Health Administration Responsibility Project


ERISA allows attorney fees to prevailing "participant, beneficiary, or fiduciary", per 29 USC 1132(g)(1).
So no fees for a prevailing Insurer.
Circuits have different interpretations on attorney fees otherwise.

Here are some 9th Circuit cases.

There is a presumption of attorney fees for a prevailing plaintiff.
Smith v. CMTA, (9th Cir 1984) 746 F2d 587, 589 .
absent "special circumstances" McElvaine v. US West (9th Cir. 1999) 176 F.3d 1167, 1172

No fees for a prevailing Employer.
Tingey v. Pixley-Richards West, Inc. (9th Cir 1992) 958 F2d 908.
West v. Greyhound (9th Cir 1983) 813 F.2d 951, 956
except for plaintiff bad faith:
Flanagan v. Inland Empire (9th Cir. 1993) 3 F.3d 1246
Est. of Shockley v. Alyeska (9th Cir. 1997) 130 F.3d 403,408

No Attorneys fees for administrative proceedings before filing suit.
Cann v. Carpenter's Pension Trust Fund of Northern California, (9th Cir 1993) 989 F.2d 313, 318.

Reasonable hours and rate, D'Emanuele v. Montgomery Ward (9th Cir. 1990) 904 F.2d 1379, 1383

Adjustments up or down are the exception.
Bernardi v. Yeutter, 942 F2d 562 (9th Cir 1991). Multiplier of 2.0. allowed
Burlington v. Dague, 505 U.S. 557 (1992), Invalidated an enhancement in contingent fee
Reduction reversed in D'Emanuele
Judge must justify changes to lodestar
Contingent fee may warrant an enhancement for the increased risk
Fischel v. Equitable (9th Cir. 2002) 307 F.3d 997, 1008, "It is abuse of discretion to fail to apply a risk multiplier if:"

  1. attorney took the case expecting it
  2. hourly rate didn't reflect the risk, and
  3. the case was risky.

Costs of Suit

No reimbursement of costs of suit.

Prejudgment Interest is discretionary

Factors from Hummell v. Rykoff (9th Cir. 1980) 634 F.2d 446, 453

  1. degree of opposing party's culpability or bad faith
  2. ability to satisfy an award of fees
  3. possible deterrence
  4. whether requesting party sought to benefit all participants or resolve a significant legal question
  5. relative merits of parties' positions
  6. These factors are not exclusive

Punitive Damages

None, per Mertens v. Hewitt (1993) 508 US 248
HARP Home Page ERISA Page Top of Page

Please send comments, suggestions and relevant citations to