dissenting.
When a man marries two different women twice and is murdered by the brother of his second wife, it is perhaps unsurprising when a dispute arises about the proper beneficiary of his pension assets and it is perhaps unsurprising when the parties fail to resolve that dispute quickly. In that sense, there are no surprises here. What surprises me is that the majority declines to give deference to the long-suffering district court judge given the thankless task of presiding over this internecine dispute and designates the only party found by the district court to have acted in good faith throughout this litigation frenzy — the bank — as the villain in the saga. L respectfully dissent.
I.
Soon after Mr. Bryant’s death, First Trust receivéd competing demands on his plan assets — first from Brenda Fuston Petrey Bryant (Mr. Bryant’s second wife), then from Lorren and Lee Bryant (Mr. Bryant’s two sons). Over the next year and a half, First Trust received conflicting orders from the Whitley County, Kentucky, probate court about how Mr. Bryant’s pension plan assets should be distributed. An August 1995 order provided that one-third of the pension plan assets should be distributed to Brenda Bryant and two-thirds should be distributed to the two sons. In March 1996, however, the Kentucky probate court issued a new order, this time directing First Trust to distribute one-half of the assets plus $2,500 to the two sons, which was to be divided equally between them, and to hold the remaining assets (slightly less than half) pending further court order. No party, the court further instructed, was permitted to have access to the remaining assets “except by written Court Order executed by a Judge of competent jurisdiction.” JA 221.
In January 1997, First Trust notified the plan administrator, Elvin Bryant, that it had received conflicting demands and conflicting state-court -orders about Mr. *858Bryant’s pension plan assets. Unless the dispute resolved itself soon, First Trust told Elvin Bryant, it would “have no alternative than to interplead the assets in question into a court of proper jurisdiction at an expense to the account and possible additional expense to the ultimate beneficiary.” JA 259 (emphasis removed).
A few months later, on May 9, 1997, First Trust filed an interpleader complaint under the federal interpleader statute, 28 U.S.C. § 1335, in the United States District Court for the District of Colorado. The complaint asked the Colorado district court to determine who was entitled to the disputed funds. First Trust believed that Colorado was a proper venue for the action because First Trust is a Colorado corporation with its principal place of business in Colorado and because the plan assets were held in Colorado.
Conspicuously missing from the dispute up to this point, however, was Mr. Bryant’s first wife, Kay Hamlin (formerly Kay Bryant). Her absence was conspicuous because First Trust had a beneficiary designation form from July 1982 designating “Kay Bryant” as the primary plan beneficiary. JA 65. In its complaint, First Trust acknowledged that Mr. Bryant had designated Kay Bryant as the primary beneficiary in 1982 and attached a copy of the 1982 beneficiary designation form to the complaint.
First Trust had several reasons for not naming Kay Bryant in the complaint, none of which (they now acknowledge) turns out to have been particularly sound. None of the Kentucky court orders issued to First Trust mentioned Kay Hamlin (or Kay Bryant, for that matter) and Ms. Hamlin had made no claim to the assets. First Trust knew that Mr. Bryant had divorced Kay Bryant in 1985 and was married to Brenda Bryant at the time of his death. First Trust had no information regarding Hamlin' — her'current address or whether she was even alive. It is unclear from the record whether First Trust even knew her maiden name, as the only information provided by the beneficiary designation form was the name “Kay Bryant.” Lastly, First Trust believed that a Treasury Regulation, 26 C.F.R. § 1.401(a)-20, made Hamlin irrelevant because, under the regulation, Mr. Bryant’s marriage to Brenda Bryant invalidated the earlier designation of his first wife. See id. at Q-25, A-25. This view turned out to be incorrect because Brenda Bryant had been married to Mr. Bryant for less than a year at the time he died, which meant that the initial designation was still valid under the regulation. Id.
In accordance with the interpleader statute, First Trust deposited all of the plan assets attributable to Mr. Bryant — $305,-459.28 — into the Colorado district court’s registry. This first deposit represented Bryant’s share of the plan assets as of June 30, 1996 (each plan participant’s individual interest in the plan’s assets was computed once annually, on June 30th each year). Later, First Trust made a second deposit for earnings that were not calculated until June 30, 1997.
In filing the complaint, First Trust incurred modest fees and costs- — about $2,700. Soon after filing the complaint, First Trust proposed to the claimants that they stipulate (1) to dismiss First Trust from the case, (2) that the claimants be enjoined from asserting claims against First Trust related to the funds deposited with the court and (3) that First Trust be awarded its $2,700 in attorney fees. See, e.g., Metrop. Life Ins. Co. v. Marsh, 119 F.3d 415, 417 (6th Cir.1997) (ERISA fiduciary “filed a complaint of interpleader” and the district court “dismissed [the fiduciary] after [it] deposited ... the proceeds ..., plus interest, with the clerk of the *859court”). First Trust offered, in exchange, to stipulate to having the case transferred to the Eastern District of Kentucky, where the claimants felt the suit belonged in the first place. The two Bryant sons, however, called the entire proposal “blackmail” and refused to accept it. JA 133.
Matters quickly went downhill from there. First Trust incurred additional expenses responding to the two sons’ motion to dismiss the interpleader action outright, responding to Brenda Bryant’s document requests, participating in a scheduling conference and preparing a scheduling order, and filing a motion for the court to order the dismissal, injunction and attorney, fees that the claimants refused voluntarily to accept. Making matters worse, Brenda Bryant filed a counterclaim against First Trust alleging breach of fiduciary duties under ERISA, state-law cross-claims against the two sons relating to Bryant’s estate and a third-party complaint against Elvin Bryant and W.D. Bryant & Sons, Inc., as plan administrators, for breach of fiduciary duties. Brenda Bryant also filed a motion to have Kay Bryant joined as a defendant to ensure that all claims could be finally resolved in one' proceeding, a motion that First Trust did not oppose. Before all was said and done in Colorado, First Trust had incurred at least $16,545 in fees and costs.
In November 1997, the Colorado district court determined that venue was indeed improper in Colorado. Under the inter-pleader statute, an interpleader action must “be brought in the judicial district in which one or more of the claimants reside.” 28 U.S.C. § 1397. Since First Trust was not a claimant and since none of the claimants resided in Colorado, the court transferred the case to the Eastern District of Kentucky. The court also denied as moot First Trust’s request to be dismissed from the case and for its roughly $16,000 in attorney fees. The Colorado court never ruled on Brenda Bryant’s motion to have Kay Bryant joined as a defendant. A few months after the transfer, however, Kay Hamlin filed a motion to intervene -as a defendant,, which First Trust did not oppose and which the Kentucky district court granted.
In trying to extricate itself from the dispute, First Trust fared no better in Kentucky than it had in Colorado. Among other things, First Trust was forced to participate in scheduling and discovery conferences, to produce two First Trust witnesses for deposition, to respond to written discovery, ■ to litigate the issue of whether it should be dismissed from -the case and ultimately to litigate over attorney fees. As a result of these developments, the vast majority of the fees and costs incurred by First Trust in this litigation were incurred after the case was transferred to Kentucky and after Kay Hamlin had intervened. .
As late as January 1999, the same month that the district court ultimately concluded Kay Hamlin was entitled to the plan assets, Hamlin and’ the two sons (along with W.D. Bryant & Sons, Inc., and Elvin Bryant, the plan administrators) filed a brief arguing that First Trust should not be dismissed from the case because: (1) “the parties [should] have a full opportunity to file additional claims against [First Trust] if they desire”; (2) “certain of the defendants intend to ask the Court for an award of attorney- fees arid costs against First Trust, and because costs and expenses continue to accrue, they have no way. of knowing what the total amount will be”; and (3) “First Trust and its employees are important witnesses in this case.” JA 791. As for First Trust’s attorney fees, the same brief argued that First Trust was entitled to no attorney fees because First Trust filed the *860action in an improper venue and failed to name Kay Hamlin as a defendant. The poorly drafted complaint, the brief argued, “forc[ed] [Hamlin] to incur additional attorney fees in having to intervene in the case once it was transferred here.” JA 793.
After deciding in January 1999 that Kay Hamlin was entitled to all of the pension plan assets, the district court sought to bring the dispute to a close. To that end, on April 23, 1999, the district court issued four orders in the case. The first order addressed First Trust’s motion for dismissal, for an injunction prohibiting the parties from bringing any claims against First Trust relating to the pension plan assets and for attorney fees. The court granted the injunction and First Trust’s motion for attorney fees, but deferred dismissal until the attorney fees had been calculated. In granting First Trust’s motion for a fee award, the court determined that “[i]n bringing this interpleader action, [First Trust] protected the interests of the fund’s beneficiary and aided the parties in resolving their ongoing dispute over the decedent’s estate.” JA 947. Accordingly, the court awarded attorney fees to First Trust as the prevailing party in an inter-pleader action and ordered briefing by the parties on the proper amount of the award.
The second order denied the two sons’ motion to require First Trust to pay their attorney fees. In doing so, the district court applied this Court’s five-factor test for the award of attorney fees in an ERISA action, which instructs district courts to consider: (1) the opposing party’s culpability or bad faith; (2) the opposing party’s ability to pay; (3) the deterrent effect of an award; (4) whether the party requesting the fees sought to confer a common benefit or resolve significant legal issues regarding ERISA; and (5) the relative merits of the parties’ positions. Foltice v. Guardsman Products, Inc., 98 F.3d 933, 936-37 (6th Cir.1996). Consistent with -these considerations, the court made the following findings:
First, the bank [First Trust] has not engaged in culpable conduct or other acts constituting bad faith. While this action was initially filed in an improper venue, there is no evidence that the bank was motivated to file this suit in Colorado by improper considerations or that the filing constituted deliberate misconduct. Had there been proof of such conduct, the District Court in Colorado could have made such findings or dismissed the suit. The court made no such findings and instead transferred the case to this court. Likewise, the bank’s offer to stipulate to a different venue in exchange for its dismissal from the suit cannot be called, as the defendants contend, “extortion” or serve -as evidence of bad faith.... Additionally, the bank’s early recommendations concerning the proper recipient of the pension funds were mistaken, but there is no evidence that they were made in bad faith.... The bank’s original choice of venue and perhaps inartfully pled complaint do not appear to be deliberate acts, let alone misconduct.
JA 950-51.
The third of the April 23rd orders (1) instructed the clerk to disburse the pension plan funds to Kay Hamlin, less First Trust’s attorney fees, and (2) determined that Kay Hamlin’s attorney fees should be paid by First Trust. The court explained its decision to grant Kay Hamlin attorney fees as follows, again applying the five Foltice factors:
The court will grant Kay Hamlin’s attorney’s fees, but only those fees that reflect her expenses in this action.... First, it is unclear why First Trust Corporation would not include the individual *861listed as the designated beneficiary in the interpleader suit that was intended to resolve claims to the pension assets in this case. While Kay Hamlin had not stated a claim to the assets, her designation as beneficiary should have alerted First Trust Corporation to the need to include her in any suit that sought to award the pension assets to their legal claimant. Second, the bank has not claimed that it cannot afford to pay such fees. Third, such an award may help to ensure that designated beneficiaries are included in future suits, making such suits simpler to litigate and more likely to protect the interests of such beneficiaries. The last two factors of Fottice do not weigh for or against either party. Thus, as the balance of the factors weigh in- favor of an award of attorney’s fees, the court will grant such fees. The awarded attorney’s fees, however, are limited to only those accumulated in the movant’s efforts to intervene in this case. The actions of First Trust after Kay Hamlin was joined as an intervening defendant do not warrant an award of attorney’s fees.
JA 963-64.
The fourth order granted First Trust summary judgment on Brenda Bryant’s counterclaims and required Brenda Bryant to pay First Trust’s attorney fees on those claims.
On July 6, 1999, the parties agreed to an order releasing over $300,000 of the $361,000 in the court’s registry to Kay Hamlin. The court retained the. remaining $56,133.19 — the amount of attorney fees claimed by First Trust — until that issue could be finally decided.
For the next year or so, predictably enough, the court entertained a series of motions for reconsideration and clarification. Kay Hamlin moved the court to reconsider the award of attorney fees to First Trust on the newly raised ground that it violated ERISA’s anti-alienation provision, which prohibits “benefits provided under [an ERISA] plan!’ from being “assigned or alienated.” 29 U.S.C. § 1056(d)(1). On September 29, 1999, the court granted the motion for reconsideration, reversing its earlier award of attorney fees to First Trust. Two- weeks later, however, First Trust requested that the court reverse course again, which the court did in a May 18, 2000, order. “ERISA’s anti-alienation provisions,” the court, held in that order, “do not come into effect after pension funds are removed from the fiduciary responsibility of the plan manager.” JA 1096. Since First Trust’s attorney fees would be paid from funds already distributed from the plan and deposited with the court, the “fee award will not generate a right enforceable against the ERISA-governed pension plan, rendering ERISA’s anti-alienation provisions moot.” JA 1096. Moreover, the court determined, even though First Trust filed the complaint under the interpleader statute, the case “was practiced” as an ERISA action under § 502 of ERISA, 29 U.S.C. § 1132, a statute that “authorizes fee awards.” JA 1098. The court reinstated First Trust’s fee award.
From May 2000 through July 2000, the parties filed fee affidavits and objections concerning the amount and reasonableness of the. fees.
On July 3, 2002, the court issued a final ten-page order determining the amount and reasonableness of First Trust’s fees. The court held that “the amount of time spent on this litigation” by First Trust’s attorneys, “given its complexity and length,” was “reasonable” and that the rates charged by First Trust’s attorneys were reasonable. JA 1221.. The court divided its analysis into two time periods. The first related to work before April 23, *8621999, when the court ruled that the pension plan assets should be distributed to Kay Hamlin. For that period, the court made two reductions from First Trust’s request for fees: It disallowed fees incurred by First Trust in “seeking to recover its attorneys’ fees” for this period of time, JA 1224, and ordered that Brenda Bryant pay all fees incurred by First Trust in defending her counterclaim against the bank. The final total fees for the pre-May 1999 period came to $43,070.66.
From May 1999 onward, First Trust claimed an additional $12,429.63 in fees. The court acknowledged that these fees, in some sense, all related to First Trust’s pursuit of its own fees. But they were nevertheless reasonable, the court held, because First Trust incurred them in response to Hamlin’s motion for reconsideration, which ultimately proved unsuccessful. The court did, however, reallocate some of these fees to Brenda Bryant, reducing First Trust’s fee award from the pension plan assets in the court’s registry for this period to $11,484.63. Added to the amount for pre-May 1999, the total fees came to $54,555.29.
The court, lastly, reduced this total fee award by the amount of attorney fees that First Trust owed Hamlin. Hamlin claimed $6,368.74 as the cost of her having to intervene in the lawsuit. This included a proposed 100% upward adjustment. Although First Trust challenged the amount of these fees, Hamlin never responded to First Trust’s objections, except to reiterate her request for $6,368.74. (Hamlin, it bears adding, responded to other objections raised by First Trust during the fee dispute.) The district court concluded that Hamlin waived her right to the $6,368.74 in fees but nevertheless awarded her $1,000 for the costs of intervention. Subtracting that amount from First Trust’s award, the total to be paid to First Trust out of Hamlin’s funds in the court registry came to $53,555.29.
II.
In the face of this unflattering saga, I disagree with the majority’s conclusion that the district court abused its broad discretion to award fees to First Trust. As the facts make clear, First Trust tried to extricate itself from the case after incurring only $2,700 in attorney fees — and continued to try to extricate itself from the case for the next several years. The other parties, including Kay Hamlin, would not hear of it. Several years into the inter-pleader action, Hamlin filed a brief arguing that First Trust, the disinterested stakeholder, should not be dismissed because “the parties [should] have a full opportunity to file additional claims against it,” because the “defendants intend to ask ... for an award of attorney fees and costs” against it, and because its “employees are important witnesses in th[e] case.” JA 791. A party who chooses to take a litigation stance of this sort must take 'the bitter (escalating fees) with the sweet (the potential for an additional recovery).
Nor at any rate did the district court let First Trust off scot-free. The court penalized First Trust for having filed the action in the wrong venue and for having failed to include Kay Hamlin as a defendant. Hamlin requested and received expenses for having to intervene in the case, which were subtracted from First Trust’s award. Most of the fees in this case, moreover, were incurred after the case was transferred to Kentucky and after Hamlin became a party. Although I might have reduced First Trust’s fees even further had it been my call to make, I cannot say that the district court, which had a ringside view of the proceedings, abused its discretion.
*863The majority’s treatment of Hamlin’s attorney’s fees similarly ignores our deferential standard of review by doing little more than addressing various arguments that the district court specifically considered and rejected below. See Jordan v. Mich. Conf. of Teamsters Welfare Fund, 207 F.3d 854, 860 (6th Cir.2000) (“A district court has substantial discretion in making attorney fee awards in ERISA cases.”). Neither has the majority provided any explanation why the district court was not correct to conclude that Hamlin had waived her right to more than $1,000 in fees.
The majority, lastly, criticizes the district court for approving an award to First Trust that comes from the estate (e.g., from Kay Hamlin) rather than from the plan. But that, again, was Kay Hamlin’s fault, not the district court’s. She did not make this argument below and she makes the argument on appeal in a single paragraph without citation to any legal authority. The argument has been waived below and here, see, e.g., Golden v. Kelsey-Hayes Co., 73 F.3d 648, 657 (6th Cir.1996), a conclusion that seems particularly appropriate given the ample opportunities that Ms. Hamlin had to raise this argument in the many briefs she filed over attorney fees (and other satellite disputes) in this case.
I would affirm the district court’s award of attorney fees to both Hamlin and the bank.