defendants who, after being served with summons on November 23, 1993, removed the Amended Complaint to federal court on December 3, 1993.
Once in federal district court, the defendants filed a summary judgment motion on the grounds that the Rosses failed to exhaust administrative remedies. Upon denying the defendants' motion for summary judgment on March 15, 1995, I remanded the claim to be newly determined. The defendants denied the claim. On August 24, 1995, the Rosses moved to strike the denial and I granted the motion, concluding that the defendants did not comply with the pertinent ERISA regulations requiring a full and fair review of the claim, which, in turn, requires that the plaintiffs have an opportunity to submit the issues and comments in writing and to examine the pertinent documents. The defendants admitted that the plaintiffs were not given that opportunity.
The defendants argued that their affirmative defenses gave notice to the plaintiffs as to the potential reasons for the denials. However, the defendants neither explained how the pleadings and discovery fulfilled ERISA's procedural requirements nor offered any supporting authority. I again remanded the claim, instructing the defendants to conduct a full and fair review. (See 12/20/95 Minute Order.)
I conclude that plaintiffs are entitled to their attorney's fees due to defendants' repeated attempts to frustrate their rights under ERISA. See also Halpin v. W. W. Grainger, Inc., 962 F.2d 685, 697 (7th Cir. 1992) (policy considerations favor fiduciary's determination of claims); Bittner v. Sadoff & Rudoy Ind., 728 F.2d 820, 828 (7th Cir. 1984) (one factor relevant to award of attorney's fees under ERISA is deterrence of undesirable conduct).
Plaintiffs seek an award of $ 211,800.00 in attorneys' fees as well as $ 1,650.00 in costs. Although defendants do not question the amount of costs, they argue that the fees sought are excessive. Plaintiffs arrived at their dollar figure by multiplying the hours said to have been spent by counsel, Raymond P. Concannon, 353 times an hourly fee of $ 300.00, to arrive at a "lodestar" of $ 105,900.00, which they have multiplied by two. I agree that the hourly fee of $ 300.00 is excessive. Mr. Concannon's hourly figure is supported by the affidavit of another attorney who says it is reasonable. Nevertheless, Mr. Concannon's experience has mostly been in contingent cases, few if any of which appear to have been in the ERISA area. Comparable cases indicate that other attorneys have not been awarded fees in this range. I conclude that $ 175.00 an hour is fair compensation.
Defendants also note that some of the time allegedly spent by Mr. Concannon was for court appearances in which he was not present. The same is true of time charged for research that is not described in specific terms. Neither has plaintiff attempted to refute defendants' argument that from one half hour to an hour is excessive for routine one or two paragraph letters. While I do not necessarily think that all of the time about which defendants complain should be held noncompensable, it is plaintiff's burden to show the reasonableness of fees sought as well as the accuracy of his time records. Plaintiff's failure to even respond to defendants' argument justifies some reduction in hours. I conclude that the amount of time should be reduced by 50 hours. I note, however, that any attorney would have been required to spend a considerable amount of time on this case due to defendants' lengthy attempt to avoid payment of the bills through various legal maneuvers. The time allowed by this opinion, 250 hours, is within a reasonable range under the circumstances. Accordingly, I conclude that plaintiff is entitled to attorney's fees in the amount of $ 43,750.00, plus costs in the amount of $ 1,650.00.
Plaintiff's request for a multiplier in addition to this amount is denied.
For the reasons stated above, the Rosses' motion for attorney's fees is granted, in part, and denied, in part. The defendant shall pay attorney's fees in the amount of $ 43,750.00 and costs in the amount of $ 1,650.00.
Elaine E. Bucklo
United States District Judge
Dated: September 16, 1997