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COVINGTON-McINTOSH v. MOUNT GLENWOOD MEMORY GARDENS S.

February 11, 2004.

RHODINA COVINGTON-McINTOSH, SONJA WASHINGTON, ROSA WASHINGTON, REFUGIA HAIRE, ANASTASIA MOLINA, MARGARET BERNAL, MAIDA BROWN, YVONNE CORNISH and DORIS RAY, on behalf of themselves and Others similarly situated, Plaintiffs
v.
MOUNT GLENWOOD MEMORY GARDENS SOUTH, INC. a/k/a MOUNT GLENWOOD SOUTH, MOUNT GLENWOOD MEMORY GARDENS WEST, INC., a/k/a MOUNT GLENWOOD WEST, Defendants



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Currently before the Court is Plaintiffs' Petition for Additional Fees and Costs. The law firm of Edelman, Combs & Latturner, LLC ("ECL") has petitioned the Court, pursuant to Section 10a(c) of the Illinois Consumer Fraud Act for that portion of the fees and expenses which were attributable to its efforts to enforce compliance with the terms of the settlement agreement signed on or about June 15, 2001. For the reasons set forth below, Plaintiffs' Petition is granted in part and denied in part. Page 2

Background Facts

  Plaintiffs filed a class action lawsuit on January 11, 2000 to secure redress for alleged violations of 42 U.S.C. § 1981-1982 and the Illinois Consumer Fraud Act, 815 ILCS 505/2. Prior to filing the original complaints, ECL agreed to represent plaintiffs on a contingency basis. As part of this contingency agreement, ECL agreed to advance the costs and litigation expenses and to receive fees in an amount to be agreed upon among the parties through a settlement agreement or in an amount to be awarded by the Court.

  On November 28, 2000, the case was referred to this Court for a settlement conference. On January 26, 2001, the settlement conference was held. In connection with the settlement conference, the parties drafted a Settlement Agreement (the "Agreement") which includes a Consent Decree (the "Decree"). On or about June 15, 2001, defendants and plaintiffs finalized and signed the Agreement. The Agreement provided, in part, that defendants would make various improvements at the cemeteries over a two-year period ending in August 2003. Pursuant to the Decree, within thirty (30) days of the signing of the Agreement, defendants paid ELC $40,000 in attorneys' fees and costs. Page 3

  On June 5, 2002, plaintiffs, asserting that defendants were not making the improvements mandated by the decree, filed a motion to enforce the terms of the Agreement. A hearing was held on August 26, 2002 on plaintiffs' motion to enforce the settlement agreement. On October 18, 2002, the Court found that defendants had substantially complied with Parts I and II of the Decree, but that they had not substantially complied with Part III of the Decree by the September 30, 2001 deadline for those actions. The Court ordered that defendants would have sixty days from the date of the Court's order to complete certain work that it found should have been completed as of that time.

  On June 9, 2003, plaintiffs filed a report with the Court, claiming that defendants had fallen short of full compliance with the Decree, which was set to expire two months later. On September 3, 2003, an evidentiary hearing was held. On October 14, 2003, the Court issued an Opinion and Order finding that defendants had substantially complied with the Decree and denying plaintiffs' Motion to Enforce the Settlement Agreement. Finding that much of defendants' compliance had only recently been achieved and that it was prompted by the efforts of plaintiffs, the Court indicated that it would consider awarding additional fees and costs to plaintiffs. Page 4

  On October 23, 2003, plaintiffs filed a Petition for Additional Fees and Costs. According to ELC, from the time of the signing of the Agreement, until October 2003*fn1, the law firm incurred $42,077 in additional fees and $2,368.96 in additional costs and litigation expenses attributable to the plaintiffs' efforts to enforce compliance with the terms of the settlement agreement.

 
Standards for Reviewing a Petition for Attorney's Fees in a Class Action Case
  Fee calculation is considered to be an imprecise science, and the numbers arrived at by a district court, figured to the last penny, may be seen by counsel and others to convey an "impression of exactness" that is illusory, even "delusive". Evans v. City of Evanston, 941 F.2d 473, 477 (7th Cir. 1991). There is no one correct formula for determining a fee award, and therefore a district court's calculation is anything but an arithmetical exercise. Tomazzoli v. Sheedy, 804 F.2d 93, 97 (7th Cir. 1986). Because there is no precise rule or formula for making attorney fee Page 5 determinations, a district court necessarily has discretion in choosing among the various alternatives. Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983). So long as the method selected is not arbitrary and is likely to arrive at a fair fee, it will not be disturbed on appeal. Evans, 941 F.2d at 477. In determining the amount of a fee award, "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. 424, 437 (1983).

  In Hensley, the Supreme Court explained that the most useful starting point for determining the amount of a "reasonable fee" is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. This calculation, frequently referred to as the "lodestar" figure, should provide an "objective basis" by which to value a lawyer's services. The Supreme Court emphasized the use of "billing judgment" by lawyers when deciding which hours are "properly billed to one's adversary pursuant to statutory authority." Id. at 434. The Court also stressed:

  Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in Page 6 private practice ethically is obligated to exclude such hours from his fee submission. Id.

 When "a fee petition is vague or inadequately documented," the Court "may either strike . . . problematic entries or . . . reduce the proposed fee by a reasonable percentage." Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000); see also Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646, 658 (7th Cir. 1985) (upholding district court's decision to reduce vague fee entries by 15%).

  Discussion

  In their Petition, plaintiffs, who were paid $40,000 in fees and costs under the terms of the settlement agreement, seek an award of additional fees and expenses pursuant to Section 10a(c) of the Illinois Consumer Fraud Act. Section 10a(c) provides that "in any action brought by a person under this Section, the Court . . . may award, in addition to ...


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