West v. Ak Steel Corp. Ret. Accumulation Pension, Case No. 1:02-cv-001.
| Decision Date | 31 August 2009 |
| Docket Number | Case No. 1:02-cv-001. |
| Citation | 657 F.Supp.2d 914 |
| Parties | John D. WEST, on Behalf of Himself and All Other Persons Similarly Situated, Plaintiffs, v. AK STEEL CORPORATION RETIREMENT ACCUMULATION PENSION PLAN, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
John D. West, pro se.
Christopher M. Denig, Covington and Burling, Robert D. Wick, Washington, DC, George Edward Yund, Frost Brown & Todd, Cincinnati, OH, for Defendants.
Before the Court is Plaintiffs' motion for an award of attorney's fees as prevailing parties under ERISA. (Docs. 131 and 177) Plaintiffs have filed a separate motion seeking a common fund fee award and an incentive award to the class representative John West. (Docs. 132 and 178) Defendants have filed separate responses to each motion (Docs. 283 and 285, respectively), and Plaintiffs have filed their replies. (Doc. 288 and 289) The briefs and exhibits for these motions span more than 1,000 pages.
The facts of this case are well known to the parties and the Court, and will be discussed as needed in conjunction with the issues raised in the fee motions.
The Court has discretion to award fees under ERISA, 29 U.S.C. § 1132(g)(1). In exercising that discretion, the Court considers the following factors: (1) the culpability or bad faith of the opposing party; (2) the opposing party's financial ability to satisfy an award; (3) the deterrent effect on others in similar circumstances; (4) whether the party seeking fees conferred a benefit on all Plan participants or resolved a common legal question; and (5) the relative merits of the party's positions. See Armistead v. Vernitron Corp., 944 F.2d 1287, 1301 (6th Cir.1991).
Plaintiffs clearly prevailed in this case and obtained a substantial judgment against Defendants. Defendants were found to have violated ERISA in determining the amounts of the class members' lump-sum payments. The Court need not find bad faith to conclude that this factor weighs in Plaintiffs' favor. Defendants are able to satisfy an award, although they suggest that the current economic climate is precarious for American steelmakers, and that market reverses have negatively affected the Plan.
Plaintiffs argue that a fee award would have a salutary deterrent effect on other pension plans, and encourage compliance with ERISA. This factor is certainly entitled to some weight. While the precise issue posed by this case (a whipsaw calculation for lump-sum distributions from cash balance plans) will likely not arise again after the effective date of the Pension Protection Act, the fact that Plaintiffs have prevailed in this lengthy litigation certainly has a salutary effect. Moreover, the judgment has a preclusive effect in the follow-on litigation, involving claims by employees who received lump sum payments after the close of the class period in this case.1 Regarding the fourth factor, there is no doubt that Plaintiffs have conferred a benefit shared by all class members who previously received a lump-sum distribution from the Plan. Plaintiffs prevailed at every step of this case, and have secured a sizeable judgment. Clearly, all of the applicable factors support an award of attorney's fees.
In ERISA cases, as with other fee-shifting statutes, the Court must first calculate the lodestar, the reasonable hours expended on the case times the reasonable hourly rates for Plaintiffs' attorneys. Plaintiffs have submitted detailed time records for their attorneys' time. For the period from case inception to January 2006, they report the following:
Plaintiffs submit the following request for the second period, from January 2006 through the early April 2009:
Total Less Net Billed
Hours Conferencing Hours Amount
Allen C. Engerman 353.00 (5.90) 347.10 $ 260,325.00
@$750.00
Robert D. Gary 166.20 (4.54) 161.66 $ 92,954.50
@$575.00
Jori Bloom Naegele 142.80 (3.81) 138.99 $ 69,495.00
@$500.00
Thomas R. Theado 962.50 (11.35) 951.15 $ 475,575.00
@$500.00
Thomas A. Downie 871.25 (7.62) 863.63 $ 345,452.00
@$400.00
Richard M. McKee 238.15 (0.53) 237.62 $ 71,286.00
@$300.00
Jeffrey A. Engerman 232.90 (3.32) 229.58 $ 103,311.00
@$450.00
Richard A. Naegele 216.40 (1.18) 215.22 $ 69,946.50
@$325.00
Paralegal
Mark A. Long 132.95 (0.20) 132.75 $ 11,283.75
@$85.00
SubTotal: $1,499,628.75
Class Counsel's total requested lodestar fee is therefore $1,888,362.50.
The column entitled "Less Conferencing" represents Plaintiffs' voluntary proposed reduction in each attorney's "conference" hours. This reduction is based upon the assumptions utilized by this Court in its order in Dalesandro v. International Paper,2 reducing excessive conferencing hours among several attorneys.
Defendants object to both the amount of time spent and to the requested hourly rates.
"The [fee] applicant should exercise `billing judgment' with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In determining the reasonableness of hours spent, the Court should not engage in a post hoc critique of strategic decisions that Class Counsel may have made in good faith during the course of the case. See, e.g., Goos v. National Ass'n of Realtors, 68 F.3d 1380, 1386 (D.C.Cir.1995), noting that "litigation is not an exact science," and the determinative issue is whether the task was reasonable in view of the ultimate goal of the case.
Utilizing an XLS format intended to avoid double-counting time entries, Defendants sorted and coded Plaintiffs' requested time under several categories to which it objects, such as "non-germane activities," "vague or inadequate time descriptions," or "excessive meeting/conferencing." (See Doc. 283, Exhibit C, Foster Declaration and attachments.) The Court has reviewed these lengthy exhibits and will not attempt to make individual rulings on each and every listed entry. Instead, the Court has reviewed the Plaintiffs' requested time in view of Defendants' objections.
1. Time Entries from 10/26/01 through 01/16/2006:
The Court disallows the following entries from the Gary, Naegele & Theado attorneys, because they reflect excessive or unnecessary attorney time, or are not reasonably related to the litigation.
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...billed rates for these years do provide the Court with some evidence as to reasonableness. See West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F.Supp.2d 914, 932 (S.D.Ohio 2009) (“an attorney's customary billing rate is one reliable indicia of that attorney's prevailing market ra......
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