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Torrado v. Kimberly-Clark Corporation Pension Plan

June 26, 2007

EVELYN A. TORRADO PLAINTIFF
v.
KIMBERLY-CLARK CORPORATION PENSION PLAN DEFENDANT



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is Plaintiff's lawyer's Motion for an Attorneys' Fee.*fn1 Defendant has not responded but Defendant has informed the court that it does not object to the motion.

This is an ERISA claim for benefits under 29 U.S.C. § 1132(a)(1)(b). Plaintiff alleged entitlement to long term disability benefits. Her benefits were awarded because Defendant was found to have acted arbitrarily.*fn2

Plaintiff's lawyer asks for attorneys' fees and costs totaling $3,580.00, which represents 17.9 hours at $250.00 per hour, plus the $250.00 filing fee.

Reasonable attorneys' fees are available, but not mandatory, under ERISA.*fn3 A district court has discretion to award fees and costs but, the following should be considered:

(1) the degree of the opposing parties' culpability or bad faith;

(2) the ability of the opposing parties to satisfy an award of attorneys' fees;

(3) whether an award of attorneys' fees against the opposing parties could deter other persons acting under similar circumstances;

(4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and

(5) the relative merits of the parties' positions.*fn4

However, these factors should not be mechanically applied to defeat the purpose of ERISA or undermine the discretion of the court.*fn5

By properly applying the Lawrence v. Westerhaus factors, I find that the requested fee and costs are reasonable. Accordingly, the Motion for Attorney's Fees (Doc. No. 26) is GRANTED, and Defendant must pay Plaintiff's lawyer $3,580.00.

IT IS SO ORDERED this 26th day of ...


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