Corder

ORDER

The opinion filed October 7,1994 is amended as follows:

At slip opinion page 12369, delete the first sentence of the second full paragraph (beginning “As an initial matter ... ”) and substitute the following:

With this amendment, the petition for rehearing is denied.

OPINION

INTRODUCTION

Bruce and Betty Chadwick, Dean and Lorna Corder (the “Beneficiaries”), Baugh Construction and Engineering Company Profit Sharing Plan (the “Plan”), and Gary Baugh appeal the district court’s award of attorney’s fees to Howard Johnson & Company (“Howard Johnson & Co.”). The attorney’s fees at issue were awarded under 29 U.S.C. § 1132 (g)(1) of the Employee Retirement Income Security Act (“ERISA”) after the Plan’s and the Beneficiaries’ unsuccessful ERISA action against Howard Johnson & Co. We have jurisdiction under 28 U.S.C. § 1291 . We reverse and remand in part.

BACKGROUND

Baugh Construction and Engineering Company (“Baugh Construction”) formed the Plan in 1971 for its salaried employees. Gary Baugh, the president of Baugh Construction, also served as the Plan’s administrator and one of its two trustees. 1 The Plan’s trustees employed Howard Johnson & Co. as an ERISA consultant and…