UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CATHERINE A. BLACK §

§

V. § CAUSE NO. 3:22-cv-2116-X

§

UNUM LIFE INSURANCE COMPANY §

OF AMERICA §

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

COMES NOW Catherine A. Black, [hereinafter “Black”], Plaintiff

herein, and would respectfully show the Court the following:

A. Introduction.

The Court found that Unum failed to provide a full and fair

review of Black’s disability claim by failing to consult with a

qualified medical professional. The Court remanded Black’s claim

to Unum and ordered it to conduct a full and fair review consistent

with ERISA’s statutory and regulatory requirements as explained in

the order. 

Black now moves for an award of attorney’s fees of $126,360

and $402 in court costs. Such an award is authorized under 29

U.S.C. § 1132(g)(1).

As explained in the accompanying brief, an award of attorney’s

fees is governed by the “some success on the merits” standard. The

relevant history of this lawsuit is summarized below, as well as

the facts concerning Black’s attorney’s fees and costs. 

Black’s supporting evidence is contained in a separate

appendix, cited herein in the form “Apx. ##.”

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B. Black’s Pleadings.

In her original complaint, Black pleaded that her claim is

governed by the Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1001, et seq. (“ERISA”). [ECF Doc. 1 at 6 ¶ 9.] Although

not required by the pleading rules, Black expressly laid out some

of the legal bases for her claims, as discussed below. Black also

pleaded the relief she was requesting, including declaratory relief

and reasonable attorney’s fees, as discussed below. 

1. Requirements of ERISA statute and regulations.

Black pleaded:

Unum violated 29 U.S.C. § 1133(2) by failing to provide

Black with a “full and fair review.” Under the ERISA

regulations, Unum was required to use reasonable claim

procedures, and to consult with a qualified physician

before denying Black’s appeal. Instead, Unum relied on

an employee in its appeals unit who was merely a

registered nurse.

[ECF Doc. 1 at 6 ¶ 10.] 

For a “full and fair review,” Black pleaded that the ERISA

regulations express certain requirements:

One of those requirements is that the plan must:

(iii) Provide that, in deciding an appeal of any

adverse benefit determination that is based in

whole or in part on a medical judgment, . . . the

appropriate named fiduciary shall consult with a

health care professional who has appropriate

training and experience in the field of medicine

involved in the medical judgment.

29 C.F.R. § 2560.503-1(h)(3)(iii)(emphasis added).

[ECF Doc. 1 at 40-41 ¶ 182.]

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2. Black’s Requested Relief.

Black pleaded for declaratory relief:

Black seeks appropriate declaratory relief to redress

Unum’s ERISA violations. Appropriate declaratory relief

in this case would include the following findings:

. . .

• Unum violated [29 U.S.C. §] 1133(2) by failing

to provide a “full and fair review” of Black’s

LTD claim in accordance with the regulations

requiring that Unum, in deciding Black’s

appeal, “shall consult with a health care

professional who has appropriate training and

experience in the field of medicine involved

in the medical judgment” within the meaning of

29 C.F.R. § 2560.503-1(h)(3)(iii).

[ECF Doc. 1 at 62 ¶ 244.]

Black also prayed for “reasonable attorney’s fees and

expenses,” and “all costs of court, and for such other relief to

which she may be entitled.” [ECF Doc. 1 at 63.] 

C. Black’s Motion for Partial Summary Judgment on Threshold

Issue.

Black filed “Plaintiff’s Motion for Partial Summary Judgment

on Threshold Issue.” [ECF Doc. 36.] Black stated in the

introduction:

The threshold issue in this case is Unum’s violation

of an ERISA regulation by which, before denying Black’s

administrative appeal, Unum “shall consult with a health

care professional who has appropriate training and

experience in the field of medicine involved in the

medical judgment.” See 29 C.F.R. § 2560.503-

1(h)(3)(iii).

[ECF Doc. 36 at 3, emphasis in original.]

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Black prayed for the following relief:

Black prays that the Court find that Unum violated 29

U.S.C. § 1133(2) by failing to provide a “full and fair

review” of Black’s LTD claim in accordance with the

regulations requiring that Unum, in deciding Black’s

appeal, “shall consult with a health care professional

who has appropriate training and experience in the field

of medicine involved in the medical judgment” within the

meaning of 29 C.F.R. § 2560.503-1(h)(3)(iii), and for

such other and further relief to which she may be justly

entitled.

[ECF Doc. 36 at 24-25.]

In her brief, Black discussed:

• fiduciary duties under ERISA,

• the statutory duty under 29 U.S.C. § 1133(2) for a

“full and fair review by the appropriate named

fiduciary” that must be performed “[i]n accordance

with regulations of the Secretary [of Labor],” and

• the requirement for consultation with a qualified

health care professional under 29 C.F.R. §

2560.503-1(h)(3)(iii).

[ECF Doc. 37 at 6-8.]

Black also cited Lafleur v. Louisiana Health Serv. & Indem.

Co., 563 F.3d 148 (5th Cir. 2009), and argued:

The medical consultant that the insurer used on appeal

was a family practitioner (Dr. Brower) and not a

urologist, so the insurer failed to “consult with a

health care professional who has appropriate training and

experience in the field of medicine involved in the

medical judgment” and thereby violated 29 C.F.R. §

2560.503-1(h)(3)(iii). LaFleur, 563 F.3d at 154-55, 156-

57.

[ECF Doc. 37 at 9.] Black argued that Unum violated those

requirements. [ECF Doc. 37 at 10-13.]

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E. The Court’s Order.

On February 29, 2024, this Court entered an order granting

Black’s motion. [ECF Doc. 80.] The Court framed the issues:

In the present motion before the Court, Black asks the Court to declare

that Unum failed to provide the full and fair review of Black’s claim.

ERISA provides minimum procedural requirements for the processing of

benefit claims. Importantly, it requires that, in order to provide a

claimant with a full and fair review in deciding an appeal of any adverse

benefit determination that is based in whole or in part on a medical

judgment, the fiduciary shall consult with a health care professional who

has appropriate training and experience in the field of medicine involved

in the medical judgment. [Citing 29 C.F.R. § 2560.503-1(h)(3)(iii).] And

the healthcare professional consulted in an appeal may not be the same

individual who was consulted in connection with the original

determination. [Citing 29 C.F.R. § 2560.503-1(h)(3)(v).]

[ECF Doc. 80 at 2-3.]

The Court stated the legal standards:

ERISA requires a “full and fair review by the appropriate named

fiduciary.” [Citing 29 U.S.C. § 1133(2).] “Applicable regulations dictate

that procedures will not be deemed to provide a claimant with a

reasonable opportunity for a full and fair review of a claim and adverse

benefit determination unless several procedural requirements are met”

[citing Lafleur v. Louisiana Health Serv. & Indem. Co., 563 F.3d 148, 154

(5th Cir. 2009)], including (1) when an “adverse benefit determination

. . . is based in whole or in part on a medical judgment,” the appeal must

include consultation “with a health care professional who has appropriate

training and experience in the field of medicine involved in the medical

judgment”[citing 29 C.F.R. § 2560.503-1(h)(3)(iii)], and (2) the healthcare

professional consulted in an appeal may not be the same individual who

was consulted in connection with the original determination [citing 29

C.F.R. § 2560.503-1(h)(3)(v)].

[ECF Doc. 80 at 3-4.]

The Court considered the parties’ arguments, and summarized

its analysis:

Accordingly, because Unum denied Black’s disability claim based

on a medical judgment, it was required to consult with a health care

professional who had appropriate training and experience in the field of

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medicine involved in the medical judgment, and that professional could

not be the same individual who was consulted in connection with the

original determination. Unum failed to comply with both procedural

requirements. It therefore did not provide a full and fair review of Black’s

disability claim. 

[ECF Doc. 80 at 8.]

The Court ordered the following:

Considering the discussion above, the Court GRANTS Black’s

motion for partial summary judgment on a threshold issue (Doc. 36) and

REMANDS this matter back to Unum to conduct a full and fair review

of Black’s disability claim consistent with ERISA’s procedural

requirements as explained in this order.

[ECF Doc. 80 at 8-9.]

IV. FACTS CONCERNING ATTORNEY’S FEES.

Black’s attorney reasonably expended a total of 291.9 hours in

his representation of Black from the preparation of the original

complaint beginning on July 20, 2022 through the filing of this

motion. (Apx. 302 ¶ 5.) At $400 per hour (Apx. 303 ¶ 8), a

reasonable fee would be $116,760. Black’s attorney incurred

Westlaw charges of $2,281.06 from February through August 2023.

(Apx. 309 ¶ 29.) As explained in the accompanying brief, such

amounts are included as an element of attorney’s fees, since they

effectively reduce the amount of hours an attorney would otherwise

devote to legal research. Black’s attorney estimates that he will

reasonably expend a total of 24 hours to review and reply to Unum’s

response to this motion (Apx. 303 ¶ 9), for which (at $400 per

hour) a reasonable fee would be $9,600.00. As of the filing of

this motion, therefore, the lodestar figure is a total of

$128,641.06.

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The lodestar figure at this time, therefore, is $128,641.06

($116,760 + estimated $9,600.00 for reply + total Westlaw charges

of $2,281.06).

V. FACTS CONCERNING COURT COSTS.

Black paid $402 for the filing fee herein. (Apx. 25.)

WHEREFORE, PREMISES CONSIDERED, Black prays that the Court

order Unum to pay her attorney’s fees in amount of $128,641.06,

costs of $402, and for such other and further relief to which she

may be justly entitled.

Respectfully submitted,

/s/ James L. Johnson 

James L. Johnson

Texas Bar No. 10742020

THE JOHNSON LAW FIRM 

10935 Estate Lane, Suite 268

Dallas, Texas 75238

Telephone: 214/363-1629

Telecopier: 214/363-9173

Email:

james@jamesljohnsondallasattorney.com

ATTORNEY FOR PLAINTIFF

CATHERINE A. BLACK

CERTIFICATE OF CONFERENCE

I hereby certify that, by emails exchanged on March 13 and 14,

2024, Unum’s lead attorney, Bill Davidoff, expressed Unum’s

opposition to the foregoing motion.

/s/ James L. Johnson 

James L. Johnson 

CERTIFICATE OF SERVICE

I hereby certify that on March 14, 2024, I electronically

filed the foregoing document with the clerk of the court for the

U.S. District Court, Northern District of Texas, using the

electronic case filing system of the court. The electronic case

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filing system sent a “Notice of Electronic Filing” to all attorneys

of record who have consented in writing to accept this Notice as

service of this document by electronic means.

/s/ James L. Johnson 

James L. Johnson

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