In Hardt v. Reliance Standard Life Ins. Co., 2010 WL 2025127 (U.S. May 24, 2010), the U.S. Supreme Court decided that an ERISA litigant does not have to “prevail,” but still must achieve some degree of success on the merits before being entitled to an attorney’s fees award under the ERISA fee-shifting statute, 29 U.S.C. § 1132(g). However, it did not foreclose the possibility that even other more traditional factors might have to be evaluated even after passing the “some degree of success on the merits” door.
Now, the Ninth Circuit in Simonia v. Glendale Nissan/Infiniti Disability Plan, Case No. 09-56025 (9th Cir. June 24, 2010) (for publication) has decided, picking up on the caveat in Hardt, that district courts must consider five factors enunciated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir. 1980) even after determining an ERISA litigant has achieved some degree of success on the merits. The Hummell factors are: (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ positions.