K.D. v. Harvard Pilgrim Health Care, Inc.

664 F.Supp.3d 168

K.D., Plaintiff, v. HARVARD PILGRIM HEALTH CARE, INC.,Harvard Pilgrim - Lahey Health Select HMO,and Lahey Clinic Foundation, Inc., Defendants.

CIVIL ACTION NO. 20-11964-DPW

United States District Court, D. Massachusetts

Signed March 27, 2023

Mala M. Rafik, Socorra A. DeCelle, Rosenfeld Rafik & Sullivan, P.C., Boston, MA, for Plaintiff.

Christopher S. Lockman, Pro Hac Vice, Verrill Dana, LLP, Portland, ME, Keith E. Glidden, Verrill Dana, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

K.D. brought a challenge to the decision of Harvard Pilgrim Health Care, Inc. to deny her claim for out-of-network benefits under the Harvard Pilgrim - Lahey Health Select HMO. On December 12, 2022, I:

(a) remanded K.D.'s benefits claim "so that all relevant issues and provider opinions [may] be considered properly";

(b) determined that she was eligible for certain attorney's fees; and

(c) directed her to submit a supported motion for attorney's fees and costs. K.D. v. Harvard Pilgrim Health Care, Inc., No. 20-11964-DPW, 2022 WL 17586091, at *16 (D. Mass. Dec. 12, 2022). Her submissions and Defendants' opposition regarding attorney's fees and costs are now before me.

Familiarity with my December 12, 2022 Memorandum framing the question of attorney's fees and costs is assumed and that discussion will not be repeated in full in this Memorandum.

I. STANDARD OF REVIEW

In litigation under the Employee Retirement Income Security Act ("ERISA"), I "may award fees whenever a party has showed 'some degree of success on the merits.' " Doe v. Harvard Pilgrim Health Care, Inc., 974 F.3d 69, 75 (1st Cir. 2020) (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 245, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010)); see 29 U.S.C. § 1132(g)(1) ("In any action under this subchapter . . . the court in its discretion may allow a reasonable attorney's fee and costs of action to either party."). Although the Supreme Court in Hardt did not decide whether remand is sufficient to satisfy the requirement of success, see 560 U.S. at 256, 130 S.Ct. 2149, the First Circuit has expressed its view that the "position" is "persuasive," Gross v. Sun Life Assur. Co. of Can. (Gross II), 763 F.3d 73, 78 (1st Cir. 2014). As have certain of my colleagues on this Court, I determined that remand in this matter was sufficient to establish K.D.'s eligibility for attorney's fees. See K.D., 2022 WL 17586091, at *14; see also MacNaughton v. Paul Revere Life Ins. Co., No. 4:19-40016-TSH, 2022 WL 17253701, at *2 (D. Mass. Nov. 28, 2022) (Hillman, J.) ("[T]here is a soft presumption that a remand to a claims administrator justifies attorney's fees.");¹ Cannon v. Aetna Life Ins. Co., No. 12-10512-DJC, 2014 WL 5487703, at *3 (D. Mass. May 28, 2014) (Casper, J.) ("remand provided a meaningful benefit").²

Previously, I concluded that eligibility for fees will not, on its own, establish a party's entitlement to fees. See Hatfield v. Blue Cross & Blue Shield of Mass., Inc., 162 F. Supp. 3d 24, 44 (D. Mass. 2016). To determine "whether an award is appropriate," courts in the First Circuit weigh the five factors³ set forth in Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (1st Cir. 1996), abrogated on other grounds by Hardt, 560 U.S. at 253-54, 130 S.Ct. 2149. Gross II, 763 F.3d at 82-83. I weighed those factors in this matter, see K.D., 2022 WL 17586091, at *15-16, and held an award to K.D. to be appropriate under these circumstances.

To determine the reasonable fee award under § 1132(g)(1), "a lodestar time and rate method is preferred." McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 181, 184 (D. Mass. 2010); see Cent. Pension Fund of the Int'l Union of Operating Eng'rs & Participating Emps. v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014) ("The calculation of shifted attorneys' fees generally requires courts to follow the familiar lodestar approach.").⁴ To calculate the "reasonable fee" I must "multiply[ ] the number of hours productively spent by a reasonable hourly rate to calculate a base figure." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008).

The burden of "support[ing] both the time and rate components rests with the party seeking the award," and requires the submission of "supporting documentation" such as "counsel's contemporaneous time and billing records and information establishing the usual and customary rates in the marketplace for comparably credentialed counsel." Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st Cir. 2011).

II. ANALYSIS

A. Timing of the Fee Award

As a threshold matter, Defendants contend that an award of fees prior to resolution of remand⁵ and ultimate determination of K.D.'s benefits is inappropriate. Arguing that because K.D.'s claim centers upon "whether under the Plan K.D. is entitled to payment for the care she received from Sierra Tucson, LLC," Defendants contend that "the value of the Court's remand order . . . has not yet been determined and, thus, the Court should defer an award of fees until after remand." K.D. opposes this contention, noting that "postpon[ing] an award of fees undercuts the First Circuit's acknowledgment in Gross [II] that interim fees serve an important purpose in ERISA cases."

Defendants' contention is at odds with the First Circuit's reasoning in Gross II. See 763 F.3d at 81-82. There, the First Circuit explained that an ERISA fee award "bespeaks a need for prompt resolution." Id. at 82. Although an award of fees prior to completion of remand "could result in piecemeal fees litigation," in ERISA matters that can take many years to conclude, claimants "may face difficulty both securing counsel initially and retaining counsel as proceedings move forward." Id. Awarding fees as the litigation progresses may encourage "better access to skilled counsel for ERISA claimants." Id. In light of this First Circuit guidance, I will award fees at this stage.

B. Calculating the Reasonable Fee Award

The lodestar calculation is a two-step process. See Pérez-Sosa v. Garland, 22 F.4th 312, 321 (1st Cir. 2022) (describing lodestar calculation in employment retaliation case). I first "calculate the number of hours reasonably expended by the attorneys . . . excluding those hours that are 'excessive, redundant, or otherwise unnecessary.' " Cent. Pension Fund, 745 F.3d at 5 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). "The second step entails a determination of a reasonable hourly rate or rates—a determination that is often benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence." Id. I may then "adjust the lodestar itself, upwards or downwards, based on any of several different factors, including the results obtained and the time and labor actually required for the efficacious handling of the matter." Torres-Rivera, 524 F.3d at 336.⁶

K.D. requests $81,047.00 in attorney's fees and $400.00 in costs, which she contends represents a reasonable fee for her services, reduced to remove duplicitous work and to reflect only the hours expended on claims as to which she was successful. Defendants dispute the quantum of K.D.'s fee request generally, suggesting that I further reduce the award to reflect her limited success of remand.

1. Reasonable Hours

K.D. requests fees for a total of 167.70⁷ hours for the work of three individuals at Rosenfeld & Rafik, P.C. ("Rosenfeld & Rafik") supported by contemporaneous billing records. She requests 113.90 hours for Ms. Rafik, 25.60 hours for Ms. Burns, and 28.20 hours for Ms. MacKenzie. K.D. submits that she expended a total of 268.70⁸ hours but reduced that number by removing hours that reflect "duplication of efforts" and "unproductive" work. Specifically, K.D. has limited time billed for communications with the client and opposing counsel, and completely removed billing from members of the firm other than Ms. Rafik, Ms. Burns, and Ms. MacKenzie. In addition, K.D. did not submit billing entries for time spent on "unproductive" work — namely, her response to Defendants' second motion to strike, which I granted, see K.D., 2022 WL 17586091, at, *16, and work related to her Parity Act claim, which I denied at summary judgment, id. at *13-14. Defendants do not contest the content of K.D.'s billing entries nor the number of hours requested.

I have reviewed K.D.'s entries and find that her billing is reasonable.⁹ First, K.D.'s billing does not reveal "signs" of overstaffing. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297 (1st Cir. 2001). Although both Ms. Rafik and Ms. Burns worked on K.D.'s matter, "the mere fact that more than one lawyer toils on the same general task does not necessarily constitute excessive staffing." Id. In fact, K.D. has carefully tailored her requested fees to excise repetitive entries and has only asked for the fees of certain individuals.

Second, K.D. has requested fees solely for the claims and aspects of the litigation as to which she was successful, albeit on an interlocutory basis. In this context, I will consider the degree of disallowance appropriate. See Torres-Rivera, 524 F.3d at 336 (explaining that "the court may disallow time spent in litigating failed claims"). She has not requested an award for the time spent developing and litigating her Parity Act claim, nor has she included the time spent on Defendants' second motion to strike. K.D.'s time spent on Defendants' third motion to strike is properly included, although I granted Defendants' motion. This is because K.D.'s time in this regard is attributable to Defendants' obdurate litigation conduct, which necessarily required K.D. to pursue contentions on which she was unsuccessful to secure contentions on which she achieved success.

K.D.'s records do reflect something approximating block billing. See EEOC v. AutoZone, Inc., 934 F. Supp. 2d 342, 354 (D. Mass. 2013) (" 'Block billing' is an...