United States District Court, N.D. Illinois
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
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.
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.
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
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
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
(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
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
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
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%).
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 the
relief provided in this Section, reasonable attorney's fees and costs to
the prevailing party."
Plaintiffs were the prevailing party in this matter. However, in
defendants' Response to Plaintiffs' Petition for Additional Fees,
defendants argue that only $2,000.00 in additional fees should be paid to
ECL argues that, under Illinois and federal law, fees in a case such as
this should be awarded on the basis of the lodestar method, in which the
number of allowable hours is multiplied by an hourly rate. Hensley v.
Eckerhart, 461 U.S. 424 (1983) (lodestar method is "generally applicable
in all cases in which Congress has authorized an award of attorney's fees
to a `prevailing party'").
A. Reasonable Rates
An attorney's reasonable rate is the rate the attorney commands in the
market, or the market rate. People Who Care v. Rockford Board of
Education School Dist. No. 205, 90 F.3d 1307, 1310 (7th Cir. 1996)(the
burden is on fee applicant to establish market rate). "The attorney's
actual billing rate for comparable work is `presumptively appropriate' to
use as the market rate." Id. Additional evidence of market rate includes
fees awarded to the attorney in similar cases, or "affidavits from
similarly experienced attorneys attesting to the rates they charge paying
clients for similar work. Spegon v. The Catholic Bishop of Chicago,
175 F.3d 544, 556 (7th Cir. 1999). "Once an attorney provides evidence of
his billing rate, the burden is upon the defendant to present evidence
establishing `a good reason why a lower rate is essential.'" People Who
Care v. Rockford Board of Education School Dist. No. 205, 90 F.3d 1307,
1313 (7th Cir.
1996) (quoting Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th Cir.
After determining the appropriate rate, the Court may adjust the award
in light of twelve factors: The twelve factors are: (1) the time and
labor required; (2) the novelty and difficulty of the questions; (3) the
skill requisite to perform the legal service properly; (4) the preclusion
of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount
involved and the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the "undesirability" of the case; (11) the
nature and length of the professional relationship with the client; and
(12) awards in similar cases. Hensley v. Eckerhart, 461 U.S. 424, 429-430
(1933), citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974).
In the case at bar, the Court finds that the fees requested by ECL must
be reduced in light of the first three factors listed above. This was not
a difficult case, and did not require the expenditure of a great deal of
time on legal matters. ECL was successful in achieving results for the
plaintiffs, and the Court finds that its attorneys' ability and
performance was of high
quality. The Court will not lower the award for the fees and costs
that ECL seeks because it was dissatisfied with ECL's ability or
performance. However, the Court finds that, while the hourly rate for
partners, associates and legal assistants that ECL sets forth in Exhibit
B to Plaintiffs' Petition may be justified in the typical case, this case
is not a typical one. Once the Decree was entered, it was the named
plaintiffs, rather than plaintiffs' counsel, who performed most of the
action to enforce it. For example, the motion to enforce the Agreement
was initiated by plaintiffs, not ECL. Further, plaintiffs, not ECL,
visited Mount Glenwood Memory Gardens South and Mount Glenwood Memory
Gardens West on numerous occasions and took photographs to determine if
defendants were complying with the Decree. See also Paragraph 4,
Plaintiffs' Petition. It appears that ECL merely reviewed the photos and
talked with the named plaintiffs to determine whether the Decree was
being complied with by defendants.
To determine the amount of fees that the Court will grant, the Court
will first look at the fees requested for associate Julie Cobalovic. The
Court notes that the overwhelming majority of the work performed by ECL
after the signing of the Decree was done by Ms. Cobalovic. For Ms.
Cobalovic, ECL seeks approval of a rate of
$190.00/hour. In support of this rate, Plaintiffs have provided the
Court with evidence of fees awarded to other associates of ECL by other
courts, a declaration from Daniel Edelman attesting to the firm's hourly
billing rates, and the Laffey Matrix, a matrix of hourly rates for
attorneys of varying experience levels and paralegals/law clerks,
prepared by the Civil Division of the United States Attorney's Office for
the District of Columbia.
In contesting the amount of fees that plaintiffs seek, defendants
present no evidence whatsoever as to what constitutes a reasonable rate
for Julie Cobalovic, or any of the attorneys or legal assistants at ECL.
Indeed, defendants' entire response to plaintiffs' petition boils down to
an argument that "a large award of fees for implementation of something
that was not accomplished would not make sense. These Defendants could
understand if the Court would award the Plaintiff's the sum of $2,000,00
for accomplishing this task. Anything more would be a reward as opposed
to an actual reimbursement for fees earned."
Therefore, the Court accepts Ms. Cobalovic's rate as reasonable.
However, the Court will award only those fees that are properly
documented and reasonable. As noted by the Fifth Circuit in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717
(5th Cir. 1974), "non-legal work may command a lesser rate. Its dollar
rate is not enhanced just because a lawyer does it."
The Court has carefully reviewed the more than 250 entries for Ms.
Cobalovic, ranging from. 1 hours to 5.5 hours. The Court will not recite
each entry, one by one, because the Court finds that so many of them are
unreasonable, as they refer to non-legal work performed by Ms.
Cobalovic. For example, listed for Ms. Cobalovic are tasks such as "(took
call) with client Haire" (May 8, 2001), "took call from paper re status
of settlement" (August 21, 2001), "took call from attorney handling
similar case against defendant"(August 21, 2001), "more pictures in from
plaintiffs"(June 18, 2002) and "call from Tribune"(July 9, 2002). These
entries are representative of many entries which reflect work of a
non-legal nature. Moreover, the named plaintiffs were quite vigilant in
attempting to ensure that the settlement agreement was complied with. In
this regard, some of the named plaintiffs visited the cemeteries on an
almost weekly basis and would call Ms. Cobalovic with their complaints
that certain improvements had not been made. Consequently, almost
one-third of the entries made by Ms. Cobalovic were for telephone calls
to and from the named plaintiffs regarding their complaints, many of
which turned out to
be erroneous. These are not legal services for which defendants should
reimburse plaintiffs' counsel at its standard rates. Therefore, the Court
reduces the award sought for Ms. Cobalovic by 60 percent, from $21,128.00
As for the other Associates, the Court finds that their rates are also
reasonable. However, after reviewing the entries listed in Exhibit B for
the other Associates, the Court has determined that it will not award any
of the fees listed for Associates Anne M. Burton, Michelle R. Teggelaar,
Adam Berger or Danita V. Ivory. The billing hours entered for these
associates are all for work of a non-legal nature. In addition, two of
the items listed for Michelle R. Teggelaar are for work done prior to
entry of the Decree.*fn2
As for Associate John M. Broderick, the vast majority of the entries
which make up almost seven full pages of itemized hours consist of work
done by Mr. Broderick prior to the Decree. Of those items listed for work
performed by Mr. Broderick after the Decree, the Court will award the
only work deemed of a legal nature: his
single appearance on a defendant's motion. Therefore, the Court will
award him fees for one hour, or $210.00.
The Court has reviewed the requested fees for the partners, Cathleen M.
Combs, Daniel A. Edelman and James O. Latturner. Here, the Court finds
that the hourly rate requested, $400, is a bit excessive, as it seems
higher than market rate. The Court reduces the hourly rate it will award
the Partners to $350. In addition, again, the Court finds that most of
the entries are for work for which the partners' hourly rates are not
justified, since these items do not represent the kind of "legal work"
for which the partners should be paid their standard rates. As already
stated, the Court will award counsel only for work performed of a legal
nature. Accordingly, the Court will award payment to Cathleen M. Combs
for 5.0 hours. The Court will not award payment for her two-hour August
20, 2003 attendance at a motion and conference with clients because this
was counsels' motion to withdraw ECL as plaintiffs' counsel. Defendants
should not have to pay for fees arising from a dispute between ECL and
its clients. However, the Court will award payment to Ms. Combs for 5.0
hours, for the September 3, 2003, hearing; to Daniel A. Edelman for 12.5
(August 24, 2002, prepare clients for hearing-3.5 hours and August
26, 2002-9.0 hours); and to James 0. Latturner for 1.0 hour, what the
Court approximates for Mr. Latturner attending a hearing on July 10, 2002
(the entry states: "2.1 hours-July 10, 2002, prepare for and attend
hearing before j. keys; conf jqc, dae"). Therefore, the total amount
awarded to the three partners is $6,475.00.
D. Legal Assistants
The Court has reviewed the items listed for the legal assistants in
Exhibit B to Plaintiffs' Petition and determined that the vast majority
of the entries are for work of a non-legal nature. Therefore, while the
hourly rates listed of $100 and $105 might be reasonable market rates,
the Court reduces the amount sought for the legal assistants by 70
percent.*fn3 Accordingly, the Court will award ECL the amount of
$3,030.30 (reduced from $10,101.00) for work done by legal assistants.
In Exhibit C to their Petition, Plaintiffs list all of the costs
accrued from December 22, 1999 through September 3, 2003,
even though the Court has already awarded Plaintiffs fees and costs
up until the signing of the Decree on June 15, 2001. The entries for
costs are vague and inadequately documented, only referring to "Postage"
or "Copying" or "Facsimile". Moreover, there are several entries for
phone calls, and phone calls have also been included in Exhibit B, under
Attorneys' Fees. Therefore, the Court is denying entirely Plaintiffs'
request for additional expenses.
Plaintiffs are entitled to an additional award of reasonable attorneys'
fees. However, the majority of the entries in Exhibit B to Plaintiffs'
Petition reflect work that is not the type of legal work for which
plaintiffs' counsel should be compensated at their standard rates.
Therefore, the Court has reduced the award sought by plaintiffs in order
to only award plaintiffs' counsel Edelman, Combs & Latturner for the
legal work expended on behalf of the plaintiffs after the signing of the
IT IS THEREFORE ORDERED that Plaintiffs' Fee Petition be, and the same
hereby is, GRANTED IN PART AND DENIED IN PART. The Court awards
plaintiffs additional attorneys' fees in the amount of $18,166.50.