United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR. United States District Judge.
Dimitra Dimopoulou brought suit under § 1132 of the
Employee Retirement Income Security Act ("ERISA"),
alleging that Defendant First Unum Life Insurance Company.
("Unum") wrongfully denied her disability benefits
under the terms of a long-term disability ("LTD")
plan. The parties cross-moved for summary judgment. In the
January 25, 2016 Memorandum & Order (the
"Opinion"), the Court denied the parties'
cross-motions and remanded the case to Unum for further
administrative review. Plaintiff moved for an award of
attorneys' fees and costs. For the following reasons, the
Court grants Plaintiffs motion, with some modification.
Familiarity with the Opinion, the underlying facts, and
procedural history is assumed.
ERISA, "[i]n any action under this title ... by a
participant, beneficiary, or fiduciary, the court in its
discretion may allow a reasonable attorney's fee and
costs of action to either party." 29 U.S.C. §
1132(g)(1). "ERISA's attorney's fee provisions
must be liberally construed to protect the statutory purpose
of vindicating [covered] rights." Locher v. Unum
Life Ins. Co. of Am., 389 F.3d 288, 298 (2d Cir. 2004).
Hardt v. Reliance Standard Life Ins. Co., the
Supreme Court held that an ERISA "fees claimant must
show 'some degree of success on the merits' before a
court may award attorney's fees." Hardt,
560 U.S. 242, 255 (2010). Whether a plaintiff has obtained
some degree of success on the merits "is the sole factor
that a court must consider in exercising its
discretion." Donachie v. Liberty Life Assur. Co. of
Boston, 745 F.3d 41, 46 (2d Cir. 2014). Thus, once a
court determines that a plaintiff has achieved some degree of
success on the merits, it is not required to, but
may in its discretion, consider other factors in
determining whether to award attorneys' fees. Under those
factors, known in this Circuit as the Chambless
factors, a court may consider (1) the degree of opposing
parties' culpability or bad faith; (2) the ability of
opposing parties to satisfy an award of attorneys' fees;
(3) whether an award of attorneys' fees against the
opposing parties would deter other persons acting under
similar circumstances; (4) whether the parties requesting
attorneys' fees sought to benefit all participants and
beneficiaries of an ERISA plan or to resolve a significant
legal question regarding ERISA itself; and (5) the relative
merits of the parties' positions. Chambless v.
Masters, Mates & Pilots Pension Plan, 815 F.2d 869,
872 (2d Cir. 1987).
plaintiff "does not satisfy [the some success on the
merits] requirement by achieving 'trivial success on the
merits' or a 'purely procedural victory.'"
However, she does satisfy it "if the court can fairly
call the outcome of the litigation some success on the merits
without conducting a 'lengthy inquiry into the question
whether a particular party's success was
'substantial' or occurred on a 'central
issue.'" Hardt, 560 U.S. at 255 (quoting
Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 n. 9
(1983)). Courts in the Second Circuit have awarded fees to
prevailing plaintiffs in ERISA actions based solely on
achieving a remand for further consideration by the
administrative body. See Doe v. Unum Life Ins. Co. of
Am., 2016 WL 335867, at *2 (S.D.N.Y. Jan. 28, 2016)
(report and recommendation awarding legal fees), adopted
in pertinent part. Doe v. Unum Life Ins. Co. of
Am., 2016 WL 749886, at *1 (S.D.N.Y. Feb. 23, 2016);
Wallace v. Grp. Long Term Disability Plan For Employees
of TDAmeritrade Holding Corp., 2015 WL 4750763, at *1
(S.D.N.Y. Aug. 11, 2015) (remand for further consideration of
whether condition was disabling constituted sufficient
success on the merits to support an award of attorneys'
juncture, because the case was remanded for further
consideration, the Court finds that Plaintiff has achieved
some success on the merits and thus, the Court declines to
consider the Chambless factors. See
Donachie, 745 F.3d at 46 ("a court may,
without further inquiry, award attorneys' fees to a
plaintiff who has had 'some degree of success on the
merits'") (emphasis in original).
to determine a reasonable attorney's fee, a court first
calculates a "lodestar figure, " which is
determined by multiplying the number of hours reasonably
expended on a case by a reasonable hourly rate. See
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see
also Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d
Cir. 1997). The lodestar creates a "presumptively
reasonable fee" that roughly approximates the fee that
the prevailing attorney would have received from billing a
paying client on an hourly basis in a comparable case.
Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d
Cir. 2011) (quoting Arbor Hill Concerned Citizens
Neighborhood Assoc, v. Cntv. of Albany, 522 F.3d 182,
183 (2d Cir. 2008).
Reasonable Hourly Rate
reasonable hourly rate is "the rate a paying client
would be willing to pay." Arbor Hill, 522 F.3d
at 190. The Second Circuit's '"forum rule'
generally requires use of 'the hourly rates employed in
the district in which the reviewing court sits in calculating
the presumptively reasonable fee.'" Bergerson v.
N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric
Ctr., 652 F.3d 277, 290 (2d Cir. 2011) (quoting
Simmons v. N.Y.C. Transit Auth.. 575 F.3d 170, 174
(2d Cir. 2009)). Generally, attorneys' fees are not
"awarded at higher out-of-district rates unless 'a
reasonable client would have selected out-of-district counsel
because doing so would likely . . . produce a substantially
better net result.'" Id. (quoting
Simmons, 575 F.3d at 172). District courts in this
circuit also consider the factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 92-93 (1989). See Arbor
Hill, 522 F.3d at 190.
twelve Johnson factors are: (1) the time and labor
required; (2) the novelty and difficulty of the questions;
(3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney
due to acceptance of the case; (5) the attorney's
customary hourly rate; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client or
the circumstances; (8) the amount involved in the case and
the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the "undesirability"
of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar
cases. Arbor Hill, 522 F.3d at 186 n. 3 (quoting
Johnson, 488 F.2d at 717-19).
five and twelve, the customary hourly rate and awards in
similar cases are "strong evidence of what the market
will bear." Rozell v. Ross-Hoist, 576 F.Supp.2d
527, 544 (S.D.N.Y. 2008); see also, e.g., Arbor
Hill. 522 F.3d at 186 n.3, 190; Nunez v. Francis
Deli Grocery, 2015 WL 1963630, at *7 (S.D.N.Y. Apr. 30,
2015) (attorney's customary hourly rate among factors to
be considered in determining lodestar, quoting Arbor
Hill); Bazignan v. Team Castle Hill Corp., 2015
WL 1000034, at *4 (S.D.N.Y. Mar. 5, 2015) fsame);
Magnuson v. Newman, 2014 WL 3767006, at *1 (S.D.N.Y.
July 31, 2014) (same). The burden rests with the party
seeking attorneys' fees to justify the reasonableness of
the requested rate, and the party's attorney should
establish his hourly rate with satisfactory evidence that
includes the attorney's own affidavits." General
Elec. Co. v. Compagnie Euralair, S.A., 1997 WL 397627,
at *4 (S.D.N.Y. July 3, 1997).
recent years, courts in this district have awarded rates in
the range of $600 per hour for partners with approximately
twenty years of experience in ERISA litigation, with rates
and awards increasing over time. See, e.g., Guallpa v.
N.Y. Pro Signs Inc., 2014 WL 2200393, at * 9-10
(S.D.N.Y. May 27, 2014) (recommending a rate of $600 for a
Vladeck Firm partner with 19 years of experience in
employment litigation), report and recommendation
adopted, 2014 WL 4105948 (S.D.N.Y. Aug 18, 2014);
Demonchaux v. Unitedhealthcare Oxford. 2014 WL
1273772 at *7 (S.D.N.Y. Mar. 27, 2014) (approving $600 hourly
rate for 2013 fees); Levitian v. Sun Life & Health
Ins. Co. (U.S.), 2013 WL 3829623, at *8 (S.D.N.Y. July
24, 2013), report and recommendation adopted, 2013
WL 4399026 (S.D.N.Y. Aug. 15, 2013) (approving 2012 hourly
rate of $600); Vilkhu v. City of New York, 2009 WL
1851019, at *4 (E.D.N.Y.June 26, ...