Gross v. Sun Life Assurance Co. of Can.
Gross v. Sun Life Assurance Co. of Can.
Opinion of the Court
ZOBEL, S.D.J.
*243All that remains of this protracted benefits litigation is Plaintiff's Motion for Interest, Attorneys' Fees and Costs (Docket # 143). Assuming familiarity with the facts, I address each issue below.
A. Prejudgment Interest
On remand, the Court of Appeals has instructed consideration of dual objectives in awarding prejudgment interest: first, to make the plan participant whole, and second, to prevent unjust enrichment. See Gross v. Sun Life Assur. Co. of Canada,
Balancing the equities requires a more generous rate than the federal rate I previously applied. See Cottrill v. Sparrow, Johnson & Ursillo, Inc.,
The cost of making plaintiff whole is not entirely clear. Although consideration of market-rate borrowing costs is certainly appropriate, plaintiff has not substantiated her claim of 12-14% borrowing rates. The federal prime rate, "which better reflects the value of the unpaid money over time,"
The record is better established, if still incomplete, on the second relevant consideration: preventing unjust enrichment. Plaintiff has submitted financial reports showing defendant's return on equity, but omits that information for 2009-2011. See Docket # 144-4 (citing 9.5% ROE in 2012, 18.9% in 2013, 12.2% in 2014, 12.6% in 2015, 12.4% in 2016, and 12.8% through 2017's third quarter). Although punitively high rates must be avoided, the Court of Appeals has clearly instructed that "[a]warding interest at a rate that does not *244recapture the lost value of the money during the period it was withheld would create a perverse incentive for a defendant to delay payments while it earned interest on those funds." Gross,
Given ERISA's silence on prejudgment interest rates, the Court of Appeals has endorsed judicial use of "outside sources, including state law, for guidance."
Here, by aligning with defendant's uncontested earnings,
B. Attorney Grabhorn's Post-Remand Fees
The Court of Appeals recognized plaintiff's eligibility for post-remand fees, Gross,
The lodestar approach "is the method of choice for calculating fee awards." Matalon v. Hynnes,
As to rate, that defendant agreed to a $125 per hour increase on Feigenbaum's request for reimbursement has no bearing on Grabhorn's entitlement to the same increase for nearly ten times as many hours. For the reasons upheld by the Court of Appeals, Gross,
*245As to number of hours, it is not unreasonable that defendant's hours in the five years since the 2013 remand would approach the time he spent in the four years preceding it. Although the issues have recently narrowed significantly, the period in question nonetheless included another claim and review process followed by another lengthy appeal on an expanded record. Because plaintiff prevailed both before this court and the First Circuit, the time need not be reduced to reflect mixed results. Cf. De Jesus Nazario v. Morris Rodriguez,
Several other categories warrant reduction not because they are excessive, but because it would be inequitable to fully compensate Grabhorn for work the Court of Appeals has deemed "worthy of reproach." Gross,
*246Andrew Grabhorn's rate is uncontested, and his time is reasonable but for a 25% reduction on the 10.9 hours for his work on the appellate brief as above. Defendant shall therefore pay his fees of $7,020 (28.08 hours
C. Costs
Plaintiff was awarded, and has since received, $703.72 in costs for her most recent appeal. She now requests an additional $248.97 in post-remand postage and copy/print costs. Although the copies are described as "pleadings for review, as well as correspondence," Docket # 144-2, at 2, the record permits no closer scrutiny. Even assuming a rate of $0.10 per page, this request represents well over 2,000 copied pages. Given the very few remaining issues at this stage, a one-half reduction in plaintiff's requested amount is reasonable.
D. Summary and Conclusion
Consistent with the summary chart below, plaintiff's motion is allowed in part, and denied in part:
Interest Fees Fees Costs (M. Grabhorn) (A. Grabhorn) 12% $106,931.25 $7,020 $124.49
Following the entry of judgment, postjudgment interest will accrue at the federal rate.
Annual Federal Reserve data for "average majority prime rate charged by banks on short-term loans to business, quoted on an investment basis," available at https://www.federalreserve.gov/datadownload/Build.aspx?rel=H15.
To the extent such a rate appears to constitute a windfall for plaintiff, a Kentucky resident, it bears noting that her home state's statutory rate was also 12% until 2017, when it was cut to 6%. Ky. Stat. § 360.040 (as amended June 29, 2017).
Defendant nowhere refutes the return rate figures offered by plaintiff, but merely argues that its earnings are irrelevant to the rate determination. Docket # 146. This position is without support. See, e.g., Gross,
This number represents the sum of Grabhorn's hours from 11/13/14 through 2/27/15, less any time billed for client communication, which I have not included in the time to be reduced.
Full request 322.8 - (6 for brief never filed) - (.25 * 28.4 remand hours) - (.25 * 19 summary judgment brief) - (.25 * 76.1 appellate brief) 322.8 - (6 + 7.1 + 4.75 + 19) 322 - 36.85 ______________________________________________________________________________________________________________ 285.15
Full request 30.8 hours - (.25 * 10.9) 30.8 - 2.725 _________________________________________________________ 28.075
Reference
- Full Case Name
- Diahann L. GROSS v. SUN LIFE ASSURANCE COMPANY OF CANADA
- Status
- Published