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Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980

2017 WL 748980 Directing Parties to Confer and File Notice of an Only the Westlaw citation is currently available. Agreed Award of Interest on the Fee Award or United States District Court, Briefs on that Issue by Monday, April 17, 2017 C.D. California. VALERIE BAKER FAIRBANK, U.S. DISTRICT Lenai Mull et al., Plaintiffs JUDGE v. *1 This was an action under the Employee Retirement Motion Picture Industry Health Plan Income and Security Act of 1974, 29 U.S.C. § 1001 & Board of Directors of Motion Picture et seq., as amended (“ERISA”). Four plaintiffs—Lenai Industry Health Plan, Defendants Mull (“Lenai”), her father Norman Mull (“Norman”), Motion Picture Industry Health Plan mother Danielle Mull (“Danielle”), and sister Carson and Board of Directors of Motion Picture Mull (“Carson”)—filed the original complaint against the Industry Health Plan, Counterclaimants Motion Picture Industry (“MPI”) Health Plan and the v. Motion Picture Industry Health Plan Board of Directors Lenai Mull and Norman Mull, (collectively “the Plan”). Plaintiffs asserted one legal claim Counterclaim-Defendants and one equitable claim. Defendants filed a FED. R. CIV. P. 12(b)(6) motion to dismiss. In December 2012, this Case No. LA CV 12-06693-VBF Court partially granted and partially denied the motion to | dismiss. As to plaintiffs' legal claim, the Court held that Filed 02/27/2017 plaintiffs “failed to state a claim that the reimbursement provision violated the clarity requirements of the statute Attorneys and Law Firms and regulations.” Mull v. MPI Health Plan et al., 937 Daniel E. Wilcoxen, Wilcoxen Callaham LLP, F. Supp.2d 1161, 1174-77 (C.D. Cal. 2012) (Fairbank, Sacramento, CA, Donald M. Decamara, Donald M. De J.) (discussing 29 U.S.C. § 1022(a) and 29 C.F.R. §§ Camara Law Offices, Carlsbad, CA, for Plaintiffs. 2520.102-2 and 2520.102-3). This Court allowed plaintiffs' equitable claim to survive, however. See Mull, 937 F. Michael Rasalan Odoca, Elizabeth Rosenfeld, Kathryn Supp.2d at 1177 (quoting and discussing CGI, 683 F.3d at Jane Halford, Wohlner Kaplon Cutler Halford and 1125-26). Rosenfeld, Encino, CA, for Defendants. The Court granted plaintiffs leave to amend, see Mull, 937 F. Supp.2d at 1182, and all four plaintiffs filed the First Proceedings (in chambers): ORDER Awarding Attorney Amended Complaint (“FAC”) (Doc 25) in February 2013. Fees to Plaintiffs But Reducing Rates & Hours; Defendants filed an Answer (Doc 26) in March 2013. A year later, in March 2014, the Court issued an order (Doc 49) granting defendants leave to file an amended answer Determining that Attorney DeCamara Should Be Paid (Doc 46-4) which asserted a counterclaim against Lenai $575 Per Hour; Determining that Attorney Wilcoxen and Norman. In May 2014, the Court granted Norman's Should Be Paid $575 Per Hour; Determining that motion to dismiss the counterclaim. See Norman Mull v. Attorney Wilcoxen Should Be Paid $400 Per Hour; MPI Health Plan, No. LA CV 13-00205-VBF Document (“Doc”) 68, ––– F. Supp.3d –––– (C.D. Cal. May 30, Approving 85% of the 546.15 2014). Requested Hours, i.e. 464.23 Hours; In September 2014, the Court granted summary judgment to plaintiffs Norman, Danielle, and Carson on the FAC. Directing Parties to Confer and File Notice See Mull v. MPI Health Plan, No. LA CV 13-00205- of an Agreed Fee Award Consistent with VBF Doc 69, ––– F. Supp.3d ––––, 2014 WL 4854548 this Order by Monday, April 3, 2017; (C.D. Cal. Sept. 30, 2014). Only Lenai's claims remained

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980 pending against defendants, and defendants' counterclaim Donald M. De Camara, Daniel E. Wilcoxen, Mark P. remained pending against Lenai only. The same Order Robinson Junior, and Dennis A. Schoville (Docs 87-2 directed Lenai to report on the status of her bankruptcy through 87-5). In addition to defendant MPI's opposition proceedings by January 9, 2015. Lenai filed the report brief, the Court has considered the declarations that on January 7, 2015, noting that the Bankruptcy Court defendants have submitted from attorneys Kathyrn J. had rejected defendants' arguments for treating their Halford and Rebecca B. Mocciaro (Docs 97-1 and 97-2). counterclaims in this case as nondischargeable and had Pursuant to LCivR 7-15 and Fed. R. Civ. P. 78, the Court ordered Lenai's discharge on August 12, 2014; that the finds the fee application suitable for resolution without Trustee had issued his final account and distribution oral argument. report on December 17, 2014; and that her counsel expected the bankruptcy case to close in January 2015. By separate Order (Doc 104), this Court granted in part See Doc 73 at 2; Doc 74 at 1-4 (Declaration executed and denied in part the plaintiffs' application for fees and Jan. 5, 2015) and id. at 5-17 (exhibits)). Accordingly, costs. Today's order determines the proportion of plaintiffs' by Order issued January 15, 2015 (Doc 75), this Court request that will be approved. Cf. Barnes v. AT&T Pension directed Lenai to provide an update within two months. Benefit Plan—Nonbargained Program, 963 F. Supp.2d On February 11, 2015, Lenai filed a report which stated 950, 954-55 (N.D. Cal. 2013) (“[P]ending before the Court that the final decree in her bankruptcy case had issued is Mr. Barnes's motion for attorney's fees.... Barnes is on January 23, 2015, and she attached a copy. See Doc asking for more than $1.3 million in fees.... [T]he Court 76-1. Accordingly, by Order issued February 12, 2015, this hereby grants Mr. Barnes's motion but orders the parties Court lifted the bankruptcy stay and directed the filing of to provide supplemental briefing so that the Court may motions on the remaining pleadings. determine ... the exact amount of fees and costs....”).

*2 Lenai Mull and the defendants cross-moved for The Court will slightly reduce the rate sought by De Camara summary judgment on the FAC and the counterclaim and Wilcoxen to $575 instead of $600, but will approve the in March 2015. By Order issued July 17, 2015 (Doc $400 hourly rate sought by Drew M. Widders (Wilcoxen's 86), the Court granted Lenai summary judgment on the associate). The Court will reduce the requested 546.15 hours counterclaim, and then granted judgment on the FAC in by fifteen percent (15%) to adjust for block billing, to part to Lenai and in part to defendants. Plaintiffs noticed reflect extensive if necessary overlap between plaintiffs' an appeal, which the Circuit acknowledged by Notice filed motion briefs, to ensure that plaintiff are not compensated August 27, 2015 (Doc 94, Appeal No. 15-56246). See Ray for general overhead, and to prevent compensation at Haluch Gravel Co. v. Central Pension Fund of Int'l Union attorney rates for any non-attorney work. The Court of Operating Engineers & Participating Employers, ––– approves 464.23 hours of attorney work. The fifteen percent U.S. ––––, ––––, 134 S. Ct. 773, 780-82 (2014) (district discount shall be applied equally to each attorney's billing. court order resolving claims by employee benefit funds for additional contributions allegedly owed to funds under *3 The Court will direct the parties to confer, jointly the CBA was a final order, from which appeal had to be calculate the appropriate attorney-fee award consistent with taken within the 30-day period specified in Federal Rules the hourly rates and number of hours specified in this Order, of Appellate Procedure, notwithstanding the pendency of and file an agreed and stipulated fee amount by Monday, application for attorneys fees). Defendants' appeal is still April 3, 2017. The Court will direct the parties also to pending. 1 confer and agree, if possible, on the additional amount that is due to plaintiffs as post-judgment interest on the fee award. THE CURRENT APPLICATION FOR ATTORNEYS' FEES AND COSTS Finally, the Court will direct defendants to pay plaintiffs' Plaintiffs have applied for an award of attorneys fees counsel the costs sought ($594.95) no later than March 27, and costs. (Doc 87). In addition to plaintiffs' opening 2017. See Fed. R. Civ. P. 54(d); see also De Camara Dec. brief (Doc 87-1) and reply brief (Doc 98), the Court has ¶ 11 and Exhibit 8. considered the declarations that plaintiffs have submitted from plaintiff Lenai Mull (Doc 98-1) and attorneys

unenforceable as a matter of law because it was contained Analysis: All Four Plaintiffs Achieved a Sufficient only in the Summary Plan Description, not in any Degree of Success to be Entitled to Attorney Fees document that should be considered a Plan Document, In their notice of motion for attorneys fees and costs, the and thus was not a term of the plan; and (2) “[t]he Mulls summarize their argument as follows: Agreement and Declarations of Trust Establishing the Motion Picture Industry Health Plan ..., ... has been * * * [P]laintiffs Danielle Mull, Norman Mull and amended pursuant to a Resolution of the Directors ... Carson Mull prevailed on all their claims for relief to include the reimbursement/overpayment provision in against defendants. They obtained injunctive relief an exercise of ‘extreme caution’ following the Court's restoring the family's health coverage and monetary decision.” Doc 97 at 6. The Court would note that relief for all of the covered medical expenses that defendants neglect to mention the direct and substantial MPI had wrongfully denied. They also obtained monetary benefit to Lenai Mull when she won summary summary judgment against MPI's enforcement of any judgment on the defendants' counterclaim. The defendants' credit or recoupment provisions against that coverage counterclaim sought to compel Lenai to pay $100,000— because the Court ruled that those provisions were plus, presumably, substantial interest accrued over the unenforceable as a matter of law. Norman Mull course of several years—and plaintiffs' counsel through also obtained a dismissal with prejudice of MPI's this litigation defeated that counterclaim and avoided that counterclaim against him [on a ground unrelated to liability for Lenai. the merits of that counterclaim]. Consequently, these three parties would be considered to be 100% prevailing *4 Five years ago, the U.S. Supreme Court unanimously parties and should therefore be awarded reasonable held that an ERISA plaintiff need not prove that she was a attorneys fees and costs. “prevailing party” in order to be entitled to attorney fees and * * * Lenai Mull prevailed on the central issue in the costs under ERISA section 502(g)(1), which is 29 U.S.C. § case precluding MPI from enforcing its reimbursement 1132(g)(1). The eight-justice majority wrote as follows: provision against her and obtained judgment on the Whether § 1132(g)(1) limits the availability of attorney's MPI counterclaim as a matter of law. Since she fees to a “prevailing party” is a question of statutory prevailed on about 95% of the monetary claims for relief construction. As in all such cases, we begin by analyzing between herself and MPI, she should also be considered the statutory language, “assuming that the ordinary a prevailing party, with entitlement to fees and costs. meaning of that language accurately expresses the Doc 87 at 2-3. For their part, defendants do not argue that legislative purpose.” Gross v. FBL Financial Services, any of the Mulls did not enjoy “some degree of success Inc., 557 U.S. 167, ––––, ... (2009) .... We must enforce on the merits” as required for this Court's statutory plain and unambiguous statutory language according discretion to award attorney's fees to become operative. to its terms. * * * Rather, defendants concede that the litigation secured a Section 1132(g)(1) provides: “meaningful” legal benefit for at least three of the four plaintiffs: Norman Mull, his wife Danielle, and his son “In any action under this Carson. subchapter (other than an action described in paragraph (2)) Defendants argue merely that “[t]he outcome of the by a participant, beneficiary, litigation benefitted only Norman, Danielle and Carson or fiduciary, the court in its Mull, and did not confer a benefit on other plan discretion may allow a reasonable participants who rely upon and accept benefits provided attorney's fee and costs of action for in the Plan's Summary Plan Description (‘SPD’).” to either party.” Doc 97 at 5-6 (providing an incomplete citation for Kirchman v. Board of Directors and citing no other The words “prevailing party” do not appear in this authority). Defendants reason that (1) the Mulls won provision. Nor does anything else in § 1132(g)(1)'s text their relief here from the Court's holding that the purport to limit the availability of attorneys' fees to third-party reimbursement/recoupment provision was a “prevailing party.” Instead, § 1132(g)(1) expressly

grants district courts “discretion” to award attorneys' the merits without conducting a lengthy inquir[y] into the fees “to either party.” (Emphasis added.) question whether a ... party's success was ‘substantial’ or occurred on a ‘central issue.’ ” Hardt, 560 U.S. at 255, 130 Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, S. Ct. at 2158 (quoting Ruckleshaus v. Sierra Club, 463 251-52, 130 S. Ct. 2149, 2156 (2010) (J. Thomas, joined U.S. 680, 688 n.9, 103 S. Ct. 3274, 3279 (1983)). by C.J. Roberts & JJ. Scalia, Kennedy, Ginsburg, Breyer, Alito & Sotomayor) (alterations & cites omitted); see Moreover, the Supreme Court has held that in exercising also Samano v. Kaiser Found'n Health Plan, Inc., 466 its discretion, a federal court need not necessarily consider Fed.Appx. 592 (9th Cir. 2012). 2 the factors set forth in circuit precedent otherwise governing attorney fee applications, at least so far as the Supreme The Supreme Court found it significant that section Court is concerned. See Hardt, 560 U.S. at 249 and 254-55, 1132(g)(1)'s unqualified phrase “to either party” was 130 S. Ct. at 2155 and 2158 (“Consistent with Circuit materially different from other fee-shifting provisions precedent, the District Court applied five factors to guide within the ERISA statute itself. The Court explained: its discretion in deciding whether to award attorney's fees under § 1132(g)(1). Because these five factors bear no That language contrasts sharply with § 1132(g)(2), obvious relation to § 1132(g)(1)'s text or to our fee-shifting which governs the availability of attorney's fees in jurisprudence, they are not required for channeling a ERISA actions under § 1145 (actions to recover court's discretion when awarding fees under this section.”) delinquent employer contributions to a multiemployer (internal citation omitted). plan). In such cases, only plaintiffs who obtain a “judgment in favor of the plan” may seek attorney's One month after the Supreme Court issued Hardt in fees. § 1132(g)(2)(D). The contrast ... makes clear that May 2010, the Ninth Circuit issued a decision applying Congress knows how to impose express limits on the and supplementing Hardt. In Simonia v. Glendale Nissan/ availability of attorney's fees in ERISA cases. Infiniti Disability Plan, 608 F.3d 1118 (9th Cir. 2010), the Circuit held that when considering whether to award Hardt, 560 U.S. at 252. “Because Congress failed to attorney fees to a party in an ERISA case, the district court include in § 1132(g)(1) an express “prevailing party” limit must consider first whether the party achieved some degree on the availability of attorney's fees,” Hardt concluded, a of success as required by Hardt and second whether the court would be impermissibly legislating from the bench if party satisfies the five criteria set forth in Hummell v. S.E. it “add[ed] that term of art to a fee-shifting statute where Rykoff & Co., 634 F.2d 446 (9th Cir. 1980) (“Hummell”). it is conspicuously absent....” Id. The Ninth Circuit wrote as follows:

*5 Rather than proving that she was a prevailing party, an District courts must now determine whether an ERISA ERISA plaintiff seeking attorney fees need only show that fee claimant has achieved “some degree of success on she “achieved some degree of success on the merits” and the the merits” before awarding fees under [29 U.S.C.] § court will then have discretion to award fees. See Hardt, 560 1132(g). [citation to Hardt] But the Supreme Court U.S. at 245, 130 S. Ct. at 2152. To show some degree of expressly declined to foreclose the possibility that, once success on the merits, a party in an ERISA case must show a court has determined that a litigant has achieved some that through the lawsuit she achieved “more than ‘trivial degree of success on the merits, it may then evaluate success on the merits' or a ‘purely procedural victory.’ the traditional five factors under Hummell..., before ” Hardt, 560 U.S. at 256, 130 S. Ct. at 2159; see, e.g., exercising its discretion to grant fees. See Hardt, [560 Pepsi Bottling Group, Inc. v. Thomas, 2010 WL 4622520, U.S. 242, ––––n.8,] 130 S. Ct. at 2158 n.8. *2 (W.D. Wash. Nov. 4, 2010) (“Had Plaintiff's [ERISA] claim been dismissed for want of proper service or on Because we continue to believe that “district courts statute of limitations grounds, PBG might convincingly should have guidelines to apply in the exercise of their argue that Defendant's victory was ‘merely procedural.’ discretion under § 1132(g),” Hummell, 634 F.2d at 453, ”). “Hardt sets out a rather easily traversed threshold.” we hold that district courts must consider the Hummel Templin v. Independence Blue Cross, 785 F.3d 861, 866 factors [even] after they have determined that a litigant (3d Cir. 2015). Hardt is satisfied whenever “the court can has achieved “some degree of success on the merits,” fairly call the outcome of the litigation some success on Hardt, 130 S. Ct. at 2152-53.

or to resolve a significant legal question regarding Simonia, 608 F.3d at 1119. In other words, even after ERISA; and an ERISA party shows that she achieved some degree of success on the merits (satisfying the Hardt standard), (5) the relative merits of the parties' positions. the district court may refuse to award fees to that party if the court determines that the balance of the five Simonia, 608 F.3d at 1121 (quoting Hummell, 634 F.2d at Hummel factors weighs against a fee award under the 453). “No single Hummell factor is necessarily decisive”, circumstances. See Simonia, 608 F.3d at 1119 (“Even Simonia, 608 F.3d at 1122 (citing Carpenters So. Cal. assuming Simonia achieved some degree of success on Admin. Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir. the merits, we agree with the district court's conclusion 1984)), and “not all must weigh in favor of a fee award.” that fees are nonetheless inappropriate after applying Caplan v. CNA Fin. Corp., 573 F. Supp.2d 1244, 1248 the Hummel factors. We therefore affirm the denial of (N.D. Cal. 2008) (citing McElwaine v. U.S. West, Inc., 176 fees to Simonia.”); accord Ciaramitaro v. Unum Life Ins. F.3d 1167, 1173 (9th Cir. 1999)). Co. of America, 521 Fed.Appx. 430, 436-37 (6th Cir. 2013) (rejecting plaintiff's claim “that in addition to that Conversely, even when a court finds that a majority of threshold clarification [Hardt's ‘some degree of success' the five Hummel factors favor a fee award, the court may requirement], the Supreme Court disclaimed the Fourth still conclude that the two factors on the other side of Circuit's five-factor test”) (citing O'Callaghan v. SPX the ledger are more weighty and call for denial of a fee Corp., 442 Fed.Appx. 180, 186 (6th Cir. 2011)). award. Cf. Retired Indep. Guards Ass'n of Nevada v. Board of Trustees, Indep. Guards Ass'n of Nevada—Wackenhut *6 Accordingly, the Court determines that each of the Services, Inc. Pension Trust Fund, 2012 WL 1068262, *2 four plaintiffs achieved “some degree of success on the (D. Nev. Mar. 29, 2012) (Hunt, J.) (“[T]he Court finds merits” in this action, satisfying the threshold which the that the majority of factors weighs in favor of an award Supreme Court established for ERISA fee claimants in of attorneys fees. Nonetheless, the court declines to award Hardt. Accord, e.g., Tolstedt v. Standard Ins. Co., 2013 WL attorneys [fees] under § 502(g)(1) for various reasons. 5319487, *1 (D. Mont. Aug. 2, 2013) (Christensen, C.J.) Principally, the Court finds that the [fee] award under [28 (“Though prevailing on the merits is not required [for a U.S.C.] § 1927 is sufficient and covers the culpability and party to be eligible] ... for attorney's fees, Tolstedt's victory bad faith shown by Plaintiffs and the deterrence factor. on the merits easily constitutes ‘some degree of success' Also, the Court finds that it is unlikely that Plaintiffs which merits eligibility.”). could satisfy the award of fees.”), recon. denied, 2012 WL 1900938 (D. Nev. May 24, 2012), appeal filed (9th Cir. Having “pass[ed] through the ‘some degree of success on the June 25, 2012) (No. 12-16451). merits' door”, plaintiffs have triggered the Court's statutory discretion to award them attorney fees. See Simonia, 608 Furthermore, neither the Supreme Court nor the Ninth F.3d at 1121. To decide whether to actually exercise that Circuit has ever held that the Hummel factors must statutory discretion to award fees to plaintiffs, the Court “strongly” weigh in favor of a fee award before the court now must analyze the five Hummel factors which apply in may award fees to an ERISA party under 29 U.S.C. our circuit: section 1132(g)(1), contra Bensi v. El Camino Hosp., 2012 WL 1207238, *1 (N.D. Cal. Apr. 11, 2012) (denying (1) the degree of the opposing parties' culpability; ERISA plaintiff's application for attorney's fees because “[w]hile this is a close question, the Court does not believe (2) the ability of the opposing party to satisfy an award the factors tip strongly in favor of fees”). On the contrary, of fees; the Hummell factors “are to be liberally construed in favor of protecting participants in employee benefit plans.” (3) whether an award of fees against the opposing Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 parties would deter others from acting under similar (9th Cir. 1984). circumstances;

(4) whether the parties requesting fees sought to benefit *7 The Court concludes that on balance, the five Hummell all participants and beneficiaries of an ERISA plan factors weigh solidly in favor of exercising the statutory discretion to award attorneys fees to all four plaintiffs. As to

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980 the first Hummell factor, the Court determines that while intent to withhold”, where “Defendant committed several the defendants' interpretation of ERISA law was wrong, violations” of ERISA). there is no basis for finding that the defendants acted in bad faith in attempting to enforce, through extrajudicial *8 The second Hummell factor, the opposing party's recoupment or through their counterclaim in this action, ability to satisfy an attorney-fee award, “is relevant what they believed was an enforceable provision in the ‘more for exclusionary than for inclusionary purposes.’ Summary Plan Description. It was not necessarily obvious ” Trustees of Detroit Carpenters Fringe Benefit Funds to all fairminded observers that the U.S. Supreme Court v. Patrie Const. Co., Nos. 13-2484 and 14-1047, ––– or the Ninth Circuit would prohibit enforcement of that Fed.Appx. ––––, 2015 WL 873504, *11 (6th Cir. Mar. provision on the ground that the provision was contained 3, 2015) (quoting Warner v. DSM Pharma Chemicals only in the Summary Plan Description—the ultimate North America, Inc., 452 Fed.Appx. 677, 681-82 (6th ground for this Court's decision on the central issue Cir. 2011)). In other words, while the opposing party's that resolved much of the case. See generally Aviation inability to satisfy an award weighs against awarding fees, West Charters, Inc. v. United Healthcare Ins. Co., 2015 evidence that the opposing party is able to pay does not WL 143829, *3 (D. Ariz. Jan. 12, 2015) (“To avoid a affirmatively weigh in favor of awarding fees. In any finding of bad faith under the Hummell factors, a plaintiff event, the second Hummell factor does not weigh against must have a reasonable belief that it could prove an an award of fees here, because nothing in the record actionable ERISA claim [or defense or counterclaim].”) suggests that defendant MPI Health Plan would have any (citing Cline v. Industrial Maintenance Eng'g & Contracting difficulty satisfying such an award and MPI does not Co., 200 F.3d 1223, 1236 (9th Cir. 2000)) (discussing allege to the contrary. Cf., e.g., Brasley v. Fearless Farris Credit Managers Ass'n v. Kennesaw Life & Acc. Ins. Co., Service Stations, Inc., 2010 WL 4867359, *2 (D. Idaho 25 F.3d 743, 749 (9th Cir. 1994)); cf., e.g., Blood Systems, Nov. 23, 2010) (Winmill, C.J.) (“[Defendants] suggest that Inc. v. Roesler, 972 F. Supp.2d 1150, 1158 n.8 (D. Ariz. any fee award will come from the general assets of Stinker 2013) (“At the time this case was filed, the case the Court which are not limitless. Still, there is no real dispute that relied on in granting summary judgment had not yet been Defendants have the ability to pay a fee award.”). decided. It is possible, therefore, that Plaintiffs reasonably believed they had a viable claim against Levenbaum and The third Hummell factor also favors an award of fees Cohen.”). 3 because such an award would logically tend to deter other ERISA plan drafters and administrators from attempting Nonetheless, while the Court finds that the defendants to enforce provisions which appear only in the plan's acted in good faith in persistently enforcing a legally Summary Plan Description and not in any document that unenforceable provision, it remains the Court's holding that can properly be called part of the Plan itself. in doing so, defendants were in the wrong legally and ultimately had no valid legal justification for refusing The fourth Hummell factor also favors an award of fees to pay medical claims submitted by plaintiffs or for to plaintiffs, because the plaintiffs sought to benefit all insisting that Lenai and Norman turn over the proceeds participants and beneficiaries against whom the MPI of her insurance settlement. Therefore, the first Hummell Healthcare Plan had applied or could have applied factor weighs in favor of awarding fees, though not as the third-party reimbursement/recoupment provision with much as if defendants had acted in bad faith. See Yip regard to the years when that provision appeared only in v. Little, 2011 WL 1261314, *6 (C.D. Cal. Apr. 4, 2011) the Summary of the plan and not in the Agreement and ®. Gary Klausner, J.) (“In this case, the Hummell factors Declaration of Trust or any other plan document. See Yip, support an award of attorneys fees and costs to the 2011 WL 1261314 at *6 (Klausner, J.) (explaining that Plaintiff. First, there is no evidence that either party acted the fourth Hummell factor favored an award of attorneys in bad faith, but the Defendant did fail to satisfy his fees to ERISA plaintiff because “Plaintiff may not be the document disclosure obligations.”); cf. also, e.g., Legassie only Plan participant to benefit from this action, since v. Raytheon Co. Employee Benefits Admin. Comm., 2011 the 1999 Amendment that Plaintiff challenges purports to WL 1296395, *6-*7 (C.D. Cal. Apr. 5, 2011) (Audrey reduce the benefits of other Plan participants as well.”); B. Collins, J.) (awarding attorneys to ERISA plaintiff contrast, e.g., Mellor v. Solomon Entities Defined Benefit even though “the Court does not detect any bad faith or

Pension Plan, 2013 WL 3452367, *4 (C.D. Cal. July 9, (Wilken, J.) (“[F]rom a legal perspective, Defendants are 2013) (Christina A. Snyder, J.). ‘culpable’ in that they were found to owe Plaintiff a legal duty that they were not fulfilling”) and Caplan, The fifth and last Hummell factor strongly favors an award 573 F. Supp.2d at 1248 (same)). Accord Templin, 785 of fees to plaintiffs because the Court ruled on all four F.3d at 868 (applying five-factor Third Circuit test which plaintiffs' favor on the central issue of whether the third- mirrors Ninth Circuit's Hummell test, panel stated that for party reimbursement / recoupment provision contained in purposes of the first factor, “[c]ulpable conduct” by an the SPD was enforceable as a term of the plan; the Court ERISA party “is ‘reprehensible or wrong’ but need not be awarded Lenai almost all the monetary relief she sought involve ‘malice or a guilty purpose.’ ”) (citations omitted). (included avoided liability on the counterclaim); the Court Cf. Whealen v. Hartford Life & Acc. Ins. Co., 2009 WL awarded the other three plaintiffs all the monetary relief 4063166, *2 (C.D. Cal. Nov. 20, 2009) (“Although the they sought (including Norman's avoidance of liability on Court does not find that Hartford's original denial of the defendants' counterclaim); the Court did not rule in benefits was made in bad faith, ... Defendants are culpable favor of the defendants on any major legal issue or on any because Hartford arbitrarily denied Plaintiffs' claim. * * * claim from the amended complaint which had not become Therefore, the Court finds this factor is neutral.”). moot; and the Court did not award any monetary relief to defendants. In short, plaintiffs have satisfied the Hardt standard (“some degree of success” on the merits) and shown that the balance On balance, then, the five Hummell factors weigh in favor of the Circuit's Hummel factors favor an award of fees, and of awarding attorneys fees to the Mulls' counsel here, defendants have not effectively countered those showings. particularly in light of the Ninth Circuit's admonition that See Oster, 768 F. Supp.2d at 1032 (“Defendants do not “[w]hen we apply the Hummel factors, we must keep at oppose Plaintiffs' entitlement to fees; rather, Defendants the forefront ERISA's purposes that ‘should be liberally dispute the amount to be awarded. Accordingly, for construed in favor of protecting participants in employee the reasons stated above, and due to Defendants' non- benefit plans.’ ” McElwaine v. U.S. West, Inc., 176 F.3d opposition, the Court finds that Plaintiff is entitled to 1167, 1173 (9th Cir. 1999); cf., e.g., Hegarty v. AT&T attorneys' fees.”). Umbrella Benefit Plan No. 1, No. C-14-1976-EMC, ––– F. Supp.3d ––––, 2015 WL 3638542, *8 (N.D. Cal. June 11, Finally, the Court perceives no “special circumstances” 2015) (“Here, based on the Court's finding that [ERISA that would render a fee award unjust. See, e.g., plan]'s denial [of benefits] was arbitrary and capricious[,] Carpenters Health & Welfare Trust for So. Calif. the first, third, and fifth [Hummel] factors are satisfied. v. Vanderharr, 384 F.3d 667, 674 (9th Cir. 2004) The Court finds this sufficient, and finds an award of (“The ERISA plan beneficiaries were merely attempting reasonable attorneys fees and costs appropriate.”) (citing to secure and enforce their plan's medical benefits McElwaine, 176 F.3d at 1173). unencumbered by the plan's extra-statutory conditions of the reimbursement provisions; the Trust then subjected *9 Lastly, the Court does not find that defendants acted in them to this burdensome litigation. We thus see no ‘special bad faith in seeking to enforce the contested provision or in circumstances that render the award of attorney fees their conduct of this litigation. But a showing of bad faith to plan beneficiaries in this case ‘unjust.’ ”); Parker v. by the losing party is not a prerequisite for a discretionary Vulcan Materials Co. Long-Term Disability Plan, 2012 statutory award of attorney fees under 29 U.S.C. § 1132(g) WL 843623, *1 (C.D. Cal. Feb. 16, 2012) (Collins, (1). See McElwaine, 176 F.3d at 1173 (“[B]ad faith is J.) (awarding ERISA fees, court stated, “Defendants not a prerequisite to an ERISA fee award.”); see also, have not pointed to any ‘special circumstances' that e.g., Oster v. Standard Ins. Co., 768 F. Supp.2d 1026, would render a fee award unjust.”) (citing Canseco v. 1033 n.3 (N.D. Cal. 2011) (Armstrong, J.) (“Even if the Construction Laborers Pension Trust for So. Calif., 93 F.3d District Court did not find that Standard acted in bad 600, 609-10 (9th Cir. 1996)). faith, a finding of bad faith is not required. Standard's failure to fulfill its legal duty to Plaintiff would warrant an award of fees under ERISA.”) (citing, inter alia King v. Legal Standard Governing the Proper Amount of an Cigna Corp., 2007 WL 4365504, *2 (N.D. Dec. 13, 2007) Attorney Fee Award in an ERISA Case

“Once a party has established that it is entitled to an United Steelworkers of Am. v. Phelps Dodge Corp., 896 award of attorneys fees', ‘it remains for the district court to F.2d 403, 407 (9th Cir. 1990). determine what fee is reasonable.’ ” Construction Laborers Trust Funds for So. Cal. Admin. Co. v. Bates, 2015 WL 4572961, *4 (C.D. Cal. June 15, 2015) (Bristow, M.J.) ANALYSIS: No Need to Reduce Fee Award to Reflect (“Bates”) (quoting Hensley v. Eckerhart, 461 U.S. 424, Limited Success or Limited Monetary Recovery 433, 103 S. Ct. 1933 (1983)) (plurality) (J. Powell for Preliminarily, the Court determines that there is no need to reduce the attorney fee award generally to reflect the the Court, joined by three JJ.) 4 , R&R adopted, 2015 notion that this Court's merits rulings putatively constituted WL 4589560 (C.D. Cal. July 28, 2015). “The most useful “a split decision” as defendants seem to suggest. First starting point for determining the amount of a reasonable of all, as plaintiffs correctly noted, Norman, Danielle, fee is the number of hours reasonably expended on and Carson obtained all the monetary relief they sought the litigation multiplied by a reasonable hourly rate.” (payment of wrongfully denied medical claims plus denial Hensley, 461 U.S. at 433, 103 S. Ct. 1933. The party of defendants' potentially $100,000-plus counterclaim seeking attorneys fees “should submit evidence supporting against Norman), while Lenai obtained almost all the hours worked and the rates claimed.” Hensley, 461 the monetary relief she sought (denial of defendants' U.S. at 434, 103 S. Ct. 1933. “The Court may then adjust potentially $100,000-plus counterclaim against her), and the upward or downward to take into account additional the defendants did not win on any major legal issue, with factors.” Bates, 2015 WL 4572961 at *4 (citing Hensley, their counterclaims against Norman and Lenai both being 461 U.S. at 434, and Moreno v. City of Sacramento, 534 dismissed with prejudice. F.3d 1106, 1111 (9th Cir. 2008)).

Second, because there is no requirement that plaintiffs be *10 The Supreme Court has noted, however, that “many “prevailing parties” to receive a fee award under section of these factors usually are subsumed within the initial 1132(g)(1), there would in any event be no need to discount calculation of hours reasonably expended at a reasonable the fees awarded to reflect any limitation in the degree hourly rate.” Hensley, 461 U.S. at 434 n.9. These factors, of plaintiffs' success on the merits, let alone such a minor sometimes known as the Kerr factors, are as follows: (1) limitation in the degree of their success. Cf. Tarasovsky the time and labor required; (2) the novelty and difficulty v. Stratify, Inc. Group Short Term Disability Plan & Long of the questions involved; (3) the skills required to perform Term Disability Plan, 2013 WL 2156262, *12 (N.D. Cal. the legal service; (4) the preclusion of other employment; May 17, 2013) (William Alsup, J.) (“Because the ERISA (5) the customary fee; (6) whether the fee is fixed or attorney's fees statute, 29 U.S.C. § 1132(g)(1), does not contingent; (7) time limitations imposed by the client or by require that a plaintiff be a ‘prevailing’ party to recover the circumstances; (8) the amount involved and the results fees, plaintiff's fee petition need not be discounted to obtained; (9) the experience, reputation, and abilities of reflect plaintiff's loss on the short-term disability and the attorneys; (10) the “undesireability” of the case, if waiver of premium claims.”) (citing Hardt, 560 U.S. 242, applicable; (11) the nature and length of the attorneys' 130 S. Ct. at 2156-59). professional relationship with the client; and (12) awards in similar cases. See Kerr v. Screen Extras Guild, Inc., 526 Third, the canon of liberal construction in favor of ERISA F.3d 67, 70 (9th Cir. 1975). plan participants applies not only when determining whether a participant wins on the merits, but also “To determine the reasonableness of the hourly rates when determining whether a participant is entitled to claimed, the court looks to ‘the prevailing market rates attorneys fees and how much to award in fees when the in the relevant community.’ ” Rorabaugh v. Continental participant arguably did not achieve complete success Casualty Co., 2009 WL 1578403, *3 (C.D. Cal. June 5, in the lawsuit. As Judge Dean Pregerson of our court 2009) (Collins, J.) (quoting Blum v. Stetson, 465 U.S. 886, aptly put it, “[t]he court recognizes the importance to 895, 104 S. Ct. 1541 (1984)). “Affidavits of the plaintiffs' liberally construe ERISA's remedial purposes in favor attorney and other attorneys regarding prevailing fees in of protecting participants, like Plaintiff, in employee the community, and rate determinations in other cases, benefit plans”, Pomerleau v. Health Net of California, Inc., particularly those setting a rate for the plaintiffs' attorney, 2012 WL 5829850, *5 (C.D. Cal. Nov. 15, 2012) (Dean are satisfactory evidence of the prevailing market rate.” Pregerson, J.) (citing McElwaine, 176 F.3d at 1172), and

“[t]his liberal construction applies to attorney's fees as well”, Pomerleau, 2012 WL 5829850 at *5. As the Supreme Court has stated, ANALYSIS: The Hours Claimed by Plaintiffs' Counsel Must Be Reduced by Fifteen Percent (15%) *11 The fee award should not be Reduction of Hours to Correct for Block Billing. While reduced simply because the plaintiff “attorneys are ‘not required to record in great detail failed to prevail on every contention how each minute of [their] time was expended,’ ” United raised in the lawsuit. Litigants in Steelworkers of America v. Retirement Income Plan for good faith may raise alternative legal Hourly Rated Employees of ASARCO, Inc., 512 F.3d grounds for a desired outcome, and 555, 565 (9th Cir. 2008) (“United Steelworkers”) (quoting the court's rejection of or failure Hensley, 461 U.S. at 437 n.12), they must “ ‘keep records to reach certain grounds is not a in sufficient detail that a neutral judge can make a fair sufficient reason for reducing a fee. evaluation of the time expended, the nature [of] and need The result is what matters. for the service, and the reasonable fees to be allowed’ ”, United Steelworkers, 512 F.3d at 565 (quoting Hensley, Hensley, 461 U.S. at 435, 103 S. Ct. 1933 (internal citation 461 U.S. at 441 (C.J. Burger, concurring)). omitted). Fee applicants do not carry this burden when they provide billing entries which lack the degree of detail ANALYSIS: Work that Plaintiffs' Counsel Did After needed to enable the court to determine intelligently which the Denial of Last Administrative Appeal But Before discrete tasks comprise the entry. With such billing entries, Filing This Action Is Properly Included in Eligibility for the Court will be unable to determine with confidence Attorney-Fee Award whether the entire entry represents work which is properly The Court would also note its agreement with plaintiffs performed by an attorney; unable to determine the extent that “[t]he rule in the Ninth Circuit is that legal expenses to which the work done duplicates or overlaps with work incurred in exhausting one's administrative remedies are done at a different time in the same case; and unable not recoverable but all other [reasonable] fees incurred in to determine even whether work that was legitimately preparing to file the lawsuit are recoverable.” Doc 87-1 “attorney work” and was not duplicative of other work in (Plaintiffs' Opening Brief Seeking Fees) at 26 (citing the case, reasonably should have taken as long as counsel Dishman v. UNUM Life Ins. Co. of Arizona, 269 F.3d claims it took. See, e.g., Day v. AT&T Disability Income 974 (9th Cir. 2001) and Cann v. Carpenters Pension Trust Plan, 608 Fed.Appx. 454 (9th Cir. 2015) (Reinhardt, for Northern California, 989 F.2d 313 (9th Cir. 1993)). As Thomas, Christen) (affirming district court's decision the Ninth Circuit has stated, “Cann does not stand for to reduce ERISA plaintiff's attorney-fee award on the the proposition that ERISA plaintiffs may not recover grounds, inter alia, that he “used block-billing to record attorneys' fees for any work done prior to the date [on his time”). which] they file their complaint.” Dishman, 269 F.3d at 987 (citing Cann, 989 F.2d at 315). “Rather, Cann simply holds *12 In paragraphs 5 and 12 of her declaration, MPI's that ERISA's attorneys' fees provision, 29 U.S.C. section defense counsel Kathyrn Halford supplies a detailed list 1132(g)(1), was not meant to reimburse claimants for legal of block-billed entries which, absent additional detail, expenses ‘incurred during administrative proceedings to the Court cannot properly approve in full. Halford also suit,’ even though such proceedings are ‘necessary and identifies entries that are as vague as “research issues.” See valuable.’ ” Dishman, 269 F.3d at 987 (citing Cann, 989 Doc 97-1 (Halford Dec) at 4 ¶ 9 (challenging paragraphs F.2d at 316). See, e.g., Alzheimer's Institute of America v. 1-2, 7, 32, 38, 61, 70, and 157 of Exhibit 2—Plaintiffs' Bill). Eli Lilly & Co., 2016 WL 7732621, *7 (N.D. Cal. Apr. 14, As plaintiffs themselves note, “some courts impose a 20% 2016) (LaPorte, M.J.) (“ ‘Some of the services performed reduction to block billed hours based upon a California before a lawsuit’ are recoverable such as the ‘drafting State Bar Committee report”, Doc 87-1 at 26 (citing Welch of the initial pleadings and the work associated with the v. Metropolitan life Ins. Co., 480 F.3d 942, 947 (9th Cir. development of the theory of the case.’ ”) (quoting Webb 2007)). To reflect this adjustment as well as the other v. Board of Educ. of Dyer Cty., Tennessee, 471 U.S. 234, adjustments herein, the Court will reduce the overall hours 243, 105 S. Ct. 1923, 1928-29 (1985)). requested by plaintiffs by a total of fifteen percent (15%).

of overlap between plaintiffs' various summary-judgment briefs filed in this case). For example, the Court finds Only a Minor Reduction of Hours to Reflect the nothing excessive or inappropriate about the amounts Necessary Overlap in Plaintiffs' Motion Briefs sought for de Camara and Wilcoxen's separate brief As plaintiffs note (Doc 87-1 at 19-20), the Ninth Circuit reviews of this district's local civil rules (contra Doc 97 has recognized that some duplication is necessary and at 9-10), nor for their separate reviews of this Court's unavoidable in litigation that occurs over the course of Fed. R. Civ. P. 12(b)(6) ruling (contra Doc 97 at 10), nor several years: for the reasonable amounts of time spent reviewing other attorneys' communications and work (contra Doc 97 at When a case goes on for many 10). Accordingly, the Court will reduce the total number years, a lot of legal work product of hours requested overall by only fifteen percent (15%) will grow stale; a competent lawyer aggregate to reflect the overlapping-brief adjustment and won't rely entirely on last year's, or the other adjustments discussed herein. even last month's research: Cases are decided; statutes are enacted; No Reduction of Hours for Attorney Conferences. regulations are promulgated and The Court will not reduce the hours sought by amended. A lawyer also needs to plaintiffs' counsel for inter-office or intra-office attorney get up to speed with the research conferencing, because the instances identified by previously performed. All this is defendant MPI were not unreasonable in the context of duplication, of course, but it's the work to be done and coordinated. See Doc 97 (Defs' necessary duplication; it is inherent Opp.) at 8-9. As former Judge Aubrey Collins of our in the process of litigating over district pointed out, under Ninth Circuit precedent it is not time. * * * One certainly expects necessarily the case that “time spent by both of Plaintiff's some degree of duplication as an attorneys drafting and discussing briefs is ... duplicative.” inherent part of the process. There Rorabaugh v. Continental Casualty Co., 2009 WL 1578403, is no reason why the lawyers should *3 (C.D. Cal. June 5, 2009). Rather, “[c]ollaboration perform this necessary work for free. between counsel does not necessarily entail duplication of Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th effort”, Rorabaugh, 2009 WL 1578403 at *3 (citing Kim Cir. 2008). Consistent with Moreno, the Court concludes v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 1989)), that the length and nature of this action necessarily and the Court sees no particular basis for concluding occasioned substantial overlap in the research, writing, re- that it was unreasonable for more than one of plaintiffs' researching, and revision of successive motion briefs by counsel to spend a fairly limited period of time working the plaintiffs. Cf., e.g., Arnett v. Hartford Life & Accident on and discussing the same issue or the same brief with co- Ins. Co., 558 F. Supp.2d 975, 981 (N.D. Cal. 2007) counsel. (rejecting ERISA fiduciary defendant's argument that it was “outrageous” for plaintiffs' counsel to spend 187.7 *13 Some Reduction of Hours for Non-Attorney Work. hours preparing a motion for summary judgment). This The Court agrees in part with defendants, however, that justifies as reasonable all of the time spent by plaintiffs on some hours sought by plaintiff at attorney rates relate to their earlier dispositive-motion briefs, and almost all—but work that could and should have been done by a non- not quite all—of the time spent by plaintiffs in re-checking attorney instead of de Camara, Wilcoxen, or Widders. See the applicable case law and preparing their subsequent Halford Dec. (Doc 97-1) at 3 ¶ 6 (challenging paragraphs very similar briefs. 1-3, 16-17, 19-28, 32, 35-38, 40-41, 46-47, 49-57, 64, 76-78, 80-81, 87-88, 90, 113-115, 120, 129, 137-138, 140, 145, 147, The Court rejects the defendants' suggestion (Doc 97 at 150, 152-154, 158, 162, 165-167, 171, and 175 of Ex. 2— 9) that “Plaintiffs' fee application is replete with services Plaintiffs' Bill). This finding further supports the Court's rendered that were duplicative between the two law firms decision to reduce the requested hours by 15% overall. or within Mr. Wilcoxen's law firm and should not be taken into account....” See also Halford Dec (Doc 97-1) Reasonable Hourly Rates are $575 for Partners De at 5 ¶ 11 and Mocciaro Dec ¶ 17 (discussing the degree Camara & Wilcoxen, $400 for Associate Widders

The Court will order defendants to compensate plaintiffs' Court has explained, this practice is appropriate because counsel De Camara and Wilcoxen at the rate of $575.00 “compensation received several years after the services (five hundred seventy-five dollars) per hour. Cf. Bates, 2015 were rendered ... is not equivalent to the same dollar WL 4572961 at *4 (Bristow, M.J.) (“The Court ... finds amount received reasonably promptly as the legal services that the hourly fee request of $300.00 for an attorney are rendered.” Missouri v. Jenkins, 491 U.S. 274, 273, 109 with over 15 years of practice, and more than 10 years in S. Ct. 2463 (1989). See also In re Washington Public Power ERISA litigation, is reasonable.”). Supply System Securities Litigation, 19 F.3d 1291, 1305 (9th Cir. 1994) (a district has discretion to compensate The $600 hourly rate requested by de Camara and Wilcoxen counsel for delay in payment either by applying the might be reasonable in the Los Angeles metropolitan area attorneys' current rates to all work done during the course for attorney work done by an attorney with a demonstrated of the litigation or by using the attorneys' historical history of experience and success as a true ERISA specialist. rates from the prior years and applying an interest-rate See, e.g., Pomerleau v. Health Net of California, Inc., 2012 enhancement), cited by Dine v. Metropolitan Life Ins. Co., WL 5829850, *5 (C.D. Cal. Nov. 15, 2012) (Pregerson, No. LA CV 05-03773, 2011 WL 6131312 (C.D. Cal. Dec. J.) (approving $600 hourly rate for attorney who was a 9, 2011) (Lew, Sr. J.) (also citing Gates v. Geukmejian, 987 partner in her law firm, had recently been awarded $550 F.2d 1392, 1407 (9th Cir. 1992), for the proposition that to $600 per hour in other California ERISA cases, and three years of delay in payment of attorneys fee after the had handled “hundreds” of ERISA cases alone from 1997 attorneys performed the work was “onerous”). 6 through 2012).

The Court agrees with defendants, however, that plaintiffs' INTEREST ON A POST-JUDGMENT AWARD OF counsel have not carried their burden of presenting solid ATTORNEY FEES evidence to support a finding that they are experienced The Court would note that ERISA specialists per se rather than merely experienced and accomplished lawyers hired for an ERISA case. [t]here are often two distinct Contrast Meguerditchian v. Aetna Life Ins. Co., 2014 WL judgments.... The first, known as 3926805, *3 (C.D. Cal. Aug. 12, 2014) (disapproving $650 the ‘merits judgment,’ grants the but approving $600 hourly rate where attorney Zietz had prevailing party the right to recover been admitted for 17 years, handled hundreds of ERISA attorney's fees. The second, known cases including claim denials while working for another as the ‘exact quantum judgment,’ firm 2003-2011, founded his own law firm in 2012 where he defines the precise amount of the had already handled about 100 claim-denial ERISA cases, fee award. The circuits are split as and had been consulted by other attorneys as an ERISA to when interest on an attorney specialist). The Court finds instead that plaintiffs' counsel fee award begins to accrue, with were not ERISA specialists grappling with an unusually the ... Ninth ... Circuit[ ] holding complex or difficult case. Rather, plaintiffs' counsel were that interest begins to accrue under merely experienced attorneys who achieved some success [28 U.S.C.] section 1961(a) from the in this case—and while the case was not a run-of-the-mill date of the merits judgment, [not case with an obvious answer easily supplied by precedent, later] ... on the date of the exact neither did it require specialization in some arcane or quantum judgment. 5 especially difficult area of ERISA law. Radford Trust v. First Unum Life Ins. Co. of America, 399 F. Supp.2d 3, 23-24 (D. Mass. Nov. 15, 2005) (citing *14 Although the Court has slightly reduced the hourly district-court decision that cited Nick J. Kemphaus and rates sought by two of plaintiffs' three counsel, it will Richard A. Bales, 23 REV. LITIG. 113 Interest Accrual apply these hourly rates back in time to the work which on Attorney's Fee Awards (2004)), rev'd in part on other plaintiffs' counsel performed in this case in 2012, 2013, grounds, 491 F.3d 21 (2d Cir. 2007). The Ninth Circuit and 2014, when judicially-determined “reasonable” hourly has held that interest on an award of attorney's fees “runs rates in our area typically would have tended to be at least from the date that entitlement to [attorney] fees is secured, slightly lower than such rates are now. As the Supreme rather than from the date that the exact quantity of fees is

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 11 Mull v. Motion Picture Industry Health Plan & Board of Directors..., Slip Copy (2017) 2017 WL 748980 set.” Friend v. Kolodzieczak, 72 F.3d 1386, 1391-92 (9th Work done by attorney Daniel E. Wilcoxen SHALL BE Cir. 1995) (citing, inter alia, Perkins v. Standard Oil Co., 487 F.2d 672, 674-76 (9th Cir. 1973) (“On July 3, 1973, COMPENSATED at $575.00 per hour for 85% of the Standard paid the principal amount of all attorneys' fees work he did, and the other 15% of the work done by awards to Perkins. On that date, it also paid the interest Wilcoxen shall not be compensated. on the affirmed $14,180 award, appropriately computing that interest from January 26, 1971, the date of entry of the Work done by attorney Drew M. Widders SHALL BE original district-court judgment.”) (citing former version COMPENSATED at $400.00 per hour for 85% of the of Federal Rule of Appellate Procedure 37)). work he did, and the other 15% of the work done by Widders shall not be compensated. *15 The court will direct the parties to confer and attempt to reach agreement on the issue of plaintiff The parties SHALL CONFER and jointly calculate the counsels' entitlement to interest on the attorney-fee award, correct amount of attorney's fees due to plaintiffs' counsel requiring them to file either a joint stipulation or separate consistent with this Order. short briefs on the interest issue by Monday, April 10, 2017. No later than Monday, April 3, 2017, the parties SHALL FILE a “Notice of Agreed Amount of Attorney's Fees Due to Plaintiffs' Counsel Consistent with Court's February 28, 2017 Order.” ORDER The parties SHALL CONFER regarding the entitlement Pursuant to Fed. R. Civ. P. 54(d), defendants shall pay to of plaintiffs' counsel to interest on the fee award. No plaintiffs' counsel, no later than Monday, March 27, 2017, later than Monday, April 17, 2017, the parties SHALL full costs sought, namely $594.95 (five hundred ninety-four FILE either (1) a joint “Notice of Agreed Amount Due to dollars and ninety-five cents). Plaintiffs' Counsel as Interest on Attorney's Fees” or (2) if they cannot reach agreement on that issue, separate short Defendants SHALL COMPENSATE plaintiffs' counsel briefs stating their positions on interest on the fee award. for 464.23 hours of attorney work, representing 85% of the total number of hours sought. IT IS SO ORDERED. 7 Work done by attorney Donald M. De Camara SHALL BE COMPENSATED at $575.00 per hour for 85% of the All Citations work he did, and the other 15% of the work done by De Camara shall not be compensated. Slip Copy, 2017 WL 748980

Footnotes 1 According to the U.S. Court of Appeals docket, appellant MPI's opening brief and excerpts of record were filed on November 29, 2015. See Appeal No. 156246, https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom, retrieved Feb. 27, 2017, Cir. Docs 16-20. The parties participated in mediation, but the case was released from mediation without a settlement by Order issued on February 1, 2017, see Cir. Doc 29. The Mulls' answering brief and supplemental excerpts of record (Cir. Docs 24 and 25) were filed on January 11, 2017, and appellant MPI's reply (Cir. Doc 30) and Further Excerpts of Record (Cir. Doc 31) were filed on February 13, 2017. The Circuit not yet scheduled oral argument. 2 Justice Stevens wrote a one-paragraph opinion that concurred in Parts I and II of the majority opinion. He stated, “I agree with the Court in this case that 29 U.S.C. § 1132(g)(1) does not impose a ‘prevailing party’ requirement....” Hardt, 560 U.S. at 257, 130 S. Ct. at 2159 (J. Stevens, concurring in pertinent part). Justice Stevens differed from the majority in Hardt only in this respect, which has no bearing on our plaintiffs' application for fees: “While I join the Court's judgment ..., I do not believe that our mistaken interpretation of § 307(f) of the Clean Air Act in Ruckleshaus..., should be given any special weight....” Id. 3 It is appropriate to consider also whether the party seeking fees acted in bad faith in any way relevant to an award of attorney's fees. Cf., e.g., Tibble v. Edison Int'l, 520 Fed.Appx. 499 (9th Cir. 2013) (affirming denial of

ERISA beneficiary's fee application, panel stated, “In later deciding fees were inappropriate, the court explained that is new decision was based on ‘plaintiffs' tactic of submitting aggressive discovery requests and asserting non-meritorious claims.’ It had serious concerns about granting fees when beneficiaries pursue ‘a shotgun approach,’ because this would incentivize this style of litigating in the future. Edison is correct that this finding further advantages it on factor (1), ... the relative culpability of the parties. [O]nce the district court determined that not only had [defendant] been acting in good faith, but beneficiaries had litigated in bad faith, it reconsidered its overall weighing of the factors. Simply put, a weak legal victory and Edison's ability to pay were perceived as insufficient bases—under the totality of five factors— to justify an award of fees.”). The Court does not find that plaintiffs' litigation conduct evinced bad faith for purposes of Hummel factor one. See Honolulu Joint Apprenticeship& Training Committee of United Ass'n Local Union No. 675 v. Foster, 332 F.3d 1234, 1239 (9th Cir. 2003) (evaluating first Hummell factor, panel stated, “[t]he district court found no evidence of bad faith, and we find none either. When HJA initiated this action, the Supreme Court had yet to clarify the distinction between legal and equitable restitution for purposes of ERISA.”); 4 Justice Burger supplied the fifth vote for the outcome in Hensley, issuing a concurrence for himself alone. The other four justices—Brennan, Marshall, Blackmun, and Stevens—concurred in part and dissented in part. 5 Cf. Board of Trustees for the Laborers Health & Welfare Trust Fund for Northern California v. Michael Heavey Const., Inc., 2015 WL 5241759 (N.D. Cal. Sept. 8, 2015) (William Alsup, J.) (awarding ERISA plaintiffs attorneys fees at the rate of $145 and $290 and $345 per hour in San Francisco area); Central California IBEW/NECA Pension Trust v. Ozzimo Electric, Inc., 2015 WL 1883906, *4 (N.D. Cal. Apr. 22, 2015) (Jeffrey White, J.) (finding hourly rates from $195 to $235 to be reasonable in ERISA case in San Francisco area) (collecting Northern District of California decisions from 2005-2008 which approved hourly rates from $225 for an associate, $250 for a relatively simple trust collection, and $350 to $450 for partners). In considering attorney-fee awards from the San Francisco area, another member of this Court has noted that “[w]hile the Los Angeles legal market is certainly competitive and expensive, San Francisco is even more so.” Meguerditchian, 2014 WL 3926805 at *4 (Otis D. Wright II, J.). 6 See also, e.g., Whealen v. Hartford Life & Acc. Ins. Co., No. LA CV 06-4948, 2009 WL 4063166, *5 (C.D. Cal. Nov. 20, 2009) (Gutierrez, J.) (“The Court finds that awarding fees based upon [attorney]'s current hourly rate appropriately compensates counsel for the delay in payment.”) (quoting Washington Pub. Power Supply Secs. Litig., 19 F.3d at 1305 (“The time value of money lost by the firm is only partially recouped [by applying historical rates]. Full compensation requires charging current rates for all work done during the litigation, or by using historical rates enhanced by an interest factor.”)); Pomerleau v. Health Net of Calif., Inc., No. LA CV 11-01654, 2012 WL 5829850 (C.D. Cal. Nov. 15, 2012) (Dean Pregerson, J.); Toven v. Metropolitan Life Ins. Co., No. LA CV 06-07260, 2009 WL 578538 (C.D. Cal. Mar. 5, 2009) (Aubrey Collins, C.J.); Rorabaugh v. Continental Cas. Co., No. LA CV 05-03612, 2009 WL 1578403 (C.D. Cal. 2009) (Collins, C.J.). 7 This order may not be immediately appealable. The Court's ultimate order directing payment of a precise amount of fees (and possibly interest thereon) will be subject to appellate review by the United States Court of Appeals for the Ninth Circuit under an abuse-of-discretion standard. See Barboza v. Calif. Ass'n of Pro. Firefighters, 594 Fed.Appx. 903, 906 (9th Cir. 2014) (affirming ruling on ERISA attorney fee application where district court had provided cogent reasons and its ruling “was not illogical, implausible, or without support in the record”) (citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)).