Running the Caucus-Race: Prevailing Parties and Fee Shifting under ERISA

Da-Wai Hut[T]hey began running when they liked, and left off when they liked, so that it was not easy to know when the race was over.However, when they had been running half an hour or so,... the Dodo suddenly called out "The race is over!", and they all crowded round it, panting, and asking, "But who has won?" 1The Employee Retirement Income Security Act of 1974 ("ERISA") 2 is a comprehensive federal law regulating the private employee benefit system.Congress enacted ERISA to address concerns that abuses in the management of pension plans caused the wrongful denial of benefits to workers.The enactment of ERISA provided for a means to ensure that benefits promised to workers would be paid.! Congress hoped that ERISA would meet this goal "by t B.A. 1996, Northwestern University; J.D. Candidate 2000, The University of Chicago.' Lewis Carroll, Alice's Adventures in Wonderland 26 (Penguin Classics 1998).This passage describes the chaotic scene in which the Dodo and some other "curious creatures" demonstrated the Caucus-Race for the inquisitive Alice.The Race, apparently without rules or restrictions, involved the competitors running around in different directions, and it ended with uncertainty as to who was the winner.29 USC § § 1001 et seq (1994).' Although the term "retirement" appears in the title of the law, ERISA covers a wider range of employee benefits than its name suggests.In addition to pension plans, ERISA also governs health care, disability, and accident benefit plans.See Barbara J. Coleman, Primer on Employee Retirement Income Security Act v (BNA 3d ed 1989).. Abuses included companies' failure to properly fund employee benefit plans or diversion of plan assets to other uses so that there was not enough money to pay benefits.See