risk. A key component to the enforcement of these protections is ERISA’s civil penalty provision. The circumstances requiring penalties and extent of those penalties, however, are the subject of debate between counsel for plaintiffs and counsel for defendants. To keep a balanced perspective, this article was co-written by two attorneys practicing regularly in this area but on opposite sides of the fence.

II. What are the Civil Penalties Under ERISA?

The civil penalties are fines for failure to perform a duty. There are two civil penalty provisions in § 502 (c)(1). The first part, subparagraph (A), allows for penalties for notice violations of the Consolidated Omnibus Reconciliation Act of 1985 (COBRA). These notices pertain to health insurance benefits. The employee mentioned above had a COBRA notice claim when he was not told of his right to continue health insurance under COBRA. The other notice violations relate to the transfer of excess pension assets and certain pension funding notices. These pension notices are required so that employees know more about the financial condition of their pension fund.

Subparagraph (B) is much broader than (A). It obligates any administrator regardless of the type of plan, (i.e. disability, health, pension, life etc) to furnish information required by Title I. This title, which concerns Protection of Employee Rights, spans ERISA §§ 2 through 734. While that is much to review, in order to ascertain all of the duties which could give rise to penalties, the task is simplified by the fact that all of the duties are found in Subtitle B which is divided up into 7 topical parts.

These 7 topics focus on the duties for different aspects of plan management. Part 1 covers general reporting and disclosure duties, and as a result it provides a frequent basis for civil penalties. Part 2 deals with participation and vesting in pension plans. Part 3 applies to plan funding, and Part 4 regulates fiduciary responsibilities. Part 5 sets out the administration and enforcement provision. Part 6 and 7 relate to COBRA provisions and concern group health plans.

The penalties under § 502(c)(1)(A), which arise from failure to provide COBRA and pension notices, are distinct from the penalties under §502(c)(1)(B). A penalty arises under (A) merely for failure to provide a required notice, such as the right to continue health insurance. A violation is calculated based on each participant who did not receive the required notice in the 11th Circuit, even though there may be beneficiaries entitled to separate notice. See, Wright v. Hanna Steel, 270 F.3d 1336 (11th Cir. 2001). For example if an employee, his wife and his children are all entitled to a COBRA notice which was not given, only one violation will be found.

Under subparagraph (B) however, there must be a request for information and the administrator must fail to provide the information within 30 days before a penalty claim arises. To avoid penalties the administrator must mail all responsive materials requested to the last known address of the participant or beneficiary. If a penalty claim arises, courts have discretion to hold the administrator personally liable to the participant or beneficiary in an amount up to $110 a day, from the date of the failure or the refusal. Additionally, the court may order such other relief as it deems proper.

Each request for information under subparagraph (B) involving a participant or beneficiary can give rise to a separate penalty award. In other words, repeated requests can result in repeated violations. If a beneficiary requested information six times in one year, and never received a response, there will be six potential penalty claims.

Additionally, both a participant and a beneficiary are entitled to a separate response to their separate requests for information. In fact, if several beneficiaries in a life insurance plan individually ask for information about the same benefit, each request may result in a penalty claim. Penalties should be taken very seriously. Many courts have awarded the maximum penalty or substantial penalties. Penalties have been awarded when there was no harm caused, other than the anguish of not knowing why information was not provided or the expense of hiring an attorney. Courts are given broad discretion under § 502(c) to fashion other relief as well. An appeal of a penalty award will only be reviewed for an abuse of discretion.

III. Who are the Parties in a Penalties Case?

The penalty provision, ERISA §502(c), only allows a participant or beneficiary to bring an ERISA penalty claim. However, both terms are defined very broadly under ERISA § 3(7). A participant includes an employee, a former employee or a former member of an employer organization who is or who may become eligible to receive a benefit. Under ERISA § 3(8), a beneficiary is a person designated by a participant or who is so designated by the terms of the employee benefit plan, and who is entitled or who may become entitled to benefits.

ERISA § 502(c)(1) permits the imposition of penalties on “any administrator.” The term “plan administrator” is broadly defined under ERISA § 3(16) to include not only the person designated in the plan, but also the plan sponsor if an administrator is not designated in the instrument. The plan sponsor is the employer, the committee or the trustees, depending on who established the plan. An employer that believes the insurance company is handling all matters may be surprised to learn that by default it is actually the administrator. The case law has also found employers to be a co-administrator or de facto administrator if the entity is exercising control over the plan. See, Hamilton v. Allen-Bradley Co., Inc., 244 F.3d. 819 (11th Cir. 2001).

IV. What Specific Violations Can Trigger Penalties?

Section 502(c) does not identify the information that must be disclosed to avoid a penalty, but only makes a general reference to “information … required by this title ….” On its face, the statute reflects that basically any violation of a disclosure duty under Title I can give rise to imposition of a penalty. While not all violations of duties have been the subject of a penalty claim and published opinion, at least theoretically under subparagraph (B) any disclosure requirement followed by a request for information could potentially trigger application of the penalty provisions.

For example, COBRA notices are required automatically and if not provided may be the basis of penalties under subparagraph (A). However if a participant also requests a COBRA notice and is refused, under the language of §502(c), theoretically a second penalty could be assessed for that violation under subparagraph (B). After all, “information … required” was requested and not provided. Nothing in § 502(c) requires the request to be in writing or in any specific form. However, some disclosure duties specifically provide that a written request is necessary before there is an obligation to act. See, ERISA § 104(b)(4). For this article, only penalty claims addressed by case law are discussed, although the potential for others should be kept in mind.

A. The Summary Plan Description (SPD)

Under ERISA § 101 the SPD must be furnished to all participants (and to beneficiaries if they are receiving benefits.) Section 102 lists the requirements for the contents of this document. A participant is to receive the summary plan description within 90 days of being covered by the plan according to § 104(b)(1) (or if a beneficiary, within 90 days after first receiving benefits). Under § 104(b)(4), a written request from a participant or beneficiary requires the provision of the latest SPD along with various other plan documents. According to § 107, the SPD and certain other records must be retained by the plan administrator for a minimum of 6 years.

Frequently penalty cases involving an SPD request revolve around whether the SPD request was made in writing. However courts have found that if the SPD was supposed to be automatically provided but was not, an oral request for the SPD may give rise to penalties. See, e.g. Crotty v. Cook, 121 F. 3d 541, 547 (9th Cir. 1997); Colarusso v. Transcapital Fiscal Systems, Inc., 227 F. Supp. 2d 243, 258 (D.J. N.J. 2002); Brooks v. Metrica, Inc., 1 F. Supp 2d 559, 565-66 (E.D.Va. 1998).

B. The Annual Report or Summary Annual Report (Form 5500)

Another document required to be produced is the annual report described in § 103 and § 104(b)(3) and (4). The Department of Labor (DOL) prescribes the content in 29 C.F.R. § 2520.104b-10(d) which is satisfied by filing a Form 5500. Form 5500 reports information regarding the plans’ financial condition, coverage, source of funding , and any changes made to the plan during the year. It also specifies the name of the plan administrator. In McNeese v. Health Plan Marketing, Inc., 647 F. Supp 981 (N.D. Ala. 1986) the court found a breach of fiduciary duty for failing to provide Form 5500 to employees, which would have made them aware of the plan’s financial shape. After several well publicized disasters with retirement plans, employers may receive requests for such information more frequently.

C. Other Plan Documents

Section § 104(b)(4) also requires, upon written request, disclosure of any terminal report, the bargaining agreement, trust agreement, contract or “other instruments under which the plan is established or operated”. Although the broad “other instruments” language has understandably caused confusion and allowed for divergent opinions, the DOL clarified this requirement in Advisory Opinion 96-14A (July 31, 1996) wherein it stated that the phrase should be interpreted to encompass any internal procedures, rules, guidelines, protocol, etc. (i.e. “instruments under which the plan is established or operated”). The DOL instructed that procedure manuals or other materials outlining procedures to be applied in determining whether a participant or beneficiary is entitled to benefits should be provided. 

It should be noted, however, that some courts have rejected the analysis of DOL Advisory Opinion 96-14A, refusing to impose statutory penalties for failure to provide these plan documents. See, Brucks v. Coca Cola, 391 F. Supp. 2d 1193 (N.D. Ga. 2005 ) and Feree v. LINA, 2006 U.S. Dist. Lexis 48239 (N.D. Ga. July 17, 2006). However in the same district, in Hamal-Desai v. Fortis Ben. Ins., Co. 370 F. Supp.2d 1283, 1311-15 (N.D. Ga. 2004) affirmed, No. 05-11869 (11th Cir. Feb. 2, 2006) penalties were allowed for documents not produced as required by 29 C.F.R. § 2560.503-1 (g) (2000).

D. Pension Information

ERISA § 105 pertains to employee pension benefit plans and requires, upon written request of a participant or beneficiary the total amount of benefits accrued and the date benefits are nonforfeitable. This type of violation is illustrated in Curry v. Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842 (11th Cir. 1990) and again in Sandlin v. Ironworkers, 716 F. Supp. 571(N.D. Ala. 1988), affirmed, 884 F. 2d. 585 (11th Cir. 1989). Additionally an automatic notice to each participant is required each plan year for certain pension plans.

E. COBRA Notice
 
Under ERISA § 601 group health plans involving 20 or more employees, must provide notices to participants and their spouses. Section 606 sets out the notice requirements for group health plans. Upon commencement of coverage, notice of COBRA rights is to be provided to both the employee and the spouse. When a qualifying event described in § 603 occurs (such as termination), a COBRA notice is required which reflects the right to continue coverage under § 602. The case Wright v. Hanna Steel, 270 F.3d 1336 (11th Cir. 2001) provides a good example of penalties which were assessed in the amount of $75 per day for COBRA notice violations.

F. Pension Notices
 
When a pension plan transfers excess assets to a health benefits account, both participants and beneficiaries are entitled to a notice 60 days before the transfer under §101(e)(1). Certain notice requirements must also be met for multiemployer benefit plans relating to the funds financial condition. See, §101(f). 

G. Disclosures Under Section 503
 
ERISA § 503 requires employee benefit plans to afford participants a full and fair review after a claim denial. The regulations promulgated by the DOL further define a “full and fair review” by requiring every plan to establish a procedure by which claimants can appeal the denial of their claims. This includes procedures that allow access to “all documents, records and other information relevant to the claimant’s claim for benefits.” In other words, 29 C.F.R. § 2560.503-1 requires plan administrators to provide all documents relied upon in making their benefits determination, documents that were submitted, considered or generated in a course of making that determination, and any documents that demonstrate compliance with the administrative process and safeguards.

The Eleventh Circuit Court of Appeals has not provided a published opinion yet on whether § 502(c)’s requirement to produce “information … required by this subchapter” is broad enough to encompass 29 C.F.R. § 2560.503-1, although it recently affirmed a district court decision on this issue in Hamall-Desai v. Fortis Benefits Insurance Company, 370 F. Supp. 2d 1283, 1311-1315 (N.D. Ga. 2004), affirmed No.05-11869 (11th Cir. Feb 6, 2006). However, another district court found differently before this affirmance. See, Brucks v. The Coca-Cola Co., 391 F.Supp.2d 1193 (N.D. Ga. 2005) (holding that § 502(c)’s penalty for failure to produce “information … required by this subchapter” only “embraces an administrator’s failure or refusal to provide the documents identified in § 104.)

V. The Plaintiff’s Perspective on Penalties ERISA’s purpose is to protect participants and beneficiaries and require complete disclosure of certain information. The Secretary of Labor is empowered to further that protection. Whenever this protection is at stake, penalties should be awarded. The statute should be construed as written, and the DOL regulations should also be given effect as long as they are consistent with the statute. With this point of view in mind, there are three common issues that arise in a penalty claim. They are: 1.) What “other documents” must be produced; 2.) Who is liable for the breach; 3.) Is proof of harm required?

A. What “Other Documents”?
 
According to the DOL Advisory Opinion noted above and the DOL regulation at 29 C.F.R. § 2560.503-1, documents in the claim file along with claim protocol guidelines and other documents affecting the decision must be produced. These documents help a claimant learn the truth of the matter before suit is filed. Claimants are in an inferior bargaining position compared to insurance companies, pension plans or human resource departments that handle plan matters daily. Given the purpose of protection, full disclosure is in order.

An administrator may argue that the DOL language is vague and since claimants are not required to use precise words to obtain documents, how is an administrator to know what is required? It is enough if the administrator should have known what documents are responsive to the request. See, Curry and Anderson v. Flexel, 47 F. 3d 243 (7th Cir. 1995). This is an appropriate and reasonable standard used in many areas of the law, and it has worked well for many years.

Usually there is little debate over what was requested, and more often than not, an administrator refusing to cooperate is holding back documents that could be used against it. If a fiduciary is truly acting as a fiduciary, where is the harm of erring on the side of disclosing documents? However, if the administrator is acting as an adversary, obviously it does not want its decision to be defeated. Its decision should then receive no deference from the courts when it acts as an adversary.

Under Black and Decker v. Nord, 538 U.S. 822 (2003) the DOL’s position is due to be followed. Some administrators clapped loudly at the Supreme Court’s finding that the “treating physician rule”, which gave more weight to the treating physicians’ opinion in disability determinations, was not applicable under ERISA because the DOL had not issued a regulation on this. However when the DOL has spoken on what documents must be disclosed, some administrators nonetheless argue that the DOL regulations and opinions should not be followed. A measure of fairness and consistency is in order or the purpose of ERISA is thwarted.

Since courts often look to the “facts known” by the administrator at the time the decision was made in ERISA cases , it is important for the requestor to know all the facts and not just those the administrator desires to disclose. Unless there is full disclosure as noted in Hamall-Desai, the requestor is never allowed the opportunity to correct false information before suit is filed.

B. Who is Liable?
 
ERISA § 502(c)(1) allows for penalties against “any administrator”. That is broader than “plan administrator”. If an insurance company is actually handling a claim as a “claims administrator”, then it should be liable for breaching duties. Claimants should not be placed in the posture of guessing who is responsible for responding to a request for information. For example, in a disability claim many insurance companies routinely produce part of the claim file but refuse to produce the SPD. Instead the requestor is directed to contact the employer. Of course this slows down the receipt of vital information, often when a claimant has limited time to assert a claim or request a review. Sometimes the request surprises an employer as well, which thought the insurance company handled these duties. Any administrator should be liable rather than just the default plan administrator.

C. No Proof of Harm is Required
 
Some administrators argue that a participant must show damages or prejudice before penalties should be awarded. If the statute is construed as written, and deference is given to the DOL, then this argument is wrong. In effect it seeks judicial amendment of the statute. According to Daughtrey v. Honeywell Inc., 3 F.3d 1488 (11th Cir. 1993), it is error for the court to refuse to impose penalties because no prejudice was shown. The Eleventh Circuit ruled previously in the above cited Curry decision that prejudice was not a prerequisite to penalties “Since a plan participant would rarely be able to demonstrate that the failure to provide a timely statement of benefits in itself prejudiced the participant, the intent of Congress in enacting section 1132(c) would be frustrated by such a requirement” Id. at 1494. This is a fair and sensible view.

To require prejudice is tantamount to arguing that a speeding ticket should not be issued, because there was no accident. We all know that the majority of speeding tickets are issued to those who hurt no one. It is hoped that the risk of getting a ticket will cause most drivers to obey traffic laws and create a safer environment than would otherwise exist. Penalties are a deterrent that create a fairer environment for an intransigent administrator to comply with requests of required information.

VI. The Defendant’s Perspective on Penalties

A. The Scope of the Participant’s Request Should Be Reasonable

Section 502(c) of ERISA unquestionably provides an important mechanism through which participants and beneficiaries can ensure that their employee benefit plan is being properly administered and learn exactly where they stand with respect to the plan. However, it is important to recognize that, as a penalty statute, § 502(c) should be construed narrowly. Indeed, the Eleventh Circuit has recognized that the penalty provision is designed to punish the fiduciary, not to enable the participant-beneficiary to recover some damages. Consistent with the statute’s purpose and objectives, courts evaluating a penalty claim should pay close attention to the scope of the participant’s request and the reasonableness of the administrator’s efforts to comply with the statute.

With respect to the scope of the participant’s request, the majority and better reasoned case law authority recognizes that Section 502(c) should be construed in a way that does not encompass categories of documents described in either DOL regulations or Advisory Opinions. In other words, a participant should not be permitted to advance an overly broad interpretation of 502(c)’s “other instruments” catch all provision in an effort to obtain “all” documents “relevant” to the plan and/or her claim for benefits. This is perhaps best illustrated by the Northern District of Georgia’s very recent decision in Ferree v. Life insurance Company of North America, et al., 2006 U.S. Dist. Lexis 48239 (July 17, 2006).

In Ferree, a plaintiff/plan participant brought an ERISA action against the insurance company for denying his claim for continuing disability benefits and included a claim for statutory penalties under § 502(c). Although the insurance company/claims administrator provided a complete copy of the administrative record, the plaintiff claimed that the insurer failed to provide other documents (including reports by consultants and reviewers, communications with claims handlers, and all policies, procedures, and guidelines pertaining to the adjudication of disability claims) relevant to his claim. Relying on DOL Advisory Opinion 96-14A, the plaintiff argued that the documents he requested constituted “other instruments under which the plan is established or operated,” which ERISA Section 104(b) required the insurer to furnish. The plaintiff also argued that the penalties should be imposed because the insurer violated Regulation 2560.503-1, which requires production of documents “relevant” to a claimant’s claim for benefits.

The district court began its analysis by noting that the statutory penalty provision must be strictly construed. As such, the court reasoned that a penalty under § 502(c) could be invoked only for a failure to furnish information required by ERISA itself, not by the DOL’s claims regulations. The court also concluded that the “other instruments” provision of § 104(b) applied only to formal legal documents governing the plan, not the rules, guidelines and claim review procedures requested by the plaintiff. Accordingly, the court rejected the participant’s reliance on Advisory Opinion 96-14A, characterizing the opinion as overly broad. However, the court noted that failure to furnish the documents required by the Regulations could have an impact on the underlying benefits decision, including a possible finding that the administrator failed to afford the claimant a “full and fair” review of her claim.

Although rules provide good fences, District Courts are understandably reluctant to broaden the language of the penalty statute through DOL Regulations and Advisory Opinions. Indeed, given the potential exposure for a penalty claim ($110 per-day, per request, per document), there should be no ambiguity or confusion as to when a written request triggers the penalty provision. To be certain, ERISA’s penalty provision is not designed to be trap or game of “gotcha” for the inquisitive and/or litigious (yet unharmed) plan participant.

B. Not Every Violation Warrants a Penalty
 
The standards for awarding penalties have evolved significantly within the Eleventh Circuit. In an early case, the Court suggested that prejudice to the participant or beneficiary is a prerequisite for an award of a civil penalty, only to retreat from that position in a later decision holding that the existence or absence of prejudice is merely an “important” factor to be considered. While the Eleventh Circuit has yet to elaborate on the other “factors” to evaluate in deciding whether and to what extent a penalty should be imposed, a number of district courts have emphasized the following: (1) bad faith or intentional conduct of the administrator; (2) length of delay; (3) number of requests made; and (4) documents withheld. As already noted, the decision of whether and to what extent to award statutory penalties is entirely within the district court’s discretion.

One of ERISA’s goals is to encourage employers provide health and welfare benefits to their employees. It goes without saying that most employers have their employees’ best interest at heart when designing employee benefit plans because company executives, like all other employees, typically participate in these programs. Moreover, in an ever competitive market place, more and more employers are utilizing employee benefit programs as a means of recruiting and retaining talented workers. If employees are not treated fairly and evenhandedly by the committees and/or insurers that evaluate benefit claims, the company as a whole undoubtedly suffers. When viewed in this light, it makes little sense to indiscriminately impose the maximum penalty on a plan administrator for any failure to promptly respond to a written request by a participant or beneficiary. Instead of applying an unworkable bright line test, courts should consider each penalty claim based on the surrounding facts and circumstances, including the administrator’s good faith effort to provide a timely response.

By, David P. Martin
      John David Collins

The statute’s penalty of $100 has been increased by the Debt Collection Improvement Act of 1996 to $110 for violations after July 29, 1997. 62 Fed. Reg. 40696. For example Hamall-Desai v. Fortis Ben. Ins. Co., 370 F.Supp. 2d 1283, 1311-15 (N.D. Ga. 2004),affirmed, No. 05-11869 (11th Cir. February 2, 2006) $100 per day; Wright v. Hanna Steel, 270 F.3d 1336 (11th Cir. 2001) $75 per day; Keogan v. Towers, 2003 U.S. Dist. LEXIS 7999 at 34 (D. Minn. 2003), $100 per day for 649 days; Gorini v. AMP, Inc., 94 Fed. Appx. 913, 916 (3d Cir. April 16, 2004) for an award of $160,780 for an unspecified amount of time. Curry v. Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842 (11th Cir. 1990) and again in Sandlin v. Ironworkers, 716 F. Supp. 571(N.D. Ala. 1988), affirmed, 884 F. 2d. 585 (11th Cir. 1989). ERISA § 109 (c) provides that the Secretary of Labor may regulate what other documents must be furnished. ERISA § 505 further states, that the Secretary has the authority to “prescribe such regulations as he finds necessary or appropriate to carry out the provisions of this Title.” 29 C.F.R § 2560.503-1(g), (h) and (j) See, Jett v. Blue Cross, 890 F. 2d 1137 (11th Cir. 1989). See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1232 (11th Cir. 2002); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1494 n.11 (11th Cir. 1993). See Syed v. Hercules, Inc., 214 F.3d 155 (3rd Cir. 2000) (remedy for violation of § 503 was not a penalty under § 502(c)); Groves v. Modified Retirement Plan, 803 F.2d 109 (3rd Cir. 1986) (recognizing that nothing in ERISA gives the Secretary of Labor authority to decide that a plan administrator’s conduct should be penalized); Doe v. Travelers Ins. Co., 167 F.3d 53, 60 (1st Cir. 1999) (reversing penalty award based on purported violation of DOL Regulation 2560.503-1); Montgomery v. Metropolitan Life Ins. Co., 403 F.Supp.2d 1261 (N.D. Ga. 2005) (rejecting request for penalty award based on DOL Regulation 2560.503-1, court notes that, without clear guidance from the Eleventh Circuit, it was “unwilling to exercise any discretion it might have [had] to award statutory penalties for a violation” of a DOL regulation.) Paris v. Profit Sharing Plan for Employees of Howard B. Wolf, Inc., 637 F.2d 357 (5th Cir.), cert denied, 454 U.S. 836 (1981). Decisions rendered by the former Fifth Circuit before October 1, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Pritchard, Ala., 661 F.2d 1206, 1209-1211 (11th Cir. 1981). Curry v. Contract Fabricators Incorp. Profit Sharing Plan, 891 F.2d 842, 847-848 (11th Cir. 1990). See, e.g., Fritz v. ADS The Power Resource, Inc., 2001 U.S. Dist. LEXIS 8963 (N.D. Tex. 2001). Curry, 891 F.2d at 848-849.