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TAUBER v. CITY OF CHICAGO

January 19, 1999

LILLIAN TAUBER, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, Senior District Judge.

MEMORANDUM OPINION AND ORDER

This opinion is, it may be devoutly wished, the principal portion of the last chapter of the final volume in litigation that has reached encyclopedic proportions both before and after this Court inherited the case — post-Consent-Decree — from its former colleague Honorable Stanley Roszkowski. As the final Class B*fn1 claimant who has asserted a violation of the April 1988 Consent Decree entered by Judge Roszkowsk, Junerous Cook ("Cook") obtained only partial success — best evidenced by her having taken a now-pending appeal from this Court's April 27, 1998 memorandum order that, after the parties had stipulated to the numbers conforming to this Court's ruling on the merits, resulted in an award to Cook of $94,530 (while she had sought to recover over $400,000) in back pay, which together with prejudgment interest produced a total judgment of $239,137. In addition to obtaining that money judgment, Cook had been hired by the City of Chicago ("City") in August 1997 at a starting annual salary of $42,468 (and she is still working for City). Now at issues is the semifinal motion of counsel, who represented both Cook and the other Class B claimants, for additional attorneys' fees and expenses beyond those previously approved and awarded by this Court.*fn2

Scope of the Dispute

At this Court's request made in an effort to eliminate the ships-passing-in-the-night phenomenon that has caused some difficulties in the past, earlier this week the parties submitted the Supplemental Statement referred to in n. 2. That January 13 submission has simply been attached to this opinion to facilitate the discussion of the areas of agreement and disagreement to which analysis must be applied here.

City's Objections

As the Supplemental Statement reflects, City's remaining objections in the aggregate amount of $44,789.50 comprise $2,911 characterized as "vague time entries," $12,162 labeled as "front pay entries," $13,283.50 charged as "excessive attorneys' entries" and $16,433 challenged as "excessive Westlaw expenditures." All of those objections may be dealt with in short order.

Accordingly that percentage reduction (which is discussed hereafter) will be applied to the gross amount of $399,687.50 that the Supplemental Statement shows as ascribed to "Cook fees," and the entire request of $39,002.62 for "Cook expenses" will be allowed without reduction. Of course the uncontested "Logan fees" of $28,230.50 and "Logan expenses" of $2,331.91 referred to in the Supplemental statement are allowed as well.

Across-the-Board Reductions

Cook's counsel disputes the legal appropriateness of any percentage reduction as a matter of law. But that contention is at odds with what is at least an implied recognition of the permissibility of such an approach in the seminal decision in Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983):

    There is no precise rule or formula for making these
    determinations. The district court may attempt to
    identify specific hours that should be eliminated,
    or it may simply reduce the award to account for the
    limited success. The court necessarily has
    discretion in making this equitable judgment. This
    discretion, however, must be exercised in light of
    the considerations we have identified.

That latter option — a reduction of the award without parsing the specific hours to be eliminated — has been upheld both by our Court of Appeals (Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129, 1133 (7th Cir. 1987), reading Hensley as permitting a reduction "across the board to account for the limited success"; Zook v. Brown, 865 F.2d 887, 895-96 (7th Cir. 1989), approving a 75% reduction for the same reason; Estate of Borst v. O'Brien, 979 F.2d 511, 516-17 (7th Cir. 1992), approving a 40% reduction on identical grounds) and by Courts of Appeals elsewhere (listed in order of Circuits): see, e.g., United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir. 1989); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1169-70 (6th Cir. 1996); H.J., Inc. v. Flygt Corp., 925 F.2d 257, 260-61 (8th Cir. 1991); Berry v. Stevinson Chevrolet; 74 F.3d 980, 990 (10th Cir. 1996) and Gilmere v. City of Atlanta, 864 F.2d 734, 741-42 (11th Cir. 1989).

Cook's counsel urge that Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), in its post-Supreme-Court-remand incarnation, has cut the legs out from under such an approach, but that really misstates the effect of Jaffee in the type of situation involved here. It is worth quoting at some length from Jaffee, id. at 414 to see just what it does and does not teach that bears on this case:

  In the context of partial recovery cases, we have
  interpreted Hensley to permit attorney's fees for
  unsuccessful claims when those claims involved a
  common core of facts or related legal theories. See,
  e.g., Spanish Action Comm. v. City of Chicago,
  811 F.2d 1129, 1133 (7th Cir. 1987). For example, we
  have affirmed a district court's award of fees for
  time spent pursuing an unsuccessful employment
  discrimination claim, brought in tandem with a
  successful retaliation claim, because "the court found
  that the successful claim for retaliatory discharge
  could not have been tried effectively without
  reviewing and analyzing the facts that led to the
  underlying discrimination charge." Merriweather v.
  Family Dollar Stores, 103 F.3d 576, 584 (7th Cir.
  1996). Hensley's rejection of "the mechanical
  claim-chopping approach", see Lenard v. Argento,
  808 F.2d 1242, 1245 (7th Cir. 1987), ...

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