NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 31, 2011*
Decided November 28, 2012
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
Nos. 10‐3409 & 11‐1750
SHARON MONDRY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin
v. No. 06‐cv‐00320‐bbc
AMERICAN FAMILY MUTUAL Barbara B.Crabb,
INSURANCE COMPANY, et al., Judge.
Defendants‐Appellees.
O R D E R
*
Pursuant to Seventh Circuit Internal Operating Procedure 6(b), these
consolidated appeals were submitted to the panel of judges that disposed of Mondry’s
prior appeal. See Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781 (7th Cir. 2009). No
party has included in its brief a statement indicating that oral argument is necessary, see
Fed. R. App. P. 34(a)(1) and Circuit Rule 34(f), and upon review of the briefs and the
record and consideration of the standards set forth in Fed. R. App. 34(a)(2), the panel
has determined that oral argument is unnecessary to the resolution of this appeal. The
appeals were therefore submitted on the briefs and the record.
2 Nos. 10‐3409 & 11‐1750
In these consolidated appeals, Sharon Mondry challenges both the damages and
the fees awarded to her in this suit filed under the Employee Retirement Income Security
Act (“ERISA”), 29 U.S.C. § 1132. Finding no clear error or abuse of discretion in any of
the district court’s determinations, we affirm.
I.
Mondry worked for American Family Mutual Insurance Company (“American
Family”) until September 2003. She participated in the AmeriPreferred PPO Plan (the
“Plan”), a self‐funded group health plan that American Family offered to its employees.
During the time period relevant to this litigation, American Family had contracted with
Connecticut General Life Insurance Company through its affiliates (collectively,
“CIGNA”) to act as the Plan’s third‐party claims administrator, meaning that CIGNA
would handle any and all benefit claims against the Plan.
Mondry’s son Zev, whom she had enrolled as a Plan beneficiary, required speech
therapy. Initially, he received that therapy through Wisconsin’s Birth to Three program
for infants and toddlers with developmental delays and disabilities. When Zev aged out
of that program, Mondry arranged for him to continue his speech therapy at the
Communication Development Center (“CDC”) beginning in January 2003. CDC in turn
submitted invoices to the Plan seeking reimbursement for the services it provided to
Zev.
CIGNA denied the claim for reimbursement, reasoning that Zev’s speech therapy
was not a medically necessarily service covered by the terms of the Plan. In its
correspondence with Mondry denying her original claim and then her first‐level appeal,
CIGNA cited two documents as authoritative: CIGNA’s Benefit Interpretation Resource
Tool for Speech Therapy (“BIRT”), and CIGNA’s Clinical Resource Tool for Speech
Therapy (“CRT”). Neither of these was a document setting forth the terms of the
AmeriPreferred Plan and, as it turned out, both were inconsistent with the governing
terms of the Plan. In the end, CIGNA realized its error and belatedly granted Mondry’s
claim for benefits. But that occurred only after Mondry’s counsel succeeded in obtaining
copies of these documents; and due in large part to CIGNA’s intransigence, that task
took an exceedingly long time to accomplish (two years to reverse the initial denial of
benefits, and more than four years to be reimbursed completely for her out‐of‐pocket
costs).
Pursuant to 29 U.S.C. § 1024(b)(4), American Family had a duty to produce Plan
Nos. 10‐3409 & 11‐1750 3
documents to Mondry within thirty days of her request. After she finally succeeded in
obtaining benefits from CIGNA, Mondry sued both it and American Family for violation
of section 1024(b)(4). She also separately alleged that both defendants violated their
fiduciary duties to her as a Plan participant by withholding from her the key documents
– in particular, the BIRT and CRT – that she needed to prevail in her quest for benefits
under the Plan. See 29 U.S.C. § 1104(a)(1).
In our prior decision, we sustained Mondry’s claims in part. Mondry v. Am.
Family Mut. Ins. Co., 557 F.3d 781 (7th Cir. 2009) (“Mondry I”). We agreed with Mondry
that, under the unique circumstances of her case, CIGNA’s express reliance on the BIRT
and CRT effectively rendered those two internal documents Plan documents that were
subject to timely production pursuant to section 1024(b)(4). We were willing to assume
that CIGNA’s private reliance on such internal tools would not have brought them
within the relatively small universe of tools that we and other courts had deemed to be
documents that must be produced to a participant on demand. 557 F.3d at 799. We cited
a substantial line of cases to that effect, including the First Circuit’s decision in Doe v.
Travelers Ins. Co., 167 F.3d 53, 60 (1st Cir. 1999). Mondry, 557 F.3d at 797‐80. But because
CIGNA had expressly cited those documents as authoritative to Mondry, and indeed
had quoted language from one of them (the BIRT) in explaining why it believed Zev’s
speech therapy was not compensable, CIGNA had effectively rendered those tools
documents which governed the operation of the Plan. Id. at 799‐800. We also held that
the claims administration agreement between American Family and CIGNA qualified as
a Plan document, in the sense that it defined their respective obligations vis‐à‐vis the
divided administration of the Plan. Id. at 796. However, we noted that only American
Family, as the Plan administrator, bore the duty to produce Plan documents under
section 1024(b)(4). Id. at 793‐95. CIGNA may have had sole possession of the BIRT and
CRT, but the liability for the failure to produce such documents fell upon American
Family alone; and we were not convinced that it was beyond American Family’s power
to obtain access to such documents. Id. at 801‐03. Separately, we concluded that
American Family could additionally be liable to Mondry for breaching the fiduciary
duty it owed to her in its role as the Plan administrator – specifically for the lost time
value of the money Mondry was forced to spend out of pocket on her son’s speech
therapy until she finally obtained copies of the CRT and BIRT and was able to prevail in
her appeal of CIGNA’s denial of her claim for benefits. Id. at 803‐09; see 29 U.S.C. §
1104(a)(1). We remanded to the district court with directions to enter summary
judgment in favor of Mondry on the section 1024(b)(4) document production claim and
to determine an appropriate penalty under 29 U.S.C. § 1132(c)(1). 557 F.3d at 809. We
4 Nos. 10‐3409 & 11‐1750
further directed the court to conduct a trial on whether American Family had breached
its fiduciary obligation to Mondry by failing to comply with section 1024(b)(4). Id.
On remand, the district court complied with our mandate and, after conducting a
two‐day trial, awarded statutory damages of $9,270 to Mondry for American Family’s
failure to timely produce Plan documents to her; and after finding that American Family
had breached the fiduciary duty it owed to Mondry, the court awarded her stipulated
damages of $603.25 for that breach. R. 139. In calculating the award of statutory
damages, the court determined that daily penalties for the failure to produce a Plan
document did not begin to accumulate until Mondry and her counsel placed American
Family on notice that she was seeking that particular document. With respect to the
CRT, the court found that a specific reference to that document in an October 30, 2003
letter from Mondry’s counsel to CIGNA, on which American Family was copied,
triggered American Family’s duty to produce that document and rendered American
Family liable for daily penalties beginning thirty days after that request. Id. at 20‐21.
Counting forward from November 30, 2004, a total of 215 days passed before Mondry
obtained a copy of the CRT. Id. at 21. As to the BIRT, the court deemed an April 21, 2004
fax from Mondry’s counsel to American Family’s counsel sufficient to place American
Family on notice that she was seeking that particular interpretive tool. Id. at 21‐22.
Penalties were triggered thirty days thereafter and accrued for a total of 94 days before
the document was finally produced. Id. at 22. Mondry also sought penalties for the
failure to produce the General Services Agreement (“GSA”) between American Family
and CIGNA, but the court declined to impose penalties for that document in large part
because although Mondry had asked CIGNA for that document, it had never made that
request to American Family itself. Id. at 22‐23. American Family was thus liable for a
total of 309 days’ worth of penalties based on its delay in producing the CRT and BIRT.
Id. at 23. The court declined Mondry’s request to increase that total by stacking the
penalties, i.e., deeming each successive request for the same document sufficient to
trigger a separate penalty. Id. at 23‐24. Finally, although Mondry sought the maximum
penalty of $110 per day, the court found that $30 per day was a fair and reasonable
penalty on the facts of the case, and that no larger penalty was necessary to serve as a
deterrent. Id. at 24‐25. As to Mondry’s breach of fiduciary duty claim, the court found
that although American Family had made a variety of efforts to assist Mondry in her
effort to reverse CIGNA’s adverse benefits determination, it could have done more to
help Mondry obtain the interpretive tools that CIGNA was mistakenly relying upon to
deny her claim. The court thus agreed with Mondry that American Family had breached
its fiduciary obligation to her, and awarded her stipulated damages of $603.25,
Nos. 10‐3409 & 11‐1750 5
representing the lost time value of her money during the length of time it took Mondry
to succeed in reversing CIGNA’s initial denial of benefits. Id. at 27‐28.
The court also determined that Mondry was entitled to an award of attorney’s
fees and costs pursuant to 29 U.S.C. § 1132(g)(1), but the amount that the court
ultimately awarded to Mondry was much less than she sought. R. 162, 172. At the
outset, the court found that because section 1132(g)(1) confined judicial discretion to
award fees and costs to “any action under this subchapter” (emphasis ours), it could not
reimburse Mondry for any fees she incurred in connection with her ultimately successful
effort to obtain insurance benefits from CIGNA, which effort took place before she filed
this suit against CIGNA and American Family. R. 1692 at 8‐9. Second, the court
determined that because American Family’s position in this litigation was substantially
justified prior to this court’s decision in Mondry I, it would limit Mondry’s right to fees to
the phase of the litigation following our decision. Id. at 11‐14. The court had no doubt
that Mondry had achieved success in Mondry I itself, which recognized her right to
production of Plan documents including the BIRT and CRT. But our precedents had
conditioned a successful ERISA litigant’s right to fees on a showing that her opponent’s
litigating position was not substantially justified. Id. at 11 (citing Lowe v. McGraw‐Hill
Cos., 361 F.3d 335, 339 (7th Cir. 2004)). Prior to our decision in Mondry I, the court
reasoned, American Family’s position was substantially justified: our own opinion
characterized Mondry’s right to interpretive tools like the BIRT and CRT as a “closer
question” than others, and we recognized that other courts had rejected the
characterization of such tools as plan documents which must be produced on demand.
Id. at 12‐13. Mondry herself, in responding to American Family’s subsequent petition for
a writ of certiorari, had noted the unsettled state of the case law as to the scope of section
1024(b)(4). Id. at 13. Prior to Mondry I, then, American Family held a reasonable belief
that it was not obliged to produce documents akin to the BIRT and CRT to Mondry. Id.
at 14. Looking alternatively to the five factors this and other courts have also identified
as relevant to a party’s entitlement to attorney’s fees, id. (citing, inter alia, Lowe, 361 F.3d
at 339), the court reaffirmed its conclusion that Mondry was not entitled to fees prior to
Mondry I: (1) the court found no evidence that American Family had acted in bad faith;
(2) although American Family was capable of paying a fee award, this by itself was not a
reason weighing in favor of fees; (3) a fee award was not needed to deter others, as
Mondry I itself articulated the circumstances under which internal resource materials
constitute plan documents that must be produced; (4) on the positive side of the ledger,
the suit would be of benefit to other plan participants in the future; but (5) the merits of
the suit were far from obvious at the outset of the litigation. Id. at 15‐16.
6 Nos. 10‐3409 & 11‐1750
Focusing on the post‐Mondry I phase of the litigation, the court viewed the
number of hours for which Mondry was seeking reimbursement to be excessive. It
appeared to the court that the total hours logged by Mondry’s counsel after the appeal
corresponded to an average of 31 hours per week for 18 months. For a small public‐
interest law firm, that seemed to represent an implausible devotion of time to a single
matter, especially one entailing preparation “for a short [bench] trial with no discovery.”
Id. at 17. Furthermore, the submitted fee records were not supported by “a careful and
candid explanation” of the various tasks to which the time was devoted. Id. at 18. The
court therefore gave counsel a choice: accept an award of $35,000 for time spent on the
trial and trial preparation, plus a sum of $2,500 for the work done in responding to
American Family’s petition for a writ of certiorari in the Supreme Court – which sums
the court deemed sufficient to compensate Mondry and her counsel for the time
reasonably required to complete those tasks – or submit a more reasonable fee petition
with adequate support. Id. at 18‐19. Mondry’s counsel opted to submit a revised fee
petition.
The second fee petition fared no better than the first. R. 172. Counsel submitted a
request in the amount of $245,820.63 for a total of 1,528 hours of work performed in the
wake of the Mondry I decision. The court viewed that the submission was better
documented than the original submission, id. at 2, but found it wholly unreasonable in
terms of the level of compensation requested.
Plaintiff’s counsel is asserting that it was necessary to put in the equivalent
of 38 40‐hour weeks to draft a response to defendant’s petition for a writ of
certiorari and prepare for a two‐day non‐jury trial with no experts. That
makes no sense. Even a non‐profit organization cannot afford to allocate
so many resources to one small case. After all, the great majority of the
trial discovery had been done in connection with the first trial in 2008.
Id. at 2‐3. The court deemed the still‐unreasonably large fee request to be an implicit
choice to accept the total of $37,500 that it had previously offered Mondry, and the court
awarded that amount. Id. at 3. The court also awarded costs of $1,917.83. Id.
II.
Our review begins with the district court’s determination of the statutory
penalties to which Mondry was entitled for American Family’s failure to timely produce
the Plan documents that she requested, and then turns to the question of attorney’s fees.
Nos. 10‐3409 & 11‐1750 7
For the reasons we set forth below, we find no error or abuse of discretion in either
amount that the court awarded to Mondry.
A. Damages
As we noted above, the district court awarded Mondry penalties of $30 per day
for delays totaling 309 days in producing the BIRT and CRT to her. The court imposed
no penalty for American Family’s failure to produce the GSA to Mondry based on its
finding that she had never asked American Family for a copy of that document. Mondry
contends that the court erred in excluding the latter document from its damages
assessment, and, as to the BIRT and CRT, that the court imposed too modest of a daily
penalty for an insufficient number of days. We disagree.
First, the district court did not err in excluding the GSA between American
Family and CIGNA from its calculation of statutory penalties. Our opinion in Mondry I
said that the agreement qualified as a Plan document that was subject to production; and
the GSA was relevant to Mondry’s attempt to obtain benefits in the sense that it revealed
American Family’s ability to demand that CIGNA turn over guidelines like the CRT and
BIRT. Mondry I, 557 F.3d at 796. But the district court found that Mondry never
specifically requested the GSA from American Family, and it did not clearly err in that
determination. A plan administrator is entitled to “clear notice” of the documents that a
participant is seeking. Anderson v. Flexel, Inc., 47 F.3d 243, 248 (7th Cir. 1995). None of
Mondry’s correspondence with American Family alerted it that the agreement was
among the documents she was seeking. Mondry’s best argument in this regard is that
her January 7, 2004 letter to CIGNA and American Family noted that CIGNA itself had
refused to produce the “insurance contract” on the ground that it was prohibited by law
from doing so and that it was up to American Family as Mondry’s employer to produce
Plan documents to her. Whether this reference provided any notice to American Family
that Mondry was seeking the GSA is debatable; but it certainly was not clear notice.1
Second, we do not believe that the district court erred in determining the dates on
which statutory penalties began to accrue for American Family’s failure to produce the
CRT and BIRT. The district court determined that it was an October 30, 2003 letter from
Mondry’s counsel that triggered American Family’s obligation to produce the CRT: in
1
We may assume for the sake of argument that Mondry did not subsequently
withdraw her request for the GSA in her attorney’s December 21, 2004 correspondence
with CIGNA, as the district court found. See R. 139 at 22.
8 Nos. 10‐3409 & 11‐1750
that letter, Mondry’s lawyer pointed out that CIGNA had cited the CRT in a July 23, 2003
letter to Mondry affirming the denial of her claim, and counsel asked that CIGNA
provide the CRT and any other documents relied on in denying Mondry’s claim. R. 139
at 20‐21; see id. at 9. As to the BIRT, the court said that it was fair to read an April 21,
2004 fax from Mondry’s counsel to American Family’s counsel as incorporating an
implicit request for that second document: the fax asked for “the rules, guidelines, or
protocols used as the premise for the denial of services” to Mondry. R. 139 at 21‐22; see
id. at 10. Mondry contends that two prior pieces of correspondence were sufficient to
trigger American Family’s statutory obligation to produce those documents to her: (1)
On June 30, 2003 Mondry wrote to CIGNA, with a copy to the director of American
Family’s benefits department, asking for “a complete copy of the Plan documents,”
adding that the Summary Plan Description she had been told to access on the American
Family website was not complete. See R. 139 at 7. Attached to that letter was a copy of
CIGNA’s June 13, 2003 letter to CDC denying coverage for Zev’s speech therapy and
referencing the BIRT. (2) On July 28, 2003, Mondry again wrote to CIGNA, with a copy
to American Family’s benefits director, repeating her request for Plan documents.
Mondry Ex. 5. Among the documents attached to that letter was CIGNA’s letter of July
23, 2003, again denying the claim and this time referencing the CRT.
The district court plausibly concluded that neither of these two earlier letters was
sufficient to trigger American Family’s obligation to produce the CRT or BIRT. In
contrast to the subsequent letters that the district court found sufficient, neither the June
30 nor the July 28 letter expressly asked American Family to produce the CRT or BIRT
or, more generically, for any internal guidelines CIGNA may have relied upon in
denying Mondry’s claim; both letters asked only generally for “plan documents.” As we
discussed in Mondry I, the CRT and BIRT were not Plan documents in the usual sense;
they were instead the sorts of interpretive guides that were extraneous to the Plan and
that a majority of courts had found not to be subject to production under the statute. 557
F.3d at 797‐98. We may assume that Mondry’s June 30 and July 28 letters alerted
American Family to the fact that CIGNA was in fact relying on the CRT and BIRT in
denying Mondry’s claims, as Mondry included with those letters copies of CIGNA’s
own letters to her citing those documents. But it would not necessarily have been
apparent to American Family that those were the documents to which Mondry was
referring when she asked for copies of the “plan documents.” American Family, as the
Plan administrator, understood from the beginning that it was the Summary Plan
Description which stated the actual, governing terms of the Plan; it therefore properly
directed Mondry to that document. Interpretive guides like the BIRT and CRT,
Nos. 10‐3409 & 11‐1750 9
whatever their content, could not supersede or displace the actual Plan terms. Mondry I
represented a departure from prior case law on this subject in holding that such guides
effectively may become plan documents subject to production under section 1024(b)(4)
when a claims administrator such as CIGNA has relied on them expressly in denying a
plan participant’s claim for benefits. 557 F.3d at 799‐801. American Family only became
responsible for producing those documents once it was clear that those documents in
particular were what she and her counsel were seeking. It had such clear notice when
Mondry’s subsequent correspondence singled out those documents (or those types of
documents). But in advance of our decision in Mondry I, American Family had no reason
to understand a boilerplate request for “plan documents” to include interpretive guides
such as the BIRT and CRT.
Next, Mondry contends that the court erred in focusing solely on the document
requests that she made of American Family. Understandably, Mondry directed a
number of her document requests solely to CIGNA, given that it was CIGNA which, in
the course of handling her claim, had explicitly relied on interpretive tools and language
therefrom that could not be found in American Family’s insurance plan. In Mondry I, we
held that CIGNA’s express reliance on and citation to such interpretive guidelines
rendered them Plan documents that American Family, as the Plan administrator, was
obligated to produce. 557 F.3d at 799‐800. Among other points, we emphasized that
CIGNA acted in American Family’s stead for purposes of claims administration, such
that its actions in relying (mistakenly) on the BIRT and CRT in denying Mondry’s claim
could bind American Family in terms of what constituted a Plan document. Id. at 801‐02.
Mondry urges us to take the agency rationale a step further here, and to treat any
document request made to CIGNA as if it were a request made to American Family, thus
rendering American Family liable for CIGNA’s delays as well as its own in producing
the requested documents.
But this takes our rationale in Mondry I too far. CIGNA was American Family’s
agent only with respect to claims administration. CIGNA’s actions could render certain
documents Plan documents subject to production under ERISA; but the duty to produce
such documents, as we recognized in Mondry I, lay solely with American Family as the
Plan administrator, id. at 801. American Family thus was not vicariously liable for
CIGNA’s delays in responding to Mondry’s demands for the BIRT and CRT.2
2
We add that there is no evidence that CIGNA had a history of citing extra‐plan
(continued...)
10 Nos. 10‐3409 & 11‐1750
Fourth and finally, the district court did not abuse its discretion in holding
American Family liable for a statutory penalty of $30 per day for each of the 309 days
that it failed to timely produce the BIRT and CRT. Mondry contends principally that the
court should have stacked the penalties, by treating each request for the same document
as triggering a separate daily, cumulative penalty. The district court noted that Mondry
had cited no support for that relief, but found that in any event stacking was not
necessary to arrive at a fair penalty. R. 139 at 23‐24.
Like the district judge, we assume without deciding that stacking might be
appropriate in some cases; but we detect no abuse of discretion in the judge’s conclusion
that this was not such a case. In arriving at an appropriate penalty, the district court
weighed the relevant considerations, including the prejudice that Mondry suffered due
to the delay in producing the BIRT and CRT; the unsettled state of the law at the time of
Mondry’s requests as to whether American Family was obligated to produce such
documents; and American Family’s reasonable belief that Mondry did not need those
documents because the Plan terms (to which Mondry had access) overrode anything in
the BIRT or CRT. Id. at 24‐25. We agree with the court that the $9,270 penalty it
imposed was substantial and sufficient to deter future violations. There is no evidence
that American Family acted in bad faith; to the extent it could have done more to assist
Mondry, it is at most guilty of negligence. We do not discount the prejudice that
Mondry suffered as a result of her inability to obtain the resource tools on which CIGNA
was relying, mistakenly as it turned out, to deny her claim. However, as the district
judge recognized, the real fault here lies with CIGNA; and yet it was American Family,
not CIGNA, that bore the relevant duty of production, and American Family’s actions
were not so egregious as to make the penalty the district court imposed unreasonable.
As with any discretionary assessment, a different judge might have chosen to impose a
more severe penalty. But the district judge in this case conscientiously reviewed the
evidence and competing equities, and by no stretch of the imagination can we describe
the penalty she imposed as an abuse of discretion.
2
(...continued)
interpretive guides like the BIRT and CRT in its claims decisions and that American
Family was aware of such a history when Mondry first came to American Family for
help in locating these documents. So far as the record reveals, CIGNA’s mistaken
reliance on the BIRT and CRT in denying Mondry’s claim was an isolated incident.
Nos. 10‐3409 & 11‐1750 11
B. Attorney’s Fees
Mondry’s threshold argument with respect to fees is that the district court applied
the wrong standard in assessing her entitlement to fees. The court, looking to the
standard we first adopted in Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 830 (7th Cir.
1984), considered whether (and when) American Family’s defense was substantially
justified. As noted, the district court determined that, prior to our decision in Mondry I,
American Family had substantial justification for thinking that internal documents such
as the BIRT and CRT were not Plan documents that it was obligated to produce to
Mondry; Mondry was thus not entitled to fees for the litigation leading up to Mondry I.
Mondry contends that, in lieu of Bittner’s substantial justification test, which she views
as inconsistent with the Supreme Court’s decision in Hardt v. Reliance Std. Life Ins. Co.,
130 S. Ct. 2149, 2157‐58 (2010), the court should have looked to the five‐factor test first set
forth in Eaves v. Penn, 587 F.2d 453, 465 (10th Cir. 1978). We have cited the Eaves test
with approval in a line of cases beginning with Marquardt v. N. Am. Car. Corp., 652 F.2d
715, 717 (7th Cir. 1981), and we have continued to cite it despite the criticism of its multi‐
factor approach we expressed several years ago in Sullivan v. William A. Randolph, Inc.,
504 F.3d 665, 671‐72 (7th Cir. 2007). Properly applied, Mondry argues, the five‐factor
Eaves test makes clear that she is entitled to an award of fees covering the full expanse of
this litigation, before and after Mondry I.
The district court did not err in applying the Bittner test and assessing whether
American Family’s position was substantially justified. Several points deserve mention
in this regard. First, the fact that Mondry had “some success on the merits” in this
litigation established her eligibility for an award of attorney’s fees under section
1132(g)(1) under Hardt, 130 S. Ct. 2158, 2159, but it did not render her entitled to a fee
award; it remained for the district court, in the exercise of its discretion, to determine
whether fees were appropriate. E.g., Kolbe & Kolbe Health & Welfare Benefit Plan v. Medical
Coll. of Wis., Inc., 657 F.3d 496, 505 (7th Cir. 2011) (quoting Pakovich v. Verizon LTD Plan,
653 F.3d 488, 494 (7th Cir. 2011)). Hardt itself “d[id] not foreclose” the application of an
additional test in order to determine whether fees should be awarded to a party whose
litigation success has made her eligible for such an award. 130 S. Ct. at 2158 n.8. Second,
in multiple decisions issued after Hardt, we have recognized the ongoing vitality of
Bittner’s substantial justification test. E.g., Kolbe & Kolbe Health & Welfare Benefit Plan, 657
F.3d at 505‐06; Kough v. Teamsters’ Local 301 Pension Plan, 437 F. App’x 483, 490 (7th Cir.
2011) (non‐precedential decision); Pakovich, 653 F.3d at 494; Jackman Fin. Corp. v. Humana
Ins. Co., 641 F.3d 860, 866 (7th Cir. 2011); Huss v. IBM Medical & Dental Plan, 418 F. App’x
498, 512 (7th Cir. 2011) (non‐precedential decision); see also Loomis v. Exelon Corp., 658
F.3d 667, 675 (7th Cir. 2011) (whether Bittner’s substantial justification test survived
12 Nos. 10‐3409 & 11‐1750
Hardt is an “issue we can avoid until the answer matters”). Third, the district court’s
application of Bittner did not result in a wholesale denial of fees to Mondry; rather,
because the court deemed American Family’s defense substantially justified up to the
release of our decision in Mondry I, it limited the fee award to the litigation taking place
after Mondry I.
Moreover, the court did not focus on the Bittner test to the exclusion of the criteria
identified as relevant in the five‐factor test. Rather, the court went on to apply the five‐
factor test and state that the latter test did not alter its conclusion that fees should not be
awarded for the phase of the litigation leading up to Mondry I. R. 162 at 15‐16. This is
consistent with our observation in Lowe v. McGraw‐Hill Cos., supra, that “the factors in
the [five‐factor] test are used to structure or implement, rather than to contradict, the
‘substantially justified’ standard, described in Little v. Cox’s Supermarkets, 71 F.3d 637, 644
(7th Cir. 1995), as the ‘bottom‐line’ question to be answered, even when the more
elaborate test is used.” 361 F.3d at 339. See also Kolbe & Kolbe Health & Welfare Benefit
Plan, 657 F.3d at 506; Huss, 418 F. App’x at 512; Sullivan, 504 F.3d at 672. It is also
consistent with the observation we have made repeatedly that the two tests pose
essentially the same inquiry: “was the losing party’s position substantially justified and
taken in good faith, or was that party simply out to harass its opponent?” Quinn v. Blue
Cross & Blue Shield Ass’n, 161 F.3d 472, 478 (7th Cir. 1998) (quoting Hooper v. Demco, Inc.,
37 F.3d 287, 294 (7th Cir. 1994)); see also, e.g., Kolbe & Kolbe Health & Welfare Benefit Plan,
657 F.3d at 506; Pakovich, 653 F.3d at 494; Jackman Fin. Corp., 641 F.3d at 866; Central
States, Se. & Sw. Areas Pension Fund v. Hunt Truck Lines, Inc., 272 F.3d 1000, 1004 (7th Cir.
2001); Bowerman v. Wal‐Mart Stores, Inc., 226 F.3d 574, 593 (7th Cir. 2000).
Mondry next argues that American Family’s litigating position prior to Mondry I
was not substantially justified, but there is no merit to that argument. As the district
court pointed out, and as we ourselves recognized in Mondry I, most courts had adopted
a narrow definition of plan documents subject to production under section 1024(b)(4)
which excluded interpretive tools akin to BRT and CRT. 557 F.3d at 797‐98. In that
respect, our decision constituted a departure based on particular facts presented in this
case. American Family certainly lost on that issue in Mondry I, for all of the reasons that
Mondry now emphasizes as evidence of the merits of her position. But there is a
difference between being on the losing side in litigation and pursuing a position that
lacks substantial justification. See Harris Trust & Sav. Bank v. Provident Life & Acc. Ins. Co.,
57 F.3d 608, 616 n.4 (7th Cir. 1995) (“To be ‘substantially justified’ the losing partyʹs
position needs to be ‘more than merely not frivolous, but less than meritorious.’”)
(quoting Bittner, 728 F.2d at 830). The fact that the relevant law was in an uncertain state,
Nos. 10‐3409 & 11‐1750 13
and that the losing party had support in the cases for its position, tends to show that its
position was substantially justified, notwithstanding the fact that it ultimately lost. E.g.,
Gatimi v. Holder, 606 F.3d 344, 348 (7th Cir. 2010); Potdar v. Holder, 585 F.3d 317, 320 (7th
Cir. 2009); Marcus v. Shalala, 17 F.3d 1033, 1037 (7th Cir. 1994). Given the extent to which
our decision in Mondry I turned on the unique facts of this case, we agree with the
district court that American Family’s defense prior to our decision was substantially
justified.
Mondry also contends that, to the extent the district court consulted the five‐factor
test, it applied the relevant factors incorrectly; but the court committed no clear error in
its application of the factors. As to the first of these factors (the degree of American
Family’s culpability or bad faith), the court recognized that American Family was
culpable in the sense that it could have done more to ensure that Mondry obtained
copies of the BIRT and CRT in a more timely fashion; indeed, that was the basis for its
finding that American Family had breached its fiduciary duty to Mondry. But the court
rightly concluded that American Family’s passivity was not so egregious as to evince a
lack of good faith: It did make some efforts to help Mondry with her appeal; it did not
have either the BIRT or CRT in its own possession, as these were CIGNA’s internal tools;
and it was not at all clear, prior to our decision in Mondry I, that American Family had an
obligation to produce internal documents such as these. R. 139 at 26‐27; R. 162 at 15.
Bad faith, we hasten to add, cannot be deemed a prerequisite to a fee award after Hardt.
Loomis, 658 F.3d at 674‐75. But the district court’s broader point – that given the legal
and factual context confronting American Family, its conduct was not especially
blameworthy – remains valid and relevant to Mondry’s entitlement to fees. Second (as
to the ability to satisfy an award of attorney’s fees), the court had no doubt that
American Family had the ability to pay a fee award. R. 162 at 15‐16. Mondry
emphasizes that the court, perhaps mistakenly, assumed that any such award would be
paid from Plan funds rather than American Family’s own pocket. But the court flagged
that possibility primarily in explaining the rationale behind the substantial justification
rule rather than as a reason not to award fees in this particular case. R. 162 at 11. (The
court did, after all, go on to award fees.) Third (as to whether an award of fees would
deter others acting under similar circumstances), the district court rightly recognized
that Mondry I itself will serve as a substantial deterrent against repetition of what
occurred here. Id. at 16. Perhaps a more sizeable fee award might give more heft to the
deterrent value of this litigation; but we have no reason to doubt the sufficiency of
Mondry I alone. Fourth (regarding the benefit conferred on members of the pension plan
as a whole), the court recognized and acknowledged that Mondry’s suit would inure to
the benefit of other plan participants in a similar position, just as Mondry argues. Id. at
14 Nos. 10‐3409 & 11‐1750
16. Fifth (as to the relative merits of the parties’ postions), although Mondry’s victory in
Mondry I certainly establishes that she had the better of the argument regarding the duty
to produce documents such as the BIRT and CRT, she fails to acknowledge the extent to
which her victory was not a foregone conclusion given the extent to which American
Family’s position had substantial support in the case law.
In sum, the district court did not err in limiting its fee award to litigation that
occurred subsequent to our decision in Mondry I. American Family’s position prior to
that decision was reasonable given the small number of documents prior decisions had
recognized as plan documents and the distinct minority of decisions that had recognized
interpretive tools such as the BIRT and CRT as plan documents that must be produced.
As the district court found, American Family could and should have done more to help
Mondry procure these documents from CIGNA. At the same time, as Judge Crabb
recognized, American Family had opted to employ a third‐party claims administrator to
avoid the conflict of interest inherent in deciding claims against a plan that American
Family self‐funded; it ran the risk of defeating that arrangement by inserting itself into
the claims administration process. R. 139 at 15‐16. American Family’s employees also
believed, not unreasonably, that because terms set forth in the Summary Plan
Description were dispositive, and because Mondry at all times had access to the SPD, she
had what she needed to pursue her claim with CIGNA. As between CIGNA and
American Family, CIGNA was by far the more culpable party. American Family was
not blameless, but its failings were both more modest than those of CIGNA and other
ERISA violators we have seen, and understandable given the relative dearth of
precedent obliging it to produce internal guidelines, let alone guidelines not in its own
possession.
Finally, Mondry claims that the district court lacked adequate legal and factual
support for the $37,500 in fees it awarded to her. She maintains that the court instead
should have followed the familiar lodestar approach in calculating the fee award. See
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983); Anderson v. AB Painting
& Sandblasting, Inc., 578 F.3d 542, 544 (7th Cir. 2009).
On the facts of this case, the court did not abuse its discretion in choosing to
award fees in the manner it did. Having presided over the trial, the district court of
course was in the best position to determine a reasonable fee. See, e.g., Pickett v. Sheridan
Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011). It was required to give a concise but
clear explanation for its decision as to fees, Hensley, 461 U.S. at 437, 103 S. Ct. at 1941;
“the record ought to assure us that the district court did not ‘eyeball’ the fee request and
Nos. 10‐3409 & 11‐1750 15
‘cut it down by an arbitrary percentage because it seemed excessive to the court.’”
Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 647 (7th Cir. 1995) (quoting Tomazzoli v.
Sheedy, 804 F.2d 93, 97 (7th Cir. 1986)); People Who Care v. Rockford Bd. of Educ., Sch. Dist.
No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996). Although no one formula or approach
controls the district court’s determination of a fee award, Schlacher v. Law Offices of Phillip
J. Rotche & Assocs., P.C., 574 F.3d 852, 856 (7th Cir. 2009); Tomazzoli, 804 F.2d at 97, the
assessment ordinarily is to begin with a determination as to the number of hours
reasonably expended by counsel on the case, e.g., Anderson, 578 F.3d at 544. Mondry’s
counsel frustrated that inquiry. In the first instance, he requested compensation for a
total number of hours that was plainly unreasonable given the length of the trial (two
days), the relatively straightforward nature of the issues involved, and the fact that
discovery had been conducted prior to Mondry I. The court gave him a second chance to
submit a more reasonable fee request, but although counsel did a better job at
documenting the time expended, he did no better the second time around in paring to a
reasonable number of hours the time for which he sought compensation. It appears, in
fact, that he eliminated only the hours spent by student interns on the case, with no
reduction in attorney time. Even on appeal, Mondry’s counsel has made no genuine
effort to justify the excessive number of hours spent preparing for the short trial. In this
particular context, it was within the court’s discretion to set aside the usual lodestar
approach and award Mondry the fixed amount of fees it had suggested earlier. We
ourselves have employed a somewhat similar approach in compensating parties for
having to respond to frivolous appeals. Coleman v. C.I.R., 791 F.2d 68, 72‐73 (7th Cir.
1986) (coll. cases); see, e.g., Berwick Grain Co. v. Ill. Dep’t of Agric., 217 F.3d 502, 506 (7th
Cir. 2000) (per curiam); Listle v. Milwaukee Cnty., 138 F.3d 1155, 1160 (7th Cir. 1998); Perry
v. Pogemiller, 16 F.3d 138, 140 (7th Cir. 1993); see also State Indus. Inc. v. Mor‐Flo Indus.,
Inc., 948 F.2d 1573, 1581 & n.12 (Fed. Cir. 1991) (coll. cases). It is worth adding that the
total of $35,000 awarded by the district court for trial and trial preparation corresponds
to 140 hours (more than three 40‐hour weeks) at the hourly rate of $250 that Mondry’s
lead counsel used in the fee petition. See R. 167‐4 at 22. We view that as a reasonable
amount of compensable time spent on the case following our decision in Mondry I.
AFFIRMED.