reasoning that it is the fee applicant’s burden in establishing 23 the reasonableness of the hourly rate and that providing the Court with the fee applicant’s 24 declaration, and nothing else, is insufficient
How later courts described this case
- reasoning that it is the fee applicant’s burden in establishing 23 the reasonableness of the hourly rate and that providing the Court with the fee applicant’s 24 declaration, and nothing else, is insufficient
- finding that domain name registrar did not “use” the plaintiff’s 23 mark in commerce; “something more than the registration of the name is required before 24 the use of a domain name is infringing”
- rejecting the argument that 29 U.S.C. § 1132(g)(1) expressly authorized taxation of expert witness fees
- “However, when prosecutors perform administrative or investigative 23 functions, only qualified immunity is available. That is, the actions of a prosecutor are not 24 absolutely immune merely because they are performed by a prosecutor.”
Written by the judges who cited it.
The opinion
ORDER ON REHEARING
Filed June 13, 1994
We have for consideration a petition for rehearing before the panel by the plaintiffs/appellees/eross-appellants, Jack R. Holland, et al. The panel denies that petition.
We also have for consideration a petition for rehearing with a suggestion for rehearing en banc presented to us by The Amalgamated Sugar Company and The Amalgamated Sugar Company Retirement Plan Committee, defendants/appellants. The panel denies that petition for rehearing for the reasons stated below.
According to Amalgamated, ERISA Section 4044(b)(5) [ 29 U.S.C. § 1344 (b)(5)], *981 which the court failed to cite in its opinion, requires that a participant’s “mandatory contributions” must be paid out first on termination of a pension plan such as here involved. Thus, Amalgamated asserts that under approved accounting procedures, practically no employee contributions remain for calculation in the distribution of the residue (excess assets) and that its accounting calculation should be approved.
We reject appellants’ contention that 29 U.S.C. § 1344 (b)(5) requires reducing the employees’ mandatory contributions for purposes of 29 C.F.R. § 2618.31 (b) (determining employees’ share of residual assets) by those amounts paid out to the participants prior to the spinoff termination, and that the district court thereby erred by failing to apply § 1344(b)(5) accordingly.
In our view, § 1344(b)(5) does not apply in the case of a spinoff termination, but applies only in an ordinary liquidation of an employee-participating pension plan. The rationale of § 1344(b)(5) is to ensure that in an ordinary liquidation, participating employees get back first at least what they paid into the plan. In the case of a spinoff termination, however, where the employer may be eligible to obtain residual assets, application of that provision operates to the detriment of the employees. Accordingly, § 1344(b)(5) does not apply upon the circumstances of this case.
The panel’s decision is amended at page 976, with the addition of footnote 15, to clarify that the discussion of computing mandatory employee contributions under the plan at issue is limited to the situation of a spinoff termination.
In accordance with Rule 35(b), Federal Rules of Appellate Procedure, the suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. No member of the panel and no judge in regular active service on the court having requested that the court be polled on rehearing en banc, Rule 35, Federal Rules of Appellate Procedure, the suggestion for rehearing en banc is denied.