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Ninth Circuit Considers Pre-Appeal Conduct in Plan's Request for Appellate Attorney's Fees

The Ninth Circuit ruled that a district court erred by failing to consider the entire course of the litigation when analyzing a request for attorney's fees under ERISA and remanded the case for a calculation of fees. A plan participant filed suit against a plan and insurer seeking disability benefits. The plan, in turn, filed a cross-claim against the insurer seeking reimbursement of costs it would be required to expend in the lawsuit. The plan ultimately received an award for attorneys' fees from the insurer in connection with the plan's work in the case. The insurer appealed the award of attorney's fees and lost. The plan then sought to recover its attorney's fees associated with the appeal. The Ninth Circuit concluded that the insurer's actions in the underlying benefits claim litigation were relevant to a determination of whether to award attorney's fees to the plan in connection with the appeal, and held that the district court erred when it failed to consider them. The case is Micha v. Sun Life Assurance of Canada, Inc., No. 16-55053, 2017 WL 4896481 (9th Cir. Oct. 31, 2017).

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About this Author

Benjamin Flaxenburg, attorney, Proskauer, Louisiana, Employee benefits, executive compensation, labor and employment law
Attorney

Benjamin O. Flaxenburg is an associate in the Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group.

Prior to joining Proskauer, Ben served as an extern for the United States Attorney’s Office for the Eastern District of Louisiana and as a judicial extern to the Honorable Nannette Jolivette Brown at the United States District Court for the Eastern District of Louisiana. Ben was also a managing editor of the Tulane Maritime Law Journal, a member of the Tulane’s Moot Court Board and...

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