United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Cooper sued Retrieval-Masters Credit Bureau
(“RMCB”), alleging a violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq. Doc. 1. The court granted Cooper
summary judgment as to liability, and the case proceeded to a
damages trial. Docs. 46-47 (reported at 2017 WL 2404952 (N.D.
Ill. June 2, 2017)). The jury awarded Cooper $500 in
statutory damages and zero actual damages, and judgment was
entered in that amount. Docs. 94, 96. Cooper now moves under
15 U.S.C. § 1692k(a)(3) for an award of $65, 357.90 in
attorney fees and $1, 042.37 in costs. Doc. 98. The motion is
granted in part and denied in part.
factual backdrop of this suit is set forth in the court's
summary judgment opinion, familiarity with which is assumed.
Cooper filed suit in early March 2016; as permitted by 15
U.S.C. § 1692k(a), he sought statutory and actual
damages and attorney fees. Doc. 1. Some five months later, at
a July 28, 2016 settlement conference before Magistrate Judge
Finnegan, RMCB offered to settle for $500 in damages plus the
reasonable attorney fees and costs that Cooper had incurred
to date. Doc. 112 at 8; Doc. 129 at 15-16; Doc. 129-1 at 18.
Cooper rejected the offer. Doc. 129 at 16. As noted, the jury
ultimately awarded Cooper $500 in statutory damages-half the
$1, 000 maximum authorized by 15 U.S.C. §
1692k(a)(2)(A)-and zero actual damages. Docs. 93-94.
who prevail under the [FDCPA] are entitled to an award of
costs and reasonable attorney's fees.”
Schlacher v. Law Offices of Phillip J. Rotche &
Assocs., P.C., 574 F.3d 852, 856 (7th Cir. 2009). The
parties agree that Cooper qualifies for a fee and cost award,
Doc. 112 at 8, but dispute its proper amount.
there is no precise formula for determining a reasonable fee,
the district court generally begins by calculating the
lodestar-the attorney's reasonable hourly rate multiplied
by the number of hours reasonably expended.”
Schlacher, 574 F.3d at 856 (citing Hensley v.
Eckerhart, 461 U.S. 424, 433-37 (1983)); see also
Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010)
(“The touchstone for a district court's calculation
of attorney's fees is the lodestar method, which is
calculated by multiplying a reasonable hourly rate by the
number of hours reasonably expended.”). “[T]he
lodestar figure is just the starting point.”
Thorncreek Apartments III, LLC v. Mick, 886 F.3d
626, 638 (7th Cir. 2018) (internal quotation marks omitted).
After calculating the lodestar, “[t]he district court
may then adjust that figure to reflect various factors
including the complexity of the legal issues involved, the
degree of success obtained, and the public interest advanced
by the litigation.” Schlacher, 574 F.3d at
Calculating the Lodestar
Hours Reasonably Expended
“must pay for hours reasonably expended by
[Cooper's counsel]. That means [RMCB] is not required to
pay for hours that are ‘excessive, redundant, or
otherwise unnecessary.'” Johnson v. GDF,
Inc., 668 F.3d 927, 931 (7th Cir. 2012) (quoting
Hensley, 461 U.S. at 434). The procedural history of
this case bears greatly on the amount of attorney time for
which Cooper should be compensated.
aspects of the procedural history are these: in late July
2016, Cooper rejected an offer to settle the case for $500 in
damages plus reasonable attorney fees and costs, and at trial
more than a year later, he obtained … $500 in damages.
Doc. 94. The congruence between RMCB's offer and the jury
verdict matters. In Moriarty v. Svec, 233 F.3d 955
(7th Cir. 2000) (Moriarty II), the Seventh Circuit
held that “[s]ubstantial settlement offers should be
considered by the district court as a factor in determining
an award of reasonable attorney's fees, even where Rule
68 does not apply.” Id. at 967. Significant
for present purposes, the court explained that “an
offer is substantial if … the offered amount appears
to be roughly equal to or more than the total damages
recovered by the prevailing party.” Ibid.
“In such circumstances, a district court should reflect
on whether to award only a percentage (including zero
percent) of the attorney's fees that were incurred after
the date of the settlement offer.” Ibid.
“If the district court chooses to use a substantial
offer as a cut-off point for the award of attorneys' fees
… [it] must offer an explanation as to why it chooses
to use one substantial offer as a cut-off, but not
another.” Moriarty ex rel. Local Union No. 727 v.
Svec, 429 F.3d 710, 720 (7th Cir. 2005) (Moriarty
July 2016 settlement offer was a substantial one within the
meaning of Moriarty II. For starters, RMCB's
offer of $500 in damages exactly matched Cooper's
ultimate recovery at trial. See Moriarty II, 233
F.3d at 967. Of equal if not greater importance, Cooper and
his attorneys knew-as his trial testimony ultimately
demonstrated-that at the time he received the letter from
RMCB that violated the FDCPA, he was experiencing numerous
personal difficulties. Cooper's mother, sister, and
brother-in-law had recently passed away, and he had recently
lost the job he had held for 28 years and could no longer
afford the apartment where he had lived for 23 years. From
the point of view of a reasonable juror, the distress Cooper
experienced in the aftermath of receiving RMCB's letter
was almost certainly attributable solely to those tragic and
unfortunate family- and employment-related circumstances, not
to the letter's single FDCPA-violative sentence. Doc. 1-1
at 6; 2017 WL 2404952, at *2. Consequently, from the outset
of this case, Cooper and his lawyers knew (or absolutely
should have known) that the jury would be highly unlikely to
award any actual damages, which in turn would depress any
statutory damage award. See Lassiter v. Integrity Sol.
Servs., Inc., 2014 WL 1977216, at *2 (D. Colo. May 15,
2014) (considering the absence of “evidence that the
letter caused [the plaintiff] distress or anxiety” in
awarding $150 in statutory damages); Weiss v. Zwicker
& Assocs., P.C., 664 F.Supp.2d 214, 218 (E.D.N.Y.
2009) (finding a $500 statutory damage award
“appropriate” where the plaintiff “suffered
no actual damages”).
Cooper's counsel knew (or absolutely should have known)
that a jury fairly applying the nonexclusive factors set
forth § 1692k(b)(1) to guide the assessment of statutory
damages-“the frequency and persistence of noncompliance
by the debt collector, the nature of such noncompliance, and
the extent to which such noncompliance was intentional,
” 15 U.S.C. § 1692k(b)(1)-was unlikely to award
the $1, 000 maximum. Cooper's only evidence bearing on
the first and second factors was the single FDCPA-violative
sentence in RMCB's one-page letter, Doc. 1-1 at 6; 2017
WL 2404952, at *2, and he presented no evidence relevant to
the third factor. By going to trial, Cooper's counsel
took the real risk that he would receive even less than the
$500 in damages that RMCB offered in July 2016. See
Lester E. Cox Med. Ctr. v. Huntsman, 408 F.3d 989,
993-94 (8th Cir. 2005) (finding no abuse of discretion in
declining to award statutory damages, explaining that,
“[f]or de minimis or technical violations,
some courts ...