Leister, Sandra C. v. Dovetail Inc

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2242, 07-3615, 07-3671
S ANDRA C. L EISTER,
Plaintiff-Appellee, Cross-Appellant,
v.
D OVETAIL, INC., M ICHELLE P ETERSON, and
E VAN P ETERSON,
Defendants-Appellants, Cross-Appellees.
Appeals from the United States District Court
for the Central District of Illinois.
No. 05-2115—Harold A. Baker, Judge.
A RGUED M AY 7, 2008—D ECIDED O CTOBER 23, 2008
Before B AUER, P OSNER, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, Sandra Leister, and
the Petersons (the individual defendants) were
employed by a company that sells “employee assistance
programs” to employers; the programs provide
counseling for troubled employees. In 1997 the Petersons
bought some of their employer’s employee-assistance-
program contracts and created the corporate defendant,
Dovetail, of which the Petersons are the sole owners and
2 Nos. 07-2242, 07-3615, 07-3671
officers. They hired Leister, a psychologist, to work for
Dovetail, and the terms of employment included
Dovetail’s agreeing to deposit a specified portion of
her salary in a 401(k) retirement account and to
match a specified portion of these elective deferrals of
compensation with its own contributions. The defendants
complied with the agreement only for the first year of
Leister’s employment. After that they diverted corporate
receipts that should have been contributed to her 401(k)
account to their own pockets. They also failed, despite
her repeated requests, to provide her with copies of the
documents that defined her rights with regard to the
retirement account.
In 2005 she sued Dovetail and the Petersons to recover
the contributions that the defendants were obligated
to make to her 401(k) account and to obtain statutory
penalties for their failure to give her copies of the plan
documents. She based the suit on various provisions of
ERISA, the federal pension law. The district judge, after
a bench trial, awarded her $82,741 for the defendants’
failure to make the required deposits in her 401(k)
account—a failure that the judge deemed a willful
breach of the defendants’ fiduciary duties, 29 U.S.C.
§ 1104—but refused, because of their precarious financial
condition, to award her any statutory penalty for their
failure to give her copies of the retirement-plan documents.
At $110 a day, the maximum statutory penalty, 29 U.S.C.
§ 1132(c)(1); 29 C.F.R. § 2575.502c-1, Leister would be
entitled to receive at least $200,000 in statutory penalties
and maybe much more, because while the defendants
have finally given her some of the plan documents they
Nos. 07-2242, 07-3615, 07-3671 3
have not given her all of them. Her cross-appeal seeks an
award of statutory penalties but does not specify an
amount.
Dovetail was the plan’s sponsor; the Petersons were, as
mentioned, owners and officers of Dovetail; and Mrs.
Peterson was the plan’s administrator. The judge treated
the defendants as a singularity by awarding relief against
all three of them jointly and severally, since co-fiduciary
liability is joint and several under ERISA. 29 U.S.C.
§ 1105(a); La Scala v. Scrufari, 479 F.3d 213, 220 (2d Cir.
2007); In re Masters Mates & Pilots Pension Plan, 957 F.2d
1020, 1023 (2d Cir. 1992); Donovan v. Robbins, 752 F.2d 1170(7th Cir. 1985) (concurring opinion); cf. Mertens v. Hewitt
Associates, 508 U.S. 248, 262-63 (1993).
The defendants’ principal argument, mysteriously
not mentioned by the district judge although they had
made it to him, is that the claim for the contributions
that the plan failed to make to Leister’s 401(k) account
is barred by the applicable statute of limitations.
Two statutes of limitations apply to suits under ERISA.
One, 29 U.S.C. § 1113, provides that a plaintiff complaining
about “a fiduciary’s breach of any responsibility, duty, or
obligation under” sections 1101 to 1114 has the shorter
of six years from the date of the breach to file suit or (with
an immaterial exception) three years “after the earliest
date on which the plaintiff had actual knowledge of the
breach.” The other statute of limitations is borrowed from
the most analogous state statute of limitations and is
applicable, so far as bears on this case, to suits “to recover
benefits due to [the plaintiff] under the terms of his
4 Nos. 07-2242, 07-3615, 07-3671
plan.” 29 U.S.C. § 1132(a)(1)(B). If this is the governing
provision, the borrowed statute of limitations would be
Illinois’s 10-year statute of limitations for breach of a
written contract. 735 ILCS 5/13-206.
Although the judge based his grant of relief on the
defendants’ having violated their fiduciary duties, Leister
also claims to be entitled to relief under section
1132(a)(1)(B). She may need that alternative ground
because she may need the longer statute of limitations
applicable to it, as we shall see. In addition (as she
seems not to realize, however) her cross-appeal, which
seeks the tax benefits that she would have realized had
the defendants made the contributions to her 401(k)
account that the plan required, can succeed only if she
is entitled to obtain lost benefits. The relief the judge
ordered was pursuant to 29 U.S.C. § 1132(a)(2) and re-
quired the defendants to make restitution of their gain
from the breach of fiduciary duty, see § 1109, and that
gain did not include the tax benefits that Leister would
have obtained. She can recover them only under section
1132(a)(1)(B), as part of the benefits that the ERISA plan
entitled her to.
But there are obstacles to her claim to benefits that she
must overcome. To begin with, an ERISA plan can be
established only by a writing, 29 U.S.C. § 1102(a)(1);
Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83-84
(1995); Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 872-73 (7th
Cir. 2001), and anyway the 10-year borrowed Illinois
statute of limitations is applicable only to suits on written
contracts. The only writing in this case is a “Plan Adoption
Nos. 07-2242, 07-3615, 07-3671 5
Agreement” made between Dovetail and a third-party
provider of the 401(k) program, a bank that handled
various financial details of the plan. The agreement,
however, specifies the benefits, including the elective
deferrals, to which participants are entitled. There is
enough detail to satisfy the requirement that an ERISA
plan be in writing. See Lumpkin v. Envirodyne Industries,
Inc., 933 F.2d 449, 465-66 (7th Cir. 1991); Jenkins v. Local
705 Int’l Brotherhood of Teamsters Pension Plan, 713 F.2d
247, 252 (7th Cir. 1983); Williams v. Wright, 927 F.2d 1540,
1548 (11th Cir. 1991).
Another potential obstacle to the benefits claim is that
the complaint does not name the plan itself, as distinct
from Dovetail and the Petersons, as a defendant. Several
cases say that only the plan (or what is the equivalent, the
plan administrator named only in his or her official
capacity, which wasn’t done either) can be named as a
defendant in a suit for benefits. E.g., Jass v. Prudential
Health Care Plan, 88 F.3d 1482, 1490 (7th Cir. 1996); Graden
v. Conexant Systems Inc., 496 F.3d 291, 301 (3d Cir. 2007); Lee
v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993); Gelardi v.
Pertec Computer Corp., 761 F.2d 1323, 1324 (9th Cir. 1985).
Other courts think it enough if whoever controls the
administration of the plan is named as defendant. E.g.,
Layes v. Mead Corp., 132 F.3d 1246, 1249 (8th Cir. 1998);
Garren v. John Hancock Mutual Life Ins. Co., 114 F.3d 186, 187
(11th Cir. 1997); Daniel v. Eaton Corp., 839 F.2d 263, 266
(6th Cir. 1988). But there is less to the difference than
meets the eye.
The cases in the first group rely on the language of
29 U.S.C. § 1132(d): “an employee benefit plan may sue
6 Nos. 07-2242, 07-3615, 07-3671
or be sued under this title as an entity,” and “any
money judgment under this title against an employee
benefit plan shall be enforceable only against the plan as
an entity and shall not be enforceable against any other
person unless liability against such person is established
in his individual capacity under this subchapter.” The first
clause just allows plans to sue or be sued, and the second
clause just specifies consequences if the plan is sued;
neither seems to be limiting the class of defendants
who may be sued. The benefits are an obligation of the
plan, so the plan is the logical and normally the only
proper defendant. But in cases such as this, in which the
plan has never been unambiguously identified as a
distinct entity, we have permitted the plaintiff to name
as defendant whatever entity or entities, individual or
corporate, control the plan, Riordan v. Commonwealth
Edison Co., 128 F.3d 549, 551 (7th Cir. 1997), thus bridging
the two groups of cases. In the present case, involving as it
does a small new company of conspicuous informality with
no designated plan entity, the company itself and its two
principals were appropriate defendants to name in a
suit to recover plan benefits.
Leister argues that Illinois’s 10-year statute of limita-
tions for breach of a written contract applies because
all that she is suing for are the benefits that the plan
entitled her to—the amount that should have been in her
401(k) account. Actually, there are also the statutory
penalties that she is suing to obtain, but as to them no
statute of limitations defense is pleaded, though it could
have been. See Stone v. Travelers Corp., 58 F.3d 434, 439 (9th
Cir. 1995); Groves v. Modified Retirement Plan for Hourly
Nos. 07-2242, 07-3615, 07-3671 7
Paid Employees of Johns Manville Corp. & Subsidiaries, 803
F.2d 109, 117 (3d Cir. 1986); George Lee Flint, Jr., “ERISA:
Fumbling the Limitations Period,” 84 Neb. L. Rev. 313, 319-
20 (2005). And remember that she seeks relief not
only under the benefits provision but also for the defen-
dants’ violation of 29 U.S.C. § 1104, which requires an
ERISA fiduciary to act in the sole interest of the plan’s
participants and beneficiaries. As the district judge
found, the defendants failed to do this when they lined
their pockets with money that the plan required to be
placed in Leister’s 401(k) account.
The statute of limitations applicable to a claim under
section 1104 is, as we know, section 1113, and Leister
discovered the initial breach of the defendants’ fiduciary
obligations in 1999, more than six years before she sued.
It is true that there is no indication that she learned then
that the defendants would never comply with the terms
specified in the Adoption Agreement—that they had
repudiated the agreement. Had she learned it then,
claims for every subsequent failure to match would be
barred by the three-year statute of limitations, e.g., Lewis
v. City of Chicago, 528 F.3d 488, 492-93 (7th Cir. 2008); Daill
v. Sheet Metal Workers’ Local 73 Pension Fund, 100 F.3d 62,
66-67 (7th Cir. 1996); Miller v. Fortis Benefits Ins. Co., 475
F.3d 516, 521-23 (3d Cir. 2007), whereas if every default
was pursuant to a fresh decision by the defendants not
to comply with the agreement each such decision would
be a fresh breach. Webb v. Indiana National Bank, 931 F.2d
434, 437 (7th Cir. 1991); Palmer v. Board of Education of
Community Unit School District 201-U, 46 F.3d 682, 685-86
(7th Cir. 1995); cf. Bay Area Laundry & Dry Cleaning Pension
8 Nos. 07-2242, 07-3615, 07-3671
Trust Fund v. Ferbar Corp., 522 U.S. 192, 206 (1997); compare
Impro Products, Inc. v. Block, 722 F.2d 845, 850 n. 9 (D.C. Cir.
1983).
Concerned lest the three-year statute of limitations
defeat her claim of breach of fiduciary duty, Leister argues
that the defendants lulled her into delaying her suit by
promising to work things out. If so (the judge made no
finding), the doctrine of equitable estoppel (if applicable
to section 1113—an open question in this circuit, Doe v.
Blue Cross & Blue Shield United, 112 F.3d 869, 875-76 (7th
Cir. 1997); Wolin v. Smith Barney Inc., 83 F.3d 847, 850, 853-
56 (7th Cir. 1996); cf. Librizzi v. Children’s Memorial Medical
Center, 134 F.3d 1302, 1307 (7th Cir. 1998), though closed
against its applicability in the D.C. Circuit, Larson v.
Northrop Corp., 21 F.3d 1164, 1171-72 (D.C. Cir. 1994))
would allow her to delay suing until the fog lifted. Team-
sters & Employers Welfare Trust v. Gorman Brothers Ready
Mix, 283 F.3d 877, 881-82 (7th Cir. 2002); Bomba v. W.L.
Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir. 1978);
McAllister v. FDIC, 87 F.3d 762, 767 (5th Cir. 1996).
All this turns out to be of no moment, however, because
the relief that Leister is seeking under 29 U.S.C.
§ 1132(a)(1)(B), a provision governed as we know by the
10-year borrowed statute of limitations, exceeds what she
is seeking under section 1104. United States v. Whited, 246
U.S. 552, 563-64 (1918). And she is entitled to relief under
that statute as well as under section 1104. There was
enough of a writing to satisfy both ERISA and the Illinois
statute of limitations. Contributions to a plan and benefits
owed by a plan are not necessarily equivalent, and section
Nos. 07-2242, 07-3615, 07-3671 9
1132(a)(1)(B) authorizes suit only for benefits. But the
benefits to which Leister was entitled were the assets
that would have been in her 401(k) account had the
defendants complied with their fiduciary duties.
Those assets include not only the unpaid contributions
but also a reasonable estimate of how those contributions,
had they been made, would have grown by being
invested responsibly in accordance with the terms of the
retirement plan. 29 U.S.C. § 1002(34); LaRue v. DeWolff,
Boberg & Associates, 128 S. Ct. 1020, 1022 n. 1 (2008);
Harzewski v. Guidant Corp., 489 F.3d 799, 807 (7th Cir. 2007);
Graden v. Conexant Systems Inc., supra, 496 F.3d at 296-97.
So Clair v. Harris Trust & Savings Bank, 190 F.3d 495, 497
(7th Cir. 1999), where we held that the plaintiff was not
entitled to interest on benefits paid late because the plan
did not provide for such interest, is not on point.
But the valuation by Leister’s expert witness of the
benefits that the 401(k) account would have yielded was
erroneous, though accepted by the district judge. It was
based not on the average performance of the investment
vehicles in which the contributions might have been
placed but on the performance of the best of those vehicles,
as improperly determined ex post. There was money in
Leister’s 401(k) account, and assuming that if there
had been more in it she would have continued to allocate
her investments as she had in the past, the return on
the existing investment would have been the appropriate
benchmark. Nancy G. Ross and Steven W. Kasten, “Calcu-
lating Damages in 401(k) Litigation Over Company
Stock,” 19 Benefits L.J. 61, 64 (2006). Instead the witness
10 Nos. 07-2242, 07-3615, 07-3671
estimated a rate of return by looking back at what the
most profitable allocation would have been. Although
Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir. 1985),
echoed in many cases, says that “where several alternative
investment strategies were equally plausible, the court
should presume that the funds would have been used
in the most profitable of these,” that is incorrect if under-
stood (as it should not be) to mean that at the time of
suit the court should look back and decide which of
those investment strategies has proved most profitable.
Such a methodology would yield a windfall, given the
uncertainty of investments. Cathy M. Niden, “Economic
Analysis in ERISA Class Actions Involving Employee In-
vestments in Company Stock,” 44 Benefits & Compensation
Digest 4 (2007), www.ifebp.org/pdf/webexclusive/07apr.pdf
(visited Aug. 28, 2008). The defendants, however, don’t
complain about the witness’s valuation method, and at the
oral argument their lawyer stated flatly that he had no
problem with it. So the issue is waived.
Leister argues in her cross-appeal that the tax benefits
from investing in a 401(k) plan should be considered in
deciding what value the unpaid contributions would have
had if they had been paid as they should have been. They
would not have been taxable until they were withdrawn
from the 401(k) account in the form of benefits, and as a
result would have grown faster because they would be
growing at a tax-free compound interest rate. This tax
benefit should have been included in calculating the
value the account would have attained had the defend-
ants complied with their fiduciary duties, but of course
minus the cost of the future tax liability discounted to
Nos. 07-2242, 07-3615, 07-3671 11
present value. Buche v. Buche, 423 N.W.2d 488, 492 (Neb.
1988); Corliss v. Corliss, 320 N.W.2d 219, 221 (Wis. App.
1982); see generally John H. Langbein et al., Pension and
Employee Benefit Law 229-32 (4th ed. 2006). (A further
complication, however, that should be taken into
account is that the deferred future tax may tax phantom
gains due to inflation, offsetting some or perhaps all of the
benefit of deferral.) So the case must be remanded for a
recalculation of the benefits due.
The defendants had also promised to pay Leister, when
she was employed by Dovetail, certain sales commissions
that it failed to pay her. That sounds like a straightfor-
ward breach of contract claim under Illinois’s common
law of contracts (or possibly a claim under the Illinois
Wage Payment and Collection Act, 820 ILCS 115, for
failure to pay accrued wages owed to an employee), and
Leister did include it in her complaint as a supplemental
claim, 28 U.S.C. § 1367, to her ERISA claim. But she also
tried to shoehorn it into ERISA by alleging that had she
received the commissions she would have deposited
them in her 401(k) account; and the district court
accepted the argument. That was a mistake. ERISA does
not require an employer to pay an employee the wage
they have agreed on, whatever the employee might
decide to do with the money; regular compensation is not
an ERISA benefit. 29 C.F.R. § 2510.3-1(b)(1); Massachusetts
v. Morash, 490 U.S. 107, 115-19 (1989); Stern v. IBM, 326
F.3d 1367, 1372-73 (11th Cir. 2003); Anthuis v. Colt Industries
Operating Corp., 789 F.2d 207, 213 n. 5 (3d Cir. 1986).
But since the claim for unpaid commissions was also
pleaded as a supplemental state-law claim, the district
12 Nos. 07-2242, 07-3615, 07-3671
judge will have to consider its merits. When the federal
claim in a case drops out before trial, the presumption
is that the district judge will relinquish jurisdiction over
any supplemental claim to the state courts. Brazinski v.
Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.
1993); cf. 28 U.S.C. § 1367(c)(3); Carnegie-Mellon University
v. Cohill, 484 U.S. 343, 350 n. 7 (1988); Rodriguez v. Doral
Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). The
presumption is reversed when as in this case the federal
claim is decided on the basis of a trial. Brazinski v. Amoco
Petroleum Additives Co., supra, 6 F.3d at 1182; Purgess v.
Sharrock, 33 F.3d 134, 138 (2d Cir. 1994); see also Miller
Aviation v. Milwaukee County Board of Supervisors, 273
F.3d 722, 731-32 (7th Cir. 2001); Growth Horizons, Inc. v.
Delaware County, 983 F.2d 1277, 1284-85 (3d Cir. 1993).
Ordinarily in a case in which the reverse presumption
is invoked, the trial will have led to the dismissal of the
federal claim, and here it did not; and while a district
judge can decline to exercise supplemental jurisdiction
even though the federal claim has not been dismissed, see
28 U.S.C. §§ 1367(c)(1), (3), (4), that is rarely done and we
cannot think of any reason why it should be done in
this case.
For guidance to the district judge’s determination on
remand of Leister’s claim under Illinois law for unpaid
commissions, we note the following points:
Leister will not be entitled to recover damages for the tax
benefits that she would have received had she deposited
the commissions in her 401(k) account. “Generally, where
there is delay in the making of stipulated payments, the
Nos. 07-2242, 07-3615, 07-3671 13
only recoverable damage accruing to the payee is
interest at legal or contractual rate for the time of delay.”
Green Briar Drainage District v. Clark, 292 Fed. 828, 831 (7th
Cir. 1923); see Siegel v. Western Union Telegraph Co., 37
N.E.2d 868, 871 (Ill. App. 1941); Meinrath v. Singer Co., 87
F.R.D. 422, 425-27 (S.D.N.Y. 1980); 25 Williston on
Contracts § 66.96 (Richard A. Lord ed., 4th ed. 2004). As
explained in Siegel v. Western Union Telegraph Co., supra,
37 N.E.2d at 871, this rule is an application of the
doctrine of Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep.
145 (1854), which bars the recovery of consequential
damages in a suit for breach of contract unless the defen-
dant was on notice of what the consequences of a
breach would be and agreed to compensate the plaintiff
for them if there was a breach. See Equity Ins. Managers of
Illinois, LLC v. McNichols, 755 N.E.2d 75, 80-81 (Ill. App.
2001); Mohr v. Dix Mutual County Fire Ins. Co., 493 N.E.2d
638, 643-44 (Ill. App. 1986); cf. Evra Corp. v. Swiss Bank
Corp., 673 F.2d 951, 955-57 (7th Cir. 1982). There is no
indication that the defendants knew what Leister’s tax
bracket was or knew any other details of her financial
situation that would have affected the size of the tax
benefits that she would have obtained from the
inclusion of the commissions in her 401(k) plan rather
than in currently taxable income. So she is entitled just to
the commissions, possibly enhanced by prejudgment
interest, depending on the application of a rather complex
body of Illinois law, on which see Perlman v. Zell, 185
F.3d 850, 857 (7th Cir. 1999), and Needham v. White Laborato-
ries, Inc., 847 F.2d 355, 361-62 (7th Cir. 1988).
14 Nos. 07-2242, 07-3615, 07-3671
The statute of limitations governing the claim for com-
missions is different from the one applicable to the
ERISA claim. There was never a written agreement to
pay the sales commissions, and the applicable limita-
tions period under Illinois law both for breaches of unwrit-
ten contracts and for violations of the Wage Payment and
Collection Act (which creates, as we noted, a remedy for
breach of a contract for wages that have been earned and
are due and owing) is five years. 735 ILCS 5/13-205;
Gregory K. McGillivary, Wage and Hour Laws: A State-by-
State Survey 599 (2004). So any commissions that were
due her before May 2001 (five years prior to the date
the complaint was filed) are time-barred unless the limita-
tions period is tolled.
We add that another Illinois statute, the Attorneys Fees
in Wage Actions Act, entitles the plaintiff who prevails in
a suit under the wage-payment statute to an award of
attorneys’ fees, provided a demand for the earned but
unpaid compensation was made at least three days before
filing suit and does not exceed the damages ultimately
awarded for the breach of the wage contract. 705 ILCS
225/1; Anderson v. First American Group of Cos., 818
N.E.2d 743, 751-52 (Ill. App. 2004); Caruso v. Board of
Trustees, 473 N.E.2d 417, 420 (Ill. App. 1984).
Leister also complains about the district judge’s
declining to award her any statutory penalties. The aim
of penalties, whatever form they take (fines, punitive
damages, or, as in this case, statutory penalties), is to
deter; and the poorer the defendant, the lower the
penalty can be set and still deter wrongdoers in the
Nos. 07-2242, 07-3615, 07-3671 15
same financial stratum. Kemezy v. Peters, 79 F.3d 33, 35-36
(7th Cir. 1996); Zazu Designs v. L’Oreal S.A., 979 F.2d 499,
507-08 (7th Cir. 1992). Picking the right penalty in light of
such considerations, like picking a federal criminal sen-
tence within a statutory range, inescapably involves
judgment, and so judicial review of the trial judge’s
determination is light, as noted with specific reference
to the statutory penalties for failing to furnish ERISA plan
documents to a requesting plan participant or beneficiary
in Lowe v. McGraw-Hill Cos., 361 F.3d 335, 338 (7th Cir.
2004); see also Bartling v. Fruehauf Corp., 29 F.3d 1062, 1068
(6th Cir. 1994); Rodriguez-Abreu v. Chase Manhattan Bank,
N.A., 986 F.2d 580, 588 (1st Cir. 1993). But given the
willful character of the defendants’ breach—a breach that
they have tried to leverage into a statute of limitations
defense because the unavailability of the documents
delayed Leister’s ascertaining her rights—and the fact
that none of the defendants is in bankruptcy (Dovetail
continues in business), the award of zero penalties was
unreasonable.
It is true that “many courts have refused to impose any
penalty at all under § 1132(c)(1)(B) in the absence of a
showing of prejudice or bad faith.” Bartling v. Fruehauf
Corp., supra, 29 F.3d at 1068-69; see also Byars v. Coca-Cola
Co., 517 F.3d 1256, 1270-71 (11th Cir. 2008); McGowan v.
NJR Service Corp., 423 F.3d 241, 250 (3d Cir. 2005);
Rodriguez-Abreu v. Chase Manhattan Bank, N.A., supra, 986
F.2d at 588-89. But in this case there was both prejudice
and bad faith. See Lowe v. McGraw-Hill Cos., supra, 361 F.3d
at 338; Ames v. American National Can Co., 170 F.3d 751, 760
(7th Cir. 1999). The failure to award penalties was, in the
16 Nos. 07-2242, 07-3615, 07-3671
circumstances, an abuse of discretion. Daughtrey v.
Honeywell, Inc., 3 F.3d 1488, 1494-95 (11th Cir. 1993).
The judgment is affirmed except for the district judge’s
determinations with respect to tax benefits, sales commis-
sions, and statutory penalties; as to those matters the
case is remanded for further proceedings consistent
with this opinion.
A FFIRMED IN P ART, R EVERSED IN P ART,
AND R EMANDED .
10-23-08