Winston v. Daley et al

Filing 117

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 6/13/2013. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT L. WINSTON,
Plaintiff,
v.
OFFICER O’BRIEN, Chicago
Police Dept Star #10634,
OFFICER YATES, Star #11586
Defendants.

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No. 10 C 8218

MEMORANDUM OPINION AND ORDER

On November 27, 2012, after a two-day trial, a jury entered
a

verdict

in

favor

of

plaintiff

Robert

Winston

and

against

Officer O’Brien, one of two Chicago Police Officers named as
defendants in this excessive force action arising under 42 U.S.C.
' 1983.

The jury awarded plaintiff nominal compensatory damages

of one dollar, plus $7,500 in punitive damages.

Now before me

plaintiff’s petition for attorneys’ fees, which I grant in part
as explained below.
I.
A party who prevails in a § 1983 lawsuit is presumptively
entitled

to

recover

reasonable

§ 1988.

To determine whether, and in what amount, an award of

fees is

appropriate,

I

start

attorney’s

with

fees.

the threshold

42

U.S.C.

question

of

whether the fee petitioner has established that he or she is a
“prevailing party” under the statute.
U.S.

424,

433

(1983).

Under

the

Hensley v. Eckerhart, 461
Supreme

Court’s

“generous

2
formulation” of this requirement, a prevailing plaintiff must
only have succeeded “on any significant issue in litigation which
achieves some of the benefit” sought in the lawsuit. Farrar v.
Hobby, 506 U.S. 103, 109 (1992) (citing Hensley, 461 U.S. at
433).

If this standard is met, I proceed to a determination of

what fees are reasonable.

Hensley, 461 U.S. at 433.

The “most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended on
the litigation, multiplied by a reasonable hourly rate.”
This is the “lodestar” amount.

Id.

See Perdue v. Kenny A. ex rel.

Winn, 130 S. Ct. 1662, 1672 (2010) (describing lodestar approach
as “the guiding light” of the Court’s post-Hensley fee-shifting
jurisprudence).

An attorney’s actual billing rate for comparable

work is presumed to be a reasonable hourly rate. People Who Care
v. Rockford Bd. of Educ., School Dist. No. 205, 90 F.3d 1307,
1310

(7th

Cir.

1996).

This

presumption

reflects

a

proper

emphasis on the “opportunity cost” of lawyers who give up work
for clients who would have paid them their standard hourly fees
for each of the hours they spent on this case.
97 F.3d 914, 920 (7th Cir. 1996).

Cooper v. Casey,

An “important qualification”

to this principle, however, is that “the reasonable fee is capped
at the prevailing market rate for lawyers engaged in the type of
litigation

in

which

the

fee

is

being

sought.”

Id.

(citing

McNabola v. Chicago Transit Authority, 10 F.3d 501, 519 (7th Cir.
2

3
1993); Buffington v. Baltimore County, 913 F.2d 113, 130 (4th
Cir. 1990)) (original emphasis).
In this case, petitioner seeks a total award of $336,918 in
attorney’s

fees.

Defendants

argue

that

petitioner

is

not

entitled to any award of fees because his victory at trial was
“nominal

at

best.”

assuming

an

award

Alternatively,
of

fees

is

defendants

appropriate,

charged by petitioner’s counsel are excessive.

argue
the

that

hourly

even
rates

Defendants do not

object to the number of hours petitioner’s counsel spent on the
case.
Petitioner was represented by attorneys Alan Salpeter, Ross
Neihaus, and Eric Sussman of the law firm Kaye Scholer.

Their

work on the case was supported by paralegal Kenneth Anderson.
Petitioner’s requested award is based on hourly rates of $925 for
Salpeter,

$425

for

Neihaus,

$715

for

Sussman,

and

$210

for

Anderson.
II.
Defendant’s first argument--that petitioner not entitled to
any

fee

award

because

his

trial

minimis--is plainly without merit.

victory

was

nominal

or

de

This is not a case like

Farrar v. Hobby, in which the plaintiff “asked for a bundle and
got a pittance.” 506 U.S. at 120 (O’Connor, J., concurring).

In

Farrar, the plaintiff sued six defendants for seventeen million
dollars but was awarded only one dollar from one defendant, or
3

4
“one seventeen millionth” of what he sought. Id. at 121.
case,

despite

its

conclusion

that

petitioner

had

In this

not

proven

actual damages, the jury nevertheless awarded petitioner sizable
punitive damages against Officer O’Brien, whose actions were the
primary focus of plaintiff’s case.

Petitioner’s victory was

real, not Pyrrhic.
I

thus

turn

to

petitioner asserts.

the

reasonableness

of

the

hourly

rates

Petitioner submits that Salpeter is a highly

accomplished trial attorney who has litigated some of the largest
securities fraud cases ever filed, including Enron and WorldCom,
and whose actual billing rate of $925 per hour is commensurate
with, or slightly below, that of his peers.

Petitioner also

points out that in Johnny’s Icehouse, Inc. v. AHAI, No. 00 C
7363, 2001 WL 893840 (N.D. Ill. Aug. 7, 2001) (Shadur, J.), a
Title

IX

case

successfully

on

in

which

a

pro

Salpeter
bono

represented

basis,

the

the

court

plaintiffs

granted

the

plaintiffs’ request for an award based on Salpeter’s then-current
hourly rate of $495.
With respect to the remaining professionals who billed time
on his case, petitioner asserts that Neihaus’s hourly rate is
reasonable because it is comparable to that of other second year
associates at law firms similar to Kaye Scholer, and because
Neihaus represented him with the skill and ability of a more
experienced attorney.

Petitioner argues that Sussman’s rate is
4

5
reasonable in view of his substantial trial experience, reflected
in both his current position as Kaye Scholer’s Chicago Co-Chair
of

the

White

Collar

Litigation

and

Internal

Investigations

Practice and his past tenure as Deputy Chief of the Financial
Crimes and Special Prosecutions Section of the U.S. Attorney’s
Office

in

Anderson

this
is

district.

an

Finally,

experienced

petitioner

paralegal

with

asserts
ten

years

that
of

experience, and that his hourly rate is commensurate with other
paralegals at large, national law firms.
Petitioner

amply

supports

his

factual

assertions

with

Salpeter’s own affidavit; the affidavit of Randall Oppenheimer, a
partner at O’Melveny & Myers who is familiar with Salpeter’s
reputation and work, and familiar with the hourly rates charged
by law firms with national litigation practices; and a chart (to
which copious supporting documentation is appended) setting forth
the hourly rates of comparable professionals at law firms with
practices similar to Kaye Scholer’s.
Defendants make no meaningful effort to rebut the facts that
petitioner offers in support of his petition.
with

petitioner’s

argument

that

his

case

Moreover, I agree
presented

many

difficulties, and that his counsel’s representation overall was
superb.

Nevertheless, I conclude that the hourly rates he seeks

are not reasonable under the governing fee-shifting statute.

5

6
What

petitioner

fails

to

acknowledge

is

that

the

very

materials he offers in support of his petition reveal that the
“prevailing market rate” for lawyers engaged in civil rights
litigation in Chicago is far below the hourly rates his attorneys
seek.

Petitioner highlights Judge Kennelly’s decision in Jimenez

v. City of Chicago, 09 C 8081 (N.D. Ill. Nov. 14, 2012), to award
Jon Loevy (“an outstanding trial lawyer,” whose trial skills have
been deemed “reminiscent of the trial skills displayed by some of
the

nationally

recognized

trial

lawyers

in

this

community,”

Garcia v. City of Chicago, No. 2003 WL 22175620, at *2 (N.D. Ill.
Sept.

19.

petitioner
argument,

2003)

(Holderman,

requested.
however,

is

J.)),

the

Conspicuously
the

fact

that

full

hourly

absent

from

the

Jimenez

rate

the

petitioner’s
petitioner

asserted an hourly rate of $495 for Jon Loevy--who at the time
possessed nineteen years of experience--or just over half the
rate petitioner seeks for Salpeter.

Judge Kennelly explained

that Loevy’s hourly rate was “amply justified by comparison with
hourly rates awarded to other plaintiff’s civil rights attorneys
in Chicago, including rates of $500 to $535 for attorneys who
have more years of experience but no greater level of skill or
rate of success.”

Fee Petition, Exh. G at 4 [DN 98-7].1

Indeed,

1

Petitioner likewise highlights Magistrate Judge Mason’s Oct. 12,
2011, Report and Recommendation, which was adopted by the district
court in Foltin v. Ugarte et al., 09 C 5237 (Jan. 18, 2012), and
which awarded Thomas Morrissey, another experienced, Chicago-area
plaintiff’s civil rights attorney, an hourly rate of $535 for his
6

7
the elephant in the room is that no case in this district (or
anywhere else, from all that appears) has ever awarded fees based
on an hourly rate even approaching $925 in a ' 1983 case.2
In

fact,

the

fees

requested

for Salpeter’s

work

bear a

remarkable resemblance to the hypothetical Judge Posner evoked in
Cooper to illustrate why fees must be “capped” in accordance with
the prevailing

market

rates for

lawyers

who

engage

in civil

rights litigation:
Suppose the best lawyer in the United States charges
$1,000 an hour and is worth every cent of it. Only his
practice has nothing to do with civil rights; he is,
let us say, an antitrust trial lawyer. He is requested
to represent an indigent civil rights plaintiff, and he
does so, giving the case his best shot and, despite his
inexperience in civil rights litigation, doing a superb
job. Would he be entitled to an award of fees at the
rate of $1,000 an hour? Not if the judge could have
procured competent counsel for the plaintiff at a much
work in that case.
2
In Johnny’s Ice House, which petitioner cites because the court
awarded Salpeter his then-current hourly rate of $495, the court
explicitly distinguished the case from litigation pursuant to
' 1983, which it considered “a well-marked-out area of law.” 2011
WL 893840, at *5. Among the factors that distinguish Johnny’s
Ice House from the present case, and that bear upon the
reasonableness of the fees requested, include that: 1) the fees
in that case were awarded under Fed. R. Civ. P. 54(d), not under
' 1988; that case involved “not only civil rights issues of an
unusual nature but also antitrust claims, the retaliation claims
at issue, breach of fiduciary duty claims and breach of contract
claims-all requiring a far greater overall breadth of skills (and
a high quality of litigation skills generally)”; and payment of
the fees in Johnny’s Icehouse was not paid from public coffers,
cf. Perdue, 130 S.Ct. at 1676-77. Youakim v. McDonald, 171
F.R.D. 224 (N.D. Ill. 1997), on which petitioner relies for the
proposition that a commercial attorney’s standard billing rate is
not “per se irrelevant to the reasonable-fee determination,”
likewise fails to support petitioner’s asserted rates.
7

8
lower rate. It is no more reasonable to pay a lawyer
$1,000 an hour for services that can be obtained at
$200 an hour than it is to pay $1,000 for an automobile
hood ornament that you could buy elsewhere for $200.
Judges have to be careful when they are spending other
people’s money.

Cooper, 97 F.3d at 920.

See also Perdue, 130 S.Ct. at 1676-77

(“In many cases, attorney’s fees awarded under § 1988 are not
paid by the individuals responsible for the constitutional or
statutory violations on which the judgment is based. Instead, the
fees are paid in effect by state and local taxpayers, and because
state and local governments have limited budgets, money that is
used to pay attorney’s fees is money that cannot be used for
programs that provide vital public services.”).
Petitioner argues that Cooper’s presumptive “cap” should not
apply to Salpeter’s rate because Salpeter administered the case
efficiently, and because his skills as a commercial litigator are
“perfectly transferable” to civil rights litigation.
97 F.3d at 920-21.
enabled

him,

for

See Cooper,

Petitioner insists that Salpeter’s experience
example,

to

simplify

the

case

down

to

its

essential points; to organize and present his arguments clearly;
and to examine witnesses effectively.

Petitioner also notes that

Salpeter was able, based on his pre-existing relationships, to
consult, at no cost, with experts and advisors whose insights and
advice strengthened counsel’s presentation of petitioner’s case
at trial.

I agree that these factors likely contributed to
8

9
petitioner’s
petitioner’s

overall

success;

conclusory

but

I

suggestion

am

not

that

persuaded

even

the

by
most

accomplished civil rights attorneys in Chicago could not match
Salpeter’s resources and wherewithal.
In view of the foregoing, I conclude that an hourly rate of
$535 is reasonable for Salpeter’s work on petitioner’s case.
This rate--which petitioner’s own submissions place at the very
highest end of the “prevailing market rate” for this type of
litigation--recognizes Salpeter’s vast trial experience as well
as his admirable work on this case, and is consistent with rates
charged by

accomplished,

Chicago-area

civil

rights

attorneys.

For similar reasons, I conclude that a reasonable hourly rate for
Neihaus’s work is $225 (see Fee Pet., Exh. G at 8) (highlighting
rate awarded to Loevy & Loevy attorney Rachel Steinbeck).
Sussman, petitioner

emphasizes

his impressive

As for

credentials

and

experience in the areas of white collar litigation, financial
crimes, securities fraud, and other areas (not including civil
rights) but fails to persuade me that the value of Sussman’s work
on this case exceeds the “prevailing market rate” of similarly
experienced civil rights attorneys.

Accordingly, I conclude that

a reasonable hourly rate for Sussman’s contribution to the case
is $450, commensurate with the rate Judge Kennelly found to be
reasonable for civil rights attorney Michael Kanovitz in Jimenez.
Id. at 5.

Finally, petitioner has offered no evidence that his
9

10
request for $210 per hour for the work of paralegal Kenneth
Anderson is in line with prevailing market rates in this district
for

similar

services.

In

view

of

Anderson’s

considerable

experience, I conclude that an hourly rate of $125 is reasonable.
See id. at 10.
III.
For the foregoing reasons, petitioner’s petition for fees is
granted in part.

Petitioner is entitled to a total award of

$187,467.

ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: June 13, 2013

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