Broadbent v. The Citigroup Long Term Disability Plan

Filing 34

ORDER granting 31 Motion for Attorney Fees to the extent set forth in this Order, specifically, attorney's fees and costs for Nasser of $37,581.75. Signed by U.S. District Judge Lawrence L. Piersol on 3/16/15. (DJP)

FILED
MAR 1·6 2015
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LYNN R. BROADBENT,
Plaintiff,
vs.
THE CITIGROUP LONG TERM
DISABILITY PLAN,
Defendant.

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CIV 13-4081-LLP

ORDER ON MOTION FOR
ATTORNEY'S FEES

Plaintiff Lynn Broadbent (Broadbent) moved for an award of attorney's fees and costs
incurred in her action for benefits against the Citigroup Long Term Disability Plan (the Plan).
Doc. 31. The Plan opposed Broadbent's motion, arguing that she is not entitled to attorney's fees
and that even if she is, her request is excessive. Doc. 32. For the reasons explained below, the
Court grants Broadbent's motion in part.

I.

Facts
Citigroup offers employees long-term disability insurance through the Plan. Metropolitan

Life Insurance Company (MetLife) is the Plan's insurer and claims fiduciary and has discretionary
authority to construe the terms of the Plan and make eligibility determinations. Doc. 14 at 2;
Doc. 33-1 at 4. To receive long-term disability benefits under the Plan, participants must satisfy
the Plan's definition of disability. Doc. 31-2 at 2. 1

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In a letter to Broadbent, MetLife explained the Plan's definition of disability as follows:
Ifyou are a member of Class II, "Disabled" or "Disability" means that,
due to sickness, pregnancy or accidental injury, you are receiving
Appropriate Care and Treatment from a Doctor on a continuing basis,
and
1. During the Elimination Period you are Totally Disabled; "Totally

Broadbent was a treasury analyst at Citigroup until 2009 when she began experiencing
serious health problems. Doc. 31-2 at 9; Doc. 14 at 1-2. In October 2009, David Hoversten,
Broadbent's treating orthopedist, submitted a letter to MetLife explaining that Broadbent suffered
from a "multitude of significantly disabling conditions," including obesity, severe degenerative
disk disease in her low back, fibromyalgia, and a total arthroplasty of her left hip. Doc. 31-2 at
61. Given these conditions, Dr. Hoversten "support[ ed] that [Broadbent] be considered disabled
for work activities in anything but the most sedentary positions." Doc. 31-2 at 61. In November
2009, Dr. David Ellerbusch, Broadbent's general practitioner, completed a form supporting
Broadbent's Family and Medical Leave Act request in which he indicated that Broadbent's
fibromyalgia rendered her incapable of doing her job and that this condition was permanent. Doc.
31-2 at 33-35.
Broadbent stopped working in December 2009 due to her health conditions. MetLife
concluded that she was eligible for long-term disability benefits and began paying benefits
effective March 2010.

Doc. 31-2 at 2.

Dr. Ellerbusch completed a MetLife physician

questionnaire concerning Broadbent in August 2010. Doc. 31-2 at 36-37. He concluded that
Broadbent could only stand, sit, and walk for one hour each day, and that she would never be

Disabled" or "Total Disability" means that, due to sickness, pregnancy
or accidental injury, you are receiving Appropriate Care and
Treatment from a Doctor on a continuing basis, and during our
Elimination Period, you are unable to perform your Own Occupation
for any employer in your Local Economy.
2. after your Elimination Period and during the next 60 month period,
you are unable to earn more than 80% of your Predisability Earnings
at your Own Occupation for any employer in your Local Economy .
Doc. 31-2 at 8.

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capable ofreturning to work. Doc. 31-2 at 36--37. In February 2011, MetLife sent a letter to
Suzanne Bakken, a nurse practitioner who treated Broadbent at the Sanford Pain Center,
inquiring when Nurse Bakken thought Broadbent could return to work. Doc. 31-2 at 48. Nurse
Bakken responded that Broadbent would not be a reliable employee even in a sedentary position
and that although Broadbent was working hard to manage her pain, this was still a full-time job
for her. Doc. 31-2 at 49.
On January 13, 2012, an administrative law judge concluded that Broadbent's
degenerative disc disease, left total hip arthroplasty, fibromyalgia, and obesity rendered her
disabled under the Social Security Act. Doc. 31-2 at 20-27. In April 2012, a medical director
for MetLife conducted a review of Broadbent's records. Doc. 31-2 at 72-73. The medical
director stated that Broadbent had traveled up to 1,000 miles to attend a craft event, that
Broadbent's left hip appeared to be doing well, and that there was no evidence that a medical
condition restricted her ability to work. Doc. 31-2 at 73. Dr. Hoversten completed a MetLife
physician questionnaire concerning Broadbent in July 2012. Doc. 31-2 at 67-69. He wrote that
Broadbent could sit continuously for four hours, stand for two hours, and walk for one hour.
Doc. 31-2 at 67-68. Dr. Hoversten also concluded that Broadbent could work eight hours per
day. Doc. 31-2 at 68.
In early November 2012, MetLife sent Broadbent a letter explaining that it was
terminating her claim for long-term disability benefits because she no longer met the Plan's
definition of disability. Doc. 31-2 at 4--7. The letter discussed the July 2012 questionnaire from
Dr. Hoversten and the medical director's review of Broadbent's file before concluding that
Broadbent's medical records did not "substantiate the presence of a continued physical or
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psychiatric impairment that would prevent [Broadbent from] working." Doc. 31-2 at 5-6.
Broadbent appealed MetLife's decision to terminate her benefits.
While this appeal was pending, Dr. Marc Sloan completed a physician consultant review
for MetLife in late December 2012. Doc. 31-2 at 75-84. According to Dr. Sloan, Dr. Ellerbusch
deferred to Dr. Hoversten concerning Broadbent's physical limitations but still believed that
Broadbent's subjective symptoms rendered her incapable ofworking. Doc. 31-2 at 82. Dr. Sloan
concluded that Broadbent's subjective pain complaints were inconsistent with her activities,
including traveling to Utah, doing housework, mowing her mother's yard, and doing physical
therapy. Doc. 31-2 at 82-83. He opined that the medical information supported Dr. Hoversten's
conclusions in the July 2012 questionnaire that, in a given day, Broadbent could sit continuously
for four hours, stand for two hours, walk for one hour, and work for eight hours. Doc. 31-2 at
83. In a January 16, 2013 addendum to his review ofBroadbent's claim, Dr. Sloan reiterated that
he agreed with the functional limitations set forth by Dr. Hoversten in the July 2012
questionnaire. Doc. 31-2 at 84. Based upon these limitations, Dr. Sloan believed that Broadbent
was capable of working in a sedentary capacity for eight hours a day. Doc. 31-2 at 84.
On January 18, 2013, Broadbent sent a letter to MetLife explaining that her flight to
Utah took quite a toll on her body and that although she used to mow her mother's yard two
summers ago, she could no longer do so. Doc. 31-2 at 30. Four days later, Dr. Hoversten sent
MetLife a letter stating: "Lynn Broadbent has severe back deterioration and a painful total hip on
left. Since 2008 I have supported full disability for her. The workability report of7-16-12 was
only according to her fractured hand and wrist. It was never intended to retract her disability
qualifications." Doc. 31-2 at 70.

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On February 20, 2013, Dr. Sloan issued another addendum to his review ofBroadbent's
medical records. Doc. 31-2 at 85. Once again, Dr. Sloan stated that he agreed with the
functional limitations outlined in Dr. Hoversten's July 2012 questionnaire. Doc. 31-2 at 85. He
also opined that a ten to fifteen minute break with a change of position every two hours would
allow Broadbent to sit for more than six hours during an eight hour work day. Doc. 31-2 at 85.
Dr. Sloan did not mention Dr. Hoversten's recent letter stating that the July 2012 questionnaire
only concerned Broadbent's hand and wrist. Doc. 31-2 at 85.
MetLife sent Broadbent a letter affirming the termination of her claim on February 25,
2013. Doc. 31-2 at 8-14. Consistent with Dr. Sloan's opinion and Dr. Hoversten's :findings in
the July 2012 questionnaire, MetLife concluded in the letter that Broadbent could work eight
hours a day, including sitting continuously for four hours, standing for two hours, and walking
for one hour. Doc. 31-2 at 13. MetLife acknowledged that Dr. Hoversten had since made clear
that the July 2012 questionnaire only concerned Broadbent's wrist, but stated that "there were no
additional clinical :findings submitted for review." Doc. 31-2 at 12. MetLife ultimately found that
Broadbent was not totally disabled under the Plan because her functional limitations did not
preclude her from earning more than eighty percent of her pre-disability income as a treasury
analyst. Doc. 31-2 at 13.
In July 2013, Broadbent sued the Plan under the Employee Retirement Income Security
Act ofl 974 (ERISA). Doc. 1. She claimed that she remained disabled under the Plan's definition
and sought an award oflong-term disability benefits. Doc. 1. The parties engaged in mediation
before Magistrate Judge John Simko but could not reach a resolution. One month later, however,
the parties filed a joint stipulation under which the Plan agreed to pay Broadbent past long-term

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disability benefits and to reinstate her under the Plan subject to its terms and conditions. Docs.
26, 27. The parties agreed that the only remaining issue in this case was whether Broadbent is
entitled to attorney's fees, costs and disbursements, and interest. Docs. 26, 27. Based upon the
stipulation, the Court entered an order dismissing Broadbent's ERISA claim but retaining
jurisdiction to decide the attorney's fees issue. Doc. 27.
Thereafter, Broadment filed a motion seeking $31,441. 03 in attorney's fees and costs with
a multiplier of 1.5 for a total of$46,954.40. Docs. 29, 30, 31. The Plan opposed Broadment's
request, arguing that she is not entitled to attorney's fees because she failed to achieve some
degree of success on the merits, that a fee award is not appropriate in this case, and that even if
the Court decides to award attorney's fees, Broadbent's request is unreasonable. Doc. 32.

I.

Achieving some degree of success on the merits
Under ERISA, "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)(l). In Hardt v. Reliance Standard Life Insurance
Co., 560 U.S. 242 (2010), the Supreme Court held that eligibility for an award under
§ 1132(g)(l) does not require that the fee-seeker be a prevailing party, but only that the "claimant

... show 'some degree of success on the merits.'" Id. at 255 (quoting Ruckelshaus v. Sierra Club,
463 U.S. 680, 694 (1983)). Although a "trivial success" or a "purely procedural victor[y]" does
not satisfy this standard, it is sufficient if "the court can fairly call the outcome of the litigation
some success on the merits without conducting a 'lengthy inquir[y] into the question whether a
particular party's success was substantial or occurred on a central issue."' Id. at 255 (alterations
in original) (quoting Ruckelshaus, 463 U.S. at 688 n.9) (internal quotation marks omitted).

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Broadbent has achieved some degree of success on the merits such that the Court has
discretion to award attorney's fees. Although Broadbent's success was not the result of a remand
or a favorable decision on the merits, this fact does not, as the Plan suggests, preclude an award
of attorney's fees. An award of attorney's fees in an ERISA case may be proper when a plaintiffs
suit operated as a catalyst to bring about a voluntary change in the defendant's conduct. See
Boylev. Int'lBhd. ofTeamsters Local 863 Welfare Fund, 579 F. App'x 72, 77-78 (3d Cir. 2014);
Burwitzv. Ulteig Eng'rs, Inc. Emp. Stock Ownership Plan, CIV 11-4175-LLP, Doc. 84 (D.S.D.
Jan. 14, 2014). In Boyle, for instance, the Third Circuit applied the catalyst theory and concluded
that the plaintiffs had achieved some success on the merits where the defendants voluntarily
reinstated the plaintiffs' benefits but only after the plaintiffs filed suit. 579 F. App'x at 77-78.
Likewise, this Court in Burwitz concluded that the plaintiffs had achieved some success on the
merits because their suit operated as a catalyst to cause the defendants to make a lump sum
payment ofbenefits. CIV 11-4175-LLP, Doc. 84 at 2-3. Here, Broadbent's suit served as a
catalyst that caused the Plan to provide her with the relief she sought. After all, the Plan had an
ample opportunity to award benefits at the administrative level but declined to do so until after
Broadbent filed suit and the parties engaged in mediation.
Relying on the Eighth Circuit's decision in Deckard v. Interstate Bakeries Corp. (In re
Interstate Bakeries Corp.), 704 F.3d 528 (8th Cir. 2013), the Plan argues that the Court should
not apply the catalyst theory in this case. In Deckard, a former Interstate Bakeries' employee filed
an administrative claim in the company's bankruptcy proceeding seeking reimbursement of his
medical expenses and civil penalties for Interstate Bakeries' failure to provide certain notices
under the Consolidated Omnibus Budget Reconciliation Act of1985 (COBRA). 704 F.3d at 533.

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Interstate Bakeries voluntarily agreed to reimburse and reinstate the employee under its ERISA
plan and did not dispute that it had failed to provide proper notice under COBRA.

Id.

Nevertheless, the bankruptcy court granted summary judgment to Interstate Bakeries on the
employee's claim for civil penalties and denied his request for attorney's fees. Id. The employee
argued on appeal that he was entitled to attorney's fees because he had obtained reimbursement
and reinstatement under the plan and had demonstrated that Interstate Bakeries had failed to
provide the requisite COBRA notices. Id. at 538. The Eighth Circuit disagreed, finding that the
bankruptcy court's denial of attorney's fees was not an abuse of discretion because the employee
had advanced "ludicrous" arguments during litigation and had failed to prevail on a single
contested issue. Id.
Unlike the employee in Deckard, Broadbent did not fail to obtain a significant portion of
the relief she requested in her complaint. Broadbent's complaint only sought recovery oflongterm disability benefits under the Plan. She obtained this relief through the joint stipulation, under
which the Plan agreed to pay Broadbent past long-term disability benefits and to reinstate her
under the Plan. Docs. 26, 27. Courts faced with similar circumstances have held that the plaintiff
achieved some degree of success on the merits. See Pierorazio v. Thalle Const. Co., No. 13 CV
4500(VB), 2014 WL 3887185, at *3 (S.D.N.Y. June 26, 2014) (concluding that plaintiff could
"easily claim" some degree of success on the merits where he received through a settlement
substantially all of the reliefhe sought in his complaint); Taaffe v. Life Ins. Co. ofN. Am., 769
F. Supp. 2d 530, 540-42 (S.D.N.Y. 2011) (holding that plaintiff achieved "more than 'some
success on the merits"' because the defendant provided her with everything she requested in her
complaint); Hackett v. Standard Ins. Co., No. CIV. 06-5040-JLV, 2010 WL 5068098, at *3--4

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(D. S.D. Dec. 7, 2010) (finding that settling plaintiffwho obtained the long-term disability benefits
sought in her complaint had achieved a "complete victory" and was entitled to attorney's fees).
Because Broadbent obtained substantially all of the relief sought in her complaint, her case is
more like Pierorazio, Taaffe, and Hackett than Deckard.
At bottom, Broadbent's suit served as a catalyst to cause the Plan to provide her with
substantially all of the relief she sought in her complaint. This is sufficient to establish that
Broadbent achieved some degree of success on the merits.

II.

Deciding whether a fee award is appropriate
Ifthe fee claimant has achieved some degree of success on the merits, the Eighth Circuit

has set forth a "nonexhaustive list of factors to consider" when deciding whether a fee award is
appropriate.

McDowell v. Price, 731 F.3d 775, 783 (8th Cir. 2013) (citing Lawrence v.

Westerhaus, 749 F.2d 494, 496 (8th Cir. 1984) (per curiam)). These factors include:
(1) the degree of the opposing parties' culpability or bad faith; (2)
the ability of the opposing parties to satisfy an award of attorneys'
fees; (3) whether an award of attorneys' fees against the opposing
parties could 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 qeustion [sic] regarding
ERISA itself; and (5) the relative merits of the parties' positions.
Westerhaus, 749 F.2d at 496 (alteration in original) (quoting Iron Workers Local No. 272 v.
Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)). Courts should not mechanically apply these five
factors. Rather, "the district courts should use the factors and other relevant considerations as
general guidelines for determining when a fee is appropriate." Martin v. Ark. Blue Cross & Blue
Shield, 299 F.3d 966, 972 (8th Cir. 2002) (en bane). Finally, "[a] district court considering a
motion for attorney's fees under ERISA should . . . apply its discretion consistent with the

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purposes of ERISA, those purposes being to protect employee rights and to secure effective
access to federal courts." Starrv. Metro Sys., Inc., 461F.3d1036, 1040 (8th Cir. 2006) (quoting
Welsh v. Burlington N., Inc., Emp. Benefits Plan, 54 F.3d 1331, 1342 (8th Cir. 1995)).
The Court begins its analysis with the fifth Westerhaus factor, the relative merits of the
parties' positions. Broadbent argues that the Plan erred by reversing its prior award of benefits
when there was no evidence that her condition had improved. Absent a significant change in the
information available to it, a plan administrator's "previous payment ofbenefits is a circumstance
that must weigh against the propriety of an [administrator's] decision to discontinue those
payments." McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586, 589 (8th Cir. 2002). Here,
MetLife treated Dr. Hoversten's July 2012 questionnaire as a significant change in the evidence
concerning Broadbent's physical condition. Indeed, MetLife's decision to uphold the termination
of Broadbent's claim for long-term disability benefits relied in large part on the July 2012
questionnaire and Dr. Sloan's agreement with the statements therein. MetLife adopted the
conclusions in the July 2012 questionnaire concerning Broadbent's capacity to sit, stand, walk,
and work, and found that Broadbent was not totally disabled under the Plan because her capacity
to engage in these activities allowed her to earn more than eighty percent of her pre-disability
earnings as a treasury analyst. Doc. 31-2 at 13. By the time MetLife issued its decision on
Broadbent's appeal, however, Dr. Hoversten had informed MetLife that the July 2012
questionnaire only concerned Broadbent's wrist, that the questionnaire was not meant to retract
Broadbent's disability qualifications, and that Broadbent still had severe back deterioration and
a painful total hip on her left. Doc. 31-2 at 70. This clarification not only established that the
questionnaire was weak evidence of Broadbent's overall capacity, but also cast doubt on Dr.

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Sloan's conclusions, which relied heavily on the questionnaire.

Putting aside the 2012

questionnaire and Dr. Sloan's conclusions, there was little evidence that Broadbent's physical
condition had improved since March 2010 when the Plan determined that she was disabled. Nor
was there a significant change in the evidence concerning Broadbent's condition in March 2010
such that the Plan would be justified in finding that its initial disability determination was
incorrect. Although the early termination of this litigation makes it difficult to fully compare the
merits ofthe parties' positions, the Plan's previous payment ofbenefits weighs against its decision
to terminate those benefits, and gives Broadbent an edge on the fifth Westerhaus factor.
The record, while not establishing bad faith, supports a finding that the Plan is culpable
to some limited degree in its failure to properly consider the evidence. After all, the Plan reversed
its prior award of benefits to Broadbent despite a paucity of evidence that her condition had
improved. In doing so, the Plan ignored Dr. Hoversten's statement that the 2012 questionnaire
was not an accurate representation ofBroadbent's overall capacity and that he still supported her
claim for full disability. Because the Plan both determines a claimant's eligibility for and pays
benefits, its conduct in terminating Broadbent's long-term disability benefits is particularly
concerning. See Brake v. Hutchinson Tech. Inc. Gro. Disability Income Ins. Plan, 774 F. 3d 1193,
1196 (8th Cir. 2014) (noting that there is an inherent financial conflict of interest where a party
is both the insurer and the administrator of a plan).
The second Westerhaus factor-the parties' ability to satisfy an award of attorney's
fees-weighs in Broadbent's favor as the Plan agrees that it could pay any such award. The third
Westerhaus factor concerns whether an award of attorney's fees would deter other persons acting
under similar circumstances. The Court finds that an award of attorney's fees in this case would

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deter claims fiduciaries from terminating an award of benefits without carefully weighing the
evidence. The third Westerhaus factor thus weighs in Broadbent's favor. The fourth Westerhaus
factor-whether the party requesting attorney's fees sought to benefit all participants and
beneficiaries of an ERISA plan or to resolve a significant legal question-militates against an
award of attorney's fees. Broadbent's case does not involve a significant legal issue and she only
sought benefits for herself Nevertheless, the majority of the Westerhaus factors favor an award
of attorney's fees. The Court finds that an award of attorney's fees in this case is appropriate and
consistent with the purposes of ERISA.
III. Determining the amount of attorney's fees to award Broadbent
The starting point for determining the appropriate amount of attorney's fees is the
lodestar, which is calculated by multiplying the number of hours reasonably expended by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In determining the
lodestar, Courts may consider such factors as:
(1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the fee
was fixed or contingent; (7) time limitations imposed by the client
or the circumstances; (8) the amount involved 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. at 430 n.3. A court is not required to "examine exhaustively and explicitly ... all of the
factors that are relevant to the amount of a fee award." Griffin v. Jim Jamison, Inc., 188 F.3d
996, 997 (8th Cir. 1999).

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Broadbent seeks $31,441.03 in attorney's fees and costs with amultiplierofl .5 for a total
of$46,954.40. Docs. 29, 30, 31. The $31,441.03 reflects the work performed by Broadbent's
attorney Dean Nasser and Nasser's paralegal. Doc. 29-1. Nasser and his paralegal performed
125.85 hours of work with Nasser billing at a rate of$250.00 per hour. Doc. 29-1. Although
the Plan objects to any award, it does not express any objection to Nasser's hourly rate. Nasser
filed a declaration that outlines his experience representing ERISA plaintiffs and sets forth the
hourly rate charged by other attorneys engaged in similar practice. Docs. 29, 29-2, 29-3, 29-4.
Given Nasser's experience, the prevailing market rate in South Dakota, and the lack of any
objection from the Plan, the Court finds that Nasser's hourly rate is reasonable.
The Plan argues that the 52.1 hours Nasser spent reviewing Broadbent's file at the
beginning of the case and in connection with the parties' mediation should be discounted by
seventy-five percent as duplicative and unreasonable. Nasser spent fourteen hours reviewing
Broadbent's file in May and July of 2013. Doc. 29-1. In January 2014, Nasser spent sixteen
hours reviewing the administrative claim file he received from the Plan. Doc. 29-1. The
administrative record file was longer than Broadbent's file and had to be compared. Nasser then
spent 22.1 hours in June 2014 preparing for the mediation, including reviewing Broadbent's file,
researching, and drafting a mediation statement. Doc. 29-1. Broadbent asserts in her affidavit
that the time Nasser spent reviewing her file and preparing for the mediation was justified because
the administrative record was 1,900 pages and because Nasser took great care in preparing the
mediation statement so that it could be used for a later motion for summary judgment.
Having carefully reviewed the record, the Court concludes that the 52.1 hours Nasser
spent reviewing the record and preparing for the mediation is certainly painstaking work but was

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warranted and will not be reduced. The case did not involve any complex legal issues. Rather,
the main issue in this case was whether Broadbent's condition had improved since March 2010
such that the Plan was justified in terminating her claim for benefits. The administrative record
was voluminous and the facts had to be carefully reviewed to see that they supported Broadbent's
claim in mediation. Moreover, Broadbent asserts that Nasser spent some ofthe 52.1 hours "finetun(ing] the case analysis" in the mediation statement so that it could be used as a motion for
summary judgment. Doc. 31 at 6. In sum, Broadbent has demonstrated that the 52.1 hours
Nasser spent reviewing the file and preparing for the mediation was reasonable. See Greater St.
Louis Const. Laborers Welfare Fund v. A.L.L. Const., LLC, No. 4:12-CV-1511CAS,2014 WL
1648731, at *6 (E.D. Mo. Apr. 23, 2014) (noting that moving party bears burden of
demonstrating that fee request is reasonable in ERISA case).
The Plan argues also that the time Nasser spent preparing the motion for attorney's fees
was duplicative and should be discounted by a minimum of 50%. The Court agrees. Nasser
spent 11.6 hours preparing Broadbent's affidavit and motion for attorney's fees, a memorandum
in support ofBroadbent's motion, and his own declaration. Doc. 29-1. The affidavit and motion
for attorney's fees consisted mainly of a summary of Broadbent's medical history. Doc. 31. This
summary should not have required extensive work given Nasser's previous review ofBroadbent's
file and preparation of a mediation statement. As for Broadbent's memorandum in support ofher
motion for attorney's fees, this document was modest in length and contained little analysis. Doc.
30. Under these circumstances, a 50% reduction of the 11.6 hours Nasser spent in connection
with the attorney's fees issue is appropriate.

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The legal assistant charges of$125 an hour are reduced to $100 an hour to be more in
keeping with local rates.
Finally, the Plan objects to Broadbent's request for a multiplier.

To receive an

enhancement ofthe lodestar, a fee applicant must offer "specific evidence demonstrating not only
that outstanding service was rendered and an excellent result achieved, but also that both the
service and the result were 'superior to what one reasonably should expect in light of the hourly
rates charged and the number of hours expended."' Emmengger v. Bull Moose Tube Co., 33 F.
Supp. 2d 1127, 1140 (E.D. Mo. 1998) (quoting P.A. Novellyv. Palans On re Apex Oil Co.), 960
F.2d 728, 732 (8th Cir. 1992)). Although Nasser achieved a favorable result for Broadbent, it
was a superior result considering the hourly rate charged and number of hours expended. What
more could the plaintiffhave recovered? However, there is also the consideration that the hourly
rate charged and allowed is modest for a trial lawyer with the experience of plaintiffs counsel.
In addition, few lawyers in this geographic area take ERISA cases.

Finally there is the

consideration that there was the risk of non-recovery in this as in all ERISA cases. Even ifthere
is some success in an ERISA case, that does not assure an award of attorney's fees.

The

enhancement will be 1.25, not 1.5, principally because the case was not legally complex. The fee
agreement, Doc. 31-1, provides for a fee of one-third of all benefits recovered. The past and
future benefits recovered were approximately $170,000. Given these considerations, the Court
will award a multiplier of 1.25, not the 1.5 requested.

The Court finds that Broadbent has

demonstrated that Nasser's work warrants an enhancement. However, this enhancement will not
apply to work performed by Nasser's legal assistant or other attorneys at his firm.

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The above reductions to Nasser's hours and the enhancement result in a total fees and
costs award of$37,581.75. Based upon the Court's review of the record, its knowledge of the
legal market, and the relevant case law, this amount reasonably compensates Nasser for the
successful result he obtained in what amounted to a relatively uncomplicated BRISA case.
IV. Conclusion

For the reasons stated above,
IT IS ORDERED:
That Broadbent's motion for attorney's fees and costs (Doc. 31) is granted to the
extent set forth in this Order, specifically, attorney's fees and costs for Nasser of
$37,581.75.

Dated this 16thdayofMarch, 2015.
BY THE COURT:

L~rence L. Piersol
United States District Judge

ATTEST:
JOSEPH H1f-S, Clerk
By

QJ21Mmy
Deputy

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