Shaw v. The Ameritech Long Term Disability Plan

Filing 36

MEMORANDUM OPINION and ORDER Granting in Part Plaintiff's 28 MOTION for Order Awarding Benefits, Interests, Costs, and Attorney Fees - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Raymond Shaw,
Plaintiff,
v.

Case No. 13-cv-11461
Hon. Judith E. Levy
Mag. Judge Mona K. Majzoub

AT&T Umbrella Benefit Plan No.
1,
Defendant.
________________________________/
OPINION AND ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR ORDER AWARDING BENEFITS, INTEREST,
COSTS, AND ATTORNEY FEES [28]
On July 29, 2015, the Sixth Circuit entered judgment in the
appeal of this case, finding the defendant AT&T Umbrella Benefit Plan
No. 1 acted arbitrarily and capriciously when it denied plaintiff
Raymond Shaw long-term disability (“LTD”) benefits under an ERISAregulated plan. See Shaw v. AT&T Umbrella Benefit Plan No. 1, 795
F.3d 538, 552 (6th Cir. 2015). The Sixth Circuit remanded for entry of
an order awarding plaintiff the benefits to which he is entitled, see id.,
and the mandate issued on August 27, 2015. (See Dkt. 29.) At issue is

plaintiff’s motion for benefits, interest, costs, and attorney fees. (See
Dkt. 28.) For the reasons set forth on the record and below, plaintiff’s
motion is granted in part.
I.

Background
The facts as provided by the Sixth Circuit can be summarized as

follows. Plaintiff was employed as a customer-service representative
until he stopped working because of chronic neck pain. Shaw, 795 F.3d
at 541.

As a participant of the AT&T Midwest Disability Benefits

Program, a component of defendant AT&T Umbrella Benefit Plan No. 1,
he was eligible for fifty-two weeks of short-term disability benefits,
which the plan administrator approved, and LTD benefits thereafter.
Id. at 541-43. Plaintiff applied for LTD benefits, the plan administrator
denied his application, and plaintiff appealed.

Id. at 543-46.

The

administrator upheld the denial. Id. at 546.
On March 31, 2013, plaintiff filed a complaint with this Court,
alleging that the plan administrator wrongly denied his application for
LTD benefits. See id. The parties filed cross-motions for judgment on
the administrative record, and on September 8, 2013, the Court granted
defendant’s motion and entered judgment dismissing plaintiff’s case
2

with prejudice.

See id.

Plaintiff appealed, and the Sixth Circuit

reversed this Court’s judgment and remanded.
The Sixth Circuit found that the plan administrator ignored
favorable

evidence

submitted

by

plaintiff’s

treating

physicians,

selectively reviewed the evidence from the treating physicians that it
did consider, failed to conduct its own physical examination, and
heavily relied on the opinions of non-treating physicians. See id. at 54751. The Sixth Circuit thus found that the plan administrator acted
arbitrarily and capriciously in denying plaintiff’s application for LTD
benefits. See id. at 551. Because remand to the plan administrator
“would [have been] a useless formality,” given the “substantial and
objective medical evidence demonstrating that [plaintiff] is disabled,”
the Sixth Circuit remanded to this Court for entry of an order awarding
plaintiff his benefits. See id. at 551-52. 
Plaintiff filed a motion on August 26, 2015, seeking LTD benefits,
pre-judgment interest, costs (the original filing fee and the appeal filing
fee), and statutory attorney fees. (See Dkt. 28; see also Dkt. 31; Dkt. 32;
Dkt. 34.) The Court held a hearing on November 4, 2015, and requested
that the parties notify the Court as to what rate the parties could agree,
3

if at all, to calculate pre-judgment interest. The parties contacted the
Court on November 24, 2015, and asked the Court to award plaintiff 6%
pre-judgment interest on his benefit award of $35,412.72.
II.

Analysis
Because the parties agree on an award of 6% pre-judgment

interest on past-due benefits totaling $35,412.72, those figures are
adopted for both the rate of pre-judgment interest and the award of
LTD benefits. The only remaining issues are whether to award plaintiff
the costs of his original and appeal filing fees and whether and at what
amount to award him attorney fees.
a. Costs
The only costs that plaintiff seeks are $350 for his original filing
fee and $505 for his appeal filing fee, a total of $855. (See Dkt. 28 at 7.)
Defendant responded that the Sixth Circuit’s mandate precludes an
award of costs, because the mandate “expressly denies costs to either
party.” (See Dkt. 31 at 12-13.) At oral argument, defendant clarified
that it was relying on the part of the mandate that provides “COSTS:
None.” (See Dkt. 29 at 2.) But the reference to costs in the mandate
only indicates that plaintiff did not seek costs at the Sixth Circuit, not
4

that this Court is precluded from awarding costs. Plaintiff need not
have filed “a duplicative claim in the Court of Appeals because costs are
recoverable under ERISA in this Court.” (See Dkt. 34 at 5.) Plaintiff is
entitled to $855 in costs.
Under 29 U.S.C. § 1132(g)(1), the Court has “broad discretion to
award costs to parties in ERISA actions who have shown some degree of
success on the merits.” See Potter v. Blue Cross Blue Shield of Mich., 10
F. Supp. 3d 737, 770 (E.D. Mich. 2014).

And under Rule 54(d)(1),

“unless a federal statute, these rules, or a court order provides
otherwise, costs . . . should be allowed to the prevailing party.” Fed. R.
Civ. P. 54(d)(1) (emphasis added). Such costs may include filing fees.
See, e.g., Moore v. Menasha Corp., No. 08-cv-1167, 2013 U.S. Dist.
LEXIS 10126, at *16-17 (W.D. Mich. Jan. 25, 2013) (“Plaintiffs also seek
the $350 district court filing fee as part of their costs. . . . [T]his filing
fee will [] be awarded.”); Vick v. Metro. Life Ins. Co., No. 03-cv-73124,
2006 U.S. Dist. LEXIS 41708, at *19-20 (E.D. Mich. June 22, 2006)
(“Plaintiff lists an amount of $215.00 for legal costs including $150.00
for ‘filing the Summons and Complaint in State Court.’ . . . [T]hese

5

costs requested by Plaintiff are reasonable legal costs associated with
this litigation and should be properly awarded.”).
The Court finds that plaintiff’s request is not only reasonable but
also modest. Plaintiff does not seek any number of costs that have been
awarded in other ERISA cases. See, e.g., Northeast Ohio Coalition v.
Husted, Nos. 06-cv-00896, 12-cv-00562, 2014 U.S. Dist. LEXIS 137320,
at *52-54 (S.D. Ohio Sept. 29, 2014) (awarding costs of “photocopying
and printing; online legal research; telephone, fax, and conference
services; shipping, postage, and courier service; court filing and
transcript

fees;

overtime

expenses

and

related

meals

and

transportation; travel, including airfare, mileage, taxi fare, meals, and
lodging; and expert fees”); Potter, 10 F. Supp. 3d at 772-73 (awarding
telephone, postage, facsimile, and travel costs; copying costs; and
computerized research costs). Plaintiff was successful on the merits,
and the filing fees are appropriate costs here. Plaintiff’s request for
$855 in costs is granted.
b. Attorney Fees
Plaintiff requests $425-per-hour for 220.2 hours of work
performed by attorney Robert June, totaling $93,585, and $250-per6

hour for 34.5 hours of work performed by co-counsel Nicole Winston,
totaling $8625. (See Dkt. 34 at 56; Dkt. 34-5 at 2-8.) Defendant argues
that the mandate precludes an award of attorney fees, the Court should
use its discretion to deny attorney fees because “this was a close case,”
and, at minimum, the fee should be reduced because it is grossly
excessive.

(See Dkt. 31 at 13-23.)

Because the mandate does not

preclude an award of fees and the King factors weigh in plaintiff’s favor,
plaintiff’s request for attorney fees is granted in part.
The Sixth Circuit’s mandate does not preclude an award of
attorney fees.

Defendant argues that because “[n]either the Sixth

Circuits July 29, 2015 opinion nor its August 27, 2015 mandate
addresses the issue of attorney’s fees . . . . [p]laintiff’s request for [such]
fees must be denied.”

(See Dkt. 31 at 14.)

Defendant is incorrect.

Under the “mandate rule,” this Court “may consider those issues not
decided expressly or impliedly by the appellate court or a previous trial
court.” See Jones v. Lewis, 957 F.2d 260, 262 (6th Cir. 1992); see also
Moon v. UNUM Provident Corp., 461 F.3d 639, 642 (6th Cir. 2006)
(“[T]he better course is to leave the question of attorney fees to the
district court in the first place.”). Because, as defendant notes, neither
7

the Sixth Circuit opinion nor mandate “addresses the issue of attorney’s
fees,” (see Dkt. 31 at 14), this Court is free to do so.
Under 29 U.S.C. § 1132(g)(1), the Court has discretion to award
reasonable attorney fees to a party that has achieved “some degree of
success on the merits.” See Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242, 254 (2010) (claimant need not even be a “prevailing party”
to be eligible for attorney fees under ERISA; claimant need only show
he obtained “some degree of success on the merits”). Plaintiff prevailed
on the merits, so the question of success is not at issue here. The next
step is to consider the five factors established by the Sixth Circuit in
Secretary of Dep’t of Labor v. King:
(1) the degree of the opposing party’s culpability or bad faith;
(2) the opposing party’s ability to satisfy an award of
attorney’s fees; (3) the deterrent effect of an award on other
persons under similar circumstances; (4) whether the party
requesting the fees sought to confer a common benefit on all
participants and beneficiaries of an ERISA plan or to resolve
a significant legal question regarding ERISA; and (5) the
relative merits of the parties’ positions.
775 F.2d 666, 669 (6th Cir. 1985). “No single factor is determinative.”
Moon, 461 F.3d at 642-43.
The second and fourth King factors are not at issue. Defendant
does not dispute that the second factor—the opposing party’s ability to
8

satisfy an award of attorney fees—weighs in plaintiff’s favor. (See Dkt.
31 at 16.) And plaintiff concedes that the fourth factor—whether the
party requesting the fees sought to confer a common benefit on all
participants and beneficiaries of an ERISA plan or to resolve a
significant legal question regarding ERISA—does not weigh in his
favor. (See Dkt. 28 at 13.) Thus only the first, third, and fifth factors
are analyzed.
The first King factor—the degree of the opposing party’s
culpability or bad faith—weighs in plaintiff’s favor.

Although “an

arbitrary and capricious denial of benefits does not necessarily
indicated culpability or bad faith,” see Heffernan v. UNUM Life Ins. Co.
of Am., 101 F. App’x 99, 109 (6th Cir. 2004), this “by no means precludes
a finding of culpability or bad faith based only on the evidence that
supported a[n] arbitrary-and-capricious determination.” See Gaeth v.
Hartford Life Ins. Co., 538 F.3d 524, 530 (6th Cir. 2008) (emphasis in
original).

Here, as in Heffernan, there is “substantial and objective

medical evidence demonstrating that [plaintiff] is disabled,” and the
plan administrator “ignored favorable evidence from [plaintiff]’s
treating physicians.” See Shaw, 795 F.3d at 548-49, 552; Heffernan, 101
9

F. App’x at 109 (finding defendant culpable because it “ignored
overwhelming evidence of [plaintiff]’s disability” and relied on “isolated
snippets from the record”).

Thus defendant was at least “culpable”

under the first factor. See Blajei v. Sedgwick Claims Mgmt. Servs., No.
09-13232, 2010 U.S. Dist. LEXIS 102793, at *15-16 (E.D. Mich. Sept.
28, 2010) (“[I]f a plan administrator’s conduct is culpable, i.e.,
blameworthy, this factor favors an award of fees.”).
The third King factor—the deterrent effect of an award on other
persons under similar circumstances—also weighs in plaintiff’s favor.
Defendant disputes this, arguing that “this case was very fact-specific,
and the Sixth Circuit’s criticisms were specific to the individual medical
specialists who reviewed [p]laintiff’s medical records (and whether they
conducted a so-called ‘selective review’).” (See Dkt. 31 at 17.) This is
unpersuasive, in part because this factor would rarely, if ever, weigh in
favor

of

plaintiffs

under

such

a

standard.

ERISA

benefits

determinations are often fact specific. And even if the “Sixth Circuit’s
criticisms were specific to the individual medical specialists,” (see id.),
the “key question . . . [is] whether the fee award would have a deterrent
effect on other plan administrators.” See Gaeth, 538 F.3d at 532. The
10

facts here “are not so unique that they fail to serve any deterrence value
to other [plan administrators] under similar circumstances.” See Moon,
461 F.3d at 645. An award of attorney fees would discourage other plan
administrators from accepting “a so-called ‘selective review’” from
medical specialists.
Finally, the fifth King factor—the relative merits of the parties’
positions—weighs in plaintiff’s favor. Defendant argues that this was a
close case, because “the judges who considered this case split 2 and 2” if
one considers the opinions of “this Court, the appellate majority, and
the appellate dissent.”

(See Dkt. 31 at 17-18.)

That is a flawed

characterization, because it weighs this Court’s overturned opinion on
equal footing with those of the judges who sat on the Sixth Circuit
panel. It would be an abuse of discretion to agree. See Moon, 461 F.3d
at 644 (“In reaching its ‘two out of four judges’ conclusion, the district
court relied upon its own overturned decision in the underlying action
. . . . This reasoning is an abuse of discretion. This was not a close
case.”).
Plaintiff overcame the arbitrary and capricious standard of
review, which is highly deferential to administrators. See, e.g., Blajei,
11

2010 U.S. Dist. LEXIS 102793, at *8 (“[A] number of district courts in
the Sixth Circuit have found that where a plaintiff overcomes an
arbitrary and capricious standard of review, . . . the plaintiff’s position
had more merit.”) (collecting cases); see also Thies v. Life Ins. Co. of N.
Am., 839 F. Supp. 2d 886, 894 (W.D. Ky. 2012) (“Based on the decision
to remand the case [to the plan administrator], the Court finds that the
Plaintiffs’ case is the one having more relative merit.”). Here, the Sixth
Circuit has already determined the merit of plaintiff’s argument.
Rather than remand to the plan administrator for reconsideration, the
Sixth Circuit determined that plaintiff was entitled to LTD benefits.
Defendant urges this Court to consider that “the Sixth Circuit
majority made a significant error in viewing” some of the medical
evidence. (See Dkt. 31 at 17-18.) That is not correct, and even if it
were, this Court would not do so.

As plaintiff highlights, the Sixth

Circuit majority found that defendant “did not engage in a ‘deliberate,
principled reasoning process,’” and that the medical evidence was
sufficiently “substantial and objective” that remand to the plan
administrator would have been “a useless formality.” (See id. at 17-18.)
When reviewed through the proper lens, this was not a close case.
12

Four of the five King factors weigh in plaintiff’s favor. Plaintiff is
thus entitled to an award of attorney fees.

Next, the Court must

determine the amount of a reasonable award.
“The primary concern in an attorney fee case is that the fee
awarded be reasonable, that is, one that is adequately compensatory to
attract competent counsel yet which avoids producing a windfall for
lawyers.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (quoting
Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)).

The “lodestar”

method—multiplying a reasonable hourly rate by the proven number of
hours reasonably expended on the case by counsel—is the “proper
method for determining the amount of reasonable attorney’s fees.”
Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview
Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995) (citing Pa. v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 563 (1986)). First, the
lodestar must be calculated for each attorney involved. See Del. Valley
Citizens’ Council for Clean Air, 478 U.S. at 563. Second, the Court may,
“within limits, adjust the ‘lodestar’ to reflect relevant considerations
peculiar to the subject litigation.” See Adcock-Ladd v. Sec’y of Treasury,
227 F.3d 343, 349 (6th Cir. 2000) (citing Reed, 179 F.3d at 471-72).
13

i. Reasonable hourly rate
Plaintiff seeks rates of $425-per-hour for attorney Robert June
and $250-per-hour for co-counsel Nicole Winston. (See Dkt. 28 at 18.) A
reasonable hourly rate is generally calculated according to the
“prevailing market rates in the relevant community.” See Blum v.
Stenson, 465 U.S. 886, 895 (1984). The “relevant community” here is
the Eastern District of Michigan. See Adcock-Ladd, 227 F.3d at 350
(relevant community is the legal community within the court’s
territorial jurisdiction). And the “‘prevailing market rate’ is that rate
which lawyers of comparable skill and experience can expect to
command” in the relevant community. See id. “The appropriate rate
. . . is not necessarily the exact value sought by a particular firm, but is
rather the market rate in the venue sufficient to encourage competent
representation.” Gonter v. Hunt Valve Co., 510 F.3d 610, 618 (6th Cir.
2007).
Robert June is a sole practitioner in Ann Arbor with over twenty
years’ experience, and he has litigated ERISA cases for nearly that long.
(See Dkt. 28-5 at 2-3.) According to the most recent survey from the
State Bar of Michigan, sole practitioners working at an office outside of
14

the home charged rates of $250 at the 75th percentile and $383 at the
95th.

See

LAW PRACTICE

STATE
6

BAR

(2014),

OF

MICHIGAN,

ECONOMICS

OF

http://www.michbar.org/file/pmrc/articles/

0000151.pdf. Attorneys who practice in Ann Arbor charged hourly rates
of $350 at the 75th percentile and $520 at the 95th.

See id. at 5.

Attorneys who practice plaintiffs’-side employment law charged hourly
rates of $330 at the 75th percentile and $450 at the 95th.

And

attorneys with 16 to 25 years of practice charged hourly rates of $350 at
the 75th percentile and $488 at the 95th. See id. The most relevant
rate here is that of sole practitioners, in part because June bills for legal
work that could not likely command the requested $425-per-hour from
fee-paying clients.1

The Court does not dispute that June is an

experienced and well-qualified attorney, and will thus award plaintiff a
rate of $385-per-hour for the work performed by June. That rate is in
the top range for sole practitioners and at or above the 75th percentile
for attorneys who have similar experience, practice in this field, and
practice in Ann Arbor.

For example, June bills for research such as “scope of arbitrary and capricious
review” and “calculation of attorney fee rates and interest rates,” as well as clerical
work such as “prepar[ing] and fil[ing] appearance” and “[p]repar[ing] and fil[ing]
Notice of Appeal,” (see Dkt. 34-5), which is often the type of work that is assigned to
associates or legal assistants and charged at much lower rates.
1

15

Nicole Winston practices law in a two-person firm in Port Huron,
has over sixteen years’ experience, and has litigated ERISA cases for
most of her career. (See Dkt. 28-6 at 2-3.) In 2013, attorneys with
approximately 16 years’ experience charged a rate of $250-per-hour
near the median. See STATE BAR OF MICHIGAN, supra, at 5. It was also
the median rate for plaintiffs’-side employment attorneys. See id. at 6.
And it was the 75th percentile rate for attorneys who practice in St.
Clair County, where her office is located.

See id. at 9.

Plaintiff’s

requested rate of $250-per-hour for the work performed by Winston is
reasonable and thus awarded. See, e.g., Potter, 10 F. Supp. 3d at 747
(awarding rate of $250-per-hour for associates in ERISA case); Fura v.
Fed. Express Corp. Long Term Disability Plan, No. 10-cv-13298, 2014
U.S. Dist. LEXIS 11313, at *7 (E.D. Mich. Jan. 30, 2014) (awarding
rates of $200-per-hour for associates and $350-per-hour for partner in
ERISA case).
ii. Reasonable number of hours billed
In his most recent filing, plaintiff seeks attorney fees for 220.2
hours of work for June and 34.5 hours of work for Winston. (See Dkt.
34-5 at 6, 8.)

Defendant argues generally that the hours should be
16

reduced because the total number of hours is unreasonably excessive for
“a straightforward” case, the billing records contain improper block
billing and vague entries, and the time billed is duplicative and padded.
(See Dkt. 31 at 19-23.) Plaintiff’s requested award is reduced as follows.
The time billed for administrative or otherwise non-compensable
tasks is discounted.

Courts have not allowed attorney fees for

administrative or non-legal tasks. See, e.g., Potter, 10 F. Supp. 3d at
750 (reducing fees for “clerical tasks” such as “file organization,”
“proofread[ing] correspondence and filing,” “[r]etriev[ing] documents
from Wayne Library,” and “[c]ontinu[ing] and complet[ing] file
organization”); Caudill v. Sears Transition Pay Plan, No. 06-cv-12866,
2011 U.S. Dist. LEXIS 45294, at *44-45 (E.D. Mich. Apr. 26, 2011)
(reducing hours for entries such as “organized file,” “re-sorting
questionnaires,” “filing,” “binders,” and “organize meeting”); Gratz v.
Bollinger, 353 F. Supp. 2d 929, 941 (E.D. Mich. 2005) (no fees for
“media and public relations efforts”). June’s hours are thus reduced by

17

6.2 hours for a total of 214 hours, and Winston’s hours are reduced by 1
hour for a total of 33.5 hours.2
Defendant makes much of the fact that plaintiff’s counsel spent
more time on this case than defendant’s counsel, arguing that “both
parties were essentially required to conduct about the same amount of
work and had the same thing at stake (the payment or non-payment of

The Court discounts the following hours billed by June: 0.1 for “create file” on
April 1, 2013; 0.1 for “process appearances of counsel” on July 24, 2013; 0.1 for
“process answer to complaint” on September 17, 2013; 0.1 for “Process Notice of
Scheduling Conference” on October 3, 2013; 0.1 for “process joint scheduling plan as
filed” on October 29, 2013; 0.2 for “Process Scheduling Order filed by Court” on
November 27, 2013; 0.1 for “Process notice of filing administrative record” on
January 2, 2014; 25%, that is 1.5, for “Scan, sort, and initial review of 1100 page
administrative record . . .” on January 11, 2014; 0.1 for “Process Notice of
Determination of Motion Without Oral Argument” on March 26, 2014; 0.1 for
“Process Notice of Reassignment” on May 13, 2014; 0.1 for “Process Notice of
Determination of Motion Without Oral Argument” on May 24, 2014; 0.2 for “Process
and review briefing letter from Sixth Circuit; process Certificate of Service” on
September 23, 2014; 0.8 for “Create appeal file and forms; process Sixth Circuit
notice of telephone mediation” on September 24, 2014; 0.1 for “Emails with Sixth
Circuit Mediation Office and opposing counsel rescheduling mediation” on
September 29, 2014; 0.1 for “Process email from Sixth Circuit mediator” on October
6, 2014; 0.1 for “Process appearances and corporate disclosures by opposing counsel”
on October 7, 2014; 25% or 0.3 for “arrange conference room with land line” on
October 20, 2014; 0.1 for “process ruling letter” on October 22, 2014; 0.1 for “process
ruling letter” on December 19, 2014; 0.1 for “process ruling letter” on February 10,
2015; 0.1 for “Process withdrawal of appearance by opposing counsel” on March 2,
2015; 0.1 for “Process ruling letter” on March 3, 2015; 1.2 for “Process Notice of Oral
Argument; file acknowledgment; make travel arrangements” on April 8, 2015; 0.1
for “Process District Court entry of Court of Appeals Judgment” on August 11, 2015;
0.1 for “process Sixth Circuit Mandate” on August 27, 2015; and 0.1 for “process
appearance of counsel” on September 11, 2015. (See Dkt. 34-5.) The Court
discounts 1.0 hours for Winston’s entry on April 16, 2013, “Forwarded file
documents and SPD regarding R. Shaw To Co-Counsel Robert June.” (See Dkt. 34-5
at 7.)
2

18

one claimant’s benefits).”3 (See Dkt. 31 at 19.) Defendant notes that up
to the time of the motion for fees, defendant’s counsel billed 144.8 hours
on this case through appeal, and plaintiff’s counsel billed a total of
244.4 hours. (See id. at 20.) “On this basis alone,” argues defendant,
“[p]laintiff’s fee request should be substantially reduced.” (See id.)
But the disparity in time billed between the parties may be
reasonable if sufficiently justified by the work articulated. “The ‘key
requirement . . . is that [t]he documentation offered in support of the
hours charged must be of sufficient detail and probative value to enable
the court to determine with a high degree of certainty that such hours
were actually and reasonably expended in the prosecution of the
litigation.’” United States v. GE, 397 F. App’x 144, 148-49 (6th Cir.
2010) (quoting Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 553
(6th Cir. 2008)).
For the vast majority of June’s entries, sufficient detail is provided
such that the entries are not vague and the block billing is permissible.
Although generally disfavored, block billing is not impermissible in the

Each parties’ relative “stake” is of little import to the analysis. However, it is
verging on disingenuous to suggest that AT&T Umbrella Benefit Plan No. 1 was as
concerned about the outcome of this case as Raymond Shaw, as exhibited by
defendant’s characterization of the case as concerning “one claimant’s benefits.”

3

19

Sixth Circuit. See generally Potter, 10 F. Supp. 3d at 763-64 (citing
cases). Rather than an across-the-board reduction, see for example id.,
the

Court

specifically

discounts

those

few

entries

that

are

impermissibly vague or should otherwise not be billed in full.4 June’s
hours are thus further reduced by 1.1 hours for a total of 212.9 hours.
Finally, plaintiff’s fee request will not be reduced for “duplication
or padding.”5 (See Dkt 31 at 22-23.) The different entries regarding the
mediation are easily understood as preparing the client for the
mediation, participating in the mediation, and debriefing the client on
the mediation. That is not duplicative or padded work. And billing
both attorneys’ time spent reviewing the “approximately 1,000 pages of
the claim record,” (see id. at 22-23), is not unreasonable.

Both

attorneys had to be familiar with the vast record, which reasonably had
to be re-reviewed at various points given that the case was appealed. A
total of 13 hours reviewing the record for this Court’s proceeding and

The Court discounts the following hours billed by June for vagueness: 0.1 for
“Email with opposing counsel” on September 28, 2014; 0.2 for “Finalize and file brief
on appeal” on December 5, 2014; 0.1 for “Finalize and file reply brief” on February 9,
2015. (See Dkt. 34-5.) The Court also discounts 50%, that is 0.2, for “corrections to
citations to the record” on December 9, 2014, and 50%, that is 0.5, for “Review of
district court docket to correct citations of court record in brief on appeal” on
December 13, 2014, (see id.), because those entries should not be billed in full at a
rate of $385-per-hour.
5 To the extent that some entries could be considered duplicative, they have already
been discounted for vagueness. See supra note 4.
4

20

then 3.9 hours re-reviewing the record for the proceeding on appeal is
reasonable.
Thus a total of 212.9 hours at a rate of $385-per-hour, or
$81,966.50, is awarded in attorney fees for the work performed by June.
And a total of 33.5 hours at a rate of $250-per-hour, or $8375, is
awarded in attorney fees for the work performed by Winston. The total
award for attorney fees is $90,341.50.
III.

Conclusion
For the reasons set forth above, plaintiff’s motion for benefits,

interest, costs, and attorney fees, (see Dkt. 28), is granted in part.
Defendant shall pay plaintiff $35,412.72 in benefits, 6% pre-judgment
interest, $855 in costs, and $90,341.50 in attorney fees.
IT IS SO ORDERED.

Dated: December 8, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s

21

ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 8, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

22