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Bridgeview Health Care Center, Ltd. v. Clark

United States District Court, N.D. Illinois, Eastern Division

July 23, 2015

BRIDGEVIEW HEALTH CARE CENTER, LTD., individually and as the representative of a class of similarly-situated persons, Plaintiff,
v.
JERRY CLARK d/b/a AFFORDABLE DIGITAL HEARING, Defendant.

MEMORANDUM OPINION AND ORDER

MARIA VALDEZ, Magistrate Judge.

Before the Court is plaintiff Bridgeview Health Care Center's ("Bridgeview" or "Plaintiff") Motion for an Award of Attorney's Fees and Related Non-taxable Expenses Pursuant to Fed.R.Civ.P. 54(d)(2)(D) and Local Rule 54.3, [Doc. No. 268]. Defendant Jerry Clark ("Defendant") opposes the Motion. For the following reasons, the Court grants in part and denies in part Plaintiff's Motion.

BACKGROUND

After five years of litigating this TCPA class action, Class Counsel won a judgment of $16, 000 for the class, and they now seek one-third of the common fund in attorney's fees ($5, 333) as well as $307.26 in costs.[1] Defendant, however, claims that Plaintiff's motion should be denied in its entirety because (1) Class Counsel did not achieve a "meaningful result, " which is required by the fee agreement between Bridgeview and its counsel, (2) Class Counsel's bill of costs is so poorly drafted that it is impossible to discern which, if any, costs were necessary or reasonable, and (3) many of the requested costs are unrecoverable as a matter of law. The Court will address each issue in turn.

DISCUSSION

I. Attorney's Fees

In a certified class action, courts "may award reasonable attorney's fees that are authorized by law or by the parties' agreement." Fed.R.Civ.P. 23(h). To determine whether the requested fees[2] are reasonable, courts should compare them to the approximate market rate for similar legal services. See In re Synthroid Mktg. Litig., 264 F.3d 712, 718 (7th Cir. 2001) ("Synthroid I") (endorsing the market-mimicking approach); see also In re Cont'l Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) ("The object in awarding a reasonable attorney's fee is to give the lawyer what he would have gotten in the way of a fee in arm's length negotiation, had one been feasible. In other words the object is to simulate the market where a direct market determination is infeasible."). To that end, the Seventh Circuit has suggested several factors to inform the market-rate analysis:

(1) the existence of any ex ante agreement between the parties;
(2) fees awarded in other common fund cases;
(4) the complexity, length, and expense of the case;
(4) the risk a firm agrees to bear; and
(5) the quality of its performance

Synthroid I, 264 F.3d at 718-21; Isby v. Bayh, 75 F.3d 1191, 1198-99 (7th Cir. 1996).

With respect to the first factor, it is well-settled that ex ante agreements between the parties are useful indicators of the market rate. See Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 958 (7th Cir. 2013) (noting that ex ante agreements better approximate the prevailing market rate between willing sellers and willing buyers of legal services). Here, like many class actions, there is the retainer between the named plaintiff (Bridgeview) and its counsel. But that agreement is hardly probative of the market rate because named plaintiffs are often less-sophisticated buyers of legal services and do not have "a sufficient stake to drive a hard-or any-bargain with the lawyer[s]." Continental, 962 F.2d at 572. The agreement therefore fails to capture what an ex ante negotiation with the entire ...


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