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May 16, 1989


Marvin E. Aspen, United States District Judge.

The opinion of the court was delivered by: ASPEN


 Plaintiffs Frank and Joanne Julian and Joseph F. Priola filed a fourteen-count complaint charging the defendants with defrauding them of over $ 27,000 by means of false representations and unauthorized trading in options and stock in violation of the Illinois Securities Act, Ill.Rev.Stat. ch. 121-1/2, para. 137.13, the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121-1/2, para. 262 et seq., and various other federal and state statutory and common law duties. The parties entered into a settlement agreement in which defendants agreed to repurchase all securities held by the plaintiffs in exchange for a total of $ 34,852.37 and agreed to submit the question of attorneys' fees to the Court. Accordingly, plaintiffs moved for an award of costs in the amount of $ 523.38 and attorneys' fees in the amount of $ 15,198.50 under the fee-shifting provisions of the Illinois Securities Act, Ill.Rev.Stat. ch. 121-1/2, para. 137.13(A)(2), and the Illinois Consumer Fraud and Deceptive Practices Act, Ill.Rev.Stat. ch. 121-1/2, para. 270a(c). *fn1" For the reasons set forth below, we award fees in the amount of $ 5,000.00 and full costs.

 Entitlement to Fees

 The fee-shifting clause in para. 137.12(A)(2) of the Illinois Securities Act provides that

If the purchaser shall prevail in any action brought to enforce any of the remedies provided in this subsection, the Court shall assess costs together with the reasonable fees and expenses of the purchaser's attorney against the defendant.

 The parties dispute whether plaintiffs, who settled the case prior to a judgment on the merits, "prevailed" within the meaning of this clause. The parties have not directed our attention to, and research has not revealed, any decisions addressing the appropriateness of fees in this situation. The case law interpreting this clause is unfortunately sparse. We are thus faced with predicting how the Illinois courts, and specifically the Illinois Supreme Court, would apply the clause here.

 The few published opinions in which Illinois reviewing courts have awarded attorneys' fees in situations not expressly addressed in the fee-shifting clause evidence a rather generous interpretation of the clause in favor of plaintiffs. For example, in Gowdy v. Richter, 20 Ill. App. 3d 514, 314 N.E.2d 549 (1st Dist. 1974), the First District awarded fees incurred as a result of a contingency fee agreement and, as support for its decision, noted the legislature's motivation in drafting the clause into the Securities Act:

We believe that to impose an interpretation of this section [to deny an award of fees here] would discourage suits of this nature. The statute itself does not state that a purchaser must make a choice regarding the manner in which he will compensate his attorney. The clear purpose of the provision is to warn violators of the securities law that based upon the penal character of this law they will be responsible for reasonable attorney's fees incurred in returning the purchaser to his status quo. Id., 314 N.E.2d at 561.

 More recently, another appellate court awarded fees incurred by the plaintiff in defendants' unsuccessful appeal of a judgment entered at the trial level in plaintiff's favor. Yohnka v. Darling Nells, Inc., 136 Ill. App. 3d 309, 483 N.E.2d 649, 651, 91 Ill. Dec. 303 (3d Dist. 1985). The court unfortunately did not state its rationale.

 We believe that awarding fees incurred in litigation even if the parties settle before a judgment on the merits best serves the fee-shifting clause's twin goals of penalizing the defendants and removing the expense of legal representation as an obstacle to plaintiffs' bringing suit. The Illinois Securities Act expressly provides for pre-litigation resolution of the dispute: Paragraph 137.13(C) provides defendants with an opportunity to repurchase the securities before a plaintiff brings suit and, in the event plaintiff refuses an offer that complies with that paragraph, closes the door to litigation. *fn2" Defendants who do not make an offer of repurchase should not be able to avoid the fee-shifting clause by waiting until after the plaintiffs file suit before offering to make the plaintiffs whole. *fn3" Moreover, denying fees when a case settles would effectively discourage settlement since the value of plaintiffs' recovery could be so seriously impaired by legal expenses as to provide an incentive for plaintiffs to pursue a colorable claim to judgment. We recognize that awarding fees on a settlement may in some cases discourage defendants from settling if they believe they can prevail on the merits. This reallocation of risks for either side is a necessary result of any fee-shifting provision. Given the penal character of the Act and the express preference for defendant-induced pre-litigation resolution as seen in subsection C, defendants properly bear these risks.

 In other statutory contexts, the federal courts have developed a framework for assessing "prevailing party" status that we believe best serves the goals of the Illinois Securities Act without discouraging settlement. In civil rights actions, a plaintiff is a "prevailing party" under 42 U.S.C. § 1988 and entitled to reasonable attorneys' fees if the plaintiff has succeeded on "'any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing the suit. '" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Fees may be awarded if the plaintiffs have vindicated their rights by settlement. Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2575, 65 L. Ed. 2d 653 (1980). See also Rootberg v. Central States, Southeast and Southwest Areas Pension Fund, 856 F.2d 796, 799 (7th Cir. 1988) (stating that settlement does not preclude an award of fees under the Employment Retirement Income Security Act, 29 U.S.C. § 1001 et seq.). If the lawsuit played in some way a "provocative role" in obtaining relief, that is, the plaintiff's lawsuit was causally linked to achieving the requested result, and the filed claims were not groundless, frivolous or unreasonable, plaintiffs who have prevailed within the meaning of Hensley may recover reasonable fees. Lovell v. Kankakee, 783 F.2d 95, 96-97 (7th Cir. 1986); Harrington v. DeVito, 656 F.2d 264, 266-68 (7th Cir. 1981), cert. denied, 455 U.S. 993, 102 S. Ct. 1621, 71 L. Ed. 2d 854 (1982).

 There should be no dispute that in a practical sense plaintiffs prevailed through settlement. Pursuant to the terms of the Settlement Agreement, they will receive among other things the repurchase of the securities with ten-percent interest. It is clear from the parties' representations as to the course of their pre-litigation negotiations that the lawsuit played a provocative role in settling this action. Prior to filing suit, plaintiffs made a settlement demand of the defendants which totaled approximately $ 34,800.00. Although defendants initially refused to settle the case, they eventually submitted a counter-offer of $ 25,000.00. In December, 1988, less than two months after plaintiffs filed their complaint, defendants made an offer to repurchase all securities purchased on behalf of plaintiffs. The total amount payable to all plaintiffs was $ 34,852.37. The close nexus between these two events indicates that the successful result was attributable directly to the filing of the complaint. Finally, defendants' contention to the contrary notwithstanding, plaintiffs' securities ...

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