Joan Eddy, of the Estate of James Peter Eddy v. Colonial Life Insurance Company of America

Without specifying any standards, 29 U.S.C. § 1132(g)(1) vests “discretion” in the district courts to award attorney’s fees in ERISA cases: “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” To this exceedingly general provision, a provision like many other federal fee-shifting statutes, my colleagues now attach the five-factor “test” composed in Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980). The Hummell test, we are told, is “exacting” but “neither exclusive nor quantitative” (maj. op. at 203, 206), which means there may…