231 F.3d 837 (11th Cir. 2000)
James F. ADAMS, William W. Adams, et al., Plaintiffs-Appellants,v.THIOKOL CORPORATION, administrator of Thiokol Corporation Employee Separation Pay Plan, Richard T. Smith, as Administrator of Thiokol Corporation Employee Separation Pay Plan, et al., Defendants-Appellees.
No. 99-11734.
United States Court of Appeals, Eleventh Circuit.
October 25, 2000.November 6, 2000

[Copyrighted Material Omitted]
Appeal from the United States District Court for the Middle District of Florida. (No. 97-01251-CIV-ORL-19), George C. Young, Judge.
Before EDMONDSON, HULL and WOOD*, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge:


1
Plaintiffs, 301 former employees of Thiokol Corporation1 ("Thiokol"), brought an  action against Thiokol, the Thiokol Corporation Employee Separation Pay Plan  (the "Plan"), and Richard T. Smith, Administrator of the Plan (collectively  referred to as the "Defendants"), seeking severance pay pursuant to the Employee  Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.  1001 et seq. The  district court granted Defendants' motion for summary judgment and dismissed  Plaintiffs' claims. Plaintiffs timely filed this appeal. We affirm in part and  reverse and remand in part the district court's order.

I. BACKGROUND

2
From 1984 to 1995, Thiokol's Space Services division performed booster rocket  and external fuel tank assembly and recovery for the space shuttle project at  Kennedy Space Center under a subcontractor agreement with the general  contractor, Lockheed Martin ("Lockheed"). On June 26, 1995, Lockheed notified  Thiokol that as a result of a cost consolidation effort, it would not renew  Thiokol's contract but would take over responsibility for the Space Services  operations at the Space Center. However, Lockheed stated that it planned to fill  all of the required positions with existing subcontractor personnel.2 Lockheed  stated their intent was to offer equivalent compensation and the applicable  Lockheed benefits package, while allowing the new employees to retain their site  seniority. After Lockheed announced the contract would not be renewed, Thiokol  entered into negotiations with Lockheed to sell the operating assets of the  Space Services division. The transition was to be completed by September 30,  1995.


3
Plaintiffs were notified that they would need to submit an employment  application, and were later required to interview with Lockheed and take a  physical and a drug test in order to be hired. Plaintiffs were employed by  Thiokol until 12:00 a.m., September 30, 1995, and immediately went onto  Lockheed's payroll at 12:01 a.m., October 1, 1995, with no break in service and  at equal or greater pay rates.3 The contract for the sale of the assets was  dated October 1, 1995, and signed by both parties on October 2, 1995.


4
Plaintiffs were all participants in Thiokol's Plan, a self-funded severance pay  plan which is an employee welfare benefit plan as defined under  3(1) of ERISA,  29 U.S.C.  1002(1).4 The Plan originated in 1992 and provided for benefits to  be paid from Thiokol's general assets to employees who would involuntarily lose  their jobs due to a reduction in work force ("RIF"). Master Plan, pp. 1, 4. The  language of the Plan excluded severance benefits for "[t]ermination of  employment resulting from ... (ii) the sale of all or part of the business  assets of the Company or a subsidiary or a business unit; ... or (iv) any other  form of reorganization including a spinoff; and the employee is offered a  position (whether or not such position is comparable to the prior position) by  the acquiring or resulting company;...." Master Plan, General Exclusions, pg.  3(5). The company reserved the right to amend or terminate the Plan at any time  and "to modify or change the schedule of benefits ... for any specific reduction  in force or for any business unit or subsidiary of the Company if economic  conditions or other business reasons warrant such change." Master Plan, pp. 2,  4. The Plan also designated a Plan Administrator as the person who was  responsible for interpreting the terms of the Plan and who determined  eligibility for benefits.


5
Pursuant to the modification clause in the Plan, in July 1995, a Separation  Allowance Amendment (the "Amendment") was published for employees of Space  Services (all of Plaintiffs herein) which raised the separation allowance  benefits from sixteen weeks as designated in the original Plan to a maximum of  twenty-six weeks and introduced the language of a "comparable position" in  reference to accepting a position with a successor company in the case of a  sale, merger or reorganization. However, the Amendment did not define  "comparable." The Amendment stated that a separation allowance would not be paid  for "[t]ermination resulting from any sale, merger or reorganization of the  company, and the workteam member terminates rather than accept a comparable  position." (emphasis added).


6
In addition, a "Questions and Answers" memo regarding the transition of the  division to Lockheed was issued to Space Services employees in July 1995. This  memo posed the question, "Will I receive any severance benefits from Thiokol if  I accept a position from [Lockheed] as of October 1, 1995?" The answer was,  "No." The memo also stated that an employee who was not offered a comparable job  with Lockheed would receive severance benefits, and defined a comparable job as  "one that is within 10% of your current pay or one that is more than your  current pay." This memo also informed employees that anyone who did not submit a  job application to Lockheed or who rejected a comparable job offer would be  considered as having voluntarily terminated and would not be eligible for any  severance benefits.


7
After commencing employment with Lockheed, 305 former Thiokol employees made a  request for separation pay under the Plan. All requests were denied. As required  by the Plan, the employees first appealed to the Plan Administrator for review.  The Administrator denied all but four of the claims. The remaining 301 employees  brought this suit.


8
Due to the numerosity of plaintiffs and in the interest of judicial expediency,  all parties agreed to bifurcate discovery into two phases, based on the  expectation that the case could be wholly or partially resolved on cross motions  for summary judgment. Phase One narrowed the focus to a review of the specific  language in the Plan and to the decision made by Smith, as Administrator, in  which he declined to pay separation benefits to the Plaintiffs. Phase Two, if  necessary, would determine if the employment offered by Lockheed was  "comparable" as defined by the Plan.


9
The district court granted Thiokol's motion for summary judgment and the  Plaintiffs appeal. Plaintiffs argue that there was no "sale, merger or  reorganization of the company," but maintain they were involved in the closing  of the Space Services division and a subsequent RIF, which would be governed by  Thiokol policy statement, "Facility Closing and Reduction of Work Force."  Plaintiffs assert that the terminations did not result from any sale because the  sale of assets contract was not signed until after the employee changeover  occurred.


10
Plaintiffs also claim that four of their number are owed separation pay as the  situations of the four fall within Smith's stated criteria for awarding  separation benefits. Plaintiffs assert that employees Granberry, Krengel,  Reasoner, and Wylie, all of whom transferred to Lockheed with comparable  positions, were laid off prior to completing one year of service with Lockheed  and should have received separation pay as defined by Smith.

II. STANDARD OF REVIEW

11
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103  L.Ed.2d 80 (1989), the Supreme Court discussed the appropriate standard of  review in 29 U.S.C.  1132(a)(1)(B)5 actions challenging a denial of benefits  based on plan interpretations. A review under the arbitrary and capricious  standard is appropriate where "the benefit plan gives the administrator or  fiduciary discretionary authority to determine eligibility for benefits or to  construe the terms of the plan." Bruch, 489 U.S. at 115, 109 S.Ct. 948. However,  "if a benefit plan gives discretion to an administrator or fiduciary who is  operating under a conflict of interest, that conflict must be weighed as a  'facto[r] in determining whether there is an abuse of discretion.' " Id.  (quoting Restatement (Second) of Trusts  187, Comment d (1959)). "[T]he  beneficiary need only show that the fiduciary allowed himself to be placed in a  position where his personal interest might conflict with the interest of the  beneficiary." Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d  1556, 1565 (11th Cir.1990) (quoting Fulton Nat'l Bank v. Tate, 363 F.2d 562, 571  (5th Cir.1966) (emphasis in original)). "A conflicted fiduciary may favor,  consciously or unconsciously, its interests over the interests of the plan  beneficiaries." Id. (citation omitted). The standard of review for a fiduciary  operating under a conflict of interest remains arbitrary and capricious with a  significantly diminished degree of deference. Id. at 1568. Although "[e]ven a  conflicted fiduciary should receive deference when it demonstrates that it is  exercising discretion among choices which reasonably may be considered to be in  the interests of the participants and beneficiaries," id., "the burden shifts to  the fiduciary to prove that its interpretation of plan provisions committed to  its discretion was not tainted by self-interest." Id. at 1566. If the fiduciary  succeeds in proving this burden, the opposing party "may still succeed if the  action is arbitrary and capricious by other measures." Id. at 1568.

III. APPLICATION
A.Interpreting the Plan

12
The Thiokol Plan designates the Administrator, Smith, as the person who is  responsible for interpreting the terms of the Plan and determining eligibility  under the Plan. The district court found that Smith was operating under a  conflict of interest because he "was not only an employee of Thiokol, but was  also an officer and stockholder." This circuit has noted that ERISA does not  prohibit an individual from "serving as a fiduciary in addition to being an  officer, employee, agent, or other representative of a party in interest."  Newell v. Prudential Ins. Co., 904 F.2d 644, 649 (11th Cir.1990) (quoting 29  U.S.C.  1108(c)(3) (West Supp.1990)). However, as we have noted, in reviewing  factors such as self-interest as pertains to the legal standard for reviewing  benefits determinations, "This task reaches the height of difficulty in a case  ... where an insurance company serves as the decisionmaking fiduciary for  benefits that are paid out of the insurance company's assets." Brown, 898 F.2d  at 1561.


13
In the case of Brown, which dealt with a health insurance company, we held that  "[b]ecause an insurance company pays out to beneficiaries from its own assets  rather than the assets of a trust, its fiduciary role lies in perpetual conflict  with its profit-making role as a business." Id.; see also Newell, 904 F.2d at  650 (citation omitted). Similar circumstances arise in the present case. Thiokol  is a profit-making business; the Plan provides that the payment of separation  pay would be made from the general assets of the corporation; and the  Administrator, a Thiokol employee, acknowledged that the cost could amount to  millions of dollars. There is clearly a conflict of interest which requires a  heightened scrutiny for abuse of discretion. See Newell, 904 F.2d at 651; see  also Brown, 898 F.2d at 1569 ("Because Blue Cross profits from such forfeitures,  we should demand strong justification for an interpretation which produces [a  forfeiture] result.").


14
Under the heightened standard, we must first determine the legally correct  interpretation of the disputed plan provision. Brown, 898 F.2d at 1570; Newell,  904 F.2d at 651. If the administrator's interpretation was legally correct, the  inquiry ends. Collins v. American Cast Iron Pipe Co., 105 F.3d 1368, 1370 (11th  Cir.1997). If the administrator's interpretation differs, we must then determine  whether the administrator was arbitrary and capricious in employing a different  interpretation. Brown, 898 F.2d at 1570; Newell, 904 F.2d at 651.


15
The original 1992 Plan document specifically excluded severance benefits for  "[t]ermination of employment resulting from ... (ii) the sale of all or part of  the business assets of the Company or a subsidiary or a business unit; ... or  (iv) any other form of reorganization including a spinoff; and the employee is  offered a position (whether or not such position is comparable to the prior  position) by the acquiring or resulting company;...." However, the July 1995  Amendment states that a separation allowance will not be paid for termination  "resulting from any sale, merger or reorganization of the company and the  workteam member terminates rather than accept a comparable position." The  Amendment language states that severance benefits will not be paid for an  employee who terminates when there is sale, merger or reorganization (while  implying that there is no restriction on severance benefits for an employee who  accepts a comparable position).6 (emphasis added). This language contradicts the  language in the 1992 Plan and creates an ambiguity. The Amendment also conflicts  with the explanations set forth in the Questions and Answers memo.


16
ERISA requires that employee benefit plans be "established and maintained  pursuant to a written instrument." 29 U.S.C.  1102(a)(1). In addition, by  requiring that each plan specify the procedure for amending the plan, id.   1102(b)(3), "Congress rejected the use of informal written agreements to modify  an ERISA plan." Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir.1986)  (citing Johnson v. Central States, Southeast and Southwest Areas Pension Fund,  513 F.2d 1173, 1174-75 (10th Cir.1975) (stating that benefits may not be  enforced according to a company booklet and letter that are inconsistent with  the terms of a written pension plan)). Although the Amendment is a formal,  written document as prescribed under ERISA, see 29 U.S.C.  1102(a)(1),  1102(b)(3), which modified the Plan as allowed, its primary purpose was to raise  the separation benefit amounts as pertains to the Space Services division. In  all other respects, it repeats the language of the Plan except for the one  contradictory statement.7


17
Under the decisions of this court and the laws of Florida, where the meaning of  a term is unclear or ambiguous, a reviewing court can consider extrinsic  evidence to explain the ambiguity. See Stewart v. KHD Deutz of America, Corp.,  980 F.2d 698, 702 (11th Cir.1993); Hurt v. Leatherby Ins. Co., 380 So.2d 432,  433 (Fla.1980); see also Vencor Hosp. South, Inc. v. Blue Cross and Blue Shield  of Rhode Island, 86 F.Supp.2d 1155, 1160 (S.D.Fla.2000). We find this also  applies in determining ambiguous language in an ERISA plan such as the one in  this case. As the Supreme Court noted in Bruch, where the plan did not delegate  discretionary or final authority to construe uncertain terms, the reviewing  court could "look[ ] to the terms of the plan and other manifestations of the  parties' intent." 489 U.S. at 112-13, 109 S.Ct. 948 (citations omitted).  Although Smith was delegated final authority, he also looked to "other  manifestations of the parties' intent." While the Questions and Answers memo  clearly supports the language of the Plan, Smith looked further in examining  extrinsic evidence which would explain Thiokol's intent. As indicated in the  record, he spoke with current and former Thiokol employees, who stated that the  Plan was created to formalize Thiokol's prior administrative policies with  regard to separation pay and to establish basic, uniform standards. The  management policy memo which predated the 1992 Plan provided that separation  benefits would not be paid in the case of a "[t]ermination as a result of any  sale or transfer of business, in whole or in part, or in cases of merger,  consolidation, or other reorganization where the individual is offered the  opportunity to remain in the same or a substantially equivalent position with  the new employer." Management Policy, Morton Thiokol, Inc. Aerospace Group  Support Services, Separation Allowance, February 27, 1989. Smith also reviewed  the employment and termination history of Thiokol and found that Thiokol had  consistently denied separation pay to employees who were displaced and accepted  comparable employment with a successor. See Anderson v. Ciba-Geigy Corp., 759  F.2d 1518, 1522 (11th Cir.1985) ("The Plan was consistently interpreted because  in every other divestment situation where Ciba-Geigy employees were retained in  their old positions by the purchasing entity, no severance pay was given."). All  of the extrinsic evidence points to the fact that the language of the Plan  policy, not the Amendment, is controlling.


18
The Plan language denies severance benefits where there is a sale of all or part  of the business assets of a subsidiary or business unit of Thiokol or where  there is a reorganization, and the employee is offered a position by the  acquiring or resulting company. Thiokol sold the assets of the Space Services  division to Lockheed, which then took over the division with all but  approximately forty of the previous employees. Thiokol Space Services ceased to  be an operating unit when Lockheed purchased a substantial portion of the Space  Services assets and began operating the division as its own. Smith determined  that the loss of the contract resulted in a reorganization of Thiokol because  the Space Services division ceased to exist as a Thiokol division and an  internal restructuring of Thiokol operations took place. Smith correctly  interpreted the sale or reorganization language to apply to Thiokol "as a whole  or to any subcomponent thereof."8


19
In making his initial determinations as to who might or might not be eligible  for separation pay, Smith also reviewed the positions and pay of all of the  Plaintiffs with respect to "comparability." Smith used a broader definition of  comparability than "90% or more of an employee's Thiokol wages," as stated in  the Questions and Answers memo, but took into account the wage amount, benefits,  and job duties. He determined that 303 employees were employed by Lockheed at  either the same or a higher initial base salary.


20
Smith also consulted two independent firms for advice. There is no requirement  that an administrator who occupies the dual role of fiduciary and employee of  the party in interest, such as Smith, must seek independent counsel in  interpreting and administering an ERISA plan. See Newell, 904 F.2d at 650  (citing Ashenbaugh v. Crucible Inc., 1975 Salaried Retirement Plan, 854 F.2d  1516, 1531-32 (3rd Cir.1988) (holding that a plan fiduciaries' reliance on  in-house counsel to aid in interpreting and administering the plan, rather than  hiring independent counsel, was not a violation of ERISA)).9 Smith commissioned  Towers Perrin, an international benefits consulting firm, to conduct an  actuarial analysis of the two benefit programs. The principal of the firm  reported that "there is not a material difference in the actuarial value of the  benefits provided by Thiokol Space Services and Lockheed Martin Space  Operations." While Smith found the non-salary benefit programs to be somewhat  different, he concluded that Thiokol's benefits and Lockheed's benefits were  "comparable in the aggregate." We note the evenhandedness of Smith's  decision-making process, as evidenced by Smith's extensive efforts to make  informed and knowledgeable decisions, including input from two independent  firms, in interpreting the Plan. While we do not address the merits of Smith's  "comparable job" findings, this showing of evenhandedness is evidence of Smith's  good faith efforts. See Anderson, 759 F.2d at 1522.


21
We find that Smith's decision was a fair and reasonable reading of the Plan  language. Id. Notwithstanding the contradictory statement contained in the  Amendment, the Plan clearly states no severance pay was to be awarded when there  is a sale or reorganization and the employee accepts a comparable position with  the new entity. See Harris v. Pullman Standard, Inc., 809 F.2d 1495, 1498 (11th  Cir.1987); Anderson, 759 F.2d at 1520 (holding that plan administrator's  decision to deny severance benefits was not arbitrary or capricious when  company's ERISA plan provided for an exception to severance pay provision).  Contrary to Plaintiffs' assertion that this was a RIF, the record shows that  Thiokol acted as if this was a sale or reorganization, not a RIF. Lockheed and  Thiokol informed Plaintiffs of the terms and conditions under which they would  be transferred to Lockheed. Plaintiffs were placed on notice by the Questions  and Answers memo, which stated that those employees accepting a comparable job  would not receive severance benefits. See Anderson, 759 F.2d at 1522. Plaintiffs  had a reliable document which explained the affect of his or her decision to  accept a position with the new company in relationship to eligibility for  severance benefits from the old company. See Sharron v. Amalgamated Ins. Agency  Services, Inc., 704 F.2d 562, 566-67 (11th Cir.1983) (upholding denial of  benefits where company distributed booklet which discussed the effect of breaks  in service as to pension plan benefits and which contained hypothetical  questions and answers and addressed plaintiff's specific situation).


22
One of the primary goals of an ERISA plan should be the protection of the  employees' interests. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103  S.Ct. 2890, 77 L.Ed.2d 490 (1983). However, an ERISA plan administrator is  required to administer a plan "in accordance with the documents and instruments  governing the plan insofar as such documents and instruments are consistent with  the provisions [of ERISA]." 29 U.S.C.  1104(a)(1)(D). Smith noted the Plan's  stated purpose was to "provide unemployment income assistance," and concluded  that the employees who transferred to Lockheed were not unemployed and did not  experience a material loss of income. As Smith stated, "It is not the intent of  the severance pay Plan to provide bonus payments to individuals who have  experienced no income loss." See Bradwell v. GAF Corp., 954 F.2d 798, 801 (2nd  Cir.1992).


23
In this case, we agree with the Eighth Circuit's holding in Harper v. R.H. Macy  & Co. Inc., which stated, "[W]hen terminated employees are immediately rehired  by a departing [employer's] successor under terms that are comparable to those  received from their initial employer, the employees are not entitled to  severance benefits." 920 F.2d 544, 545-46 (8th Cir.1990) (citations omitted).  The Thiokol Plan anticipated and addressed this type of situation. See Bradwell,  954 F.2d at 800 ("By its plain language and evident intent, the Severance Pay  Policy does not entitle appellants to recover."); Headrick v. Rockwell Int'l.  Corp., 24 F.3d 1272, 1276 (10th Cir.1994). Any severance pay from Thiokol would  have been the equivalent of a windfall recovery for the Plaintiffs, who never  suffered a day of decreased pay or unemployment.10


24
As to Plaintiffs' assertion that the sale of assets did not occur until after  the transition, Smith stated that he had been told of Lockheed's intent to  purchase the division's assets and retain the personnel prior to July 1995 in  order to prepare the severance pay communications given to the employees. The  Lockheed letter and Special Report to Employees support this contention. An  affidavit given by Thiokol's contracts manager also stated that Lockheed was  contractually obligated to purchase the Space Services assets upon termination  of the subcontract. Given the fact that negotiations regarding the sale of Space  Services assets had been ongoing after Lockheed announced it would not renew  Thiokol's employment contract, we do not find the fact that the sale of assets  contract was signed on October 2, 1995 to be determinative.


25
Nothing in the record indicates Smith acted in anything other than good faith.  See Anderson, 759 F.2d at 1522. Although he alone was given the authority to  interpret the Plan, he requested an independent actuarial evaluation and  solicited an independent review from an outside law firm. We find that Smith's  interpretation was legally correct and therefore affirm this portion of the  district court's finding of summary judgment.11

B.Granberry, Krengel, Reasoner, and Wylie

26
We find, however, there is a dispute of material fact as to the Plaintiffs'  claim for severance benefits owing to Plaintiffs Granberry, Krengel, Reasoner,  and Wylie. In his deposition, Smith stated that he would consider awarding  severance pay to any employee who had accepted a comparable position, but who  was then terminated with less than a year of employment at Lockheed. Also in his  deposition, Smith discussed the fact that in one of his letters to Plaintiffs'  counsel, he requested information on any Thiokol employee who had been laid off  by Lockheed through December 1996. He stated that he would be willing to  consider severance benefits for any previous Thiokol employee who had been laid  off or let go from Lockheed prior to December 1996, provided there was no  unusual problem or provocation on the employee's part, such as violence.


27
Plaintiffs argue that Granberry, Krengel, Reasoner, and Wylie accepted  comparable positions with Lockheed but were terminated prior to one year's  employment. Notice of Granberry, Krengel, and Reasoner having been laid off on  May 31, 1996, May 1, 1996, and May 1996, respectively, was submitted in an  attachment to a letter dated February 26, 1997, from Plaintiffs' counsel to  Smith. There was no notice of Wylie having been laid off in that correspondence.  In his letter of March 31, 1997 to Plaintiffs' counsel, Smith acknowledges  having received information that Granberry and Krengel were laid off by Lockheed  between December 1995 and October 1, 1996. Defendants mistakenly argued that  Plaintiffs' counsel never disclosed when Granberry and Krengel were terminated.  In a follow-up letter to Smith dated April 25, 1997, Plaintiffs' counsel  repeated that Granberry, Krengel, and Reasoner had been laid off, in addition to  noting that Wylie had also been laid off by Lockheed in May of 1996.


28
While there is evidence in the record supporting Plaintiffs' assertions on this  issue, we find no evidence that Smith individually addressed the situation of  these four employees and no specific indication of the grounds on which he  determined they were not eligible for severance benefits. In his letter of June  13, 1997, Smith stated he was awarding severance benefits to employees DeSantis  and St. John based upon the premise that, because DeSantis was laid off by  Lockheed in December 1995 and St. John's offer of employment was retracted in  November 1995, the two "were not offered continued employment." Because Smith  has stated he would, and did, consider eligibility for employees who were  terminated from Lockheed prior to a year's employment, yet did not distinguish  why these four employees who fell within his stated exception were denied  benefits,12 we reverse the order of summary judgment as to these four Plaintiffs  and remand this issue to the district court for further findings and a  determination as to whether or not these four were exceptions under Smith's  stated criteria and should or should not have received separation benefits.

IV. CONCLUSION

29
We affirm in part the district court's order of summary judgment denying  Plaintiffs separation benefits and reverse and remand in part for further  findings as to the four Plaintiffs who were terminated from Lockheed prior to  one year's service with the company.


30
AFFIRMED in part; REVERSED and REMANDED in part.



NOTES:


*
 Honorable Harlington Wood, Jr., U.S. Circuit Judge for the Seventh Circuit,  sitting by designation.


1
 Thiokol Corporation became Cordant Technologies, Inc. as a result of a name  change in 1998.


2
 There were approximately forty Thiokol employees who were not offered positions  by Lockheed, who received separation pay and who are not part of this suit.


3
 Plaintiffs do not disagree that the actual pay rates were equal or greater.  However, they maintain that because they paid more for equivalent medical  insurance coverage, received less vacation benefits (which were modified after  the denial of separation benefits), and had their separation pay benefits  reduced (from a maximum of twenty-six weeks at Thiokol to a maximum of four  weeks at Lockheed), the resulting wages were equal or less.


4
  29 U.S.C.  1002(1) states in relevant part that an "employee welfare benefit  plan" is "any plan, fund, or program ... maintained by an employer ... to the  extent that such plan, fund, or program was established or is maintained for the  purpose of providing for its participants ... (A) ... benefits in the event of  ... unemployment...." Thus, a severance pay plan is an "employee welfare benefit  plan," as defined under ERISA.


5
 29 U.S.C.  1132(a)(1), provides that a "civil action may be brought ... by a  participant or beneficiary [of a covered plan] ... (A) for the relief provided  for in [ 1132(c) ], [or] (B) to recover benefits due to him under the terms of  his plan."


6
 Although we suspect the language of the Amendment was a simple  misstatement-presuming that Thiokol intended to state no separation allowance  would be paid for: "Termination resulting from any sale, merger or  reorganization and the workteam member accepts a comparable position or  terminates rather than accept a comparable position"-the ambiguity which arises  from the conflicting language of the Plan and the Amendment must be addressed.


7
 The Questions and Answers memo is not controlling as it is simply an informal  employee communication. See Nachwalter, 805 F.2d at 960.


8
 Smith also took into account the fact that the transaction had been treated as a  sale of substantially all of the assets of a separate trade or business under  Thiokol's 401(k) plan, thus allowing Plaintiffs to receive distribution of their  401(k) plan accounts.


9
 The Third Circuit notes that the only ERISA cases which require independent  counsel have to do with the conduct of fiduciaries in connection with the  investment and management of plan assets, an area in which ERISA fiduciaries are  uniformly held to stricter standards. Ashenbaugh, 854 F.2d at 1532 (citations  omitted).


10
 This does not address those employees who are terminated but may then find  alternate employment on their own. See Bradwell, 954 F.2d at 800.


11
 Plaintiffs argue that this court's decision in Bedinghaus v. Modern Graphic  Arts, 15 F.3d 1027, 1032 (11th Cir.1994), which awarded severance pay to  employees from one company who were retained with a successive corporation,  requires reversal of the district court's order. We disagree. The panel itself  distinguished Bedinghaus in noting that the termination benefits policy had no  exception to severance pay eligibility based on a sale or reorganization where  the employees remained in comparable positions. 15 F.3d at 1032.


12
 Plaintiffs also argued this issue in their Motion for Summary Judgment. However,  in their response, Defendants did not offer any further information to resolve  Smith's apparent contradiction in stating that he would consider granting  severance benefits to any employees who were terminated by Lockheed prior to  December 1996 but why he did not do so in the case of these four employees. Nor  did Defendants' appellate brief offer any specific information on this issue.


