A recent Law.com and FC&S Legal story by Steven Meyerowitz, “After Deducting 10 Percent for Block Billing, Texas Court Awards Plaintiff in ERISA Case $243,000 in Attorney’s Fees” reports that a federal district court in Texas has awarded over $243,000 in attorney’s fees to a plaintiff in a case under the Employee Retirement Income Security Act of 1974 (“ERISA”) who had achieved “some success on the merits” – but it deducted 10 percent of the requested amount because the plaintiff’s attorney had used block billing.

Joel Thomason sued Metropolitan Life Insurance Company and Verizon Employee Committee (together, “MetLife”) over whether Mr. Thomason had elected to receive pension benefits when he used direct rollover to move his benefits to his IRA. The U.S. District Court for the Northern District of Texas granted summary judgment on Mr. Thomason’s claims under 29 U.S.C. §§ 1132(a)(1)(B) and (a)(3), finding that the plan administrator had incorrectly interpreted the meaning of “elected to receive” pension benefits.  The district court, however, denied summary judgment on Mr. Thomason’s § 1132(c) claim, finding insufficient evidence that he had been prejudiced by a delay in receiving the pension-plan document and trust agreement from MetLife.

Having found MetLife liable, the district court entered final judgment in favor of Mr. Thomason; the U.S. Court of Appeals for the Fifth Circuit affirmed.  Following the appeal, Mr. Thomason filed a renewed motion for attorney’s fees, contending that he had incurred $270,320.93 in reasonable attorney’s fees, which included $3,613.43 in charges for online legal research.

According to Mr. Thomason, his attorney reasonably had expended a total of 699.9 hours on his behalf: 530.1 hours from the time he began preparing the original complaint on January 10, 2014 to June 30, 2016, and 149.8 hours from July 1, 2016 to August 1, 2017, when he filed his motion for attorney’s fees.  Mr. Thomason added that his attorney likely would spend an additional 20 hours to review and draft a reply to MetLife’s response to the renewed motion for attorney’s fees.  Moreover, he pointed out that, on July 1, 2016, Mr. Thomason’s attorney’s billable rate increased from $375 to $400 an hour.

Mr. Thomason also argued that his attorney was entitled to a delay enhancement of $9,204.63 due to the year delay from MetLife’s appeal and was entitled to conditional attorney’s fees if MetLife sought review from the Supreme Court.  MetLife contended that Mr. Thomason was not entitled to a delay enhancement for the brief period of the appeal.  MetLife also contended that Mr. Thomason’s attorney’s fees should be reduced for block billing, time spent on “unnecessary” motions to compel, and time spent on the renewed request for attorney’s fees.

The district court first found that Mr.Thomason was entitled to attorney’s fees because he had achieved “some success on the merits” in his suit against MetLife.  It then rejected MetLife’s contention that Mr. Thomason should not receive attorney’s fees for two motions to compel because he later was granted summary judgment without the benefit of using the requested discovery and his success without the use of that discovery showed the motions to compel were unnecessary.  The district court noted that Mr. Thomason had filed the two motions to compel over three months before filing his motion for summary judgment. 

According to the district court, he could not have known at the time of filing the motions to compel that the district court would grant his motion for summary judgment or that the case would not go to trial.  Under the circumstances, it ruled, Mr. Thomason’s attorney “reasonably expended time drafting the motions to compel, believing they could produce documents that would help him if the case went to trial.”  Therefore, the district court ruled that it would not deduct the time spent on the motions to compel.

The district court also was not persuaded by MetLife’s argument that Mr. Thomason should not receive attorney’s fees for the renewed motion for attorney’s fees because portions of the renewed motion were identical to his original motion for attorney’s fees.  The district court found that Mr. Thomason’s renewed motion included “additional arguments not in the original motion” for attorney’s fees and included an appendix with more hours billed due to the appeal.  The district court found that the additional hours spent on the renewed motion for attorney’s fees were “reasonable” and ruled that it would not reduce these hours.

Having concluded that Mr. Thomason was entitled to attorney’s fees, the district court then applied the lodestar method to determine the reasonableness of the attorney’s fees requested.  The district court pointed out that Mr. Thomason’s attorney used block billing, listing multiple tasks performed in one specified time period.  For example, it said, Mr. Thomason’s attorney stated that he spent seven hours one day reviewing a motion to approve supercedeas bond and stay execution, preparing a response to MetLife’s motion to extend time to appeal, researching, editing a draft of Mr. Thomason’s declaration, and corresponding with his client.  From this block entry, the district court said, it could not determine how much time was spent reading and drafting emails to Mr. Thomason versus researching the motions to extend time or whether such amount of time was reasonable.

Because it was impossible to determine how much time was spent on each task due to the block billing time-keeping method, the district court ruled that a 10 percent deduction was appropriate.  Thus, it reduced the 530.1 hours expended from January 10, 2014 to June 30, 2016 to 477.09 hours, the 149.8 hours expended from July 1, 2016 to August 1, 2017 to 134.82 hours, and the additional 20 hours likely spent on reviewing and replying to MetLife’s response to 18 hours.

(The district court declined Mr. Thomason’s request for conditional attorney’s fees if MetLife seeks review by the Supreme Court. It also found a delay enhancer inappropriate given what it characterized as the “relatively short period of time” – 14 months – the appeal delayed the attorney’s fee award.)

The district court decided that the $375 and $400 per hour rates were reasonable within the Dallas legal market during the relevant time periods.  Accordingly, the district court calculated the lodestar as follows:

• January 10, 2014 to June 30, 2016: 477.09 hours x $375 = $178,908.75

• July 1, 2016 to August 1, 2017: 134.82 hours x $400 = $53,928.00

• Hours replying to MetLife’s response: 18 hours x $400 = $7,200.00

• Online legal research charges: $3,613.43 (which the district court concluded were reasonable)

Total: $243,650.18.

The case is Thomason v. Metropolitan Life Ins. Co., No. 3:14-CV-86-K (N.D. Tex. March 5, 2018). Attorneys involved include: For Joel Thomason, Plaintiff: James L Johnson, LEAD ATTORNEY, The Johnson Law Firm, Dallas, TX. For Metropolitan Life Insurance Company, Verizon Employee Benefits Committee, Defendants: Linda G Moore, LEAD ATTORNEY, Terah Jean Moxley, Estes Thorne & Carr PLLC, Dallas, TX; Lauren Marie Leider, Estes Okon Thorne & Carr PLLC, Dallas, TX.