Court Of Appeals Applied Hummell Test, But Suggested It Might Adopt Seventh Circuit’s Automatic-Entitlement Rule If It Had Been Properly Raised Below.
Today we inaugurate a new sidebar category: fees on fees. This refers to fee entitlement for successfully defending or attacking an earlier award, or denial of an award, of fees. Given that we now have over 4000 posts on our blog, we're not going to go back to when we started in 2008 and add the new category to older cases involving fees on fees. But we will do our best to apply the new category going forward.
In Micha v. Sun Life Assurance of Canada, No. 16-55053 (9th Cir. Oct. 31, 2017) (published), the district judge refused to award appellate attorney’s fees (appellate fees-on-fees) for a litigant’s successful defense on appeal of an ERISA-based attorney’s fees award. In doing so, it applied the five factors in Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir. 1980)—namely, (1) degree of culpability or bad faith; (2) ability to pay; (3) deterrence; (4) significance of legal issue/benefit to all ERISA plan participants; and (5) relative merits of the parties’ positions—in denying fees to the appellate fees-on-fees claimant.
The Ninth Circuit reversed and remanded, determining that the district judge had failed to apply the Hummell factors correctly by failing to consider the entire course of the litigation rather than focusing exclusively on the prior appeal. In addition, although it had not been raised at all before the district court, the Ninth Circuit panel (both the majority and a concurring circuit judge) strongly hinted that it might have applied the Seventh Circuit’s automatic-entitlement rule from Bandak v. Eli Lilly & Co. Ret. Plan, 587 F.3d 798, 803 (7th Cir. 2009) had it been properly raised below.
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