After owners of a closely held corporation sold the company to its Employee Stock Ownership Plan, a participant in the Plan brought this action contending that the trustee chosen for the Plan by the corporation breached its fiduciary duties and overpaid for the stock — improperly enriching the corporation’s owners at the expense of its employees. The district court properly concluded that the trustee had indeed breached its fiduciary duties, causing the Plan to overpay for the corporation’s stock by more than $29 million. The court entered judgment for the Plan in that amount and awarded attorneys’ fees to the participant’s counsel.
Only equity provides any possible basis for a fee award in addition to the statutory fees awarded. Here, scores of unnamed Plan participants benefited substantially from this lawsuit, while counsel bore the entirety of the costs and risks. Equity thus demands that the enriched participants pay a proportional share of reasonable attorneys’ fees.
This court agrees with the Second, Eighth, and Ninth Circuits that a statutory fee-shifting provision (or an award of fees under such a provision) does not, as a matter of law, automatically preclude an award under the common fund doctrine. Thus, the district court retained discretion to award supplemental attorneys’ fees from the common fund.