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Dimopoulou v. First Unum Life Insurance Co.

United States District Court, S.D. New York

February 3, 2017

Dimopoulou, Plaintiff,
First Unum Life Insurance Company et al., Defendants.


          ANDREW L. CARTER, JR. United States District Judge.

         Plaintiff 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.

         I. Legal Standard

         Under 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).

         In 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).

         A 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' fees).

         At this 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).

         II. Attorneys' Fees

         Traditionally, 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).

         A. Reasonable Hourly Rate

         A 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.

         The 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).

         Factors 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).

         In 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, ...

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