October 23, 2018

October 23, 2018

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October 22, 2018

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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).

Benjamin Flaxenburg contributed to this post.

© 2018 Proskauer Rose LLP.

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About this Author

Russell L Hirschhorn ERISA Litigation, employee benefits attorney, Proskauer
Senior Counsel

Russell Hirschhorn is a Senior Counsel in the Labor & Employment Law Department, where he focuses on complex ERISA litigation and advises employers, fiduciaries and trustees on ERISA benefit and fiduciary issues. 

Russell represents employers, plan sponsors, plans, trustees, directed trustees and fiduciaries in all phases of litigation, arbitration and mediation involving employee benefits, including class action and individual claims relating to ERISA’s fiduciary duty and prohibited transaction provisions, denials of claims for benefits, severance plans, ERISA Section 510,...

212.969.3286
Stacey Cerrone, Labor and Employment Attorney, Proskauer Rose Law FIrm
Senior Counsel

Stacey C.S. Cerrone is a senior counsel in the Labor & Employment Law Department, where she focuses her practice on ERISA litigation and labor and employment law.

Stacey represents plan sponsors, plans, directed trustees, and fiduciaries in all phases of litigation and mediation involving all aspects of ERISA, including: class actions and individual claims relating to ERISA's fiduciary duty and prohibited transaction provisions; denials of claims for benefits; church plans, severance plans; ERISA Section 510; retiree benefits; ERISA preemption of state law claims; and plan investment losses.

Stacey’s work also includes wage and hour law, handling numerous wage and hour class and collective actions. She also does employment law work including employment discrimination, sex harassment, gender discrimination, race discrimination, national origin discrimination and ADA claims. She also handles traditional labor law matters, including collective bargaining and defending unfair labor practice charges. Stacey is the author of numerous speeches and articles. She is co-editor of the Employee Benefits & Executive Compensation blog and co-chair of and contributor to the “ERISA Preemption and Effect on Other Laws” chapter of the ABA Labor & Employment Section's Employee Benefits Law book and the author of the “When is Preliminary Relief Available” chapter in BNA’s ERISA Litigation book.

504.310.4086