ERISA Attorney Fees

In a long term disability case 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)(1). If the long term disability insurer’s position was not substantially justified and not taken in good faith, attorney fees may be awarded.  In order to determine a reasonable fee, the district court must make assessment based on a calculation of the “lodestar”: the hours reasonably expended multiplied by the reasonable hourly rate. Pickett v. Sheridan Health Care, 664 F.3d 632 (7th Cir. 2011).  Occasionally, the lodestar may be adjusted.  Hensley v. Eckerhart, 461 U.S. 424 (1983).

A reasonable billing rate examines both the attorney’s rates as well as the prevailing rate and/or market rate.   Blum v. Stenson, 465 U.S. 886 (1984).  The market rate is essentially the rate normally charged in the community.    “The best evidence of the value of the lawyer’s services is what the client agreed to pay him.” Assess. Tech. of WI, LLC v. WIREdata, Inc., 361 F.3d 434, 438 (7th Cir. 2004).  Therefore, the attorney’s actual billing rate paid by his client is “presumptively appropriate” to use as the market rate. People Who Care v. Rockford Bd. of Edu., 90 F.3d 1307, 1311 (7th Cir. 1996).  In addition, evidence of the rates charged by other attorneys in the community for similar work is appropriate evidence of the reasonable market rate.  Obviously, prior attorney fee awards is also appropriate.

The attorney should submit proof by Affidavit.  In addition, rates can be established by presenting evidence of what other local attorneys charge for the same type of work.  The defendant can challenge the hourly rate by producing evidence and/or a good reason explaining why a lower rate is appropriate.  The Court ultimately determines what is reasonable; though the lodestar amount is presumed reasonable.  City of Burlington v. Dague, 505 U.S. 557 (1992).


About tngainjurylawyer
Serious Injury Lawyer in Tennessee and Georgia.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: