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HABERERN v. KAUPP VASCULAR SURGS.

May 23, 1994

RUTH HABERERN, Plaintiff
v.
KAUPP VASCULAR SURGEONS, LTD.; DEFINED BENEFIT PLAN AND TRUST AGREEMENT; LEHIGH VALLEY VASCULAR SURGEONS LTD.; LEHIGH VALLEY VASCULAR SURGEONS LTD. RETIREMENT PLAN; and KENNETH M. McDONALD, TRUSTEE, Defendants



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 I. INTRODUCTION

 In this action, Ruth Haberern ("Plaintiff") successfully challenged Defendants' violations of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"). *fn1" Plaintiff now requests attorneys' fees and costs in the amount of $ 276,611.30 for services rendered by Drinker, Biddle & Reath ("Drinker"), $ 38,156.66 for services rendered by Maloney, Danyi, Davis & Danyi ("Maloney"), and $ 15,242.00 for services rendered by the accounting firm Buckno, Lisicky & Company ("Buckno"). In the alternative, Plaintiff seeks enhanced fees of $ 333,461.30 for Drinker, and $ 18,242.00 for Buckno reflecting fees calculated at 1993 hourly rates. Plaintiff does not request an enhanced fee for Maloney.

 II. THE "URSIC" FACTORS

 Section 502(g)(1) of ERISA, 29 U.S.C.A. § 1132(g)(1), provides: "in any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court, in its discretion, may allow reasonable attorney's fees and costs of action to either party."

 In the Third Circuit, courts consider five factors in determining whether to award attorneys' fees under ERISA:

 
a) the offending parties' culpability or bad faith;
 
b) the offending parties' ability to pay;
 
c) the deterrent effect of an award of attorneys' fees on the offending party and others similarly situated;
 
d) the benefit conferred on members of the pension plan as a whole; and
 
e) the relative merits of the parties' position.

 Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3rd Cir. 1983). The Court must consider "each factor in balance and relationship to the others." Ellison v. Shenango Inc. Pension Bd., 956 F.2d 1268, 1278 (3d Cir. 1992). Applying the Ursic factors, the Court finds that the Plaintiff is entitled to reasonable attorneys' fees and costs.

 Second, as Defendants have failed to produce any evidence on point, the Court must conclude that they are able to satisfy any award. Ellison, 956 F.2d at 1277; Monkelis v. Mobay Chemical, 827 F.2d 935, 937 (3d Cir. 1987). *fn2"

 Third, in light of Defendants' culpability and shocking disregard for the rights of Plan beneficiaries, an award of attorneys' fees will be a useful deterrent against future violations of ERISA. The retirement of Dr. Kaupp, who Defendants argue was primarily responsible, does not alter this conclusion. Defendants' ...


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