Chicago Regional Council of Carpenters Pension Fund et al v. Second Generation, Inc.

Filing 64

WRITTEN Opinion entered by the Honorable Sharon Johnson Coleman on 8/25/2011: Coming before the Court on plaintiff's counsel's Petition for Attorney and Auditor Fees 56 plaintiff requests attorney's fees be awarded in the amount of $25,991.50 and auditor fees in the amount of $3,216.00. Defendant objects to the award in its entirety. For the reasons stated herein, the petition is denied. Mailed notice. (For further details see written opinion.)(mr, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Sharon J. Coleman

CASE NUMBER

08 C 6088

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/25/2011

Chicago Regional Council of Carpenters Pension Fund, et al. vs. Second Generation,
Inc.

DOCKET ENTRY TEXT

Coming before the Court on plaintiff’s counsel’s Petition for Attorney and Auditor Fees [56] plaintiff
requests attorney’s fees be awarded in the amount of $25,991.50 and auditor fees in the amount of $3,216.00.
Defendant objects to the award in its entirety. For the reasons stated herein, the petition is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff brought this cause of action seeking recovery of unpaid contributions owed pursuant to the
Collective Bargaining Agreement and Trust Agreement. Plaintiff hired an auditor to determine the amount of
unpaid contributions that defendant owed. After completing the audit and accounting for several adjustments
for payments defendant had in fact made, plaintiff claimed that defendant owed $116. Plaintiff filed a motion
for summary, which this Court granted on April 25, 2011. The motion was essentially uncontested and
defendant had voluntarily paid the outstanding $116. This Court refused to award attorney and auditor fees
at the summary judgment stage because plaintiff had not adequately supported the requested amount of fees.
In order to obtain attorney’s fees pursuant to ERISA § 502(g)(1), a claimant must show “‘some
degree of success on the merits’ before a court may award attorney’s fees under §1132(g)(1).’” Pakovich v.
Verizon Ltd. Plan, 2011 U.S. App. LEXIS 15014, *14 (7th Cir. 2011) (quoting Hardt v. Reliance Standard
Life Ins. Co., 130 S.Ct. 2149, 2152, 2158, 176 L.Ed. 2d 998 (2010)). Furthermore, “‘trivial success on the
merits’ or ‘a purely procedural victor[y]’ is inadequate.” Id. “After concluding that a party has shown some
degree of success on the merits and is thus eligible for fees, courts must determine whether fees are
appropriate.” Id. at *14-15. To award fees, “court[s] must find the non-prevailing party’s litigation position
was not substantially justified.” Id.at *15. Courts in this circuit have used a five-factor inquiry to apply the
“substantially justified” standard. See Id; Herman v. Cent. States, Se. & Sw. Areas Pension Fund, 423 F.3d
684, 695 (7th Cir. 2005). The five-factors include:
(1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability of
the offending parties to satisfy personally an award of attorneys’ fee; (3) whether or not an
award of attorneys’ fees would deter other persons acting under similar circumstances; (4) the
amount of benefit conferred on members of the pension plan as a whole; and (f) the relative
merits of the parties’ positions. Herman, 423 F.3d at 696 (internal quotation marks and
citations omitted).
08C6088 Chicago Regional Council of Carpenters Pension Fund, et al. Vs. Second Generation, Inc.

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STATEMENT
The inquiry focuses on “whether the defendant’s litigation position was substantially justified and taken in
good faith or whether it was out to harass the plaintiff.” Pakovich, 2011 U.S. App. LEXIS 15014 at *15.
Here, defendant’s litigation position was that plaintiff should not have filed the lawsuit prior to
completing the audit since the audit resulted in an allegedly unpaid contribution of only $116, which
defendant voluntarily paid. The motion for summary judgment that disposed of the case was uncontested.
Thus, the result in this matter can certainly be described as either a trivial success or a procedural victory.
Initially, plaintiff had not submitted to the Court any supporting documentation for counsel’s
requested fees and only upon the Court’s prompting did counsel submit her billing records. The amount of
attorney’s fees requested totals more than 230 times the $116 the auditor ultimately said defendant owed.
Counsel has failed to prove the market rate for fees, which is her burden. Counsel merely submitted her fees
and the rate per hour that she charged. This Court will not speculate as to whether the fees are reasonable.
Accordingly, this Court finds that awarding attorney’s fees in this instance is not appropriate and defendant’s
position was substantially justified.
Plaintiff also submitted an invoice for the accounting firm of Legacy Professionals LLP to perform
the compliance audit for defendant. Plaintiff requests auditor fees in the amount of $3,216.00 without any
support indicating that the auditor’s fees are reasonable. In light of the foregoing, the request for auditor fees
is likewise denied.

08C6088 Chicago Regional Council of Carpenters Pension Fund, et al. Vs. Second Generation, Inc.

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