Janeiro v. Urological Surgery Professional Ass'n

United States Court of Appeals
For the First Circuit

Nos. 05-2150; 05-2208

JOHN J. JANEIRO, JR.,

Plaintiff, Appellee/Cross-Appellant,

v.

UROLOGICAL SURGERY PROFESSIONAL ASSOCIATION; UROLOGICAL SURGERY
PROFESSIONAL ASSOCIATION MONEY PURCHASE PENSION PLAN AND TRUST;
UROLOGICAL SURGERY PROFESSIONAL ASSOCIATION PROFIT SHARING PLAN
AND TRUST; EDWARD A. CHIBARO, M.D.,

Defendants, Appellants/Cross-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.

Alexander J. Walker, Jr., with whom Danielle L. Pacik,
Jeanneane N. Osborne, and Devine, Millimet & Branch, P.A. were on
brief, for appellants/cross-appellees.
Thomas J. Donovan, with whom McLane, Graf, Raulerson &
Middleton Professional Association were on brief, for
appellee/cross-appellant.

August 7, 2006

*
Of the Ninth Circuit, sitting by designation.
 LYNCH, Circuit Judge. This is a case arising under the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001-1461. After a bench trial, plaintiff John J. Janeiro, Jr.

was awarded $195,036 in benefits, a sum that the district court

held had been wrongfully withheld from him by two retirement plans.

The plans were administered by the Urological Surgery Professional

Association (USPA), and their primary trustee was Edward A.

Chibaro, Janeiro's former business partner.

On appeal, the main issue is what standard of review the

district court should have applied to the benefits claim in

evaluating the defendants' decisionmaking. The standard varies,

depending on whether there was a conflict of interest. Defendants

argue that they were entitled to greater deference from the court

as to their repeated revaluations of, and delay in paying, the

amount due to Janeiro. We disagree. On these facts, the district

court properly engaged in plenary review, in light of the conflict

of interest of the plans' trustee, Chibaro. It then correctly

found for plaintiff on his benefits claim.

For his part, Janeiro has cross-appealed, seeking

attorneys' fees and prejudgment interest. We hold that the

district court did not abuse its discretion in denying these

requests. In sum, both the appeal and the cross-appeal fail. The

judgment of the district court is affirmed in all respects.

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 I.

Background

We describe the facts in the light most favorable to the

judgment, drawing all reasonable inferences from the record in

favor of Janeiro as to the benefits claim, but in favor of

defendants as to attorneys' fees and prejudgment interest. See

Servicios Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc.,

145 F.3d 463, 466 (1st Cir. 1998); Wainwright Bank & Trust Co. v.

Boulos, 89 F.3d 17, 19 (1st Cir. 1996). Our summary is based

largely upon the district court's factual findings, in which we see

no clear error.

A. The Plans

For over a decade, Janeiro was an employee of the USPA,

a medical practice. He and Chibaro, both doctors, were co-owners

of the practice. The USPA was, and still is, the sponsor and

administrator of two pension benefit plans governed by ERISA: the

Money Purchase Pension Plan and Trust, and the Profit Sharing Plan

and Trust. Janeiro participated in both plans.

The Money Purchase Plan was funded by contributions from

employees' salaries, and the Profit Sharing Plan was funded by a

combination of employee and employer contributions. Both plans

were defined contribution, pooled asset plans. Both plans

consisted of several documents -- a Prototype Plan, an Adoption

Agreement, a Trust Agreement, and a Summary Plan Description --

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that are, in all relevant respects, identical for each plan.

The pertinent terms created by the documents are these:

First, § B.5.1 of each plan's Adoption Agreement provides that

"[t]here are no restrictions other than those of Article 10 in the

[Prototype Plan] on when, following termination of employment, a

participant may begin receiving benefits." Article 10 of the

Prototype Plan, in turn, provides in § 10.1(b) that "[u]nless a

participant elects otherwise . . . , benefit distribution occurs

(or begins) no later than the sixtieth day following the end of the

plan year in which . . . [the participant] terminates his

employment with the employer." No other provision of Article 10 is

pertinent here.

Section B.5.1 of each plan's Adoption Agreement provides

that "[w]hen an account balance becomes payable, it is paid in a

lump sum at the valuation date following the occurrence

precipitating the disbursement." Under § B.4.1, "[v]aluation dates

occur at the end of each plan period." The "plan period" was the

same as the "plan year": the calendar year, ending on the last day

of December.

Section 6.2 of the Prototype Plan provides: "Accounts are

adjusted to reflect investment changes on each adjustment

date. . . . Each valuation date is an adjustment date. The plan

administrator may also provide for an extraordinary adjustment date

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whenever market values of underlying assets have changed so much

that it would be inequitable to do otherwise."

Finally, under § 21.1 of the Prototype Plan, "[t]he

principal employer is the plan administrator" and "has

discretionary authority to determine eligibility for benefits and

to construe the terms of the plan."

This lawsuit concerns benefits under both plans. For

convenience, we refer to both as "the plan," the usage adopted by

the district court.

Chibaro was listed on the plan as the individual trustee.

Although Janeiro was named co-trustee in 1999 and signed some

documents in that capacity, the district court found that he "was

a trustee in name only," and that Chibaro was the one who

"exclusively exercised" both the responsibilities of trustee and

the USPA's responsibilities of plan administration. "In

particular," the court found, "it was Dr. Chibaro who was

exclusively responsible for interactions with both the plan's

investment advisor and the third[-]party administrator."

The plan's third-party administrator was Fecteau

Associates, Inc. ("Fecteau"). Fecteau handled the annual valuation

of plan assets. It generated this information using a census form

it sent to the USPA every December or January; a statement,

obtained from the plan's investment advisor, of the value of the

assets in the plan as of December 31; and other information,

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concerning developments such as deposits and withdrawals, obtained

from the USPA during the ordinary course of the year. The court

found that it took the USPA roughly two hours to complete the

census, and that it took five to ten hours for Fecteau to complete

the valuation once it had all the information.

B. The Business Breakup and the Benefits Dispute

In July of 2000, Janeiro gave notice that he intended to

leave the USPA. Thereafter, the relationship between Janeiro and

Chibaro was, in the district court's words, "cold and at times very

contentious." In October of 2000, Janeiro terminated his

employment. The next valuation date, which would apply in the

ordinary course, was December 31, 2000.

The district court found that both before and after

December 31, 2000, Janeiro "clearly and repeatedly communicated his

intention to Dr. Chibaro . . . to withdraw his plan assets as soon

as they could be withdrawn." In addition, several other terminated

employees and Chibaro's ex-wife, claiming by way of a recent

divorce, sought to obtain their share of assets as of the December

31, 2000 valuation date. In all, Chibaro knew that as of that date

roughly 70% of the plan's assets would be departing. Of the 30%

remaining, 92% belonged to Chibaro.

The district court further found that the USPA had

Fecteau's 2000 annual census form in early January of 2001, but did

not complete and return it to Fecteau until March 12, 2001.

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Fecteau completed the valuation for December 31, 2000 (the first

valuation) and transmitted it to Chibaro by letter dated June 19,

2001. Janeiro's share of assets as of December 31, 2000 was valued

at $651,680.

Importantly, between December of 2000 and June of 2001,

the market value of the plan assets declined. The district court

found that Chibaro "became concerned because . . . he didn't want

to make money for other people that were leaving the plan, and in

effect if Dr. Janeiro were to be paid the valuation as of December

31, 2000, he would receive a greater percentage of the plan assets

than he would be entitled to if a new valuation was conducted."

Chibaro, who "was determined to have the assets revalued," directed

Fecteau to revalue the assets, this time as of June 30, 2001 (the

second valuation). Fecteau did so, conveying the results to

Chibaro on August 10, 2001. This time, Janeiro's share was valued

at $603,052. As the district court explained, the effect of the

revaluation "was to transfer a loss that otherwise would have been

born[e] by the parties whose assets remained in the plan to the

parties who were leaving."

At some point after August 10 and before September 11,

2001, consent-to-distribution forms were distributed to Janeiro and

the other claimants. Janeiro returned his completed form on

September 17, 2001. By then, the market had further declined, most

notably after September 11, 2001. Chibaro had Fecteau perform

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another revaluation, this time as of October 31, 2001 (the third

valuation); the results were communicated to him on November 5,

2001. He did not notify the terminated employees about this

revaluation until November 30, and he did not provide them with

consent-to-distribution forms (which would have specified the value

of their shares).

December 31, 2001 was the end of the plan year, and so

was a valuation date. The valuation as of December 31, 2001 (the

fourth valuation) was transmitted to Chibaro on April 30, 2002.1

In April of 2002, consent-to-distribution forms were distributed,

but this time Janeiro did not sign or return his.

On July 19, 2002, Fecteau transmitted to Chibaro a

valuation as of June 30, 2002 (the fifth valuation). Consent-to-

distribution forms were sent to the departing employees; Janeiro

completed his and returned it on August 11, 2002. The value of

Janeiro's share, as of this valuation, was $456,644. He received

this sum -- $195,036 less than the first valuation -- by late fall

of 2002, nearly two years after the first valuation date of

December 31, 2000. He unsuccessfully sought to recover this

$195,036 amount through administrative means.

1
Defendants emphasize one incident that occurred in the
meantime: in mid-January 2002, Janeiro directed Smith Barney, the
custodian of the plan assets, not to make further distributions.
The assets remained frozen until mid-April 2002. Whether or not
the freeze might in other circumstances have justified a delay in
distribution and even revaluation, it came too late here:
defendants' case founders at the very first revaluation.

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 Janeiro then sued the USPA, the two plans, and Chibaro.

He asserted four claims. The first two, for benefits, see 29

U.S.C. § 1132(a)(1)(B), and for equitable relief and restitution

for breach of fiduciary duty, see id. § 1132(a)(3), were

essentially theories of recovery for the $195,036. The third was

for prejudgment interest, and the fourth was for attorneys' fees.

C. The District Court's Bench Ruling

At the end of a three-day bench trial, the district court

made findings of fact, most of which are summarized above. The

court further determined that Chibaro was in breach of his

fiduciary duty in two ways: First, Chibaro was aware as of

December 30, 2000 that a substantial amount of the assets, having

been claimed by the departing participants, would (or should)

shortly be leaving the plan, but he failed to apprise the plan's

investment advisor of this fact so that the advisor could liquidate

and segregate sufficient plan assets. This failure meant that "the

assets remained invested in a mixture of stocks and bonds[,] which

exposed the assets to be distributed to an unacceptable degree of

market risk." Second, Chibaro "failed to take reasonable steps to

ensure that the [December 31, 2000] valuation was completed in a

timely manner" by promptly transmitting the census to Fecteau and

insisting that Fecteau timely do its job. The six-month delay

simply was not justified.

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 Taken together, these fiduciary breaches led to otherwise

avoidable losses: market losses traceable to the departing assets,

which had not been liquidated and segregated, but rather had

remained in risky investments. This particular category of losses,

as distinct from the market losses traceable to the remaining

assets, was "due entirely and exclusively" to Chibaro's fiduciary

breaches. The court found that Janeiro was not at all responsible

for the breaches or the losses. The court also declined to find

that Chibaro relied in good faith on the advice of professionals,

noting that, if anything, the evidence tended against such a

finding.

The district court then made the following conclusions of

law: First, Chibaro and the USPA were entitled to judgment as a

matter of law on the claim for damages based on a breach of

fiduciary duty theory, because such a claim does not lie where, as

here, the suit is only on behalf of a claimant who has an available

claim for benefits. See Varity Corp. v. Howe, 516 U.S. 489, 515

(1996). The court stressed that although Janeiro was not legally

entitled to any relief on a breach of fiduciary duty theory,

Chibaro was in fact in breach of his fiduciary duty.

Second, the court held, Janeiro was entitled to prevail

on his benefits claim. The court reasoned that Janeiro's account

balance became payable on the valuation date following his

termination -- that is, on December 31, 2000 -- and that Janeiro

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had timely elected such payment. Further, the amount to which

Janeiro was entitled was the value of his account on December 31,

2000, unless some departure from that valuation date was justified.

The court agreed with defendants that § 6.2 of the Prototype Plan,

which permitted the plan administrator to "provide for an

extraordinary adjustment date whenever market values of underlying

assets have changed so much that it would be inequitable to do

otherwise," supplied a potential basis for departure. The ultimate

question, therefore, was whether Chibaro, exercising the USPA's

plan administration authority, was entitled to declare

extraordinary adjustment dates on June 30, 2001 and on later dates.

In answering this question, the court first determined

the appropriate standard of review of defendants' application of

the plan's terms. The court acknowledged that ordinarily it would

review only for abuse of discretion, but it held that in this case,

"Chibaro [was] operating under a conflict of interest that was so

severe . . . that it entitles his determinations" to no deference.

The court cited several facts supporting this conclusion.

First, Chibaro's judgment as to whether to employ an

extraordinary valuation date was "inevitably going to be affected

by a concern . . . that he could be subject to suit for breach of

fiduciary duty." It was his failures to timely liquidate and

segregate plan assets, and to obtain a December 31, 2000 valuation

that produced avoidable losses -- that is, market losses traceable

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to the departing assets, which should have been isolated from

market risk and given to the departing participants. Using a later

valuation date (with a lower value) would put these avoidable

losses on the departing participants and thus reduce the risk that

anyone remaining in the plan would sue for breach of fiduciary

duty. Second, the district court noted, Chibaro felt personal

animus toward the departing participants. By June of 2001, he "was

in a highly adversarial relationship with the departing employees,"

including the office manager, with whom he had a "very hostile

relationship," and Janeiro, with whom he was then engaged in state-

court litigation. It was Janeiro who had commenced that

litigation, and the district court found that "there was animosity

between them as a result of this litigation." As mentioned above,

one of the other owners of the departing assets was Chibaro's ex-

wife, claiming by way of a recent divorce. The court found that

Chibaro "did not want to make money for people who were leaving the

plans," and that he "harbor[ed] an animus against [them] sufficient

to amount to conflict of interest."2

2
The district court did find that animus was not the motive
in Chibaro's original fiduciary breaches of failing to promptly
liquidate and segregate assets and to timely see that the December
31, 2000 valuation was completed. But then losses began to mount
as a result of the breaches, and Chibaro, in deciding whether to
revalue, began to be "motivated in part" by a desire not to, as he
saw it, "enrich" the departing participants. (Even then, the court
found, his primary purpose was simply to avoid losing his own
money.)

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 Third, Chibaro's personal financial interests were set

directly against those of the departing participants. The court

found that because he owned 92% of the remaining assets (that is,

of the 30% remaining), "he would be the principal beneficiary" of

a decision to revalue.

Reviewing the revaluation decisions de novo under the

plan terms, the court ruled that Chibaro "was not entitled to

declare an extraordinary valuation date either as of June 30, 2001

or [on] any of the subsequent dates." The court described this as

a "very difficult question." It reasoned that even if Chibaro had

not been the principal beneficiary of revaluation, it still would

have been inappropriate to declare an extraordinary valuation date.

This was because revaluing did not "equitably allocate" the

avoidable losses caused by Chibaro's fiduciary breaches "among all

of the assets," but rather completely shifted all of those losses

"from the plan participants whose assets . . . remain in the plan,

. . . to plan participants whose assets are leaving the plan."

The court cited several reasons for rejecting defendants'

argument that the consequence of not revaluing -- namely, leaving

all of the avoidable losses caused by Chibaro's fiduciary breaches

on the remaining participants -- justified their course of action.

First, the market decrease between the first and second valuations,

roughly 7.5% in six months, was "not unusual at all," and causing

the remaining assets to bear the full amount of losses (including

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losses traceable to the departing assets) would not have been "so

unusual or substantial as to cause a failure to revalue to be

inequitable." Second, revaluing delayed the distribution of funds.

Third, shifting all of the avoidable losses caused by the breaches

onto departing participants was not more fair, because "[t]he

fairest place to leave the consequence[] of the fiduciary breach

under these circumstances is where it lies" as a result of the

breach -- that is, with the remaining plan assets. The court

explained that the remaining participants injured by the breach

have recourse against, and can recover from, the administrator.

Lastly, the court noted, Chibaro owned 92% of the

remaining assets, meaning that the primary effect of revaluation

would be to shift losses from "the wrongdoer" to "innocent parties"

departing the plan. Not revaluing would simply have left the

losses from Chibaro's fiduciary breaches to fall almost entirely on

"the wrongdoer" himself and would not have been inequitable.

The court thus found that the June 2001 revaluation was

inappropriate, and that Janeiro had a right to his benefits as

valued as of December 31, 2000. He was therefore entitled to

recover $195,036 -- the difference between the initial valuation

and the amount that he had actually been paid to date.

The court then heard oral argument on attorneys' fees and

prejudgment interest and, after determining that it had discretion

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as to both matters, denied both.3 As for attorneys' fees, the

court cited the five-factor test described in Cook v. Liberty Life

Assurance Co., 334 F.3d 122, 124 (1st Cir. 2003), and it determined

that each factor cut in favor of defendants: first, Chibaro did not

act in bad faith, but instead believed that he was permitted under

the law to act as he did; second, the plan did not have deep

pockets, but rather had no more than $500,000 in assets, of which

nearly $200,000 was already being awarded to Janeiro; third, an

award was not necessary for deterrence purposes; fourth, an award

coming at the expense of the remaining plan participants, who

(except for Chibaro) were innocent, would be inappropriate; and

fifth, this was a close case.

As for prejudgment interest, the court emphasized its

concern about the effect such an award would have on the plan. It

added that in its view, "much the same factors that influence an

award of attorney's fees here should apply in a pre-judgment

interest situation," and that those same factors indicated that an

award of prejudgment interest was not warranted.

II.

The Benefits Claim (Defendants' Appeal)

In reviewing a judgment following a bench trial, we

accept the district court's findings of fact unless they are

3
The court did award post-judgment interest and costs to
Janeiro.

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clearly erroneous, keeping in mind that the district judge had the

opportunity to assess the credibility of the witnesses. Fed. R.

Civ. P. 52(a). "[W]e may not disturb the district court's

record-rooted findings of fact unless on the whole of the evidence

we reach the irresistible conclusion that a mistake has been made."

Smith v. F.W. Morse & Co., 76 F.3d 413, 420 (1st Cir. 1996). "This

deferential standard extends . . . to inferences drawn from the

underlying facts," and "if the trial court's reading of the record

[with respect to an actor's motivation] is plausible, appellate

review is at an end."4 Id. We review conclusions of law de novo,

id., and the parties are in agreement that this de novo review

extends to the district court's ultimate decision as to which

standard of review applied to defendants' own decisions.

A. Standard of Review of Revaluation Decisions

The heart of defendants' argument is that the district

court should not have applied de novo review to their decisions.

They raise two arguments based on the fact that the plan vested the

USPA, the plan administrator, with discretionary authority: First,

they say, the plan administrator did not operate under a conflict

of interest, so the usual highly deferential standard of review

4
On appeal, defendants ignore and even contradict many of the
district court's adverse findings of fact. Defendants present no
developed argument in support of most of their version of the
facts. We therefore do not mention their version, except to the
extent they have developed it on appeal by presenting something
approaching a clear-error argument.

-16-
should apply. Second, they argue, even the existence of a genuine

conflict of interest should only have added some bite to the

review, without making it wholly nondeferential. These arguments

fail in light of the particular facts of the case.

Where the terms of an ERISA plan give discretion to the

plan administrator to make benefits decisions and to construe the

terms of the plan, the district court ordinarily should uphold such

determinations by the administrator unless they constitute an abuse

of discretion, or are arbitrary and capricious. See Wright v. R.R.

Donnelley & Sons Co. Group Benefits Plan, 402 F.3d 67, 74 & n.3

(1st Cir. 2005); Leahy v. Raytheon Co., 315 F.3d 11, 15 & n.3 (1st

Cir. 2002). As this court has repeatedly made clear, however,

"[i]t is well settled that when a plan administrator labors under

a conflict of interest, courts may cede a diminished degree of

deference -- or no deference at all -- to the administrator's

determinations." Leahy, 315 F.3d at 16 (emphasis added); see also

Wright, 402 F.3d at 74 (quoting the same language from Leahy).

As for whether there was a conflict of interest,

defendants first attack the role Chibaro's 92% ownership of the

remaining assets played in the district court's analysis. They

invoke the rule that structural conflicts alone -- those arising

from the administrator's or trustee's own financial interests --

are not sufficient to abandon the normal highly deferential review.

See Wright, 402 F.3d at 75 (fact that plan administrator was also

-17-
plan insurer did not, by itself, alter normal "arbitrary and

capricious" standard of review); Mahoney v. Bd. of Trs., 973 F.2d

968, 971-73 (1st Cir. 1992) (applying "arbitrary and capricious"

standard of review where "trustees exercised clearly granted

discretion to benefit one group of beneficiaries more than another,

and the trustees benefited from that action as members of the much

larger, favored group"). This rule makes sense because, where the

potential conflict arises solely from the fact that any payment of

benefits will come at the decisionmaker's expense, market forces

can generally be expected to mitigate undue stinginess. See Doyle

v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998);

Wright, 402 F.3d at 75.

The district court's decision is entirely consistent with

the rule that a structural conflict by itself does not provide a

basis for departing from the usual standard of review. The court

did not rely solely on the structural conflict arising from

Chibaro's financial interest, but rather cited additional factors

present in this case. These additional factors made it especially

likely that Chibaro's personal financial interest played a real

role in the decisions to revalue, and they showed in their own

right that the decisions were actually "improperly motivated."

Doyle, 144 F.3d at 184; see also Wright, 402 F.3d at 75-78

(considering various factors allegedly showing improper motivation,

in addition to structural considerations, as possible bases of

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conflict of interest); Pari-Fasano v. ITT Hartford Life & Accident

Ins. Co., 230 F.3d 415, 419 (1st Cir. 2000) (distinguishing between

"potential" or "possible" conflicts of interest arising from

structural considerations and cases where the circumstances

actually "indicate[] an improper motivation").

Defendants' attacks on the other two factors cited by the

district court are also unavailing. As for the conflict based on

Chibaro's fear of litigation stemming from his earlier fiduciary

breaches, defendants claim that "[t]here is simply no evidence that

the prospect of litigation factored into Dr. Chibaro's decision to

revalue." They assert that there simply was no prospect of a

lawsuit, and if there was, Chibaro was neither aware nor afraid of

it.

First, defendants say, none of Chibaro's professional

advisors told him he was obliged to liquidate and segregate assets

sufficient to pay the imminently departing plan participants, and

the first decision to revalue was based solely on the advice of

professionals, not on the possibility of liability for any failure

to liquidate and segregate. But the district court found that

Chibaro failed to inform the investment advisor in the first place

that a significant exodus was imminent, found that it was Chibaro

who was "determined to have" a revaluation and who "directed" that

one occur, and expressly refused to find that he relied in good

faith on the advice of professionals. The defense of good-faith

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reliance on advice is not available to one who omits to disclose

material information to advisors or dictates imprudent outcomes to

advisors.5 Cf. United States v. Rice, 449 F.3d 887, 897 (8th Cir.

2006) (defendant not entitled to advice-of-counsel defense where he

neither "fully disclosed all material facts to his attorney before

seeking advice" nor "actually relied on his counsel's advice in the

good faith belief that his conduct was legal").

Second, defendants argue, there was "no evidence" that

Chibaro feared liability stemming from the six-month delay in

completing the first valuation. They say that annual valuations

were generally completed in April because it took the USPA time to

determine the amount of its contribution to the Profit Sharing

Plan, and that several months passed after the USPA submitted the

census form to Fecteau before Fecteau completed the valuation.

Taking these points in reverse order, we note that the delay once

5
William Prizer, the investment advisor, testified that
Chibaro never told him when Chibaro expected to do a distribution,
that Prizer was given "the clear understanding that this wasn't .
. . going to happen any time soon," and that if Prizer had been
told there would "be a payout date in December," he "[a]bsolutely"
would have advised that more plan assets be put into cash-like
investments to minimize risk. We do not consider the claim, raised
for the first time at oral argument and without record citation,
that Prizer knew about the imminent departure of 70% of the assets
because he was also Janeiro's personal investment advisor.
Thomas Fecteau, of the third-party administration firm,
testified that it was Chibaro's idea to revalue instead of paying
the departing participants based on the December 31, 2000
valuation, and indeed that Chibaro was "adamant" about revaluing.
Fecteau further testified that he did not make a recommendation
"one way or the other" as to revaluation.

-20-
the census was in Fecteau's hands was attributable to Chibaro, who

should have ensured promptness on Fecteau's part; that an arguably

justified delay as to one plan does not justify a delay as to the

other plan; and that habitual delays in valuation of four months,

not conclusively shown to be justified to begin with, are hardly

conclusive proof that a delay of half a year -- for work that

should take a matter of hours or days -- was justified.

The evidence, in sum, supported a finding that Chibaro

was at fault for failure to timely liquidate and segregate

sufficient assets and for failure to ensure that the first

valuation was timely completed. It was also plausible to find that

there was a prospect of litigation by the remaining participants

(aside from Chibaro himself), who would bear the full costs of

Chibaro's failures if no revaluation was done. And it was

plausible to infer that Chibaro must have been aware of and feared

this prospect of litigation, and that this played a role in his

decision to revalue.

With respect to the district court's finding that Chibaro

harbored animus toward the departing participants, defendants offer

no contrary factual argument. They rely instead on a non sequitur:

that Chibaro had a fiduciary duty to protect the financial

interests of all plan participants, including the remaining ones.

There is no doubt Chibaro had a legal duty to the remaining

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participants.6 But that duty did not necessarily motivate in whole

or even in part his decision to revalue, nor did it make it

factually impossible for him to have been motivated by animus. The

district court expressly found Chibaro not credible with respect to

his claim that, in directing each revaluation, he was trying to

protect the other participants (aside from himself) remaining in

the plan. Further, the relationship between Chibaro and the

departing participants was plainly acrimonious, and we have no

reason to doubt that there was animus and that it played a role in

Chibaro's decision to revalue.

Finally, we reject defendants' fallback argument that

even if there was a conflict of interest, the district court should

have applied arbitrary and capricious review with "bite" but

without ruling out all deference. We have repeatedly stated that

"when a plan administrator labors under a conflict of interest,

courts may cede a diminished degree of deference -- or no deference

at all -- to the administrator's determinations."7 Leahy, 315 F.3d

6
As we explain in the text, it is less clear than defendants
think that this duty required, or even permitted, revaluation here.
7
The decisions on which defendants rely do not mandate a
different approach. None involved a finding of a severe conflict
based partly on actual improper motivations such as animus. See
Fenton v. John Hancock Mut. Life Ins. Co., 400 F.3d 83, 90 (1st
Cir. 2005) (arbitrary and capricious review proper in absence of
showing that "adverse determination was improperly motivated");
Lopes v. Metro. Life Ins. Co., 332 F.3d 1, 4-5 & n.6 (1st Cir.
2003) (refusal to apply de novo review proper where there was
structural conflict and evidence of improper motivation was "not
particularly convincing" and revealed "nothing untoward");

-22-
at 16 (emphasis added); see also Wright, 402 F.3d at 74.

The district court's approach was consistent with the

Supreme Court's statement that "if a benefit plan gives discretion

to an administrator or fiduciary who is operating under a conflict

of interest, that conflict must be weighed as a 'facto[r] in

determining whether there is an abuse of discretion.'" Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (alteration in

original) (quoting Restatement (Second) of Trusts § 187 cmt. d

(1959)); see also Wright, 402 F.3d at 74 ("In applying the

arbitrary and capricious standard . . . the existence of a conflict

of interest on the part of the administrator is a factor which must

be considered."). In some cases, the conflict is so severe that

giving it sufficient weight as a "factor" (or applying the level of

"bite" necessary to account for the severity of the actual

conflict) requires giving no deference to the conflicted

decisionmaker. Given the severe conflict of interest under which

Chibaro was laboring, the district court properly gave no deference

to the decisions he made in exclusively exercising the USPA's plan

administration authority.

B. Correctness of Revaluation Decisions

Pari-Fasano, 230 F.3d at 419 (arbitrary and capricious review where
there was structural conflict but not actual improper motivation);
Doyle, 144 F.3d at 184 (in case of structural conflict, applying
arbitrary and capricious review with "more bite," and "interpreting
'more bite' as adhering to the arbitrary and capricious principle,
with special emphasis on reasonableness, but with the burden on the
claimant to show that the decision was improperly motivated").

-23-
 The defendants argue the belated revaluations were proper

under the provision allowing the administrator to "provide for an

extraordinary adjustment date whenever market values of underlying

assets have changed so much that it would be inequitable to do

otherwise." The district court did not err in finding that this

provision did not apply and that it provided no basis to deny the

benefits sought. Defendants purport to justify all the

revaluations on the ground that they were "necessary to ensure that

the market losses that occurred after December 31, 2000 were borne

equally by all plan participants." For the exact reasons stated by

the district court, this is an inadequate explanation.

First, the district court found that the 7.5% market

decrease during the six months following December 31, 2000 was "not

unusual at all," and that not revaluing would not have put an

especially large burden on the remaining assets (the loss to the

remaining assets would have been roughly 25%). Defendants have not

shown that this essentially empirical analysis, in the context of

a plan provision for "extraordinary" adjustment dates, was wrong.

Second, the revaluations did distribute "market losses"

equally among all plan participants, but they did not distribute

the losses attributable to Chibaro's fiduciary breaches equally

among all participants. The market losses that occurred after

December 31, 2000, to the extent they are traceable to the

departing assets, should not have occurred to begin with. Those

-24-
assets should not have been in risky market investments after

December 31, 2000, and the losses traceable to them were the direct

result of Chibaro's fiduciary breaches in failing to timely

liquidate and segregate plan assets, and to obtain valuations. The

effect of revaluation was to put all of the loss caused by these

fiduciary breaches on the departing participants. Keeping in mind

that the plan allowed for extraordinary revaluations only "whenever

. . . it would be inequitable to do otherwise," equity hardly

demanded that this entire loss be put on the departing

participants.8

Not revaluing would simply have left all of the avoidable

losses due to Chibaro's fiduciary breaches on the remaining

participants. Importantly, the vast majority (92%) of the assets

that would have been left to absorb the losses from Chibaro's

fiduciary breaches belonged to Chibaro himself. It would not have

been inequitable for him to bear the brunt of the losses he

wrongfully caused.9

8
Defendants characterize revaluation as necessary to prevent
the departing participants from "obtaining a windfall" at the
expense of the remaining participants. It is difficult to see how
not being forced to bear the entirety of losses that never should
have occurred in the first place, while the remaining participants
bear none, can be labeled a "windfall."
9
Defendants suggest that because the district court had ruled
out a theory of recovery based on breach of fiduciary duty, it was
somehow improper, or an "end-run around ERISA," to consider
Chibaro's actual fiduciary breaches, which preceded the
revaluations, in assessing the equities of revaluing. This
argument makes little sense, but as it is unsupported by any

-25-
 Whatever the force of defendants' argument about the

clause in the abstract, defendants acted as though it permitted

unlimited retention of assets, keeping the assets of departing

participants for nearly two years and performing a total of five

valuations. The clause may not reasonably be read that way.

III.

Attorneys' Fees and Prejudgment Interest
(Plaintiff's Cross-Appeal)

Janeiro's cross-appeal challenges the district court's

denial of attorneys' fees and prejudgment interest.

A. Attorneys' Fees

ERISA provides that attorneys' fees are available in the

court's discretion. See 29 U.S.C. § 1132(g)(1). We review the

denial of attorneys' fees only for abuse of discretion,

"disturb[ing] such rulings only if the record persuades us that the

trial court 'indulged a serious lapse in judgment.'" Cottrill v.

Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 223 (1st Cir. 1996)

(quoting Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d

867, 875 (1st Cir. 1995)). We see no abuse of discretion.

We begin by noting that "in an ERISA case, a prevailing

plaintiff does not, merely by prevailing, create a presumption that

citations to authority, we simply deem it waived. We reject the
claim that even if the breaches could be considered, the district
court "placed undue emphasis" on them and on Chibaro's ownership
interest in the remaining assets. The court's weighing of these
factors, along with others, was perfectly sensible.

-26-
he or she is entitled to a fee-shifting award." Id. at 226. This

is an area of law that should be, and is, flexible. Id. at 225-26.

Although "fee awards under ERISA are wholly

discretionary," this court has listed five factors that ordinarily

should guide the district court's analysis:

(1) the degree of culpability or bad faith
attributable to the losing party; (2) the
depth of the losing party's pocket, i.e., his
or her capacity to pay an award; (3) the
extent (if at all) to which such an award
would deter other persons acting under similar
circumstances; (4) the benefit (if any) that
the successful suit confers on plan
participants or beneficiaries generally; and
(5) the relative merit of the parties'
positions.

Cottrill, 100 F.3d at 225. This list is illustrative, not

exhaustive, id.; no single factor is dispositive; and indeed, not

every factor in the list must be considered in every case. Twomey

v. Delta Airlines Pilots Pension Plan, 328 F.3d 27, 33 (1st Cir.

2003).

As for the first factor, the district court was not

obliged to find that defendants acted with an especially high

degree of culpability. It was plausible, in evaluating whether to

award attorneys' fees, to find that Chibaro subjectively thought he

was entitled to administer the plan as he did.

Analyzing the second factor, the district court expressed

a legitimate concern that the plan's assets were quite modest and

-27-
were already subject to a benefits award comprising at least two-

fifths, and perhaps as much as two-thirds, of the total assets.10

Janeiro adds that even though "the district court ruled

in favor of USPA and Dr. Chibaro as to Dr. Janeiro's claims against

them," Chibaro's and the USPA's assets should still be fair game

for an award of attorneys' fees, because they were the key players

through which the two plans acted. Janeiro cites no authority for

treating the USPA and Chibaro as "losing parties" for purposes of

attorneys' fees on a benefits claim that succeeded only against the

plans.11 In any event, no matter whose and how plentiful were the

assets available for an award of attorneys' fees, this factor would

mean little. "An inability to afford attorneys' fees may counsel

10
Janeiro argues that plan assets financed Chibaro's defense,
and that Chibaro, as the primary owner of the remaining assets,
would bear the brunt of a fee award to Janeiro. On appeal, Chibaro
says he bore (with his plan assets) the attorneys' fees and costs
of defending this case. If any payment was improper, an
appropriate party may pursue the matter.
11
The breach of fiduciary duty claim was asserted only against
Chibaro and the USPA. The claims for benefits, prejudgment
interest, and attorneys' fees did not specify defendants, although
the first claim did assert a right to sue "the Plans." It is
apparent from various pretrial filings that the parties understood
these three claims to be against all the defendants, including
Chibaro individually. Moreover, the judgment for Janeiro did not
specify which defendants were liable. At trial, however, the
district court said, in disposing of the breach of fiduciary duty
claim, "I do not see how [Janeiro] can maintain any claim against
. . . Chibaro individually. I don't see how he can maintain claims
against USPA in [its] capacity as a plan administrator. Instead,
his remaining claim is a claim for benefits which is properly
asserted against the plans . . . ." The court later reiterated
that Janeiro was entitled to relief only against the two plans.
Janeiro does not develop any contrary argument on appeal.

-28-
against an award, but the capacity to pay, by itself, does not

justify an award." Cottrill, 100 F.3d at 227 (citation omitted).

Turning to the third factor, the district court

determined that the benefits award itself was large enough to deter

similar misconduct, and that an award of attorneys' fees was

unnecessary for that purpose. Janeiro argues that denying fees

sends the wrong message to the "ERISA community" and invites plan

administrators to "play fast and loose" with plan terms and with

departing participants' money. The district court, which viewed

the evidence in this case first-hand, disagreed, and we have no

basis for rejecting its conclusion. See id.

The fourth factor is "the benefit (if any) that the

successful suit confers on plan participants or beneficiaries

generally." Id. at 225. Nothing in the district court's

consideration of this factor required a different result.

Fifth and finally, the district court stressed that "this

[was] a close case using a de novo standard." Indeed, the judge

stated, it was one of the most difficult cases he had ever decided.

Cf. id. at 227 ("The very fact that an experienced trial judge

originally found in the defendants' favor argues for a finding that

the defendants had a reasonable basis for [their position], even

though this court ultimately ruled against them."). The standard

of review to apply to defendants' decision to revalue was not an

-29-
open-and-shut question, nor was the correctness of the decision

itself.

The district court, in short, did not abuse its

discretion in denying Janeiro attorneys' fees.

B. Prejudgment Interest

Janeiro seeks prejudgment interest on the $195,036 he won

in the district court, and on the $456,644 he was paid in the fall

of 2002, to the extent that payment was also late. The district

court denied any award, saying that it "reach[ed] the same

conclusion" as it reached with respect to attorneys' fees, for

"much the same" reasons. The court did single out one

consideration -- the effect an award of interest would have on the

plan -- but did not otherwise elaborate.

Although there is no specific statutory provision for

prejudgment interest in most ERISA cases, such awards, like

attorneys' fees, are "available, but not obligatory." Id. at 223.

We review the denial of prejudgment interest in ERISA cases only

for abuse of discretion.12 Id.

Janeiro was wrongfully deprived of the use of money for

a substantial length of time, and prejudgment interest would make

12
Janeiro has not offered any developed argument that this
court should adopt (or has already adopted) a presumption in favor
of prejudgment interest. See Biggins v. Hazen Paper Co., 953 F.2d
1405, 1427 (1st Cir. 1992) (stating, where prejudgment interest was
awarded, that "[w]e need not go [as far as adopting a presumption]
at this time"), vacated on other grounds, 507 U.S. 604 (1993).

-30-
him whole as to that harm, see West Virginia v. United States, 479

U.S. 305, 310 n.2 (1987), which would "serve[] ERISA's remedial

objectives," Cottrill, 100 F.3d at 224. But Congress's desire to

protect employee benefits is not ERISA's only purpose. Varity

Corp., 516 U.S. at 497. Further, prejudgment interest "is not

granted 'according to a rigid theory of compensation for money

withheld, but is given in response to considerations of fairness.'"

Whitfield v. Lindemann, 853 F.2d 1298, 1306 (5th Cir. 1988)

(quoting Blau v. Lehman, 368 U.S. 403, 414 (1962)); see also Blau,

368 U.S. at 414 (interest "is denied when its exaction would be

inequitable" (internal quotation mark omitted) (quoting Bd. of

Comm'rs v. United States, 308 U.S. 343, 352 (1939))).

Here, the district court was, first, concerned about how

an award of interest would affect the plan. The benefits claim

itself was quite substantial in light of the total plan assets.

Cf. Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 80 (1st

Cir. 2002) (district court free to "decide to leave well enough

alone" where underlying monetary sanction for contempt was itself

"a substantial amount of money"). The court also thought the

ordinary attorneys' fees factors pertinent. These factors might

not be automatically applicable in all prejudgment interest cases.

But Janeiro does not argue that these factors were impermissible

-31-
considerations,13 and, as explained above in the attorneys' fees

discussion, we see nothing wrong with how the court assessed them

in light of the facts of this case. The district court did not

abuse its discretion in denying an award of prejudgment interest.

IV.

Conclusion

The district court's analysis of this case was careful

and fair. Its judgment, awarding plaintiff $195,036 on the

benefits claim and denying him an award of attorneys' fees and

prejudgment interest, is affirmed. The parties shall bear their

own costs and attorneys' fees on appeal.

13
Indeed, Janeiro even relies on the deterrence factor --
which, as already stated, the district court viewed as adequately
served by the large benefits award.

-32-