ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION FOR ATTORNEYS’ FEES

The Court has reviewed Magistrate Judge Joseph C. Spero’s Report and Recommendation re Defendant’s motion for attorneys’ fees(“Report”). The Court has received no objections to the Report. The Court finds the Report correct, well-reasoned and thorough, and adopts it in every respect. Accordingly, Defendant’s motion for attorneys’ fees is DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION RE DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS [Docket No. 88]

I. INTRODUCTION

This action arises out of the termination of Plaintiff Pamela Jackson’s long-term disability benefits by Defendant Wilson, Sonsini, Goodrich & Rosati Long Term Disability Plan (“the Plan”), which is funded by insurance purchased from Defendant Prudential Insurance Company of America (“Prudential”). The action was brought by Ms. Jackson and the trustee of her bankruptcy estate, Lynn Sehoenmann (“Trustee”), which asserted an interest in any recovery Ms. Jackson might obtain in the action. Plaintiffs claim is asserted under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Court entered summary judgment in favor of Defendants in an order filed August 27, 2010, and judgment was entered in favor of Defendants on the same day. Subsequently, Defendants filed the instant motion (“the Motion”), requesting an award of attorneys’ fees pursuant to 29 U.S.C. § 1132 (g). The Court finds that the Motion is suitable for determination without oral argument, pursuant to Civil Local Rule 7 — 1(b). Accordingly, the hearing set for February 18, 2011 is vacated. For the reasons stated below, it is recommended that the Motion be DENIED.

II. BACKGROUND

A. Factual Background

The underlying facts of this action are set forth in detail in the Court’s summary judgment order, which states as follows:

Order Denying Plaintiffs Motion for Summary Judgment and Granting Defendants’ Cross-Motion for Summary Judgment, filed August 27, 2010 (“Summary Judgment Order”) at 1-5.

B. The Summary Judgment Order

On August 27, 2010, the Court granted Defendants’ summary judgment motion and denied Plaintiffs summary judgment motion. The Court concluded that the objective medical evidence in the record did not substantiate the severity of Plaintiffs self-reported pain symptoms, stating, “[i]t is clear that the medical information in Plaintiffs file does not support the severity of her complaints or indicate that she is unable to perform the material and substantial duties of her occupation. Docket No. 78 at 8. On this basis, the Court sustained the denial of benefits by Defendants. Id. at 10 . The Court acknowledged, however, that Plaintiffs treating physician had submitted a letter finding that Plaintiff was totally disabled, and that the Social Security Administration had also made a finding of disability. Id. at 4 , 5 & 10 n. 2. Further, the Court denied Defendants’ request for reimbursement of benefits that were overpaid as the result of a Social Security offset, noting that Defendants had not asserted a counterclaim for reimbursement against Plaintiff but instead had only requested an offset against any judgment that might be entered in Plaintiffs favor. Id. at 10 .

C. The Motion for Attorneys’ Fees

In the Motion, Defendants request an award of attorneys’ fees under ERISA’s attorney fee provision, 29 U.S.C. § 1132 (g), because they achieved complete success in the case and the factors set forth in Hummell v. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980) support an award of fees and costs. Motion at 7. The Hummell factors instruct courts to consider the following five factors: 1) the degree of opposing party’s bad faith or culpability; 2) the ability of the. opposing party to satisfy a fee award; 3) the deterrent effect of a fee award; 4) whether the party requesting fees sought to benefit all participants and beneficiaries of the plan or to resolve a significant legal question; and 5) the relative merits of the parties’ positions. Id. at 7 (citing Hummell, 634 F.2d at 453 ). According to Defendants, all of these factors support an award of fees. Id.

First, Defendants argue that while a finding of culpability or bad faith is not necessary to award fees, this factor supports an award of fees because the evidence in support of Defendants was overwhelming. Id. at 7-8. Second, Defendants argue that although Plaintiff may not be able to satisfy a full fee award, they are entitled an award of a discounted amount in any event. In particular, Defendants state that the requested fees ($53,944.25 in attorneys’ fees and $15,219.70 in non-taxable costs) represent only 25% of fees incurred and that this amount is also reasonable because Plaintiff owes Defendants $14,680.39 in overpayments under the Plan. Third, Defendants assert that a fee award against Plaintiff in this case will not deter others from pursuing meritorious claims because the evidence against Plaintiff in this case is overwhelming. Id. at 9. Fourth, according to Defendants, their defense in this action benefitted the other plan beneficiaries to the extent the assets of the Plan were protected from a claim for benefits that was not meritorious. Id. at 10. Finally, Defendants prevailed after a full adjudication on the merits in which the Court determined that Defendants’ position had merit and the Plaintiffs did not. Id. at 11-12. Defendants also assert that their fee request is reasonable, both in terms of the rates charged and the time spent. Id.

In her Opposition, Plaintiff asserts that a fee award is not appropriate in this case based on the Hummell factors. First, Plaintiff asserts that she was not culpable and did not act in bad faith in claiming disability benefits but rather, had a reasonable belief that her claim was meritorious. Opposition at 2-3. In support of this contention, Plaintiff cites to medical evidence in the record that supports her symptoms, the finding of disability by the Social Security Administration and the credibility of Ms. Wilson’s pain testimony, arguing that the Court erred in finding that the evidence supporting Defendants’ denial of benefits was “clear.” Id. at 8-11. Plaintiff also argues that the cases cited by Defendants in connection with this factor are distinguishable because they involved fraudulent claims. Id. at 2-3.

Second, Plaintiff argues that she is “destitute” and cannot afford to pay any fees. Id. at 11. In particular, Ms. Jackson states in her declaration as follows:

Declaration of Pamela Jackson in Opposition to Attorney Fee Motion (“Jackson Deck”), ¶¶3-6.

Third, Plaintiff argues that an award of fees would deter conduct that ERISA is intended to promote to the extent that it will discourage individuals who reasonably believe that they are entitled to benefits (like Plaintiff in this action) from pursuing the remedies available under ERISA in federal court. Opposition at 12-13.

Fourth, Plaintiff rejects Defendants’ assertion that by vigorously defending against Plaintiffs claims they are protecting Plan assets and thereby benefitting the Plan, as well as other beneficiaries, as a whole. Plaintiff argues that the case cited for that proposition, Davis v. Unum Life Ins. Co., 444 F.3d 569 (7th Cir.2006), erroneously relied on a principle that had been applied in cases involving trustees administering finite trust funds, even though the Davis case involved a private insurer that paid benefits out of its own proprietary assets. Id. at 13-14. Plaintiff argues that a private insurer merely protects its own asserts when it defends a claim and therefore, this factor does not supports an award of attorneys’ fees to Defendants. Id.

III. ANALYSIS

A. Whether the Court Should Award Fees and Costs Against Plaintiff Pursuant to 29 U.S.C. § 1132 (g)

1. Legal Standard

Under 29 U.S.C. § 1132 (g), a court in its discretion may award reasonable attorneys’ fees and costs of an action by a plan participant to either party. The Ninth Circuit has held that in exercising this discretion, district courts should consider the following factors:

Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980). “No one of the Hummell factors ... is necessarily decisive, and some may not be pertinent in a given case.” Carpenters Southern California Administrative Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir.1984). While a finding of bad faith may support an award of attorneys’ fees, it is not a prerequisite for an award of fees against an ERISA plaintiff. Credit Managers Ass’n of Southern California v. Kennesaw Life, 25 F.3d 743 , 749 n. 3 (9th Cir.1994). Although the Hummell factors apply to both plaintiffs and defendants in ERISA ac tions, the Ninth Circuit has recognized that they “very frequently suggest that attorney’s fees should not be charged against ERISA plaintiffs.” Tingey v. Pixley-Richards West, Inc., 958 F.2d 908, 909 (9th Cir.1992) (holding that it would be “unjust” to require plaintiffs to pay the defendant’s attorneys’ fees, even though the defendants had prevailed at the district court level, where plaintiffs were a couple who were caring for their severely disabled son and who were seeking “no more than a recovery of what they believe[d], rightly or wrongly, to be their just benefits”).

2. Plaintiffs’ Culpability, the Relative Merits of Parties’ Positions and the Deterrent Effect of An Award of Attorneys’ Fees

As a practical matter, Defendants’ arguments as to these factors amount to essentially a single argument, that is, that because the evidence in support of denial of Plaintiffs claim was “clear,” the Court should award Defendants a portion of their attorneys’ fees. In particular, the weakness of Plaintiffs claim, Defendants assert, supports a finding that Plaintiffs pursuit of this litigation was culpable and that an award of attorneys’ fees will have no deterrent effect on those seeking to bring meritorious claims (and may even deter plaintiffs who might bring baseless claims). The Court rejects Defendants’ position.

a. Bad Faith

The Ninth Circuit has held that “in order to avoid a finding of bad faith under the Hummell factors, plaintiffs must have a reasonable belief that they could prove an actionable ERISA claim.” Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1236 (9th Cir.2000). While Plaintiff failed to prove her claim on summary judgment, she has pointed to sufficient evidence in the record to show that a reasonable basis existed for her to believe that she could prove her claim. This evidence includes medical evidence from Ms. Jackson’s treating doctor, as well as other doctors who examined or treated Ms. Jackson. It also included a finding of disability by the Social Security Administration.

The cases cited by Defendants do not support a contrary conclusion because they involved blatantly fraudulent testimony and/or claims that were found to be frivolous. See Epstein v. Unum Life Ins. Co., 2004 WL 2418310 , *1 (C.D.Cal. October 13, 2004) (holding that while fee awards against ERISA plaintiffs are disfavored, facts of that case warranted award to defendant where the plaintiffs testimony was “incredible” and there was evidence in the form a video showing that the plaintiff was “untruthful” as to her symptoms and limitations); Petri v. Sheet Metal Workers’ Nat’l Pension Fund, 2010 WL 2788185 , at *1 (S.D.N.Y. July 14, 2010) (holding that fee award against plaintiff was warranted because there was no “colorable basis” for plaintiffs claim in light of his own admission that he engaged in disqualifying employment after receiving early retirement benefits and therefore he engaged in culpable conduct); Seitzman v. Sun Life Assurance Co. of Canada, Inc., 311 F.3d 477, 483-86 (2d Cir.2002) (affirming fee award for defendant in ERISA action based on bad faith where district court found that claimant presented “deliberately false” information on “the most material points” and was “unworthy of belief as to virtually all the material circumstances of his claim”); Griffeth v. Sheet Metal Workers’ Local Unions & Councils Plan, 34 F.Supp.2d 1170, 1173 (D.Ariz.1998) (awarding fees to defendant in ERISA action based on finding that plaintiffs claim was frivolous). In this case, Defendants concede that Plaintiffs claim was not frivo lous. Further, although the district court found that Ms. Jackson’s pain testimony was not supported by the medical evidence in the record, it did not make a finding that Plaintiff engaged in the sort of intentional falsehoods that were involved in many of the cases cited by Defendants.

This factor does not support an award of attorneys’ fees.

b. Deterrent Effect of Fee Award

Although the award of attorneys’ fees against ERISA plaintiffs is generally disfavored, the Ninth Circuit has held that such an award may serve the purposes of ERISA to the extent that it will “discourag[e] other litigants from relentlessly pursuing groundless claims.” Credit Managers Ass’n of Southern California v. Kennesaw Life, 25 F.3d at 748 . In Kennesaw Life , the Ninth Circuit acknowledged that courts often deny requests for fee awards against ERISA plaintiffs. Id. (citing Tingey, 958 F.2d at 909 ; Flanagan v. Inland Empire Electrical Workers Pension Plan and Trust, 3 F.3d 1246, 1253 (9th Cir.1993)). The court distinguished Tingey and Flanagan , however, on the basis that those cases involved individual plaintiffs and there were equitable factors that did not support an award of fees. Id. In contrast, the plaintiff in Kennesaw Life was a court-appointed receiver for four insolvent insurance companies. Id. Further, the court in that case found that: 1) the plaintiff could not have had a reasonable belief that it could prevail on its claim because there was no evidence supporting the claim; 2) the plaintiff pursued the case only to extract a settlement; and 3) the plaintiff had the ability to pay a fee award, as was demonstrated by the large amount it had paid to its own attorney. Id.

In Epstein , the court found that the claimant’s testimony was “incredible” in light of video footage showing her engaged in activities that directly conflicted with her testimony as to her limitations. 2004 WL 2418310 , at *1, 2004 U.S. Dist. LEXIS 22463 , at *3. On that basis, it found that there was bad faith on the plaintiffs part, that the relative merits favored an award of fees to defendants, and that an award of fees to the defendant would advance the goal of deterrence. Id. The court cited to Kennesaw Life in support of its conclusion that the deterrent effect of an award of attorneys’ fees supported such an award, explaining that even thought the plaintiff was an individual, an award of attorneys’ fees would serve the purposes of ERISA because the plaintiff had been untruthful and her testimony “incredible,” showing bad faith. 2004 WL 2418310 , at *5, 2004 U.S. Dist. LEXIS 22463 , at *12-13 (C.D.Cal.2004).

The facts of this ease are distinguishable from those of Kennesaw Life and Epstein . Unlike the plaintiffs in those cases, the plaintiff here had a reasonable belief that she would prevail on her claim, as discussed above. The district court made no finding of bad faith; nor does the record suggest that Plaintiff pursued her claim in bad faith. Rather, the court concludes that an award of attorneys’ fees would not serve the purposes of ERISA because, rather than discouraging plaintiffs who seek to assert frivolous claims, it would likely have a chilling effect on claimants who pursue ERISA claims in good faith.

This factor does not support an award of attorneys’ fees.

3. Plaintiffs Ability to Pay

Defendants assert that although Plaintiff may not have the ability to pay the full amount of the fees that Defendants incurred in this action, this factor should not bar a partial fee award. In support of this position, Defendants cite Epstein, 2004 WL 2418310, 2004 U.S. Dist. LEXIS 22463 , and Black v. Bresee’s Oneonta Dep’t Store Sec. Plan, 919 F.Supp. 597, 604 (N.D.N.Y.1996). Defendants also point to the overpayment of benefits that resulted from Plaintiffs request for social security disability benefits. The Court rejects Defendants’ arguments and finds that this factor does not support an award of attorneys’ fees.

In Epstein , although the court concluded that the Hummell factors, on balance, supported an award of fees and costs against the plaintiff, it found that it was “difficult to determine Plaintiffs ability to pay.” Id. Therefore, the court ordered the plaintiff to submit a declaration of her family’s net worth, including her last three income tax returns. Id. at *3, 2004 U.S. Dist. LEXIS 22463 at *3. The court noted that even if the plaintiffs ability to pay was “minimal,” this would not bar an award of “some attorneys’ fees.” Id. In support of this conclusion, the court cited to Little v. Cox’s Supermarkets, 71 F.3d 637, 644-45 (7th Cir.1995), in which the Seventh Circuit upheld an award of $1,000 in attorneys’ fees (of a requested $50,000 in fees) against a plaintiff and her attorney, jointly and severally, even though the plaintiffs ability to pay was minimal and her attorney was a solo practitioner. Id. In Epstein , the court concluded that an award of “some” attorneys’ fees was appropriate based on the other Hummell factors but did not set a specific amount. Id.

This case is distinguishable from Epstein because it is not difficult to determine Plaintiffs ability to pay. Rather, Defendants do not dispute that Plaintiff is in bankruptcy proceedings. Nor do Defendants challenge Plaintiffs representation that she has no income other than her social security disability payments, that she is not employed, and that she has no assets with which to pay attorneys’ fees. At most, Epstein suggests that under the facts of this case, a nominal fee award might be allowable if the other Hummell factors supported such an award (which they do not). Nothing in Epstein supports Defendants’ assertion that an award of almost $70,000 in fees and costs is appropriate in light of Plaintiffs financial circumstances.

Defendants’ reliance on Black v. Bresee’s Oneonta Dep’t Store Sec. Plan, 919 F.Supp. 597, 604 (N.D.N.Y.1996), is also misplaced. In that case, the court awarded fees in an ERISA action, against a defendant corporation that was found to have unlawfully and unreasonably denied an individual plaintiff pension benefits to which he was entitled, even though the corporation was going through a time of “extreme financial hardship.” Id. at 605 . The court explained its conclusion as follows:

Id.

The considerations that came into play in Bresee’s are not present here. This case does not involve a request for fees against a corporation that might have an incentive to unreasonably deny ERISA claims made by other beneficiaries simply because of financial difficulties. Nor is Plaintiffs inability to pay outweighed by other equitable factors that make denial of fees unjust, as was the case in Bresee’s.

Finally, the Court does not find Defendants’ reliance on the overpayment to be persuasive. Given that the district court declined to award this amount on summary judgment, there is no authority to suggest that it may be considered as a factor in deciding whether to award fees where, as here, it is apparent that Plaintiffs is unable to satisfy a fee award notwithstanding the overpayment.

This factor does not support an award of fees against Plaintiff. To the contrary, this factor supports the conclusion that the Court should not exercise its discretion to award fees in this case

4. Whether Award Would Benefit Other Plan Beneficiaries

Defendants assert that fees should be awarded because, by defending against Plaintiffs claim, they have benefited other plan beneficiaries by protecting plan assets, citing, inter alia, Davis v. Unum Life Ins. Co., 444 F.3d 569, 575 (7th Cir.2006). Plaintiff argues that in Davis , the court erred in applying to a private insurer a principal that arose in the context of “trust-style disability plans,” which have a finite trust fund. Plaintiff also points out that the Ninth Circuit has not adopted this line of reasoning with respect to private insurers, and that even in Epstein , decided by a district court in the Ninth Circuit, the court only speculated that “an argument could be made” that defending against claims by employees who are “not really disabled” might benefit other employees by keeping costs down. 2004 WL 2418310 , at *3-4, 2004 U.S.Dist. LEXIS 22463, at *9. The court in Epstein ultimately found that this factor did not apply or weighed slightly against the defendants’ fee request because balanced against any possible benefit to other plan participants was the fact that in defending against the lawsuit, the defendant mainly sought to benefit itself by “prevent[ing] itself from having to pay [the] Plaintiffs benefits.” Id.

This Court finds that even assuming that defending against a baseless claim by a plan that is administered by a private insurer gives rise to some benefit to other beneficiaries — a question that Court need not resolve here — there is little benefit under the facts here because Plaintiffs claim was not frivolous, as Defendants concede. Further, any benefits to other beneficiaries that might point in favor of an award are at least balanced by the fact that Defendants, as a private insurance company, were defending against Plaintiffs claims to benefit themselves, as acknowledged by the Court in Epstein .

This factor does not support an award of attorneys’ fees.

IV. CONCLUSION

The Court concludes, after considering the factors set forth in Hummell, that Defendants should not be awarded any portion of their attorneys’ fees and costs. It is recommended that the Motion be DENIED.

. Hereinafter, references to "Plaintiff” in the singular are to Ms. Jackson.