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National Foreign Trade Council, Inc. v. Giannoulias

September 7, 2007

NATIONAL FOREIGN TRADE COUNCIL, INC., ET AL., PLAINTIFFS,
v.
ALEXI GIANNOULIAS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

The National Foreign Trade Council, eight Illinois municipal pension funds, and eight beneficiaries of public pension funds (collectively, NFTC), brought this action pursuant to 42 U.S.C. § 1983 against the Treasurer and Attorney General of Illinois, and the Secretary of the Illinois Department of Financial and Professional Regulation, seeking to enjoin enforcement of the Illinois Act to End Atrocities and Terrorism in the Sudan, 15 ILCS 520/22.5, 15 ILCS 520/22.6, and 40 ILCS 5/1-110.5 (Illinois Sudan Act), which sought to impose various restrictions on the deposit of state funds in financial institutions whose customers have certain types of connections with Sudan and on the investment of public pension funds in Sudan-connected entities. On February 23, 2007, the Court granted NFTC's motion for a permanent injunction barring enforcement of the Illinois Sudan Act. Nat'l Foreign Trade Assoc. v. Giannoulias, No. 06 C 4251, 2007 WL 627630 (N.D. Ill. Feb. 23, 2007).

NFTC now seeks $355,332 in attorney's fees pursuant to 42 U.S.C. § 1988. For the reasons stated below, the Court awards plaintiffs $253,168.75 in attorney's fees.

Background

On June 25, 2005, Governor Rod Blagojevich signed the Illinois Sudan Act. The Act sought to amend the Deposit of State Moneys Act (15 ILCS 220/22.5-22.6) and the Illinois Pension Code (40 ILCS 5/1-110.5) to prohibit certain investments in the government of Sudan and companies doing business in or with Sudan. NFTC initially moved for a preliminary injunction, but with the parties' agreement, the Court combined the hearing on the motion with trial on the merits pursuant to Federal Rule of Civil Procedure 65(d)(2).

NFTC sought to enjoin enforcement of the Illinois Sudan Act on four grounds. It argued that the Act is preempted by federal law governing relations with Sudan, interferes with the federal government's ability to conduct foreign affairs, violates the Constitution's Foreign Commerce Clause, and is preempted by the National Bank Act, 12 U.S.C. §§ 21-216(d). On February 23, 2007, the Court permanently enjoined defendants from enforcing the Illinois Sudan Act, holding that the Act's amendment to the Deposit of State Moneys Act violates the Supremacy Clause and interferes with the national government's foreign affairs power and that the Act's amendment to the Illinois Pension Code violates the Foreign Commerce Clause. The defendants have appealed the Court's ruling enjoining enforcement of the Illinois Sudan Act. On June 5, 2007, the Court of Appeals granted defendants' motion to suspend briefing due to pending amendments to the Illinois Sudan Act introduced in the Illinois General Assembly. Briefing on appeal is still suspended.

Discussion

Courts are authorized to award attorney's fees to the prevailing party in an action brought under section 1983. See 42 U.S.C. § 1988. Defendants do not dispute that NFTC is entitled to attorney's fees. They contend, however, that the amount NFTC seeks is unreasonably high, and they instead propose that the fee award be reduced to $127,195.

1. Attorney Rates

The reasonable hourly rate for an attorney is the market rate for his services. See Fogle v. William Chevrolet/ Geo, Inc., 275 F.3d 613, 615 (7th Cir. 2001). "An attorney's market rate is the rate that lawyers of similar ability and experience in the community normally charge their paying clients for the type of work in question." Spegon v. Catholic Bishop of Chic., 175 F.3d 544, 555 (7th Cir. 1999) (citations omitted). There is a presumption that an attorney's actual billing rate is the best measure of the market rate for his services. See People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996). An attorney seeking fees has the burden of proving his market rate, but once he does, opposing counsel bears the burden of showing why the hourly rate should be lower. Spegon, 175 F.3d at 554-55.

NFTC claims the following market rates for its attorneys at Winston & Strawn:

AttorneyLevelHourly Rate J. AndersonNot identified$370 J. BauerSenior partner$525, $550 M. BessNot identified$365, $415 D. ColettiNot identified$290 E. HirschhornSenior partner$510, $565 S. JohnsonNot identified$450 J. KnessNot identified$285 J. LoshinNot identified$235 A. PearceJunior associate$260, $320 P. PileckiNot identified$540 G. SchaerrSenior partner$650, $715

Defendants contend that these rates are unreasonably high and that NFTC has not provided sufficient support to show that these are the market rates for its attorneys' services. It proposes that Winston & Strawn's senior attorneys' rates be reduced to $350 per hour (attorneys Bauer, Hirschhorn, Pilecki, and Schaerr), Ms. Bess' rate be reduced to $225 per hour, and all other attorneys' rates be reduced to $200 per hour.

As an initial matter, NFTC has not provided information regarding the qualifications or level of experience of seven of the attorneys for whom it seeks fees. Without this information, it is impossible for the Court to determine whether the fees sought are reasonable. As a result, NFTC has not met its burden of documenting the reasonableness of the rates charged by these attorneys. See Tomazzoli v. Sheedy, 804 F.2d 93, 96 (7th Cir. 1996). The Court therefore reduces the rates for these attorneys to the rates proposed by defendants: $350 per ...


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