                                             NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         _____________

                          No. 11-2453
                         _____________

            CHRISTOPHER TEMPLIN; VIOLA HENDRICKS;
          FELDMAN’S MEDICAL CENTER PHARMACY, INC.;
                     FCS PHARMACY LLC,

                                              Appellants

                              v.

                   INDEPENDENCE BLUE CROSS;
            QCC INSURANCE COMPANY; CAREFIRST, INC.
                         _____________

                          No. 11-3443
                         _____________

            CHRISTOPHER TEMPLIN; VIOLA HENDRICKS;
           FELDMAN’S MEDICAL CENTER PHARMACY INC;
                     FCS PHARMACY, LLC,
                                           Appellants

                              v.

          INDEPENDENCE BLUE CROSS; QCC INSURANCE
COMPANY; CAREFIRST, INC.; CHRISTOPHER TEMPLIN; VIOLA HENDRICKS;
          FELDMAN’S MEDICAL CENTER PHARMACY INC;
                      FCS PHARMACY, LLC,

                                             Appellants

                              v.

           INDEPENDENCE BLUE CROSS; QCC INSURANCE
                  COMPANY; CAREFIRST, INC.
                                    _____________

                                     No. 11-3583
                                    _____________

                 CHRISTOPHER TEMPLIN; VIOLA HENDRICKS;
                FELDMAN’S MEDICAL CENTER PHARMACY INC;
                          FCS PHARMACY, LLC

                                           v.

                INDEPENDENCE BLUE CROSS; QCC INSURANCE
                        COMPANY; CAREFIRST, INC



                INDEPENDENCE BLUE CROSS; QCC INSURANCE,

                                                                      Appellants
                                    _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                  (No. 5-09-cv-04092)
                      District Judge: Honorable Joel H. Slomsky

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 26, 2012
                                   ____________

           Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

                                 (Filed: June 27, 2012)
                                     ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

      This is a dispute over prejudgment interest and attorneys’ fees. The plaintiffs, two

individuals and two pharmacies, brought a denial of benefits suit under the Employee

                                            2
Retirement Income Security Act (“ERISA”) of 1974, 29 U.S.C. §§ 1001 et seq., and two

state law causes of action. The defendants are insurance companies. The District Court

ordered the parties to engage in a dispute resolution process, which resulted in approval

of all of the plaintiffs’ claims for recovery of benefits. These consolidated appeals

concern the District Court’s decisions (1) to dismiss a claim under Pennsylvania law as

lacking a private right of action, (2) to dismiss the remaining claims as moot without

considering plaintiffs’ request for interest on recovered benefits, and (3) not to award

either party attorneys’ fees and costs. For the reasons that follow, we will affirm the

District Court’s rulings on attorneys’ fees and its dismissal of the Pennsylvania law

claim. We will vacate and remand with regard to the District Court’s rulings on

mootness.

                                              I.

       We write solely for the parties’ benefit and recite only the facts essential to our

disposition. Plaintiffs Christopher Templin and Viola Hendricks are employees of Factor

Health Services II, LLC. Factor Health Services is a subsidiary of FCS Pharmacy, LLC

(“FCS”), a Florida-based pharmacy wholesaler. Templin and Hendricks participate in an

ERISA-governed employee welfare benefit plan offered by Factor Health Services. The

plan guarantees them coverage for certain medications that manage hemophilia, a

dangerous blood disorder. Defendant QCC Insurance Company (“QCC”) issued the plan

to Factor Health Services. QCC is a subsidiary of defendant Independence Blue Cross

(together, we refer to them as the “IBC defendants”), a Pennsylvania insurance company

and a licensee of BlueCross BlueShield Association. The third defendant, CareFirst, Inc.,

                                              3
also is a licensee of BlueCross BlueShield, but operates in Maryland. CareFirst did not

provide the plaintiffs insurance or play any role in funding their benefit plan.

       Since December 2007, Templin and Hendricks have obtained hemophilia

medication from plaintiffs FCS and Feldman’s Medical Center Pharmacy, Inc.

(“Feldman’s”), both specialty pharmacies. They set up a relationship whereby they

agreed to assign to the pharmacies the right to file claims for reimbursement directly with

the IBC defendants and CareFirst. This dispute arose after the pharmacies dispensed

medication to Templin and Hendricks and submitted claims to the defendants, some of

which were not paid in a timely manner.

       Alleging wrongful denial of benefits, the plaintiffs filed an initial complaint in

September 2009 and a first amended complaint in December 2009. The defendants

moved to dismiss on the basis that the plaintiffs had not exhausted administrative

remedies. Rather than dismiss the case, the District Court ordered the parties to engage

in the dispute resolution process detailed in the plan. As a result of that process, the

defendants approved payment for all the plaintiffs’ claims. Before the defendants were

able to pay the claims in full, however, the plaintiffs filed a four-count Second Amended

Complaint. They asserted two claims under ERISA § 502(a)(1)(B), 29 U.S.C. §

1132(a)(1)(B) (Counts 1 and 2), a claim against the IBC defendants under the

Pennsylvania Quality Health Care Accountability and Protection Act (hereinafter Health

Care Act), 40 Pa. Cons. Stat. Ann. § 991.2166 (Count 3), and a claim against CareFirst

under Md. Code. Ann., Ins. § 15-1005 (Count 4). The prayer for relief requested

payment of claims, declaratory relief, interest, costs, and attorneys’ fees.

                                              4
       The IBC defendants filed a renewed motion to dismiss. The District Court granted

the motion with respect to Count 3, reasoning that § 991.2166 of the Health Care Act did

not create a private right of action. On the remaining claims, the court reserved judgment

and directed the parties to participate in mediation on the issues of interest, attorneys’

fees, and costs. When that process proved unsuccessful, the District Court ordered

dismissal on the merits of the remaining claims against the defendants. The plaintiffs’

claims for recovery of benefits, reasoned the court, became moot when the defendants

approved and paid the claims in full.1 Recognizing that the issues of attorneys’ fees and

costs remained unresolved, the District Court indicated that it would entertain any

motions requesting such relief after the entry of final judgment. It did not address

whether the plaintiffs’ demand for interest would be resolved in post-judgment motion

practice. The plaintiffs timely appealed the order of dismissal.

       The IBC defendants filed a motion for attorneys’ fees and costs on May 27, 2011,

fourteen days after the entry of final judgment. The plaintiffs filed a motion for

attorneys’ fees and costs on June 13, thirty-one days after the entry of final judgment.

This prompted the IBC defendants to move to strike the plaintiffs’ motion as untimely.

The District Court agreed that the plaintiffs’ motion was filed after the filing period set

by Federal Rule of Civil Procedure 54(d)(2) and found no good cause for extending the

filing window. See Fed. R. Civ. P. 6(b)(1)(B). Moreover, the District Court explained, it

1
  CareFirst did not file a separate motion to dismiss the Second Amended Complaint.
But, understanding that mootness is a jurisdictional issue, see Harrow v. Prudential Ins.
Co. of Am., 279 F.3d 244, 248 (3d Cir. 2002), the District Court ordered dismissal of the
claims for recovery of benefits asserted against CareFirst because, it believed, those
claims also became moot once CareFirst paid the plaintiffs’ claims in full.
                                              5
would not award the plaintiffs attorneys’ fees even if their motion was timely because

they did not achieve “some degree of success on the merits,” Hardt v. Reliance Standard

Life Insurance Co., 130 S. Ct. 2149, 2158 (2010), and did not convince the court to

exercise its discretion to award fees.

       The District Court also denied the IBC defendants’ request for attorneys’ fees.

Most rulings made in IBC defendants’ favor throughout the litigation, the court

explained, were procedural and did not constitute “some degree of success on the merits,”

id. at 2158, but dismissal of Count 3 was some measure of success on the merits. After

considering relevant discretionary factors, however, the District Court declined to award

the IBC defendants counsel fees and costs.2 The plaintiffs appealed the grant of the

motion to strike and the denial of their motion for attorneys’ fees, while the IBC

defendants cross appealed. The appeals have been consolidated and are before us now.3

                                             II.

       The plaintiffs argue that the District Court erred by (1) dismissing the Health Care

Act claim on the basis that the Act does not create a private right of action; (2) granting

the IBC defendants’ motion to dismiss the Second Amended Complaint on mootness

grounds when demand for prejudgment interest remained to be adjudicated; and (3)

rejecting their motion for attorneys’ fees and costs. The IBC defendants’ cross appeal

likewise challenges the denial of their motion for attorneys’ fees and costs.



2
  CareFirst did not seek attorneys’ fees and costs.
3
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291.
                                              6
                                              A.

       The plaintiffs first contest the District Court’s dismissal of Count 3, the claim for

relief under § 991.2166 of the Health Care Act.4 The District Court dismissed the claim

on the basis that § 991.2166 creates no private right of action.5 It is common ground

amongst the parties that the statute does not contain an express right of action. But it was

error, the plaintiffs contend, for the District Court not to recognize in the statute an

implicit right to sue.

       In determining whether § 991.2166 contains an implicit private right of action, we

are not without guidance. In Solomon v. United States Healthcare Systems of

Pennsylvania, Inc., the Pennsylvania Superior Court applied Pennsylvania’s three-part

test to determine if the legislature intended to extend to health care providers a right to

sue. 797 A.2d 346, 352-53 (Pa. Super. Ct. 2002).6 Health care providers, the court

reasoned, fall within the class of individuals for whose benefit the statute was enacted.

Id. However, the legislative history disclosed no intent to create a civil court

enforcement remedy for health care providers or for any other private party. Id. at 353.


4
  Section 991.2166 requires insurers and managed care plans to pay “clean claims”
submitted by health care providers within 45 days of receipt of the claim and sets an
interest rate penalty for failure to pay in that time frame. 40 Pa. Cons. Stat. Ann. §
991.2166.
5
  “We review de novo a district court’s decision to dismiss the complaint for failure to
state a claim upon which relief may be granted.” Eurofins Pharma US Holdings v.
BioAlliance Pharma SA, 623 F.3d 147, 158 (3d Cir. 2010).
6
  To determine if there is an implied right of action in a statute, Pennsylvania courts
examine whether (1) the plaintiff is “one of the class for whose especial benefit the
statute was enacted,” (2) the legislative history reveals intent to create or deny a right of
action, and (3) a right of action is consistent with the purpose of the legislative scheme.
Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 626 (Pa. 1999).
                                               7
To the contrary, the administrative procedures established by the implementing

regulations indicated that no private right of action exists. Id. Entrusting state agencies

with overseeing a dispute resolution mechanism, the regulations anticipate expeditious

claim resolution in an administrative forum. Id. (citing 31 Pa. Code § 154.18). But a

civil right of action would stymie those administrative processes and undercut the

purpose of the legislative scheme. Id. Accordingly, the court concluded, § 991.2166 of

the Health Care Act does not create a private right of action. Id. at 352-53.

       The plaintiffs urge us to reject Solomon in favor of an unreported District Court

decision that unearths in § 991.2166 a cause of action. We decline the invitation to

subvert a state court’s interpretation of its statute to that of a federal court. Mindful of the

proper division of authority between state and federal courts, we defer to a state appellate

court’s interpretation of its own state’s statute absent convincing evidence that the state

supreme court would construe the statute differently. Nationwide Mut. Ins. Co. v.

Buffetta, 230 F.3d 634, 637 (3d Cir. 2000); Polselli v. Nationwide Mut. Fire Ins. Co., 126

F.3d 524, 528 n.3 (3d Cir. 1997). The plaintiffs do not argue that the Supreme Court of

Pennsylvania would part ways with Solomon. Nor have they offered a persuasive basis

for departing from Solomon’s reasoning. Their citations to decisions from other states’

courts and journal articles carry little weight in the face of a Pennsylvania court’s

construction of a Pennsylvania statute. We therefore will affirm the dismissal of Count 3

on the basis that that the prompt payment provision contains no implied right of action.




                                               8
                                               B.

       The plaintiffs next object to the District Court’s dismissal of the Second Amended

Complaint as moot without considering their request for prejudgment interest.7 They do

not dispute that the plea for benefits became moot once the defendants paid in full, but

they maintain that it was premature to dismiss the claims before addressing their

entitlement to interest on the benefits.8 Wishing to bypass the question whether the

claims were moot irrespective of plaintiffs’ lingering demand for interest, the defendants

argue that the plaintiffs were never eligible for interest in the first place.

       Claims become moot when circumstances evolve to destroy their justiciability.

Federal courts lack power to review moot claims because our jurisdiction depends on the

presence of a case or controversy. SEC v. Med. Comm. for Human Rights, 404 U.S. 403,

407 (1972); Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004). It is well

settled that “[w]here one of the several issues presented becomes moot, the remaining

live issues supply the constitutional requirement of a case or controversy.” Powell v.

McCormack, 395 U.S. 486, 497 (1969). However, “[a]n offer of complete relief will

generally moot the plaintiff’s claim, as at that point the plaintiff retains no personal

interest in the outcome of the litigation.” Weiss, 385 F.3d at 340.

       This case poses the question whether payment of withheld benefits constitutes

complete relief and thereby moots the case, or whether the plaintiffs’ unresolved demand

7
  We review a district court’s grant of a motion to dismiss on the basis of mootness de
novo. OSHA Data/CIH, Inc. v. Dep’t of Labor, 220 F.3d 153, 160 (3d Cir. 2000).
8
  The plaintiffs do not argue that their entitlement to interest derives from the plan’s
terms. They contend only that they were denied the opportunity to ask the District Court
to award them interest.
                                                9
for interest on the withheld benefits preserves their personal stake in litigation. The

District Court treated the plaintiffs’ interest in the case as resolved once the defendants

refunded the benefits claims in full. Its opinion acknowledged the plaintiffs’ request for

attorneys’ fees and costs, but made no mention of their plea for interest. The omission is

conspicuous, for the District Court had, in an earlier hearing, identified the issues

remaining in the case after payment of benefits as “interest, costs and attorneys’ fees,”

and then ordered mediation on those issues. E.g., App. 885:8.

       Dismissal of the claims as moot without considering the plaintiffs’ entitlement to

interest was error. Voluntary payment of withheld benefits after initiation of a lawsuit

does not necessarily moot the plaintiffs’ claims, since they have requested interest in their

complaint. See, e.g., Parella v. Ret. Bd. of the R.I. Employees’ Ret. Sys., 173 F.3d 46, 57

(1st Cir. 1999) (holding that claims were not mooted when Rhode Island refunded

wrongfully withheld pension benefits because the plan beneficiaries had demanded

interest owed under the plan for the period during which payments were not made);

Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 978-79 (D.C. Cir. 1991) (holding that the

plaintiff’s claims for withheld Medicare benefits did not become moot when the

Secretary of Health and Human Services settled the principal reimbursement claims

because claims for interest had not been resolved); 13C C. Wright, A. Miller & E.

Cooper, Federal Practice & Procedure § 3533.3, at 15-16 (3d ed. 2008) (“[M]ootness is

avoided by demands for back pay, medical monitoring . . . , public benefits, and interest.”

(footnotes omitted)). As the Court of Appeals for the First Circuit explained, “[T]he

possibility of even a partial remedy is sufficient to prevent a case from being moot.”

                                             10
Parella, 173 F.3d at 57 (citing Calderon v. Moore, 518 U.S. 149, 150 (1996) (per

curiam)).

       The next question is whether the plaintiffs were eligible for interest on the

benefits. The IBC defendants and CareFirst urge us to uphold dismissal of the Second

Amended Complaint on the basis that the plaintiffs cannot recover interest on their claims

under ERISA § 502(a)(1)(B) or Maryland law. ERISA § 502(a)(1)(B) provides a cause

of action to a participant or beneficiary of a plan “to recover benefits due to him under

the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his

rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). The

defendants declare that a different provision of ERISA, § 502(a)(3),9 is the only

mechanism for recovery of interest on delayed benefits paid voluntarily, while the

plaintiffs insist that § 502(a)(1)(B) can afford the same relief.

       Aside from these conclusory assertions, neither party endeavors to explain

whether § 502(a)(1)(B) is best interpreted to permit or preclude interest. Because the

parties offer no argument on the proper statutory construction of § 502(a)(1)(B), and

because the District Court never considered the issue, we will vacate the grant of the

motion to dismiss and remand for consideration of whether § 502(a)(1)(B) provides an

independent claim for interest, regardless of whether any benefits due under the plan have




9
  ERISA § 502(a)(3) provides a cause of action to a “participant, beneficiary, or
fiduciary” of an ERISA plan “to obtain . . . appropriate equitable relief . . . to redress . . .
violations” of the plan. 29 U.S.C. § 1132(a)(3).
                                               11
been paid.10 If so, the plaintiffs’ § 502(a)(1)(B) claims are not moot because the

plaintiffs could yet secure a judgment awarding interest based on that statute. If §

502(a)(1)(B) does not provide an independent basis for a judgment awarding interest,

then the plaintiffs’ claims are moot because they have already received the only relief

available to them and they have no live claim left that would entitle them to a judgment

and hence to a discretionary award of prejudgment interest. Cf. Rumber v. District of

Columbia, 595 F.3d 1298, 1300 n.1 (D.C. Cir. 2010) (explaining that a complaint’s

request for monetary relief did not maintain a live controversy where there was “no basis

on which [the plaintiffs could] collect damages”).

       For the same reasons, we will vacate the dismissal of the claim against CareFirst

under Md. Code. Ann., Ins. § 15-1005. The District Court did not address the plaintiffs’

request for interest under § 15-1005, reasoning only that “[t]he case became moot when

10
   We reasoned in Fotta v. Trustees of United Mine Workers of America that “[t]he
principles justifying prejudgment interest also justify an award of interest where benefits
are delayed but paid without the beneficiary’s having obtained a judgment.” 165 F.3d
209, 212 (3d Cir. 1998). A “late payment of benefits,” whether by means of a judgment
or administrative process, “effectively deprives the beneficiary of the time value of his or
her money.” Id. The appropriate vehicle for obtaining interest on benefits recovered
without a judgment but after considerable delay, we determined, is ERISA § 502(a)(3).
Id. at 213. Nevertheless, we declined to decide whether § 502(a)(1)(B) permits an award
of interest after recovery of withheld benefits but absent a judgment in the beneficiary’s
favor. Id. at 213 n.1; see also Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 209
(3d Cir. 2004). Several of our sister Courts of Appeals, however, find no implied cause
of action in § 502(a)(1)(B) for a claim of interest unless the plan expressly provides for
such relief. See, e.g., Flint v. ABB, Inc., 337 F.3d 1326, 1329 (11th Cir. 2003); Clair v.
Harris Trust & Sav. Bank, 190 F.3d 495, 497 (7th Cir. 1999). Because the plaintiffs may
still be able to assert a claim for interest under § 502(a)(3), the question whether §
502(a)(1)(B) provides an independent basis for relief could itself become moot if the
District Court permits the plaintiffs to amend the complaint to assert a claim under §
502(a)(3) or if the plaintiffs choose to file a new complaint for interest under that
statutory provision.
                                             12
Defendant Carefirst paid the claims.” App. 25. As discussed, this was not necessarily

correct. And because the § 15-1005 claim was not necessarily moot, the District Court

should not have dismissed the claim sua sponte without considering the plaintiffs’

entitlement to interest on the benefits recovered from CareFirst under that statute.

CareFirst raises a number of arguments as to why the plaintiffs are ineligible for interest

under § 15-1005, namely that the provision may not contain a private right of action, may

not apply at all to the plaintiffs’ claims, and may be preempted by ERISA. It did not

raise these arguments in a motion to dismiss the Second Amended Complaint, and we

will permit the District Court to consider them in the first instance.11

                                              C.

       Both the plaintiffs and the IBC defendants challenge the District Court’s denial of

their motions for attorneys’ fees and costs.12 The District Court granted the IBC

defendants’ motion to strike the plaintiff’s request for attorneys’ fees on the basis that it

was untimely. Final judgment was entered on May 13, 2011, and the plaintiffs filed their

motion a month later, on June 13, 2011. Rule 54(d)(2)(B) of the Federal Rules of Civil

Procedure requires a motion for attorneys’ fees to be filed “no later than 14 days after the

entry of judgment” unless a statute or court order provides otherwise. Rule 6(b) excuses


11
   CareFirst also challenges the timeliness of the plaintiffs’ post-judgment effort to obtain
interest. Because the plaintiffs’ claims for interest were not necessarily moot, we need
not consider whether they were required to seek interest in post-judgment motion
practice.
12
   We review a district court’s award or denial of attorneys’ fees under ERISA for abuse
of discretion. Ellison v. Shenango Inc. Pension Bd., 956 F.2d 1268, 1273 (3d Cir. 1992).
In so doing, we review its legal determinations de novo and its factual findings for clear
error. Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 305 (3d Cir. 2008).
                                              13
noncompliance only when a party requests an extension of time before the original

deadline or upon a showing of excusable neglect. Fed. R. Civ. P. 6(b)(1).

       There is no dispute that the plaintiffs filed their motion well past the 14-day filing

deadline set by Rule 54(d)(2) and that they did not request an extension of time. The

plaintiffs ask this Court to excuse their failure to abide by the rule because, they say, their

mistake did not prejudice the defendants. Whether or not an untimely motion for

attorneys’ fees prejudices the opposing party is beside the point, for Rule 54(d)(2), read

in conjunction with Rule 6(b)(1), permits an award of fees on an untimely motion only

after a finding of excusable neglect. See Drippe v. Tobelinski, 604 F.3d 778, 785 (3d Cir.

2010). The plaintiffs do not maintain that their noncompliance with the rule was caused

by excusable neglect, so we will affirm the District Court’s conclusion that their motion

for attorneys’ fees was untimely. See Bender v. Freed, 436 F.3d 747, 750 (7th Cir. 2006)

(affirming denial of ERISA attorneys’ fees as untimely when the moving party had no

good reason for missing Rule 54(d)(2)’s deadline).

       In the cross appeal, the IBC defendants maintain that it was error not to award

them attorneys’ fees. The District Court found that they achieved some measure of

success in the case by prevailing on their motion to dismiss Count 3. It then balanced the

discretionary policy factors announced in Ursic v. Bethlehem Mines, 719 F.2d 670, 673

(3d Cir. 1983), and found that those factors did not favor an award. The IBC defendants

urge us to uphold the District Court’s threshold ruling, but to conclude that the court

abused its discretion in weighing the Ursic factors.



                                              14
       ERISA provides that a district court “in its discretion may allow a reasonable

attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). The Supreme

Court understands this provision to permit a fee award for either party in an ERISA

action, so long as that party achieved “some degree of success on the merits.” Hardt, 130

S. Ct. at 2158. This standard, the Court has cautioned, is not met by a showing of “trivial

success on the merits” or a “purely procedural victor[y].” Id. We agree with the District

Court that the IBC defendants satisfied the “some degree of success on the merits”

inquiry by showing, at a minimum, that they prevailed in securing dismissal of Count 3.

That ruling was a rejection of a portion of the plaintiffs’ request for relief on the merits,

and as such cannot be characterized as a mere procedural victory.

       Turning to the policy factors, our precedent directs district courts to consider “(1)

the offending parties’ culpability or bad faith; (2) the ability of the offending parties to

satisfy an award of attorneys’ fees; (3) the deter[r]ent effect of an award of attorneys’

fees against the offending parties; (4) the benefit conferred on members of the pension

plan as a whole; and (5) the relative merits of the parties’ position[s]” before deciding

whether to award fees and costs. Ursic, 719 F.2d at 673. The factors “are not

requirements in the sense that a party must demonstrate all of them in order to warrant an

award of attorney’s fees, but rather they are elements a court must consider in exercising

its discretion.” Fields v. Thompson Printing Co., 363 F.3d 259, 275 (3d Cir. 2004).

       The District Court thoughtfully addressed four of the five factors (the fourth factor

was inapplicable) in rejecting the IBC defendants’ application for counsel fees. It found

that the first factor did not favor an award because the record did not suggest that the

                                              15
plaintiffs filed suit in bad faith. The second factor likewise disfavored an award because,

based on allegations in the Second Amended Complaint, the plaintiffs likely would be

unable to satisfy an award. With respect to the third factor, the court found that an award

would deter plaintiffs from filing suit before exhausting administrative remedies, but also

reasoned that it would thwart the ERISA policy of encouraging insurance companies to

pay claims in a timely fashion. On the question of the relative merits of the parties’

positions, the District Court found that the IBC defendants achieved a measure of success

on the merits, but the plaintiffs obtained the more substantive victory of full payment of

claims.

       We conclude that the District Court’s consideration of the Ursic factors furnishes a

reasoned basis for denying the IBC defendants attorneys’ fees and costs. The IBC

defendants, however, insist that the plaintiffs are culpable for filing suit before exhausting

administrative remedies. But notwithstanding their noncompliance with the plan’s

dispute resolution procedures, the plaintiffs tried, unsuccessfully, to resolve their claims

with QCC and Independence before filing suit. The IBC defendants next fault the

District Court for performing insufficient factfinding on the plaintiffs’ ability to satisfy an

award of counsel fees. Although the court did not conduct additional factfinding, the IBC

defendants bore the burden of establishing the factual predicate for their application for

attorneys’ fees, and they did not proffer evidence of plaintiffs’ ability to satisfy an award.

The IBC defendants next object to the District Court’s consideration of the deterrent

effect of declining to award them fees because they, unlike the plaintiffs, were not

“offending parties.” Ursic, 719 F.2d at 673. The District Court correctly determined that

                                              16
the plaintiffs and the defendants shared responsibility for litigation: the IBC defendants

delayed approval of plaintiffs’ claims for years without explanation, while the plaintiffs

did not comply with administrative procedures before filing suit. Finally, the IBC

defendants maintain that the merits of their position outweighs that of the plaintiffs. We

disagree. As the District Court found, the plaintiffs prevailed on the core issue in the case

— that is, their entitlement to benefits. The IBC defendants, we conclude, fall short of

establishing that the District Court abused its discretion.

                                             III.

       For the foregoing reasons, we will affirm the judgment of the District Court

ordering dismissal of Count 3 and denying both parties attorneys’ fees. We will vacate

the order dismissing Counts 1, 2, and 4 as moot and remand for further proceedings

consistent with this opinion.




                                              17
