Joshua Bachrach (Partner-Philadelphia, PA) obtained dismissal of a complaint against an ERISA client in the Western District of Oklahoma. After her disability benefits were briefly terminated, the plaintiff filed a lawsuit seeking reimbursement of attorney’s fees. She also claimed that the client wrongly denied her request for hardship relief. Based on the wording in the ERISA statute – which refers to “fees and costs of action” – the court agreed that attorney’s fees are limited to work performed during litigation. Because the requested fees predated the lawsuit, there was no viable fee claim. Turning to the hardship claim, the plan provides for a reduction in disability benefits based on social security benefits a claimant receives or is eligible to receive. The client previously waived the estimated offset due to hardship when the plaintiff was still waiting for approval of her social security claim. She alleged in the complaint that the hardship relief should have continued after those benefits were actually awarded to her. The court disagreed. The dismissal order recognized that even when estimated benefits are waived, once there is an actual award, disability benefits are recalculated and any overpayment must be refunded, as was done with the plaintiff’s claim. As such, there was no viable claim because the requested relief would be contrary to the plan requirements. Although leave to amend is typically granted when a complaint is dismissed, the court concluded that any amendment or new claim would be futile. Therefore, the dismissal was with prejudice.