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National Rifle Association of ) America, Inc., et al v. Village of Oak Park

June 25, 2012

NATIONAL RIFLE ASSOCIATION OF ) AMERICA, INC., ET AL., PLAINTIFFS,
v.
VILLAGE OF OAK PARK, DEFENDANT.
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., ET AL., PLAINTIFFS,
v.
THE CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. ShadurSenior United States District Judge

MEMORANDUM OPINION AND ORDER

Before these actions were brought, both the City of Chicago ("Chicago") and the Village of Oak Park ("Oak Park") had ordinances banning the ownership of handguns within their respective municipal boundaries. National Rifle Association ("NRA") filed companion lawsuits to invalidate the bans, arguing that they violated the United States Constitution's Second Amendment, as it was assertedly applicable to state governments and their progeny. NRA ultimately took its cases to the United States Supreme Court, where it along with Otis McDonald (NRA was in the McDonald case as a party supporting the McDonald petition) convinced five Justices of their position (see McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)).

Now NRA wants Chicago and Oak Park to pay its attorneys' fees under 42 U.S.C. §1988.*fn1 NRA has submitted a petition claiming $1,727,160.71 in fees and expenses for work in the Chicago and Oak Park cases combined, $142,109.60 for work done only in the Chicago case and $326,052.98 for work done only in the Oak Park case. Those figures cover multiple aspects of the cases: (1) litigation on the merits in this Court, our Court of Appeals and the Supreme Court; (2) litigation as to whether NRA was a prevailing party under Section 1988 in this Court and the Court of Appeals; and (3) litigation in this Court as to the amount of the fee.

NRA v. City of Chicago, 646 F.3d 992, 993-94 (7th Cir. 2011) determined that NRA is a prevailing party entitled to fees under Section 1988. So what remains to be determined is the amount of the fee award.

Background on the Attorneys' Roles

NRA employed several law firms and lawyers during this litigation. During the merits phase of the cases Stephen Halbrook ("Halbrook") served as lead counsel in this Court and the Seventh Circuit in both lawsuits (N. Mem. 3).*fn2 William Howard ("Howard"), Daniel Dooley

("Dooley") and other attorneys from the Freeborn & Peters law firm ("Freeborn") served as local counsel in the Oak Park case (id.), while Stephen Kolodziej ("Kolodziej") of the Brenner, Ford, Monroe & Scott law firm ("Brenner") served as local counsel in the Chicago case (id.). Another law firm, Cooper & Kirk ("Cooper"), chipped in a few hours assisting Halbrook in the Seventh Circuit (N. Supp. 8).

Halbrook, with assistance from Cooper, then prepared a petition to the United States Supreme Court for a writ of certiorari (N. Rep. 6, N. Supp. 8). When the Supreme Court took the case, Stephen Poss ("Poss"), Kevin Martin ("Martin"), Joshua Lipshutz ("Lipshutz") and several other attorneys from the Goodwin Procter law firm ("Goodwin") took over briefing duties, with contributions from Halbrook and Cooper (N. Mem. 4). Paul Clement ("Clement") of King & Spalding ("King") handled the oral argument, with assistance from several other attorneys at his firm (id.).

Victors in the Supreme Court, NRA returned to this Court to seek fees. Halbrook and both sets of local counsel briefed whether NRA was a prevailing party (N. Supp. 9). When this Court ruled against NRA on technical grounds, Halbrook handled a successful appeal to the Seventh Circuit with assistance from Clement and other attorneys at his new firm, Bancroft (id.).

Attorney's Fees

When a plaintiff prevails in an action to enforce Section 1983, Section 1988(b) entitles that plaintiff to collect its costs and a reasonable attorney's fee from the defendant. Gautreaux v. Chicago Housing Authority, 491 F.3d 649, 659 (7th Cir. 2007) is one of a great many cases that set out the initial step in determining the fee award:

In calculating reasonable attorneys' fees, the district court should first determine the lodestar amount by multiplying the reasonable number of hours worked by the market rate.

It is the party seeking the fee award that bears the burden of proving the market rate for each attorney and the reasonableness of the time spent by each. Before this opinion turns to an extended discussion of the first of those components (market rate), it is important to pause to understand why the preceding paragraph referred to determination of the lodestar figure as the "initial step" rather than as the necessarily conclusive amount, which it will be remembered is also a function of the second component (reasonable time spent).

Before the author of this opinion was privileged to join the federal judiciary, he spent a bit more than three decades as an active law firm practitioner, more than the last decade of that period as the firm's lead partner with principal responsibility for firm billing.*fn3 Both that experience and the home truths expressed in this opinion's later quotation from the Gusman case demonstrate the presumptive validity of the lodestar figure when work on a matter is done by a single lawyer. In that situation the market presumptively adjusts to produce a reasonable fee, for the lawyer's hourly rate presumably reflects the lawyer's efficiency and effectiveness (or lack of them) in producing the end product of his or her efforts.

That same analysis should hold true in situations in which more than one lawyer is involved, with each performing a discrete portion of the task. But the situation is very different where, as is so often the case these days (and as was true here), lawyers function in teams or their efforts overlap substantially. Lawyer A consults with Lawyer B, who then reviews Lawyer A's work, with Lawyer A then scrutinizing Lawyer B's input (and with more conferencing likely involved at those added stages of activity). In such situations the calculation of a number of lodestar figures (one for each lawyer), which are then simply added together, provides no assurance of generating a total figure that should be the subject of fee shifting.

More will be said on that subject later. But first this opinion turns to the possibility of placing a cap on fees, followed by a particularized review of the market rates for the numerous lawyers included in NRA's request.

Chicago's and Oak Park's Proposed Cap on Fees

Chicago and Oak Park propose capping NRA's recovery at the amount collected by plaintiffs in the McDonald action, the parallel lawsuit in which a different plaintiff also challenged Chicago's ordinance. There Chicago and McDonald agreed to a fee award of $399,950 (C. Mem. 20). NRA characterizes that as a settlement, suggesting that it is thus an unreliable barometer of the reasonableness of NRA's claim. Chicago and Oak Park respond that "technically there was no 'settlement' between McDonald and the City; McDonald submitted a fee petition pursuant to section 1988 which the City did not oppose" (id.). But Chicago and Oak Park apparently acknowledge that some negotiation took place over the amount of the fee.

Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010) teaches that "a 'reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." If $399,950 was enough to attract a capable attorney in McDonald, why not in these cases, which involved almost exactly the same issues and took the same path through the court system?

It would, however, be a mistake to assume that McDonald sets a ceiling on attorneys' fees for this case. Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir. 1993) explains why:

Lawyers do not come from cookie cutters. Some are fast studies and others require extra preparation. Some are more nimble on their feet and apt to achieve better results at trial. Some have deeper insight and in a few hours may find ways to prevail (or to curtail costly discovery) that will elude their colleagues. Clients are willing to pay more, per hour, for these better lawyers. A $225 per hour lawyer may end up costing less than a $150 lawyer for the same result or may produce better results for the same total bill. Markets recognize these truths; judges must too. Only an assumption that all lawyers are identical could support the averaging approach, under which all lawyers in a division of the court receive the same hourly fee.

McDonald's and NRA's attorneys are not identical (or fungible). What is more, they took different approaches to their respective cases: McDonald said that the Second Amendment applies to states by virtue of the Privileges and Immunities Clause of the Fourteenth Amendment, while NRA said it applied by virtue of the doctrine of substantive due process.

Perhaps McDonald's attorneys took a cheaper but more risky path. If that's so, then using the fees from that case as a ceiling may not attract capable counsel in future cases, unless those attorneys are also willing to gamble with a high-risk litigation strategy. This may not be accurate -- McDonald's attorneys may simply have been more efficient -- but it illustrates why it is preferable to begin by utilizing the lodestar approach, analyzing bills individually for reasonableness rather than placing a ceiling on the bills that assumes something demonstrably false: that all attorneys are the same.

Stephen Halbrook's Rate

As stated earlier, Halbrook served as lead counsel for NRA in this Court and the Seventh Circuit, prepared the petition to the Supreme Court for a writ of certiorari and participated to some extent in the preparation at the Supreme Court level (H. Dec. 2-3). Halbrook claims an hourly rate of $800, clocked 1,632.8 hours on the case and seeks a total fee of $1,306,240 (JS 2).

Cases such as Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999) hold that a lawyer's reasonable rate is whatever rate the market will bear for the lawyer's services. NRA says that Halbrook is entitled to $800 per hour because that is what is charged by a smattering of other lawyers who have over 20 years of experience (as Halbrook does) and who practice constitutional law. But NRA cherry-picked its asserted comparators from among the highest-charging lawyers in the country, looking exclusively at the rates of the experienced Supreme ...


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