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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

CIVIL ACTION NO. 1:17-cv-611 (WOB-KLL)

SHERRY LAAKE, PLAINTIFF

VS. MEMORANDUM OPINION AND ORDER

THE BENEFITS COMMITTEE, 

WESTERN & SOUTHERN FINANCIAL 

GROUP COMPANY FLEXIBLE BENEFITS 

PLAN, ET AL. DEFENDANTS

This long-term disability benefits (LTD) case is before the 

Court on Plaintiff’s Motion for Prejudgment Interest and 

Attorney’s Fees and Costs. (Doc. 115). 

On November 6, 2021, this Court issued its Memorandum Opinion 

and Order, (Doc. 114), granting Plaintiff LTD benefits, statutory 

penalties, and attorney’s fees through January 24, 2020. The Court 

gave Plaintiff through December 1, 2021, to file any remaining 

motions before entering its final judgment. Plaintiff timely filed 

her Motion for Prejudgment Interest and Attorney’s Fees and Costs,

(Doc. 115), and Defendants filed their response. (Doc. 119). 

Having reviewed this matter, the Court now issues the following

Memorandum Opinion and Order. 

Factual and Procedural Background 

The factual and procedural background relating to the merits 

of this case is described in greater detail in the Court’s previous 

Memorandum Opinion and Order. (Doc. 114). In that Order, the 

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Court was evaluating the parties’ Cross-Motions for Judgment on 

the Administrative Record, (Docs. 94; 95), Plaintiff’s Motion for 

Summary Judgment, (Doc. 98), Plaintiff’s Motion to Strike 

Deposition Errata Sheets, (Doc. 101), and Plaintiff’s Motion and 

Supplemental Motion for Attorney’s Fees and Costs. (Docs. 31; 40). 

The Court denied Defendants’ Motion for Judgment on the 

Administrative Record and granted Plaintiff’s Motion awarding LTD 

benefits. The Court denied Plaintiff’s Motion for Summary Judgment 

because it was untimely, but still awarded statutory penalties. 

The Court further denied Plaintiff’s Motion to Strike as moot, but 

nonetheless noted the egregious nature of Defendants’ errata sheet 

corrections. Finally, the Court awarded Plaintiff $108,394.47 in 

attorney’s fees and costs for work done through January 24, 2020. 

(See generally Doc. 114). 

Plaintiff has since filed an additional Motion for 

Prejudgment Interest and Attorney’s Fees and Costs for the work 

her counsel performed beyond January 24, 2020. (Doc. 115). In 

the Motion, Laake asks the Court to award 6.2% in prejudgment 

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interest for the LTD benefits, $182,547.50 in attorney’s fees, and 

$2,600.70 in legal costs. (Id. at 4).1

Defendants oppose an award of any additional attorney’s fees, 

but argue that should the Court grant Plaintiff’s Motion, the fees 

should at least be reduced. (Doc. 119). Specifically, they argue 

that Laake’s attorney billed an unreasonable number of hours, many 

of which were devoted to unsuccessful issues. They also argue 

that Laake’s attorney’s time sheets are impermissibly vague, and 

they attempt to recover for clerical tasks. Further, they argue 

that the 6.2% percent prejudgment interest rate Plaintiff proposes 

is too high, and the Court should instead apply the rate set forth 

by 28 USC § 1961—which would allow for roughly 1.2% in prejudgment 

interest. 

ANALYSIS 

A. Prejudgment Interest

The Court begins by evaluating the parties’ arguments for the 

proper prejudgment interest rate. Courts may award prejudgment 

1 Shortly after Plaintiff filed this Motion, (Doc. 115), Defendants filed 

an appeal with the Sixth Circuit. (Doc. 117). “As a general rule, the 

district court loses jurisdiction over an action once a party files a 

notice of appeal, and jurisdiction transfers to the appellate court.” 

Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993). However, “the 

district court retains jurisdiction over an action when an appeal is 

untimely, is an appeal from a non-appealable non-final order or raises 

only issues that were previously ruled upon in that case by the appellate 

court.” Id. at 394–95 (citing Rucker v. United States Dept. of Labor, 

798 F.2d 891, 892 (6th Cir. 1986). The Court has not yet entered an 

appealable final judgment; therefore, this Court retains jurisdiction

to adjudicate this motion despite the docketed appeal. 

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interest to “compensate plaintiffs for the lost interest value of 

money wrongly withheld.” Schumacher v. AK Steel Corp. Retirement 

Accumulation Pension Plan, 711 F.3d 675, 686 (6th Cir. 2013). An 

award that is too high may “contravene ERISA’s remedial goal of 

simply placing the plaintiff in the position he or she would have 

occupied but for the defendant’s wrongdoing.” Id. But an 

“exceedingly low prejudgment interest rate fails to make the 

plaintiff whole.” Id. Although courts often apply the statutory 

prejudgment interest rate under 28 USC § 1961(a), such a 

“mechanical application of the rate . . . amounts to an abuse of 

discretion.”2 Id.

The Sixth Circuit has instructed courts to consider casespecific factors when determining the appropriate prejudgment 

interest rate. These factors include the remedial goal of making 

the plaintiff whole, the prevention of unjust enrichment on behalf 

of the wrongdoer, the lost interest value of money wrongly 

withheld, and the rate of inflation. Id. at 687. Still, “district 

courts may fashion an award in their sound discretion.” Id. 

Applying these principles, the Court finds that the 1.2% 

prejudgment interest rate under § 1961 is too low to properly 

2 Plaintiff argues that the Court should apply the interest rates set 

forth by Ohio law. This position is not consistent with Sixth Circuit 

precedent. Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir. 2000) 

(“Among the constraints on a district court’s discretion to shape an 

award of prejudgment interest in an ERISA case is the fact that we look 

with disfavor on simply adopting state law interest rates. ERISA is not 

an area primarily of state concern.”). 

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compensate Plaintiff. Defendants specifically request the Court 

to award interest rates of 2.33% (2018), 2.05% (2019), 0.37%

(2020), and 0.09% (2021). The Court declines to do so. 

First, Plaintiff was forced to forgo certain treatments for 

her pain because she could not afford them due to Defendants’ 

denial of LTD coverage. (Doc. 77 at 19; 286). Thus, a mere 1.2% 

interest rate does not go far enough to make Plaintiff whole.

Second, the rates set forth in § 1961 would allow Defendants to 

benefit from historically low treasury bond rates, which would 

lead to unjust enrichment.3 Third, a 1.2% prejudgment interest 

rate also does not compensate for the lost interest value for the 

time it was wrongly withheld. See Schumaker, 711 F.3d at 686–87

(“A district court’s award of prejudgment interest that only 

compensated the plaintiffs for the rate of inflation constituted 

an abuse of discretion where it failed to adequately compensate 

them for the lost use of their money.”). Fourth, the increasing 

rate of inflation, now upwards of 7%, warrants a higher award of 

prejudgment interest.4 

However, the Court also finds that a 6.2% prejudgment interest 

rate transforms the award from compensatory to punitive in nature. 

3 See U.S. Dep’t of the Treasury, Daily Treasury Par Yield Curve Rates 

(2022), https://www.treasury.gov/resource-center/data-chartcenter/interest-rates/pages/textview.aspx?data=yield.

4 See U.S. Bureau of Labor Statistics, Consumer Price Index: 2021 in 

Review (2022), https://www.bls.gov/opub/ted/2022/consumer-price-index2021-in-review.htm. 

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See Masters v. Supp. Exec. Retirement Plan for Auto. Packaging 

Sys. Inc., et al., No. 5:07-cv-1826, 2009 WL 1183377, at *2 (N.D. 

Ohio May 1, 2009). Therefore, having considered the four factors, 

the Court grants Plaintiff an award of 3.5% prejudgment interest,

compounded annually. This rate more closely reflects the § 1961 

rates before they significantly dropped, while still taking into 

consideration the rapid rate of inflation the U.S. dollar has 

undergone in recent years. This 3.5% rate is reasonable 

considering the circumstances and will compensate Plaintiff for 

the loss of her disability benefits to which she is legally 

entitled. Id.; see also Herring v. SCI Tenn. Funeral Servs., LLC, 

No. 2:15-cv-280, 2018 WL 4869166, at *2 (E.D. Tenn. Apr. 2, 2018)

(awarding 5% prejudgment interest when § 1961 was too low). The 

Court does not find that this amount of prejudgment interest 

constitutes a windfall for either party. 

B. Attorney’s Fees 

Plaintiff also moves the Court to award her attorney’s fees 

for the work her counsel performed after January 24, 2020. The 

Motion requests payment in the amount of $182,547.50 for 599.2 

attorney hours and 21.4 paralegal hours. (Doc. 115-1, Danzl Decl. 

at ¶¶ 11; 16). Defendants argue that the number of hours worked 

was unreasonable and should be reduced. As explained further 

below, while Plaintiff is entitled to additional attorney’s fees, 

the Court agrees with Defendants that a reduction is warranted. 

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As a threshold matter, the Court applies a two-part test to 

determine whether an award of attorney’s fees is appropriate. 

First, courts consider whether the plaintiff has achieved some 

degree of success on the merits. Hardt v. Reliance Standard Life 

Ins. Co., 130 S. Ct. 2149, 2158 (2010). Next, in the Sixth Circuit, 

courts consider the following five factors: (1) the degree of the 

opposing party’s culpability or bad faith; (2) the opposing party’s 

ability to satisfy an award of attorney’s fees; (3) the deterrent 

effect of an award on other persons under similar circumstances; 

(4) whether the party requesting fees sought to confer a common 

benefit on all participants and beneficiaries of an ERISA plan; 

and (5) the relative merits of the parties’ positions. Secretary 

of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985). The 

Court has already analyzed these factors in its previous Memorandum 

Opinion and Order, (Doc. 114), and hereby incorporates its 

reasoning by reference and finds that Plaintiff is entitled to 

attorney’s fees. 

Once courts decide to award attorney’s fees, they must then 

consider “whether a reasonable attorney would have believed the 

work to be reasonably expended in pursuit of success at the point 

in time when the work was performed.” Wooldridge v. Marlene Indus. 

Corp., 898 F.2d 1169, 1177 (6th Cir. 1990). “The most useful 

starting point . . . is the number of hours reasonably expended on 

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the litigation multiplied by a reasonable hourly rate.” Hensley 

v. Eckerhart, 461 U.S. 424, 433 (1983). 

The Court has already found that Counsel Claire Danzl’s rate 

of $300 per hour was reasonable given her experience and the 

specialized nature of ERISA litigation. (Doc. 114 at 39). On 

January 1, 2021, Ms. Danzl’s rate increased to $350 per hour, which 

the Court also finds reasonable given her experience as an ERISA 

litigator.5 See e.g., Palombaro v. Emery Fed. Credit Union, No. 

1:15-cv-792, 2018 WL 5312687, at *6 (S.D. Ohio Oct. 25, 2018) 

(allowing a $350 rate for an attorney with twelve years of ERISA 

experience). The Court, however, reduces the paralegal rate to 

$50 an hour. Counsel’s paralegal, Cali Mallone, is still a 

student, and the Court finds it is unreasonable to for her to bill 

at the same rate as a seasoned paralegal. See Castro v. Los 

Camperos, Inc., No. 2:13-cv-1186, 2014 WL 4626292, *4 (S.D. Ohio 

Sept. 15, 2014). 

The Court next turns to whether the number of hours billed is 

the number of hours that an attorney would reasonably expend on 

the litigation. “Context informs the time and labor required by 

this case.” Javery v. Lucent Techs. Inc. Long-Term Disability 

Plan for Mgmt. or LBA Emps., No. 2:09-CV-8, 2014 WL 2779427, at *6

(S.D. Ohio June 19, 2014). It is worth noting that this case has 

5 To clarify, the increased rate can only be applied prospectively for 

hours billed after January 1, 2021.

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been quite unusual in that the case was remanded, appealed, 

reopened, and now appears positioned for another appeal. Such a 

hard-fought case is much more time-consuming and labor-intensive

than the typical disability case. Accordingly, the Court considers 

the “reasonableness” prong with this context in mind.

One of the more significant issues the Court finds with 

Plaintiff’s request for attorney’s fees is that she seeks to 

recover for her time prosecuting issues and claims which were 

unsuccessful and, in some instances, unnecessary. See Perotti v. 

Seiter, 935 F.2d 761, 764 (6th Cir. 1991). For example, Ms. Danzl 

spent roughly 50.3 hours on her untimely Motion for Summary 

Judgment for her statutory penalties claim. (Doc. 115 at 27–32).

She also spent nearly 45 hours on discovery objections that were 

readily discounted by Magistrate Judge Bowman. (Id. at 26–27). 

Additionally, she seeks to recover 4 hours for a motion for leave 

because she initially filed the exhibits incorrectly, (Id. at 25), 

as well as 5 hours for a motion to compel that was never actually 

filed. (Id. at 21). The Court cannot allow Plaintiff to recover 

for such unsuccessful and unnecessary expenses. 

The Court also finds issue with the sheer number of hours 

Plaintiff’s counsel spent on many of her motions. The Court finds 

it was unreasonable for Plaintiff’s counsel to spend 154.4 hours 

on Cross-Motions for Judgment on the Administrative Record. Much 

of the work billed for these motions are excessive, duplicative, 

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and unnecessary. Compare Rist v. Hartford Life and Acc. Ins. Co., 

No. 1:05-cv-492, 2011 WL 6101633, *5 (S.D. Ohio Nov. 14, 2011) 

(finding 97.7 hours working on dispositive motions was reasonable) 

with Citizens for Cmty. Values, Inc. v. Upper Arlington Pub. 

Library Bd. of Trs., No. C–2–08–223, 2010 WL 1253892, at *7 (S.D.

Ohio Mar. 24, 2010) (reduction of 233.5 hours appropriate for 

unnecessary and redundant work). For example, on more than one 

occasion, Plaintiff’s counsel billed 36 minutes to draft an 

unopposed motion for extension of time. (Doc. 115-1 at 16; 26). 

Additionally, the Court notes that counsel repeatedly spent 

excessive hours preparing for depositions. (Id. at 23–24). It is 

not reasonable for the Court to award these fees, and accordingly 

the ultimate award must be reduced. 

Furthermore, the Sixth Circuit limits the recovery of fees 

for work on a motion for attorney’s fees to “three percent of the 

hours in the main case which is decided without trial.” Auto 

Alliance Int’l, Inc. v. United States Customs Serv., 155 F. App’x 

226, 229 (6th Cir. 2005). Plaintiff’s current requests exceed 

this limitation. (Doc. 115-1 at 32). Plaintiff has requested 

repayment for nearly 55 hours in drafting her various motions for 

attorney’s fees. (Docs. 31; 40; 115). Though the Court 

acknowledges the laborious nature of this lawsuit, the Court cannot 

grant such a high “fees for fees” request. See Gonter v. Hunt 

Valve Co., 510 F.3d 610, 620 (6th Cir. 2007). 

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The Court has broad discretion to reduce the amount of hours 

Plaintiff may recover. The Court need not parse through every

entry—rather the court “must simply do rough justice.” Ne. Ohio 

Coal. for the Homeless v. Husted, 831 F.3d 686, 703 (6th Cir. 2016) 

(internal quotations omitted); see also Kirsch v. Fleet St., Ltd., 

148 F.3d 149, 173 (2d Cir. 1998) (“The court has discretion simply 

to deduct a reasonable percentage of the number of hours claimed 

as a practical means of trimming fat from fee application.”). 

District courts can apply their own observations of counsels’ 

conduct over the course of litigation to gauge what is reasonable. 

Tyson v. Al Chami, 659 F. App’x 346, 348 (6th Cir. 2016). 

Here, the Court acknowledges the very contentious nature of 

this litigation. The Court specifically makes note of Defendants’ 

dilatory tactics and poor conduct throughout the course of this 

now five-year long case. The Court recognizes the need to 

compensate Plaintiff’s counsel for her work, particularly given 

this Court’s previous findings. (Doc. 114). However, for the 

reasons articulated above, Plaintiff cannot recover all the fees 

she requests. The Court therefore finds an overall reduction of 

33% is appropriate. Such an amount will fairly compensate 

Plaintiff’s counsel for her work in this arduous case, while not 

unfairly penalizing Defendants. 

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C. Costs 

Defendants argue that Laake cannot recover her deposition 

costs because they were not “reasonably necessary for use in the 

case.” See Hall v. Ohio Educ. Ass’n, 984 F. Supp. 1144, 1146 (S.D. 

Ohio 1997). The Court finds the deposition costs were reasonably 

necessary to show how Laake’s claim was administered internally 

within W&S. The deposition testimony revealed procedural issues 

at W&S that entitled Laake to de novo review. (Doc. 114 at 13–

17). Accordingly, the deposition costs are reasonable.

CONCLUSION

Therefore, having reviewed this matter, and the Court being 

advised, 

IT IS ORDERED that: 

(1) The Court GRANTS IN-PART and DENIES IN-PART

Plaintiff’s Motion for Prejudgment Interest and 

Attorney’s Fees and Costs. (Doc. 115).

(2) The Court GRANTS Plaintiff 3.5% in prejudgment

interest compounded annually, calculated from October

16, 2018 until November 5, 2021. 

(3) The Court DENIES Plaintiff’s request for a paralegal

rate of $125 per hour and reduces the awarded 

paralegal rate to $50 per hour worked. 

(4) The Court GRANTS Plaintiff request for attorney’s

fees, but reduces the overall amount by 33% from the

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$182,547.50 requested.

(5) The Court GRANTS Plaintiff the costs requested in her

Motion in the amount of $2,600.70.

(6) Plaintiff shall file a proposed judgment with the

Court ON OR BEFORE MONDAY, FEBRUARY 7, 2022. 

Defendants shall file any objections to the proposed 

judgment ON OR BEFORE MONDAY, FEBRUARY 14, 2022. 

This 31st day of January 2022. 

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