receiving a denial notice the claimant may then begin the administrative appeals process, as proscribed by the benefit plan. If a claimant has exhausted all of his administrative remedies and still believes that he or she has a valid claim, the claimant may file an appeal with the U.S. District Court. 29 U.S.C. 1132(a)(1)(B). State courts have concurrent jurisdiction over ERISA claims, but any claimant who desires a remedy other than an award of benefits must file their action in federal court. 29 U.S.C. 1132(e)(1). Although an ERISA action may be brought in state court, the state court is still required to apply the federal ERISA statute. Bird v. Shearson Leaman/American Express, 871 F.2d 292 (2nd Cir. 1989). The ERISA statute itself determines venue. An ERISA action can be brought in the district where the plan is being administered, where the alleged breach took place, or where a defendant resides. 29 U.S.C. 1132(e)(2). Finally, trial courts are given discretion to determine whether attorney’s fees should be awarded, and in what amounts, to a prevailing attorney. 29 U.S.C. 1132(g)(1). Although the payment of attorney’s fees is not required they are “expected absent special circumstance which would make the award unjust.” Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995). In order to award attorneys fees a court usually applies a five-prong test: (1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability of the defending party to satisfy personally an award of attorney’s fees; (3) whether or not an award of attorney’s fees against the opposing parties would deter other persons acting under similar circumstance; (4) the amount of benefit as a whole; and (5) the relative merit of the parties’ positions. Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984). Most circuits seem to have a slight presump...
