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Sa'da Johnson, et al v. Board of Education Champaign Community Unit School District #4

June 1, 2011

SA'DA JOHNSON, ET AL., PLAINTIFFS,
v.
BOARD OF EDUCATION CHAMPAIGN COMMUNITY UNIT SCHOOL DISTRICT #4, DEFENDANT.



The opinion of the court was delivered by: Joe Billy Mcdade United States Senior District Judge

E-FILED Wednesday, 01 June, 2011 03:55:14 PM

Clerk, U.S. District Court, ILCD

OPINION and ORDER

By previous Order (Doc. 330), this Court determined that Plaintiffs are entitled to reasonable attorney fees in connection with their monitoring of compliance with the Consent Decree and in their post-decree efforts to modify or extend the decree. This Court nonetheless directed Plaintiffs, who carry the burden of showing their entitlement to attorney fees, to provide the Court with timesheets for hours expended that had not already been paid by Defendant and argument justifying the hourly rate that they requested. The Court was particularly concerned with imposing hourly rates charged in the Chicago market upon Defendant for work related to litigation in this District. The Court also was concerned with the lack of specificity with respect to what fees had been paid, what fees remained outstanding, and the reasonableness of certain fees requested. The Court instructed Plaintiffs, in their response, to exercise billing judgment in removing fee requests that are unreasonable. By way of guidance, the Court noted that certain categories of fees were patently unreasonable: fees related to multiple attorneys attending meeting or conferences in which they are redundant or unnecessary, fees related to activities that could be performed by paralegals or support staff, fees that are excessive in light of the activity performed, and, fees that are unrelated to the consent decree.

The parties have submitted their arguments and supporting documents. Plaintiffs now seek a total of $1,301,500.87 in attorney fees. This amount is $305,395.33 less than the original amount sought by Plaintiffs, $1,606,896.20 The two issues that remain to be decided, then, are the reasonable hourly rate and the reasonable number of hours expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

I. Reasonable Hourly Rate

In the previous Order, this Court expressed skepticism in imposing Chicago hourly rates to litigation in this district. In Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986), the Seventh Circuit noted that "Plaintiffs' civil rights attorneys who practice in downstate Illinois can expect smaller fees than their counterparts in Chicago; this differentiation is in line with Congress' intent that Section 1988 fee awards not produce windfalls to attorneys." Id. at 99. The Court is not convinced, however, that Tomazzoli is applicable to this matter because, in that case, the plaintiff's attorney did not practice in Chicago but rather in this district; in this case, Plaintiffs' attorneys, with the exception of Ms. Hervey, work in Chicago and presumably regularly charge Chicago rates.

Plaintiffs bear the burden of proving a reasonable hourly rate. Such a rate is the "rate that lawyers of similar ability and experience in the community normally charge their paying clients for the kind of work in question." Stark v. PPM America, Inc., 354 F.3d 666, 674 (7th Cir. 2004. In Mathur v. Board of Trustees of Southern Illinois University, 317 F.3d 738, 743 (7th Cir. 2003), the Court stated that "our preference is to compensate attorneys for the amount that they would have earned from paying clients, i.e. the standard hourly rate." Id. at 743. In establishing such a rate, the Court may look to the "actual billing rate" charged by the attorney, or if not provided, the rates of similarly experienced attorneys for similar work, and may impose the higher rates of out-of-district attorneys unless there is a finding that local attorneys could have provided the same quality of representation. Id. at 743-744. Along a similar vein, this Court may also find that a reasonable rate is one charged in the actual local community or the rate charged by a "community of practitioners." Id.; Jeffboat, LLC v. Director, Office of Workers' Compensation Programs, 553 F.3d 487, 490 (7th Cir. 2009). Once Plaintiffs have met their burden, the burden shifts to Defendant to show that a lower rate is appropriate. Stark, 354 F.3d at 675.

The hourly rates that Plaintiffs seek are listed in Table 1 below and reflect yearly increases:

TABLE 1

Bar Admission Hourly Rate Requested

Date

2006 2007 2008 2009 Ronald Futterman 1967 $575 $595 $620 $635 Robert C. Howard 1967 $575 $595 $620 $635 Stewart M. Weltman 1978 $650 Kathleen Mangold-Spoto 1986 $445 $465 $490 $510

Carol R. Ashley 1994 $375 $395 $415 $435

Alonzo Rivas 1999 $350 $375 William W. Thomas 2001 $260 $290 $305 $325

Rafael A. Vargas 2007 $225 $225 $245 Venita Hervey 1995 $210 $210

Paralegals/Law Clerks $160 $175 $185 $195

Plaintiffs have provided the affidavit of Ms. Hervey who attests that her current hourly rate is $210.00, which is the market rate in Rockford, Illinois. (Doc. 315-3, p. 3). None of the Chicago attorney, however, have provided similar affidavits attesting that the rates charged in this case are what they would have charged paying clients. That is, Plaintiffs' attorneys (except Ms. Hervey) have not themselves attested to their normal hourly rate. The closest Plaintiffs' Chicago attorneys have come to attesting to their actual hourly rate is a declaration by Ms. Ashley that "in setting their rates, Plaintiffs' counsel consider the rates of other Chicago Firms that maintain a significant practice of representing plaintiffs in class actions." (Doc. 331-4, p. 55, ¶ 14). The timesheets, however, do list hourly rates for each of the attorneys and paralegals who performed work in this case. The Court assumes that these rates are what Plaintiffs' Chicago attorneys would have charged paying clients for each of the years that fees are sought. Plaintiffs also have noted that Defendant has consistently, or at least prior to the current dispute, paid the hourly rates sought by their attorneys (with, perhaps, the exception of Mr. Weltman who entered this case in 2009 when Defendant stopped paying Plaintiffs' attorneys' bills). Ms. Ashley further avers that the two clients who initiated this lawsuit, Mr. Johnson and Mr. Stevens, indicated to her that they were unable to find experienced attorneys for this case in the Central District. (Doc. 331-4, p. 76, ¶ 30).

In addition, Plaintiffs provide the declarations of Robert D. Allison, Thomas Meites, and Kenneth N. Flaxman (Exs. D, E, F, Doc. 331-5) in support of the hourly rates requested.

Mr. Allison states that he is the principal of the firm of Robert D. Allison & Associates who specializes in federal civil rights class actions suits and who was admitted to the bar in 1974. Mr. Allison lists a number of class action lawsuits which he prosecuted primarily in the Northern District of Illinois. His hourly rate in 2009 is $550, in 2007 it was $500 and in 2006 it was $475 (his declaration does not indicate a rate for 2008). Mr. Allison provides the opinion that the rates listed above are "reasonable and consistent with the hourly rates charged by lawyers and paralegals in the Chicago Market with similar experience" and bases this conclusion on his review of "affidavits, surveys, fee agreements, court opinion in the Chicago area and other documents reflecting such rates." Mr. Allison further has provided a chart which lists a sampling of the rates various attorneys in the Chicago area have sought and/or been awarded in complex and/or class action lawsuits based on affidavits, declarations, and court rulings. Of particular interest in this chart, is one entry stating that Ronald L. Futterman, provided a declaration in 2006 in an unspecified case seeking an hourly rate of $160 for paralegal work.

Mr. Meites avers that he is the principal of Meites, Mulder, Mollica, and Glink who was admitted to the bar in 1970 and who specializes in federal class action lawsuit. He states that his current hourly rate is $775 and that other partners in his office have rates of $665 and $605. M. Meites provides a similar opinion that the rates charged by the attorneys in this case are reasonable.

Mr. Flaxman declares that he is the principal of the firm Kenneth N. Flaxman P.C., that he was admitted to the bar in 1972 and that he has participated in a variety of class action lawsuits. His current (2009) hourly rate is $625, in 2008 it was $600, in 2007 it was $600, and in 2006 it was $575. Mr. Flaxman similar declares that the rates charged by Plaintiffs' attorneys are reasonable.

In combination, these declarations provide a sampling of fees that a general community of civil rights, class action practitioners in the Chicago area charge. The fees sought in the various cases listed by these declarants range from a request for a $222 hourly rate in 2007 for an attorney admitted in 2005 to a request for a $500 hourly rate in 2002 for an attorney admitted in 1969 (in addition to the rates charged by the declarants above).

In response, Defendant argues that the hourly rates should be reduced to rates that are typically awarded in this District in various civil rights cases. Defendants specifically state that the rates for attorneys should be reduced to $275.00 for the most experienced of Plaintiffs' attorneys (regardless of admission date), $210.00 for the least experienced of Plaintiffs' attorneys (again regardless of admission date), and $100.00 for paralegals. The Court does not find Defendant's arguments convincing.

First, it is un-rebutted that Plaintiffs initially were unable to find an attorney in this District willing to take on this case, hence the necessity of retaining attorneys from outside of this District. Defendants themselves have pointed out no attorney in this District who would have the requisite skill or experience to represent Plaintiffs in this matter. The Court also notes that this case is not a runof-the-mill civil rights action of the same stripe as the cases listed by Defendant in its brief. To be sure, this matter is also not a typical class action suit in which there is a fund out of which plaintiffs' attorneys would recover a fee. However, none of the cases cited by Defendant involved the same type of complexity and years of monitoring that were involved in this case. In light of the nature of this case, the complexity of the issues, the lack of evidence of competent local attorneys, the necessary expertise that Plaintiffs' attorneys have with respect to education equity issues, the fact that Defendant paid Plaintiffs' attorneys their requested hourly rates in the past,*fn1 and that the rates are not out-of-line with the declarations provided by Plaintiffs, the Court finds that the hourly rates sought by Plaintiffs' attorneys are reasonable.

The only caveats to this finding are the rates charged by Mr. Weltman and Ms. Mangold-Spoto. According to Plaintiffs, Mr. Weltman is Of Counsel with Futterman, Howard, Watkins, Wylie & Ashley, Charted (hereinafter, "the firm") and has been a practicing attorney for 30 years specializing in "complex litigation" but not necessarily litigation related to civil rights or education equity issues. Ms. Mangold-Spoto is also listed as Of Counsel, however, the firm resume provided by Plaintiffs offers no information as to her areas of expertise or background. Ms. Ashley, in her declaration avers that Ms. Mangold-Spoto was brought into the case and specialized on the issues of NorthSide Seats and student assignment. (Doc. 331-4, p. 69, ¶ 10). Ms. Ashley also avers that Mr. Weltman was involved in the case in order to prepare for the August 3, 2009 hearing. Other than the fact that these two attorneys have more general experience than Ms. Ashley, there is no indication in the record why they command a greater hourly rate than the lead attorney in this matter. There is no suggestion in the record that they have some sort of specialized skill or knowledge in the area of civil rights or education that would render their greater hourly rate appropriate. See People Who Care v. Rockford Bd. of Educ., School dist. No. 205, 90 F.3d 1307 (7th Cir. 1996) (stating that "[t]he experience (or inexperience) of an attorney is a permissible reason to depart from the presumptive rate"). Moreover, there is no explanation by Plaintiffs as to how their status as "Of counsel" would translate to an hourly rate that is greater than partners and principals in the firm. The Court is loathe to allow such hourly rates given the lack of convincing evidence regarding these attorneys' level of expertise, the necessity of their involvement in this matter, and evidence justifying rates that are higher than the lead attorney in this case (who has the requisite specialized skill and expertise). For these reasons, their hourly rates are reduced to those charged by Ms. Ashley.*fn2

II. Reasonable Hours Expended

As indicated above, this Court already has pointed out a number of entries that have appeared unreasonable. In response, Ms. Ashley indicates in her declarations that she has scoured the timesheets and used her judgment in eliminating entries that appear questionable (thus resulting in the lowered amount of the fees request indicated above). In particular, Plaintiffs eliminated a 5.6 hour entry for Mr. Rivas, billed for the attendance of only two attorneys at various meetings, reduced by 14.5 hours the time spent by Mr. Thomas in reviewing the January 2008 quarterly report, and deleted entries related to the reading of local newspapers. (Doc. 331-4, pp. 56 -- 58). Ms. Ashley points out that she has attempted to ascertain other specific ...


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