Last year, in Hardt v. Reliance Standard Life Ins. Co., 2010 WL 2025127 (2010, S. Ct.) (summary of case), the United States Supreme Court ruled that a court could award attorneys fees and costs under ERISA 502(g)(1) to a fee claimant if the claimant had "some degree of success on the merits" in an ERISA case, even if that party was not the "prevailing party." (The Hardt plaintiff had been someone receiving long-term disability who sued for wrongful denial of her claim). It seemed a success in an ERISA case meant that the recipient of that success could receive attorneys fees and costs.

Not so in Toussaint v. JJ Weiser, Inc., 2001 WL 2175987 (2011, 2d. Cir.). In that case, an association of former unionized worker retirees sued two former association directors alleging that they had breached their fiduciary duty to the association and members by buying and maintaining a health insurance policy with expensive premiums that outweighed benefits received. The district court granted summary judgment in favor of the directors in 2008, which the Second Circuit affirmed. In 2009, the district court denied a motion by the directors for attorneys fees.

The district court appiled the Second Circuit's 5-factor test for awarding attorneys fees under ERISA 502(g)(1)...