This month’s Friday Five covers cases relating to petitions for attorneys’ fees, unpersuasive self-reported evidence of disability, and a dilatory attempt to augment the administrative record.

1. Western District of Wisconsin Slashes “Eye-Popping” Petition for Attorneys’ Fees. When an insurer settled a long-term disability (“LTD”) lawsuit against it four months after the litigation commenced, the court authorized the plaintiff to submit a “relatively modest” request for attorneys’ fees. Instead, the fee petition was “eye-popping,” requesting $180,774 for approximately 350 hours of work. Not only did the court reduce the attorneys’ California rates to be more in line with Wisconsin rates, the venue where the case was filed, but the court also reduced the number of hours from approximately 350 to 172. The court explained that it was not reasonable for “experienced ERISA litigators” like plaintiff’s counsel to spend as much time as they claimed on a case that was “not overly complicated.” Counsel provided “shifting and flimsy explanations for their litigation conduct,” which “heighten[ed] the court’s concerns about overbilling.” Indeed, the court expressed that it was “left with the sense that counsel intentionally dragged their feet to prolong the case and drive up their fees.” In the end, the court awarded the plaintiff $69,725 in legal fees—just about a third of the amount sought in her petition. Averbeck v. Lincoln Nat'l Life Ins. Co., No. 20-CV-420-JDP, 2023 WL 6307414 (W.D. Wis. Sept. 28, 2023)
2. Western District of Wisconsin Again Reduces Attorneys’ Fees—This Time Where Plaintiff’s Success was Based on “Sleeper Issue.” The district court initially ruled against the plaintiff on his LTD claim, and the plaintiff appealed to the Seventh Circuit. On appeal, the plaintiff successfully “expanded upon” a regulatory argument (that had been previously relegated to a footnote before the district court), resulting in the Seventh Circuit ruling in the plaintiff’s favor. The insurer elected to settle the case and Plaintiff sought $69,907.50 in attorneys’ fees. While the district court agreed that the plaintiff was entitled to attorneys’ fees, it reduced the lodestar by 40 percent. The court’s basis for the reduction was that the plaintiff’s success in the Seventh Circuit was premised on a legal theory that was not presented to the district court and was “a sleeper issue until he got to the court of appeals.” Thus, the court determined that the plaintiff’s success was “partial,” and exercised its discretion to reduce the lodestar. Zall v. Standard Ins. Co., No. 21-CV-19-SLC, 2023 WL 6388781 (W.D. Wis. Sept. 29, 2023)
3. District of New Jersey Awards Attorneys’ Fees Despite “Particularly Adversarial” Plaintiff’s Counsel. Following an order granting the plaintiff’s motion for summary judgment, finding that the insurer acted capriciously and arbitrarily, and awarding plaintiff $188,000 under her deceased husband’s group life insurance policy, the plaintiff sought $129,079.88 in attorneys’ fees and costs. The court noted the “particularly adversarial” nature of the litigation. By way of example, the court referenced the parties’ denial of routine extensions on timing and exchange of sarcastic e-mails, including a “shocking,” “offensive,” and “expletive laden” e-mail from plaintiff’s counsel that was apparently meant to be an internal communication, but was accidentally sent as a “reply all.” Among the insurer’s arguments for opposing the award of fees and costs was the implication that plaintiff could not meet the standard for attorneys’ fees due to her counsel’s dubious conduct. The court reasoned that there was “some merit” to the insurer’s argument, but found it “difficult to deprive a widow of such an award when [her counsel] acted in an unprofessional manner” and awarded plaintiff nearly the full amount of fees and costs sought. Rizzo v. First Reliance Standard Life Ins. Co., No. 3:17-CV-745-PGS-DEA, 2023 WL 6923494 (D.N.J. Oct. 18, 2023)
4. Eastern District of Pennsylvania Unpersuaded by “Self-Reports” of Disability. Plaintiff—a registered nurse—sought LTD benefits after she stopped working due to focal epilepsy, among other medical conditions. The insurer approved plaintiff’s claim for Regular Occupation LTD benefits. Once the Regular Occupation period ended, the insurer conducted a review into whether plaintiff was disabled under the Any Occupation standard, ultimately concluding she did not meet the standard because she was capable of sedentary work. Her appeal was denied and plaintiff filed her lawsuit. The court found plaintiff’s evidence of disability, which included “conclusory repetitions of Plaintiff’s self-reported complaints” of seizures and a physician’s report based on those self-reports with “no objective evidence,” to be uncompelling. Moreover, both plaintiff’s physician and the insurer’s physician requested additional testing from plaintiff, but those tests were never performed.” As a result, the court granted the insurer’s motion for summary judgment and denied the plaintiff’s cross-motion for the same. Breen v. Reliance Standard Life Ins. Co., No. CV 22-3688, 2023 WL 6396051 (E.D. Pa. Oct. 2, 2023)
5. Central District of California Finds Plaintiff Missed Chance to Augment Administrative Record. After the insurer made it known to the plaintiff on four separate occasions that objective evidence was necessary to perfect her claim for LTD benefits, the plaintiff still failed to submit documentation adequate to substantiate her disability claim for post-concussive syndrome. She later sought to augment the administrative record with a psychologist’s cognitive functional assessment, asserting that the insurer never communicated to her that “neuropsych” testing was required. However, the court found that, in light of the insurer’s repeated requests for objective evidence of cognitive deficiencies, the record supported adequate communication by the insurer. The plaintiff’s motion to augment the administration record was denied outright. Stringer v. Guardian Life Ins. Co. of Am., No. 223CV00237SPGAFM, 2023 WL 6852026 (C.D. Cal. Sept. 18, 2023)