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ERISA Litigation and Attorneys’ Fees

Level: Advanced
Runtime: 92 minutes
Recorded Date: August 20, 2020
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        • Overview
        • A Plaintiff's Attorney's Perspective on Attorneys' Fees
        • Defendants' Counsel Perspective on Seeking or Opposing Fees
                - Factor One: The Degree of Bad Faith
                - Factor Two: Deterrence
                - Factor Three
                - Factor Four: Common Benefit
                - Factor Five: Relative Merits of the Parties' Position
        • What is a Reasonable Fee?
        • Q & A

Runtime: 1 hour, 32 minutes
Recorded: August 20, 2020


This panel will discuss recent developments over the past several years regarding the award of attorney's fees in ERISA litigation.

Topics to be addressed include awards of attorney's fees when a case is remanded for further review by the plan administrator in litigation, fee awards to prevailing defendants in ERISA litigation, as well as recent trends regarding the determination of what constitutes a reasonable attorney's fee in single plaintiff ERISA benefits litigation. The impact of forced mediation and arbitration on attorney's fees in ERISA claims will also be discussed.

This program was recorded on August 20th, 2020.

Provided By

American Bar Association
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Adam Garner

The Garner Firm

Adam H. Garner is a respected, nationally recognized, ERISA employee benefits and employment lawyer who represents employees, executives, managers, and professionals in all aspects employee benefits law, as well as in certain types of employment disputes. Adam founded The Garner Firm to help individuals get justice in the workplace, and the employment-related benefits they earned and to which they are entitled.

The laws governing employee benefits, the employment relationship, and the workplace are complex. Adam’s clients value his judgment, his ability to understand and explain these laws, and his forceful advocacy on their behalf. Adam is admitted to practice law in Pennsylvania, Maryland, and New Jersey and has appeared in state and federal courts throughout the United States, as well as before numerous federal, state, and local governmental agencies.

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Mala M. Rafik

Rosenfeld & Rafik, P.C.

Mala is a partner at Rosenfeld & Rafik, P.C., a law firm in New England representing clients denied access to health care as well as individuals seeking short- and long-term disability, life and long-term care benefits from private insurance carriers. Mala's clients are typically individuals with debilitating chronic illnesses and disabilities for whom she has achieved several pivotal litigation victories in state and federal court. She also has represented several nonprofit organizations whose mission is to foster or provide excellent health care for people in Massachusetts.

Mala is a past Chair of the Insurance Law Section of the American Association for Justice, a Vice-Chair of the Health and Disability Law Committee and a Vice-Chair of the Life Insurance General Committee within the Tort Trial & Insurance Practice Section of the American Bar Association, a Sub-Committee Co-Chair of the Employee Benefits Committee of the American Bar Association Labor and Employment Section, a co-chair of the Federal Bar Association's Massachusetts Chapter of Employment Law, Social Security & Disability Law Committee, a member of the Massachusetts Academy of Trial Lawyers Board of Governors, a Fellow of the American Bar Association, a member of the Juvenile and Child Welfare Section Council of the Massachusetts Bar Association, a former member of the Boston Bar Association Council, a former Chair of the Legal Referral Services section of the Boston Bar Association and a former Chair of the Civil Rights and Civil Liberties Section of the Boston Bar Association. She is also the Chair of the Board of Directors of Health Law Advocates, a member of the Board of Directors of Prisoner's Legal Services and a member of the Board of the Massachusetts Legal Assistance Corporation.

Mala has been both a Massachusetts Rising Star and Super Lawyer in Boston Magazine since 2007, and was named a 2006 Up & Coming Lawyer and 2012 Top Women of Law honoree and a 2015 Circle of Excellence honoree by Massachusetts Lawyers Weekly. From 2013 to 2017, Mala has been named one of the top 50 women lawyers in Massachusetts by Super Lawyers. From 2014 to 2017, Mala was named one of the top 50 women lawyers in New England and one of the top 100 lawyers in Massachusetts by Super Lawyers. In 2015, Mala was honored as one of the top 100 lawyers in New England by Super Lawyers.

Mala taught Disability Law at New England Law and is a graduate of Colby College and Northeastern University School of Law.

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Brooks Magratten

Pierce Atwood, LLP.

Brooks Magratten has more than 30 years of experience in insurance, product liability and commercial litigation. He is the former Northeast Regional Director of DRI and former chair of its Life, Health & Disability Insurance Committee.

Brooks is a frequent author, instructor and lecturer on ERISA issues and trial skills. He has represented commercial interests in litigation throughout the northeastern U.S. He is an adjunct professor of the Roger Williams Law School, teaching federal practice and procedure.

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Clarissa Kang

Trucker Huss, APC

Clarissa advocates zealously and effectively for employee benefit plans, plan administrators, plan sponsors, and other fiduciaries before federal and state courts and government regulatory agencies.

As a director in our nationally recognized ERISA litigation group (First Tier Nationally in US News and World Report Best Lawyers), she has handled a broad spectrum of litigation, including cases involving benefit claims, fiduciary issues, plan administration, multiemployer plans, withdrawal liability, delinquent contributions, plan reimbursement and subrogation, non-ERISA benefit plans (such as governmental plans and church plans), and class actions. In addition to serving as an advocate in active litigation, Clarissa advises and represents retirement plans, health and welfare plans, and plan fiduciaries in investigations and agency actions commenced by the U.S. Department of Labor, the Internal Revenue Service, and U.S. Department of Health & Human Services. Taking a practical and thoughtful approach, Clarissa provides advice and support to plan fiduciaries in their determination of benefit claims and appeals. With an eye for detail, she negotiates investment management and service provider agreements on behalf of plans and their fiduciaries.

Clarissa is a frequent presenter on ERISA litigation, plan administration, benefit claims administration, and fiduciary responsibility. Clarissa has authored several articles, including articles on judicial review of benefit claims, remedies after CIGNA Corp. v. Amara, and arbitration provisions in plans.

Clarissa is admitted to practice before the state and federal district courts of California (Northern, Central, Eastern, Southern), the Ninth Circuit Court of Appeals, the U.S. Supreme Court, and the state and federal district courts of Hawaii.

She has been listed as a Northern California “Super Lawyer” in the area of employee benefits law since 2014 and received the Minority Bar Coalition 2015 Unity Award for promoting diversity and inclusion in the legal profession. Clarissa has also been selected by her peers for inclusion in Best Lawyers® in America since 2020 in the practice area of ERISA Litigation.

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