Geiger v. Aetna Life Insurance Company

Filing 76

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/27/2016:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONNA GEIGER,
Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY,
Defendant.

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Case No. 15-cv-3791
Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Defendant Aetna Life Insurance Company has moved for attorneys’ fees and costs
pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(g)(1),
and Federal Rule of Civil Procedure 54. For the following reasons, the Court grants in part and
denies in part Aetna’s amended motion [72].
BACKGROUND
The Court presumes familiarity with the facts of this case, which it recounted in detail in
its June 24, 2016 Opinion denying Plaintiff Donna Geiger’s (“Geiger”) motion for summary
judgment and granting Aetna’s cross-motion for summary judgment. (R. 61.) The Court,
however, briefly summarizes the facts before commencing its analysis.
Geiger sued Aetna under ERISA seeking long-term disability benefits under an employee
welfare benefit plan (the “Plan”). (Id. at 1–2.) In October 2009, Geiger left her job at Sprint
Nextel claiming a disability due to “lumbar back pain with subsequent L5-S1 discectomy and
bilateral ankle pain with evidence of avascular necrosis of the talar bones bilaterally.” (Id. at 5.)
An October 2009 report from Dr. Ami Kothari confirmed Geiger’s diagnosis of “avascular

necrosis of the right talus” and “bilateral ankle pain.” (Id.) On April 5, 2010, Dr. James DeOrio
diagnosed Geiger with “bilateral talar avascular necrosis,” which led to Geiger undergoing a left
ankle arthroscopy and full ankle replacement in December 2010. (Id. at 5–6.) In April 2010,
Aetna approved Geiger’s claim for long-term disability benefits, concluding that she was
disabled from her own occupation as an account executive. (Id. at 6.) That same month, the
Social Security Administration approved Geiger’s request for Social Security benefits for herself
and her dependent minor son. (Id. at 7.)
In August 2012, however, Aetna informed Geiger that she no longer met the Plan’s
disability definition. (Id.) Geiger appealed, and, in May 2013, Aetna overturned its decision.
(Id. at 8–9.) Aetna reinstated Geiger’s long-term disability benefits, concluding that she met the
definition of being totally disabled from any gainful occupation. (Id. at 9.) As part of its review
process, Aetna had engaged two doctors, Malcolm McPhee and Robert Cirincione, to perform
independent physician peer reviews of Geiger’s medical files. (Id. at 8.) While Dr. McPhee
concluded that Geiger’s ankle condition would not preclude her from performing sedentary
work, Dr. Cirincione disagreed. (Id. at 8–9.)
Later, in May 2014, Aetna terminated Geiger’s long-term disability benefits for the
second time. (Id. at 10.) Aetna based this decision on a number of factors including (1) video
surveillance footage showing Geiger driving a car, climbing in and out of the driver’s seat of a
Sport Utility Vehicle, shopping and walking with a normal gait, and not demonstrating outward
signs of pain; (2) physician reviews of Geiger’s medical history; (3) a nurse’s clinical review of
Geiger’s medical file; and (4) a “transferrable skills assessment” to determine if any reasonable
occupation existed for which Geiger was suited. (Id. at 10–15.)

2

Geiger appealed, relying on evidence that included various witness statements as well as
reports from Dr. Luz Feldman, a pain treatment specialist; Dr. Debjani Roy, Geiger’s primary
care physician; and Dr. Mina Foroohar, a neurosurgeon. (Id. at 15.) Based on a July 2014
appointment, Dr. Feldman noted Geiger’s persistent neck pain as well as the recent success of
Geiger’s pain treatment. (Id.) Dr. Foroohar reported that, based on an October 2014
appointment, Geiger suffered from “[c]ervical spondylosis with stenosis, most significant at C5/6
and C6/7. EMG with C5/6 and C6/7 and C7/8 radiculopathy. [Geiger] can consider surgery to
include anterior cervical discectomy C5/6 and C6/7 with removal of osteophytes with allograft
fusion with plating and instrumentation.” (Id. at 16.)
Aetna engaged Dr. Daniel Gutierrez, a neurological surgeon, to complete an independent
physician peer review. (Id. at 17.) He concluded that, based on the surveillance videos as well
as Geiger’s medical records, (1) Geiger did not have “any profound functional impairments that
are conclusively shown,” and (2) she could stand, sit, and use her arms, hands, and fingers
consistently for an eight-hour day. (Id. at 19.) After receiving Dr. Gutierrez’s analysis, Aetna
reached out to Geiger’s doctors for comment. (Id. at 20.) Dr. Feldmann responded by noting
that Geiger’s level of activity in the surveillance footage was a result of substantial amounts of
pain medication, that she should not stand or walk for more than fifteen minutes per hour, and
that Dr. Gutierrez did not include Geiger’s acute cervical radiculopathy in his report. (Id.) Dr.
Gutierrez then completed another report in which he did not alter his original conclusion after
taking into account Dr. Feldmann’s concerns. (Id. at 21.)
In February 2015, after reviewing Geiger’s arguments and supporting materials, Aetna
denied her appeal. (Id.) Geiger then filed the current lawsuit that resulted in the Court granting
summary judgment to Aetna in a thirty-seven-page opinion. (Id. at 37.) Geiger has since

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appealed to the Seventh Circuit, and Aetna has brought the current motion for $40,000 in
attorneys’ fees1 and $17.50 in costs for postage. (R. 72, Def.’s Am. Mot. Attorney’s Fees, at 1,
13.)
LEGAL STANDARDS
I.

Attorneys’ fees
In ERISA actions “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); see Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010); Temme v.
Bemis Co., 762 F.3d 544, 547 (7th Cir. 2014) (per curiam).2 “[A]s long as the fee claimant has
achieved some degree of success on the merits,” a court’s discretion to award that claimant fees
is “considerable.” Chesemore v. Fenkell, Nos. 14-3181, 14-3215, 15-3740, 2016 WL 3924308,
at *10 (7th Cir. July 21, 2016) (published opinion) (internal quotation marks omitted) (quoting
Hardt, 560 U.S. at 245); see also Temme, 762 F.3d at 549.
The Seventh Circuit has recognized two tests that district courts may use to guide their
discretion when considering a motion for attorneys’ fees under ERISA. Kolbe & Kolbe Health
& Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496, 505–06 (7th Cir. 2011); Pa.
Chiropractic Ass’n v. Blue Cross Blue Shield Ass’n, No. 09 C 5619, 2016 WL 2958323, at *2
(N.D. Ill. May 23, 2016) (published opinion) (citing Temme, 762 F.3d at 550), appeal docketed,
No. 16-2845 (7th Cir. July 1, 2016). The first test weighs “whether the position of the party

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Aetna indicates that “the parties have conferred in an effort to agree to a fee amount if fees are awarded and have
agreed that if fees are awarded that they be awarded in the amount of $40,000.” (R. 72, Def.’s Am. Mot. Attorney’s
Fees, at 13.) Curiously, Geiger admits that she “ultimately agreed to the $40,000 figure,” but nevertheless appears
to simultaneously challenge the amount by arguing that “Aetna does not merit an award in an amount anywhere near
$40,000.” (R. 73, Pl.’s Mem. Opp., at 8.)
2

For actions “by a fiduciary for or on behalf of a plan to enforce [29 U.S.C. § 1145] in which a judgment in favor of
the plan is awarded,” a different fee provision applies that is not relevant here. See 29 U.S.C. § 1132(g)(1)–(2).

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against whom the fees are sought was ‘substantially justified,’” Temme, 762 F.3d at 549; Kolbe,
657 F.3d at 506, meaning “justified to a degree that could satisfy a reasonable person,” Kolbe,
657 F.3d at 506 (quoting Trustmark Life Ins. Co. v. Univ. of Chi. Hosps., 207 F.3d 876, 884 (7th
Cir. 2000)). A “substantially justified” position is “something more than non-frivolous, but
something less than meritorious—and taken in good faith.” Jackman Fin. Corp v. Humana Ins.
Co., 641 F.3d 860, 866 (7th Cir. 2011); Pa. Chiropractic, 2016 WL 2958323, at *2. Courts
using the substantially-justified test consider “a party’s posture during the case as a whole, rather
than treating each segment as an ‘atomized line-item[].’” Temme, 762 F.3d at 551 (alteration in
original) (quoting Comm’r v. Jean, 496 U.S. 154, 161–62 (1990)).
Under the second test, courts consider:
1) the degree of the offending parties’ culpability or bad faith; 2) the
degree of the ability of the offending parties to satisfy personally an
award of attorney’s fees; 3) whether or not an award of attorney’s
fees against the offending parties would deter other persons acting
under similar circumstances; 4) the amount of benefit conferred on
members of the pension plan as a whole; and 5) the relative merits
of the parties’ positions.
Kolbe, 657 F.3d at 505–06 (quoting Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d
472, 478 (7th Cir. 1998), abrogated on other grounds by Hardt, 560 U.S. at 253–55). No
one factor is dispositive. See Boland v. Thermal Specialties, Inc., 966 F. Supp. 2d 8, 11
(D.D.C. 2013); Bd. of Trs. of the Laborers Pension Trust Fund for N. Cal. v. Pastran, No.
C 09-05979 WHA, 2010 WL 3789836, at *5 (N.D. Cal. Sept. 27, 2010).
“[B]oth tests essentially ask the same question: was the losing party’s position
substantially justified and taken in good faith, or was that party simply out to harass its
opponent?” Kolbe, 657 F.3d at 506 (internal quotation marks omitted) (quoting Quinn, 161 F.3d
at 478); Pa. Chiropractic, 2016 WL 2958323, at *3. “For this reason, the five-factor test is used

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to ‘structure or implement, rather than to contradict’ the substantially justified test.” Bd. of
Trustees of the Auto. Mechs.’ Local No. 701 Union & Indus. Welfare Fund v. Brown, No. 12-cv10268, 2015 WL 1880375, at *2 (N.D. Ill. Apr. 23, 2015) (quoting Lowe v. McGraw-Hill Co.,
361 F.3d 335, 339 (7th Cir. 2004)). The Court notes, however, that it is not necessary to find
“that the party ordered to pay fees has engaged in harassment or otherwise litigated in bad faith.”
Loomis v. Exelon Corp., 658 F.3d 667, 675 (7th Cir. 2011).
There is “a ‘modest presumption’ in favor of awarding fees to the prevailing party,
though that presumption can be rebutted.’” Jackman, 641 F.3d at 866. Where a defendant seeks
fees from a losing plaintiff, however, that presumption is “weaker.” Pa. Chiropractic, 2016 WL
2958323, at *2; see Marquardt v. N. Am. Car Corp., 652 F.2d 715, 719–20 (7th Cir. 1981)
(“Although the five factors used as guidelines above do not explicitly differentiate between
plaintiffs and defendants, consideration of these factors will seldom dictate an assessment of
attorneys’ fees against ERISA plaintiffs.”); see also Toussaint v. JJ Weiser, Inc., 648 F.3d 108,
111 (2d Cir. 2011) (per curiam) (describing the five-factor as producing a “favorable slant
toward ERISA plaintiffs,” which “is necessary to prevent the chilling of suits brought in good
faith” (quoting Salovaara v. Eckert, 222 F.3d 19, 28 (2d Cir. 2000))). Indeed, the Seventh
Circuit has said that the “failure to ‘award attorneys’ fees . . . to ERISA defendants, even
“prevailing” defendants, would rarely constitute an abuse of discretion.’” Nichol v. Pullman
Standard, Inc., 889 F.2d 115, 121 (7th Cir. 1989) (quoting Marquardt, 652 F.2d at 719); see
Hakim v. Accenture U.S. Pension Plan, 901 F. Supp. 2d 1045, 1049 (N.D. Ill. 2012).
II.

Costs
The issue of what standard governs a motion for costs in an ERISA action was, for a

time, somewhat complicated. Federal Rule of Civil Procedure 54(d)(1) creates a presumption in

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favor of awarding costs to a prevailing party “[u]nless a federal statute, [the Federal Rules of
Civil Procedure], or a court order provides otherwise.” See Burrell v. United Parcel Serv., Inc.,
No. 14-cv-5127, 2016 WL 4720024, at *4 (N.D. Ill. Sept. 8, 2016) (citing Rivera v. City of
Chicago, 469 F.3d 631, 634 (7th Cir. 2006)). Section 1132(g)(1), in contrast, appears to give a
district court greater discretion than Rule 54 in determining whether to award costs. See Loomis,
658 F.3d at 674. As Judge Pallmeyer described in Lingis v. Motorola, Inc., 868 F. Supp. 2d 771,
774 (N.D. Ill. 2012), Seventh Circuit case law from the late 1980s until the late 2000s is unclear
as to whether § 1132(g)(1) is a statute that “provides otherwise” within the meaning of Rule
54(d)(1) and therefore supplants the rule in motions for costs under ERISA. Then, in 2011, the
Seventh Circuit “strongly indicat[ed]” in dicta that § 1132(g)(1) indeed supplants Rule 54.
Lingis, 868 F. Supp. 2d at 774–75 (citing Loomis, 658 F.3d at 674).
In 2013, however, the Seventh Circuit explained that although it had “[a]t times . . . taken
the view that Section 1132(g) ‘provides otherwise,’ and that costs are therefore unavailable under
Rule 54(d) in ERISA actions,” this “approach must be reconsidered in light of the Supreme
Court’s recent decision in Marx v. General Revenue Corp., 133 S. Ct. 1166 (2013).”
Leimkuehler v. Am. United Life Ins. Co., 713 F.3d 905, 915 (7th Cir. 2013). As the Seventh
Circuit described, the Supreme Court in Marx explained that (1) “the decision whether to award
costs ultimately lies within the sound discretion of the district court,” id. (quoting Marx, 133 S.
Ct. at 1172), and (2) “a statute ‘provides otherwise’ for purposes of Rule 54(d) only if it is
literally contrary to the rule, in the sense that it constricts discretion that the rule recognizes,” id.
(citing Marx, 133 S. Ct. at 1173). Applying the Marx approach to ERISA, the Seventh Circuit
concluded that it “s[aw] nothing contrary to Rule 54(d) in [§ 1132(g)].” Id. Thus, the Court
properly considers Aetna’s motion for costs under Rule 54 and its presumption in favor of

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awarding costs to the prevailing party. See id.; Matz v. Household Int’l Tax Reduction
Investment Plan, No. 96 C 1095, 2014 WL 2699944, at *1 (N.D. Ill. June 12, 2014); see also
Chesemore, 2016 WL 3924308, at *10 (explaining that (1) under Rule 54(d), the prevailing party
presumptively recovers its costs, (2) under both Rule 54(d) and § 1132(g), the court has
discretion whether to award costs, and (3) “costs and attorney’s fees need not be awarded in
tandem”).
When exercising their discretion whether to award costs under Rule 54, courts consider
whether the cost is recoverable and whether the amount assessed is reasonable and necessary to
the litigation. See Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008)
(per curiam). 28 U.S.C. § 1920 provides the list of recoverable costs. U.S. Neurosurgical, Inc.
v. City of Chicago, 572 F.3d 325, 333 (7th Cir. 2009). Although postage is not a specifically
enumerated cost under § 1920, the Seventh Circuit “has construed section 1920 to include
amounts spent on filing fees, postage, telephone calls and delivery charges.” Tchemkou v.
Mukasey, 517 F.3d 506, 512 (7th Cir. 2008). But see Wahl v. Carrier Mfg. Co., 511 F.2d 209,
217 (7th Cir. 1975) (explaining that “ordinarily,” charges for postage are not recoverable as
costs).
ANALYSIS
I.

The Court declines to award attorneys’ fees to Aetna
As a threshold matter, Aetna achieved some “degree of success on the merits” when the

Court granted its motion for summary judgment in August 2016. See Kieszkowski v.
PersonalCare Ins. of Ill., Inc., No. 09 C 01936, 2011 WL 3584324, at *9 (N.D. Ill. Aug. 12,
2011) (“There is of course no doubt that [the defendant] achieved ‘some degree of success on the
merits,’ as the Court has decided to award summary judgment in its favor.”); see also Williams v.

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Metro. Life Ins. Co., 609 F.3d 622, 634–35 (4th Cir. 2010). The question remains, however,
whether the Court should exercise its discretion to award fees.
As explained above, under either of the two tests that courts use to determine whether to
award attorneys’ fees under § 1132(g)(1), the ultimate question is: “[W]as the losing party’s
position substantially justified and taken in good faith, or was that party simply out to harass its
opponent?” Kolbe, 657 F.3d at 506 (quoting Quinn, 161 F.3d at 478). In this case, considering
the litigation as a whole, see Temme, 762 F.3d at 551, the Court concludes that Geiger’s position
was substantially justified and taken in good faith. Given the deferential standard of review in
ERISA denial-of-benefit cases in which the plan administrator has discretionary authority, (see
R. 61 at 23–24), Geiger faced an uphill battle to prevail in her claim for benefits. She did not,
however, enter this battle without ammunition. Multiple doctors diagnosed Geiger with
conditions affecting her back and ankles, and those diagnoses were severe enough to require
some surgery as well as pain medication. Even Dr. Gutierrez, who opined that Geiger could
work, conceded that Geiger had “fairly significant necrosis and osteochondral pathology that
would become very painful with prolonged standing and/or walking.” (Id. at 34.) Based on the
existence of the medical evidence supporting Geiger’s claim, the Court cannot say that her
position lacked a “solid basis.” Hakim, 901 F. Supp. 2d at 1053 (quoting Prod. & Maint. Emps.’
Local 504 v. Roadmaster Corp., 954 F.2d 1397, 1405 (7th Cir. 1992)).
Geiger also had a reasonable basis to challenge the key evidence that led to Aetna’s
ultimate denial of benefits—the surveillance footage of her driving and shopping. While Aetna
reasonably found the footage to be compelling evidence against Geiger’s claim, the surveillance
footage showed Geiger shopping on a handful of select days, not engaging in extensive physical
activity. Second, Geiger’s argument attempting to undermine the surveillance footage had a

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solid basis in law. Geiger contended that the surveillance footage did not justify a conclusion
that she “could . . . work on a regular and consistent basis.” (R. 40, Mem. Supp. Pl.’s Mot.
Summ. J., at 13.) To support this line of argument, she cited Skibbe v. Metro. Life Ins. Co., in
which the court explained that “[t]he limited footage obtained by the surveillance videos and
photographs was ultimately inconclusive because it did not prove that [the plaintiff] was able to
perform any job related activities on a daily basis or continue them for an extended period of
time.” No. 05 C 3658, 2007 WL 2874035, at *11 n.3 (N.D. Ill. Sept. 24, 2007) (emphasis
added).3 While Skibbe and the cases discussed in the footnote below did not ultimately carry
Geiger to victory, see Marantz v. Permanente Med. Grp., Inc. Long Term Disability Plan, 687
F.3d 320, 329–31 (7th Cir. 2012) (explaining that surveillance footage supported a denial of
benefits, but noting that “the weight given to surveillance evidence . . . depends both on the
amount and nature of the activity observed”), they at least supported the reasonableness of her
litigation position.
That Aetna not once but twice approved Geiger’s disability claim bolsters the
reasonableness of her litigation position, as it validates the reliability of the medical evidence
upon which she relied. Moreover, the Social Security Administration approved Geiger’s claim—
although it of course did not make its decision under the Plan using the same evidence Aetna had
before it—further suggesting that her medical conditions were serious. See Williams v. Aetna

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The Skibbe court cited two cases which also support Geiger’s position. See Skibbe, 2007 WL 2874035, at *11 n.3.
In Osbun v. Auburn Foundry, Inc., 293 F. Supp. 2d 863, 866 (N.D. Ind. 2003), the defendant relied on surveillance
footage in denying the plaintiff benefits. The footage depicted the plaintiff driving, carrying a five-gallon water jug,
picking up two bricks, picking up two children’s tricycles, attaching a trailer to a vehicle, and cleaning two vehicles.
Osbun, 293 F. Supp. 2d at 866. The court concluded that the footage was insufficient to support a denial of benefits,
reasoning that “evidence that [the plaintiff] can perform light physical tasks for 1.5 hours over two days falls far
short of demonstrating that he is capable of sustaining a job.” Id. at 869–70. Similarly, in Mullally v. Boise
Cascade Corp. Long Term Disability Plan, No. 04 C 412, 2005 WL 66070, at *7 (N.D. Ill. Jan. 11, 2005), the court
rejected the defendant’s reliance on surveillance footage showing the plaintiff moving a bicycle because such
footage “only reveal[ed] that, for limited periods of time, Plaintiff was able to complete certain activities.” The
footage “d[id] not demonstrate Plaintiff is able to work full time.” Mullally, 2005 WL 66070, at *7.

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Life Ins. Co., No. 04 C 6228, 2006 WL 2794969, at *10 (N.D. Ill. Sept. 28, 2006) (declining to
award fees to a defendant in part because the plaintiff “had a finding of disability from the Social
Security Administration . . . rendered after his Plan remedies were exhausted,” which could have
“reasonably . . . led plaintiff to believe that he might win [his] suit”). Given the reasonableness
of challenging Aetna’s decision when it (as well as the Social Security Administration) had
previously concluded that she was disabled, the Court does not find Geiger to have acted in bad
faith or for purposes of harassment.
In short, although the Court concluded in its thirty-seven-page opinion that Geiger’s
arguments did not ultimately justify overturning Aetna’s discretionary denial-of-benefits
determination, her litigation position was not so lacking in merit as to justify awarding fees to
Aetna. As Aetna points, the Court rejected Geiger’s arguments in its summary judgment
opinion. (R. 72 at 4–9). That the Court disagreed with Geiger’s contentions—which were
occasionally accompanied by the sort of puffery typical of litigants both unsuccessful and
triumphant—however, does not mean that her position lacked substantial justification when
viewing the litigation as a whole.
The five-factor tests does not alter the Court’s conclusion. As for the first factor—the
degree of the offending parties’ culpability or bad faith—the Court has already concluded that
Geiger’s position was substantially justified, and there is no indication Geiger acted in bad faith
or with an improper purpose in litigating her claim. Furthermore, the fact that Geiger is an
individual plaintiff suing a large insurance company for disability benefits lessens her level of
“culpability.” As the Seventh Circuit has explained:
[T]he “culpability” of a losing plaintiff significantly differs from
that of a losing defendant. A losing defendant must have violated
ERISA, thereby depriving plaintiffs of rights under a pension plan
and violating a Congressional mandate. A losing plaintiff, on the
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other hand, will not necessarily be found “culpable,” but may be
only in error or unable to prove his case.
Marquardt, 652 F.2d at 720; see also Pa. Chiropractic, 2016 WL 2958323, at *4–5. Geiger
swung and missed, but she did not act in a manner that the Court finds “culpable.” The first
factor therefore weighs in her favor.
The fifth factor—the relative merits of the parties’ positions—weighs in Aetna’s favor
“for the simple reason that [Aetna] won and [Geiger] lost.” Pa. Chiropractic, 2016 WL
2958323, at *7. This factor, however, weighs only slightly in Aetna’s favor because Geiger’s
position was substantially justified. See id. (“[T]he relative merits of the parties’ positions is an
oblique way of asking whether the losing party was substantially justified in contesting his
opponent’s claim or defense.” (internal quotation marks omitted) (quoting Sullivan v. William A.
Randolph, Inc., 504 F.3d 665, 672 (7th Cir. 2007)).
The remaining factors are—at best for Aetna—neutral. The second factor concerns
Geiger’s ability to pay Aetna $40,000 to cover its fees. The Seventh Circuit has said that when
employees sue under ERISA, they “will be hard pressed” to pay their own attorneys’ fees as well
as those of their adversaries. Marquardt, 652 F.2d at 720–21. “Thus, the ‘ability to pay’ factor
will rarely weigh in favor of an award of attorneys’ fees to a defendant.” Id. at 721; see also
Meredith v. Navistar Int’l Transp. Corp., 935 F.2d 124, 129 (7th Cir. 1991) (“[W]e must keep in
mind ERISA’s essential remedial purpose: to protect beneficiaries of pension plans. ‘Adherence
to this policy often counsels against charging fees against ERISA beneficiaries since private
actions by beneficiaries seeking in good faith to secure their rights under employee benefit plans
are important mechanisms for furthering ERISA’s remedial purpose.’” (quoting Nachwalter v.
Christie, 805 F.2d 956, 962 (11th Cir. 1986))); Hakim, 901 F. Supp. 2d at 1054 (“To saddle a
plan participant who brings a good-faith action with crippling attorneys’ fees . . . would thwart
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ERISA’s purpose.”). Geiger filed a declaration that her sole source of income is $2,240 in Social
Security benefits and that she has no significant assets. (R. 73-1.) Aetna counters by arguing
that Geiger submitted insufficient proof of her inability to pay because she failed to attach bank
statements or tax returns. (R. 74, Def.’s Reply, at 8–9.) While $40,000 is a hefty sum for nearly
any individual plaintiff and the Court has no reason to doubt Geiger’s representations regarding
her wealth, even accepting Aetna’s argument, the ability-to-pay factor is neutral, as Aetna does
not provide any reason to believe Geiger can cover a $40,000 award of attorneys’ fees.
With respect to the third factor—whether or not an award of attorney’s fees against the
offending parties would deter other persons acting under similar circumstances—“[a] grant of
attorneys’ fees may have a chilling effect on beneficiaries seeking redress for legitimate claims,
while a denial of attorneys’ fees may encourage lawsuits by parties with no chance of success.”
Hakim, 901 F. Supp. 2d at 1053. The Court will therefore treat this factor as neutral. Id.
(treating this factor as neutral where a defendant sought fees under ERISA); see also Pa.
Chiropractic, 2016 WL 2958323, at *6–7 (same).
Finally, with respect to the fourth factor—the amount of benefit conferred on members of
the pension plan as a whole—Aetna argues that it is “irrelevant given that this is an ‘individual
dispute.’” (R. 72 at 12 (quoting Hakim, 901 F. Supp. 2d at 1053).) The Court assumes Aetna’s
position is correct, as doing so does not affect the resolution of the current motion.
In all, three factors are neutral, and only the fifth factor slightly supports a fee award
while the first factor decidedly does not. The five-factor test does not lead to a different
conclusion than the substantially-justified test. Moreover, the ultimate inquiry of both tests is
whether “the losing party’s position [was] substantially justified and taken in good faith, or
w[hether] that party simply out to harass its opponent.” Kolbe, 657 F.3d at 506 (quoting Quinn,

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161 F.3d at 478). Given that the Court has concluded that Geiger was substantially justified and
did not act in bad faith or for purposes of harassment, the Court has little trouble exercising its
discretion to deny a fee award.4
II.

The Court grants Aetna’s motion for $17.50 in costs
As discussed above, Rule 54(d)(1) and its presumption in favor of awarding costs to a

prevailing party applies to Aetna’s request for costs. Because the Seventh Circuit has said that
postage is a recoverable cost, Tchemkou, 517 F.3d at 512, and because Geiger does not make an
argument to the contrary, the Court grants Aetna’s motion to recover the reasonable sum of
$17.50 in costs.5

4

The Court notes that Aetna’s reliance on Little v. Cox’s Supermarkets, 71 F.3d 637 (7th Cir. 1995), is misplaced.
(See, e.g., R. 74 at 5–6.) In Little, the Seventh Circuit merely found that the district court did not abuse its discretion
in awarding fees to a prevailing ERISA defendant. See 71 F.3d at 644–45. Moreover, ERISA cases are highly fact
sensitive. That a court chose to exercise its discretion to award fees in one case has little to do with whether a court
will do the same in another case with different facts.
5

Geiger argues that the court in Hakim “ruled that 29 U.S.C. § 1132(g) applies both to requests for fees as well as
costs.” (R. 73 at 2.) There are two problems with this argument. First, the Hakim court did not have the benefit of
the Supreme Court’s decision in Marx or the Seventh Circuit’s decision in Leimkuehler, which made clear that
§ 1132(g) does not displace Rule 54(d). Second, even though the Hakim court considered a request for costs under
§ 1132(g), it declined to use the “substantially justified test” from the ERISA-attorneys’-fees context. See Hakim,
901 F. Supp. 2d at 1054–55. Instead, the court “conclude[d] that a sensible approach . . . is to borrow the widelyused standard for awarding costs under Rule 54(d)(1).” Id. at 1055. Thus, even if Geiger were correct that
§ 1132(g)(1) applied and Rule 54(d) did not, the Court would follow the approach in Hakim and still award Aetna
costs. See id. at 1054–58 (awarding costs to a prevailing defendant while denying a motion to award attorneys’
fees).

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CONCLUSION
For the foregoing reasons, the Court grants Aetna’s motion with respect to its request for
costs but denies its motion with respect to its request for attorneys’ fees.

DATED: September 27, 2016

ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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