A recent Legal Intelligencer story, “Third Circuit Adopts Recovery Scheme for Attorney Fee Awards Under ERISA,” reports that litigants who catalyze the defense to change course in an ERISA case, even if there is no judgment from the court, can still seek to collect attorney fees in the Third Circuit.  The appeals court made the ruling in a decision that officially endorsed for the first time the catalyst theory for attorney fee recovery in cases brought under the Employment Retirement Income Security Act (ERISA).

The U.S. Supreme Court’s 2001 decision in Buckhannon Board & Care Home v. West Virginia Department of Health and Human Resources, which rejected the use of the catalyst theory in cases brought under the Fair Housing Amendments Act and the Americans with Disabilities Act, could have been a roadblock, but the U.S. Court of Appeals for the Third Circuit held that ERISA is different than those statutes.

“To begin, the ERISA statute does not limit fee awards to the prevailing party,” Judge Richard L. Nygaard said on behalf of the three-judge panel.  “The Supreme Court specifically held that a claimant need not be a ‘prevailing party’ to be eligible for an attorney fees award under ERISA,” he said, citing to a different Supreme Court case, Hardt v. Reliance Standard Life Insurance from 2010.

He noted that four circuits have held, in the wake of Buckhannon, that the catalyst theory is available under statutes that don’t have prevailing party requirements.  ERISA is one of the statutes that doesn’t reserve attorney fee awards for only prevailing parties and the Second Circuit, in 2013, extended the catalyst theory to ERISA cases, specifically.

NALFA also reported on this issue in “Third Circuit Wrestles with Attorney Fees Under ERISA”