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LIBERLES v. DANIEL

July 31, 1985

MAX LIBERLES, AS PRESIDENT OF AND ON BEHALF OF THE ILLINOIS UNION OF SOCIAL SERVICE EMPLOYEES, AMERICAN FEDERATION OF STATE AND MUNICIPAL EMPLOYEES, AFL — CIO, ALICE ALLEN, AND ALL THOSE PERSONS LISTED IN APPENDIX A OF THE COMPLAINT (SUB-CLASS A), INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, WILHELMENA ASHBY AND ALL OTHER PERSONS LISTED IN APPENDIX B OF THE COMPLAINT (SUB-CLASS B), INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, DOROTHY BENTLY, AND ALL THE PERSONS LISTED IN APPENDIX C OF THE COMPLAINT, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, CATHERINE ALEXANDER, AND OTHER PERSONS LISTED IN APPENDIX D OF THE COMPLAINT, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
DAVID L. DANIEL, DIRECTOR OF THE COOK COUNTY DEPARTMENT OF PUBLIC AID, GEORGE DUNNE, PRESIDENT OF THE COOK COUNTY BOARD OF COMMISSIONERS, JOSEPH M. SOLON, CHAIRMAN OF THE CIVIL SERVICE COMMISSION OF COOK COUNTY, JOEL EDELMAN, DIRECTOR OF THE STATE OF ILLINOIS DEPARTMENT OF PUBLIC AID, NOLAN B. JONES, DIRECTOR OF THE STATE OF ILLINOIS DEPARTMENT OF PERSONNEL, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

After eleven years of litigation, the class in this Title VII case was awarded and has been paid a judgment of more than $13 million — one of the largest race discrimination money judgments ever paid in this country. Presently before the Court is the petition of plaintiffs' counsel ("petitioners") for attorney's fees and costs. For the reasons set forth below, we find that petitionera are entitled to an award of $451,208.69 in fees and costs from the State defendants.*fn1

I.

Title VII of the Civil Rights Act of 1964 provides that a court, "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ." 42 U.S.C. § 2000e-5 (k). Pursuant to this statutory provision, petitioners request a total award of $960,424.75 in attorney's fees and out-of-pocket costs from the State. Petitioners reach the attorney's fee figure through a two-step calculation. First, they multiply the number of hours they worked by their requested hourly rates to obtain a "lodestar fee." Second, petitioners increase most of the lodestar fee by a multiplier of 3.5, which they contend is appropriate here. The State concedes that petitioner's lodestar fee is reasonable. Thus, the only contested issue is what, if any, multiplier is proper to yield an attorney's fee that is reasonable under the circumstances of this case.

Both the Supreme Court and the Seventh Circuit have recently discussed the use of multipliers in civil rights cases.*fn2 In Blum v. Stenson, 465 U.S. 886., 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Supreme Court reaffirmed its holding that although the "product of reasonable hours times a reasonable rate" normally provides a "reasonable" attorney's fee, "in some cases of exceptional success an enhanced award may be justified." Id., 465 U.S. at ___, 104 S.Ct. at 1548, quoting Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). The Court then discussed some of the factors which might be used to increase the lodestar figure.

The Blum Court first rejected the use of the novelty or complexity of the issues to enhance a fee award. The Court reasoned that these factors presumably are reflected already in the number of billable hours recorded by counsel. Moreover, any special skill of the attorney in handling novel or complex issues should be reflected in the reasonableness of the attorney's hourly rates. Blum, 465 U.S. at ___, 104 S.Ct. at 1548-49.

Similarly, the Court noted that the quality of representation is generally reflected in the reasonable hourly rate. However, this factor may warrant an upward adjustment in rare cases where the fee applicant offers specific evidence that the quality of legal services rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was "exceptional." Id., 465 U.S. at ___, 104 S.Ct. at 1549.

The Court also considered whether a fee award should be increased because of the "results obtained." In Hensley, the Court had noted that this factor was especially important in determining reasonable attorney's fees where the plaintiff prevailed only on some of his claims for relief. Hensley, 461 U.S. at 436, 103 S.Ct. at 1940. However, in Blum the Court held that the results obtained "normally should not provide an independent basis for increasing the fee award" because the results generally will be subsumed within other factors used to calculate a reasonable fee. Blum, 465 U.S. at ___, 104 S.Ct. at 1549.*fn3

Thus, in Blum the Supreme Court repeated its statement that the use of a multiplier may be justified in "some cases of exceptional success," and it left open the possibility that the risk of nonpayment may require an upward adjustment to provide a reasonable fee. Unfortunately, the Court did not explain what constitutes a case of exceptional success. Rather than defining the term, the Court simply ruled out certain factors which do not justify using a multiplier: novelty, complexity and, in most cases, quality of representation and the results obtained.

Although the Seventh Circuit Court of Appeals has not had occasion to define "cases of exceptional success" subsequent to Hensley and Blum, earlier Seventh Circuit opinions have discussed at some length the use of multipliers. In In re Illinois Congressional Districts Reapportionment Cases, 704 F.2d 380 (7th Cir. 1983), the Seventh Circuit noted that although the award of attorney's fees is committed to the sound discretion of the district courts, they should not lightly employ multipliers in making fee awards. Rather, multipliers "should be given only in cases that are significant and where the quality of the attorney's work is considerably above average." Id. at 384.

In that case, the Seventh Circuit approved the use of a multiplier based upon several factors. These included: the contingent nature of the attorney's fee,*fn4 the magnitude and complexity of the case, the excellent quality of the attorneys' work, the public interest served by plaintiff's counsel and the preclusion of plaintiff's attorneys from other employment because of the case. Id. at 382-83. This approach is consistent with that established by the Seventh Circuit in previous cases — after calculating the lodestar fee, the court may make adjustments for various other factors set out in the Code of Professional Responsibility as adopted by the American Bar Association.*fn5 E.g., Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 763-64 n. 5, 769 (7th Cir. 1982), cert. denied, 461 U.S. 956, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980).

After the Supreme Court's opinion in Blum, however, some of the factors previously considered by the Seventh Circuit should no longer be used to justify the use of a multiplier. For example, the Blum Court clearly barred the use of the complexity or novelty of the issues. Blum, 465 U.S. at ___, 104 S.Ct. at 1549. The Seventh Circuit has not yet addressed the question of what factors should be considered still, nor has it had the occasion to explain its interpretation of the Supreme Court's phrase "cases of exceptional success."

Perhaps the most detailed attempt so far to define "exceptional success" has been that of the Tenth Circuit Court of Appeals in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983). The Tenth Circuit stated that "`[e]xceptional success' justifying an enhanced fee may be based upon the performance of counsel — for example, victory under unusually difficult circumstances or with an extraordinary economy of time — or upon the result achieved — total victory or establishment of significant new law." Id. at 557. However, like the Illinois Reapportionment Cases, Ramos was decided a year before Blum, and its explanation of "exceptional success" has been limited to some extent by the Supreme Court. In particular, the Supreme ...


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