Attorneys' Fees

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Peer v. Liberty Life Assurance Co. of Bos., No. 19-13974, 2021 WL 1257440, __ F.3d __ (11th Cir. Apr. 6, 2021) (Before Circuit Judges Wilson, Lagoa, and Brasher).

This week the Eleventh Circuit tackled one of the issues nearest and dearest to attorneys’ hearts: fees. Specifically, when a court awards fees under ERISA, against whom can they be awarded? The party, the attorney, or both? The Eleventh Circuit noted that this was “a question of first impression that has split the district courts within and without this circuit.”
Continue Reading Eleventh Circuit Holds That Fees Can Only Be Awarded Against Parties, Not Attorneys

Good morning, ERISA Watchers!  Just moments after last week’s newsletter went out, the U.S. Supreme Court handed down its 9-0 decision in Intel Corp. Inv. Policy Comm. v. Sulyma, No. 18-1116, __S.Ct.__, 2020 WL 908881 (U.S. Feb. 26, 2020), a case involving allegations of imprudent investment of retirement plan assets.  The court held that to meet the “actual knowledge” requirement to trigger ERISA’s three-year limitations period, a plaintiff must have become aware of the information; actual knowledge does not exist where a plaintiff receives disclosures with the information but does not read them or cannot recall reading them.  The decision comes as no surprise where at the oral argument Justice Ruth Bader Ginsburg (my Shero) stated, “I must say, I don’t read all the mailings that I get about my investments.”  The decision makes perfect sense.  I mean, it’s 4 a.m., do you know what your investments are up to?
Continue Reading District Court Reduces Class Counsel Common Fund Fee Award Due to Attorney Misconduct

This week’s notable decision is another terrible decision for ERISA plan participants out of the Fifth Circuit Court of Appeals:  Ariana M. v. Humana Health Plan of Texas, Inc., No. 18-20700, __F.App’x__, 2019 WL 5866677 (5th Cir. Nov. 8, 2019) (“Ariana II”).  This is a disappointing sequel in a case where the Fifth Circuit previously issued a plaintiff-friendly decision on the standard of review applied in ERISA cases.  The case first reached the Fifth Circuit in Ariana M. v. Humana Health Plan of Texas, Inc., 884 F.3d 246 (5th Cir. 2018) (“Ariana I”) in which the court issued an en banc published decision overturning the longstanding position on standard of review in Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir. 1991).  The court reversed and remanded the case to the district court for review under a de novo standard of review. (Read more about Ariana I in Brent Dorian Brehm’s Fall 2017 EBC Newsletter article: What Does de novo Review Mean Under ERISA?)
Continue Reading Fifth Circuit Denies Attorneys’ Fees to Plaintiff for en banc Success Changing Judicial Standard of Review