
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1542                                 ARTHUR T. COTTRILL,                                Plaintiff, Appellant,                                          v.                      SPARROW, JOHNSON & URSILLO, INC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                              _________________________               Jeffrey S.  Brenner, with  whom Corrente, Brill  & Kusinitz,               ___________________             ____________________________          Ltd. was on brief, for appellant.          ____               Edward  C.  Roy, with  whom  Roy &  Cook was  on  brief, for               _______________              ___________          appellees.                              _________________________                                  November 19, 1996                              _________________________                    SELYA, Circuit Judge.  We are summoned again to  survey                    SELYA, Circuit Judge.                           _____________          the battleground on which  plaintiff-appellant Arthur T. Cottrill          has  been struggling  to  recover his  beneficial  interest in  a          profit-sharing  plan maintained by  his former employer, Sparrow,          Johnson &  Ursillo, Inc. (SJU).1   In our first visit  to the war          zone we determined that  Cottrill was not a fiduciary  within the          contemplation  of  the  Employee Retirement  Income  Security Act          (ERISA),  29 U.S.C.      1001-1461 (1994),  and specifically,  29          U.S.C.   1002(21)(A).   See Cottrill v. SJU, 74  F.3d 20, 22 (1st                                  ___ ________    ___          Cir. 1996).  We therefore reversed the district court's  contrary          ruling  and remanded  for  the entry  of  judgment in  Cottrill's          favor.  See id.                  ___ ___                    The  entry of  judgment  did not  end the  hostilities.          Cottrill  appeals anew,  this time  contending that  the district          court  abused its  discretion by  (1) miscalculating  prejudgment          interest, and (2) denying him attorneys' fees.  We affirm.                                          I.                                          I.                                          __                                  Setting the Stage                                  Setting the Stage                                  _________________                    We refrain  from rehearsing the facts  for two reasons.          First,  they are adequately stated  in our earlier  opinion.  See                                                                        ___          id. at 21.  Second, the questions that Cottrill now raises do not          ___          pertain directly to  the merits  of his cause,  but concern  only          embellishments to the judgment.  Thus, after pausing to elucidate                                        ____________________               1The  defendants in  this case  are SJU,  its profit-sharing          plan (the  Plan), and Steven  J. Ursillo  (SJU's chief  executive          officer and the Plan's trustee).  For simplicity's sake, we refer          to them collectively as "the trustee" or "the defendants."                                          2          the standard of review, we proceed immediately to the appellant's          asseverational array.                    Both  prejudgment  interest  and  attorneys'  fees  are          available,  but not obligatory, in  ERISA cases.  See Quesinberry                                                            ___ ___________          v. Life  Ins. Co. of N. Am., 987  F.2d 1017, 1030 (4th Cir. 1993)             ________________________          (en  banc)  (discussing   prejudgment  interest);  29   U.S.C.             1132(g)(1)  (discussing  attorneys'  fees).   An  appellate court          reviews  the grant  or denial  of  prejudgment interest  in ERISA          cases  solely for  abuse of  discretion.   See Smith  v. American                                                     ___ _____     ________          Int'l  Life Assurance  Co., 50  F.3d 956,  957 (11th  Cir. 1995);          __________________________          Anthuis  v. Colt Indus. Operating  Corp., 971 F.2d  999, 1002 (3d          _______     ____________________________          Cir.  1992).  The same  standard of review  obtains in connection          with rulings granting or denying applications for attorneys' fees          under 29 U.S.C.   1132(g)(1).   See Thorpe v. Retirement Plan  of                                          ___ ______    ___________________          the Pillsbury Co., 80 F.3d 439, 445 (10th Cir. 1996); Gray v. New          _________________                                     ____    ___          Eng.  Tel.  & Tel.  Co.,  792  F.2d  251,  259 (1st  Cir.  1986).          _______________________          Consequently, we  will disturb  such rulings only  if the  record          persuades  us that the trial  court "indulged a  serious lapse in          judgment."  Texaco P.R., Inc. v. Department of Consumer  Affairs,                      _________________    _______________________________          60 F.3d 867,  875 (1st Cir.  1995); accord Lutheren Med.  Ctr. v.                                              ______ ___________________          Contractors, Laborers, Teamsters &  Eng'rs Health & Welfare Plan,          ________________________________________________________________          25 F.3d 616, 623-24 (8th Cir. 1994).                                         II.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                                 Prejudgment Interest                                 Prejudgment Interest                                 ____________________                                          3                    In ERISA cases the district court may grant prejudgment          interest   in   its   discretion   to   prevailing   fiduciaries,          beneficiaries, or plan  participants.   This judicial  discretion          encompasses not only  the overarching question   whether to award          prejudgment interest at all   but also  subsidiary questions that          arise after the court decides to make an award, including matters          such as the period and  rate to be used in  calculating interest.          See, e.g., Smith, 50 F.3d at 958.          ___  ____  _____                    In   this   instance,   the  district   court   awarded          prejudgment interest, but,  in Cottrill's  estimation, the  court          chose an unrealistic accrual  date (thereby truncating the period          for which it allowed  interest) and then compounded the  error by          selecting too miserly an interest rate.  We address each of these          complaints in turn.                    1.  The Date of Accrual.  Ordinarily, a cause of action                    1.  The Date of Accrual.                        ___________________          under  ERISA and  prejudgment  interest on  a plan  participant's          claim both accrue when a fiduciary denies a participant benefits.          See, e.g., Larsen v. NMU  Pension Trust, 902 F.2d 1069,  1073 (2d          ___  ____  ______    __________________          Cir.  1990); Paris v. Profit Sharing Plan for Employees of Howard                       _____    ___________________________________________          B. Wolf, Inc.,  637 F.2d 357,  361 (5th Cir.), cert.  denied, 454          _____________                                  _____  ______          U.S. 836 (1981); Algie v. RCA Global Communications, Inc., 891 F.                           _____    _______________________________          Supp.  875,  899 (S.D.N.Y.  1994), aff'd,  60  F.3d 956  (2d Cir.                                             _____          1995).  Setting the accrual date in this manner not only advances          the general  purposes of prejudgment interest,  see West Virginia                                                          ___ _____________          v.  United  States, 479  U.S. 305,  310  (1987), but  also serves              ______________          ERISA's remedial objectives by making a participant whole for the                                          4          period during  which the  fiduciary withholds money  legally due.          See  Diduck v. Kaszycki &  Sons Contractors, Inc.,  974 F.2d 270,          ___  ______    __________________________________          286 (2d Cir.  1992).  Figuring the accrual date  in this way also          prevents  unjust enrichment.    See Sweet  v. Consolidated  Alum.                                          ___ _____     ___________________          Corp.,  913 F.2d  268,  270 (6th  Cir.  1990); Short  v.  Central          _____                                          _____      _______          States, Southeast & Southwest  Areas Pension Fund, 729 F.2d  567,          _________________________________________________          576 (8th Cir. 1984).                    Cottrill asserts  that his  cause of action  accrued on          December 12, 1990, when  the lawyer who was handling  his divorce          sent a letter  to the  Plan inquiring into  the availability  and          value of Cottrill's beneficial interest.   The district court saw          matters differently; it found that the cause of action accrued on          December  31,  1991,   when  the  trustee   erroneously  declared          Cottrill's funds forfeit.                    The  district court's  reasoning  is  persuasive.   The          attorney's letter cannot reasonably be construed  as a demand for          funds.     It  was  an  inquiry  for  the  purpose  of  providing          information necessary to the  divorce pavane   no more,  no less.          The defendants' response to  this letter confirms our assessment.          Neither in  language nor  in  tone does  it presume  to deny  any          application  for benefits,  but,  rather,  merely  indicates  the          amounts involved  and when  particular assets would  be available          for distribution.                    Once  past  the lawyer's  letter, the  district court's          determination that the defendants did not deprive Cottrill of his          benefits until  they  offset his  account  on December  31,  1991                                          5          (ostensibly to recoup losses that he occasioned, see Cottrill, 74                                                           ___ ________          F.3d at 21)  is virtually  inevitable.2  Hence,  the court  acted          well within  its discretion in finding  that prejudgment interest          began to accrue on that date.              2.  The Rate of Interest.  ERISA provides for postjudgment              2.  The Rate of Interest.                  ____________________          interest  to be  calculated  at the  federal  rate, 28  U.S.C.             1961(a)  (1994),  but  it  contains  no  explicit  provision  for          prejudgment  interest.   Here,  the district  court employed  the          federal statutory  rate for that  purpose.  The  appellant argues          that the court  should have used  the (somewhat more  munificent)          rate available under Rhode Island  law.  See R.I. Gen. Laws    9-                                                   ___          21-10 (1985) (stipulating  a flat rate of 12% per  annum).  We do          not  think that  the district  court exceeded  its  discretion in          choosing the federal rate.                                        ____________________               2The appellant  disputes the district court's  finding that,          prior  to year's  end,  the appellant's  money continued  to earn          interest.   We  have  two  reactions.    First,  the  finding  is          unnecessary to the result,  for it is  the fact that the  account          remained  untouched, coupled  with  the absence  of a  meaningful          turnover demand at an earlier time, that renders the December 31,          1991  date  defensible.    Second,  the  court  relied  upon  the          representations  of SJU's  counsel (uncontradicted  by Cottrill's          lawyer)  in making this ore tenus finding and invited Cottrill to                                  ___ _____          seek to modify the order if these representations were erroneous.          Cottrill  never accepted  the invitation.   Therefore,  he cannot          complain  of  the finding  here.    See  Dow  v. United  Bhd.  of                                              ___  ___     ________________          Carpenters & Joiners, 1  F.3d 56, 61-62 (1st Cir.  1993) (holding          ____________________          that  a  party  who  eschewed  the  court's  invitation  to  seek          discovery  if needed waived  any subsequent objection  to lack of          discovery);  Reilly v. United States, 863 F.2d 149, 168 (1st Cir.                       ______    _____________          1988)  (upholding  denial of  discovery request  where supposedly          aggrieved  party did  not accept  the magistrate's  invitation to          renew it at a later date); cf. United States v. Schaefer, 87 F.3d                                     ___ _____________    ________          562, 570 n.9 (1st Cir. 1996) (explaining that defendant's failure          to file a motion for reconsideration undercut his later objection          to district court's suppression order).                                          6                    As  a general  rule, federal law  governs the  scope of          remedies available when  a claim arises under  a federal statute,          and this  doctrine extends to  the rate of  prejudgment interest.          See  Colon Velez v. Puerto Rico Marine Mgmt., Inc., 957 F.2d 933,          ___  ___________    ______________________________          941  (1st Cir.  1992).   Of  course,  if the  particular  federal          statute  is   silent,  courts   have  discretion  to   select  an          appropriate rate, and they may look to outside sources, including          state law, for  guidance.  See id.  Because  ERISA is inscrutable                                     ___ ___          on the subject, a court that elects to award prejudgment interest          in an  ERISA case has broad  discretion in choosing a  rate.  See                                                                        ___          Hansen  v. Continental Ins. Co.,  940 F.2d 971,  983-85 (5th Cir.          ______     ____________________          1991).   In  such  a situation,  equitable considerations  should          guide the exercise of  judicial discretion.  See, e.g.,  Kinek v.                                                       ___  ____   _____          Paramount Communications, Inc., 22 F.3d 503, 514  (2d Cir. 1994);          ______________________________          Anthuis, 971 F.2d at 1009.          _______                    The  appellant insists  that the  lower court  departed          from "clear  federal appellate court precedent"  favoring the use          of state prejudgment interest rates in ERISA cases.  He is wrong.          Although federal courts sometimes have looked to state rates  for          guidance, see, e.g., Hansen,  940 F.2d at 983-84, they  have done                    ___  ____  ______          so as a matter not of compulsion, but of discretion.  Indeed, the          appellant's  argument conveniently overlooks numerous ERISA cases          in which federal appellate and district courts  have approved use          of  the federal  statutory rate  for prejudgment interest.   See,                                                                       ___          e.g., Mansker v. TMG Life Ins. Co., 54 F.3d 1322,  1331 (8th Cir.          ____  _______    _________________          1995); Sweet, 913 F.2d at 270; Blanton v. Anzalone, 760 F.2d 989,                 _____                   _______    ________                                          7          992-93 (9th  Cir. 1985);  United  States v.  Mason Tenders  Dist.                                    ______________     ____________________          Council, 909 F. Supp. 891, 895 (S.D.N.Y. 1995).          _______                    We need not tarry.   The law confers discretion  on the          trial  judge, not on the court of  appeals.  In this instance the          judge  chose  to  use  the federal  statutory  rate  in computing          prejudgment interest.  Utilizing this rate promotes uniformity in          ERISA  cases.   Furthermore,  the  federal rate  is  an objective          measure of  the value of  money over  time, and the  record makes          manifest  that, in  selecting it,  the district  judge considered          both the  rationale of  full compensation and  ERISA's underlying          goals.    We  note, too,  that  the  federal  rate is  especially          appropriate in this case because the Plan's funds  were initially          invested in Treasury bills.   See, e.g., Algie,  891 F. Supp.  at                                        ___  ____  _____          899  (finding the federal  rate appropriate when  it more closely          approximated the likely return  on the funds withheld).   Mindful          of these realities,  we do not think that equity  demands the use          of a higher rate.                                          B.                                          B.                                          __                                     Counsel Fees                                     Counsel Fees                                     ____________                    The appellant  also challenges  the  denial of  counsel          fees.  Congress declared that, in  any ERISA claim advanced by  a          "participant,  beneficiary,  or  fiduciary,   the  court  in  its          discretion  may  allow  a   reasonable  attorney's  fee"  to  the          prevailing party.   29 U.S.C.    1132(g)(1).   Unlike other  fee-          shifting  statutes,  however,  ERISA   does  not  provide  for  a          virtually  automatic  award  of  attorneys'  fees  to  prevailing                                          8          plaintiffs.     Instead,  fee  awards  under   ERISA  are  wholly          discretionary.  See Gray, 792 F.2d at 259.                          ___ ____                    This discretion  is not  standardless.  To  channel its          exercise,  this   court  has   cited  five  basic   factors  that          customarily should be weighed in the  balance:  (1) the degree of          culpability or  bad faith attributable  to the losing  party; (2)          the depth of the losing party's pocket, i.e., his or her capacity          to  pay an award;  (3) the  extent (if at  all) to which  such an          award   would   deter   other  persons   acting   under   similar          circumstances; (4) the benefit (if any) that the successful  suit          confers on plan participants  or beneficiaries generally; and (5)          the relative merit of the parties' positions.  See id. at 257-58.                                                         ___ ___          Other courts  of appeals have compiled  strikingly similar lists.          See Eddy v. Colonial Life  Ins. Co., 59 F.3d 201, 206  n.10 (D.C.          ___ ____    _______________________          Cir. 1995)  (collecting cases).   The  circuits  agree that  such          compendia are exemplary rather  than exclusive.  See id.  at 206;                                                           ___ ___          Quesinberry, 987 F.2d at 1029.  An inquiring court  may   indeed,          ___________          should    consider  additional criteria  that seem  apropos in  a          given case.   See Anthuis, 971 F.2d at 1012.  In a word, the test                        ___ _______          for  granting or  denying  counsel  fees  in  an  ERISA  case  is          "flexible."  Gray, 792 F.2d at 258.                       ____                    1.  Eschewing Presumptions.   Several courts of appeals                    1.  Eschewing Presumptions.                        ______________________          have declined  to adopt  a mandatory presumption  that attorneys'          fees will  be awarded  to prevailing  plaintiffs  in ERISA  cases          absent  special  circumstances.   See  Eddy, 59  F.3d  at 206-07;                                            ___  ____          Florence  Nightingale  Nursing  Serv.,  Inc.  v.  Blue Cross/Blue          ____________________________________________      _______________                                          9          Shield, 41 F.3d 1476,  1485-86 (11th Cir.), cert. denied,  115 S.          ______                                      _____ ______          Ct.  2002 (1995); McPherson v. Employees' Pension Plan of Am. Re-                            _________    __________________________________          Ins. Co., 33 F.3d 253, 254 (3d Cir. 1994); Custer v. Pan Am. Life          ________                                   ______    ____________          Ins.  Co., 12  F.3d  410,  422  (4th  Cir.  1993);  Armistead  v.          _________                                           _________          Vernitron  Corp.,  944  F.2d  1287, 1302  (6th  Cir.  1991); Iron          ________________                                             ____          Workers Local #272  v. Bowen,  624 F.2d 1255,  1265-66 (5th  Cir.          __________________     _____          1980); see  also Note, Attorney's Fees  Under ERISA:   When Is an                 ___  ____       __________________________________________          Award  Appropriate?,  71 Cornell  L.  Rev.  1037, 1049-55  (1986)          ___________________          (arguing against  a mandatory  presumption).  There  is, however,          some conflicting authority.  See Landro v. Glendenning Motorways,                                       ___ ______    ______________________          Inc., 625  F.2d 1344,  1356 (8th  Cir. 1980)  (applying mandatory          ____          presumption  used  under  civil   rights  statutes  in  favor  of          prevailing plaintiffs in ERISA cases); see also Bittner v. Sadoff                                                 ___ ____ _______    ______          &  Rudoy  Indus., 728  F.2d 820,  830  (7th Cir.  1984) (adapting          ________________          presumption  used in Equal Access  to Justice Act  cases to ERISA          milieu).3                    We share the majority view.  We hold that,  in an ERISA          case,  a prevailing  plaintiff  does not,  merely by  prevailing,          create a presumption that he or she is entitled to a fee-shifting          award.    Our holding  flows  naturally  from the  importance  of          preserving flexibility in  this area of the law.  Our holding is,          moreover,  adumbrated by our earlier decision in Gray.  There, we                                                           ____                                        ____________________               3We do not place  Smith v. CMTA-IAM Pension Trust,  746 F.2d                                 _____    ______________________          587 (9th Cir.  1984), in  this category.   Although Smith  quotes                                                              _____          liberally from a  civil rights case, see id. at  589, the opinion                                               ___ ___          does not suggest the  use of a mandatory presumption,  but merely          applies  the five  basic  factors in  light  of ERISA's  remedial          purposes.     See  Eddy,  59  F.3d  at  207  (reaching  the  same                        ___  ____          conclusion).                                          10          explicitly  rejected the  creation of a  presumption in  favor of          prevailing defendants.   792 F.2d at 258.  We pointed out that 29          U.S.C.    1132(g)(1) speaks in discretionary  terms, and that its          legislative   history,  unlike  that   of  certain  civil  rights          statutes, does not support  a presumption via- -vis counsel fees.          See Gray, 792 F.2d at 258-59.  This rationale suggests to us that          ___ ____          a presumption in  favor of  prevailing plaintiffs  also would  be          overkill;  because the five basic factors have a built-in bias in          favor  of prevailing  plaintiffs, see  id. (recognizing  that the                                            ___  ___          second, third, and fourth factors may favor prevailing plaintiffs          moreso than  prevailing  defendants), the  superimposition  of  a          presumption  seems  unnecessary  as  a means  of  protecting  the          legitimate interests of plan beneficiaries and participants.                    2.  Validity of the Order.  Having declined to employ a                    2.  Validity of the Order.                        _____________________          mandatory presumption, we turn now to the district court's order.          The appellant contends that  the court mishandled the  five basic          factors.  This contention lacks force.                    In terms of the first factor   culpability   the record          contains no  indication that the defendants  exhibited bad faith;          they   consulted   with  counsel   and   conducted  a   year-long          investigation before offsetting Cottrill's  account.  Thus,  even          though the Plan  was ultimately found  liable under the  statute,          the worst that  can be  said is that  the defendants,  confronted          with a sizeable loss  attributable to the appellant's imprudence,          misjudged the Plan's legal rights.                    The district judge made an additional point,  referring                                          11          to his original  finding that Cottrill  was the person  primarily          responsible for  the Plan's  substantial losses and  deeming this          fact relevant to  the issue of attorneys' fees.4   This is out of          the ordinary, for the traditional formulation of the first factor          suggests an inquiry into the bad faith or culpability only of the          losing party.   Still, on the  odd facts of this  case, we cannot          say that the district court's emphasis  on the prevailing party's          culpability constitutes  an abuse of discretion.   Cf. Armistead,                                                             ___ _________          944 F.2d  at 1304 (finding no abuse  of discretion in the absence          of a showing that  consideration of other factors would  have led          to a different result).  At the very least, Cottrill's conduct is          germane as an additional    and significant   circumstance  to be          considered  under the  flexible standard  that governs  ERISA fee          applications.  See, e.g., Anthuis, 971 F.2d at 1012.                         ___  ____  _______                    The  second factor  is a  non-starter.   While evidence          existed that the  defendants had funds  available and could  have          afforded to  pay  the appellant's  fees,  this datum  has  little          relevance  here.   An  inability to  afford  attorneys' fees  may          counsel  against an award, see  Armistead, 944 F.2d  at 1305, but                                     ___  _________          the capacity to  pay, by itself,  does not justify an  award, see                                                                        ___          Thorpe, 80 F.3d  at 445; Tiemeyer v.  Community Mut. Ins.  Co., 8          ______                   ________     ________________________          F.3d 1094, 1102  (6th Cir. 1993), cert.  denied, 114 S. Ct.  1371                                            _____  ______          (1994);  Quesinberry,  987  F.2d  at  1030.    Consequently,  the                   ___________                                        ____________________               4This  finding  had been  made  at  trial and,  although  we          reversed  the  judgment, our  decision in  no way  questioned the          finding of culpability.  See Cottrill, 74 F.3d at 21 (chronicling                                   ___ ________          the  conduct  which  informed  the lower  court's  assessment  of          culpability).                                          12          district  court did not blunder in finding that the second factor          lacked appreciable significance.                    Citing the uniqueness  of the  situation, the  district          court found the third  factor   generalized deterrence    to be a          mixed bag.   The court reasoned that an award of fees might deter          the wrongful withholding of  accounts by fiduciaries, but that  a          denial of  fees might  deter participants and  beneficiaries from          acting  recklessly in respect  to the assets  of employee benefit          plans.   The  appellant  does not  make  any convincing  counter-          argument.  While we  recognize the deterrent value of  fee awards          against errant fiduciaries and attach considerable weight to such          deterrence,  we discern  no  reason on  these peculiar  facts for          rejecting  the  district court's  analysis  of  deterrence as  an          element  here.  Given  the trial court's  superior vantage point,          its  evaluative judgments  about such  case-specific matters  are          entitled to substantial respect.                    The fourth factor    common benefit   cuts  against the          appellant.   His  situation  is both  exotic and  fact-dependent;          thus,  other  participants  do  not  stand  to  profit  from  the          appellant's  success.   This  lack  of  other similarly  situated          participants  militates against a fee award.  See Custer, 12 F.3d                                                        ___ ______          at 423.                    Last  but  not  least,  we address  the  merits  of the          underlying suit.   We agree  with the court  below that the  case                                          13          presented a close question.5   The very fact that  an experienced          trial judge originally found in  the defendants' favor argues for          a  finding  that  the  defendants  had  a  reasonable  basis  for          contesting Cottrill's entitlement to  the funds, even though this          court  ultimately  ruled  against  them.    Cf.  Sierra  Club  v.                                                      ___  ____________          Secretary  of the  Army,  820  F.2d  513,  519  (1st  Cir.  1987)          _______________________          (acknowledging  in an  EAJA case  that a  party's success  in the          district court is some evidence that its position was justified);          Porter  v. Heckler, 780 F.2d 920, 922 (11th Cir. 1986) (similar).          ______     _______          The fifth factor, then, is something of a wash.                    The bottom line is that  the district court applied the          conventional five-factor  test in an acceptable  manner and added          idiosyncratic  features to  it in  a reasonable  way.   The court          recognized that  a  successful plaintiff  in an  ERISA case  more          often than  not should recover attorneys' fees, but concluded for          reasons fully articulated in  the record that this claim  fell on          the other side of the border.  If  writing on a pristine page, we          might have weighed the mix  of factors differently   but  that is                                        ____________________               5In our prior opinion  we wrote that "there was  no possible          basis for the  [district] court's conclusion that  Cottrill was a          fiduciary."   Cottrill, 74 F.3d at 22.  The appellant seizes upon                        ________          this remark as proof that the merits were open and shut.  But the          appellant wrests  this  statement from  its contextual  moorings.          Fairly  read, the  comment capped  the preceding  analysis which,          examined  in context,  illustrated the  uncertainty of  who is  a          fiduciary under ERISA.   This  was a reasonably  close case  and,          just  as  we  have warned  that  a  judicial  decision cannot  be          transmogrified  by placing  overly great  reliance on  an awkward          locution  contained  in a  trial  court's  opinion, see  Dopp  v.                                                              ___  ____          Pritzker,  38  F.3d  1239, 1244  n.5  (1st  Cir.  1994); Lenn  v.          ________                                                 ____          Portland Sch. Comm., 998 F.2d 1083, 1088 n.4 (1st Cir. 1993), so,          ___________________          too,  we  are wary  of a  party's  attempts to  attach portentous          significance to an appellate court's use of isolated phraseology.                                          14          beside the point.   Absent a mistake of  law or a clear error  in          judgment    neither of which is  evident here   we  must defer to          the  trial court's  first-hand knowledge  and to  its battlefield          determination that the specific facts of this case do not warrant          a fee  award.  See Florence  Nightingale, 41 F.3d at  1485; Gray,                         ___ _____________________                    ____          792 F.2d at 260.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    We  need go  no  further.   The  rulings of  which  the          appellant  complains  were well  within  the realm  of  the trial          court's  discretion.   The  appellant,  once  victorious, is  now          vanquished.  He perhaps should have quit while he was ahead.          Affirmed.          Affirmed.          ________                                          15
