Sixth Circuit Affirms Denial of Attorneys’ Fee to Successful Plaintiff in ERISA Suit Due to Attorneys’ Failure to Itemize Time

In Messing v. Provident Life & Accident Ins. Co., No. 23-1824, 2024 WL 3950239 (6th Cir. Aug. 27, 2024), the Sixth Circuit considered the Plaintiff’s challenge to the district court’s denial of attorneys’ fees under Section 1132(g)(1) of ERISA. To recover fees under ERISA’s fee-shifting statute, a claimant must show some degree of success on the merits and entitlement to attorney’s fees. The Sixth Circuit found that the district court erred in its analysis of the King factors and that Plaintiff was entitled to attorneys’ fees, however, it found that the district court did not abuse its discretion in alternatively holding that Plaintiff failed to carry his burden of showing that the requested fees and costs, over $250,000, were reasonable under the typically applied “lodestar” approach.

Plaintiff won his challenge against Provident Life, who wrongfully terminated his long-term disability benefits and then sued him for repayment of allegedly overpaid benefits. Plaintiff then sought an order requiring Provident to pay his attorneys’ fees. Plaintiff’s attorneys did not support the fee petition with itemized time sheets, instead electing to submit three affidavits that summarily stated the hours worked. “For example, Messing’s principal attorney claimed—without accompanying support—that he ‘personally worked more than 720 hours to date in representing Mr. Messing in the 3 stages of this representation and litigation,’ and that his senior associate attorney ‘worked more than 162 hours in assisting’ him.” Though Plaintiff was clearly victorious in the litigation, the district court weighed the five factors articulated in Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985) and did not find that Provident was sufficiently “culpable” to warrant an award of attorneys’ fees and that both parties’ claims had merit. It denied Plaintiff’s fee request and as an alternate holding, the district court held that Plaintiff did not submit enough evidence in support of the fee request for the court to determine if the fees sought were reasonable. Plaintiff appealed.

The Sixth Circuit disagreed with the district court about Plaintiff’s entitlement to recover fees given his complete success on the merits in his prior Sixth Circuit appeal. The court found that Provident was sufficiently culpable where “Provident abruptly and unexpectedly decided to launch an investigation into Messing’s depression diagnosis and then based its ultimate determination on the report of a psychologist who did not directly opine on whether Messing could perform the substantial duties of his prior work as an attorney.” The court found that this conduct could warrant an award of fees, but Plaintiff repeatedly failed to submit evidence of the hours his attorneys worked. Because of this, the court affirmed the judgment of the district court denying Plaintiff’s request for fees under ERISA.