concurring in part and dissenting in part.
I concur in the memorandum disposition of the court, except that I respectfully dissent with respect to the decision as to attorney’s fees. I agree that we review a district court’s decision not to award attorney’s fees for abuse of discretion.
With regard to attorney’s fees in the ERISA context, “[a]s a general rule, ERISA employee plaintiffs should be entitled to a reasonable attorney’s fee if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir.1984) (quotations omitted).
The district court vindicated Kistler’s right to have MetLife discharge its fiduciary duties properly. Accordingly, Kistler is entitled to interim attorney’s fees.
McClure v. Life Ins. Co. of North America, 84 F.3d 1129, 1136 (9th Cir.1996), relied upon by the district court, does not apply in this case. Although Kistler did not establish her rights to benefits, she did demonstrate that MetLife violated ERISA. Therefore, Kistler would be entitled to an award of attorney’s fees unless some “special circumstances would make an award unjust.” Barnes, 64 F.3d at 1397. I would remand to the district court to make its determination of an attorney’s fee award on this basis.