Nathanial L. Tindel, M.D., LLC et al v. Excellus Blue Cross and Blue Shield

Filing 61

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Plaintiffs' motion for attorneys' fees and costs, (Dkt. No. 58 ) is GRANTED in part and DENIED in part. It is further ORDERED that Plaintiffs are awarded $22,786.28 in attorneys' fees and costs. Signed by Chief Judge Brenda K. Sannes on 4/16/2025. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NATHANIAL L. TINDEL, M.D., LLC, NATHANIAL L.
TINDEL, M.D., 1 individually, HARRISON T. MU, M.D.,
and KEVIN HEFFERNAN,

5:22-cv-971 (BKS/MJK)

Plaintiffs,
v.
EXCELLUS BLUE CROSS BLUE SHIELD, 2
Defendant.
Appearances:
For Plaintiffs:
Roy W. Breitenbach
Harris Beach, PLLC
333 West Washington Street, Suite 200
Syracuse, NY 13202
Daniel S. Hallak
Harris Beach, PLLC
333 Earle Ovington Boulevard, Suite 901
Uniondale, NY 11553
For Defendant:
Gwendolyn C. Payton
Sean P. Murphy
Kilpatrick Townsend & Stockton LLP
1420 5th Avenue, Suite 3700
Seattle, WA 98101
Frederick L. Whitmer
Kilpatrick Townsend & Stockton LLP
1114 Avenue of the Americas, 21st Floor
New York, NY 10036
1

The caption reflects the spelling of “Nathanial” in the caption of the notice of removal. (Dkt. No. 1).

As previously stated in the Court’s Memorandum-Decision and Order issued on May 9, 2023, (Dkt. No. 32, at 1 n.1),
and its Memorandum-Decision and Order issued on September 16, 2024, (Dkt. No. 56, at 1 n.1), it appears that the
correct name of this entity is Excellus BlueCross BlueShield, which is how the Court has referred to it in this decision.

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Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

BACKGROUND
Plaintiffs Nathaniel L. Tindel, M.D., LLC, Nathaniel L. Tindel, M.D., individually,

Harrison T. Mu, M.D., (together, the “Provider Plaintiffs”), and Kevin Heffernan filed this action
against Defendant Excellus BlueCross Blue Shield, asserting claims under the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and New York
law. (Dkt. No. 12). Plaintiffs initially asserted seven causes of action, including: (1) enforcement
of the terms of Heffernan’s health plan (the “Plan”) under ERISA, 29 U.S.C. § 1132(a)(1)(B);
(2) declaratory and injunctive relief to remedy Defendant’s “failure to provide a full and fair
review, to disclose information relevant to appeals, and to comply with applicable claim
procedure regulations” under ERISA, 29 U.S.C. § 1132(a)(3); (3) breach of the Plan; (4) breach
of an implied-in-fact contract between Defendant and the Provider Plaintiffs; (5) unjust
enrichment; (6) tortious interference with a contractual relationship between the Provider
Plaintiffs and Heffernan; and (7) breach of contract of which the Provider Plaintiffs are the
intended beneficiaries. (Id. ¶¶ 51–111; see also Dkt. No. 32, at 4–5).
Defendant filed a motion to dismiss: (1) the Provider Plaintiffs’ claims under ERISA as
barred by the Plan’s anti-assignment provision and due to lack of standing, and (2) Plaintiffs’
state-law claims as preempted by ERISA. (Dkt. No. 17-1). The Court granted Defendant’s
motion in part, ordering the dismissal of Plaintiffs’ fifth, sixth, and seventh causes of action, but
otherwise denied the motion. (Dkt. No. 32). Defendant filed for summary judgment on Plaintiffs’
remaining claims, (Dkt. No. 39), and Plaintiffs cross-moved for summary judgment, (Dkt. No.
45). The Court granted in part and denied in part both motions, ordering Provider Plaintiffs’

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claims under ERISA and for breach of implied-in-fact contract to be dismissed and ordering
Heffernan’s benefits claim to be remanded to Defendant for reconsideration. (Dkt. No. 56).
Presently before the Court is Plaintiffs’ motion for costs and attorneys’ fees pursuant to
Rule 54(d) of the Federal Rules of Civil Procedure and 29 U.S.C. § 1132(g)(1). (Dkt. No. 58).
Plaintiffs seek a total of $75,550.00 in attorneys’ fees, (id.), an approximate five percentage
reduction in the lodestar figure of $80,229.00, (see Dkt. No. 58-1, ¶ 2). 3 Plaintiffs filed a
memorandum of law in support of their motion, (Dkt. No. 59), as well as a declaration from
Attorney Roy Breitenbach, (Dkt. No. 58-1), and billing records, (Dkt. No. 58-2). Defendant filed
a response in opposition. (Dkt. No. 60). For the reasons that follow, Plaintiffs’ motion for
attorneys’ fees and costs is granted in part and denied in part.
II.

DISCUSSION
A.

Entitlement to Fees and Costs
1.

Attorneys’ Fees and Costs Under 29 U.S.C. § 1132(g)(1)

Aside from in certain situations not relevant here, see 29 U.S.C. § 1132(g)(2), in an
action brought “by a participant, beneficiary, or fiduciary” under ERISA, “the court in its
discretion may allow a reasonable attorney’s fee and costs of action to either party,” id. §
1132(g)(1). To be eligible for a fee award, a party must have “achieved ‘some degree of success
on the merits.’” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 244 (2010) (quoting
Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983)); see also Toussaint v. JJ Weiser, Inc., 648
F.3d 108, 110 (2d Cir. 2011) (“[A] district court must begin its § 1132(g)(1) analysis by
determining whether a party has achieved ‘some degree of success on the merits,’ but it is not
required to award fees simply because this pre-condition has been met.”). Additionally, while
Plaintiffs do not explicitly state the costs that they request, but this amount appears to be $1,503.78. (See Dkt. No.
58-2, at 19).

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“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,” courts may also consider five other factors,
which in the Second Circuit are called the “Chambless factors,” in evaluating whether to grant a
fee award. Donachie v. Liberty Life. Assur. Co. of Boston, 745 F.3d 41, 46 (2d Cir. 2014)
(citations omitted). These factors are as follows:
(1) the degree of opposing parties’ culpability or bad faith; (2) 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.
Id. (quoting Hardt, 560 U.S. at 249 n.1). “A party seeking an award of attorneys’ fees ‘need not
establish all five [factors] and no one factor is dispositive.’” Trs. of Sheet Metal Workers Int’l
Ass’n Local No. 38 Vacation Fund v. Hopwood, No. 9-cv-5088, 2013 WL 12445038, at *5, 2013
U.S. Dist. LEXIS 207908, at *13 (S.D.N.Y. May 30, 2013) (citation omitted).
Finally, “Congress intended [ERISA’s fee shifting] provision to encourage beneficiaries
to enforce their statutory rights.” Jarosz v. Am. Axle & Mfg., Inc., 372 F. Supp. 3d 163, 186
(W.D.N.Y. 2019) (citing Donachie, 745 F.3d at 45–46). “Thus, awarding a prevailing party
attorney’s fees and costs is appropriate unless there is good reason not to.” Id. (citing Donachie,
745 F.3d at 47).
2.

Degree of Success

Plaintiffs argue that the circumstances of this case are comparable to those in Hardt, in
which the Supreme Court upheld an award of attorneys’ fees to a plaintiff whose benefits claim
was remanded to the defendant, and thus that Plaintiffs are “entitled to reasonable attorneys’
fees” here as well. (Dkt. No. 59, at 5–6). Defendant argues in response that Plaintiffs have only

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achieved a “purely procedural victory” and that, unlike in Hardt, the Court’s remand order here
does not constitute “some degree of success on the merits.” (Dkt. No. 60, at 2–4).
In Hardt, the District Court had found that the defendant had failed to provide “the kind
of review to which [the plaintiff] was entitled under applicable law.” 560 U.S. at 255. The
District Court also had commented on the strength of the plaintiff’s claim, explaining that while
“it was ‘inclined to rule in [the plaintiff’s] favor,’” it “declined to do so before ‘first giving [the
defendant] the chance to address the deficiencies in its’ statutorily mandated ‘full and fair
review’ of that claim.” Id. at 256. Additionally, “[a]fter [the defendant] conducted that courtordered review, and consistent with the District Court’s appraisal, [the defendant] reversed its
decision and awarded [the plaintiff] the benefits she sought.” Id. In considering these facts, the
Supreme Court stated that the plaintiff had “achieved ‘some success on the merits,’” such that an
award of attorneys’ fees was appropriate, but declined to decide “whether a remand order,
without more, constitutes ‘some success on the merits’ sufficient to make a party eligible for
attorney’s fees under § 1132(g)(1).” Id.
Defendant argues that because on summary judgment, the Court stated that “there is
evidence in the administrative record that could support a finding that Heffernan did not receive
Emergency Services on August 20 and August 21, 2019,” the “decision to remand was for
‘purely procedural’ reasons.” (Dkt. No. 60, at 2). Defendant asserts that the Court was providing
a view “that Excellus was likely able to resolve this case on remand by providing an explanation,
proving that there was no underlying ERISA violation.” (Id. at 3). Thus, according to Defendant,
“[t]his case is nothing like the situation in Hardt,” in which the District Court specifically noted
the “compelling evidence” that the plaintiff was entitled to the requested benefits. (Id. (“The

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Court’s summary judgment order instead suggests that it expects that Excellus’s reconsideration
of the underlying claim with an adequate explanation will result in . . . a denial of benefits.”).
This argument relies on an overreading of the Court’s decision. In explaining the
presence of evidence supporting a denial of benefits, this Court was directly addressing the
reason why remand was the appropriate remedy, not providing its assessment of the underlying
claim. See Nathanial L. Tindel, M.D., LLC v. Excellus Blue Cross Blue Shield, No. 22-cv-971,
2024 WL 4198368, at *13, 2024 U.S. Dist. LEXIS 166684, at *36 (N.D.N.Y. Sept. 16, 2024)
(“The Second Circuit has stated that remand for reconsideration is the typical remedy for an
abuse of discretion, unless the Court ‘conclude[s] that there is no possible evidence that could
support a denial of benefits.’” (quoting Miles v. Principal Life Ins. Co., 720 F.3d 472, 490 (2d
Cir. 2013))). Finding Defendant’s denial of benefits to be insufficiently explained, the Court did
not make a determination as to whether there was enough evidence to support Defendant’s denial
of benefits. See id. 2024 WL 4198368, at *12–13, 2024 U.S. Dist. LEXIS 166684, at *33–35.
Therefore in contrast with Defendant’s reading, the Court does not assume that “the benefits atissue will be denied again” on remand, (Dkt. No. 60, at 4); rather, remand represents a “renewed
opportunity to obtain benefits or compensation,” Fisher v. Aetna Life Ins. Co., No. 16-cv-144,
2020 WL 5898788, at *6, 2020 U.S. Dist. LEXIS 184024, at *17 (S.D.N.Y. Oct. 5, 2020)
(quoting Gross v. Sun Life Assur. Co. of Can., 763 F.3d 73, 78 (1st Cir. 2014)).
Moreover, “[c]ourts 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.” Dimopoulou v. First Unum Life Ins. Co., No. 13-cv-7159, 2017 WL
464430, at *1, 2017 U.S. Dist. LEXIS 15944, at *3 (S.D.N.Y. Feb. 3, 2017) (collecting cases);
see also Dwinnell v. Fed. Express Long Term Disability Plan, No. 14-cv-1439, 2017 WL

6

1371254, at *1, 2017 U.S. Dist. LEXIS 57828, at *4 (D. Conn. Apr. 4, 2017) (explaining that
while “the Second Circuit [has not] decided this question,” “[m]any other courts, however, have
found ‘remand simplicter’ to constitute ‘some success on the merits’” (citation omitted)).
Here, the Court ordered remand after finding that Defendant had failed to explain its
reasoning regarding its assessment of whether Heffernan received emergency services and
remanded so that Defendant’s claim could be reconsidered. See Nathanial L. Tindel, M.D., LLC,
2024 WL 4198368, at *13, 2024 U.S. Dist. LEXIS 166684, at *35–36. This is enough to
demonstrate Heffernan “achieved ‘some success on the merits.’” Hardt, 560 U.S. at 256; see
Schuman v. Aetna Life Ins. Co., No. 15-cv-1006, 2017 WL 2662191, at *4, 2017 U.S. Dist.
LEXIS 94557, at *11 (D. Conn. June 20, 2017) (“By securing a remand after the defendants
denied him benefits, [the plaintiff] achieved a result that was more favorable to him—and less
favorable to the defendants—than the status quo. In my view, that ‘partial[ ]’ degree of success
on the merits is enough to render [the plaintiff] eligible for attorneys’ fees under ERISA.”
(quoting Hardt, 560 U.S. at 254)).
3.

Chambless Factors

Plaintiffs contend that “at least four of the five [Chambless] factors favor an award of
attorneys’ fees.” (Dkt. No. 59, at 8–11). Defendant responds that “these factors weigh in [their]
favor or are neutral,” and thus support a denial of attorneys’ fees. (Dkt. No. 60, at 4–7). The
Court examines each factor in turn.
The first factor, degree of culpability, favors Plaintiffs. “With respect to the first factor . .
. the Second Circuit has clarified that a showing of bad faith is not required and that a finding
that the administrator’s review of the claim was arbitrary and capricious is sufficiently culpable
to weigh in favor of granting attorney's fees.” Valentine v. Aetna Life Ins. Co., No. 14-cv-1752,
2016 WL 4544036, at *5, 2016 U.S. Dist. LEXIS 117363, at *16 (E.D.N.Y. Aug. 31, 2016)
7

(collecting cases). On summary judgment, the Court found Defendant’s determination of
Heffernan’s claim “was an abuse of discretion,” or, in other words, that it was arbitrary and
capricious. Nathanial L. Tindel, M.D., LLC, 2024 WL 4198368, at *11–13, 2024 U.S. Dist.
LEXIS 166684, at *30–35. Accordingly, Defendant “acted culpably.” Fisher, 2020 WL
5898788, at *7, 2020 U.S. Dist. LEXIS 184024, at *19.
The second factor, ability to pay, does not favor Plaintiffs or Defendant. Both sides agree
that Defendant has the ability to pay a fee award. (See Dkt. No. 59, at 8–9; Dkt. No. 60, at 5).
Defendant is correct, however, that “it is only a party’s inability to pay an award that weighs in
its favor while its ability to pay is generally neutral in effect.” (Dkt. No. 60, at 5 (quoting Empire
State Carpenters Welfare v. Conway Constr. of Ithaca, Inc., 366 F. Supp. 3d 371, 377 (E.D.N.Y.
2019))).
The third factor, deterrence, favors Plaintiffs. As discussed, the Court found that
Defendant abused its discretion. “[D]eterring plan administrators from arbitrarily and
capriciously denying claims in the future” is “a laudatory goal” that “is enough to tip this factor
in [Plaintiffs’] favor.” Fisher, 2020 WL 5898788, at *8, 2020 U.S. Dist. LEXIS 184024, at *21
(collecting cases); see also Demonchaux v. Unitedhealthcare Oxford, No. 10-cv-4491, 2014 WL
1273772, at *5, 2014 U.S. Dist. LEXIS 43954, at *12–13 (S.D.N.Y. Mar. 27, 2014) (finding that
“an award of attorney’s fees would serve to deter administrators from making arbitrary and
capricious benefits denials”).
The fourth factor, the existence of a common benefit or significant legal question, favors
Defendant. Plaintiffs do not argue that either exists here. (See Dkt. No. 59, at 10 n.2). While this
factor favors Defendant, Plaintiffs correctly note that “the absence of [the common benefit]
factor does not preclude an award of attorneys’ fees.” (Dkt. No. 59, at 10 n.2 (citing Locher v.

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Unum Life Ins. Co. of Am., 389 F.3d 288, 299 (2d Cir. 2004))); see also Benjamin v. Oxford
Health Ins., Inc., 355 F. Supp. 3d 131, 141 (D. Conn. 2019) (explaining that while the plaintiff
has conceded that her action has no common benefit, “this factor favors Defendant, but it carries
little weight in the Court’s analysis” (citation omitted)).
The fifth factor, the relative merits of the parties’ positions, again favors Plaintiffs.
Plaintiffs were correct that Defendant’s denial of benefits was not properly explained. See
Nathanial L. Tindel, M.D., LLC, 2024 WL 4198368, at *12–13, 2024 U.S. Dist. LEXIS 166684,
at *33–35. As discussed, the Court’s statement that there is evidence supporting Defendant’s
position does not express a view on the ultimate merits, and thus does not detract from Plaintiff’s
successful argument. This factor therefore also supports a fee award. See, e.g., Valentine, 2016
WL 4544036, at *6, 2016 U.S. Dist. LEXIS 117363, at *18 (“[B]y concluding that the
administrator's denial of benefits was arbitrary and capricious because of the failure to address
substantial evidence, the Court recognized that plaintiff's position was the meritorious position
on the issue of remand.” (citation omitted)); Demonchaux, 2014 WL 1273772, at *5, 2014 U.S.
Dist. LEXIS 43954, at *13–14 (“Defendant's denial of Plaintiff's claim was arbitrary and
capricious, ‘forcing her to bring the present lawsuit; the relative merits of the parties' position is
thus in little doubt.’” (citation omitted)).
Weighing the relevant factors, the Court finds that an award of attorneys’ fees and costs
is appropriate in this instance. See Demonchaux, 2014 WL 1273772, at *5, 2014 U.S. Dist.
LEXIS 43954, at *14 (“Here, where the degree of culpability, deterrence, and relative merits
factors favor Plaintiff, the ability to pay factor is neutral, and the common benefit factor favors
Defendant, the Court finds that Plaintiff is entitled to an award of attorney’s fees and costs.”);
Benjamin, 355 F. Supp. 3d at 141 (“The Court has now confirmed that Plaintiff has achieved

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‘some degree of success of the merits’ and that three of the five Chambless factors also support
awarding attorney’s fees to Plaintiff. Accordingly, Plaintiff has shown that she should be entitled
to attorney’s fees.”).
B.

Reasonable Fees

District courts have “considerable discretion in determining what constitutes reasonable
attorney’s fees in a given case,” Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151
(2d Cir. 2008), and courts in the Second Circuit generally use the lodestar, or “presumptively
reasonable fee,” approach to calculate reasonable attorneys’ fees, see Lilly v. City of New York,
934 F.3d 222, 229 (2d Cir. 2019). This approach requires a district court to set “a reasonable
hourly rate, taking account of all case-specific variables,” and determine “the appropriate billable
hours expended.” Id. at 230 (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v.
Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 189–90 (2d Cir. 2008)); see also
Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (“Under this approach, the number of hours
reasonably expended on the litigation is multiplied by a reasonable hourly rate for attorneys and
paraprofessionals.”). “The reasonable hourly rate should be what a reasonable, paying client
would be willing to pay, given that such a party wishes to spend the minimum necessary to
litigate the case effectively.” Bergerson v. N.Y. State Off. of Mental Health, 652 F.3d 277, 289–
90 (2d Cir. 2011) (citation and internal quotation marks omitted). “[T]he district court . . . bears
the burden of disciplining the market, stepping into the shoes of the reasonable, paying client,
who wishes to pay the least amount necessary to litigate the case effectively.” Arbor Hill, 522
F.3d at 184.

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1.

Reasonable Hourly Rates

Plaintiff requests that Attorney Breitenbach and Attorney Daniel Hallak be compensated
at $640 per hour and $525 per hour, respectively. (Dkt. No. 59, at 12). Defendant does not
contest that these hourly rates are reasonable. (See generally Dkt. No. 60).
The Supreme Court has explained that district courts should generally use “the prevailing market
rates in the relevant community” in determining the reasonable hourly rate. See Blum v. Stenson,
465 U.S. 886, 895 (1984). The Second Circuit has interpreted the “community” to mean “the
district where the district court sits.” See Arbor Hill, 522 F.3d at 190 (citing Polk v. N.Y. State
Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983)); see also Grant v. Syracuse, 357 F. Supp.
3d 180, 200 (N.D.N.Y. 2019) (citation omitted). A review of cases in this District indicates that
an hourly rate range of $250–$350 per hour for partners is reasonable. 4 Additionally, “[o]nce the
typical hourly rate is established, the court should ‘bear in mind all of the case-specific variables
that . . . courts have identified as relevant to the reasonableness of attorney's fees in setting a
reasonable hourly rate,’” Grant, 605 F. Supp. 3d at 405 (quoting Arbor Hill, 522 F.3d at 190),
including:
(1) the time and labor required; (2) the novelty and difficulty of the
issues; (3) the skill level required by the case; (4) the preclusion of
employment with other clients due to acceptance of the case; (5) the
attorney’s customary hourly rate; (6) whether the fee is fixed or
contingent; (7) any time limitations imposed by the client or the
circumstances; (8) the extent of involvement 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.
Id. (citing Arbor Hill, 522 F.3d at 186 n.3).

See Sadowski v. Urbanspotlite LLC, No. 22-cv-887, 2023 WL 2838376, at *6, 2023 U.S. Dist. LEXIS 61259, at *15
(N.D.N.Y. Apr. 7, 2023); see also Grant v. Lockett, 605 F. Supp. 3d 399, 404 (N.D.N.Y. 2022).

4

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Attorney Breitenbach is a partner at Harris Beach PLLC. (Dkt. No. 59, at 12). He
graduated from law school in 1991 and was admitted to the New York State Bar in 1992. (Dkt.
No. 58-1, ¶¶ 5–6). After practicing at two other firms, he “moved to Harris Beach in 2021 to
head their Healthcare Industry Team.” (Id. ¶ 7). “Virtually[] all . . . of [his] practice since
graduating law school has involved litigation, with a focus on healthcare litigation.” (Id. ¶ 8). He
has “acted as lead counsel in over 20 federal trails [sic] that have resulted in a decision or
verdict,” and he has “argued multiple appeals at the Second Circuit.” (Id. ¶¶ 9–10).
Attorney Hallak is a senior counsel at Harris Beach. (Dkt. No. 59, at 12). He was
admitted to the New Your State Bar in 2011. (Dkt. No. 58-1, ¶ 11). “From 2013 through 2018,
[Attorney] Hallak was employed as an Assistant Attorney General for the State of New York,”
during which time, “he handled a variety of federal and state matters for the various agencies of
New York State and assisted the Medicaid Fraud Unit in investigations and litigation,” after
which he “went to work for a smaller New York based civil litigation law firm before coming to
[Harris Beach] in 2021.” (Id. ¶ 12). He “has been the lead attorney on well over 50 civil
litigation matters in the Supreme Courts in various counties of New York and the Eastern,
Southern, Western, and Northern Districts of New York.” (Id. ¶ 13).
As indicated by the typical range for partners discussed above, the requested fees are
substantially higher than what experienced attorneys have been awarded in other cases in this
district. Considering all of the relevant factors, with emphasis on the experience of the attorneys,
the Court finds that the appropriate rate for Attorney Breitenbach is $350 per hour and the
appropriate rate for Attorney Hallak is $275 per hour. 5

Given Attorney Hallak’s admission to the New York State Bar in 2011 and his senior counsel role, the Court
considers his experience to be equivalent to that of a partner. See Tassone v. County of Onondaga, No. 94-cv-173,
1996 WL 307436, at *2, 1996 U.S. Dist. ELXIS 7767, at *4–6 (N.D.N.Y. May 31, 1996) (finding that “senior deputy

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2.

Reasonable Hours

Plaintiffs’ counsel seeks compensation for 144.8 hours of billable time, consisting of 36.6
hours for Attorney Breitenbach and 108.2 hours 6 for Attorney Hallak. (See Dkt. No. 58-2, at 20;
Dkt. No. 59, at 13). 7 Plaintiffs have requested fees equivalent to an approximate five-percent
reduction in the lodestar figure. (Dkt. No. 58-1, ¶ 2). Defendants do not object to the
reasonableness of the hours expended. (See generally Dkt. No. 60).
In Hensley v. Eckerhart, the Supreme Court emphasized that when calculating what
constitutes reasonable attorneys’ fees, “the most critical factor is the degree of success obtained.”
461 U.S. 424, 436 (1983). 8 When a plaintiff succeeds on only some of his claims for relief, the
Court considers two factors. First, whether “the plaintiff fail[ed] to prevail on claims that were
unrelated to the claims on which he succeeded.” Id. at 434. And second, whether “the plaintiff
achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for
making a fee award.” Id. The Supreme Court has recognized that in some cases “the plaintiff’s
claims for relief will involve a common core of facts or will be based on related legal theories.”
Id. at 435. In such cases where “[m]uch of counsel’s time [is] devoted generally to the litigation
as a whole, making it difficult to divide the hours expended on a claim-by-claim basis . . . the
district court should focus on the significance of the overall relief obtained by the plaintiff in

county attorney” with approximately sixteen years of experience to have the “degree of skill and experience equivalent
to that of a partner in a private firm in this area”).
Plaintiffs’ counsel’s declaration and memorandum of law in support of its fees request state Attorney Hallak
performed 208.1 hours of billable time on this matter, (Dkt. No. 58-1, ¶ 2; Dkt. No. 59, at 13), but the billing records
indicate that he only performed 108.2 hours, (see Dkt. No. 58-2, at 20).

6

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Plaintiffs’ counsel does not seek to recover for the time of Attorney Hannah Levine, who spent 4.2 hours on the
litigation. (Dkt. No. 58-1, ¶ 4; see also Dkt. No. 58-2, at 20).

“‘Though Hensley deals with attorney’s fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42
U.S.C. § 1988, courts have applied the same standards when determining the reasonableness of fees sought pursuant
to’ ERISA.” Finkel v. Zizza Assocs. Corp., No. 12-cv-4108, 2023 WL 8455937, at *10 n.15, 2023 U.S. Dist. LEXIS
217242, at *32 n.15 (E.D.N.Y. Dec. 6, 2023) (citation omitted).
8

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relation to the hours reasonably expended on the litigation.” Id. Additionally, “[c]ourts in this
Circuit have recognized a district court’s authority to make across-the-board percentage cuts in
hours, as opposed to an item-by-item approach, to arrive at the reasonable hours expended.”
United States ex rel. Nichols v. Comput. Scis. Corp., 499 F. Supp. 3d 32, 41 (S.D.N.Y. 2020)
(citation omitted).
As discussed, Plaintiff’s complaint pleaded seven causes of action. (See Dkt. No. 12, ¶¶
51–111). After Defendant filed a motion to dismiss, three causes of action were dismissed.
Nathaniel L. Tindel, M.D., LLC v. Excellus Blue Cross Blue Shield, No. 22-cv-971, 2023 WL
3318489, at *8, 2023 U.S. Dist. LEXIS 80576, at *23 (N.D.N.Y. May 9, 2023). At the summary
judgment stage, the Court ordered that Heffernan’s benefits claim be remanded for Defendant’s
reconsideration, but dismissed the Plaintiff Providers’ ERISA claims and the remaining state law
claim. Nathanial L. Tindel, M.D., LLC, 2024 WL 4198368, at *14, 2024 U.S. Dist. LEXIS
166684, at *39. However, Plaintiffs request compensation for essentially all parts of the
litigation. (See generally Dkt. No. 58-2). For example, Plaintiffs seek to recover for time they
billed relating to their motion to dismiss. (See Dkt. No. 58-1, ¶ 16; see, e.g., Dkt. No. 58-2, at 4
(entry at 11/08/22 stating: “[r]eview issues with D. Hallak regarding motion to dismiss
opposition and related strategy issues”), 6 (entry at 12/08/22 stating: “[r]eview and edit papers
opposing motion to dismiss.”)). But the claim on which they achieved some degree of success,
Heffernan’s challenge to the adequacy of the explanation of his denial of benefits under ERISA,
was not at issue on that motion. (See generally Dkt. No. 17-1 (arguing that the Court should
dismiss Provider Plaintiffs’ claims and the state law claims)).
Considering whether the claim on which Plaintiffs had some degree of success is
interrelated with the claims on which Plaintiffs had no success, the Court finds that all seven

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claims share a common core of facts regarding Defendant’s denial of Heffernan’s benefits claim
and the surrounding circumstances. (See generally Dkt. No. 12, ¶¶ 51–111). The Court will
therefore not attempt to parse Plaintiffs’ counsel’s time on a claim-by-claim basis.
Focusing on the overall relief obtained, however, the Court finds that Plaintiffs’ “limited
success in this case merits a significant reduction in the fees that [they] can recover.” Fisher,
2020 WL 5898788, at *10, 2020 U.S. Dist. LEXIS 184024, at *28 (citing varying fee reductions
for limited success in other ERISA cases ranging from 20 to 75 percent). In this instance, the
Court finds that a 50 percent reduction in the hours spent is appropriate here to account for
Plaintiff’s overall degree of success. See Schuman, 2017 WL 2662191, at *9–10, 2017 U.S. Dist.
LEXIS 94557, at *24–27 (“I conclude that [the defendant’s] proposed 75 percent reduction in
hours adequately—even generously— captures the proportion of work that [the plaintiff’s]
attorneys spent on his successful claim.”). The Court will therefore allow Plaintiffs to recover for
18.3 hours of Attorney Breitenbach’s time and 54.1 hours of Attorney Hallak’s time.
C.

Costs

As discussed, the Court has found Plaintiffs are entitled to costs, in addition to attorneys’
fees, under 29 U.S.C. § 1132(g)(1). Plaintiffs’ records reflect costs equal to $1,503.78. (See Dkt.
No. 58-2, at 19).
D.

Final Calculation

In sum, after carefully considering all the relevant factors and adjusting the requested
rates and the requested hours as discussed above, the Court finds Plaintiffs are entitled to
attorneys’ fees and costs in the total amount of $22,786.28, as itemized below:

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Table 1: Attorneys’ Fees and Costs
Adjusted
Adjusted
Attorney
Rate
Hours
Attorney Breitenbach (Partner)
$350
18.3
Daniel Hallak (Senior Counsel)
$275.00
54.1
—
—
Subtotal
—
—
Costs
Final Award
—
—
III.

Total Fees
$6,405
$14,877.5
$21,282.5
$1,503.78
$22,786.28

CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiffs’ motion for attorneys’ fees and costs, (Dkt. No. 58) is

GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiffs are awarded $22,786.28 in attorneys’ fees and costs.
IT IS SO ORDERED.
Dated: April 16, 2025
Syracuse, New York

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