Duran, et al v. Cicero, Twn of, et al

Filing 773

MEMORANDUM Opinion Signed by the Honorable John F. Grady on October 31, 2012. Mailed notice(cdh, )

01-6858.123

October 31, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALEJANDRO DURAN, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
TOWN OF CICERO, et al.,
Defendants.

No. 01 C 6858

MEMORANDUM OPINION AND ORDER
The court has considered the affidavits of David A. Cerda,
John R. DeLeon and Joseph R. Lopez filed in response to our order
of October 10, 2012.

The affidavits persuade the court that these

attorneys did in fact have written contingent-fee agreements with
the plaintiffs in this case.
There

were

two

things

that

caused

the

court

to

have

considerable doubt as to whether there had ever been written
contingent-fee agreements.

One was the delay of Mr. Cerda in

revealing that the agreements were “missing” when called upon to
produce them.

We could see no legitimate reason for this delay and

interpreted it as some evidence that the agreements had never
existed.

The other circumstance was the obvious improbability of

Mr. Castellano’s having lost the agreements.
Against these troubling matters, we now have the affidavits
of Messrs. Cerda, De Leon and Lopez attesting to the fact that the

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written agreements were executed and subsequently lost.

The

affidavits overcome our skepticism.
The court finds that the plaintiffs’ attorneys did have
enforceable written contingent-fee contracts with the plaintiffs.
*

*

*

*

There remains the motion of the Town of Cicero for sanctions
against David A. Cerda for the unnecessary delay in disclosing that
the contingent fee contracts are missing.

We agree with the Town

that Mr. Cerda should have informed the court and counsel when the
matter first came up that the agreements could not be found.
However, the issue arose only because the Town took the position
that

the

existence

of

a

contingent-fee

agreement

barred

the

collection of any statutory fees. Mr. Cerda knew this position was
wrong — as it was — and it is understandable how he might therefore
have concluded that whether contingent-fee agreements existed was
irrelevant.

The Town was not raising the possibility that there

were no agreements; the Town saw it as being in its interest that
there were agreements, since this would, in its view, relieve it of
having to pay statutory fees.

It was the court, not the Town, that

was concerned with the possibility that there had never been any
written agreements.
Arguably, there was fault on both sides — on Mr. Cerda’s
part for withholding the fact that the agreements were missing and
on the Town’s part for making the invalid argument that contingent-

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fee agreements would bar the recovery of statutory fees.

The

Town’s motion for sanctions [609] against plaintiffs’ counsel is
denied.
*

*

*

*

In the brief filed by Messrs. Parts and Lopez in response
to the court’s order of October 10, 2012, certain suggestions are
made as to how the necessary payments of fees and costs might be
made.

(Brief at 10-11.)

This case is set for a conference at

10:30 a.m. on November 7, 2012 for a ruling on what procedures
should be followed and for entry of a final order regarding the fee
and costs awards.

DATED:

October 31, 2012

ENTER:

______________________________________________
John F. Grady, United States District Judge