ERISA provides that in any action brought under Title I (except a claim for delinquent contributions), the court may in its discretion allow reasonable attorneys fees and costs of the action to either party. This provision places no limits on the court's discretion. Circuit courts that have addressed the issue have applied a five factor test:

• The degree of the offending party's culpability or bad faith;
• The ability of the offending party to satisfy an award of attorney's fees;
• Whether an award of fees would deter other persons from acting similarly under like circumstances;
• The relative merits of the parties' positions; and,
• Whether the action sought confers a common benefit on a group of plan participants.