Averbeck, Tamara v. The Lincoln National Life Insurance Company
Filing
52
OPINION AND ORDER: Plaintiff Tamara Averbeck's 34 motion for attorney fees and costs is GRANTED in part and DENIED in part. Plaintiff awarded attorney fees in the amount of $69,725. No costs shall be awarded. The clerk is directed to enter judgment to reflect the award of attorney fees. Signed by District Judge James D. Peterson on 9/28/2023. (nln)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TAMARA AVERBECK,
Plaintiff,
v.
OPINION and ORDER
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY and DOES 1 THROUGH 10, INCLUSIVE,
20-cv-420-jdp
Defendants.
Plaintiff Tamara Averbeck brought this lawsuit under the Employee Retirement Income
Security Act (ERISA) after defendant The Lincoln National Life Insurance Company
terminated her long term disability and life insurance benefits and denied her appeal. Four
months after Averbeck filed suit, Lincoln reinstated her benefits, including the back benefits.
In a previous order, the court determined that Averbeck was entitled to recover her reasonable
actual attorney fees, expenses, and costs because she had obtained some degree of success on
the merits and Lincoln hadn’t shown that its position was substantially justified. Dkt. 32. The
court authorized Averbeck to submit either a stipulation or a properly-supported fee request,
noting that Averbeck’s fees “should be relatively modest.” Id. at 3.
Averbeck’s fee petition is now before the court. Dkt. 34. It is not relatively modest; it
is eye-popping. Averbeck seeks an award of $160,764 for 316 hours of work leading up to and
including her fee petition, plus another $20,010 for time spent on the reply, for a total fee
award of $180,774. Dkt. 47. She also seeks costs in the amount of $2,984.65. Dkt. 35-5, at 2.
Not surprisingly, Lincoln contends that the amount requested by Averbeck is unreasonable.
The court agrees. Accordingly, for the reasons set out below, the court is awarding fees in the
amount of $69,725. Averbeck’s request for costs is not properly supported, so those will be
denied.
ANALYSIS
Under ERISA, a court has discretion to award a “reasonable attorney fee and costs of
action to either party.” Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. of Wisconsin,
Inc., 657 F.3d 496, 505 (7th Cir. 2011) (quoting 29 U.S.C. § 1132(g)(1)). In determining a
reasonable fee, the court begins by multiplying the number of hours reasonably expended on
the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
court may then adjust this “lodestar” figure to account for various factors such as the amount
involved, the results obtained, or the novelty of the questions presented. Id. at 434 n. 9 (citing
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir. 1974)). In assessing
reasonableness, the court’s goal “is to do rough justice, not to achieve auditing perfection.” Fox
v. Vice, 563 U.S. 826, 838 (2011). “[T]rial courts may take into account their overall sense of
a suit, and may use estimates in calculating and allocating an attorney's time.” Id.
A. Hours expended
The court first addresses the hours that Averbeck’s attorneys expended litigating this
case, deducting hours that are excessive, redundant or otherwise unnecessary, or that were
incurred in unrelated, unsuccessful claims. Hensley, 461 U.S. at 434–35. Fees that would not
be billed to a paying client will not be shifted to the opposing party in a fee award. Id.; Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (“[T]he lodestar method produces an award
that roughly approximates the fee that the prevailing attorney would have received if he or she
had been representing a paying client who was billed by the hour in a comparable case.”).
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Averbeck seeks an award of attorney fees for the following work performed by attorneys
with the McKennon Law Group: 102.5 hours by Robert McKennon, a shareholder; 142.7 hours
by Amber Dufault, an associate with 13 years’ experience who left the firm around February
2021; and 106.4 hours by Cory Salisbury, an associate with eight years of experience who
replaced Dufault.1 Dkt. 51-1. In addition, Averbeck seeks reimbursement from Lincoln for 4.3
hours of work performed by Alfred Fisicaro, an “experienced word processor.” Dkt. 35, ¶ 11
(McKennon Decl.) (describing Fisicaro’s role). Averbeck supported her fee request with
declarations and a chronological, itemized billing statement from her attorneys, Dkt. 35-4;
however, she later updated the billing statement with a coded statement that groups the entries
according to assigned categories of tasks. Dkt. 47-1. Lincoln has also submitted its own coded
spreadsheet, Dkt. 41-3, along with a summary of its objections and proposed reductions. Dkt.
43-2.
Lincoln objects to Averbeck’s counsel’s fee calculation on several grounds, both general
and specific. Generally, it argues that the requested fee is excessive in comparison with other
ERISA disability benefits cases, is vastly disproportional to Averbeck’s recovery of $27,500 in
back benefits, and reflects a lack of reasonable billing judgment by counsel. Specifically,
defendant complains about the time spent on the following tasks: 78.9 hours drafting the
complaint; 47.8 hours reviewing the administrative record; 55.1 hours responding to the court’s
order to show cause; 45.1 hours drafting the motion for fees; and for time spent on
administrative tasks and non-litigation work.
1
These amounts include 39.4 hours spent on the reply brief. See Dkt. 47, ¶3 (Salisbury Decl.).
3
Before addressing Lincoln’s specific objections, the court agrees with its general
observation that 316 hours far exceeds what courts have deemed reasonably necessary to
litigate similar ERISA disability benefits cases.2 ERISA cases are fact-intensive, but Averbeck’s
was not overly complicated, and she does not suggest that her case presented any unique legal
or procedural issues. Rather, like many ERISA disability benefit cases, the main issues were
whether the claims administrator properly relied on its peer reviewing physicians over plaintiff’s
treating physicians, whether it considered all of the evidence in support of plaintiff’s claim, and
whether it provided plaintiff with the full and fair review required under the statute. See Dkt.
1 (Complaint). All of these are routine issues in ERISA cases with which Averbeck’s attorneys,
See, e.g., Alberth v. Southern Lakes Plumbing & Heating, Inc., No. 19-CV-62, 2021 WL
2779038, at *5 (E.D. Wis. July 2, 2021). (139.5 hours including summary judgment, trial, and
post-trial briefing); Laux v. Am Axle & Mfg. Inc., No. 20-C-270, 2021 WL 1311430 (E.D. Wis.
April 8, 2021) (90.9 hours for litigation through dispositive motions); Mowery v. Metro. Life Ins.
Co., No. 16-CV-516-JDP, 2017 WL 3575857, at *4 (W.D. Wis. Aug. 18, 2017) (concluding
that 36.5 hours drafting complaint, 182 hours briefing summary judgment and 29.5 hours
drafting motion for fees were “on the very high end of those awarded—or even asked for—in
similar ERISA cases” and reducing hours billed in each category by one-quarter); Clark v. Cuna
Mutual Long Term Disability Plan, 14-cv-412-wmc (W.D. Wis. Dec. 23, 2016) (awarding fees
for 161.95 hours of work for litigating case through summary judgment); Kaiser v. United of
Omaha Life Ins. Co., No. 14-cv-762, 2016 WL 6581355, at *2 (W.D. Wis. Nov. 4, 2016)
(approving 19 hours drafting a complaint and 92 hours briefing summary judgment motions
as reasonable); Boxell v. Plan for Grp. Ins. of Verizon Comm’ns, Inc., No. 13-cv-89, 2015 WL
4464147, at *7 (N.D. Ind. July 21, 2015) (approving 19.2 hours for “preliminary work,” 91.9
hours briefing summary judgment motions, and 33.6 hours briefing cross-motions for attorney
fees as reasonable); Holoubek v. Unum Life Ins. Co., No. 06-cv-121, 2007 WL 5595900, at *3
(W.D. Wis. Jan. 26, 2007) (approving 17.4 hours drafting a complaint as reasonable but
concluding that 113.1 hours briefing summary judgment were excessive); Hannon v. Unum Life
Ins. Co., No. 12-cv-992, 2014 WL 4653058, at *3 (S.D. Ind. Aug. 6, 2014) (concluding that
21.7 hours briefing a seven-page, boilerplate fees motion were excessive); Hartman v. Dana
Holding Corp., No. 12-cv-445, 2013 WL 6800112, at *5 (N.D. Ind. Dec. 20, 2013) (concluding
that 27.2 hours drafting a complaint, 113.5 hours briefing summary judgment, and 47.6 hours
briefing a fees motion were excessive).
2
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who specialize in ERISA litigation, would be well-acquainted. All of this is on top of the fact
that the parties settled Averbeck’s claim before dispositive motions were even filed.
What is more, the lion’s share of the time that Averbeck’s counsel spent on this case
was related to recovering their own fees. As discussed below, counsel could have eliminated
much of this work by filing a streamlined motion for attorney fees in late 2020, as it told
Lincoln and this court that it would do, rather than litigating their fee motion in stages.
Although Averbeck proffers innocent reasons for its litigation conduct, the court isn’t
persuaded by them. Instead, the court is left with the sense that counsel intentionally dragged
their feet to prolong the case and drive up their fees. Accordingly, the court approaches
counsel’s time records with a skeptical eye, wary of overbilling. See Anderson v. AB Painting &
Sandblasting Inc., 578 F.3d 542, 544 (7th Cir. 2009) (fee request that is disproportionate to
complexity of the case can raise a red flag). The following are the court’s rulings on defendant’s
objections, using the chart prepared by defendant, Dkt. 43-2, as guidance.3
1. Reviewing the administrative record
Averbeck’s attorneys spent 47 hours reviewing the 1,665-page administrative record,
reviewing prior counsel’s file in connection with the administrative proceedings, and
summarizing Averbeck’s medical records. This was excessive and reflects a lack of reasonable
billing judgment. Averbeck doesn’t deny that, like most ERISA files, the administrative record
for her claim contained many repeat records and correspondence, fax transmittal pages, and
The court finds Lincoln’s summary more helpful than Averbeck’s because it includes columns
showing the total amount of time spent by each of her attorneys in each contested category of
work. Dkt. 43-2. Although Averbeck’s coded spreadsheet and accompanying summary uses
slightly different categories, the court finds Lincoln’s calculation of the amount of time in each
category and for each timekeeper to be accurate and roughly consistent with Averbeck’s.
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cover sheets that require no time to review. Counsel also had the benefit of prior counsel’s file
and Averbeck’s administrative appeal, which would have helped identify the pertinent issues
for appeal.
In addition, counsel over-litigated the case by performing duplicative and unnecessary
work. On November 21, 2019, for example, Attorney Dufault spent 6.1 hours creating a
document index and saving important documents from the record, and on November 22 and
25, she spent a total of 12 hours summarizing Averbeck’s medical records. Dkt. 47-1, at 2. This
work might have been reasonable if it saved counsel time later, but it didn’t: as discussed below,
Averbeck’s attorneys still spent nearly 80 hours drafting and revising the complaint.
Counsel’s billing records also show duplication of effort by Dufault and McKennon:
Dufault billed 28.8 hours reviewing the administrative record, and McKennon billed an
additional 16.9 hours. Averbeck’s counsel hasn’t explained why it was reasonable or necessary
to have two lawyers review the administrative record, or why McKennon spent nearly 17 hours
on that task when it was Dufault who drafted the complaint. See Schlacher v. L. Offs. of Phillip J.
Rotche & Assocs., P.C., 574 F.3d 852, 858 (7th Cir. 2009) (“[O]verstaffing cases inefficiently is
common, and district courts are therefore encouraged to scrutinize fee petitions for duplicative
billing when multiple lawyers seek fees.”).
Accounting for all these factors, the court finds it appropriate to reduce the time spent
on this task by two-thirds, to 16 hours.
2. Preparing the complaint
Averbeck’s lawyers spent 62.4 hours drafting and revising the complaint, plus an
additional 16.5 hours reviewing Averbeck’s medical records and performing legal research, for
a grand total of 78.9 hours preparing the complaint. Once again, this amount is excessive,
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vastly exceeds what other attorneys typically bill for drafting an ERISA complaint, and does
not reflect a reasonable exercise of billing judgment.
Averbeck’s complaint was lengthy (31 pages) and detailed, reading more like proposed
findings of fact than a standard ERISA complaint. Perhaps its length and detail are what
spurred Lincoln’s decision to reinstate Averbeck’s benefits. Even so, the court agrees with
Lincoln that spending 78.9 hours—nearly two full weeks—drafting a complaint that contained
a single claim for relief far exceeded the needs of this straightforward case. What is more,
experienced lawyers like Averbeck’s counsel should have been able to prepare it in far less time.
Finally, the billing records again suggest inefficient and unnecessary duplication of work by
McKennon and Dufault: Dufault billed 5.7 hours reviewing and revising the complaint and
McKennon billed another 12.2 hours to that same task. See Dkt. 47-1, at 9 (entries from
February 5, 2020 to April 17, 2020).
The court will again reduce the amount charged by counsel by two-thirds; 26 hours was
a reasonable amount of time for experienced counsel like Averback’s to spend on preparing the
complaint.
3. Motion for attorney fees
Averbeck’s attorneys spent a total of 46 hours on the motion for attorney fees, including
performing legal research and drafting supporting declarations and exhibits.4 Lincoln argues
In her brief, Averbeck asserts that her lawyers spent 24.9 on these tasks. But as her counsel
admits in his declaration, the total reflected on Averbeck’s “Total Hours Expended” summary,
Dkt. 36-1, did not include 14.1 hours of time spent performing research related to the motion
for attorney fees, which had been erroneously captured in the “RS” category. Dkt. 47, ¶ 2. In
addition, from its independent review, the court finds another 7 hours of work performed by
Salisbury coded “RS” that pertained to the motion for attorney fees. Dkt. 47-1, at 13 (entries
from April 12 to August 2, 2021). This brings the total to 46, which is close to Lincoln’s
calculation of 45.1.
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that this amount of time is unreasonable given that counsel had already devoted 11.3 hours
(by Lincoln’s calculation) to analyzing and researching their fee request in connection with
their settlement negotiations with Lincoln. It also points out that courts in this circuit and
elsewhere have found that experienced counsel like Averbeck’s could file a fee motion in far
less time. Finally, it asserts that the work on the fee motion was excessive because it included
arguments concerning entitlement to fees, which the court had already decided in Averbeck’s
favor. Lincoln proposes reducing the time awarded in this category to 10 hours.
The court agrees that the hours billed by Averbeck’s counsel are unreasonable, but for
reasons slightly different than argued by Lincoln. Primarily, the court finds from counsel’s
billing records that their delay in filing the motion led to duplication of effort and unnecessary
work. In November and December 2020, for example, McKennon and Dufault spent about 10
hours doing preliminary work on the motion, including “gathering evidence,” “outlining
arguments,” “planning work and evidence,” and conducting legal research. Dkt. 35-4, at 1011. But this time appears to have been largely wasted: no motion was drafted, much less filed,
at that time.
Instead, from March to June 2021, after Dufault left, Salisbury retraced her steps,
spending about 4 hours reviewing the file and “strategizing” for the motion. He began drafting
the motion on June 11, spending 15.6 hours from June 11 to June 16, 2021. McKennon spent
2.9 hours revising the motion and the supporting declarations on June 29, 2021. About a
month later, on August 2, 2021, Salisbury spent another 1.7 hours “strategizing,” revising and
editing the declarations. But again, Averbeck didn’t file the motion. She did not file it until
more than a year later, after the court found that she was eligible to recover her fees under
controlling legal standards. After the court’s ruling, counsel spent an additional 7.7 hours on
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the motion, including 2.9 hours “analyzing” the court’s order and “strategizing” the fee motion,
and 4.8 more hours of editing and revising. Dkt. 47-1, at 11 (entries from September 1 to
September 26, 2022); id. at 14 (entries on August 30, 2022).
Averbeck insists that she delayed filing a motion for attorney fees to avoid spending
“unnecessary time” on such a motion until she knew the outcome of Lincoln’s dismissal
motion.5 Dkt. 46, at 39. But this is inconsistent with her prior representation in this case—
which is supported by counsel’s billing records—that “most of the work for the [attorney fee]
motion was done prior to September 30, 2021,” when the court ruled on the motion to dismiss.
Dkt. 28, at 30. Averbeck also says that she didn’t want to be “presumptuous” in filing a motion
for fees before the court ruled that she was entitled to them. But Averbeck’s attorneys are
experienced ERISA litigators who would know that the threshold question of whether a party
is eligible to recover fees under 29 U.S.C. § 1132(g)(1) is typically raised by the plaintiff in a
motion for attorney fees; indeed, their own submissions show that the McKennon firm has
filed such motions. See Harmon v. Aetna, Case No. CV 13-06880 (C.D. Cal. Oct. 14, 2014)
(attached to McKennon Decl., Dkt. 35, Exh. 1.). Counsel’s shifting and flimsy explanations
for their litigation conduct heightens the court’s concerns about overbilling.
Moreover, even after the court denied Lincoln’s motion and ordered Averbeck to show
cause why the case should not be dismissed without payment of her attorney fees, she still
didn’t submit a “complete” motion, opting instead to argue only the issue of entitlement to
Contrary to Averbeck’s assertion, Lincoln’s dismissal motion was not frivolous: someone had
to get the case resolved once the parties could not agree on Averbeck’s requested attorney’s
fees, and Lincoln likely and justifiably was concerned about fees continuing to increase the
longer the case remained open. Lincoln was not required to wait indefinitely, with the meter
running, until Averbeck’s lawyers got around to filing the motion for attorney fees that they
repeatedly said was forthcoming but never actually filed.
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fees. This led to another court order, more “analysis” by counsel, and yet more time spent on
the fee motion. It is not fair to require Lincoln to shoulder the increased costs that resulted
from Averbeck’s halting, piecemeal approach to recovering her attorney fees.
Taking all of this into consideration, the court finds that counsel could reasonably have
prepared their fee petition in 15 hours. Hours billed over that amount reflect unnecessary and
duplicative work.
4. Responding to court’s order to show cause
Averbeck’s counsel billed 55.1 hours related to this court’s September 30, 2021, order,
in which the court denied Lincoln’s motion to dismiss the case as moot and directed Averbeck
to show cause why the case should not be dismissed without payment of her attorney fees.
Dkt. 24. Lincoln objects to paying any of those fees, on the ground that the order was prompted
by Averbeck’s counsel’s failure to advance the case by filing a timely motion for attorney’s fees.
The court agrees that Averbeck’s clumsy and inefficient handling of the attorney’s fees
issue resulted in duplication of effort and increased fees. But the court overrules Lincoln’s
blanket objection to this category. Averbeck’s response to the court’s order was essentially a
partial motion for attorney fees, work that her attorneys would have done regardless of when
she filed the motion.
Even so, 55.1 hours was excessive. Averbeck’s counsel’s billing records show that by
that stage in the case, counsel had already spent significant time “strategizing” and “performing
research” regarding attorney fees, including in connection with their settlement demand. In
fact, counsel’s billing records indicate that they already had a nearly-complete motion for
attorney fees drafted, which presumably addressed the same issue of entitlement to fees that
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was the focus of the response to the order to show cause.6 In addition, counsel had previously
argued in favor of a fee award in response to the motion to dismiss.
Counsel’s billing entries are not detailed enough to show that that this prior work was
not relevant to the response to the order to show cause. Given that Averbeck’s entitlement to
attorney fees was essentially the only live issue in the case after Lincoln reinstated her benefits,
it is fair to conclude that much of the groundwork and legal research for the response to the
order to show cause had already been done before counsel began drafting it. Further, as
experienced ERISA litigators, none of these issues would have been new to counsel. Given their
documented prior work in this case concerning attorney fees and their experience handling
such motions, counsel ought to have been able to prepare their response in far less than 55
hours. The court will cut the fee request for this work by two-thirds, to 18 hours.
5. Administrative tasks
Lincoln objects to 5.3 hours of time spent on what it characterizes as non-compensable
administrative tasks, including assessing the status of service and pro hac vice motions,
scheduling dates into a calendaring system, and similar tasks. Averbeck concedes that Lincoln’s
objections are proper except for one entry: 3.5 hours billed at the rate of $120 by Alfred
Fisicaro, an “experienced word processor,” who “review[ed] and edit[ed]” the complaint. See
Dkt. 47-1, at 9, January 31, 2020 entry for “AF”; Dkt. 35, ¶ 11 (McKennon Decl.) (describing
Fisicaro’s role). (Fisicaro also billed 0.7 hours reviewing and editing Averbeck’s opposition to
the motion to dismiss.) Although it might be appropriate to charge a paying client for wordprocessing services like Fisicaro’s, the court finds that expense unreasonable and unnecessary
In fact, the motion that Averbeck ultimately submitted contains a section addressing her
entitlement to fees. Dkt. 34-1, at 8-11.
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in this case. The complaint and opposition to the motion to dismiss both were further revised
after Fisicaro worked on them. Moreover, given the massive number of hours charged by
counsel for their work in this case, Averbeck’s inclusion of Fisicaro’s fee demonstrates a lack of
reasonable billing judgment.
6. Preparing and reviewing pro hac vice applications
The court agrees with Lincoln that filing one-page pro hac vice motions are routine filings
that are non-compensable. Accord Reid v. Unilever United States, Inc., No. 12 C 6058, 2015 WL
3653318, at *10 (N.D. Ill. June 10, 2015) (noting completing one-page form document
required little effort and qualified as routine filing that was non-compensable), aff'd sub nom.
Martin v. Reid, 818 F.3d 302 (7th Cir. 2016). The court will subtract this time (3.4 hours) from
the fee request.
7. Non-litigation work
Lincoln objects to 6.2 hours spent on what Lincoln characterizes as “logistical”
administrative tasks concerning Lincoln’s reinstatement of Averbecks’s benefits. See Dkt. 41–
3, entries coded as “Reinstatement Logistical Task.” Lincoln argues that these tasks were
clerical in nature and didn’t require any attorney input. Having reviewed the objectionable
entries, the court disagrees. The tasks were the kinds of ordinary follow-up routinely performed
by counsel to ensure that their client’s rights are protected and that the other side is complying
with its obligations. Lincoln’s objection to this category of work is overruled.
Lincoln also objects to 3.3 hours that Dufault billed for planning for and then
contacting Averbeck’s treating physician, on the ground that any information provided by the
doctor would be outside the administrative record and unreviewable by the court. Averbeck’s
counsel responds that speaking with Averbeck’s treating physician was a necessary part of their
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case investigation. It is reasonable for a lawyer to communicate with her client’s treating
physician in an ERISA case involving denial of disability benefits, but the time Dufault spent
on that task here was excessive. The court finds that one hour would have been sufficient, and
that any amounts billed above that were unnecessary.
8. Reply brief
Finally, Lincoln objected in advance to the court awarding Averbeck any fees for work
on a reply to this motion, on the ground that the court had not authorized her to file one. But
Averbeck later obtained that authorization and filed a reply brief. See Dkt. 45. She seeks an
additional $20,010 in attorney fees for 39.4 hours of work; 22.4 hours by Salisbury and 17
hours by McKennon. Once again, this is on the high side and reflects duplication of effort.
Averbeck hasn’t supported her request with an itemized billing statement from her attorneys
that might show why an experienced associate and a partner both had to spend as much time
as they did on the brief. Although the court recognizes that Averbeck was entitled to respond
to Lincoln’s objections, it was not reasonable to charge another 40 hours to the case,
particularly after the court expressed its view that fees ought to be “modest.” Accordingly, the
court will reduce the time spent on the reply to 30 hours.
9. Hours calculation
The court’s reductions total 172 hours. To account for the fact that different lawyers
with different rates worked on Averbeck’s case, the court will distribute the reductions
proportionally, as proposed by defendant. See Dkt. 41–4. The court finds that approximately
41 percent of the objectionable hours were performed by Dufault, 27 percent by McKennon,
and 32 percent by Salisbury. After multiplying these percentages by the total reduction of 172
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hours and then subtracting this product from each attorney’s total hours, the court finds the
following hours to have been reasonably expended on this case:
Timekeeper
Dufault
McKennon
Salisbury
Total Billed
142.7
102.5
106.4
Percentage of
Objectionable
Hours
Reduction
Reasonable
Hours
41%
27
32
70.5
46.4
55.0
72.2
56.1
51.4
B. Rates
Next, the court must determine whether the hourly rates are reasonable. The hourly
rates plaintiff seeks include $650.00 for Attorney McKennon; $500.00 for Attorney Dufault;
and $400.00 for Attorney Salisbury. The Seventh Circuit “define[s] a reasonable hourly rate
as one that is ‘derived from the market rate for the services rendered’ [and] presume[s] that an
attorney’s actual billing rate for similar litigation is appropriate to use as the market rate.”
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (quoting Denius v. Dunlap, 330 F.3d 919,
930 (7th Cir. 2003)). “[O]nce an attorney provides evidence establishing [the] market rate,
the opposing party has the burden of demonstrating why a lower rate should be awarded.”
Gautreaux v. Chi. Hous. Auth., 491 F.3d 649, 659 (7th Cir. 2007). Averbeck bears the burden
of establishing the market rate; if she fails to carry that burden, the court can independently
determine the appropriate rate. Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014).
Averbeck’s motion is supported by declarations from her attorneys and by evidence of
fees awarded by district courts in California, where the McKennon firm is located. Dkt. 35–
37. The declarations provide sufficient evidence of the experience of the attorneys who worked
on the case and state that the requested hourly rates sought are $50–$100 lower than the actual
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rates counsel use in hourly fee arrangements. Id. at ¶33. The best evidence “of an attorney's
market rate is his or her actual billing rate for similar work.” Johnson v. GDF, Inc., 668 F.3d
927, 933 (7th Cir. 2012) (citing Pickett, 664 F.3d at 639–40). Averbeck also submitted a
declaration from Attorney Glenn Kantor showing that the requested rates are in line with what
other practitioners normally charge for similar services in California. Dkt. 38. Averbeck’s
evidence is sufficient to establish that the rates sought by her attorneys in this case are the rates
they command in the California market from paying clients for similar work.
Defendant argues that the rates in California are higher than in Wisconsin, and it asks
the court to exercise its discretion and allow only an hourly rate that a Wisconsin attorney
would have charged for the same service. The court shouldn’t reduce the hourly rate of an outof-town attorney just because it is higher than the rate of a local attorney. Mathur v. Bd. of
Trustees of Southern Ill. University, 317 F.3d 738, 743-44 (7th Cir. 2003); Gusman v. Unisys Corp.,
986 F.2d 1146, 1151 (7th Cir. 1993). But it can make such a reduction if there are local
attorneys who perform the same work just as well at lower rates. Chrapliwy v. Uniroyal Inc., 670
F.2d 760, 768 (7th Cir. 1982). See also Mathur, 317 F.3d at 744 (where “there is reason to
believe that services of equal quality were readily available at a lower charge or rate in the area
where the services were rendered,” then the judge may modify the out-of-town attorney's rate).
As defendant points out, there are numerous Wisconsin-based attorneys who competently
litigate ERISA benefits cases, including plaintiff’s local counsel, Hawks Quindel, which has
handled 63 such cases in the past five years. Ng Dec., Dkt. 43, ¶¶22–24; see also cases cited at
Dkt. 41, at 25–26.
Averbeck hasn’t shown that experienced ERISA attorneys in Wisconsin were
unavailable to handle her case. Instead, she responds that her attorneys already reduced their
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rates to account for the difference between the California and Wisconsin local markets. But
Averbeck has not offered any evidence that even the reduced rates sought by her attorneys are
consistent with market rates in Wisconsin, even though she has local counsel who could easily
have provided that evidence. Averbeck points out that her attorneys have been awarded even
higher rates in some cases, but again, those were in California. Simply because the rates sought
in this case are on the low end of the rates awarded in California does not show that those rates
are in line with the rates charged by Wisconsin attorneys who handle ERISA disability cases.
Courts in this district have found that hourly rates ranging from around $300 for
associates to $450 for shareholders are reasonable market rates for litigating ERISA benefit
cases in Wisconsin. Alberth v. S. Lakes Plumbing & Heating, Inc., No. 19-CV-62, 2021 WL
2779038, at *5 (E.D. Wis. July 2, 2021) (finding hourly rate of $450 for attorney with 32
years of experience was reasonable and in line with those prevailing in the community); Laux
v. Am. Axle & Mfg. Inc., No. 20-C-270, 2021 WL 1311430, at *2 (E.D. Wis. Apr. 8, 2021)
(approving $400 for shareholder Danielle M. Schroder and $300 for fifth-year associate
Attorney Jessa L. Victor); Mowery v. Metro. Life Ins. Co., No. 16-CV-516-JDP, 2017 WL
3575857, at *2 (W.D. Wis. Aug. 18, 2017) (approving market rates of $280 per hour and
$450 per hour for attorneys with nine and 25 years of experience, respectively). Averbeck has
not presented any evidence showing that ERISA attorneys in Wisconsin command higher rates.
Accordingly, the court finds that the following hourly rates are reasonable in this case: $450
for McKennon; $400 for Dufault; and $300 for Salisbury.
C. Lodestar calculation
Multiplying these rates by the reasonable hours above, the court calculates the lodestar
as follows:
16
Timekeeper
Hours
Dufault
McKennon
Salisbury
72.2
56.1
51.4
Hourly Rate
$400
450
300
Fee
$28,880
25,245
15,420
Total: $69,725
Although the court has discretion to reduce the lodestar based a variety of factors,
including the time and labor required, awards in similar cases, and the amount involved and
the results obtained, see Hensley, 461 U.S. at 434 & n.3, the court declines to do so because the
reduction of hours adequately addresses these factors. So the court will award Averbeck
$69,725 in attorney fees.
D. Costs
Averbeck seeks $2,984.65 in costs, $1,840 of which are outside professional fees
charged to the McKennon firm by local counsel. Dkt. 35-5. But Averbeck hasn’t supported this
request with billing statements or records accounting for the hours expended or the work
performed by local counsel. The party seeking an award of fees must submit evidence
supporting the hours worked and rates claimed. Hensley, 461 U.S. at 433. Absent supporting
documentation, the court denies this request.
The court will cut the $944.65 in online legal research fees, too, even though defendant
does not object to this amount. Costs for online legal research are recoverable only as part of
an award of attorney fees, not as costs. See Haroco, Inc. v. Am. Nat'l Bank & Tr. Co., 38 F.3d
1429, 1440–41 (7th Cir. 1994). But the court will not include this amount as part of the
attorney fee award because there is nothing in the record showing that Averbeck’s counsel
consistently charged this expense to Averbeck. See Mowery v. Metro. Life Ins. Co., No. 16-CV-
17
516-JDP, 2017 WL 3575857, at *2 (W.D. Wis. Aug. 18, 2017) (declining to shift fees for legal
research to defendant absent evidence that plaintiff was being billed regularly for legal research
fees, noting that many firms include costs of legal research as part of overhead, which is
reflected in hourly rate).
ORDER
IT IS ORDERED that:
1. Plaintiff Tamara Averbeck’s motion for attorney fees and costs, Dkt. 34, is
GRANTED in part and DENIED in part, as explained above.
2. Plaintiff is awarded attorney fees in the total amount of $69,725. No costs
shall be awarded.
3. The clerk is directed to enter judgment to reflect the award of attorney fees.
Entered September 28, 2023.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
18
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