Torgeson v. Unum Life Insur.Co. of America, 2007 U.S.Dist.LEXIS 9332 (N.D.Iowa 2/5/2007)(Issue: Attorneys’ Fees).  This ruling was issued in one of our cases, following the entry of judgment in Jean Torgeson’s favor, finding her disabled due to fibromyalgia.  In this decision, Judge Mark Bennett awarded fees pursuant to 29 U.S.C. §1132(g).  The court first reiterated its finding in the decision on the merits that the plaintiff was entitled to fees based on ERISA’s remedial nature; and the specific finding from the earlier decision was repeated:   

[T]he court finds that Unum's conduct was not merely an abuse of discretion, but suggested culpable or bad faith consideration of Torgeson's claim; Unum is clearly able to pay attorney fees; an award of attorney fees will have a future deterrent effect on cavalier treatment of disability claims based on conditions defined primarily by subjective symptoms and cavalier disregard of treating physicians' opinions; and Torgeson clearly had the more meritorious position. Id. (citing these factors as part of a non-exclusive list). The precise amount of any such award, however, must be determined in a subsequent order, after the parties have made the appropriate submissions required under applicable local rules for  fee claims. 

The court then turned to the amount of the fee and, except for excluding some hours that were related to the pre-suit appeal, but awarding some prelitigation hours spent in preparing to file suit, the court awarded all of the monies sought by the plaintiff.  The court applied the “lodestar” formulation, multiplying the number of hours reasonably expended by a reasonable hourly fee.  Although the defendant challenged both the hours and the documentation as to the time spent, the court found that the fee application was in order and “quite detailed and sufficient to present the court with a fair indication of the nature of the tasks involved and the necessity of those tasks to the prosecution of the lawsuit.” *13.  The court also rejected the insurer’s argument that certain tasks were clerical and should be excluded finding that those tasks were delegated to a law clerk and billed at a lower rate.  Of greatest significance, though, was the court’s acceptance of the claimed hourly rate of $425.00/hour.  Although that rate was higher than the community rate within the district, citing Planned Parenthood, Sioux Falls Clinic v. Miller, 70 F.3d 517 (8th Cir. 1995), where a Chicago attorney’s rate was approved in a civil rights action, the court found this case “virtually identical” and found the hourly rate well supported by the affidavits submitted in support of the fee application which demonstrated a nationwide practice and a “highly specialized knowledge of ERISA law.”  The court also rationalized that experienced counsel “was able to handle the case in a shorter length of time than a local lawyer without comparable experience would have required.”  Finally, the court acknowledged that ERISA cases “involve a national standard.”