UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SCOTT D. DALESANDRO and DIANE :

NOONAN, on behalf of themselves and :

others, :

:

Plaintiffs, :

: Case No. C-1-01 109

vs. :

: Judge Sandra S. Beckwith

INTERNATIONAL PAPER COMPANY, :

:

Defendant. :

__________________________________________:

DEFENDANT’S RESPONSE IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, EXPENSES, 

INTEREST, AND INCENTIVE AWARDS

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 1 of 37
TABLE OF CONTENTS

Page

-iI. INTRODUCTION AND SUMMARY OF RESPONSE........................................................................... 1

II. PLAINTIFFS’ REQUEST FOR ATTORNEYS’ FEES SHOULD BE DENIED IN WHOLE

OR IN SIGNIFICANT PART.................................................................................................................... 2

A. Standard for Entitlement to Attorneys’ Fees Under ERISA..................................................... 2

29 U.S.C. § 1132............................................................................................................................. 2

Schwartz v. Gregori,

160 F.3d 1116, 1119 (6th Cir. 1998)............................................................................................... 3

Secretary of Labor v. King,

775 F.2d 666, 669 (6th Cir. 1985)................................................................................................... 3

Garber v. Provident Life and Accident Insur. Co.,

1999 U.S. App. LEXIS 11280 *14-15 (6th Cir. 1999) ................................................................... 3

B. Plaintiffs May Not Recover Fees Incurred While Exhausting the Administrative

Claims Procedure.......................................................................................................................... 4

29 U.S.C. § 1132(g) ........................................................................................................................ 4

Anderson v. Procter & Gamble Co.,

220 F.3d 449, 456 (6th Cir. 2000)................................................................................................ 4,5

Cann v. Carpenters’ Pension Trust Fund for Northern California,

989 F.2d 313, 315 (9th Cir. 1993)................................................................................................ 4,5

Rego v. Westvaco Corp.,

319 F.3d 140, 150 (4th Cir. 2003)................................................................................................ 5,6

Peterson v. Continental Cas. Co.,

282 F.3d 112, 121 (2nd Cir. 2002).................................................................................................. 5

Warren v. Cochran,

257 F.Supp.2d 321 (D. Maine 2003)............................................................................................... 5

Baxter v. C.A. Muer Corp.,

941 F.2s 451 (6th Cir. 1991) ........................................................................................................... 6

C. Plaintiffs’ Requested Fees Are Not Reasonable.......................................................................... 7

Hensley v. Eckerhart,

461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) .................................................................. 7

Wooldridge v. Marlene Indus. Corp.,

898 F.2d 1169, 1176-77 (6th Cir. 1990) ......................................................................................... 7

Garber v. Provident Life and Accident Insur. Co.,

1999 U.S. App. LEXIS 11280, at * 15-16 (6th Cir. 1999).............................................................. 7

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 2 of 37
TABLE OF CONTENTS

(continued)

Page

-ii1. Plaintiff Counsel’s Hourly Rates Are Excessive in Comparison to the Rates

of Competent Counsel in this Venue ............................................................................. 8

Blum v. Stenson,

465 U.S. 886, 895 n. 11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) ................................. 8

Hadix v. Johnson,

65 F.3d 532, 536 (6th Cir. 1995) (citing Blum, 465 U.S. at 896 n.11) ............................. 8

Coulter v. State of Tennessee,

805 F.2d 146, 148-49 (6th Cir. 1986), cert. denied, 482 U.S. 914 (1987))....................... 8

Tinch v. City of Dayton,

199 F. Supp. 2d 758 (S.D. Ohio 2002) (quoting Coulter, 805 F.2d at 149).............. 8,9,11

Granzeier v. Middleton,

173 F.3d 568 (6th Cir. 1999) ............................................................................................ 9

Ursic v. Bethlehem Mines,

719 F.2d 670, 677 (3rd Cir. 1983) .................................................................................. 11

2. Plaintiff Counsels’ Practice of Charging Time in Fifteen Minutes

Increments Does Not Comport With Standard Billing Practices............................. 12

Reed v. Rhodes,

179 F.3d 453, 470 (6th Cir. 1999) .................................................................................. 12

Anglo-Danish Fibre Indus., Ltd. V. Columbian Rope Co.,

2003 U.S. Dist. LEXIS 10386 *26 (W.D. Tenn. 2003) .................................................. 12

3. Plaintiff Counsels’ Hourly Rates Are Excessive for the Level of Work

Performed...................................................................................................................... 12

EEOC v. Anglin,

2003 U.S. Dist. LEXIS 12852 *12 (M.D. Fla. 2003) ..................................................... 12

Ursic v. Bethlehem Mines,

719 F.2d 670, 677 (3rd Cir. 1983) ............................................................................. 13,14

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,

478 U.S. 546, 554, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986) ........................................ 13

Microsoft Corp. v. United Computer Svcs. of N.J.,

216 F. Supp. 2d 383, 392 (D.N.J. 2002) ......................................................................... 14

Harman v. Lyphomed, Inc.,

734 F. Supp. 294, 296 (N.D. Ill. 1990) ........................................................................... 14

4. Plaintiff Counsels’ Billing Entries Are Duplicative and Redundant........................ 14

Anglo-Danish Fibre Indus., Ltd. V. Columbian Rope Co.,

2003 U.S. Dist. LEXIS 10386 *19 (W.D. Tenn. 2003) .................................................. 15

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 3 of 37
TABLE OF CONTENTS

(continued)

Page

-iiiBlack v. Lojac Enterps.,

1997 U.S. App. LEXIS 17205 (6th Cir. 1997) ............................................................... 15

Coulter v. State of Tenn.,

805 F.2d 146, 152 (6th Cir. 1986), cert. denied, 482 U.S. 914 (1987) ........................... 15

Hudson v. Reno,

130 F.3d 1193, 1209 (6th Cir. 1997) .............................................................................. 15

5. Fees Billed by Attorney Myron Wolf Should Be Disallowed As Redundant,

Duplicative, and Unnecessary...................................................................................... 16

6. Plaintiff Counsels’ Time Entries Should Be Denied to the Extent They Are

Too Vague to Determine Reasonableness................................................................... 17

Wooldridge v. Marlene Indus. Corp.,

898 F.2d 1169, 1176-77 (6th Cir. 1990) ......................................................................... 17

Anglo-Danish Fibre Indus., Ltd. V. Columbian Rope Co.,

2003 U.S. Dist. LEXIS 10386 *19 (W.D. Tenn. 2003) .................................................. 17

Black v. Lojac Enterps.,

1997 U.S. App. LEXIS 17205 *9-10 (6th Cir. .1997) .............................................. 17, 18

Hensley v. Eckerhart,

461 U.S. 424, 433, 103 S. Ct. 1933, 76 L.Ed. 2d 40 (1983) ........................................... 18

7. Plaintiffs’ Counsel May Not Recover Fees Incurred for Unnecessary

Discovery Disputes........................................................................................................ 18

University Hosp. of Cleveland v. Emerson Elec. Co.,

202 F.3d 839, 845 (6th Cir. 2000) .................................................................................. 18

Schey v. UNUM Life Ins. Co.,

145 F. Supp. 2d 919, 921 (N.D. Ohio 2001)................................................................... 18

Gerwen v. Guarantee Mutual Life Co.,

214 F.3d 1041 (9th Cir. 2000) ........................................................................................ 19

8. Plaintiffs’ Attorneys’ Fees Incurred to Prepare the Fee Petition is Excessive ........ 19

Anderson v. Procter & Gamble Co.,

220 F.3d 449, 456 (6th Cir. 2000) .................................................................................. 20

Cann v. Carpenters’ Pension Trust Fund for Northern California,

989 F.2d 313, 315 (9th Cir. 1993) .................................................................................. 20

Rego v. Westvaco Corp.,

319 F.3d 140, 150 (4th Cir. 2003) .................................................................................. 20

Peterson v. Continental Cas. Co.,

282 F.3d 112, 121 (2nd Cir. 2002) ................................................................................. 20

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 4 of 37
TABLE OF CONTENTS

(continued)

Page

-ivCoulter v. Tennessee,

805 F.2d 146, 151 (6th Cir. 1986) .................................................................................. 20

Moore v. Crestwood Local School Dist.,

804 F. Supp. 960, 968-969 (N.D. Ohio 1992) ................................................................ 20

D. Plaintiffs’ Counsel Is Not Entitled to a Multiplier ................................................................... 21

Hensley v. Eckerhart,

461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)..................................... 21,22

Blum v. Stenson,

465 U.S. 886, 889, 104 S. Ct 1541, 79 L. Ed. 2d 891 (1984) .................................... 21,23

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (I),

478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986)........................................... 21,22

Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974) .......................................................................................... 21

Perotti v. Seiter,

935 F.2d 761 (6th Cir. 1991) .......................................................................................... 21

City of Burlington v. Dague,

505 U.S. 557, 559, 567, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992) .........................22-25

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (II),

483 U.S. 711, 727, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987) ................................... 22,23

Drennan v. General Motors Corp.,

977 F.2d 246, 254 (6th Cir. 1992) .................................................................................. 23

Murphy v. Reliance Standard Life Insur. Co.,

247 F.3d 1313, 1315-16 (11th Cir. 2001) ....................................................................... 23

Tinch v. City of Dayton,

199 F. Supp. 2d 758, 766-67 (S.D. Ohio 2002) .............................................................. 23

Davis v. The Mutual Life Insurance Co. of New York,

6 F.3d 367, 381 (6th Cir. 1993) ...................................................................................... 23

Bowling v. Pfizer, Inc.,

922 F. Supp. 1261 (S.D. Ohio 1996) .............................................................................. 24

In Re Sulzer Hip Prosthesis, Ex. 11 to Pls’ Motion........................................................ 24

Brotherton v. Cleveland,

141 F.Supp.2d 907 (S.D. Ohio 2001) ............................................................................. 24

Cook v. Niedert,

142 F.3d 1004 (7th Cir. 1998) ................................................................................... 24,25

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 5 of 37
TABLE OF CONTENTS

(continued)

Page

-vFlorin v. Nationsbank of Georgia, N.A.,

34 F.3d 560 (7th Cir. 1994) ....................................................................................... 24,25

In Re: Southern Ohio Correctional Facility,

173 F.R.D. 205 (S.D. Ohio 1997)................................................................................... 24

Rawlings v. Prudential-Bache Properties, Inc.,

9 F.3d 513 (1993) ........................................................................................................... 24

E. Plaintiff’s Are Not Entitled to Recovery for All Expenses Submitted.................................... 25

Tinch v. City of Dayton,

199 F. Supp. 2d 758, 770 (S.D. Ohio 2002) ................................................................... 25

28 U.S.C. § 1920 ............................................................................................................ 25

F. Proposal for Reduction in Requested Attorneys’ Fees and Expenses .................................... 26

III. PLAINTIFFS’ REQUEST FOR PREJUDGMENT INTEREST IS PREMISED UPON

INACCURATE LEGAL STANDARDS.................................................................................................. 27

Drennan v. General Motors Corp.,

977 F.2d 246, 253 (6th Cir. 1992), reh'g denied, cert. denied, 508 U.S. 940

(1993) .......................................................................................................................... 27

Caffey v. Unum Life Insurance Co.,

302 F.3d 576, 585 (6th Cir. 2002) .................................................................................. 27

Ford v. Uniroyal Pension Plan,

154 F.3d 613, 619 (6th Cir. 1998) .................................................................................. 27

EEOC v. Wooster Brush Co. Employees Relief Ass’n.,

727 F.2d 566, 579 (6th Cir. 1984) .................................................................................. 27

28 U.S.C. § 1961 .......................................................................................................27-28

IV. CLASS REPRESENTATIVES DALESANDRO AND NOONAN ARE NOT ENTITLED TO

AN INCENTIVE AWARD UNDER ERISA........................................................................................... 29

Mertens v. Hewitt Assocs.,

508 U.S. 248, 254-55, 256, 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993)......................... 29

Great-West Life & Annuity Insur. Co.,

534 U.S. 204, 210, 122 S. Ct. 708, 151 L. Ed. 2d 635 (2002) ........................................ 29

Caffey v. Unum Life Insur. Co.,

302 F.3d 576 (6th Cir. 2002) .......................................................................................... 30

Kerr v. Vatterott & Co.,

184 F.3d 938, 944-45 (8th Cir. 1999) ............................................................................. 30

V. CONCLUSION.......................................................................................................................................... 30

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 6 of 37
I. INTRODUCTION AND SUMMARY OF RESPONSE

Defendant International Paper opposes Plaintiffs’ motion for attorneys’ fees, expenses,

interest and incentive awards, and respectfully requests the Court to deny the requested awards.

Plaintiffs' requests should be denied or reduced substantially for the following reasons: 

1. ERISA, 29 U.S.C. § 1132(g), does not permit plaintiffs to recover fees or

expenses incurred while exhausting the ERISA administrative claims

procedure.

2. Plaintiffs’ counsels’ hourly billable rates are excessive in comparison to

the rates of competent counsel in this venue and in light of the level of

work performed at these rates.

3. The number of compensable hours claimed by plaintiffs must be reduced

because of plaintiffs’ counsels’ deficient time-keeping practices, including

billing time in fifteen-minute increments, providing insufficient

descriptions of the work performed, block billing numerous tasks under

one time entry, and billing for unnecessary duplication of work and

internal attorney conferences.

4. The number of compensable hours claimed by plaintiffs must be reduced

because plaintiffs’ counsel expended unnecessary time pursuing positions

on issues contrary to established Sixth Circuit authority, including

positions taken on the duty to exhaust the claims procedure, discovery of

matters outside the administrative record, the standard of review, and other

issues.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 7 of 37
2

5. The number of compensable hours claimed by plaintiffs must be reduced

because plaintiffs’ counsel expended excessive and unnecessary time

preparing their attorneys’ fee petition and supporting documentation. 

6. The number of compensable hours claimed with respect to co-counsel

Myron Wolf must be reduced because Mr. Wolf performed little or no

substantive or necessary work on this action and is not entitled to

attorneys’ fees or expenses.

7. Plaintiffs’ counsel are not entitled to or deserving of a multiplier or

enhancement of the lodestar attorneys’ fees. 

8. Plaintiffs’ counsel are not entitled to recover all of the expenses submitted

because the descriptions are insufficient to support they were necessarily

incurred in pursuit of this action, and to the extent they do not constitute

“fees” and “costs” under ERISA. 29 U.S.C. § 1132(g).

9. Should the Court award prejudgment interest, Plaintiffs are not entitled to

a determination of the interest rate by the standard requested. 

10. The class representatives are not entitled to incentive awards under

ERISA’s remedial provisions. 

II. PLAINTIFFS’ REQUEST FOR ATTORNEYS’ FEES SHOULD BE DENIED IN

WHOLE OR IN SIGNIFICANT PART

A. Standard for Entitlement to Attorneys’ Fees Under ERISA

Section 502 of ERISA, 29 U.S.C. § 1132, provides that “in any action under this

subchapter . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a

reasonable attorney’s fee and cost of action to either party.” 29 U.S.C. § 1132(g)(1). Before

exercising this discretion under a fee-shifting statute, the district court must examine five factors: 

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 8 of 37
3

1) the degree of the opposing party’s culpability or bad faith; 2) the opposing party’s ability to

satisfy an award of attorneys’ fees; 3) the deterrent effect of an award on other persons under

similar circumstances; 4) whether the party requesting the fees sought to confer a benefit on all

participants and beneficiaries of an ERISA plan or to resolve a significant legal question

regarding ERISA; and 5) the relative merits of the parties’ positions.1

 Schwartz v. Gregori, 160

F.3d 1116, 1119 (6th Cir. 1998), citing Secretary of Labor v. King, 775 F.2d 666, 669 (6th Cir.

1985).

In this case, the Plan Administrator denied severance to employees who did not lose

employment as a result of the sale, but had the opportunity to continue work in the same facility,

in the same position, at the same salary. The Administrator determined that awarding severance

in these circumstances would be a windfall inconsistent with the language and intent of the plan.

The Administrator also found that severance benefits were not owed to persons who failed to file

timely claims in accordance with the express limitation period defined in the Plan. The

Administrator’s denial was based on a good faith, reasoned, written analysis of plan language

guided by plan counsel. 

Although the Court ultimately concluded that the Administrator’s interpretation of the

plan language on these points was not reasonable, there was no bad faith in this process.

International Paper has always contended that the case turned on the Court’s interpretation of the

Plan language and did not oppose class certification. In fact, the Court decided the case on the

specific language of the Plan, not on any novel principle of ERISA. For this reason, this action

will likely have no deterrent effect on other persons. Garber v. Provident Life and Accident

 

1 International Paper does not contest its financial ability to satisfy a reasonable award of attorneys’ fees,

nor does it dispute that Plaintiffs seek in this action to confer a benefit on many of the Plan participants.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 9 of 37
4

Insur. Co., 1999 U.S. App. LEXIS 11280 *14-15 (6th Cir. 1999) affirmed the district court’s

denial of attorneys’ fees, agreeing that defendant’s unreasonable interpretation of policy

language in denying coverage of claim was not in bad faith, that the case was unique, and that no

general deterrence would be served by awarding attorneys’ fees. (Decision is attached as Ex. 1)

Whether or not attorneys' fees are warranted is a matter for this Court's discretion. 2

B. Plaintiffs May Not Recover Fees or Expenses Incurred While Exhausting the

ERISA Administrative Claims Procedure

Even if the Court determines that attorney fees should be awarded against International

Paper, ERISA Section 502, 29 U.S.C. § 1132(g) does not permit parties to recover attorneys’

fees for legal work performed during the administrative exhaustion phase of a benefits

proceeding. Anderson v. Procter & Gamble Co., 220 F.3d 449, 456 (6th Cir. 2000)(“[A]lthough

Anderson's benefit claims were meritorious and the fee award she requests is reasonable, the

district court did not err in granting summary judgment for Procter & Gamble because ERISA

does not authorize recovery of attorneys' fees for work performed during the administrative

exhaustion phase of a benefits proceeding.”) The Sixth Circuit found persuasive the Ninth

Circuit’s decision in Cann v. Carpenters’ Pension Trust Fund for Northern California, 989 F.2d

313, 315 (9th Cir. 1993) that the opening phrase of § 1132(g) “in any action” limits recovery to

fees incurred during “litigation in court”. Accordingly, a total of $107,906.38 ($101,673.75 in

fees for Murdock Goldenberg Schneider & Groh + $4950 in fees for Myron Wolf + $1268.40 in

 

2 Plaintiffs’ Motion also includes a request for additional attorneys’ fees to be paid out of the total

severance funds due, as a result of this Court’s March 20, 2003 Order, under the Champion International

Paper Corporation Reorganization Policy #828. This request does not implicate any additional amounts

requested or due from International Paper above actual Policy #828 benefits, but instead are requested to

be deducted pro rata from the recovery of individual class members. Defendant notes, however, that the

attorneys’ fees and expenses requested are excessive for the same reasons set forth herein.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 10 of 37
5

expenses incurred by MGSG + $14.23 in expenses incurred by Wolf)3 should be deducted from

Plaintiff counsels’ Summary of Billable Hours and Costs for fees incurred during this time

period. 

All four circuit Courts of Appeal to consider this issue have concluded that "ERISA

attorney's fees [are] categorically unavailable for expenses incurred while exhausting

administrative remedies." Rego v. Westvaco Corp., 319 F.3d 140, 150 (4th Cir. 2003); see also

Peterson v. Continental Cas. Co., 282 F.3d 112, 121 (2d Cir. 2002)4 ; Anderson v. Procter &

Gamble Co., supra; Cann v. Carpenters' Pension Trust Fund for N. Cal., supra. See also Warren

v. Cochran, 257 F.Supp. 2d 321 (D. Maine 2003). In light of the unambiguous authority that

legal fees cannot be recovered for exhausting administrative remedies, it is remarkable that

plaintiffs' brief does not discuss this issue.

In the instant case, plaintiffs filed their initial Complaint in this action on February 22,

2001 (Docket Entry #1) without even initiating the Plan’s administrative remedies as required by

ERISA. Consequently, on March 19, 2001, International Paper moved to stay the proceedings

pending plaintiffs’ exhaustion of their administrative remedies, which plaintiffs opposed.

(Docket Entry #10.) The Court properly granted International Paper’s motion on April 27, 2001.

(Docket Entry # 13.) After exhausting the Plan’s administrative remedies, on December 10,

2001, plaintiffs moved to lift the Court’s stay, without opposition. (See Docket Entry # 14.) The

 

3 Murdock Goldenberg billed a total of 319.75 hours during this time period. The total dollar amount for

the firm was determined by multiplying the hours billed by the billable hourly rate for each person with a

billing entry during this period. Mr. Wolf billed 18 hours during this period which was multiplied by his

requested billable hourly rate of $275.

4 The Second Circuit followed the Sixth and Ninth's Circuits on this point by vacating an award of

attorneys' fees and costs incurred in exhausting the initial administrative process. Peterson v. Continental

Casualty Company, supra, 282 F.3d at 118-120. The Court permitted an award of attorneys' fees for

legal fees incurred following remand to the administrative process. The plaintiff in Peterson had

exhausted the administrative process before filing suit, and the Court held that no attorneys' fees could be

awarded for exhausting the administrative record in the initial phase of the process.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 11 of 37
6

Court granted Plaintiff’s motion on January 14, 2002, and set the scheduling order for this action.

(See Docket Entry # 19.)

Plaintiffs are not entitled to recovery of any attorneys’ fees incurred between March 19,

2001 and January 14, 2002. It is well-established in this Circuit that exhaustion of administrative

remedies is a prerequisite to seeking judicial review of ERISA benefit claims. Baxter v. C.A.

Muer Corp., 941 F.2d 451 (6th Cir. 1991). The fact that plaintiffs in the instant case improperly

filed suit before exhausting the administrative process and opposed a motion requiring them to

exhaust cannot justify an award of attorneys' fees for attorneys fees incurred in opposing their

duty to exhaust and in carrying out their duty to exhaust. See Rego v. Westvaco Corp. supra.

Permitting recovery of attorneys in these circumstances would reward plaintiffs for failing to

follow clear law that the ERISA administrative processes must be exhausted before a suit for

benefit claims are filed.

In Rego v. Westvaco Corp., the Court of Appeals considered the specific circumstance of

a plaintiff who files suit before exhausting administrative remedies. The Court had no difficulty

concluding that “we agree with our sister circuits that have held ERISA attorney's fees to be

categorically unavailable for expenses incurred while exhausting administrative remedies.” 319

F.3d at150. The clear language of ERISA would be thwarted if plaintiffs could obtain attorneys

fees for the administrative process by virtue of filing suit before exhausting that process.

Because this Court ruled on the administrative record and found no need for remand to

the administrative process, this case has no post-remand administrative attorneys fees of the type

awarded by the court in Peterson. All attorneys fees incurred in exhausting the administrative

process must be denied under the unequivocal holdings of the Sixth Circuit and three other

Circuit Courts of Appeal.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 12 of 37
7

Consequently, Plaintiffs’ fees incurred to respond to Defendant’s motion to stay the

proceedings and to lift the stay subsequent to exhaustion should be disallowed.

C. Plaintiffs’ Requested Fees Are Not Reasonable

If the Court concludes that attorneys' fees should be assessed against International Paper,

such fees must be calculated using the “lodestar” method of calculation, i.e., determining a

reasonable fee based on a reasonable hourly rate and a reasonable number of hours of service.

See Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The party

seeking an award of fees must submit evidence supporting the hours worked and rates claimed.

Attorneys must “maintain billing time records that are sufficiently detailed to enable the courts to

review the reasonableness of the hours expended.” Wooldridge v. Marlene Indus. Corp., 898

F.2d 1169, 1176-77 (6th Cir. 1990). Plaintiff counsels’ billing records are insufficient in many

respects, and the requested fees are unreasonable in significant part. Therefore, if the Court

determines Plaintiffs are entitled to an award, these fees should be significantly reduced for the

reasons set forth below.

In addition, this is not a case resolving any significant legal question regarding ERISA.

Indeed, this Court rejected several of plaintiffs' argument concerning ERISA, such as the

standard of review, the obligation to exhaust the plan claims procedure, and the role of the

administrator's record. At the end, this case involved only interpretation of specific policy

language under a single severance plan. Such a case does not merit the excessive fees sought by

plaintiffs’ counsel. See Garber v. Provident Life and Accident Insur. Co., 1999 U.S. App.

LEXIS 11280, at * 15-16 (6th Cir. 1999) (Ex. 1).

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 13 of 37
8

1. Plaintiff Counsel’s Hourly Rates Are Excessive in Comparison to the

Rates of Competent Counsel in this Venue

The Supreme Court has recognized the “community market rule” as the proper way to

determine a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 895 n. 11, 79 L. Ed. 2d 891,

104 S. Ct. 1541 (1984). In applying the community market rule, the courts look to rates for

similar services in the community by attorneys with reasonably comparable skills, experience,

and reputation. Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995) (citing Blum, 465 U.S. at 896

n.11). Hourly rates should not exceed what is necessary to encourage competent lawyers within

the relevant community to undertake legal representation. Id. (citing Coulter v. State of

Tennessee, 805 F.2d 146, 148-49 (6th Cir. 1986), cert. denied, 482 U.S. 914 (1987)).

Accordingly, under fee shifting statutes, “a renowned lawyer who customarily receives $250 an

hour in a field in which competent and experienced lawyers in the region normally receive $85

an hour should be compensated at the lower rate.” Tinch v. City of Dayton, 199 F. Supp. 2d 758

(S.D. Ohio 2002) (quoting Coulter, 805 F.2d at 149).

The Summary of Billable Hours and Costs submitted by Plaintiffs’ counsel seeks the

following hourly rates for the attorneys’ involved in this action:5 

1) Theresa Groh - $325 – 18 years in practice6

 

5 Plaintiffs also seek recovery for fees incurred by paralegal Stephanie Vaaler at the rate of $85 an hour.

Defendant objects to this hourly billable rate on the grounds that no evidence has been provided in

support of its reasonableness. The Declarations submitted by counsel in this action, as well as

Declarations by Mssrs. Wayne and Stich, Exhibits 4 and 5 to Plaintiffs’ motion, address only their

opinion on the reasonableness of the attorneys’ fees submitted, and do not address the hourly rate of Ms.

Vaaler.

6 Years of practice are calculated based upon the year each attorney stated in his or her Declaration that he

or she graduated from law school, but may be less if the individual did not practice during the entire

period since graduation, but such absence is not reflected in the Declaration. See Declarations of

Goldenberg, Naylor, and McGrath attached to Notice of Filing Declarations in Support of Plaintiffs’

Motion for Attorney Fees (“Notice of Filing”), and Declarations of Groh, Murdock and Wolf attached as

Exhibits 1, 2, 3 to the Motion for Attorneys’ Fees, Interest, Expenses, and Incentive Awards (“Pls.’

Motion for Fees”).

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 14 of 37
9

2) John Murdock - $300 – 9 years in practice

3) Myron Wolf - $275 – 28 years in practice

4) Jeffrey Goldenberg - $275 – 9 years in practice

5) Todd B. Naylor - $200 – 6 years in practice

6) V. Brandon McGrath - $150 – 4 years in practice

These hourly rates are significantly higher than those of attorneys with reasonably comparable

skills, experience, and reputation in their community, and are higher than necessary to encourage

lawyers within the community to undertake legal representation. This is evident from a review

of the results of a survey published by the Ohio State Bar Association (OSBA) in the Fall of

2001.7

 (See attached Exhibit 2.) This is also confirmed by the affidavit of attorney Jack Fuchs,

an experienced ERISA litigator in Cincinnati. (See attached Exhibit 3.)

The majority of Plaintiffs’ counsel are members of a firm of approximately six attorneys

located in Cincinnati, Ohio. Mr. Wolf is the founding partner of his three-attorney firm located

in Hamilton, Ohio, a suburb outside of Cincinnati. The OSBA survey, conducted during the

same time frame Plaintiffs initiated this action, establishes that the median hourly billing rate for

downtown Cincinnati was $186, and for suburban Cincinnati was $138, with a mean hourly

billing rate of $152. (Ex. 2, p., 18.)8

 Only hourly billing rates at the 95th percentile or better

were over $300. (Id.) The survey also established that the hourly billing rates increased in

downtown at a rate of approximately 8.0 percent per year, and 3.3 percent in the suburbs. (Id.)

Analysis which included the entire Greater Cincinnati Area established that the median and mean

 

7 The unreasonableness of the rates requested by MGSG attorneys Groh, Murdock, and Goldenberg is

also evident in comparison to that requested by Mr. Wolf, a 28-year veteran of the practice of law.

8 See also, Tinch v. City of Dayton, 199 F. Supp. 2d 758, 766 (S.D. Ohio 2002) (rejecting request for

hourly billing rate of $250, even though it represented attorneys’ customary billing rate, and holding “that

$150 is an appropriate hourly rate, which would encourage competent counsel to represent individuals

such as the Plaintiffs in this litigation.”); Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999) (affirming

district court’s reduction of hourly rate from $165 to $110 to reflect prevailing rate in local Covington

legal market rather than the Cincinnati rate sought by attorney.)

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 15 of 37
10

hourly billing rate at this time was $175. (Ex. 2, p. 27.) A more detailed breakdown of hourly

billing rates by the size of firm, years of practice, and primary field of law, established the

following average9 and premium10 hourly rates for attorneys or firms with similar characteristics

to that of Plaintiffs’ counsel:

• For an attorney in a firm of 6-20 attorneys = average rate of $150 - $157, with a premium

rate up to $267 

• For an attorney with more than 25 years of practice = average rate of $150 - $168, with a

premium rate up to $310

• For an attorney with 16-25 years of practice = average rate of $150 - $165, with a

premium rate up to $270

• For an attorney with 11-15 years of practice = average rate of $147 - $150, with a

premium rate up to $251

• For an attorney with 6-10 years of practice = average rate of $138 - $144, with a premium

rate up to $239

• For an attorney in general civil trial practice = average rate of $155 - $168, with a

premium rate up to $275

• For a partner in a firm with 2-7 partners = average rate of $150 - $154, with a premium

rate up to $250

• For an associate in a firm with 2-7 partners = average rate of $127 - $136, with a

premium rate up to $203 

(Ex. 2, p. 17.) The survey also reflects that since 1994, hourly billable rates in these categories

have increased at a rate between 2.9 to 4.8 percent per year, or approximately $5-$10 a year.11

 

9 The “average” rates indicate the range reflected in the median and mean hourly billable rates for each

category.

10 The “premium” rates reflect the rate for the 95th percentile or top billing rate in the survey for each

category.

11 This estimate was reached by multiplying the lowest and highest rates shown by an average increase of

3.5 percent.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 16 of 37
11

Plaintiffs’ counsel are, without substantiation or justification, seeking premium rates that

exceed even the highest rates in the community for that period of time. They are also

inexplicably seeking rates that exceed that of Jack Fuchs, a partner in a national law firm with

twenty years of experience, and significant experience and expertise in ERISA litigation. (See

Ex. 3.) Under fee shifting statutes, Defendant should only be required to pay what “competent

and experienced lawyers in the region normally receive.” Tinch v. City of Dayton, 199 F. Supp.

2d 758 (S.D. Ohio 2002) (quoting Coulter, 805 F.2d at 149). Taking into consideration an

increase in hourly billable rates in the two-year period since the OSBA survey, using the average

rates at the 75th percentile, which takes into account the specialized nature of ERISA practice,

and adjusting for where the attorneys fall in the range for years of practice, reasonable hourly

rates for Plaintiffs’ counsel in this action are approximately: $215 for Ms. Groh,12 $215 for Mr.

Wolf, $190 for Mssrs. Murdock and Goldenberg, $165 for Mr. Naylor, and $150 for Mr.

McGrath.13 Should the Court award attorneys’ fees to Plaintiffs in this action, Defendant

requests that fees for Plaintiffs’ counsel be reduced accordingly.

 

12 Plaintiffs assert in support of their motion for attorneys’ fees that this case demanded the

“demonstration of a sophisticated understanding and knowledge of the statutory scheme, regulations, and

interpretive case law” of ERISA by counsel in order to succeed. (Pls.’ Motion for Fees at p. 8, para. 3.)

Plaintiffs’ counsel cannot command a higher rate based on a sophisticated understanding of ERISA while

their lack of knowledge that plaintiffs must exhaust administrative remedies before filing suit and the

significant amount of initial research conducted in this case clearly exhibits they did not have the

knowledge or experience warranting a higher fee. Defendants should not be required to pay for Plaintiff

counsels’ learning curve at these inflated hourly rates. See Ursic v. Bethlehem Mines, 719 F.2d 670, 677

(3rd Cir. 1983) (“A fee applicant cannot demand a high hourly rate – which is based on his or her

experience, reputation, and a presumed familiarity with the applicable law – and then run up an inordinate

amount of time researching that same law.”)

13 Because Mr. McGrath’s reasonable hourly rate equates to that billed, Defendant does not object to this

rate, but only to specific time entries addressed herein.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 17 of 37
12

2. Plaintiff Counsels’ Practice of Charging Time in Fifteen Minutes

Increments Does Not Comport With Standard Billing Practices

Plaintiffs’ counsel have billed all time entries in fifteen minute (.25) increments. This

billing method does not comport with the standard, widely-accepted practice of accounting for

billable hours in either six-minute or ten-minute intervals, Reed v. Rhodes, 179 F.3d 453, 470

(6th Cir. 1999), and creates the perception that counsel are “padding” their time by rounding up

to high billable increments. Anglo-Danish Fibre Indus., Ltd. V. Columbian Rope Co., 2003 U.S.

Dist. LEXIS 10386 *26 (W.D. Tenn. 2003) (attached as Ex. 4.) Their time should accordingly

be reduced by an across-the-board percentage to compensate for this inappropriate billing

practice.14 Id.

3. Plaintiff Counsels’ Hourly Rates Are Excessive for the Level of Work

Performed

In addition to seeking hourly rates that exceed those typically charged by comparable

counsel in the community, and rounding time increments up by inappropriate amounts, Plaintiffs

seek reimbursement for approximately eighty-eight percent of the total hours billed at a premium

partner rate that could and should have been performed by associates or paralegals at a lower

hourly billable rate. A review of Ms. Groh’s, Mr. Murdock’s, and Mr. Goldenberg’s billing

entries evidences that a significant portion of their billed time was for legal research, a task

customarily performed by associates and not requiring a higher level of expertise or experience.

See EEOC v. Anglin, 2003 U.S. Dist. LEXIS 12852 *12 (M.D. Fla. 2003) (holding research of

case law is a task for an associate or paralegal and should be billed at an associate or paralegal

 

14 Plaintiffs’ counsel assert they omitted time that was less than 15 minutes, (see Pls’ Motion for Fees, Ex.

1, ¶ 11 and Ex. 2, ¶ 9), but this does not resolve the issue of billing all time that was 15 minutes or more

in large increments that does not account for unused time within these billed blocks. In addition, because

Plaintiff billed their time in 15-minute increments, it is difficult to understand what entries were omitted

as less than 15 minutes, which would be zero under their billing methods.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 18 of 37
13

rate, not at a partner rate) (Ex. 5) (citing Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir.

1983)). They each also billed time for drafting discovery requests, motions, and responses to

motions,15 also tasks customarily performed by associates.

As Ms. Groh states in her Declaration in support of the fee application, “[t]wo associate

attorneys, Brandon McGrath and Todd Naylor, and one paralegal, Stephanie Valer, all worked

with me and under my supervision on this case as members of Murdock Goldenberg Schneider

& Groh LPA during the times indicated in Exhibit 1 hereto.”16 (Pls. Motion for Fees, Ex. 1, ¶ 5.)

As set forth above, Plaintiff seeks a billable hourly rate for Mr. McGrath at $150, Mr. Naylor at

$200, and Ms. Vaaler at $85, significantly lower than the $325, $300, and $275 an hour sought

for Ms. Groh and Mssrs. Murdock and Goldenberg respectively. (See Pls.’ Motion for Fees, Ex.

1 to Ex. 1.) Despite the apparent availability of these associates and paralegal to perform work at

more reasonable hourly rates, the associates billed a total of 48.5 hours between them, and the

paralegal billed 148.75 hours, compared to Ms. Groh’s 993.75 hours and Mr. Murdock’s 403.25

hours. The hourly billable rate for this work should therefore be reduced to a reasonable

associate hourly rate, or reduced by an across-the-board percentage. See Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 554, 106 S. Ct. 3088, 92 L. Ed.

2d 439 (1986) (noting the district court’s reduction in requested hourly rates and use of three

 

15 Much of the time billed for drafting discovery and motions was billed by both Ms. Groh and Mr.

Murdock. It appears from the entry descriptions that these entries are duplicative and redundant, as

opposed to review of one’s work by the other. (See Defendant’s objections to individual entries attached

as Exhibit 6.) This time should also be reduced for such unnecessary duplication.

16 The Declaration submitted by Brandon McGrath, attached to Plaintiffs’ Notice of Filing, states he

worked for Murdock, Goldenberg, Schneider & Groh L.P.A. (MGSG) until September 2001. Todd

Naylor states in his Declaration that he started working for the firm in February 2003. There is no

indication that Ms. Groh and Mr. Murdock had an associate assisting them with this case in 2002.

Because their hourly billable rates are excessive for this geographic area and for their level of expertise,

however, the rates should be reduced accordingly, especially for this lower-level work, whether or not

they had associate assistance during 2002.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 19 of 37
14

separate hourly rates in making its award: $100 for the “most difficult” work; $65 for work that

could have been done “by an attorney working at the associate level;” and $25 for work “which

required little or no legal ability”); Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir. 1983)

(reducing hourly rates because “Routine tasks, if performed by senior partners in large firms,

should not be billed at their usual rates. A Michelangelo should not charge Sistine Chapel rates

for painting a farmer’s barn.”); Microsoft Corp. v. United Computer Svcs. of N.J., 216 F. Supp.

2d 383, 392 (D.N.J. 2002) (holding Defendant should not be asked to pay for plaintiff’s decision

to assign routine tasks of research and drafting to partners of firm, and disallowing all such

time); Harman v. Lyphomed, Inc., 734 F. Supp. 294, 296 (N.D. Ill. 1990) (finding lodestar

significantly overstated, among other reasons, because a disproportionate amount of work was

performed by partners and associates with higher billing rates).

4. Plaintiff Counsels’ Billing Entries Are Duplicative and Redundant

Not only did Plaintiffs’ counsel request fees higher than customary in the region and have

partners performing hours of legal research at these excessive fees, but they also had two and

three partners performing the same or overlapping work at the same time, and up to four billing

attorneys in “conferences” on numerous occasions. A cursory review of Plaintiff counsels’

billing entries shows duplicative and redundant entries for three to four attorneys performing the

same task and conducting conferences among themselves for which all billed for their

participation.17 For example, on February 16, February 17, and February 19, 2001 all three

 

17 Declarations of Theresa Groh and John Murdock in support of their fees state that they “omitted most

of what was a considerable amount of time conference with my partners, associates in my firm, and cocounsel, Myron Wolf.” (See Ex. 1, ¶ 11 and Ex. 2, ¶ 9 to Pl.’s Motion.) A majority of entries by both

Ms. Groh and Mr. Murdock contain time entries for conferences with each other, and several entries

contain time entries for conferences with co-counsel, and other counsel and staff within their firm. It

therefore does not appear that this is an accurate representation. In addition, because Plaintiffs’ counsel

“block-billed” these conferences within large blocks of time containing other tasks, it is impossible to tell

how much time was expended conferencing as opposed to completing other tasks contained within the

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 20 of 37
15

partners, Groh billing at $325 a hour, Murdock billing at $300 an hour, and Goldenberg billing at

$275, billed for researching ERISA and conferencing with each other for three to twelve hours

during the day. On February 17, 18, and 19th, a fourth attorney, Brandon McGrath also added to

this list for four to eight hours a day at $150 an hour. On February 20th and 21st, Groh, Murdock,

and McGrath billed eight to twelve hours each to research, draft the Complaint, draft discovery

and conference with each other. Similarly, on March 20th, 22nd, and 23rd, Groh and Murdock

each billed five and a half to ten hours each day to review Defendant’s answer and motion to

stay, conference with each other, and research exhaustion issues. Plaintiff counsels’ billing

entries are replete with these duplications and excessive billing for internal conferences, and

should be reduced accordingly. Anglo-Danish Fibre Indus., Ltd. V. Columbian Rope Co., 2003

U.S. Dist. LEXIS 10386 *19 (W.D. Tenn. 2003) (the district court should exclude from the

initial fee calculation hours that were not “reasonably expended,” including hours that are

excessive, redundant, or otherwise unnecessary)18 (Ex. 4) (citing Black v. Lojac Enterps., 1997

U.S. App. LEXIS 17205 (6th Cir. 1997) (Ex. 7.) “A court may deny compensation for redundant

records on an item-by-item basis, Coulter, 805 F.2d at 152, or on an across-the-board percentage

basis, Hudson v. Reno, 130 F.3d 1193, 1209 (6th Cir. 1997).” Id. at *22. Attached as Exhibit 6

is a replication of Plaintiff’s time entries and individual, specific objections to these entries.19

 

same billing entry. Plaintiffs are not entitled to any deference or presumption in these entries, and they

should be reduced for duplication and excessive billing.

18 In Anglo-Danish Fibre Indust., the Court held that when multiple attorneys billed for overlapping

conferences or redundant research, review or drafting, that it would allow the full reasonable hourly rate

for the attorney billing at the highest rate, one-half the reasonable rate for the second attorney, and no

remuneration for more than two attorneys in a meeting, call or conference or performing redundant work.

2003 U.S. Dist LEXIS 10386 at *23-24. Defendant believes this approach to be reasonable, so long as

the hourly rate utilized is reduced to a reasonable rate, rather than accepted at the rate requested.

19 Defendant has summarily addressed herein categories of fees that should be denied, as well as

objections to the hourly billable rates requested by Plaintiffs’ counsel. The attached Exhibit supplements

these categories with specific objections to individual line entries submitted by Plaintiffs’ counsel.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 21 of 37
16

5. Fees Billed by Attorney Myron Wolf Should Be Disallowed As

Redundant, Duplicative, and Unnecessary

A cursory review of Mr. Wolf’s Billing Statement, submitted as a supplement to

Plaintiff’s original Motion, makes evident that Mr. Wolf had no substantive involvement in this

case, and that his fees are excessive and unwarranted. In January 2001, Mr. Wolf met with the

initiating plaintiffs in this action, reviewed the severance agreement package, and by early

February 2001, referred the plaintiffs to Theresa Groh at Murdock Goldenberg Schneider &

Groh. (See Notice of Filing, Time and Billing Statement of Myron A. Wolf, pp. 1-2, and Pls.’

Motion for Fees, Ex. 3, ¶ 5.) Following this referral, Mr. Wolf performed no substantive or

contributory work on this case.

Except for one entry to draft an affidavit (3/28/01-03/30/01), each of Mr. Wolf’s entries

consist solely of receiving and reviewing pleadings prepared by other counsel in this matter, and

conferences with Ms. Groh. Mr. Wolf’s entries include half an hour of time to review one and

two-page documents that would take a minute or two to peruse, and an hour to two hours to

review pleadings that could easily be digested in much less time. Mr. Wolf’s billing records

make clear he did not draft, revise or edit any of the pleadings submitted by the plaintiffs, did not

prepare any responses to defendant’s pleadings, and did not conduct any research to assist in

doing so. Neither Mr. Wolf nor Ms. Groh identified the topic of any of their conferences. It is

therefore impossible to determine if Mr. Wolf contributed any substantive or necessary

assistance during these conversations. His billing entries are duplicative of work performed by

other attorneys handling the case, unnecessary to its prosecution, vague, and excessive. His

 

Defendant respectfully requests the Court consider these additional objections for the reduction of the

lodestar to the reasonable and recoverable number of hours expended in this action.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 22 of 37
17

request for fees totaling $20,693.75 should therefore be denied in its entirety, excepting a

reasonable allowance of time for an initial consultation with the class representatives.

Defendant also objects to Mr. Wolf’s request for reimbursement of expenses for $14.23

for Airborne Express on 05/01/01. There is no indication of the reason for this expense, and no

obvious justification for fees for overnight delivery in an action in which plaintiffs, their counsel,

and the court are all in the same location.

6. Plaintiff Counsels’ Time Entries Should Be Denied to the Extent They

Are Too Vague to Determine Reasonableness

Attorneys must “maintain billing time records that are sufficiently detailed to enable the

courts to review the reasonableness of the hours expended.” Wooldridge v. Marlene Indus.

Corp., 898 F.2d 1169, 1176-77 (6th Cir. 1990). Where records are ambiguous, courts should not

apply any presumption in favor of the party seeking the fee. Id. at 1176. To the contrary, entries

that are vague or ambiguous do not merit an award. Anglo-Danish Fibre Indus., Ltd. V.

Columbian Rope Co., 2003 U.S. Dist. LEXIS 10386 *19 (W.D. Tenn. 2003) (Ex. 4) (citing

Black v. Lojac Enterps., 1997 U.S. App. LEXIS 17205 (6th Cir. 1997) (Ex. 7.)). “Billing entries

for conferences, memoranda, voicemail, emails, and letters, when the billing entries do not

identify the subject matter of the communication, are too vague to show whether the hours

expended are reasonable.” Id. at *20.

Many of Plaintiff counsels’ time entries suffer from this deficiency. (See objections

noted in Ex. 6 attached hereto.) There are numerous entries for “research” without any

explanation of the topic, as well as numerous “conferences” without any explanation of what was

discussed. (See, e.g.: 02/16/01 Conference with TLG and JSG, research ERISA, 9.25 hours;

02/16/01 Research and conference with JCM and TLG, 5 hours; 02/17/01 Research and fact

investigation, conferences with JCM, VBM, and JSG, 12 hours; 02/18/01 Research and fact

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 23 of 37
18

investigation; conferences with TLG and VBM, 12.75 hours; 02/26/01.) These deficiencies exist

throughout Plaintiff counsels’ billing records, and prevent an assessment of the reasonableness

of the time expended. (See Ex. 6 for objections to line-item entries.) Because Plaintiffs have

failed to establish the reasonableness of the time billed, recovery of attorneys’ fees for this time

should be denied. See Black v. Lojac Enterps., 1997 U.S. App. LEXIS 17205 *9-10 (6th Cir.

1997) (declining to award fees for activities such as “research,” “pick-up,” “revised form,” and

“office conference,” when the activities were not more specifically identified.)

Similarly, Plaintiffs’ counsel have “block billed” their time, including numerous tasks

under the same time entry. (See objections noted in Ex. 6.) This billing practice also prevents an

assessment of the reasonableness of the time expended on each task within the block. Because

documentation of these hours is inadequate, the court should reduce the award accordingly.

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L.Ed. 2d 40 (1983).

7. Plaintiffs’ Counsel May Not Recover Fees Incurred for Unnecessary

Discovery Disputes

Plaintiff expended a significant amount of time and fees drafting discovery and preparing

two motions to compel discovery objected to by Defendant. Plaintiffs’ motions (Document Nos.

27 and 28) were denied as moot upon the granting of Plaintiffs’ Motion for Judgment. (03/20/03

Amended Order at p. 29.) Plaintiff sought through this discovery to obtain documents and

information that were not part of the administrative record below and thus were not pertinent or

relevant to this action. University Hosp. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 845

(6th Cir. 2000) (the reviewing court considers “only the materials available to the [plan

administrator], and not any depositions, affidavits, or similar litigated-related materials); Schey

v. UNUM Life Ins. Co., 145 F. Supp. 2d 919, 921 (N.D. Ohio 2001) (a district court ordinarily

limits its review to the evidence contained in the administrative record). Plaintiff is not entitled

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 24 of 37
19

to recover attorneys’ fees or expenses incurred in these superfluous efforts. See Gerwen v.

Guarantee Mutual Life Co., 214 F.3d 1041 (9th Cir. 2000) (affirming subtraction of hours billed

for discovery sought because evidence outside the record was neither admissible not necessary to

litigate the case). Accordingly, time submitted by Plaintiffs’ counsel for these unnecessary

efforts should be subtracted from the lodestar attorneys’ fees. (See objections noted in Ex. 6.)

8. Plaintiffs’ Attorneys’ Fees Incurred to Prepare the Fee Petition is

Excessive

Counsel for Plaintiff expended 145 hours of time and $ 36,925 in preparing the

application for attorneys’ fees and supporting memorandum. Utilizing an average 40-hour

workweek, this encompasses over three and half weeks dedicated solely to the compilation of

fees, expenses, and the motion in support in recovery of these amounts. Of these 145 hours, Ms.

Groh expended 101.5 hours, totaling $32,987.50 of the fees incurred. Plaintiffs’ are not entitled

to reimbursement for this excessive amount.

As discussed above, Ms. Groh’s predominance in the significant research put into this

issue is unwarranted and not compensable at her billing rate. This research could have and

should have been handled by a less experienced associate on this matter. Instead, the fee

summary attributes only eight (8) hours of research or participation by Mr. Naylor on this

issue.20 In addition, some assumption must be made that a law firm that touts itself as handling 

mass tort litigation on a regular basis has compiled such petitions previously, and would not have

to expend this amount of time and research in preparation of the instant application.

Moreover, Plaintiffs claim attorneys fees for legal work performed while exhausting

ERISA administrative procedure. Minimal research should have shown Plaintiffs that such fees

are not recoverable under the clear holdings of the Sixth Circuit and all three other Circuit Courts

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 25 of 37
20

who have considered the issue. See Anderson, supra; Rego, supra; Peterson, supra; and Cann,

supra.

In any event, Plaintiffs, as a matter of law, are not entitled to recover more than three

percent (3%) of their total hours billed in compensation for preparation of the fee application.

Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986) (announcing a general rule that attorney

fee hours in seeking attorney fees in lodestar cases are allowed, but only up to 3 percent of the

total hours billed in obtaining relief); Moore v. Crestwood Local School Dist., 804 F. Supp. 960,

968-969 (N.D. Ohio 1992) (following Coulter three percent rule). Three percent of the total

hours submitted by Plaintiffs’ counsel, 1683.5 hours, is 50.5 hours. Plaintiffs’ recovery,

however, should be capped at three percent of the reasonable hours allowed by the Court

following the lodestar analysis and necessary reductions, not at the total hours submitted. In

light of the necessary reduction in hours for the administrative proceedings (319.75 hours), Mr.

Wolf’s time (approximately 70.0 hours), and the duplication of hours by several attorneys, and

the reduction in the hourly rate for low-level work performed by Ms. Groh, including her

primary role in research for and preparation of the fee application, significantly fewer hours

and/or a lower billable/blended rate should be utilized in this allowance.

 20 Mr. Naylor began working for the firm in February 2003, and was working there throughout the period

the fee petition was prepared.

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21

D. Plaintiff Counsel Is Not Entitled to a Multiplier

After a determination of the “lodestar” attorney’s fee, which is presumed to be the

reasonable fee to which counsel is entitled, the Supreme Court has recognized that other

considerations may lead the district court to adjust the fee upward or downward. See Hensley v.

Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Blum v. Stenson, 465

U.S. 886, 889, 104 S. Ct 1541, 79 L. Ed. 2d 891 (1984); Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air (I), 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986).

These considerations have been significantly limited over the years, however, and enhancements

are generally disfavored in fee-shifting cases absent exceptional circumstances. Delaware Valley

(I), 478 U.S. at 566.

The Supreme Court noted in its decision in Hensley that a district court may consider the

factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974),

pronounced by the Fifth Circuit and adopted by many courts in reasonable fee determinations,

and emphasized by the Plaintiffs in support of their fee application (see Pls’ Motion at pp. 6-11),

in determining whether to adjust the lodestar fee upward or downward. The Court noted,

however, that “many of these factors usually are subsumed within the initial calculation of hours

reasonably expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434.

The Court further limited the use of the Johnson factors in Blum v. Stenson, holding the

“novelty [and] complexity of the issues,” “the special skill and experience of counsel,” the

“quality of representation,” and the “results obtained” from the litigation are presumably

reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the

basic fee award. 465 U.S. 886, 898-900 (1984). (Emphasis added). In accord, Perotti v. Seiter,

935 F.2d 761 (6th Cir. 1991) (remanding case awarding 2.0 multiplier to district court for

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 27 of 37
22

reconsideration because Blum made clear “exceptional results, high caliber of representation,

and the difficulties presented by particular facts of the case . . . are not proper predicates for a

multiplier”).

In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (I), the Court further

limited the circumstances under which an enhancement to the lodestar fee could be made:

[W]hen an attorney first accepts a case and agrees to represent the client, he

obligates himself to perform to the best of his ability and to produce the best

possible results commensurate with his skill and his client's interests. Calculating

the fee award in a manner that accounts for these factors, either in determining the

reasonable number of hours expended on the litigation or in setting the reasonable

hourly rate, thus adequately compensates the attorney, and leaves very little room

for enhancing the award based on his post-engagement performance. In short, the

lodestar figure includes most, if not all, of the relevant factors constituting a

‘reasonable’ attorney’s fee, and it is unnecessary to enhance the fee for superior

performance in order to serve the statutory purpose of enabling plaintiffs to secure

legal assistance.

478 U.S. 546, 566, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986). The Court therefore held that

“[a]lthough upward adjustments of the lodestar figure are still permissible, [citing Blum, 465

U.S. at 901], such modifications are proper only in certain ‘rare’ and ‘exceptional’ cases,

supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.”

478 U.S. 546, 565 (1986) (emphasis added).

In City of Burlington v. Dague, the Supreme Court addressed whether a court, in

determining an award of fees under the Solid Waste Disposal Act or the Federal Water Pollution

Control Act, could enhance the fee award above the “lodestar” amount in order to reflect the fact

that a party’s attorneys were retained on a contingent fee basis, and also answered this question

in the negative. 505 U.S. 557, 559, 567, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992) (adopting the

plurality opinion in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (II), 483

U.S. 711, 727, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987) that “multipliers or other enhancement

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23

of a reasonable lodestar fee to compensate for assuming the risk of loss is impermissible under

the usual fee-shifting statutes”). The Court reasoned that “an enhancement for contingency

would likely duplicate in substantial part factors already subsumed in the lodestar.” 505 U.S. at

562. The Court noted that the fee-shifting provision under these statutes “is similar to that of

many other federal fee-shifting statutes,” and that “our case law construing what is a ‘reasonable’

fee applies uniformly to all of them.” 505 U.S. at 562. Accordingly, the Supreme Court’s

holding applies to the similar fee-shifting provision under ERISA, and prohibits an enhancement

of the plaintiff’s requested fee award based on the contingent nature of the action. Id. at 567.

See Drennan v. General Motors Corp., 977 F.2d 246, 254 (6th Cir. 1992) (holding attorney fee

award invalid to the extent enhanced for contingency under ERISA, and reversing and

remanding for findings of fact and statement of reasons); Murphy v. Reliance Standard Life

Insur. Co., 247 F.3d 1313, 1315-16 (11th Cir. 2001) (holding decision in Dague “applies with

equal force to actions brought under ERISA”). See also, Tinch v. City of Dayton, 199 F. Supp.

2d 758, 766-67 (S.D. Ohio 2002) (plaintiff’s request for an enhancement of the lodestar to reflect

the contingent nature of the litigation and the quality of counsel’s representation foreclosed by

City of Burlington v. Dague and Blum v. Stenson).

The Sixth Circuit subsequently held in Davis v. The Mutual Life Insurance Co. of New

York that the same reasoning applied by the Supreme Court in City of Burlington applies to a

request for fee enhancement based on the disproportionate effect that a piece of litigation has on

a small law practice. 6 F.3d 367, 381 (6th Cir. 1993). The Court noted that because “attention

detracted from other matters is devoted to the matter at hand, this factor is already reflected in

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 29 of 37
24

the lodestar in the number of hours expended” and does not justify the use of a multiplier.21 Id.

at 382.

The foregoing cases clearly foreclose the justifications offered by Plaintiffs in support of

enhancement of the lodestar by a 1.5 multiplier.22 (See Pls’ Motion for Fees at pp. 6-12). In

addition, the cases cited by Plaintiff in support of the request for a multiplier are inapplicable to a

determination of fees in this case. (See Bowling v. Pfizer, Inc., 922 F. Supp. 1261 (S.D. Ohio

1996); In Re Sulzer Hip Prosthesis, Ex. 11 to Pls’ Motion; Brotherton v. Cleveland, 141 F. Supp.

2d 907 (S.D. Ohio 2001); Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998); Florin v. Nationsbank

of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994); In Re: Southern Ohio Correctional Facility, 173

F.R.D. 205 (S.D. Ohio 1997) (citing Rawlings v. Prudential-Bache Proprties, Inc., 9 F.3d 513

(1993)), cited at pages 12-15 of their motion.) None of these cases relate to the determination of

a reasonable attorney’s fee under a fee-shifting statute. Instead, each of these cases relate to the

payment of fees by the Class out of a common fund established by settlement for the benefit of

the Class. Courts apply different standards to a common fund fee determination than to statutory

fee-shifting provisions. See e.g., Brotherton, 141 F. Supp. 2d at 910 (“Determining an award of

attorneys’ fees in a common fund requires that the court consider factors which are not present in

statutory fee shifting cases”) (citing Rawlings, 9 F.3d at 516); Florin, 34 F.3d at 563 (in ERISA

common fund cases, the award of attorneys’ fees is made pursuant to the principles of equity, not

 

21 The Sixth Circuit in Davis also overruled Fite v. First Tenn. Prod. Credit Assoc., 861 F.2d 884 (6th Cir.

1988) and cases subsequent to Delaware Valley that continued to allow the contingent nature of a fee to

justify an increase in the lodestar as inconsistent with City of Burlington. 6 F.3d at 382.

22 The Court in Davis further noted that “at least four Justices of the Supreme Court have concluded that,

as a general rule, courts should not enhance lodestars by more than one third.” Davis v. The Mutual Life

Insurance Co. of New York, 6 F.3d 367, 381 (6th Cir. 1993) (citing Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 483 U.S. 711, 730, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (1987) (plurality

opinion of White, J.))

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 30 of 37
25

ERISA’s fee-shifting provision); Cook, 142 F.3d at 1015 (distinguishing policy considerations

set forth in Dague for fee-shifting provisions from fee determinations in common fund cases).

The courts in these cases also recognized that the Supreme Court’s decision in City of

Burlington prohibits consideration of a multiplier for the contingency of a case under fee-shifting

statutes, but held that this decision does not necessarily preclude its consideration in a common

fund case. See, e.g. Florin, 34 F.3d at 563-63. Therefore, while the Court may consider this

factor with regard to the fee obligations of the Class to their counsel, it may not consider this

factor with regard to any fee obligations of Defendant to the Class.

Because each of the factors addressed by Plaintiffs in support of a multiplier are already

reflected in the lodestar, and they have provided no allowable justification for an enhancement of

the lodestar attorneys’ fee under the ERISA fee-shifting provision, their request for a multiplier

should be rejected.

E. Plaintiff’s Are Not Entitled to Recovery for All Expenses Submitted

As set forth above, Plaintiff’s expenses incurred during the administrative exhaustion

phase should be disallowed. In addition to this reduction, Plaintiffs’ photocopying expenses

should be significantly reduced because they have provided no explanation of what was copied,

and have thus failed to establish these copies were “necessarily obtained for use in the case,” and

because the per page copying costs are excessive and should be reduced to the standard five (5)

cents per page.23 Tinch v. City of Dayton, 199 F. Supp. 2d 758, 770 (S.D. Ohio 2002); 28 U.S.C.

§ 1920. Additional costs not allowed under 28 U.S.C. § 1920 should also be rejected, including

mileage and travel expenses for attorneys to Hamilton, Ohio ($80.52), facsimile costs ($53.40),

postage and federal express charges ($203.68), long distance telephone charges ($15.28),

 

23 This is especially true of Plaintiffs’ “excess copy charges” totaling $238.60 that provide no explanation

for the amount charged or the documents copied.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 31 of 37
26

parking, and meals. Id. at 771. Long distance telephone charges should also be disallowed

because these entries lack any description of the callers involved, and thus Plaintiffs have not

supported the relation of these expenses to the case. Plaintiffs’ charge for Burke Rosen &

Associates in the amount of $500.00 should also be rejected because there is no explanation of

the service provided for this fee.

F. Proposal for Reduction in Requested Attorneys’ Fees and Expenses

Plaintiffs’ seek a total of $733,809.39 in attorneys’ fees, and $5325.40 in expenses. For

all of the reasons set forth above, Defendant respectfully requests that the Court deny Plaintiffs’

motion for attorneys’ fees and expenses or, in the alternative, disallow or reduce the fees and

expenses as follows:

Proposed Calculation of Reasonable Fees and Expenses Hours Fees

Plaintiff’s Total Requested Fees and Expenses 1683.5 $739,134.79

Reject Plaintiffs’ request for a 1.5 multiplier to the total fees

billed, and begin the lodestar fee determination with the claimed

hours expended and hourly rates charged, 1683.5 hours, in the

amount of $489,206.25 + expenses of $5325.40.

1683.5 - $244,603.14

$494,531.65

Disallow fees and expenses incurred during the exhaustion of

ERISA administrative remedies, and deduct $107,906.38 from the

lodestar rate for these unrecoverable fees and expenses

-337.75

1346

-107,906.38

$386,625.27 

Disallow fees billed by Myron Wolf except for a reasonable fee

for initial consultation with Plaintiffs ($20,693.75 - $4950

(already deducted above for fees incurred during administrative

period) = $15,743.75 – $825 allowance for initial conference with

plaintiffs ($275/hr. x 3 hours) = reduction of $14,918.75

-54.25

1291.75

-$14,918.75

$371,706.52

Reduce Plaintiff counsels’ hourly rates to a reasonable rate, reduce

hourly rates across the board, and/or use reasonable blended rate

to account for level of work performed, such as extensive

research, discovery, drafting, and preparation of fee petition

performed at partner rate rather than associate rate. Proposed rate

is to use a $200 an hour reasonable blended rate times the

allowable billed hours = $258,350. Difference between billed

1291.75 

x $200/hr

-$113,374.27

$258,332.25

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 32 of 37
27

amount at excessive hourly rates and reasonable blended rate =

deduction of $113,374.27.

Disallow or reduce time billed for vagueness, block billing,

redundancy, duplication, excessiveness, etc. Recommend fifteen

percent across the board reduction. 

-193.76

1097.99

-$38,752.00

$219,580.25

Cap the fees incurred in Plaintiffs’ preparation of the fee

application to 3 percent of the total hours allowed (1097.99 x .03

= 32.94 hours deducted from 145 hours billed = deduction of

112.06 hours)

-112.06

 985.93

-$22,412.00

$197,168.25

Subtract nonrecoverable expenses ($1798.70 excess copying fees,

$53.40 facsimile, $203.68 postage, $80.52 mileage, $15.28 long

distance, $14.91 legal research, $500.00 Burke Rosen

&Associates = $2666.49)

-$2666.49

$194,501.76

Defendant accordingly requests that should the Court award attorneys’ fees and expenses

to Plaintiffs in this action, that the award by limited to approximately $194,501.76 for the

reasons set forth above.

III. PLAINTIFFS’ REQUEST FOR PREJUDGMENT INTEREST IS PREMISED

UPON INACCURATE LEGAL STANDARDS

The decision to grant pre-judgment interest lies within the sound discretion of the Court,

as does the determination of the pre-judgment interest rate. See Drennan v. General Motors

Corp., 977 F.2d 246, 253 (6th Cir. 1992), reh'g denied, cert. denied, 508 U.S. 940 (1993); Caffey

v. Unum Life Insurance Co., 302 F.3d 576, 585 (6th Cir. 2002); Ford v. Uniroyal Pension Plan,

154 F.3d 613, 619 (6th Cir. 1998) (citing EEOC v. Wooster Brush Co. Employees Relief Ass'n.,

727 F.2d 566, 579 (6th Cir. 1984)). As Plaintiffs stated, (Pl’s Motion at p. 24), the Sixth Circuit

has held that the statutory post-judgment framework set forth in 28 U.S.C. § 1961 is a reasonable

method for calculating a pre-judgment interest award. Uniroyal Pension Plan, 154 F.3d 613

(citing Wooster Brush Co., 727 F.2d at 579). The standard cited by Plaintiffs, however, is

incorrect under current law. The method for calculating the interest rate allowed on judgments

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 33 of 37
28

entered in district courts pursuant to 28 U.S.C. § 1961 changed effective December 21, 2000, and

currently states in relevant part that:

Such interest shall be calculated from the date of the entry of the judgment, at a

rate equal to the weekly average 1-year constant maturity Treasury yield, as

published by the Board of Governors of the Federal Reserve System, for the

calendar week preceding the date of judgment.

29 U.S.C. § 1961(a) (emphasis added). Plaintiffs’ request for the interest rate to be calculated

from the coupon issue yield equivalent for the last auction of fifty-two week United States

treasury bills settled prior to February 17, 2001 should accordingly be rejected.

Judgment has not yet been entered in this case. The applicable rates under the current

standard can be found at: http://www.federalreserve.gov/releases/h15. Accordingly, should the

Court decide to award prejudgment interest, the Court should look to the appropriate

prejudgment interest rate based on interest rates in effect at the time of judgment or an average

rate over the period when such severance would have been paid.

Plaintiffs request that prejudgment interest be applied from the date of their termination

from employment with International Paper on February 17, 2001. Under Severance Policy #828,

Section 11, however, Plaintiffs were required to file a claim requesting severance benefits, and

the Plan Administrator was allowed a total of sixty days, thirty for initial review and thirty on

administrative appeal, in which to make a determination on the claim. Because Plaintiffs failed

to pursue their claims through the appropriate administrative channels, the Court stayed the

proceedings in this action pending exhaustion of these efforts. Any prejudgment interest should

therefore begin to accrue no earlier than June 26, 2001, sixty days following entry of the Court’s

April 27, 2001 Order staying the action until Plaintiffs exhausted administrative procedures.

Plaintiffs’ request that interest be applied from February 17, 2001 should be rejected, because

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 34 of 37
29

Plaintiffs’ claim for denial of benefits under ERISA had not accrued until Plaintiffs exhausted

their administrative remedies.

In conclusion, if the Court determines that an award of prejudgment interest is

appropriate, such interest should accrue at a date no earlier than June 26, 2001, at an interest rate

equal to the weekly average 1-year constant maturity Treasury yield in effect at the time of

judgment or some average of rates in effect between June 26, 2001 and the date of judgment.

IV. CLASS REPRESENTATIVES DALESANDRO AND NOONAN ARE NOT

ENTITLED TO AN INCENTIVE AWARD UNDER ERISA

Plaintiffs’ Motion also includes a request for an incentive award of $10,000 each for the

two class representatives, Scott Dalesandro and Diane Noonan, to be paid out of the total

severance payment fund. This request does not implicate any additional amounts requested or

due from International Paper above actual Policy #828 benefits, but instead are amounts to be

deducted pro rata from the recovery of individual class members. Defendant respectfully

submits that incentive awards are not recoverable under ERISA in light of the Supreme Court’s

interpretations of ERISA’s equitable remedial provisions.

ERISA § 502(a)(3) permits plan participants to bring civil actions to obtain “appropriate

equitable relief” to redress violations of the statute or a plan. The Supreme Court has held that

the text of ERISA leaves no doubt that Congress intended “equitable relief” to include only those

types of relief that were typically available in equity, such as injunction, mandamus, and

restitution. Mertens v. Hewitt Assocs., 508 U.S. 248, 254-55, 256, 113 S. Ct. 2063, 124 L. Ed.

2d 161 (1993); Great-West Life & Annuity Insur. Co., 534 U.S. 204, 210, 122 S. Ct. 708, 151 L.

Ed. 2d 635 (2002). The incentive awards requested by Plaintiffs cannot be construed as any type

of relief typically available in equity. Instead, what Plaintiffs seek is money damages -

compensation for time expended in pursuit of this action on their own behalf and the behalf of

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 35 of 37
30

others in the class. The Supreme Court in Mertens made clear that money damages, “the classic

form of legal relief,” are precluded by ERISA’s remedial provisions. Id. at 255 (emphasis in

original). Plaintiffs in Mertens sought “monetary relief for all losses their plan sustained as a

result of the alleged breach of fiduciary duties,” relief that the Supreme Court held could only be

considered compensatory damages unrecoverable under ERISA. Id. at 255. The incentive

awards sought by the class representatives are no different than the legal relief sought by the

Plaintiffs in Mertens, and should be rejected.24 See also Caffey v. Unum Life Insur. Co., 302

F.3d 576 (6th Cir. 2002) (ERISA does not permit recovery for consequential losses experienced

as a result of Unums’ failure to perform under the Plan); Kerr v. Vatterott & Co., 184 F.3d 938,

944-45 (8th Cir. 1999) (compensatory damages, which focus on the plaintiff’s losses and seek to

recover in money the value of the harm done to him, are not recoverable under § 1132(a)(3)).

V. CONCLUSION

Plaintiffs request for attorneys’ fees, expenses, prejudgment interest, and incentive

awards should be denied or reduced in significant portion for the reasons set forth above.

Respectfully submitted,

INTERNATIONAL PAPER CO.

By: 

 Of Counsel

COUNSEL FOR DEFENDANT

INTERNATIONAL PAPER CO.

 

24 Should the Court ultimately determine an incentive award is recoverable and appropriate in this action,

Defendant believes the incentive award requested to be excessive in light of the time expended by the

class representatives and disproportionate to the average amounts due class members under Policy #828.

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 36 of 37
31

Michael A. Roberts (OH Bar No. 0047129)

 Graydon Head & Ritchey, LLP

1900 5th 3rd Center

511 Walnut Street

Cincinnati, Ohio 45202

(513) 629-2799

W. Carter Younger (VSB 01147)

(Admitted Pro Hac Vice)

James P. McElligott, Jr. (VSB 014109)

(Admitted Pro Hac Vice)

McGuireWoods LLP

One James Center

Richmond, VA 23219

(804) 775-4363

CERTIFICATE OF SERVICE

I hereby certify that on this _____ day of September 2003, a true and complete copy of

this document was delivered via first class mail to Counsel for Plaintiff, Theresa L. Groh, Esq.,

and John C. Murdock at Murdock, Goldenberg, Schneider & Groh, L.P.A., 700 Walnut Street,

Suite 400, Cincinnati, Ohio, 45202.

_____________________________

#386565

Case 1:01-cv-00109-SSB Document 49 Filed 09/16/2003 Page 37 of 37