United States District Court, Northern District of Illinois, E.D
November 24, 1982
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, ET AL., PLAINTIFFS,
ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT. HARDEN, ET AL., PLAINTIFFS, V. ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT AND PARTY PLAINTIFF.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiffs brought this action pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq., against defendant Illinois Bell Telephone ("Bell"),
alleging that its maternity leave policies discriminate on the
basis of sex. On February 29, 1980, this Court granted the
plaintiffs' motion for summary judgment with respect to the
issues of reinstatement from
maternity leave and accrual of seniority during maternity
leave. The Court further granted Bell's motion for summary
judgment with respect to its policies concerning wages, basic
medical insurance and the duration of maternity leave. On
April 8, 1982, this Court approved a settlement agreement
between the parties*fn1 and dismissed these cases with
prejudice. Presently pending before the Court is the Harden
plaintiffs' motion for attorneys' fees.*fn2
Hardin plaintiffs' counsel request attorneys' fees pursuant
to 42 U.S.C. § 2000e-5(k), in the amount of $73,373.75, to
compensate Mr. Ivan E. Bodensteiner and Mr. Michael M. Mulder
for their legal services. Mr. Bodensteiner claims that he spent
180.4 hours on this case and seeks an hourly rate of $125. He
further urges that this Court apply a multiplier of 2.0 for
time spent prior to this Court's order of February 29, 1980,
granting both parties summary judgment with respect to certain
issues, and a multiplier of 1.5 for the remainder of his time.
He does not seek a multiplier for time spent on the attorneys'
fees petition. Mr. Mulder seeks an hourly rate of $100 for
264.4 hours, with a multiplier of 1.5 for all time other than
that spent on the fee application. Bell opposes plaintiff's
request for attorneys' fees in a number of respects.*fn3
42 U.S.C. § 2000e-5(k) governs the award of attorneys' fees
in Title VII cases, and provides that:
In any action or proceeding under this subchapter
the Court, in its discretion, may allow the
prevailing party, other than the Commission or
the United States, a reasonable attorney's fee as
part of the costs, and the Commission and the
United States shall be liable for costs the same
as a private person.
While the statute vests discretion in courts, that discretion
is not unlimited. A prevailing party in a Title VII case
should ordinarily recover attorneys fees, unless special
circumstances would render such an award unjust. Albemarle
Paper Co. v. Moody, 422 U.S. 405
, 415, 95 S.Ct. 2362, 2370,
45 L.Ed.2d 280 (1975); Cf., Newman v. Piggy Park Enterprises,
390 U.S. 400
, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)
(principle that prevailing party should ordinarily recover
attorneys' fees in Title II actions). The United States Court
of Appeals for the Seventh Circuit has articulated the factors
to be considered in determining attorneys' fees awards. As a
starting point, courts are to consider the hours spent by an
attorney times the attorney's billing rate. Waters v. Wisconsin
Steel Works, 502 F.2d 1309
, 1322 (7th Cir. 1974), cert. denied,
425 U.S. 997
, 96 S.Ct. 2214
, 48 L.Ed.2d 823 (1976). Additional
elements are set forth in the Code of Professional
Responsibility, as adopted by the American Bar Association:
Factors to be considered as guides in determining
the reasonableness of a fee include the
"(1) The time and labor required, the novelty and
difficulty of the questions involved, and the
skill requisite to perform the legal service
"(2) The likelihood, if apparent to the client,
that the acceptance of the particular employment
will preclude other employment by the lawyer.
"(3) The fee customarily charged in the locality
for similar legal services.
"(4) The amount involved and the results
"(5) The time limitations imposed by the client
or by the circumstances.
"(6) The nature and length of the professional
relationship with the client.
"(7) The experience, reputation, and ability of
the lawyer or lawyers performing the services.
"(8) Whether the fee is fixed or contingent.
Disciplinary Rule 2-106.
Id.; Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980).
We now review this case in light of the above standards. As
a starting point, it is important to emphasize that although
this case was ultimately resolved through settlement, this
factor does not weaken the plaintiffs' claim to fees.
Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65
L.Ed.2d 653 (1980). However, the plaintiff is entitled to fees
only for preparation and presentation of claims on which he or
she has prevailed. Busche v. Burkee, 649 F.2d 509, 522 (7th
Cir. 1981), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70
L.Ed.2d 212 (1982). In considering the results obtained, we
note that plaintiffs in the instant case were granted summary
judgment against Bell with respect to Bell's maternity leave
reinstatement policies, and its policy concerning seniority
accrual during maternity leave. Thus, while this Court granted
Bell summary judgment concerning wages, medical insurance, and
length of maternity leave policies, the plaintiffs obtained a
substantial settlement from Bell. Accordingly, it is thus that
plaintiffs, by succeeding on significant issues in this
litigation which benefitted the plaintiff class, are prevailing
parties. Nadeau v. Helgemore, 581 F.2d 275, 278-79 (1st Cir.
1978). Nevertheless, since plaintiffs are not entitled to fees
for time spent upon unsuccessful claims, any activity by Mr.
Bodensteiner devoted exclusively to issues on which Bell
prevailed on summary judgment is not compensable. Plaintiffs
have satisfied this Court that Mr. Bodensteiner spent only 1.9
hours on issues upon which the plaintiffs lost; as to the
remaining time, it is not clear that the activities in question
related exclusively to issues upon which plaintiffs were
unsuccessful. In calculating the number of hours attributable
to the prosecution of successful claims, the Seventh Circuit
has declared that "[t]his calculation presumably includes time
spent on unsuccessful claims to the extent such time would have
been spent in connection with the successful claims even if the
unsuccessful claims had not been brought." Busche v. Burkee,
649 F.2d 509 (7th Cir. 1981), cert. denied, 454 U.S. 897,
102 S.Ct. 396, 70 L.Ed.2d 212 (1982). We therefore decline to
disregard more than 1.9 hours spent by Mr. Bodensteiner prior
to this Court's award of partial summary judgment to Bell.
Counsel for plaintiffs claim they spent a total of 444.8
hours on the instant case. Bell argues that this number should
by at least 57.5 hours to account for duplication of effort
and inefficiency. We do not believe that the hours claimed are
unreasonable, given the time and labor required by this
litigation and the length of counsels' professional
relationship with the plaintiffs. The fact that both Mr.
Bodensteiner and Mr. Mulder attended the same meetings does
not demonstrate duplication of effort; the involvement of two
or more attorneys in the same matter is not necessarily
unreasonable. Urbina v. Quern, 482 F. Supp. 1013, 1016 (N.D.Ill.
1980); Wheeler v. Durham City Board of Education, 88 F.R.D. 27,
29 (M.D.N.C. 1980).
Turning to the hourly rates sought by Messrs. Bodensteiner
and Mulder, we decline to award the requested rates of $125
per hour to Mr. Bodensteiner and $100 per hour to Mr. Mulder.
At the outset of our inquiry, we note that there is no
indication that the client or the circumstances of this case
imposed any particular time limits upon plaintiffs' counsel.
Nor is there evidence that Messrs. Bodensteiner and Mulder
were precluded from accepting other employment during the
pendency of the instant litigation. In considering the fee
customarily charged in this area for similar legal services
and the experience of counsel, we observe that counsel for
plaintiff CWA received $125 per hour for the services of Mr.
Irving M. Friedman and $60 per hour for the services of all
other attorneys. Mr. Friedman's legal experience and
recognized expertise is considerable, for he graduated from
law school in 1947 and has been involved in a great deal of
litigation. Bell's counsel currently charge $95 per hour and
$72.50 per hour, and their billing rates during earlier phases
of the litigation were considerably lower. Bell's attorneys,
moreover, have significant experience in employment
discrimination litigation. There is no question that Messrs.
Bodensteiner and Mulder are also experienced attorneys, and
their representation of plaintiffs was undoubtedly competent.
However, the breadth of their experience matches neither that
of CWA's counsel nor Bell's. Therefore, we find that billing
rates of $100 per hour for Mr. Bodensteiner and $60 per hour
for Mr. Mulder are reasonable.
Bell would have us reduce further the billing rates of
Messrs. Bodensteiner and Mulder with respect to hours spent on
travel and on the fee petition.*fn4 Concerning the time spent
on the fees petition, the Seventh Circuit has declared that
prevailing plaintiffs "are properly entitled to fee awards for
time spent litigating their claim to fees." Bond v. Stanton,
630 F.2d 1231, 1235 (7th Cir. 1980), cert. denied,
454 U.S. 1063, 102 S.Ct. 614, 70 L.Ed.2d 601 (1982). While some courts
have reduced fee awards with respect to time spent on the fee
petition, e.g., Keyes v. School Dist. No. 1, Denver, Colorado,
439 F. Supp. 393, 410 (D.Colo. 1977), other courts have declined
to do so, e.g., Chrapliwy v. Uniroyal, Inc., 509 F. Supp. 442,
454 (N.D.Ind. 1981), aff'd in part, rev'd in part,
670 F.2d 760 (7th Cir. 1982). We recognize, as other courts have,
that denying attorneys' fees for the time spent obtaining them
might decrease the value of a fee award by making attorneys
engage in uncompensated litigation to obtain their fee.
Stanford Daily v. Zurcher, 64 F.R.D. 680, 684 (N.D.Cal. 1974),
aff'd, 550 F.2d 464 (9th Cir. 1977), rev'd on other grounds,
436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). We
therefore hold that the 83.9 hours claimed for work on the fee
petition is reasonable and decline to reduce the fee award with
regard to this issue.
With respect to transportation, Messrs. Bodensteiner and
Mulder have submitted affidavits indicating the amount of
their time spent in travel. Mr. Bodensteiner spent 27.5 hours,
and Mr. Mulder 38 hours, on travel time. While some courts
have compensated counsel at their usual hourly
rate for travel time, e.g., Chrapliwy v. Uniroyal, Inc.,
509 F. Supp. 442, 455 (N.D.Ind. 1981), others reduce fee awards by
compensating travel time at a different hourly rate than other
time, e.g., McPherson v. School District # 186, 465 F. Supp. 749,
758 (S.D.Ill. 1978). There is precedent in this district
for the deduction of transportation expenses from fee awards,
Harceg v. Brown, 536 F. Supp. 125, 135 (N.D.Ill. 1982). Since
counsel argue that part of their time spent in travel was
utilized in preparation of this case, we will award Mr.
Bodensteiner $50 per hour, and Mr. Mulder $30 per hour, for
this travel time.
Finally, we shall not apply a multiplier to increase the
amount of fees awarded to Messrs. Bodensteiner and Mulder. In
determining whether to award a multiplier, courts consider:
"1) the contingent nature of the class action litigation; 2)
the quality of legal services; 3) the benefit conferred upon
the class; and 4) the public service aspect." Will v. United
States, 90 F.R.D. 336, 345 (N.D.Ill. 1981). The quality of
legal services in this litigation was undoubtedly high, and the
public service aspect of prosecuting this case is not
insignificant. The quality of legal services, however, is
reflected in the hourly rates set by the Court. Tidwell v.
Schweiker, 677 F.2d 560, 570 (7th Cir. 1982). And while the
plaintiffs' class clearly benefitted from this case, the legal
issues involved were not particularly complex, and the case was
ultimately resolved through settlement. The instant case,
moreover, has little precedential value which is one factor to
consider in deciding whether to award a multiplier, Strama v.
Peterson, 689 F.2d 661, 665 (7th Cir. 1982). And while we
recognize that plaintiffs' counsel were engaged on a
contingency basis, the contingent nature of a fee alone does
not justify the use of a multiplier. Bonner v. Coughlin,
657 F.2d 931, 936-37 (7th Cir. 1981). In short, the analysis of
this litigation using factors set forth in Will v. United
States, supra, and Waters v. Wisconsin Steel Works,
supra, indicates that awarding a multiplier to plaintiffs'
counsel would be inappropriate. We also note that no multiplier
was applied to the fee request awarded to counsel for plaintiff
CWA in their settlement with Bell.
Accordingly, plaintiffs are awarded attorneys' fees in the
amount of $31,199.*fn5
It is so ordered.