IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Scott D. Dalesandro, )

et al., )

) 

Plaintiffs, ) Case No. 1:01-CV-109

)

vs. )

)

International Paper )

Company, )

)

Defendant. )

O R D E R

This matter is before the Court on Plaintiffs’ motion

for attorney’s fees, expenses, interest, and incentive awards

(Doc. No. 45) and supplemental motion for attorney’s fees and

expenses (Doc. No. 67).

This case is an ERISA class action in which the

Plaintiffs claimed benefits pursuant to a severance benefits plan

under the Champion International Paper Corporation Reorganization

Policy #828. Plaintiffs are a class of former employees of

International Paper Company who accepted employment with Smart

Paper, LLC when Smart Paper purchased the Hamilton B Street Mill

from International Paper. International Paper denied Plaintiffs’

claims for benefits on the grounds that, because they had

received offers of employment from Smart Paper, Plaintiffs had

not suffered an adverse employment action and, therefore, were

not entitled to receive severance benefits. On review of the

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 1 of 57
1 Section 1132(g) provides:

(g) Attorney's fees and costs; awards in actions 

involving delinquent contributions

(1) In any action under this subchapter (other than an

action described in paragraph (2)) by a participant,

beneficiary, or fiduciary, the court in its discretion

may allow a reasonable attorney's fee and costs of

action to either party.

2

plan administrator’s decision, the Court determined that the plan

administrator’s decision was arbitrary and capricious because he

made eligibility for benefits contingent upon his own definition

of “employment action” when the plan provided that benefits were

payable upon “termination,” a term that was clearly defined by

the plan and which obviously encompassed the termination of

Plaintiffs’ employment from International Paper. The Court,

therefore, ruled that Plaintiffs were entitled to receive

severance benefits under the terms of the plan. In the same

order, the Court certified a class of similarly-situated former

employees who are eligible to receive severance benefits under

the plan.

The foregoing is but a thumbnail sketch of the

procedural history of this case. There are other procedural and

substantive events of consequence relevant in this case. The

Court, however, will reserve description of those events until

they become relevant to the analysis of Plaintiffs’ claims for

fees, expenses, interest, and incentive awards. Pursuant to 28

U.S.C. § 1132(g),1

 Plaintiffs seek attorney’s fees of $902,481.38

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 2 of 57
3

and costs of $12,874.79. Plaintiffs also move for an award of

prejudgment interest and named Plaintiffs Scott Dalesandro and

Diane Noonan each seek an incentive award of $10,000. 

Plaintiffs’ claim for attorney fees represents 2,116.90 claimed

hours by six attorneys and one paralegal at various rates,

totaling $601,654.25, enhanced by a multiplier of 1.5.

In its brief, International Paper suggests that an

award of attorney’s fees against it is not warranted, but, if the

Court does decide to award attorney’s fees, International Paper

lodges a number of objections against the fees claimed by

Plaintiffs. Specifically, International Paper objects to hours

spent during the administrative process and objects to billings

for alleged duplicative work. International Paper also objects

to counsels’ hourly rates as being excessive for this venue and

to counsels’ billing increments. International Paper claims that

counsel’s fees are excessive for the work performed. 

International Paper contends that counsel’s billing records are

too vague, that Plaintiffs should not be compensated for pursuing

unnecessary discovery disputes, and that the fees claimed for

preparing the fee petition are excessive. International Paper

also objects to the claim for a fee multiplier and opposes

Plaintiffs’ claim for expenses. International Paper argues that

the Court should not give incentive awards to the named

Plaintiffs. In fact, it is fair to say that International Paper

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 3 of 57
4

opposes almost every aspect of Plaintiffs’ fee application. 

International Paper suggests that a more appropriate fee award

would be in the neighborhood of $194,000.

While the Court does not agree with all of

International Paper’s arguments, the Court does find that

Plaintiffs’ claim for fees should be reduced. The Court takes up

the issues presented essentially seriatim.

A. Whether Attorney’s Fees Should Be Awarded

The district court has discretion in deciding whether

to award attorney’s fees to a prevailing plaintiff in an ERISA

case. Armistead v. Vernitron Corp., 944 F.2d 1287, 1301 (6th

Cir. 1991). In determining whether to award attorney’s fees, the

trial court is required to consider the following 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 benefit on all participants and beneficiaries

of an ERISA plan or resolve significant legal questions regarding

ERISA; and 5) the relative merits of the party’s positions. Id.

At the outset, the Court notes that International Paper

concedes the second and fourth elements, that is, it has the

financial ability to satisfy a reasonable award of attorney’s

fees and that Plaintiffs sought to confer a benefit on many of

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 4 of 57
5

the plan’s participants. See Doc. No. 49, at 3 n.1. The Court

finds that the remaining factors weigh in Plaintiffs’ favor as

well.

Regarding the opposing party’s bad faith or

culpability, the Court observes that Plaintiffs prevailed in this

matter under the arbitrary and capricious standard, which is the

least demanding form of judicial review. The Court is cognizant

that an arbitrary and capricious denial of benefits does not

necessarily indicate culpability or bad faith. See Heffernan v.

Unum Life Ins. Co. of Am., 101 Fed. Appx. 99, 109 (6th Cir.

2004); but see Gatlin v. National Healthcare Corp., 16 Fed. Appx.

283, 290 (6th Cir. 2001)(culpability requirement satisfied where

plan administrator’s decision was arbitrary and capricious). 

Nevertheless, even if prevailing under the arbitrary and

capricious standard does not automatically satisfy the first

element, the Court finds that it is satisfied in this case. In

reaching this conclusion, the Court notes that in rendering his

decision, the plan administrator ignored the plain language of

the plan which favored Plaintiffs and imported his own terms and

definitions in order to deny Plaintiffs’ claims for benefits. 

Thus, International Paper was plainly culpable in this case. 

Moreover, the plan administrator’s interpretation of

the plan is suggestive of bad faith. As indicated above, despite

clear language to the contrary, the plan administrator

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 5 of 57
2 In that order the Court stated:

The Court notes that a earlier severance plan adopted

by Champion contained a provision which specifically

made employees who were hired by the purchaser

ineligible for severance benefits. See Doc. No. 29,

Ex. 14, § 1.8(a) (“Excluded Employee is an employee who

. . . is offered employment by the Purchaser.” 

6

interpreted the plan to deny benefits to employees who received

job offers from Smart Paper. If this were a good faith

interpretation of the plan, then one must question why the plan

was amended to delete language which clearly and specifically

excluded employees who received subsequent offers of employment

from the purchaser of the Mill from coverage. See Doc. No. 40,

(Court’s order ruling on motions for judgment on the

administrative record), at 16.2

 The plan amendment coupled with

the plan administrator’s unsupportable decision gives credence to

Plaintiffs’ theory that International Paper amended the plan in

order to retain its workforce so that it could sell the Mill as a

going concern and then reneged on its obligations under the

amended plan because of the expense. See Doc. No. 29, at viiviii. Therefore, this factor favors Plaintiffs. 

The above analysis indicates that International Paper’s

position on the proper interpretation was relatively weak and

that Plaintiffs’ position was relatively strong. Thus, the last

factor favors Plaintiffs.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 6 of 57
7

Finally, with regard to the third factor, an award of

attorney’s fees against International Paper would serve as a

warning to employers not to use their employees and their

employees’ benefits as pawns in their corporate maneuverings. 

ERISA was enacted to prevent employers from circumventing their

obligations and frustrating employees’ expectations regarding

their promised benefits. Becker v. Mack Trucks, Inc., 281 F.3d

372, 381 (3rd Cir. 2002). An award of attorney’s fees in this

case would remind other employers that they are not to trifle

with their employees’ benefits.

In summary, the Court finds that all of the factors

favor awarding Plaintiffs their reasonable attorney’s fees in

this case.

B. The Fees Claimed

Plaintiffs’ claim for attorney’s fees and expenses is

summarized as follows:

Attorney Hours Rate Total 

Theresa Groh 1,260.05 $325/hr $409,516.25

John C. Murdock 451.55 $300/hr $135,465.00

Myron A. Wolf 75.25 $275/hr $ 20,693.75

Jeffrey S. Goldenberg 17.7 $275/hr $ 4,867.50

Todd B. Naylor 21.3 $200/hr $ 4,260.00

V. Brandon McGrath 32.5 $150/hr $ 4,875.00 

Paralegal

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 7 of 57
8

Stephanie Vaaler 258.55 $ 85/hr $ 21,976.75

Total Hours & Fees 2,116.90 $601,654.25

Doc. No. 67. Ex. 1-A. 

In addition, as mentioned, Plaintiffs seek to multiply

the base fee by 1.5 as a reward for the quality of service and

for obtaining exceptional success. Plaintiffs also appear to

suggest that a multiplier would be appropriate because of their

contingent fee arrangement. However, in City of Burlington v.

Dague, 505 U.S. 557 (1992), the Supreme Court held that where a

federal fee shifting statute is applicable, as is the case here,

the trial court may not employ a multiplier to compensate for

contingent fee arrangements. Id. at 567. Therefore, counsels’

contingent fee arrangement is not a proper basis for increasing

the fees above the lodestar with a multiplier. Plaintiffs’ claim

for a 1.5 multiplier would have brought their application for

attorney’s fees up to $902,481.38.

B. The Hours Billed and Defendant’s Objections

The lodestar amount, i.e., the reasonable hours

expended times a reasonable hourly rate, is presumptively a

reasonable award of attorney’s fees for the prevailing party. 

Building Serv. Local 47 v. Grandview Raceway, 46 F.3d 1392, 1401

(6th Cir. 1995). The Court should not, however, award the

plaintiff attorney’s fees for duplicative or excessive hours. Cf.

Wayne v. Village of Sebring, 36 F.3d 517, 532-33 (6th Cir. 1994).

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 8 of 57
3 As indicated by the following entries with the hours in

parentheses: June 30, 2003 (.50), July 9, 2003 (9), July 10, 2003

(10), July 11, 2003 (10), July 14, 2003 (11.5), July 15, 2003

(12), July 21, 2003 (13), July 22, 2003 (1), July 24, 2003 (8),

July 25, 2003 (10), July 30, 2003 (9), July 31, 2003 (11.5),

August 1, 2003 (2.30), August 2, 2003 (1.80), August 3, 2003

(2.50), August 4, 2003 (3.80), August 5, 2003 (1.30), August 6,

2003 (2.50), August 7, 2003 (3.30), August 8, 2003 (5.20), August

11, 2003 (.80), September 17, 2003 (3.50), September 18, 2003

(6.20), September 22, 2003 (5.80), October 9, 2003 (1), October

10, 2003 (3.70), October 13, 2003 (9.80), October 14, 2003 (.70),

October 16, 2003 (6.20), October 17, 2003 (5.50), October 20,

2003 (11.50), October 21, 2003 (8.20), August 3, 2004 (1.80),

August 4, 2004 (2.70), August 10, 2004 (8.50), August 11, 2004

(6.80), August 12, 2004 (4.20), August 13, 2004 (3.70), August

16, 2004 (2.50), August 17, 2004 (2.80), and August 18, 2004

(4.30). 

4 As indicated by the following entries with the hours in

parentheses: August 4, 2003 (.30), August 7, 2003 (.80),

September 17, 2003 (.80), September 22, 2003 (3.25), October 9,

2003 (1.00), October 20, 2003 (9.50), October 21, 2003 (7.25),

and August 13, 2004 (1.80).

5 As indicated by the following entries with the hours in

parentheses: April 23, 2003 (8) and October 16, 2003 (5.30).

6 As indicated by the following entries with the hours in

parentheses: June 30, 2003 (3.50), July 1, 2003 (5.75), July 2,

2003 (6.00), July 3, 2003 (6.00), July 7, 2003 (6.25), August 11,

2003 (1.50), October 14, 2003 (3.30), October 16, 2003 (2.70),

9

The Court will begin its analysis of the hours expended

with an obvious problem. International Paper argues, and the

Court agrees, that the time spent and billed by Plaintiffs’

counsel in preparing the fee application was excessive. By the

Court’s calculation, Ms. Groh’s appears to have spent 228.60

hours on this task.3 Mr. Murdock has billed 24.70 hours for the

fee petition.4

 Mr. Naylor spent 13.3 hours on fee-related

issues.5 Paralegal Stephanie Vaaler apparently devoted 42.20

hours to fee petition.6 The Court notes that some of both Ms.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 9 of 57
October 20, 2003 (3.00), and October 21, 2003 (4.20).

10

Groh’s and Ms. Vaaler’s billings for preparing the fee

application are included with billings for other tasks. For

example, on October 13, 2003 Ms. Groh billed a block of 9.80

hours with the description:

Review letters from class members objecting to

Defendants’ calculation of benefits; conference with

SAV re: same; review and research Defendants’

Opposition to Attorney’s Fees Motion; outline and draft

Reply; phone conference with defense counsel McElligott

re: employees’ objections to Defendants’ calculations

of benefits; phone conference with James Hillmann re:

customary copy charges; draft Hillmann Affidavit.

See Doc. No. 67, Ex. 1-A, at 5. The Court has no way to discern

from this description how many hours Ms. Groh spent on the motion

for fees. Similar entries are logged on July 9, 2003, July 21, 

See id.; Doc. No. 45, Ex. 1. Ms. Vaaler also has a vague or

unspecific entry for fees on October 16, 2003. The Court may

deduct a reasonable amount of hours if the attorney fails to

account adequately for large blocks of time. Case v. Unified

Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). Given,

however, that Ms. Groh spent parts of forty-one different days

working on the fee application, it seems safe to assume to that

the bulk of the blocked time was also spent on fees. The Court,

therefore, assumes that 90%, or 205.74, of the 228.60 hours was

actually spent by Ms. Groh on the fee application. Ms. Vaaler’s

vague time entry, which was only for 2.70 hours, is rather de

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 10 of 57
11

minimis. Therefore, the Court will assume that all of that time

was spent on fee related issues. 

Using the figures above, counsel expended 285.94 hours,

or 13.50% of the time billed, preparing and defending their fee

petition. In Coulter v. State of Tenn., 805 F.2d 146 (6th Cir.

1986), the Court held that hours spent preparing and litigating

the attorney fee case should not exceed 3% of the fees allowed in

the underlying case where the issue is submitted on papers

without a trial. Id. at 151. The Court will, therefore, at this

time deduct 285.94 hours from the base hours claimed of 2,116.90,

and then add back 3% of the final hours allowed for litigating

the fee application after further remaining adjustments are made. 

Thus far, the subtotal of hours allowed is 1,830.96.

International Paper also argues that Plaintiffs should

not be compensated for time expended in an unsuccessful attempt

to recoup payment for accrued but unused vacation time. The

Court agrees. Normally, in assessing fees, the trial court will

judge the plaintiff’s degree of success as a whole rather than

parsing the case into successful and unsuccessful claims. 

Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The exception is

where the plaintiff asserts distinct claims for relief based on

different facts and legal theories. Id. at 434. In such a case,

the trial court may judge success on a claim-by-claim basis and

adjust the fee accordingly. Id. 

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 11 of 57
7 As indicated by the following entries with the hours

expended in parentheses: October 13, 2003 (.98), October 27, 2003

(3.80), October 28, 2003 (7.80), October 29, 2003 (9.20), October

31, 2003 (1.70), November 10, 2003 (8.00), November 11, 2003

(6.70), November 12, 2003 (4.50), November 14, 2003 (.50),

November 17, 2003 (1.80), November 18, 2003 (.80), November 19,

2003 (1.20), November 21, 2003 (1.20), December 1, 2003 (1.30),

December 2, 2003 (6.50), December 3, 2003 (3.50), December 8,

2003 (2.00), December 9, 2003 (3.80), December 10, 2003 (1.00),

December 11, 2003 (1.50), December 12, 2003 (4.20), December 15,

2003 (2.70), December 16, 2003 (3.70), December 17, 2003 (4.20),

December 18, 2003 (3.30), December 22, 2003 (.70), December 23,

2003 (.50), January 9, 2004 (.70), January 14, 2004 (2.50),

February 10, 2004 (2.00), February 17, 2004 (1.50), February 18,

2004 (2.80), March 1, 2004 (1.50), March 2, 2004 (.80), and March

5, 2004 (.50). With regard to the October 13, 2003 time entry,

the Court has already deducted 90% of that entry because of

vagueness of the entry on time spent preparing the fee

application. In order to avoid double-counting, the Court only

deducted the remaining 10%, or .98 hours, for time spent on the

vacation pay issue.

12

Plaintiffs’ claim for payment for accrued but not used

vacation time, while perhaps not technically a distinct claim for

relief, was obviously an afterthought injected into the case

after some of the class members objected to their benefits

calculations. See Doc. No. 63 (Court’s order holding that

Plaintiffs failed to properly assert claims for vacation pay). 

The vacation pay issue was a separate and distinct phase of the

litigation in which Plaintiffs clearly did not prevail. 

Therefore, the Court concurs with International Paper that

Plaintiffs should not be compensated for hours expended in their

late-breaking and unfruitful attempt to recover vacation pay in

this case. By the Court’s calculation, Ms. Groh expended 98.48

hours on this issue,7 Mr. Murdock spent 12.50 hours on this

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 12 of 57
8 As indicated by the following entries with the hours

expended in parentheses: October 27, 2003 (3.50), October 28,

2003 (2.90), October 29, 2003 (2.70), November 1, 2003 (.70),

November 10, 2003 (.30), November 11, 2003 (.50), November 12,

2003 (.30), November 14, 2003 (.20), November 17, 2003 (.50),

November 18, 2003 (.20), and November 19, 2003 (.70).

9 As indicated by the following entries with the hours

expended in parentheses: October 13, 2003 (.20), October 15, 2003

(3.80), October 29, 2003 (2.00), November 6, 2003 (4.00),

November 7, 2003 (5.50), November 10, 2003 (5.80), November 11,

2003 (4.00), November 12, 2003 (.50), November 17, 2003 (.50),

November 18, 2003 (3.00), November 19, 2003 (.90), December 1,

2003 (.70), December 2, 2003 (4.30), December 11, 2003 (1.80),

December 12, 2003 (1.00), December 18, 2003 (1.70), December 19,

2003 (.80), December 22, 2003 (1.30), December 23, 2003 (1.30),

January 9, 2004 (1.50), January 21, 2004 (3.00), January 22, 2004

(2.90), January 23, 2004 (5.00), March 2, 2004 (.20), March 3,

2004 (.50), March 4, 2004 (2.00), and March 5, 2004 (2.20).

13

issue,8 and Ms. Vaaler spent 60.4 hours on this issue.9 The

Court, therefore, will deduct an additional 171.38 hours from the

hours billed. The subtotal of allowed hours thus far is

1,659.58.

The next point of contention is whether Plaintiffs

should receive attorney’s fees for time spent during the

administrative process, which in this case, also includes time 

spent litigating International Paper’s motion to stay and whether

Plaintiffs would be required to exhaust the available

administrative remedies. International Paper argues that

Plaintiffs should not receive attorney’s fees for exhausting the

administrative process. Plaintiffs argue that they should be

compensated because the fees were incurred at International

Paper’s insistence (in other words, International Paper could

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 13 of 57
14

have waived the normal exhaustion requirement) to pursue a futile

administrative process for purposes of delay. This presents a

close question because, on one hand, there had not been a final

interpretation of the plan by the plan administrator at the time

Plaintiffs initiated this lawsuit. Indeed, as the Court noted in

an earlier order, Plaintiffs commenced this lawsuit about a week

after filing their claims for severance benefits. On the other

hand, Plaintiffs make a persuasive argument that the outcome of

the administrative process was a foregone conclusion and they

should not have been required to pursue it at all.

The principal case from our circuit on this point is

Anderson v. Proctor & Gamble Co., 220 F.3d 449 (6th Cir. 2000),

in which the Court held that a prevailing ERISA claimant could

not recover attorney’s fees for the administrative phase of a

benefits proceeding. Id. at 456. In Anderson, as opposed to

this case, the plaintiff prevailed during her administrative

appeal and filed a federal suit solely for the purpose of

recovering her attorney’s fees. In this case, Plaintiffs filed

suit in federal court to recover benefits alleged to be due, and

only later incurred fees in the administrative process. 

Nevertheless, Peterson v. Continental Cas. Co., 282 F.3d 112 (2nd

Cir. 2002), on which Plaintiffs rely, is also distinguishable. 

In Peterson, the claimant filed a claim for benefits and pursued

the claim through a final decision at the administrative level

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 14 of 57
15

before filing suit in federal court. The district court remanded

the case to the plan administrator to consider the medical

evidence against the claimant’s true regular occupation. The

plan administrator again denied benefits to the claimant. The

district court held that the plan administrator’s decision was

arbitrary and capricious and reversed the decision. The district

court awarded the claimant attorney’s fee incurred during the

administrative process both before and after she filed the

federal suit. On appeal, the Court held that the claimant could

not recover the attorney’s fees she incurred for the prelitigation administrative process, but that she could recover the

attorney’s fees she incurred in the second administrative

proceeding after the district court acquired jurisdiction and

remanded the case to the plan administrator. See id. at 119-23. 

This case is distinguishable from Peterson because

Plaintiffs had not exhausted any administrative process when they

filed this lawsuit. Moreover, this Court did not remand issues

to the plan administrator for reconsideration. Rather, the Court

merely stayed the case so that the initial administrative process

could be completed. Thus, this case is more like Anderson and

the Peterson Court’s holding on pre-litigation administrative

process fees, than the Peterson Court’s holding on postlitigation administrative process fees. In other words,

Plaintiffs filed this lawsuit at such an early stage in the

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 15 of 57
16

process that, although they incurred legal fees during

administrative proceedings post-litigation, in reality the

administrative process was the functional equivalent of a prelitigation proceeding. Therefore, the Court finds that Anderson

controls the decision here and mandates that Plaintiffs may not

recover attorney’s fees for exhausting the administrative

process. Similarly, Plaintiffs should not recover fees for time

spent litigating the motion to stay as these fees would not have

been incurred had they allowed the administrative process to play

out. Although the Court is not without misgivings about this

decision because of the relative predictability of the plan

administrator’s decision, a contrary result would tend to

encourage the premature institution of federal proceedings and

thwart the purpose of requiring exhaustion of remedies in ERISA

cases. Costantino v. TRW, Inc., 13 F.3d 969, 975 (6th Cir. 1994)

(listing policies behind administrative exhaustion requirement).

The Court’s review shows that Ms. Groh spent 140.75

hours on the administrative process and litigating the motion to

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 16 of 57
10 As indicated by the following entries with the hours

expended in parentheses: March 20, 2001 (8), March 21, 2001

(5.5), March 22, 2001 (10), March 23, 2001 (6.50), April 4, 2001

(4), April 5, 2001 (4), April 6, 2001 (6), April 9, 2001 (7),

April 12, 2001 (.75), April 23, 2001 (3.50), April 27, 2001 (3),

September 25, 2001 (1.50), October 10, 2001 (11), October 11,

2001 (12), October 12, 2001 (12), October 13, 2001 (6), October

14, 2001 (10), October 15, 2001 (7), December 7, 2001 (5),

December 10, 2001 (9), December 11, 2001 (2), January 11, 2002

(5), and January 14, 2002 (2).

11 As indicated by the following entries with the hours

expended in parentheses: March 20, 2001 (6.25), March 22, 2001

(7.75), March 23, 2001 (5.50), March 30, 2001 (1.50), April 4,

2001 (3.50), April 6, 2001 (1.50), April 9, 2001 (6.50), April

12, 2001 (.75), April 23, 2001 (1.50), April 27, 2001 (1.50),

December 7, 2001 (2.75), December 11, 2001 (1.50), January 11,

2002 (3.25), and January 14, 2002 (1).

17

stay10 and Mr. Murdock spent 44.75 hours on these tasks.11 The

Court will, therefore, deduct an additional 185.50 hours from the

total claimed. The subtotal of hours allowed thus far is

1,474.08.

The next issue for consideration is whether Plaintiffs

should be awarded attorney’s fees for time spent on discovery

issues. International Paper argues that Plaintiffs should not be

compensated for pursuing unnecessary discovery disputes. 

International Paper seeks to exclude hours billed for drafting

discovery requests and preparing and filing two motions to compel

to obtain documents that were not part of the administrative

record and therefore not relevant to the case. Plaintiffs’

discovery fees are split between merits issues and class

certification issues. The Court agrees with International Paper

that Plaintiff should not recover fees for time spent preparing

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 17 of 57
18

merits-based discovery requests and motions, although Plaintiffs

should be compensated for class certification discovery issues.

In an ERISA case, the Court’s review is typically

limited to the record that was before the plan administrator, and

the plaintiff is not entitled to discovery beyond the

administrative record except to resolve procedural issues on

claims of denial of due process by the plan administrator or

claims of alleged bias on the part of the plan administrator. 

Putney v. Medical Mut. of Ohio, 111 Fed. Appx. 803, 806-07 (6th

Cir. 2004). In their reply brief, Plaintiffs argue that pursuit

of discovery was necessary to develop a factual basis for such

due process and bias claims. See Doc. No. 53, at 25-26. The

Court notes, however, that counsel expended hours on discovery

issues at the outset of the case, when the administrative process

had just commenced. At that early stage, until Plaintiffs had

actually been thwarted by the plan administrator in their attempt

to develop a proper administrative record, and had suffered

prejudice as a result by a denial of their claims, there was no

need to conduct discovery on these issues. This points out the

wisdom of letting the plan’s administrative process play out - it

keeps the parties from pursuing issues that may not be of

consequence. 

Moreover, as opposed to a case involving a claim for

medical or disability benefits in which there is likely to be

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 18 of 57
19

substantial documentary evidence to present to the plan

administrator, in large part this case presented a question of

plan interpretation based on a set of mostly undisputed facts. 

In other words, there was likely to be little dispute over the

basic facts. Plaintiffs were participants in the plan, their

employment with International Paper ended, and they were hired or

were offered jobs by Smart Paper. The only question was whether

that set of facts established entitlement to severance benefits

under the plan. Thus, in the Court’s opinion, there is very

little the plan administrator could have done to unfairly

restrict the administrative record. The Court, therefore, agrees

with International Paper that at least some of the hours billed

by counsel in pursuit of merits discovery issues will have to be

deducted.

In determining how many hours to deduct for time

expended on merits discovery issues, the Court is again faced

with entries in which time on discovery is commingled with time

on other issues. Initially, therefore, the Court will simply

total hours in which discovery or merits discovery is an entry

(excluding entries which clearly show time spent on class

certification discovery, which the Court believes was time

reasonably and properly spent) and then attempt to arrive at a

proper estimation of the time that should be deducted. The

Court’s review of counsel’s time sheets shows that Ms. Groh has

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 19 of 57
12 As indicated by the following entries with the hours

expended in parentheses: February 21, 2001 (14), February 23,

2001 (5.5), May 28, 2001 (2.5), May 29, 2001 (4), May 30, 2001

(7), May 31, 2001 (4), June 1, 2001 (2.5), June 2, 2001 (7), June

4, 2001 (10), June 5, 2001 (8.5), June 6, 2001 (.50), August 3,

2001 (6), August 10, 2001 (.50), August 17, 2001 (1), May 1, 2002

(10), May 2, 2002 (7.5), May 17, 2002 (2.5), June 3, 2002 (1),

June 5, 2002 (1), June 6, 2002 (.50), June 18, 2001 (.75), June

19, 2001 (1), June 20, 2001 (2.5), July 30, 2001 (2), August 3,

2001 (6), August 10, 2001 (.50), August 17, 2001 (1), June 25,

2002 (12), June 26, 2002 (14), June 29, 2002 (13), June 30, 2002

(14), July 1, 2002 (12), July 2, 2002 (12), July 3, 2002 (14),

July 8, 2002 (1), July 23, 2002 (3.0), July 24, 2002 (9), July

25, 2002 (11), July 27, 2002 (12), July 28, 2002 (14), July 30,

2002 (14), August 2, 2002 (14), August 3, 2002 (12), August 4,

2002 (12), August 6, 2002 (13), August 7, 2002 (10), August 8,

2002 (8), and August 9, 2002 (9).

13 As indicated by the following entries with the hours

expended in parentheses: February 21, 2001 (12.25), May 1, 2002

(8.50), May 2, 2002 (4.25), May 23, 2002 (1), August 8, 2002

(10.25), and August 9, 2002 (6.75).

20

entries totaling 342.25 hours in which at least part of the time

was expended on discovery issues.12 Mr. Murdock’s time sheet has

entries totaling 43 hours in which at least some of the time was

apparently expended on merits discovery.13 Mr. McGrath devoted

four hours to discovery-related issues on February 21, 2001.

Initially, the Court finds that any hours expended by

counsel on discovery issues before the administrative proceedings

were completed were not reasonably and necessarily spent. 

Although Plaintiffs obviously had suspicions regarding the

integrity of the proceedings, it is not reasonable to prepare to

embark on a discovery expedition into bias and procedural issues

before the process is completed and a final decision rendered. 

The Court will, therefore, deduct all hours expended on discovery

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 20 of 57
14 As indicated by the following entries with the hours

expended in parentheses: February 21, 2001 (4.2*), February 23,

2001 (1.65*), May 28, 2001 (2.5), May 29, 2001 (4), May 30, 2001

(7), May 31, 2001 (4), June 1, 2001 (2.5), June 2, 2001 (2.1*),

June 4, 2001 (3), June 5, 2001 (8.50), June 6, 2001 (.50), June

18, 2001 (.75), June 19, 2001 (1), June 20, 2001 (2.5), July 30,

2001 (2), August 3, 2001 (1.8*), August 10, 2001 (.50), and

August 17, 2001 (1).

15 As reflected in the February 21, 2001, representing a

reduction of 30%.

16 Entry of February 21, 2001.

21

prior to December 7, 2001, when a final decision was rendered at

the administrative level on Plaintiffs’ claims for benefits. 

Where discovery entries are intermingled with entries on other

tasks, the Court has assumed that 30% of the time was expended on

discovery and reduced the hours accordingly. A 30% reduction is

admittedly somewhat arbitrary, but is intended to reflect the

Court’s reasoned judgment on the amount of time likely to have

been spent on discovery based on the content of the entire entry. 

The entries where the Court made estimates on time spent on

discovery are identified below with an asterisk. The Court,

therefore, makes the following reductions for time expended on

merits discovery prior to the completion of the administrative

process: Groh, 49.50 hours,14 Murdock, 3.68 hours,15 McGrath, 4

hours,16 for a total reduction of 57.18 hours.

The subtotal of hours allowed thus far is 1,416.90.

The next issue is whether more hours should be deducted

for time spent on merits discovery after the administrative

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 21 of 57
22

process was completed. The hours expended relate to Plaintiffs’

motion to compel merits discovery (Doc. No. 27). Ultimately,

this motion became moot because of the Court’s ruling on the

parties’ cross-motions for judgment on the administrative record. 

Nonetheless, the issue here is not whether Plaintiffs’ motion was

successful or unsuccessful, but whether the hours expended by

counsel pursuing discovery were necessary and reasonable. There

remain 332.07 hours of entries with at least some time spent on

merits discovery after the deduction of the 57.18 hours above. 

Applying the 30% assumption to 332.07 hours leaves an estimate of

99.62 hours spent in pursuit of merits discovery. 

Under the circumstances of this case, the Court cannot

say that 99.62 hours expended on merits discovery was

unreasonable or unnecessary. As the Court indicated, supra at 5-

6, the plan administrator’s interpretation of the plan suggested

bad faith. In addition, although the Court has disallowed hours

expended on the administrative process, there was a reasonable

basis for counsel to believe that the administrative process was

likely to be only a formality. Therefore, the Court believes

that Plaintiffs’ had a reasonable basis to pursue bias and due

process discovery under the Wilkins decision. In Heffernan, the

Court permitted the plaintiff to recover forty-hours of

attorney’s fees for discovery when she raised a procedural

challenge to the plan administrator’s decision. See Heffernan,

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 22 of 57
23

104 Fed. Appx. at 109. Because of the rather unique nature of

the case, the Court does not believe that awarding Plaintiffs a

little more than double the fees in Heffernan in pursuit of a

procedural challenge is unwarranted. Accordingly, the Court will

not make any further deductions for hours expended on discovery.

International Paper also objects to a number of hours

billed by attorney Myron Wolf. It appears from the record that

Plaintiffs initially contacted Mr. Wolf about their claims, who

then referred the case to Ms. Groh and Mr. Murdock. Thereafter,

it appears that Mr. Wolf acted primarily in a liaison or

consultative capacity. Mr. Wolf submitted a bill for $20,693.75.

representing 75.25 hours of time at $275.00 per hour. See Doc.

No. 46. As International Paper correctly points out, after the

initial referral and consultations with Ms. Groh and Mr. Murdock,

which appear to have been completed on or about February 16,

2001, almost the entirety of Mr. Wolf’s remaining time entries

consist of receiving and reviewing pleadings and letters filed or

sent by others. There is no indication in the time sheets that

receiving and reviewing this documents triggered any tangible

action which contributed to the overall success of the case. To

the extent that simply receiving and reviewing pleadings and

letters contributed in a substantive manner to the case, this

activity was clearly duplicative of work performed by Ms. Groh

and Mr. Murdock. Therefore, the Court disallows all hours billed

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 23 of 57
24

by Mr. Wolf after February 16, 2001, a total of 54.75 hours. The

Court allows 20.5 hours for services rendered by Mr. Wolf from

the inception of the case through February 16, 2001. 

The subtotal of hours allowed thus far is 1,362.15.

International Paper also complains about other

duplicative hours, block billing, and counsels’ billing

increments. International Paper also complains that expensive

partners performed work that could have been done by less

expensive associates. Where block billing seemed to impose an

obstacle in determining the reasonable hours expended, the Court

made what it believes are appropriate adjustments to account for

the ambiguity of the entry. The Court is cognizant that in some

cases a plaintiff would not recover fees for work performed by

partners that could have been done by an associate. On the

other hand, as pointed out in their papers, Plaintiffs’ counsels’

firm has only four lawyers and one associate. Thus, the division

of labor between partner and associate can go only so far. Under

similar circumstances, the Seventh Circuit ruled that the

district court erred in reducing plaintiff’s fee award where she

was represented by a small firm. See Price v. Marshall Erdman &

Assoc., Inc., 966 F.2d 320, 327 (7th Cir. 1992). This is also a

double-edged argument, because it is possible that a partner can

do the required work more quickly and efficiently than an

associate. See In re Boston & Maine Corp., 776 F.2d 2, 9 (1st

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 24 of 57
25

Cir. 1985) (“Associates, however, are not invariably more

cost-effective than partners. In some circumstances, and

assuming of course that the partner is not performing merely

routine work, the use of a more experienced attorney may save

time because of his ability to size-up and do only what needs to

be done most effectively.”). Therefore, the Court will not make

any further reduction in the hours allowed on the grounds that an

associate could have performed work done by partners. 

The Court does agree, however, that counsel’s time

sheets reflect unnecessary duplication of effort on certain

occasions. The Court particularly observes duplication where two

or more lawyers appear to have performed the same task on the

same day. The Court outlines these seemingly duplicative hours

below:

February 17, 2001

TLG - research & fact investigation; conferences 12 hours

 with JCM, VBM, and JSG

JSG - conferences with TLG, JCM & VBM; research 6 hours

VBM - research ERISA; conferences with TLG, JCM & 4 hours

 JSG

February 18, 2001

JCM - research & fact investigation; conferences 12.75 hours

 with TLG & VBM

TLG - research & fact investigation; conferences 14 hours

 with JCM & VBM

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 25 of 57
17 The actual entry is for 12.25 hours, but the Court has

already deducted 3.68 hours from this entry in analyzing

discovery fees. See supra, at 21.

18 As indicated in footnote 17, the actual entry was for

14 hours, but the Court has already deducted 4.20 hours in its

discovery analysis.

26

VBM - research ERISA; conferences with JCM & TLG 6 hours

February 19, 2001

JCM - research & draft complaint; conferences 10.5 hours

 with TLG, VBM & JSG

TLG - research & draft complaint; conferences 12 hours

 with JCM, VBM & JSG

JSG - conferences with TLG, JCM, & VBM 3 hours

VBM - research ERISA; conferences with JCM, 8 hours

 TLG & JSG

 

February 20, 2001

JCM - research & draft complaint; conferences JCM, 10.75 hours

 TLG & JSG

TLG - research & draft complaint; conferences 12 hours

 with JCM & VBM

VBM - research ERISA; conferences with JCM & 8 hours

 TLG

February 21, 2001

JCM - review/revise complaint; draft class 8.57 hours17

 representatives rights and responsibilities;

 draft first set of documents requests; draft 

 memo to VBM re: discovery; conferences with

 TLG.

TLG - draft complaint; review JCM memo to VBM re: 9.8 hours18

 discovery; conferences with JCM; prepare for

 and meet with clients.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 26 of 57
19 There were also some apparently duplicative hours

billed in March and April 2001 in reference to litigating the

International Paper’s motion to stay. The Court, however, has

already deducted all of these hours in its exhaustion of

administrative remedies analysis. See supra, at 17.

27

February 22, 2001

JCM - prepare civil cover sheet and attachment to 6.5 hours

 same; edit/revise complaint; conferences with

 TLG.

TLG - draft, revise and finalized complaint; 10 hours

 conferences with JCM; phone conferences with

 clients.

June 12, 200119

TLG - phone conference with witness. 1.5 hours

JCM - phone conference with witness. 1.5 hours

June 11, 2002

TLG - review Defendant’s motion for judgment on 11 hours

 administrative record; research. 

JCM - review Defendant’s motion for judgment on 8.50 hours

 administrative record; research.

June 12, 2002

TLG - review Defendant’s motion for judgment on 14 hours

 administrative record; conference with JCM re:

 same; research.

JCM - review Defendant’s motion for judgment on 7.25 hours

 administrative record; conference with TLG re:

 same.

June 13, 2002

JCM - review/analyze Defendant’s motion for judgment 6 hours

 on administrative record; follow up research.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 27 of 57
28

TLG - meeting with SV re: research and organization 12 hours

 of administrative record; research re: 

 Defendant’s motion for judgment.

June 15, 2002

TLG - research re: Defendant’s motion for judgment; 12 hours

 conference with JCM.

JCM - conference with TLG re: research and motion 12 hours

 for judgment; review/analysis of Defendant’s 

 motion for judgment.

June 30, 2002

TLG - research issues re: Defendant’s motion for 14 hours

 judgment, Plaintiffs’ entitlement to judgment;

 Plaintiff’s entitlement to discovery; phone

 conferences with clients and other employees; 

 draft affidavits; conference with JCM re:

 class certification research and brief sections

 and strategy.

JCM - draft, and supplemental research, Plaintiffs’ 11.5 hours

 motion for class certification; conference 

 with TLG re: class certification research 

 and brief sections and strategy.

July 2, 2002

TLG - draft opposition to judgment motion; research 12 hours

 issues re: Defendant’s motion for judgment, 

 Plaintiffs’ entitlement to judgment; Plaintiffs’

 entitlement to discovery; phone conferences

 with clients and other employees; draft 

 affidavits; conference with JCM re: class 

 certification research and brief sections and

 strategy.

JCM - assist in draft/edit opposition to judgment 10.5 hours

 motion; research and final edits to Plaintiffs’

 motion for class certification; conference

 with TLG re: class certification research and

 brief sections and strategy.

July 24, 2002

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 28 of 57
29

TLG - review Defendant’s supplement to 9 hours

 administrative record; review Defendant’s 

 response to motion to compel discovery related 

 to the merits; conference with JCM; review

 and research Defendant’s opposition to 

 Plaintiffs’ motion for judgment.

JCM - review Defendant’s response to Plaintiffs’ 3.25 hours

 motion to compel discovery related to class

 certification; strategy conference with TLG.

July 25, 2002

TLG - review Defendant’s supplement to 11 hours

 administrative record; review Defendant’s

 response to motion to compel discovery

 related to the merits; conference with JCM;

 review and research Defendant’s 

 opposition to Plaintiffs’ motion for judgment.

JCM - review/analysis of Defendant’s reply/ 7.25 hours

 opposition memorandum; conference with TLG.

August 4, 2002

TLG - research, draft and revise reply memorandum 12 hours

 in support of Plaintiff’s motion for judgment;

 Plaintiffs’ motion to compel.

 

JCM - research and assist in drafting reply 5.75 hours

 memorandum in support of Plaintiff’s motion 

 for judgment; research and draft reply

 memorandum in support of class certification.

August 7, 2002

TLG - Research, draft and revise reply memorandum 10 hours

 in support of Plaintiffs’ motion for judgment,

 Plaintiffs’ motion to compel; conference with

 JCM re: reply memorandum in support of class

 certification.

JCM - research and draft reply memorandum in support 12 hours

 of class certification; conference with TLG

 re: same.

 

August 8, 2002

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 29 of 57
30

JCM - draft reply in support of Plaintiffs’ motion 10.25 hours

 for class certification; conference with TLG;

 assist in edit/revision Plaintiffs’ reply 

 memorandum in support of Plaintiff’s motion

 for judgment, Plaintiffs’ motion to compel.

TLG - research, draft and revise reply memorandum 8 hours

 in support of Plaintiffs’ motion for judgment,

 Plaintiffs’ motion to compel; conference with 

 JCM re: reply memorandum in support of class 

 certification.

August 9, 2002

TLG - letter to Roberts, Younger/McElligott; 9 hours

 research, draft and revise reply memorandum

 in support of Plaintiffs’ motion for judgment,

 Plaintiffs’ motion to compel; conference with

 JCM re: reply memorandum in support of class

 certification; phone conference with clients.

JCM - draft/edit reply in support of Plaintiffs’ 6.75 hours

 motion for class certification; draft reply 

 in support of motion to compel re: merits;

 conference with TLG.

November 25, 2002

TLG - review Roberts letter w/attached IP motion 3 hours

 to supplement motion for judgment on

 administrative record; conference with JCM;

 research.

 

JCM - review/analysis of IP motion to supplement 2.5 hours

 motion for judgment on administrative

 record; conference with TLG.

December 3, 2002

JCM - review and revise opposition supplement; 2 hours

 conference with TLG.

TLG - conference with JCM; finalize opposition 3 hours

 to motion to supplement.

February 6, 2003

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 30 of 57
31

TLG - prepare for and participation in 4 hours

 conference with Court, conference with

 JCM re: same.

JCM - conference with TLG; prepare for and 3 hours

 participate in Court conference.

May 22, 2003

TLG - conference with JCM re: judgment issues 7.5 hours 

 and settlement; phone conference with 

 opposing counsel; research fees and interest

 issues.

JCM - conference with TLG re: judgment issues and 4 hours 

 settlement; preparation for phone conference

 with opposing counsel; phone conference re:

 final judgment with opposing counsel and

 follow up.

May 30, 2003

TLG - prepare for phone conference with defense 2 hours

 counsel re: outstanding issues for final

 judgment entry; conference with JCM; phone

 conference with McElligott re: final 

 judgment issues.

JCM - prepare for phone conference with defense 2.5 hours

 counsel re: outstanding issues for final

 judgment entry; conference with JCM.

June 20, 2003

TLG - prepare for phone conference; phone 2 hours

 conference with Judge Beckwith re: final

 judgment entry and briefing schedule.

JCM - prepare for phone conference; phone 5.25 hours

 conference with Judge Beckwith re: final

 judgment entry and briefing schedule; 

 detailed review of IP proposed notice and

 draft Exhibit A for notice.

July 2, 2003

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 31 of 57
32

TLG - revised notice; conference with JCM; 2 hours

 letter to M. Wolf.

 

JCM - draft proposed notice; conference 2.25 hours

 with TLG.

July 7, 2003

JCM - draft, revise and finalize proposed notice; 3.5 hours

 conference with TLG; draft correspondence

 to James McElligott enclosing final class

 notice and Exhibit A’s proposed by Plaintiffs.

TLG - review proposed notice submitted to Court; 2 hours

 conference with JCM. 

August 25, 2003

TLG - review Court order approving distribution 1.20 hours

 of notice to the class; conferences with 

 JCM and SAV re: the procedure for drafting and

 sending notice to the class.

JCM - conference with TLG and SAV re: drafting and .80 hours

 sending notice to the class.

SAV - conference with TLG and JCM re: sending notice .80 hours

 to the class.

August 28, 2003

JCM - review final notice and draft recommended .50 hours

 changes; conference with TLG re: same;

 conference with SAV re: issuance of notice.

TLG - conference with JCM re: final notice language .20 hours

SAV - conference with JCM re: sending notice to .30 hours

 the class.

September 8, 2003

TLG - conference with JCM and review of class notice .80 hours

 and Exhibit A drafts; review stipulated entry 

 approving amended class action notice, conference

 with JCM re: same.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 32 of 57
33

JCM - draft entry and forward to opposing counsel 3.20 hours

 approving Rule 23 class action notice; final 

 review of class notice with Exhibit A and 

 forwarded to opposing counsel; conference with 

 TLG re: class notice, attachments thereto and

 entry opposing same.

September 19, 2003

TLG - conference with JCM re: modification of notice .30 hours

 to the class.

JCM - conference with TLG re: modification of notice .30 hours

 to the class.

September 23, 2003

TLG - coordinate and finalize class action notice; .80 hours

 conferences with JCM and SAV re: same.

JCM - conference with TLG and SAV re: class action .30 hours

 notice.

SAV - meeting with CP re: giving instructions on 2.70 hours

 format of Flex Six documents to be typed;

 obtain envelopes for mailing; prepare notice

 of mailing; conferences with JCM and TLG re:

 class notice.

November 12, 2003

TLG - Draft and revise Plaintiffs’ responses to 4.50 hours

 Defendant’s interrogatories and requests for 

 production of documents; phone conferences with 

 clients re: same; conference with JCM re:

 same; conference with SAV re: same.

JCM - conference with TLG re: Plaintiffs’ responses .30 hours

 to Defendant’s interrogatories and requests for 

 production of documents.

SAV - revise exhibits to discovery responses; .50 hours

 prepare Exhibit for discovery response;

 conference with TLG re: same.

July 26, 2004

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 33 of 57
34

TLG - draft and revise report to Court re: class 3.70 hours

 notice and need for final judgment entry;

 conference with JCM re: pension enhancement 

 valuation and expert report re: same.

JCM - conference with TLG re: pension valuation .50 hours 

 and Rosen work on report re: same. 

July 27, 2004

TLG - draft and revise report to the Court re: 2.80 hours

 class notice and need for final judgment

 entry; compile exhibits and draft affidavits 

 to the Plaintiffs’ report; conference with

 JSG re: pension valuation.

JSG - conference with TLG; valuation and analysis 1.80 hours

 related to Flex 6 recipients.

August 5, 2004

TLG - phone conference with H. Rosen re: 3.20 hours

 calculation of Flex Six Pension Enhancement

 value to class; review pension enhancement

 calculations on the 17 Exhibit A’s for the

 qualified class members; review the entire 

 retirement plan; compile materials to transmit

 to H. Rosen and draft letter re: same; 

 conference with JCM re: same.

JCM - conference with TLG re: expert valuation of .50 hours

 the pension enhancements.

August 6, 2004

TLG - phone conferences with H. Rosen re: 1.50 hours

 preliminary calculations and report to submit

 to the Court; identify missing information and

 conference with SAV re: follow up to get 

 information on dates of birth and race 

 information; conference with JCM re: same.

JCM - conference with JCM re: expert analysis of .50 hours

 pension enhancement.

SAV - conference with TLG re: filling in missing .20 hours

 information for the pension valuation.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 34 of 57
20 The subtotals for these hours are: Groh, 256.00 hours;

Murdock, 183.47 hours; Vaaler, 6.90 hours ; McGrath, 26 hours;

Goldenberg, 10.80 hours.

21 There was also substantial conferencing among counsel

on the attorney’s fees and the vacation pay issues. The Court,

however, has already deducted hours expended on these issues and,

therefore, to avoid double-counting, did not itemize conferences

on these issues. In addition, the Court has already deducted

hours expended in exhausting the administrative process and did

not separately itemize apparent duplicative hours related to

exhaustion of administrative remedies.

35

August 9, 2004

TLG - review retirement plan and conference with 6.20 hours

 H. Rosen re: preliminary report on Flex Six

 enhancement value; conference with SAV re:

 follow up information; review time entries and

 revise for supplemental motion.

SAV - conference with TLG re: information for 2.40 hours

 pension enhancement; review file for 

 information re: Flex 6 class members’

 DOB and race; LocatePlus searches; 

 telephone conferences with class members

 re: knowledge of Flex 6 class members’ DOB 

 and race; prepared chart re: same.

These entries reflect that there were potentially 483.17.

duplicative hours, with emphasis on the word “potentially.”20 

The first thing that stands out from this set of

entries is a number of duplicative billings for counsel to confer

with each other.21 In other words, where two or more lawyers

conferred together, each submitted an entry for the time spent in

the conference. Thus, depending on the number of lawyers

involved in the conference, the same hour could be billed two or

three times. Although the Court recognizes the importance of

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 35 of 57
22 See, e.g., entries of August 25, 2003, September 8,

2003, September 23, 2003, November 12, 2003, July 26, 2004,

August 5, 2004.

36

periodic conferences among trial counsel, the trial court may

nevertheless deduct hours for excessive conferencing. See

Guckenberger v. Boston Univ., 8 F. Supp.2d 91, 101 (D. Mass.

1998); Citibank, N.A. v. Hicks, No. Civ. A. 03-2283, 2004 WL

1895189, at *6 (E.D.Pa. Aug. 24, 2004).

The Court is again faced with the problem that the time

spent in conference is not clearly delineated in the entries. A

clearer picture emerges in later entries where one attorney

entered a block of time for a number of tasks, including

conferences, and another attorney only billed time for

conferencing.22 On those occasions, it appears that conferences

accounted for anywhere from about 10% to about 25% of the amount

of time of the primary entry. It, therefore, seems reasonable to

estimate that, where conferences were convened, approximately 15%

of the gross time billed was spent in conferences. Of the

entries on the forty-one separate dates detailed above,

conferences were held on thirty-five of them. The Court,

therefore assumes that 85% (35/41), or 410.69 hours, of the

483.17 hours includes conference time. Of this 410.69 hours, the

Court further assumes that 15%, or 61.60 hours, constitutes

duplicative hours spent in conference. In order to avoid

multiple recoveries for the same hour of conferencing, the Court

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 36 of 57
23 Consequently, this results is a 6.375% reduction in the

subtotals described in footnote 20, supra. Groh (16.32 hours),

Murdock (11.69 hours), Vaaler (.44 hours), McGrath (1.66 hours),

and Goldenberg (.69 hours).

24 As indicated by the following entries with the hours

expending in parentheses: February 19, 2001 (Murdock - 10.5; Groh

- 12); February 20, 2001 (Murdock - 10.75; Groh - 12); February

21, 2001 (Murdock - 8.57; Groh 9.8); February 22, 2001 (Murdock -

6.5; Groh - 10). These figures are the total hours before

applying the 6.375% deduction for conferences. Additionally, the

entries for February 21, 2001, are the net hours remaining after

the deductions for time expended on discovery.

37

will then deduct 50%, or 30.80 hours, of the 61.60 hours in

conferences as being duplicative. Overall, this is approximately

a 6.375% (85% x 15% x 50%) reduction of the potentially

duplicative hours outlined above.23

The subtotal of hours allowed thus far is 1,331.35.

The other area of noticeable duplication of effort was

in the drafting of pleadings. Not including time spent on

research and fact investigation, and with a 6.375% allowance for

time already deducted for conferencing, two lawyers expended

75.01 hours24 researching and drafting a twelve page, one claim

complaint. This is an excessive amount of time, particularly

when one considers that it does not include approximately 96

hours expended just prior to the drafting of the complaint on

initial research and fact investigation. Because of the

relatively straightforward facts of the case, a more reasonable

amount of time to complete research and draft the complaint is 40

hours. The Court will, therefore, deduct a further 35.01 hours

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 37 of 57
38

from the total hours allowed, distributed proportionally between

the lawyers. This results in a 15.87 hour deduction from Mr.

Murdock’s billings and a 19.14 hour deduction from Ms. Groh’s

billings. No further deductions will be made from time expended

on initial research and investigation because the Court hesitates

to enter any order which would tend to discourage, however

remotely, compliance with Rule 11.

The subtotal of hours allowed thus far is 1,296.34.

The final area of possible duplication of effort or

excess expenditure of hours the Court will consider is the time

spent researching and briefing the cross-motions for judgment on

the administrative record and the motion for class certification. 

By the Court’ estimation, between June 2002 and December 2002,

counsel expended approximately 245 hours completing the merits

and class certification briefing. The Court does note that

included in this estimation are hours spent pursuing discovery,

which the Court has nonetheless allowed. Therefore, the actual

hours expended on dispositive motions is actually less than 245. 

Nonetheless, the Court does not find that these hours were

unnecessarily or duplicatively expended. This was the most

crucial juncture of the case and counsel had to draft their own

motion for judgment as well as an opposition to International

Paper’s motion for judgment. The briefs were well done and

obviously resulted in success for the Plaintiffs. Consequently,

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 38 of 57
39

the Court will not deduct any further hours as being duplicative

or unnecessarily expended.

International Paper also objects to counsel’s time

sheets because counsel billed in fifteen minute increments

instead of six or ten minute increments. Although International

Paper lodges a blanket objection against this practice, it has

not identified any single entry which was inflated as result of

having been billed in fifteen minute increments. In any event,

the Court has thoroughly dissected the hours expended and has

encapsulated and adjusted for any inflation caused by the billing

increments. Therefore, the Court will not impose any additional

reductions in the hours claimed because of the billing

increments.

For the reasons stated above, the Court finds the

following hours were reasonably expended:

 Claimed Deducted Allowed

Groh 1,260.05 (529.93) 730.12

Murdock 451.55 (113.19) 338.36

Wolf 75.25 (54.75) 20.50

Goldenberg 17.70 (0.69) 17.01

McGrath 32.50 (5.66) 26.84

Naylor 21.30 (13.30) 8.00

Vaaler 258.55 (103.04) 155.51

Total 2,116.90 (820.56) 1,296.34 

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 39 of 57
40

The Court then adds an additional 3% to each attorney’s hours for

preparation and litigation of the fee application:

 Allowed Fee Application Final Total

Groh 730.12 21.90 752.02

Murdock 338.36 10.15 348.51

Wolf 20.50 .62 21.12

Goldenberg 17.01 .51 17.52

McGrath 26.84 .81 27.65

Naylor 8.00 .24 8.24

Vaaler 155.51 4.67 160.18 

Total 1,296.34 38.90 1,335.24 

C. The Reasonable Rate

To arrive at a reasonable hourly rate, courts use as a

guideline the prevailing market rate, defined as the rate that

lawyers of comparable skill and experience can reasonably expect

to command within the venue of the court of record. Geier v.

Sundquist, 372 F.3d 784, 791 (6th Cir. 2004).

As indicated above, Ms. Groh seeks compensation at a

rate of $325 per hour; Mr. Murdock seeks $300 per hour; Mr. Wolf

and Mr. Goldenberg seek $275 per hour; Mr. Naylor seeks $200 per

hour; and Mr. McGrath seeks $150 per hour. Paralegal Stephanie

Vaaler seeks compensation at $85 per hour. Supporting Ms. Groh’s

and Mr. Murdock’s claimed rates is the affidavit of local

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41

attorney Carl Stich, Jr., a partner in the firm of White, Getgey

& Meyer Co., LPA, who states that based on his knowledge of rates

charged by local litigation attorneys of comparable skill and

experience, a reasonable fee for Ms. Groh’s and Mr. Murdock’s

services is between $275 and $350 per hour. Mr. Stich states

further that the rates claimed by Ms. Groh and Mr. Murdock are

well within the rates charged by comparable attorneys in this

field and in this area. Doc. No. 45, Ex. 5. Mr. Stich also

vouches for Ms. Groh’s and Mr. Murdock’s professional skill and

reputation as being of the highest caliber. Id. The remaining

attorneys’ claimed rates are supported by their own affidavits

which set forth their qualifications, bar admissions, and

customary hourly rates. Id. Ex. 3; Doc. No. 46.

International Paper contends that the rates charged by

Plaintiffs’ counsel are excessive for this area and for their

skill, experience, and reputation. International Paper argues

that the following rates are reasonable for Plaintiffs’ counsel -

$215 per hour for Ms. Groh and Mr. Wolf; $190 per hour for Mr.

Murdock and Mr. Goldenberg; $165 per hour for Mr. Naylor. 

International Paper agrees that a rate of $150 per hour is

reasonable for Mr. McGrath. Doc. No. 49, at 8 n.13. 

International Paper objects to the rate claimed by Ms. Vaaler as

being completely unsubstantiated as to its reasonableness. 

International Paper’s argument is supported by a study published

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 41 of 57
42

by the Ohio State Bar Association entitled “Desktop Reference on

the Economics of Law Practice in Ohio” which reports average

hourly rates charged by office location, size of firm, area of

practice, and years of practice. Doc. No. 49, Ex. 2. 

International Paper’s position is also supported by the affidavit

of local attorney Jack Fuchs, a partner with the firm Thompson,

Hine LLP who specializes in employee benefits litigation. Id.

Ex. 3. Mr. Fuchs avers that based on his experience and

knowledge of his own rate ($260 per hour) and rates charged by

other ERISA litigators, a reasonable hourly rate in 2001 for an

attorney with more than fifteen years of experience would be

between $225 and $275 per hour and between $175 and $225 for

litigators with eight to fifteen years of experience. Mr. Fuchs

further states that in his estimation, rates would increase

between $5 and $15 per year in subsequent years.

Upon review of the evidence before it as well as the

Court’s experience awarding attorney’s fees in other cases, the

Court finds that the following are the reasonable rates for

Plaintiffs’ counsel: Ms. Groh and Mr. Wolf - $275.00 per hour;

Mr. Murdock and Mr. Goldenberg - $225 per hour; Mr. Naylor - $175

per hour; Mr. McGrath - $150 per hour; and Ms. Vaaler - $85 per

hour. There are several justifications for arriving at these

rates.

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 42 of 57
25 In 1983, in response to the growing number of statutes

that required the trial court to determine a reasonable fee to

award the prevailing party, former Chief Judge Carl Rubin of the

Southern District of Ohio formed a committee to determine a

reasonable fee for attorneys in the Cincinnati area. Recognizing

that seasoned attorneys are more valuable than attorneys with

lesser experience, the committee arrived at the following

categories and hourly rates: Paralegals - $37.91/hour; Law Clerks

- $23.96/hour; Young Associates (2 years of experience or less) -

$61.77/hour; Intermediate Associates (2 to 4 years of experience)

- $71.62/hour; Senior Associates (4 to 5 years of experience) -

$82.81/hour; Young Partners (6 to 10 years of experience) -

$96.39/hour; Intermediate Partners (11 to 20 years of experience)

- $113.43/hour; and Senior Partners (21 or more years of

experience) - $128.34/hour. See Beya v. Hoxworth Blood Center,

Case No. 1:96-CV-407 (S.D. Ohio, Aug. 25, 1998) (Beckwith, J.)

(Doc. No. 183). This Court has approved applying a 4% annual

cost of living adjustment (“COLA”) to the rates established by

the Rubin Committee. See James v. Runyon, 868 F. Supp. 911, 913-

14 (S.D. Ohio 1994)(Beckwith, J.); See James v. Frank, 772 F.

Supp. 984, 1000 (S.D. Ohio 1991) (Jones, Circuit Judge, sitting

by designation). 

43

First, with regard to Ms. Groh’s hourly rate, the Court

notes that $275 per hour is the rate which both Plaintiffs’

expert and Defendant’s expert agree, albeit at the margins, is a

reasonable rate to pay an attorney of Ms. Groh’s experience,

ability and reputation. Consequently, both sides would be hardpressed to argue that $275 per hour is an unreasonable rate of

compensation. Second, a rate of $275 per hour approximates a

reasonable extrapolation of the reasonable market rates for

attorneys in the Cincinnati area established by former Chief

Judge Rubin’s committee.25 Although Ms. Groh is technically not

a senior partner under the parameters established by the Rubin

Committee, she is rapidly approaching that bracket. A 4% COLA

applied to a rate of $128.34 per hour (the Rubin Committee rate

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 43 of 57
44

for senior partners) for 20 years (to the year 2003,

approximately the mid-point of this litigation) results in an

hourly rate of $281.41. Finally, the Court notes that in a more

recent case, Vann v. University of Cincinnati, No. C-1-00-846,

2001 WL 1842468 (S.D. Ohio Jan. 2, 2001)(Beckwith, J.), a civil

rights case, it awarded plaintiff’s senior trial counsel an

hourly rate of $250 per hour. A 4% COLA applied to $250 results

in an hourly rate of $270.40. In other words, application of a

number of different, yet logical, methodologies consistently

results in an hourly fee in the neighborhood of $275 per hour for

an attorney of Ms. Groh’s experience, reputation, and ability. 

Therefore, the Court finds that $275 per hour is a reasonable

rate to pay Ms. Groh for her services.

Mr. Wolf requests compensation at a rate of $275 per

hour. Although his affidavit reflects more years of experience

than Ms. Groh, the time sheets show that Mr. Wolf’s role in the

case was minor. The Court sees no reason to pay Mr. Wolf more

than he is requesting for his limited participation in the case. 

Accordingly, the Court finds that a rate of $275 per hour is

reasonable for Mr. Wolf’s services.

Mr. Murdock moves to be paid at a rate of $300 per

hour. Despite Mr. Stich’s affidavit to the contrary, this rate

is too high based on Mr. Murdock’s years of experience. 

According to Mr. Fuchs, Mr. Murdock’s services are worth between

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 44 of 57
45

$175 to $225 per hour. The Court finds that $225 per hour is too

low. Again, applying the Rubin Committee standards, based on his

years of experience, Mr. Murdock technically falls within the

young partner bracket, but like Ms. Groh, he is rapidly

approaching the next tier, which is intermediate partner. 

Applying the same 4% COLA over a twenty year period results in an

hourly rate of $248.54. Therefore, the Court finds that a rate

of $250 per hour is reasonable for Mr. Murdock. Although $250

per hour is not intended to be a compromise rate of compensation,

the Court does note that $250 an hour exactly splits the

difference between the high suggested by Mr. Fuchs and the low

suggested by Mr. Stich. This further suggests that $250 per hour

for Mr. Murdock is a reasonable rate.

Mr. Goldenberg has roughly the same years of experience

as Mr. Murdock. Therefore, the Court awards Mr. Goldenberg a

rate of $250 per hour.

Mr. Naylor requests compensation at a rate of $200 per

hour. Mr. Naylor falls squarely in the young partner bracket of

the Rubin Committee. Applying the 4% COLA over a twenty-year

period results in a rate of approximately $211 per hour. There

is no other evidence supporting a reasonable fee for Mr. Naylor’s

services. Like Mr. Wolf, however, the Court sees no reason pay

Mr. Naylor a premium rate for his limited participation in the

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 45 of 57
46

case. Accordingly, the Court awards Mr. Naylor a rate of $200

per hour.

The parties agree that $150 per hour is a reasonable

rate for Mr. McGrath. Accordingly, the Court awards Mr. McGrath

$150 per hour.

Finally, Ms. Vaaler requests compensation at a rate of

$85 per hour. Application of the Rubin Committee factors results

in a rate of $83.07 per hour. Therefore, the Court finds that

$85 per hour for Ms. Vaaler’s services is reasonable.

D. Fee Multiplier

Plaintiffs move for a multiplier of 1.5 times the

lodestar fee for the quality of service performed in comparison

to the hourly rate, the exceptional results obtained, and the

contingent nature of the case. As noted above, however,

Plaintiffs cannot obtain a multiplier of the lodestar because

counsel took the case on a contingent basis. See supra, at 8.

In Geier, the Sixth Circuit analyzed and distilled a

number of Supreme Court cases addressing the appropriateness of

awarding the plaintiff a lodestar multiplier. According to the

Court, many of the factors which the trial court would consider

in determining whether to apply a multiplier are already subsumed

in calculating the reasonable fee. See Geier, 372 F.3d at 794. 

Nevertheless, the Geier Court held that the district court could

apply a multiplier to the lodestar if first it determined that

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 46 of 57
26 Those factors are: 1) the time and labor required; 2)

the novelty and difficulty of the question; 3) the skill

requisite to perform the legal service properly; 4) the

preclusion of other employment by the attorney due to acceptance

of the case; 5) the customary fee; 6) whether the fee is fixed or

contingent; 7) time limitations imposed by the client or the

circumstances; 8) the amount involved and the results obtained;

9) the experience, reputation, and ability of the attorney; 10)

the “undesirability” of the case; 11) the nature and length of

the professional relationship with the client; and 12) awards in

similar cases. Id. at 792.

47

the case was one of the “rare and exceptional cases” deserving of

a multiplier. Id. at 794-95. Once the trial court decides that

the case is rare and exceptional, it may then consider a list of

factors to determine whether to award a fee multiplier. Id.26

Unfortunately, the Geier Court did not further explain

the circumstances under which a case becomes “rare and

exceptional.” The Court did, however, decide that the case

before it was rare and exceptional and remanded it to the trial

court to analyze the factors listed above. The plaintiffs in

Geier prevailed in a thirty-six year struggle to eliminate

segregation in Tennessee’s public universities. In holding that

the case before it was exceptional, the Court stated that its

“magnitude is formidable in numerous respects.” Id. at 795. The

Court noted that the “legal principles advanced by the Geier

Plaintiffs were pathbreaking and of great social import.” Id.

The plaintiffs fought against stubborn state opposition and

contrary judicial precedents from outside this Circuit to obtain

injunctive relief valued at $320 million. In addition, the Geier

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 47 of 57
48

case focused the federal judiciary on desegregation of higher

education, steered federal jurisprudence in a different

direction, and spurred the Justice Department to file lawsuits

against other states, effectively ending segregation in public

higher education in the South. Id. at 795-96.

The Geier plaintiffs set the bar very high for others. 

It is not apparent whether the Geier Court would require the

plaintiffs in every case to have the nobility of purpose of those

plaintiffs, coupled with the sweeping results of that litigation, 

to merit a multiplier of attorney’s fees. A more cautious

analysis of the case would be that the results in Geier were so

stunning that it clearly was a rare and exceptional case but that

it did not establish a minimum standard for other plaintiffs in

other cases. 

Nevertheless, if Geier did not set the standard for

rare and exceptional cases, it certainly establishes a reference

point for purposes of comparison. In comparison, the present

case does not meet even reduced expectations for rare and

exceptional cases. While Plaintiffs obviously achieved a good

result for themselves and their fellow class members, the case

itself is of limited social scope and impact. The fact that

Plaintiffs prevailed under the arbitrary and capricious standard

to some degree is already taken into consideration by the

decision to award Plaintiffs attorney’s fees at all. Moreover,

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 48 of 57
49

although prevailing under the arbitrary and capricious standard

is not an every day occurrence, certainly it happens often enough

not to make it a rare and exceptional circumstance. The Court

does not view this case as having established a legal principle

of any sweeping significance. Instead, this case presented a

rather narrow matter of plan interpretation, dependent upon the

meaning of the specific language at issue. The case may or may

not have any precedential value in other cases, but it is not

obvious that it does. Therefore, despite the size of the

judgment obtained by the Plaintiffs and the difficult burden of

persuasion to be carried, the Court does not find this to be a

rare and exceptional case in which the lodestar should be

enhanced by a multiplier.

E. Common Fund Analysis

Because this case proceeded to judgment and Plaintiffs 

received an award of attorney’s fees through a fee-shifting

statute, the Court finds that Plaintiffs’ counsel may not receive

a further enhancement of their fees through a common fund

analysis. The case law suggests that fee-shifting cases and

common fund cases are different and that the common fund method

for awarding attorney’s fees applies only when the parties settle

the case. See Rawlings v. Prudential-Bache Properties, Inc., 9

F.3d 513, 516 (6th Cir. 1993)(“In assessing the reasonableness of

requests for fees in class actions resulting in the creation of a

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 49 of 57
50

common fund, a court must consider factors that are not present

in statutory fee-shifting cases.”); Swedish Hosp. Corp. v.

Shalala, 1 F.3d 1261, 1268 (D.C. Cir. 1993) (“Unlike the

calculation of attorney’s fees under the ’common fund doctrine,’

where a reasonable fee is based on a percentage of the fund

bestowed on the class, a reasonable fee under [the fee shifting

statute] . . . reflects the amount of time reasonably expended on

the litigation.”)(citing Blum v. Stenson, 465 U.S. 886, 900 n.16

(1984)). In Brytus v. Spang & Co., 203 F.3d 238 (3rd Cir. 2000),

the Court indicated that it might be possible for prevailing

class action ERISA litigants to receive a combination of the

lodestar and common fund amount of fees, but suggested that

instance would be limited to cases where the defendant was

insolvent or had insufficient funds or where the plaintiffs could

not obtain other competent counsel. Id. at 246-47. Those two

exceptions, however, are not present in this case. 

Finally, this Court notes that because International

Paper is required to bear the reasonable costs of the litigation,

the problem of freeriders, which is the primary justification for

the common fund method of awarding fees, is not present. See

Geier, 372 F.3d at 790 (“The [common fund] doctrine rests on the

perception that persons who obtain the benefit of a lawsuit

without contributing to its cost are unjustly enriched at the

successful litigant's expense.”). In other words, because of the

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51

fee-shifting statute, the class members are not unjustly enriched

at the expense of the named Plaintiffs. Therefore, the Court

finds that the attorney’s fees to be awarded to Plaintiffs’

counsel should not be increased under the common fund doctrine.

F. Incentive Awards for the Named Plaintiffs

Because, as explained above, this is not a common fund

case, the Court finds that the named Plaintiffs are not entitled

to an incentive award. See Hadix v. Johnson, 322 F.3d 895, 898

(6th Cir. 2003)(“As both the district court and the defendants

note, incentive awards are usually viewed as extensions of the

common-fund doctrine, a doctrine that holds that a litigant who

recovers a common fund for the benefit of persons other than

himself is entitled to recover some of his litigation expenses

from the fund as a whole.”).

G. Final Fees Awarded

Hours Allowed Hourly Rate Total 

Groh 752.02 $275 $ 206,805.50

Murdock 348.51 $250 $ 87,127.50

Wolf 21.12 $275 $ 5,808.00

Goldenberg 17.52 $250 $ 4,380.00

McGrath 27.65 $150 $ 4,147.50

Naylor 8.24 $200 $ 1,648.00

Vaaler 160.18 $ 85 $ 13,615.30

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 51 of 57
52

Total 1,335.24 $ 323,531.80

G. Contingency Fee

Counsel for Plaintiffs also move the Court for

permission to recover 25% of the value of the judgment as per

their contingency fee agreement with Plaintiffs. The Court notes

that it is permissible for counsel recover both a statutory fee

and a fee under a contingency fee arrangement. Drennan v.

General Motors Corp., 977 F.2d 246, 254 (6th Cir. 1993). 

Nevertheless, the district court still has authority to review

and set aside an unreasonable contingent fee contract. Krause v.

Rhodes, 640 F.2d 214, 218 (6th Cir. 1981).

The Court notes at this time that the record does not

support counsel’s request for payment of a 25% contingent fee

from the value of the judgment. The retention agreements

submitted by counsel, Doc. No. 45, Exs. 6 & 7, do not indicate

any agreement to a 25% contingent fee by the class

representatives. Instead, the agreement states only that “Our

fees (payment for our time) must be approved by the Court and are

dependent upon a recovery. You will have the opportunity to

discuss any fee request to the Court and object to our request if

you choose to do so.” See id. § 7. The affidavits submitted by

the class representatives, Mr. Dalesandro and Ms. Noonan,

indicate that they agree that “Defendant should pay the full

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 52 of 57
53

amount of my attorney’s fees and expenses up to 25% of the total

value of the Class recovery.” Dalesandro Aff. (Doc. No. 45, Ex.

6) ¶ 6; Noonan Aff. (Doc. No. 45) ¶ 6 (emphasis). While Mr.

Dalesandro and Ms. Noonan acknowledge that they understand that

attorney’s fees could be paid out the Class recovery, see id. ¶

8, there seems to be no acknowledgment or understanding on their

part that the fee paid to counsel could amount to 25% of their

recovery. Similarly, the notice to the class (Doc. No. 50) does

not inform the class that a fee equaling 25% could be deducted

from their benefit to pay for attorney’s fees. The Court is,

therefore, unwilling at this time to approve payment of a 25%

contingent fee from the judgment without ensuring that the Class

representatives have truly agreed to deduction of a 25%

contingent fee. Additionally, the Court wants to ensure that the

absent class members are on notice of the contingent fee

arrangement and have an opportunity to object to that fee if they

desire.

Accordingly, Plaintiffs’ motion to approve payment of a

25% contingent fee is denied without prejudice to its renewal. 

Counsel may supplement the record in support of this request to

address the concerns raised by the Court within twenty-one (21)

days of the date of this order.

I. Expenses

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 53 of 57
27 The Flex Six provision states:

If an Eligible Employee has attained age 49 as of the 

date of Termination and the Eligible Employee’s age

plus years of service equal at least 59, the Eligible

Employee’s pension benefit from the Retirement Plan

shall be enhanced by crediting the Eligible Employee

with the most beneficial combination of an additional

six (6) years of age and/or service credit under the

Retirement Plan for early or normal retirement. As

part of such enhanced benefit the Eligible Employee

shall be entitled to post retirement death benefits,

life insurance and medical plan coverage.

54

Plaintiffs claim expenses in the amount of $12,874.79.

Based on the foregoing discussion and analysis of the appropriate

award of attorney’s fees to Plaintiffs, one could reasonably

anticipate that International Paper would object to a substantial

portion of Plaintiffs’ claim for expenses. If that was the

expectation, one would not be disappointed.

The principal area of dispute is Plaintiffs’ claim for

the expense of hiring a economic expert to calculate the value of

the enhanced Flex Six retirement benefits for the twenty or so

class members who qualify for that benefit under the terms of the

severance plan. Under the terms of the severance plan, eligible

employees who had attained age 49 at the time of termination, and

whose age and years of service equaled at least 59, would have

their retirement plan benefit enhanced by the most beneficial

combination of an additional six years of age and/or years of

service for early or normal retirement. See Plan at 

“Section 3 Pension Enhancement.”27

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 54 of 57
55

According to Plaintiffs, it was necessary to hire an

expert to calculate the value of the enhanced retirement benefit

for those participants because International Paper has taken the

position that the affected participants are still employed by

Smart Paper and, therefore, not eligible to receive early or

normal retirement benefits from the retirement plan. The total

cost of this analysis was $5,275.00. It appears, however, that

counsel hired this expert solely for the purpose of estimating a

value of the total judgment so they then in turn could claim a

percentage of the fund for their fees. The Court finds that this

is not a reasonable expenditure to charge to International Paper. 

The class members derived no benefit from the hiring of this

expert. Accordingly, the Court disallows this expense. 

International Paper objects to the rate billed by

Plaintiffs for photocopying, $.15 per page as being excessive. 

Relying on Tinch v. City of Dayton, 199 F. Supp.2d 758, 770 (S.D.

Ohio 2002), and 28 U.S.C. § 1920, International Paper argues that

the standard rate for photocopying is $.05 per page. 

Regrettably, even seemingly inconsequential matters, such as a 10

cent dispute over the reasonable rate to be paid for

photocopying, is not allowed to escape the trial court’s

attention in assessing a fee petition. See Bowling v. Pfizer,

Inc., 132 F.3d 1147, 1152 (6th Cir. 1998). 

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 55 of 57
56

Unfortunately, Tinch does not purport to establish a

standard rate for photocopying charges nor does the opinion in

fact state that $.05 per copy is the standard rate for

photocopying. Rather, Chief Judge Rice stated only that

plaintiffs had not carried their burden of establishing that $.25

per copy was reasonable and that in his experience $.05 per copy

was the reasonable rate for copies. See Tinch, 119 F. Supp.2d at

769-70. To repeat, no standard was established in Tinch. On the

other hand, the Court notes that, at least in a bankruptcy

matter, a court held that $.20 per copy was a reasonable rate. 

See In re Union Cartage Co., 56 B.R. 174, 178 (Bankr. N.D.Ohio

1986). Therefore, the Court finds that $.15 per copy is a

reasonable rate for copies. International Paper does, however,

validly argue that Plaintiffs have not established that all of

its copying expenses, totaling $5,060.06, about 40% of the total

expenses billed, were necessarily incurred. The problem again is

insufficient or non-existent detail as to the reason for the

charge. Accordingly, the Court deducts 25%, or $1,265.02, from

the photocopying expense for inadequate documentation. See

Gradisher v. Check Enforcement Unit, Inc., No. 1:00-CV-401, 2003

WL 187416, at *8 (E.D.Mich. Jan. 22, 2003).

Plaintiffs’ expert expense and photocopying expenses

account for approximately 80% of the total expenses claimed. 

Although International Paper quibbles over some of the remaining

Case 1:01-cv-00109-SSB Document 96 Filed 07/08/2005 Page 56 of 57
57

charges, such as long distance telephone charges, mileage, and

postage expenses, as being inadequately documented as well, the

amounts billed for these items are de minimis when compared to

the whole. Upon review of the remaining expenses, the Court

finds that they are reasonable. Accordingly, the Court will not

take any further deductions from the expenses claimed.

In summary, the Court awards Plaintiffs expenses of 

$6,334.77. 

Conclusion

In conclusion, for the reasons stated, the Court awards

Plaintiffs $323,531.80 in attorney’s fees and $6,334.77 in costs.

IT IS SO ORDERED

Date July 8, 2005 s/Sandra S. Beckwith 

 Sandra S. Beckwith, Chief Judge 

 United States District Court

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