Opinion
No. 99 C 7726
November 6, 2001
MEMORANDUM OPINION AND ORDER
On February 5, 2001, we granted summary judgment for defendants Central States, Southeast and Southwest Areas Pension Fund and its trustees (Central States), and United Parcel Service (UPS). Plaintiff promptly appealed. Central States thereafter moved for attorneys' fees of some $117,000. This court continued to have jurisdiction to consider that motion. Nevertheless, we delayed ruling until after resolution of the appeal. The judgment for defendants was affirmed on October 18, 2001. We now deny the motion for fees.
This circuit relies on two tests to decide whether or not fees should be awarded, although their impact Is not substantially different. Was the losing party's position substantially justified, which means more than merely not frivolous, but less than meritorious? Or the court may weigh five factors: 1) the degree of the opposing party's culpability or bad faith; 2) ability to satisfy an award of fees; 3) the deterring effect of an award on the filing of unfounded claims; 4) whether a party seeking fees sought to benefit all participants and beneficiaries of an ERISA plain or to resolve a significant legal question regarding ERISA; and 5) the relative merits of the parties' positions. Brewer v. Protexall, Inc., 50 F.3d 453, 458 (7th Cir. 1995); Harris Trust and Savings Bank v. Provident Life and Accident Insurance Co., 57 F.3d 608, 616 (7th Cir. 1995). But overlaying those standards is the notion that they should be applied differently between a prevailing participant and a prevailing plan. ". . . (R)efusal to award attorneys' fees and costs to ERISA defendants, even 'prevailing' defendants, would rarely constitute an abuse of discretion." Marquardt v. North American Car Corp., 652 F.2d 715, 719 (7th Cir. 1981).
Defendant's motion is not without some force. We did not find plaintiff's claim to be at all persuasive, and it appears that he did not advance it until he had terminated his position with the union, some considerable time after the claim arose, and, apparently, without much prior investigation. He then teamed up with an attorney with a history of tilting against the union. He has assets. Still, the issues were relatively complex: both this court and the Court of Appeals delivered opinions of some length, dealing with the merits of the claims. Defendant's ability to collect any judgment is marginal at best; apparently only very limited assets could be reached by a judgment. In one sense, plaintiff was seeking to benefit the fund in the unlikely event that UPS could be forced to make the payments and remain in Central States. Finally, plaintiff must owe his attorney a substantial amount. Either he pays It, the attorney writes it off, or they split the loss. In any event, that obligation, as pointed out in Marquardt v. North American Car Corp., supra, is itself a significant deterrent. We think It Is time to close out this chapter and move on.