Court of Appeals Sets Bonny G. Rafel’s Hourly Rate Insurance Companies Must Pay

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One of the only saving graces of disability cases falling under the ERISA regulation, is that if the Court decides that we have had “success on the merits” of the claim on behalf of our clients, the Court may, in its discretion order that our counsel fees must be paid by the insurer. This is so important, because without that happening, when we win cases in litigation in federal court, our client pays our contingency fee from the settlement or judgment.
On June 26, 2015 we blogged on the issue of counsel fee awards in ERISA claims and explained how the court may decide that a claimant’s attorney’s fees are paid by the insurer. To receive attorney’s fees from the insurance company rather than our client, the court must conclude that we have achieved “some degree of success on the merits.” Then it must then determine the appropriate amount which is based on our timekeeper records of our legal work on the case multiplied by a lodestar, an hourly rate. Keep in mind that our clients only pay us for litigation on a contingency basis; that means, if we win the case, they pay a set percentage of the award, not by the hour.
Over the years, courts have awarded our firm, particularly, Bonny G. Rafel, Esq., counsel fees to be paid by the insurer. This obviously reduces our client’s burden of paying our fees. We would love nothing more than to get our clients all of the disability benefits they deserve, and be paid for our efforts by the insurance company who terminated or denied the benefits in the first place.
Even when we are successful in litigation, the insurer has argued that the fees should be reduced for one reason or another. They have often tried to reduce fees based on what they think would be fair, and sometimes even try to get a “southern NJ” rate, (if our cases are in Federal Court in Trenton) suggesting that lawyers working in south New Jersey charge less than the northern NJ, Manhattan corridor amount.
On May 20, 2015 the Third Circuit Court of Appeals heard oral argument in one of our cases, and after deciding in favor of our client, ordered that the insurance company, Liberty, pay all of our legal fees associated with the Third Circuit Appeal. Moreover, the Third Circuit determined that the hourly rate for counsel, Mark Debofsky, Esq. counsel from Chicago, Illinois should be $600.00 per hour and the hourly rate for counsel, Bonny G. Rafel, counsel from Florham Park, New Jersey should be $500.00 per hour.
We met the threshold requirement set forth in Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010) for an award of fees under ERISA where a court has discretion to award attorney’s fees and costs under 29 U.S.C. §1132(g)(1) as long as the party seeking fees has achieved “some degree of success on the merits”. Under 29 U.S.C. §1132(g)(2) “a reasonable attorney’s fee and costs” may be allowed “to either party” at the court’s “discretion.”
Our hourly rates were reasonable given the court’s rationale in Boxell v. Plan for Group Ins. of Verizon Communs., Inc., 2015 U.S. Dist. LEXIS 94332 (N.D. Ind. July 21, 2015), where the court noted “ERISA is a specialized field with a limited number of attorneys who specialize in representing plaintiffs seeking disability benefits, and . . . there is a national market for the services of those attorneys. . . . Mr. DeBofsky . . . estimated that there are fewer than 150 attorneys nationwide who regularly litigate ERISA disability claims for plaintiffs.” This decision in Stevens v. Santandar Holdings, USA, Inc. Sel, Liberty Life Assurance Co. of Boston, et.al, CV 14-1481 (Oct. 21, 2015) is a vital tool for all ERISA attorneys in New Jersey and elsewhere to utilize to obtain payment of all reasonable counsel fees by the insurer who wrongfully denied the claim.
We have always believed that the specialty focus of our practice, and our decades of work in this area of the law, entitles us to the market rate for similar ERISA attorneys nationwide. Ms. Rafel has handled cases in many federal jurisdictions and lectures nationwide, and is recognized for her knowledge and advocacy for consumers in this niche field of law.