ERISA Attorneys' Fee Provision Does Not Limit Fee Awards to the Prevailing Party

In Hardt v. Reliance Standard Ins. Co., No. 09-448, the United States Supreme Court held that a person does not have to be a "prevailing party" in order for attorneys' fees to be awarded under 29 U.S.C. § 1132(g)(1) of ERISA.  Attorneys' fees may be awarded to either party if the fee claimant shows that he or she has achieved "some degree of success on the merits."  The Court noted that the standard under Section 1132(g)(1) for awarding attorneys' fees is different from the standard under Section 1132(g)(2). Section 1132(g)(2) governs awards of attorneys' fees in actions to recover delinquent employer contributions to a multiemployer plan, and requires a judgment in favor of the plan in order for attorneys' fees to be awarded. The Court stated in a footnote that its decision does not foreclose a court, after a fee applicant has met his or her burden, from applying the five-factor test for awarding attorneys' fees used in the Fourth Circuit Court of Appeals, which test also is used in other circuits, including the Tenth Circuit Court of Appeals.