Reid et al v. Unilever United States, Inc.
Filing
213
MEMORANDUM Opinion and Order Signed by the Honorable Ruben Castillo on 6/10/2015.Mailed notice. (as, )
fl61
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SIDNEY REID, ALISHA BARNETT,
DAWN DAMROW and FRAN PENNEL,
on Behalf of Themselves and all Others
Similarly Situated,
)
)
)
)
)
Plaintiffs,
No. 12 C 6058
v.
Chief Judge Rub6n Castillo
UNILEVER UNITED STATES, INC.,
LEK, INC., and CONOPCO, INC. d/b/a
UNILEVER HOME AND PERSONAL
CARE USA,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Sidney Reid, Alisha Barnett, Dawn Damrow, and Fran Pennel (collectively,
"Plaintiffs") brought this class action lawsuit against Defendants Unilever United States, Inc.
("Unilever"), LEK, Inc. ("LEK"), and Conopco, Inc. dlbla Unilever Home and Personal Care
USA ("Conopco") (collectively, "Defendants") alleging violations of the Magnuson-Moss
Warranty Act (the "MMA"), 15 U.S.C. $ 2301 et. seq., the Illinois Consumer Fraud and
Deceptive Business Practices Act (the "ICFA"), 815 Ill. Comp. Stat. 505/1 et. seq., and
substantially similar laws of Alabama, Wisconsin, and Nevada, as well as state common law
claims for breach of express warranty, breach of implied warranty, negligence and/or gross
negligence, strict liability, and unjust enrichment. (R. 60, Am. Compl.) The parties
subsequently agreed to a settlement, and the Court entered an order granting final approval of the
settlement shortly thereafter. (R. 143, Order.) Presently before the Court is Plaintiffs' motion
for attorneys' fees and costs pursuant to Federal Rule of Civil Procedure 23(h). (R. 121, Mot.
Att'ys' Fees.) For the reasons
stated below, the motion is granted in part and denied in part.
BACKGROUND
Plaintiff Sidney Reid, along with Angel Lake,r originally filed this lawsuit against
Unilever on August 1,2012. (R.
l, Compl.) The above-named Plaintiffs filed
an amended
seven-count class action complaint against Defendants on September 23,2013. (R. 60, Am.
Compl.) Plaintiffs alleged that a hair care product marketed and sold by Defendants,
Suave@
Professionals Keratin Infusion 30 Day Smoothing Kit (the "Treatment"), caused Class members
hair loss and other injuries. (Id.nn
l-2.) In Count I of the amended complaint, Plaintiffs alleged
that Unilever breached an express warranty by making false statements about the Treatment in
advertisements and product packaging. (Id.nn 89-95.) In Count II, Plaintiffs alleged that
Defendants breached an implied warranty by selling Plaintiffs a product that was not reasonably
fit for the purposes for which it was used.
(1d. tTfl
96-101.) In Count III, Plaintiffs alleged that
Unilever violated the ICFA, and similar laws of other states, by using "unconscionable
commercial practices, deception, fraud, false promise and misrepresentation in connection with
the marketing
of'the Treatment. (ld. fl1| 102-17.) In Count IV, Plaintiffs alleged that Unilever
violated the MMA by breaching an express warranty that "the [Treatment] was of merchantable
quality and fit for the ordinary purposes for which smoothing kits are used." (ld.nn I l8-27.) In
Count V, Plaintiffs alleged that Defendants were negligent and/or grossly negligent by failing to
exercise due care in relation to the Treatment. (ld.nn l2S-35). In Count VI, Plaintiffs alleged
that Defendants were strictly liable for the Treatment's adverse effects as "producers,
manufacturers, marketers and/or distributors" of the Treatment. (Id.nn
I
86-44.) In Count VII,
On August 13, 2013, the Court entered an order dismissing Angel Lake from the lawsuit
pursuant to her notice of voluntary dismissal. (R. 54, Order.)
Plaintiffs alleged that Defendants were unjustly enriched "in retaining revenues derived from"
Plaintiffs' purchases of the defective Treatment. (1d.flf145-49.)
Unilever subsequently moved to dismiss Count III of the amended complaint for lack
of
jurisdiction and failure to state a claim. (R. 70, Defs.' Mot. to Dismiss.) On May 23,2014,the
Court denied Unilever's motion without prejudice as moot, because the Court had approved a
preliminary settlement agreement submitted by the parties while the motion was pending. (R.
I10, Min. Entry; R. 96, Order.)
After more than a year-and-a-half of negotiations, including extensive discussions and
formal mediation sessions conducted by former United States District Judge Wayne Andersen,
the parties reached a settlement agreement (the "Agreement") on February 7,2014.2 (R. 126,
Pls.' Mem. at 49; R. 143, Ex. 1, Agreement at
ll-12)
The Court entered an order granting final
approval of the settlement on July 29,2014. (R. 143, Order.) The settlement terms directed
Unilever to "provide $10,250,000 to the Settlement Administrator for the establishment of two"
settlement funds: a "Reimbursement Fund" of $250,000 and an "Injury Fund" of $10 million.
(R. 143, Ex.l, Agreement at 16.) The Reimbursement Fund was established to satisfy the claims
of members of the Settlement Class3 (the "Class") who purchased the Treatment but "did not
suffer bodily injury to his or her hair or scalp as a result of using the [Treatment]." (1d.) Those
members were eligible to submit a claim against the Reimbursement Fund for a one-time
payment of
$ 10
per claimant. (Id. at 16-17 .)
2 The Agreement settled
three putative class actions against Defendants in the United States
District Court for the Northem District of Illinois, the United States District Court for the
Western District of Kentucky, and the United States District Court for the Northern District of
Califomia. (R. 143, Ex. 1, Agreement at 11.)
3 The Court certified the Settlement
Class for purposes of the Agreement only, pursuant to
Federal Rule of Civil Procedure 23(b)(3). (R. 143, Order at 3.)
The Injury Fund was established to satisfu the claims of members of the Class who
"suffered bodily injury to his or her hair or scalp" as a result of using the Treatment. (Id. at 18.)
Those members were eligible to submit a claim against the Injury Fund for "reimbursement
of
amounts spent to redress such injuries" under one of three options: Option A, Option B, or
Option C. (Id.) Option A applied to claimants who did not have receipts for the expenses
incurred in redressing their injuries; Option A claimants were eligible to receive up to $40 per
claimant. (ld. at 19.) Option B applied to claimants who did have receipts for the expenses
incurred in redressing their injuries; Option B claimants were eligible to receive up to $800 per
claimant. (ld. at 20.) Finally, Option C applied to claimants who suffered "significant" injuries
as a result of using the Treatment; Option C claimants were eligible to receive up to $25,000 per
claimant. (Id. at 21.) The Agreement required all claims to be submitted by September 25,
2014, and provided that any amounts remaining in either Fund after that date would revert to
Unilever. (ld. at23,31.) As of September 30, 2014,5,076 class members had submitted claims
against the two Funds. (R. 194, Pls.' Reply at 9.)
On June 11,2014, Plaintiffs filed a motion for attorneys' fees and costs, (R. 121, Mot.
Att'ys'
Fees), and a supporting memorandum, (R. 126, Pls.'
Mem.). Plaintiffs seek attomeys'
fees in the amount of $3,416,632.50, and costs and expenses in the amount of $30,000.31. (R.
126, Pls.' Mem. at
58.) On August 8,2014, Defendants filed
a response
to Plaintiffs' motion for
attorneys' fees. (R. 147, Defs.' Resp.) Defendants request that the Court award fees and costs to
Plaintiffs in an amount not exceeding $1.1 million. (Id. at24.) Plaintiffs replied on August 25,
2014. (R. 159, Pls.'Reply.)
LEGAL STANDARI)
Federal Rule of Civil Procedure 23(h) provides that, in addition to any judgment
awarded, plaintiffs may recover reasonable attorneys' fees and nontaxable costs authoizedby
law or by the parties' agreement. Fed. R. Civ. P. 23(h). The MMA contains a fee-shifting
provision that authorizes the court to award attorneys' fees and costs to the prevailing party. l5
u.s.c. $ 2310(dx2).
To calculate an appropriate fee award, courts start with the "lodestar" amount,
determined by "multiplying a reasonable hourly rate by the number of hours reasonably
expended on the litigation." Small v. Richard Wolf Med. Instruments Corp.,264
F
.3d 702,707
(7th Cir. 2001); see also Hensley v. Eckerhart, 461 U.S. 424,433 (1983). Under this approach,
the party seeking fees bears the burden of proving the reasonableness of the hours worked and
rates claimed. Hensley, 461 U.S. at
437. A good faith effort must be made to exclude excessive,
redundant, or unnecessary hours. Id. at 434. The court, for its part, must exclude hours it deems
inadequately documented or not reasonably expended on the litigation. Id. at 433-34; Spegon v.
Catholic Bishop of Chi., 175 F.3d 544, 550 (7th Cir. 1999). There is a 'ostrong presumption" that
the lodestar method yields a reasonable fee. Perdue v. Kenny A. ex rel. Winn,559 U.S. 542,554
(2010); see also Pickett v. Sheridan Health Care Ctr., 664
F
.3d 632, 639 (7th Cir.
20ll).
Once the lodestar amount has been determined, the court may adjust the award based on a
number of factors, including "the complexity of the legal issues involved, the degree of success
obtained, and the public interest advanced by the litigation." Schlacher v. Law Offices of Phillip
J. Rotche & Assocs., P.C.,574 F.3d 852, 856-57 (7th Cir. 2009); see also Hensley,46l U.S. at
430 n.3 (listing "the novelty and difficulty of the questions" and "the skill requisite to perform
the legal service properly" as two of the factors used in determining a fee award). "The standard
is whether the fees are reasonable in relation to the difficulty, stakes, and outcome of the case."
Gastineauv. Wright,592F.3d747,748 (7th Cir.2010) (quoting Connollyv. Nat'l Sch. Bus
Serv., Inc., 177 F.3d 593,597 (7th Cir. 1999)). The court may increase the award by applying a
"multiplier" to the lodestar amount if satisfied that
a
multiplier is appropriate under the
circumstances. See Harmonv. Lymphomed, lnc.,945F.2d969,976 (7th Cir.
l99l).
When
making adjustments to the determined lodestar amount, a court must provide a "concise but clear
explanation of its reasons" for any adjustment. Uphoff v. Elegant Bath, Ltd., 176F.3d 399,409
(7th Cir. 1999) (citation omitted).
ANALYSIS
Plaintiffs request an award of attorneys' fees in the amount of $3,416,632.50, and costs
and expenses in the amount of $36,069.52.4
154,
G. 126, Pls.'
Mem. at 58; R.l22,Mehdi Decl.; R.
Miller Decl.; R. 155, Eisinger Decl.; R. 156, Polaszek Decl.; R. 157, Getty Decl.)
Defendants request that the Court award fees to Plaintiffs in an amount not to exceed $1.1
million. (R. 147, Defs.'Resp. at24.)
I.
Local Rule 54.3
Local Rule 54.3 sets forth the procedures that must be followed in connection with fee
applications filed in this District. The rule imposes on counsel for the parties the obligation to
ooconfer
and attempt in good faith to agree on the amount of fees or related nontaxable expenses
that should be awarded," and to exchange certain specified information. N.D. Ill. L.R. 54.3(d).
"[Local Rule 54.3] aims to promote amicable resolution by encouraging the parties to define
their areas of actual disagreement regarding fee awards." Tenner v. Zurek,168 F.3d 328, 331
4 Plaintiffs requested
$30,000.81 in costs and expenses on June 11,2014, (R. 126, Pls.' Mem. at
58), but updated the amount of costs and expenses requested in declarations submitted on August
22,2014, (R. 154, Miller Decl.; R. 155, Eisinger Decl.; R. 156, Polaszek Decl.; R. 157, Getty
Decl.).
(7th Cir. 1998) (internal quotation marks omitted). If a compromise cannot be reached, the party
seeking fees may file a motion, attaching
a
joint statement
prepared by both parties. N.D.
Ill.
L.R. 54.3(e). The joint statement must specify the total amount of fees and related expenses
sought, the total amount that the responding party believes should be awarded, and "a brief
description of each specific dispute remaining between the parties as to the fees or expenses."
Id. "fLocall Rule
54.3 was adopted by the district court as a means of reducing the time spent on
fee disputes." Sears, Roebuck
& Co. v. Menard,1zc., No.0l C 9843, 2004WL2423964,at*l
(N.D. Ill. Sept. 23,2004). The rule compels the parties to focus on specifics, and should result in
the presentation of "discrete objections to specific items in the fee petition that can be ruled upon
with relative despatch." Id. However, "district courts have discretion in interpreting and
applying their local rules." Sonii v. Gen. Elec., No. 95 C 5370,2003 WL 21541039, at *3 (N.D.
Ill. June I l, 2003) (quoting Tenner,l68 F.3d at 331).
The parties in this case failed to reach a compromise on attorneys' fees. (See R. 143, Ex.
l,
Agreement at 36.) The parties also failed to submit
a
joint statement
as required by Local
Rule 54.3(e), and instead submitted numerous scattered and imprecise briefs and declarations
related to their remaining disputes as to fees and expenses. (See R. 126, Pls.' Mem.;R.
l2l-4,
Ex.4, Eisinger Decl.; R. 122, Mehdi Decl.; R. 123, Polaszek Decl.; R.124, Getty Decl.; R.
125,
Miller Decl.; R. 154, Miller Decl.; R. 155, Eisinger Decl.; R. 156, Polaszek Decl.; R. 157, Getty
Decl.; R. 147, Defs.' Resp.; R. 148, Morency Decl.; R. 159, Pls.'Reply.)
Similarly, in Sonii, the parties failed to submit
a
joint statement in compliance with Local
Rule 54.3(e), but "[b]ecause the parties [] sufficiently narrowed the areas of dispute through their
briefs," the court considered the merits of both parties' claims. 2003 WL 21541039, at *3; see
also Angelilli v. Bd. of Educ. of the City of Chi., No. 00 C 1670, 2001 WL 7o\g22,at *2 (N.D.
Ill. June 13,2001) ("Although defendant did not adequately contribute to the joint
statement, the
present briefs of the parties adequately serve the purpose of setting forth the parties'
disagreements."); Perez v. Z. Frank oldsmobile, Inc.,No. 97 C 8950,2000
(N.D. Ill. Feb. 18, 2000) (finding that in spite of the absence of
a required
wL 222632,at*l
joint
statement
of
disputed issues, "[t]he response-reply approach by the parties [] suffrciently defined the
dispute"). Here, despite the parties' failure to submit a joint statement as required by Local Rule
54.3(e), the parties' briefs and declarations are adequately detailed to define the remaining
disputes-including specific rates, time entries, amounts claimed, and objections.
(See
R. 126,
Pls.' Mem.;R. l2l-4,F,x. 4, Eisinger Decl.; R. 122, Mehdi Decl.; R. 123, polaszek Decl.; R.
124, Getty Decl.; R. 125, Miller Decl.; R. 154, Miller Decl.; R. 155, Eisinger Decl.; R. 156,
Polaszek Decl.; R. 157, Getty Decl.; R. 147, Defs.' Resp.; R. 148, Morency Decl.; R. 159, pls.'
Reply.) Thus, the "response-reply approach" taken by the parties here has "sufficiently defined
the disputef.f" Perez,2000 WL 222632, at * 1. Accordingly, based on the parties' briefs and
declarations, the Court proceeds to consider an appropriate fee award for Plaintiffs.
II.
Whether the percentage-of-the-fund approach or the lodestar method applies
The Court first addresses the method of calculating attorneys' fees that should be applied
in this case. Plaintiffs argue that the $10.25 million settlement amount created a "common fund"
and that the Court should apply the "percentage-of-the-fund" approach in determining an
appropriate fee award. (R. 126, Pls.' Mem. at 50.) Plaintiffs request an attorneys' fee award
equal to one-third of the settlement fund, totaling $3,416,632.50. (Id. at 5l-52.) Defendants
argue that the Court should apply the lodestar method because the settlement fund does not
constitute a common fund and thus common fund principles do not apply. (R. 147, Defs.' Resp.
at 7-10.)
Two exceptions to the traditional rule that litigants must bear their own expenses
authorize courts to award attorneys' fees in class action cases: (1) statutory fee-shifting and (2)
the common fund doctrine. Skelton v. Gen. Motors Corp., 860 F.2d 250,252 (7th Cir. 1988).
Statutory fee-shifting is authorized when a party brings an action under a statute containing a
fee-shifting provision.
from the defendant.
Id. In that case, a prevailing plaintiff recovers attorneys' fees directly
Id. In contrast, the common fund doctrine
applies where an action "results
in the creation of a common fund for the benefit of a plaintiff class." Id. (citing Alyeska Pipeline
Serv. Co. v. Wilderness Soc 'y, 421 U.S. 240, 257 -58 ( 1975)). There, the attomeys' fee award is
taken from the fund itself, "thereby diminishing the sum ultimately retained by the plaintiff
class." 1d Thus, common fund principles apply only if "the fee award . . . is ultimately charged
against the plaintiffs' fund, rather than directly against the defendant." Florin v. Nationsbank
of
Go., N.A.,34 F.3d 560,564 (7th Cir. 1994).
In a statutory fee-shifting case, the court determines a reasonable amount of attorneys'
fees by applying the lodestar method. City of Burlington v. Dague,505 U.S. 557, 562 (1992);
see also
Pickett,664 F.3d at 639. In
a case where common fund
principles apply, a district court
may apply either the percentage approach or the lodestar method. Florin,34 F.3d at 566.
Here, Plaintiffs brought a class action against Defendants under the
MMA. (R. 60, Am.
Compl. flfl 118-27.) The MMA contains a fee-shifting provision providing that the court may
allow the prevailing party to recover "a sum equal to the aggregate amount of costs and expenses
(including attorneys' fees based on actual time expended) determined by the court to have been
reasonably incurred by the
plaintiff[.]" l5 U.S.C. $ 2310(d)(2). To qualify
party" for the purposes of a federal fee-shifting statute,
a
as a
"prevailing
plaintiff "must obtain at least some
relief on the merits of his claim." Farrar v. Hobby,506 U.S. 103, l ll (1992); see also Hensley,
9
461 U.S. at 433 ("plaintiffs may be considered 'prevailing parties' for attorney's fees purposes
if
they succeed on any significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit" (citation omitted)). In this case, Plaintiffs achieved a settlement
directing Defendants to pay $10.25 million for the benefit of the Class. (R. 143, Ex.
l,
Agreement at 16.) Thus, Plaintiffs qualify as the "prevailing party" for purposes of the MMA
fee-shifting provision.
The Seventh Circuit has determined that when an action is brought under a fee-shifting
statute but settles with the creation of a fund for the benefit of the class, "the statute must control
and the [common fund] doctrine must be deemed abrogated to the extent necessary to give
full
effect to the statute." Florin,34 F.3d at 563 (quoting Cnty. of Suffilk v. Long Islancl Lighting
Co. , 90 F .2d 1295
, 1327 (2d Cir. 1 990)) . In Skelton, the parties
the MMA with the creation of a common fund. 860 F.2d
settled an action brought under
at25l.
The settlement agreement,
however, provided that defendants were relieved from potential liability for statutory attorneys'
fees and that class counsel could instead petition the court for an award of fees from the
settlement fund.
Id.
The court therefore held that common fund principles controlled due to
those provisions of the agreement, stating, "when a settlement fund is created in exchange for
release of the defendant's
liability both for damages and for statutory attorney's fees, equitable
fund principles must govern the court's award of attorney's fees." Id. at256. Similarly, in
Florin, the parties settled an action brought under ERISA, which contains a fee-shifting
provision, by agreeing that defendants would create a settlement fund for the benefit of the class
and that plaintiffs would seek afforneys' fees from that
fund. 34 F.3d at 562. Citin g Skelton, the
court again held that common fund principles applied. Id. at 563-64.
10
In
1998
Watson v. Sheahan the district court distinguished Skelton and
WL 708803, at * I (N.D. Ill. Sept. 30, 1998). In that
Florin No. 94 C 6891,
case, the parties to an action brought
pursuant to 42 U.S.C. $ 1983 settled with the creation of a settlement fund for the benefit of the
plaintiff class. Id. The plaintiffs argued that
because the parties' agreement created a settlement
fund for the benefit of the class, common fund principles applied rather than the fee-shifting
provision contained in the statute.
Id.
The court, however, disagreed with plaintiffs. The court
distinguished Skelton and Florin by noting that in those cases, the settlement agreement
specifically provided that the defendants were relieved from potential liability for statutory
attorneys' fees and that class counsel would instead petition the court for a fee award from the
common fund. Id. (citing Florin,34 F.3d at 564; Skelton,860 F.2d at251). The parties in
Watson, in contrast, had not agreed that defendants were relieved from
liability for statutory
attomeys' fees or that class counsel's fee award would come out of a common fund. Id.
Therefore, the court held that the fee-shifting provision controlled. Id.; see also O'Brien v.
Panino's, Inc., No. l0 C 2991,2011 WL 3610076, at xl (N.D. Ill. Aug. 16,20ll) (holding that
because
Florin involved an agreement between the parties that the plaintiff would seek fees from
a common fund,
Florinhad no application where the parties agreed that the defendants would
pay fees directly).
Here, the terms of the settlement agreement directed Defendants to pay $10.25 million
for the establishment of two settlement funds for the benefit of the Class. (R. 143, Ex.
l,
Agreement at 16.) As to attorneys' fees and costs, the Agreement provides only that Unilever
will pay the fees awarded by the Court for the "work performed" by class counsel. (ld. at
36.)
The parties' subsequent briefs make it clear that the parties have agreed that Unilever will pay
Plaintiffs' attorneys' fees directly and separately from the Fund. (R. 126, Pls.' Mem. at 49; R.
il
147, Defs.' Resp. at
8.) Specifically, Plaintiffs
state that "any award of attomey's fees (and
reimbursement of litigation costs and expenses) rendered by this Court will be paid by Unilever
and is separate and distinct from the $10,250,000.00 Settlement funds created to compensate
Class members for their claimed damages." (R. 126, Pls.' Mem. at
50.) Further, no provision of
the Agreement or any assertion in the parties' briefs provides that Defendants are relieved from
liability for statutory attorneys' fees or that Plaintiffs will petition the Court for
a fee award
from
the Fund. Thus, like in Watson, the parties here did not agree to waive liability for attorney's
fees under the fee-shifting statute and instead apply common fund principles. See 1998
708803, at
*l-*2. In fact, the Agreement
WL
and subsequent briefs indicate that the parties
essentially agreed that the statutory fee-shifting provision contained in the MMA would control,
and the Court
will defer to their agreement.s Therefore, the Court will determine the appropriate
amount of attorneys' fees pursuant to the parties' Agreement and the fee-shifting provision of the
MMA. As stated above, in a statutory fee-shifting
case common fund principles do not apply,
and courts determine a reasonable amount of attorneys' fees by applying the lodestar method.
See City of
Burlington, 505 U.S. at 562.
Accordingly, the Court finds that the lodestar method applies to Plaintiffs' petition for
attorneys' fees, and proceeds to consider an appropriate fee award for Plaintiffs.
III.
Lodestar Amount
Determination of an appropriate award begins with the lodestar, which results from
multiplying the number of hours expended by
a reasonable
hourly rate. Small,264 F.3d at 707
.
As the party seeking the award of attorneys' fees, Plaintiffs bear the burden of establishing the
'
Rule 23(h) provides that a court may award attorneys' fees that are authorizedby law or by the
parties' agreement. Fed. R. Civ. P. 23(h). Here, the Court's award of attorneys' fees is
authorized both by the parties' Agreement and by the MMA. See 15 U.S.C. S 23 l0(dx2).
t2
reasonableness of the time expended and hourly rates charged by their attorneys. See Hensley,
461 U.S. at 437; Spellan v. Bd. of Educ.
for Dist. I I l, 59 F.3d 642, 646 (7th Cir.
1995).
Plaintiffs request an award of attorneys' fees in the amount of $3,416,632.60. (R. 126,
Pls.' Mem. at 58.) Plaintiffs claim to have expended 4,072.05 hours litigating the action as of
August 22,2014, with a purported lodestar value of $2,251,396.50.6 (R.122, Mehdi Decl.; R.
154,
Miller Decl.; R. 155, Eisinger Decl.; R. 156, Polaszek Decl.; R. 157, Getty Decl.) The
Plaintiffs' purported lodestar value is calculated
as
follows:
Firm
Attorney
Hourly Rate
Hours
The Law Office
of Jana Eisinser
Miller Law LLC
Jana Eisinger
$ss0
1,605
Total per
attomey
$882,750
$8l s
46.80
$38,142
$68s
1
$68s
$600
6r.30
$36,780
$600
0.40
$240
$2s0
27.20
$6,800
s220
58.1 0
$12,782
$2s0
2
$s00
$700
478.25
$334,775
$6s0
1060.05
$689,032.50
$400
149.s0
$59,800
$3s0
29.75
$10,412.50
Miller Law LLC
Miller Law LLC
Miller Law LLC
Miller Law LLC
Miller Law LLC
Miller Law LLC
Morgan &
Morgan, P.A.
Morgan &
Morgan, P.A.
Morgan &
Morgan, P.A.
Morgan &
Morgan, P.A.
(Principal)
Marvin Miller
(Attomey)
Matthew Van
Tine (Attornev)
Lori Fanning
(Attorney)
Andrew Szot
(Attornev)
Anne Jewell
(Paralesal)
Jorge Ramirez
(Law Clerk)
Dena Robinson
(Paraleeal)
Peter Safirstein
(Partner)
Chris Polaszek
(Partner)
Elizabeth
Metcalf
(Attorney)
Roger Sachar
(Attorney)
6 Plaintiffs calculated the purported
lodestar value of the hours spent litigating this action as
$2,087,643.00 on June 11,2014, (R. 126, Pls.' Mem. at 55), but updated the amount of hours
expended in declarations submitted on August 22,2014, (R. 154, Miller Decl.; R. 155, Eisinger
Decl.; R. 156, Polaszek Decl.; R. 157, Getty Decl.).
l3
Morgan &
Morgan, P.A.
Morgan &
Morgan, P.A.
Morgan &
Morgan. P.A.
The Getty Law
Group, PLLC
The Getty Law
Group, PLLC
Sheila Feerick
(Sunoort Staffl
David Sclafani
(Support Staf0
Jennifer Post
(Support Staffl
Richard A. Getty
(Princioal)
Danielle H.
Brown (Of
Counsel)
Danielle H.
Brown (Of
Counsel)
Kristopher D.
Collman
(Associate)
Matthew W.
English
(Associate)
Matthew W.
English
(Associate)
Evan M. Rice
(Law Clerk)
Ann M. Stith
(Paraleeal)
AzraZ. Mehdi
(Principal)
Gabriela
Hamilton
(Paraleeal)
The Getty Law
Group, PLLC
The Getty Law
Group, PLLC
The Getty Law
Group, PLLC
The Getty Law
Group, PLLC
The Getty Law
Group, PLLC
The Mehdi Firm,
PC
The Mehdi Firm,
PC
272
$74,800
s2s0
18.75
s4,687.50
s 150
t4.2s
$2,137.50
$47s
45
$21,375
$32s
28.30
$9,197.50
$37s
48.50
$ I 8,1
$230
16.20
$3,726
$240
2.60
$624
$27s
3.50
s962.s0
l7s
1.s0
$262.s0
sl s0
35.60
$s.340
s77s
41.25
s31,968.75
$21s
25.25
$5,428.75
TOTALS
The Getty Law
Group, PLLC
$27s
4,072.05
$2,251,396.50
$
97.50
(R. 122, Mehdi Decl.; R. 154, Miller Decl.; R. 155, Eisinger Decl., R. 156, Polaszek Decl.; R.
157, Getty Decl.)
A.
Whether Plaintiffs' attorneys' hours were reasonably expended
The Court first addresses the hours Plaintiffs' attorneys "reasonably expended" litigating
this case. See Hensley, 461 U.S. at 434. The Supreme Court has directed that "[c]ounsel for the
14
prevailing party should make a good faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission."
Id. Accordingly, if the prevailing
party fails to exercise the proper billing judgment, the court should exclude from the fee
calculation "hours that were not 'reasonably expended."' Id. (citation omitted).
Here, Defendants challenge several aspects of Plaintiffs' counsel time entries, raising the
following issues:
(l)
whether certain redacted time entries are compensable; (2) whether hours
expended communicating with the media are compensable; (3) whether certain time expended by
Plaintiffs' counsel is clerical in nature, or otherwise unrecoverable; (4) whether certain time
expended by Plaintiffs' counsel is excessive, redundant, or otherwise unnecessary; and (5)
whether the time Plaintiffs' counsel spent preparing a motion to limit or supervise Unilever's
communications with absent class members is compensable. (R. l47,Defs.' Resp. at I 1-16; R.
148, Morency Decl. at 6-l
1.
l.)
The Court will address each of Defendants' arguments in turn.
Whether certain redacted time entries are compensable
Defendants first argue that 484 time entries contained in Plaintiffs' records are so
redacted that Plaintiffs fail to meet their burden ofjustifying their reasonableness. (R. 147,
Defs.' Resp. at I l.) Defendants highlighted these entries in blue in the records submitted to the
Court. (R. 148-1, Ex. A, Pls.' Time Records.) The time entries highlighted in blue represent
a
totalof 957.15 hourswithapurportedvalueof$496,357.50. (R. 147,Defs.'Resp.atl1.)
Plaintiffs contend that these entries should be considered by the Court because Unilever's
counsel has produced some time records that are similarly redacted. (R. 159, Pls.' Reply at 15.)
Where attomeys' time entries are so redacted that it is "difficult if not impossible" for a
court to sufficiently evaluate the services rendered and fees charged, and results in "the exclusion
l5
of basic material information which undermines the integrity of the entire petition," the court
may disallow those entries. Vitug v. Multistate Tax Comm 'n, 883 F. Supp. 215,223-24 (N.D. Ill.
1995); see also Rynd v. Nat'l Mut. Fire Ins. Co., No. 8:09-CV-1556-T-27TGW, 2012 WL
939387, at
*l l-*13 (M.D.
Fla. Jan. 25,2012) (subtracting time entries from attorney's fee award
because they were so heavily redacted that their activities could not be discerned); Randolph
v.
Dimension Films, 634 F . Supp. 2d 779,800 (S.D. Tex. 2009) ("Redacted entries must be
excluded if they do not provide sufficient information to classify and evaluate the activities and
hours expended."). Further, "when a fee petition is vague or inadequately documented, a district
court may either strike the problematic entries or (in recognition of the impracticalities of
requiring courts to do an item-by-item accounting) reduce the proposed fee by a reasonable
percentage." Harper v. City of chi. Heights,223 F.3d 593, 605 (7th Cir. 2000). In short, the
relevant inquiry is whether the time entries are "sufficiently detailed to permit the Court to
determine whether the hours expended were reasonable and necessary to the conduct of the
litigation." Gibsonv. City of Chi,873 F. Srpp. 2d975,986 (N.D. rll.2012) (Castillo,
J.)
(quoting Crispin R., Jr. v. Bd. of Educ. of the City of Chi., Dist. 299,No.09-CV-3993,2010 WL
3701328, at *6 (N.D. Ill. Sept. 10, 2010)); see also Tomazzoli v. Sheedy,804 F.2d 93,97-98 (7th
Cir. 1986) (affirming district court's fee reduction where records referred to "research" without
stating what was researched); Warfield v. City of Chi.,733 F. Supp. 2d950,959 (N.D. Ill. 2010)
(Castillo, J.) (deducting hours where the attomeys' 'oentries simply reflect[ed] hours billed for
'trial' or unidentified 'witness prep"').
The Court has thoroughly reviewed the disputed time entries highlighted in blue on
Plaintiffs' records, and concludes that because they are in their entirety
so redacted, the Court
cannot determine whether the hours expended were reasonable and necessary to the conduct
t6
of
the litigation. Further, Plaintiffs have not provided the Court with un-redacted entries and thus
the redacted entries are all that is available for the Court to review. The entries identify only
tasks such as "email," "factual investigation,"'ocalls," and "research," without identifying the
subject or content of the activity. (See R. 148-1, Ex. A, Pls.' Time Records.)
Plaintiffs contend that many of Defendants' time entries for hours expended on this case
are similarly redacted, and thus Plaintiffs' redacted time entries should be permitted. (R. 159,
Pls.' Reply at 15.) To support this assertion, Plaintiffs submitted certain of Defendants'time
entries to the Court. (R. 159-5, Ex. E, Defs.' Time Records.) The Court has reviewed these
entries, and the vast majority of them are completely un-redacted.
(Id.) Infact, only five of
Defendants' entries are so redacted that the Court cannot determine whether the hours expended
were reasonable. (ld. at 8-10, 13-14.) The remainder of Defendants' records sufficiently
identifies the subject and content of the billed work. (1d.)
Accordingly, the Court strikes the entirety of the blue-highlighted redacted time entries.
(R. 148-1, Ex. A, Pls.' Time Records.) This results in the following reductions: a 641.7S-hour
reduction of Eisinger's time; a 4.10-hour reduction of Miller's time; a 2.40-hour reduction
of
Fanning's time; an 8.25-hour reduction of Safirstein's time; a I l3-hour reduction of Polaszek's
time; a 37-hour reduction of Metcalf
s
time; a 9.75-hour reduction of Sachar's time; an 88-hour
reduction of Feerick's time; a l -hour reduction of Sclafani's time; a
1
3
.70-hour reduction
of
Getty's time; an I 1.60-hour reduction of Brown's time; a 15.2O-hour reduction of Collman's
time; a 0.50-hour reduction of English's time; a 1.50-hour reduction of Rice's time; a 7.90-hour
reduction of Stith's time; and a 1.5O-hour reduction of Mehdi's time. (1d ) Thus, the Court
strikes a total of 957.15 hours.
t7
2.
Whether hours expended communicating with the media are
compensable
Defendants next argue that28 time entries in Plaintiffs' records related to media
communications should be subtracted from the total hours expended because time spent
communicating with the media is not compensable. (R. 147, Defs.' Resp. at 12.) Defendants
highlighted these entries in yellow in the records submitted to the Court. (R. l43-1, Ex. A, Pls.'
Time Records.) The time entries highlighted in yellow represent a total of 49.75 hours with a
purported value of $22,287.50. (R. 147, Defs.' Resp. at 12.) Plaintiffs do not specifically
respond to this argument in their reply brief.
Courts in this District have held that attorneys are not entitled to a fee award for time
spent communicating with the media. See Wells v. City o.f Chi., 925
F
. Supp.
2d 1036, 1046
(N.D. Ill. 2013) (finding that hours spent in connection with media appearance are not
compensable); Gilfand v. Planey, No. 07 C 2566,2012 WL 5845530, at * 14 (N.D. Ill. Nov. 19,
2012) (striking hours spent on telephone calls with the media); Dupuy v. McEwen, 648 F. Supp.
2d 1007, l02l-22 (N.D. Ill. 2009) (concluding that hours spent on out-of-court activities such
as
media efforts are non-compensable).
The Court has carefully reviewed the disputed time entries highlighted in yellow on
Plaintiffs' records, and finds that each entry relates to media communications. (R.
Pls.'Time Records at8,22-24,30-31,57,60,78-79,8I,129-30.)
148- I , Ex.
A,
The entries include
descriptions such as "Finalizing press release and releasing," ooanswering calls/emails from press
release," and "calls and emails with [redacted] re: . . . inquiries from Inside Edition and GMA[.]"
(ld. at78-79,130.) Accordingly, the Court strikes the entirety of the yellow-highlighted time
entries related to media communications. This results in a 19-hour reduction of Eisinger's time;
a 2-hour reduction
of Safirstein's time; a 0.25-hour reduction of Metcalf
l8
s
time; a 23.50-hour
reduction of Feerick's time; and a 5-hour reduction of Mehdi's time, for a total reduction
of
49.75 hours.
3.
Whether certain time expended by Plaintiffs' counsel is clerical in
nature, or otherwise unrecoverable
Defendants next argue that96 time entries in Plaintiffs'records billing for clerical tasks,
including entries for time spent submitting pro hac vice motions, should be disallowed. (R. 147,
Defs.' Resp. at 12-13.) Defendants highlighted these entries in purple and pink in the records
submitted to the Court. (R. 148-1, Ex. A, Pls.' Time Records.) The time entries highlighted in
purple and pink represent a total of I 17.10 hours with a purported value of $31 ,537 .00. (R. 147,
Defs.' Resp. at 13.) Plaintiffs argue that clerical tasks are compensable, and cite to
a
memorandum of law drafted in2007 in which Unilever's counsel, Schiff Hardin LLP, took an
opposite position claiming that paralegal time, travel expenses, and the like are compensable.
(R. 159, Pls.' Reply at 14.) Plaintiffs further respond that Unilever's counsel is charging
Unilever for many clerical tasks, including "updating internal case files,'o and "scanning
documents." (ld.)
In determining the number of hours "reasonably expended," courts should "disallow not
only hours spent on tasks that would normally not be billed to a paying client, but also those
hours expended by counsel on tasks that are easily delegable to non-professional assistance."
Spegon, 175 F.3d at 553 (citation and internal quotation marks omitted). Thus, courts should not
permit recovery for administrative or clerical tasks, such as organizing file folders, preparing
documents, and copying documents.
Id.
Further, courts should disallow recovery for such tasks
whether an attorney or paralegal performed them.
Id.
The relevant inquiry for recovering
paralegal fees is "whether the work was sufficiently complex to justify the efforts of a paralegal,
as opposed to an employee at the next rung lower on the pay-scale
l9
ladder." People Who Cqre
v.
RockfordBd. of Educ., Sch. Dist. No.205,90 F.3d 1307, 1315 (7thCir. 1996). Further,courtsin
this District have held that preparing and filing form legal documents, such as applications to
proceed in forma pauperis, are considered non-compensable "clerical or administrative tasks."
Trump v. Colvin, No. 12 C 6194,2015 WL 970117, at*4 G{.D. Ill. March 2,2015); see olso
Maki v. Astrue, No. 07-C-282,2008 WL 4830085, at *3 (E.D. Wis. Oct. 29,2008) (deducting
"the time counsel spent filing forms and documents with the court and drafting routine filings
which generally are prepared by support staff').
Plaintiffs, in support of their argument that time spent on clerical tasks is compensable,
cite to a2007 memorandum prepared by Schiff Hardin attorneys in which they argue that similar
tasks are compensable. (R. 159, Pls.' Reply at 14.) However, the court in that case, Days Inn
Worldwide, Inc. v. Lincoln Park Hotels, lnc.,500 F. Supp. 2d770 (N.D. Ill2007), never decided
that issue, and thus the Court finds that the cited material in the memorandum is unpersuasive.
The Court has reviewed the disputed time entries highlighted in purple and pink in
Plaintiffs' records, and concludes that the tasks described by the entries are correctly
characterized as clerical in nature and thus are not compensable. The entries include tasks such
as "shipping box to Chicago,"'oReschedule meeting," and "updating retainer
files." (R.
148-1,
Ex. A, Pls.' Time Records at 62,67.) Plaintiffs also filed fivepro hac vice motions; each motion
was a form document obtained from the Court, which required Plaintiffs' attorneys to
fill in
information including their names, addresses, and bar admissions, and check boxes related to
their good standing in the bars of other courts. (R. 7, Safirstein Mot.; R. 9, Metcalf Mot.; R. 10,
Eisinger Mot.; R. 12, Polaszek Mot.; R. 14 Saf,rrstein Amend. Mot.) This requires little effort,
and thus the Court finds that these motions qualify as "routine
See
Maki,2008 WL 4830085, at x3.
20
filings" that are non-compensable.
Accordingly, the Court strikes the entirety of the purple and pink highlighted time entries
relating to clerical tasks and preparation and hling of pro hac vice motions. This results in the
following reductions: a 3-hour reduction of Eisinger's time;
a 0.1O-hour
reduction of Fanning's
time; a 17.70-hour reduction of Jewell's time; a 50.60-hour reduction of Ramirez's time; a 1.50hour reduction of Safirstein's time; a 2-hour reduction of Polaszek's time; a 10.75-hour reduction
of Sachar's time,
a
26-hour reduction of Feerick's time; a 0.75-hour reduction of Sclafani's time;
a 0.50-hour reduction of Getty's time; a 1.4O-hour reduction of Brown's time; a 1.5O-hour
reduction of English's time; and a 1.30-hour reduction of Stith's time. Thus, the Court strikes a
total of 1 17.10 hours.T
4.
Whether certain time expended by Plaintiffs' counsel is excessive,
redundant, or othenvise unnecessary
Defendants next object to
9l time entries in Plaintiffs'
records that Defendants argue
represent excessive hours not reasonably necessary or appropriate for the
litigation. (R.
147,
Defs.' Resp. at 13-15.) Defendants highlighted these entries in orange in the records submitted
to the Court. (R. 148-1, Ex. A, Pls.' Time Records.) The time entries highlighted in orange
represent a total of 462 hours with a purported value of $280,270.00. (R. 147, Defs.' Resp. at
15.) Defendants contend that Plaintiffs assigned multiple attorneys to single tasks unreasonably,
because one attorney could have performed those tasks. (Id. at 13-14.) Defendants also argue
that certain time entries reflect excessive charges for tasks performed, including duplicative
charges. (R. 148, Morency Decl. at 9.) Defendants further argue that it was unreasonable for
Plaintiffs to assign partners to more than ninety percent of the work involved in this case,
because much of the work did not require attorneys of a high experience
level. (R. 147, Defs.,
7 The
total of I 17.10 hours is calculated by adding together the hours spent on clerical tasks
( 109.65) and the hours spent preparing pro hac vice motions (7 .45). (R. 147- I Ex.
B, Charts at
,
2.)
2t
Resp.
at20.) Plaintiffs
respond that the disputed time entries are reasonable and not excessive.
(R. 159, Pls.' Reply at 16.) In support, Plaintiffs note that Defendants' billing records are similar
to Plaintiffs' records. (1d
) Specifically,
Plaintiffs contend that "there were only 2 lawyers who
billed for the drafting of Unilever's reply in funher support of its motion to dismiss the
complaint in the Reid matter
- Schiff Hardin partners Morency and Hemeryck."
(ld.)
The Supreme Court has directed that "[c]ounsel for the prevailing party should make a
good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessaryf.)" Hensley,46l U.S. at 434. The Seventh Circuit has cautioned that "the tendency
of law firms to overstaff a case should cause the trial court to scrutinize
a fees
petition carefully
for duplicative time[.]" Jardien v. Winston Network, Inc., 888 F.2d I l5 1, I 160 (7th Cir. 1989)
(internal citations omitted); see also Schlacher v. Law Offices of Phillip J. Rotche & Assoc., p.C.,
57
4 F .3d 852, 858 (7th Cir. 2009) (courts are "encouraged to scrutinize fee petitions for
duplicative billings when multiple lawyers seek fees"). Nonetheless, the mere fact that two
lawyers have billed for the same task does not mean that the hours should be deducte
d.
Gibson,
873 F. Supp. 2d at 989; see also Tchemkou v. Mukasey, 517 F.3d 506, 51 1-12 (7th Cir. 2008)
("The practice of law often, indeed usually, involves significant periods of consultation among
counsel. Talking through a set of authorities or seeking advice on a vexing problem is often
significantly more efficient than one attorney's trying to wade through the issue alone."). Thus,
the relevant inquiry remains whether the time was "reasonably expended." Hensley,46l U.S. at
444. Finally, attorneys can only apply their rates "to work that reasonably requires counsel of
that experience." O'Brien,2Ol
I WL
3610076, at*2.
Defendants object to numerous time entries, including time Plaintiffs' counsel spent
amending their class action complaint for the Kentucky lawsuit and the Califomia lawsuit,
22
drafting a mediation statement, preparing for the mediation session, and attending the mediation
session. (R. 148, Morency Decl. at 9-10.) Of the 91 entries objected to, Defendants attribute 45
to Eisinger, 38 to Polaszek, three to Safirstein, one to Sclafani, three to Mehdi, and one to
Hamilton. (R. 148-1, Ex. A, Pls.' Time Records.) The Court will consider Defendants'
objections to each attorney's time entries in turn.
Defendants first object to a total of 45 entries contained in Eisinger's time records. (ld. at
8-46.) The majority of the entries relate to time spent adapting the Reid complaint for filing in
California and Kentucky, reviewing and revising the complaints, reviewing and revising the
settlement agreement, and communicating with counsel in other states regarding the three
putative class actions. (ld. at 8, 10-12, 16, 18,20-22,24-25,29-30,35-38, 42-43,44, 46.)
Specifically, Defendants point to 46 hours that Eisinger spent drafting and revising the California
complaint; they object to 30 of these hours as excessive. (R. 147, Defs.' Resp. at 14; R. 148-1,
Ex. A, Pls.' Time Records at21-22,23-30.) Defendants also object to these hours due to the fact
that in addition to the hours Eisinger spent on the California complaint, Mehdi and her paralegal
Hamilton spent roughly 25 hours, and Polaszek and Safirstein spent around 11 hours reviewing
and revising the same complaint. (R. 147, Defs.' Resp.
does not consider
at 14) As a practical matter, the Court
it unreasonable that Eisinger spent 46 hours drafting and revising the
California complaint. The Court also does not consider it unreasonable that Eisinger, Mehdi,
Hamilton, Polaszek, and Safirstein cumulatively spent roughly 80 hours drafting and reviewing
the California complaint. The complexity of the class action lawsuit here, the diffrculties
involved in adapting the class action to other states, and the further difficulties involved in
coordinating litigation efforts between multiple attorneys in different states, leads the Court to
conclude that these hours were "reasonably expended" and not excessive. Hensley,461 U.S. at
444. Further, Eisinger is the principal of the Law Office of
Jana Eisinger, and is apparently the
only attorney employed at the Office. (R. 155, Eisinger Decl. at 1.) Thus, the work performed
by Eisinger "reasonably require[d] counsel of that experience" by default as she was the only
counsel available to perform the work. O'Brien,2011 WL 3610076,
at*2. Accordingly, the
Court will not subtract these hours from Plaintiffs' fee petition.
Defendants also challenge five of Eisinger's entries for 22.5 hours of work performed
drafting and revising the fee petition and fee declaration. (R. 148-1, Ex. A, Pls.' Time Records
at
44.) While time
spent preparing a fee petition is compensable, the Seventh Circuit has
observed that lawyers often "litigate fee issues with greater energy and enthusiasm than they
litigate any other type of issue." Ustrakv. Foirman, 851 F.2d 983, 988 (7th Cir. lgss).
Accordingly, one factor considered in determining the reasonableness of time spent preparing
a
fee petition is a "comparison between the hours spent on the merits and the hours spent on the
fee
petitions." Spegon, 175 F.3d at 554. Where the time expended preparing a fee petition is
disproportionate to the time spent on the merits of the case, courts reduce the amount of time
recoverable for the preparation of the fee petition.
Id. In (Jstrak, for example, the prevailing
party's attomey spent fifteen minutes preparing the fee petition for every hour spent litigating the
merits. 851 F.2d at 988. There, the Seventh Circuit reduced the requested time by two-thirds.
Id.; see also Uphffi 176F.3d at
4ll
(affirming district court's reduction of attorney's time spent
preparing the attorney's fee motion from 9.9 hours to 1.6 hours where the attorney spent just
under 100 hours litigating the merits of the case).
Here, according to Eisinger's billing records, she spent 22.5 hours preparing the fee
petition and declaration. (R. 148-1, Ex. A, Pls.' Time Records at 44.) In comparison, she spent
1,582.5 hours litigating the merits of the case, meaning that she spent roughly one minute
24
preparing the petition and declaration for every hour on the merits. This amount is considerably
less than the amount
in Ustrak, and the Court concludes that it is not excessive. See Ustrak, S5l
F.2d at 988. Accordingly, the Court declines to subtract or reduce these hours.
Defendants next object to 42 entries in the records of Morgan & Morgan, P.A. attributed
to Chris Polaszek (38), Peter Safirstein (three), and David Sclafani (one). (R. 148-1, Ex. A, Pls.'
Time Records at 47-95.) These entries relate to work performed in drafting motions, drafting
mediation statements, preparing for the mediation conference, drafting discovery requests,
attending hearings, cite-checking memoranda, and preparing the fee petition. (ld. at 50-51,
63, 66-67 ,73-7
4,81, 84, 90, 93.) Specifically, Defendants point out that after spending
7
6l-
.5
hours drafting the mediation statement, Polaszek and Safirstein spent an additional 66 hours
revising the statement and preparing for the one day session; Defendants object to the additional
66 hours as excessive. (R. 147, Defs.' Resp. at 15.) The Court does not consider the 66 hours
Polaszek and Safirstein spent revising the statement and preparing for mediation to be excessive
given the complexity of settling three putative class actions. The Court therefore declines to
strike these hours.
Additionally, the Court does not consider the other tasks performed by Polaszek,
Safirstein, and Sclafani to be unreasonable in light of the complexity of the case and the work
involved in litigating
it.
Drafting motions, statements, and discovery requests, as well as
attending hearings, are routine tasks that attorneys must perform to litigate a case; these tasks
become more complicated in the context of a class action involving many different parties and
attorneys. Further, it is unclear to the Court why Defendants presume these hours were not
"reasonably expended" or why Defendants claim that these tasks did not require the expertise of
Polaszek and Safirstein. Local Rule 54.3 requires "clarity and specificity in objections to fee
25
petitions[,]" and does not "allow for the shifting to the court of the objector's responsibility to
particularly delineate those fees with which it takes issue and to meaningfully explain why each
item claimed to be unreasonable or otherwise noncompensable should be disallowed." Nilssen
Gen. Elec. Co., No. 06 C
04155,2011WL 633414, at *10 (N.D. Ill. Feb. 1l,20ll);
see also
v.
RK
Co. v. See,622 F.3d 846, 854 (7th Cir. 2010) (district court did not abuse its discretion in
awarding fee applicant the full amount of fees requested when challenger failed to offer detailed
objections); Sears,2004 WL 2423964, at *l ("parties [must] come to grips with specific
objections to specific aspects of the movant's claim for fees, as opposed to simply jousting in
generalities"). Accordingly, the Court will not subtract these hours from Plaintiffs' fee petition.
Defendants also object to three entries relating to 33 hours that Polaszek spent preparing
the fee petition. (R. 148-1, Ex. A, Pls.' Time Records at93.) As explained above, where the
time expended preparing a fee petition is disproportionate to the time spent on the merits of the
case, courts reduce the amount of time recoverable for the preparation of the fee petition.
Spegon, 175 F.3d at 554. Here, Polaszek and his firm spent 1,989.55 hours litigating the merits
of the case, and 33 hours preparing the fee petition. (R. 156, Polaszek Decl. at 3.) The Court
does not consider this unreasonable, and declines to subtract these hours.
Defendants next object to three of Mehdi's entries, and one of her paralegal Hamilton,s
entries, totaling 20.75 hours. (R. 148-1, Ex. A, Pls.'Time Records at129-130. 133.) These four
entries relate to work performed reviewing and drafting complaints and venue declaratio ns. (Ict.)
The Court does not consider the time spent on these routine attorney tasks to be unreasonable.
Also, as explained above, the Court does not find the hours Mehdi and Hamilton worked on the
California complaint to be excessive. Further, Mehdi is the principal of The Mehdi Firm, pC,
and she is apparently the only attomey employed there. (R.122, Mehdi Decl. at
26
l.)
Thus, the
work performed by Mehdi "reasonably require[d] counsel of that experience" by default as she
was the only counsel available to perform the work. O'Brien,20l
I WL
3610076, at*2.
Accordingly, the Court will not subtract these hours from Plaintiffs' fee petition.
Finally, in their response Defendants argue that all of the orange-highlighted entries
should be stricken because they generally reflect hours detailing tasks in which multiple
attorneys participated. (R. l47,Defs.' Resp. at l3-14.) However, Defendants do not specify
which entries pertain to tasks completed by multiple attorneys. As discussed above, Local Rule
54.3 does not allow the objecting party to shift to the court the objector's responsibility to
particularly identify the fees objected to and explain why each item should be disallowed.
Nilssen,20l1 WL 633414, at *10. Further, the Court considers it reasonable for multiple
attorneys to be involved in tasks related to a class action, where, as here, multiple law firms and
attomeys may be working and coordinating with one another to accomplish a favorable result for
the class. Accordingly, the Court declines to subtract the orange-highlighted entries from
Plaintiffs' lodestar.
5.
Whether the time Plaintiffs' counsel spent preparing the motion to
limit or supervise Unilever's communications with absent class
members is compensable
Defendants next challenge 20 time entries relating to Plaintiffs' motion to limit or
supervise Unilever's communications with consumers who were not yet part of the certified
class. (R. 147, Defs.' Resp. at 15.) Defendants highlighted these entries in green in the records
submitted to the Court. (R. 148-1, Ex. A, Pls.' Time Records.) The time entries represent a total
of
27 .7
hours with a purported value of $17,752.50. (R. 147, Defs.' Resp. at 15.) Defendants
contend that the motion was "unsuccessful," "unfounded," and had "no basis," and thus time
spent preparing
it should be deducted from Plaintiffs' compensable hours. (Id. at 16.) plaintiffs
27
argue that the motion was not unfounded, and that they "prepared and filed the motion as part
of
[Class counsel's] zealous representation of the Class to address a business practice that it
believed was designed to pick off as many Class Members as possible for paltry sums and via an
unconscionable release." (R. 159, Pls.' Reply at 15.) Plaintiffs also note that the Court granted
part of the relief requested in the motion. (ld. at 16.)
A court in this District has held that "it is appropriate to deny fees for work on
unsuccessful motions that did not otherwise advance the case and that was work that would not
have been necessary
if the party had pursued successful avenues." Jones v. Fleetwood Motor
Homes, 127 F. Srpp. 2d 958,973 (N.D. Ill. 2000). Here, the Court granted Plaintiffs' motion in
part. (R. 52, Mem. Op. & Order at 63.) Specifically, the Court granted the motion "to the extent
that Plaintiffs seek an order requiring Unilever to produce copies of its communications and
purported releases with putative class members since the filing of the instant action." (1d.) Thus,
Defendants are incorrect in characterizing Plaintiffs' motion as unsuccessful. Accordingly, the
Court declines to subtract these hours.
B.
Whether Plaintiffs' attorneys' hourly rates are reasonable
The Court next addresses the reasonableness of the hourly rates sought by Plaintiffs'
attorneys. A "reasonable" hourly rate is "one that is derived from the market rate for the services
rendered." Pickett, 664 F.3d at 640 (internal quotation marks and citation omitted). Thus, an
attorney's actual billing rate for similar litigation is appropriate to use as the market rate.
Id. If
an attorney uses contingent fee arrangements, the "next best evidence" of the attorney's market
rate is "evidence of rates similarly experienced attorneys in the community charge paying clients
for similar work and evidence of fee awards the attorney has received in similar cases." Spegon,
175 F.3d at 555. The Seventh Circuit has expressed "a preference for third party affidavits that
28
attest to the
billing rates of comparable attorneys." Pickett, 664 F .3d at 640. The party seeking
fees "bears the burden of producing satisfactory
affidavits-that the requested
evidence-in addition to the attorney's own
rates are in line with those prevailing in the community." Id.
(intemal quotation marks and citation omitted). If that burden is satisfied, the burden shifts to
the other party to offer evidence that sets forth a "good reason" why a lower rate should be
awarded. People Who Care,90 F.3d at 1313 (internal quotation marks and citations omitted).
If
the party seeking fees fails to carry its burden, the Court may properly "make its own
determination of a reasonable rate." Pickett, 664 F .3d at 640.
1.
Jana Eisinger's rate
Plaintiffs seek an hourly rate of $550 for Eisinger, the principal of the Law Office of Jana
Eisinger, PLLC, who has more than 20 years of litigation experience. (R. 155, Eisinger Decl. at
4.) In support of this rate, Plaintiffs have submitted
a declaration by Eisinger that includes her
biography, as well as an unofficial version of the Laf.fey Matrix that differs signif,rcantly from the
official U.S. Department of Justice version.s (R. l2l-4,Ex.4,Eisinger Decl.; R. 155, Eisinger
Decl. at 4; R. 159-1, Ex. A, Unofficial Matrix.) Defendants argue that Eisinger's hourly rate
should be reduced to $500 due to her lack of experience in class action litigation, and because
that rate is consistent with the rates charged by Unilever's counsel, who they claim have similar
experience and
skill. (R. 147, Defs.' Resp. at 18,21.) In support, Defendants submitted the
official U.S. Department of Justice version of the 2014-2015 Laffey Matrix ("the Matrix") and
8 The Laffey Matrix
is a chart of hourly rates for attorneys and paralegals in the Washington,
D.C. area that was prepared by the United States Attorney's Office for the District of Columbia
to be used in fee-shifting cases. Montanez v. Simon,755 F.3d 547, 554 (7th Cir. 2014).
29
the 2010-201 1 United States Consumer Law Attorney Fee Survey Report ("the Report").e (R.
747-2, Ex. C, Matrix.; R.147-3, Ex. D, Report.)
Plaintiffs'evidence in support of Eisinger's requested rate includes Eisinger's declaration
as
well as a lengthy biography that details her credentials and experience. (R. 121-4,Ex. 4,
Eisinger Decl. at 7-8; R. 155, Eisginer Decl.) Eisinger attests that she specializes in complex
commercial litigation. (R. 155, Eisinger Decl. at 7.) Eisinger also attests that she has
considerable class action litigation experience; she "handled commercial and class-action
litigation for numerous Fortune 50 clients" as an associate at Skadden, Arps, Slate, Meagher &
Flom, LLP, and has been involved in a number of other "significant class actions" in
Pennsylvania, Colorado, Nevada, and California federal courts. (R. 121-4, Ex.4, Eisinger Decl.
at 7.) Eisinger further attests that she is currently involved in an antitrust class action in the
Eastern District of Pennsylvania in which she is
billing her time at the same rate of $550 per
hour. (R. 155, Eisinger Decl. at 5.) The Seventh Circuit
has directed that
"[t]he attorney's actual
billing rate for comparable work is presumptively appropriate to use as the market rate." People
Who Care,90 F.3d at 1310 (citation and internal quotation marks omitted). However, an
attomey's "actual billing rate" is the rate that fee-paying clients have previously paid, not the rate
that the attorney is billing in a contingent fee class action. See Vohidy v. Transworld Sys., Inc.,
No. 09 C 50067,2009 WL 2916825, at *5 (N.D. Ill. Sept. 1,2009). Here, Eisinger has not
specified whether she is actually billing her client at the rate of $550 per hour in her antitrust
class action, or
if it is a contingent
fee case. Additionally, Eisinger's antitrust case is in a
e The
2010-2}ll United States Consumer Law Attorney Fee Survey Report published the
survey results relating to attorney's fees for attorneys specializing in consumer law for the ten
largest U.S. cities as of the 2010 census: New York, NY, Los Angeles, CA, Chicago, IL,
Houston, TX, Philadelphia, PA, Phoenix, AZ, San Antonio, TX, San Diego, CA, Dallas, TX, and
San Jose, CA. (R. 147-3, Ex. D, Report at 7.)
30
different district, and Plaintiffs have offered no evidence to prove that the billing rates in each
district are comparable. Therefore, while the Court will consider this billing rate, it does not find
this evidence particularly persuasive.
Plaintiffs also submit an unofltcial version of the Laffey Matrix to support Eisinger's rate.
(R. 159-1, Ex. A, Unofficial Matrix.) Because this version of the Matrix is unofficial and differs
significantly from the official version, the Court declines to consider
it. Accordingly,
the Court
concludes that Plaintiffs have not met their burden of producing satisfactory evidence-in
addition to Eisinger's declaration-that her requested rate of $550 is in line with those prevailing
in the community. See Pickett,644 F.3d at 640. The Court therefore may properly "make its
own determination of a reasonable rate." Id.
Defendants offer the Report in support of their requested rate for Eisinger of $500. (R.
147-3, Ex. D, Report.) Courts in this District and others have considered the Report in analyzing
the reasonableness of proposed hourly billing rates. See Vahidy,2009 WL 2916825, at *5
(consideringthe 2007 Consumer Law Attorney Fee Survey along with other evidence in
determining the reasonableness of an attorney's hourly billing rate); see also Moore v. Midland
Credit Mgmt., 1rc. , No. 3:12-CY -166-TLS, 2012 WL 6217
597 ,
at *4 (N.D. Ind. Dec. 12, Z0l2)
("When corroborated by additional evidence, the Report provides a general range for billing rates
that is useful as one factor in a court's multi-factor analysis."); Anderson v. Specified Credit
Ass'n, lec., No. 1 1-53-GPM ,2011 WL 2414867 , at x4 (S.D. Ill. June
l0,20ll ) (considering
the
2010-2011 Consumer Law Attorney Fee Survey along with the attorneys' profiles in determining
the reasonableness of hourly billing rates); Moreland v. Dorsey Thornton
&
Assocs. Z. Z. C., No.
l0-CV-867,2011WL 1980282,at *3 (E.D. Wis. May 20,2}ll) (considering the 2008-2009
Consumer Law Attorney Fee Survey). Thus, although the Court does not consider the Report
31
determinative, the Court will consider it as one of many factors. The Report states that in 20102011, the median attorney rate for all consumer law attorneys surveyed in Chicago was $437,
and the average rate was $430. (R. 147-3, Ex. D, Report
years in practice for these attorneys was 15 years.
at22.) The corresponding median
(ld.) The 7 5oh median rate for the attorneys
surveyed was $562, and the 95%o median rate was $587. (/d )
Defendants also offer the Matrix in support of their requested rate. (R. 147-2, Ex. C,
Matrix.) The Seventh Circuit has never formally
adopted the Matrix and has stated only that
it
"can assist the district court with the challenging task of determining a reasonable hourly rate."
Pickett, 664 F .3d at 648. Courts in this District have relied on the Matrix as one factor in
determining a reasonable rate. See Sandra T.-E. v. Sperlik, No. 05 C 473,2012 WL 1107845, at
*1
CN.D.
Ill. Apr. 1,2012) (collecting cases). Other courts have given the Matrix little weight
because its rates "appear significantly higher than those customarily charged" in this District and
it does not consider experience in a specific legal expertise. Id. at * I (citation omitted);
see also
Montanez,755 F.3d at 554 (expressing skepticism about applying the Matrix outside of
Washington, D.C.); Obrycka v. City of Chi., No. 07 C 2372,2013 WL 1749803, at *3 (N.D. Ill.
Apr. 23 , 2013) (declining to consider the Matrix because it fails to account for experience in a
specific legal expertise); Blachnell v. Kalinowski, No. 08 C 7257,2012 WL 469962, at *5 (N.D.
Ill. Feb. 13,2012) (noting the significantly higher market
rates in Washington, D.C.).
Defendants do not address the appropriateness of applying the Matrix in this District given the
hourly rate differential. Nonetheless, the Court will consider the Matrix as one factor in its
analysis. The Matrix recommends that attorneys with more than 20 years of experience should
receive a $520 hourly rate. (R. 147-2, Ex. C, Matrix at 2.)
)Z
The Court finds Eisinger's class action litigation experience persuasive, and that
experience should place her somewhere in between the Report's median rate of $437 and its750
median rate of 5562. (R. 147-3, Ex. D, Report at22.) The Matrix's recommendation of $520 is
within this range and represents
a reasonable compromise between the rates requested by the
parties. As stated above, the Matrix rates are higher than rates typically charged in this District.
Sperlik,2012 WL 1 107845, at * 1. However, because the Matrix rate recommended here is
supported by the Chicago-specific rates contained in the Report, the Court concludes that it is
reasonable.
Accordingly, the Court finds that $520 is
a reasonable market rate
for Eisinger's services
in this case.
2.
Marvin Miller's rate
Plaintiffs seek an hourly rate of $815 for Miller, an attorney at Miller Law LLC with
more than 42 years of commercial and class action litigation experience. (R. 125, Miller Decl. at
l6; R.
154,
Miller Decl. at 2-3.) ln support of this rate, Plaintiffs have submitted
a declaration by
Miller that includes his biography and credentials. (R. 125, Miller Decl.; R. 154, Miller Decl.)
Defendants argue that Miller's hourly rate should be reduced to $576 and submit the Report and
the Matrix in support. (R. 147, Defs.'Resp. at21;R.147-2, Ex. C, Matrix; R. 147-3, Ex. D,
Repon.) Defendants contend that they arrived at the $576 hourly rate because it is consistent
with "Schiff Hardin partner rates." (R. 147, Defs.' Resp. at2l.)
Plaintiffs' evidence in support of Miller's rate includes Miller's declaration in which
attests that he has "more than 35 years of experience in litigating class actions," and that his
he
firm
"handles almost exclusively complex plaintiffs' class actions." (R. 154, Miller Decl. at 2.)
Plaintiffs also submitted a description of Miller Law LLC, including Miller's biography. (R.
JJ
l25,Ex. A, Firm
Resume at 5-17.) However, an attorney's own affidavit, viewed as self-
serving, 'ocannot satisfy the plaintiff s burden of establishing the market rate for that attorney's
services." Spegon,lT5 F.3d at 556. Plaintiffs do not offer any third-party affidavits or fuither
evidence in support of their requested rate for
Miller. Due to the lack of evidence provided by
Plaintiffs, the Court concludes that Plaintiffs have not met their burden, and therefore the Court
will proceed to make its own determination of a reasonable rate.
See
Pickett, 644 F .3d at 640.
Defendants first offer the Report in support of their requested rate for Miller of $576. (R.
147-3, Ex. D, Report.) The Report states that in 2010-2011, the median attorney rate for all
consumer law attomeys surveyed in Chicago was $437,the 75Yo median rate was $562, and the
95% median rate was $587. (R. 147-3, Ex. D, Report
attorneys surveyed was 15.
(Id.) Defendants
at22)
The median years in practice of the
also offer the Matrix in support of their requested
rate. (R. 147-2, Ex. C, Matrix.) The Matrix recommends that attorneys with more than 20 years
of experience should receive a $520 hourly rate. (R. 147-2, Ex. C, Matrix at2.) The Court finds
the Matrix and the Report less persuasive as relating to Miller, considering his more than 35
years of experience in litigating class actions. (R. 154,
Miller Decl. at 2.) Further, Defendants'
proposal of compensating Miller at "schiff Hardin partner rates" is unconvincing. (R. 147,
Defs.' Resp.
at2l.)
Defendants do not provide any context as to the experience or skill of the
partners referenced, and thus the Court cannot determine if those partners and Miller are
of
comparable skill and experience. Considering Miller's more than 35 years of experience in
consumer class actions, it is likely that his time would be compensated at arate significantly
exceeding the Report's 95oh median rate of $587. (R. 747-3, Ex. D, Report at22.) However,
with no evidence presented by Plaintiffs relating to Miller's past awards or past rates that paying
clients have agreed to, the Court declines to award Miller's requested rate of $815. Thus, the
J+
Court concludes that a reasonable rate for Miller should be lower than Miller's requested
and higher than Defendants' proposed rate for
Miller.
Accordingly, the Court finds that $650 is a reasonable rate for Miller.
3.
Matthew Van Tine's rate
Plaintiffs seek an hourly rate of $685 for Van Tine, an attorney at Miller Law LLC with
more than 20 years of experience. (R. 125, Miller Decl. at 17-18; R. 154, Miller Decl. at
3.) In
support, Plaintiffs submit a declaration by Miller that includes Van Tine's biography. (R. 125,
Miller Decl. at l7-18.) Defendants do not specifically object to this rate because Van Tine's
compensable hours were not included until Miller's second declaration, which Plaintiffs
submitted after Defendants had made their objections. (R. 154, Miller Decl. at
3.) However,
Defendants suggested generally rates for "local counsel at the partner rate of $558 unless their
regular rate is lower," and thus the Court will consider $558 to be Defendants' suggestion for
Van Tine's rate. (R. 147, Defs.' Resp.
at2l.)
Plaintiffs' evidence to support Van Tine's requested rate consists only of Van Tine's
biography. (R. 125, Miller Decl. at l7-18.) Van Tine's biography states that he specializes in
antitrust, securities fraud, and consumer protection matters. (ld.) It also indicates that he has
been involved in many consumer class actions over the past 20 years, and that he previously was
affiliated with two other class action boutique law firms. (1d ) However, beyond this, Plaintiffs
offer no evidence in support of Van Tine's requested rate. Thus, Plaintiffs again fail to carry
their burden, and the Court must make its own determination of the reasonable rate for Van Tine.
See
Pickett, 664 F.3d at 640.
As stated above, Defendants have not specifically objected to Van Tine's rate due to the
timing of Plaintiffs' submission of Miller's second declaration. (R. 154, Miller Decl.) However,
35
Defendants generally suggested arate of $558 for all "local counsel" involved in this case. (R.
147, Defs.' Resp.
at2l.)
This number is well above the Matrix recommendation of $520, but is
below the Report' s 95o/o median rate of
$5 87
for consumer law attorneys in Chicago
. (R. 147 -2,
Ex. C, Matrix; R.147-3, Ex. D, Report at22.) Due to Van Tine's experience and credentials, his
rate should be reflected at the high end of the Report's suggested rates.
Accordingly, the Court finds that $600 is a reasonable rate for Van Tine.
4.
Lori Fanning's rate
Plaintiffs seek an hourly rate of $600 for Fanning, an attorney at Miller Law LLC with
more than l0 years of experience in class action and consumer protection litigation. (R. 125,
Miller Decl. at 17.) In support of the requested rate, Plaintiffs submitted
which includes Fanning's biography. (Id.) Defendants suggest
a rate
a declaration by
Miller,
of $558 for Fanning. (R.
147-1, Ex. B, Charts at 3.) Defendants do not directly state their reasons for this figure.
Plaintiffs submitted Fanning's biography as evidence to support her requested rate of
$600. (R. 125, Miller Decl. at 17.) Fanning's biography states that she "concentrates her
practice on complex class litigation in a wide range of matters in federal and state court,
primarily in the areas of consumer protection, antitrust and securities." (ld.) Her biography also
cites examples of cases with which she has been involved.
(ld.) Aside from
her biography,
however, Plaintiffs submit no other evidence to support Fanning's requested rate. Plaintiffs thus
have not met their burden and the Court may make its own determination of a reasonable rate.
See
Pickett, 644 F.3d at 640. Defendants do not offer specific reasons for objecting to Fanning's
proposed rate. However, Defendants' suggested rate of $558 is well above Matrix levels, and is
just below the Report' s 7 5o/o median rate for consumer law attorneys with
36
a median
of 15 years
experience. (R.147-2, Ex. C, Matrix; R. 147-3, Ex. D, Report at22.) For these reasons, the
Court finds that Defendants' suggested rate is reasonable.
Accordingly, the Court finds that $558 is a reasonable rate for Fanning.
5.
Andrew Szot's rate
Plaintiffs request an hourly rate of $600 for Szot, an attorney at Miller Law LLC with
more than l0 years of experience in complex commercial litigation. (R. 125, Miller Decl. at 18.)
In support of the requested rate, Plaintiffs submitted a declaration by Miller, which includes
Szot's biography.
(Id.) Defendants
suggest a rate of $558 for Szot, without giving specific
reasons for the suggested rate. (R. 147-1, Ex. B, Charts at 3.)
Plaintiffs' evidence in support of Szot's rate is once again lacking. Plaintiffs' supporting
evidence is limited to a three paragraph biography of Szot explaining that he "handles a wide
variety of complex commercial litigation matters[.]" (R. 125, Miller Decl. at 18.) Thus, the
Court concludes that Plaintiffs have not met their burden, and the Court must make its own
determination of the reasonable rute. See Pickett, 644 F.3d at 640. As with Fanning's rate,
Defendants' requested rate for Szot of $558 is well above Matrix levels and consistent with
Report levels for an attorney of Szot's experience. (R.147-2, Ex. C, Matrix; R. 147-3,Ex. D,
Report at22.) Accordingly, the Court finds that arate of $558 is reasonable for Szot.
6.
Anne Jewell, Jorge Ramirez, and Dena Robinsonrs rates
Plaintiffs seek an hourly rate of $250 for Jewell,
a paralegal; $2ZO
for Ramirez, alaw
clerk; and $250 for Robinson, a paralegal. (R. 125, Miller Decl. at 3; R. 154, Miller Decl. at 3.)
Jewell, Ramirez, and Robinson are employed at Miller Law LLC. (R. 154, Miller Decl. at 3.)
Defendants seek to reduce the rate for all three to $70 per hour. (R. 147, Defs.' Resp. at2l.)
37
Plaintiffs, in their reply brief, assert that the Matrix suggests an hourly rate of $ 150 for
paralegals. (R. 159, Pls.' Reply at 12.) Plaintiffs further assert that Schiff Hardin billed Unilever
for work performed by similar employees at a rate of $245 (paralegal) , $265 (support staff
analyst), and $190 (librarian).
(Id.) Plaintiffs' evidence of Matrix levels and Schiff Hardin
billing rates is unconvincing. First, the suggested Matrix rate of
$ 150
rates Plaintiffs request for Jewell, Ramirez, and Robinson. (R. 125,
per hour is lower than the
Miller Decl. at 3; R.
154,
Miller Decl. at 3;R.147-2, Ex. C, Matrix at 2.) Further, while evidence of Schiff Hardin's
paralegal rates could be relevant in some circumstances, Plaintiffs provide no context as to how
and why they are relevant specifically to rates for Jewell, Ramirez, and Robinson. Plaintiffs
offer no other evidence to support their requested rates. Thus, the Court concludes that plaintiffs
have not met their burden, and the Court proceeds to make its own determination of the
reasonable rates. See Pickett,644 F.3d at 640.
Defendants, in support of their requested rate, cite to cases concluding that an appropriate
rate for paralegals is between $75 and $100. (R. 147, Defs.' Resp. at20 n.5 (citing Blach,rtell
v.
Kalinowski, No. 08 C 7257,2012WL 469962, at *9 (N.D. Ill. Feb. 13,2012) (finding that $100
was an appropriate hourly rate for a paralegal with a bachelor's degree); Goodale v. George
S.
May Int'l Co., No. 09 C 7848,2010 WL 2774013, at *4 (N.D. Ill. July 14,20lO) (finding that
$75 is a reasonably hourly rate for paralegal work))). Defendants also cite to the Report's
finding that the average hourly rate for all paralegals in Chicago in 2010-2Oll was $123, and the
median rate was $112. (Id.)
A2012 opinion from the Northern District of Indiana found that a$100 hourly rate has
consistently been awarded to law clerks and paralegals in both the Northern District of Illinois
andtheNorthernDistrictoflndiana. Chorakv.Astrue,No.2:llCVl14,2Ol2WL157744B.at
38
*2 (N.D. Ind. May 4,2012) (collecting cases); see also Kasalo v. Trident Asset Mgmt., L.L.C.,
No. 12 C 2900,2015 WL 2097605, at x3 (N.D. Ill. May 3,2015) (finding that $100 is a
reasonable rate for paralegal/law clerk time); In
re
Sw.
Airlines Voucher Litig., No. l1 C 8176,
2014WL 2809016,at*6 (N.D. Ill. June 20,2014) (findingthat$125 isareasonablehourlyrate
for a paralegal); Embry v. Barnharf, No. 02 C 3821,2003 WL 22478769, at *3 (N.D. Ill. Oct. 31,
2003) (finding that $95 is an appropriate hourly rate for law clerks and paralegals in Chicago).
ln Chorak, the court ultimately awarded a law clerk with l0 years of experience and
a rate of
$
125, and a paralegal and law clerk with no law degree a rate of
$
a law degree
100. 1d. Plaintiffs
have submitted no evidence relating to the credentials or experience of Jewell, Ramirez, or
Robinson. Thus, taking into consideration the case law and the rates in the Report, the Court
concludes that $100 is a reasonable rate for Jewell, Ramirez, and Robinson.
7.
Peter Safirstein's rate
Plaintiffs seek an hourly rate of $700 for Safirstein,
a partner at
Morgan & Morgan, P.A.
with more than2} years of experience. (R. 156, Polaszek Decl. at 6.) In support of the
requested rate, Plaintiffs submitted a declaration from Chris Polaszek, a partner at Morgan
&
Morgan, P.A., which includes Safirstein's biography. (ld. at 1 1.) Defendants propose an hourly
rate of $576 for Safirstein, to match Schiff Hardin partner rates. (R. 147, Defs.' Resp.
at2l.)
Defendants also submitted the Report and the Matrix in support of the proposed rate. (R. 147-2,
Ex. C, Matrix; R. 147-3, Ex. D, Report.)
Plaintiffs' evidence in support of their requested rate for Safirstein is insufficient.
Plaintiffs submit Polaszek's declaration to support the requested rate, but do not submit any
third-party affidavits or any evidence of Safirstein's fee awards in other cases. (R. 156, Polaszek
Decl. at 1 1.) Safirstein's biography states that he "primarily represents plaintiffs in securities,
39
antitrust, commodities and consumer class actions[.]" (1d.) The biography further states that
Safirstein "played a prominent role" in a number of class actions, two of which produced
settlement amounts of $500 million and $180 million. (Id.) Plaintiffs submit no further evidence
to support Safirstein's rate. Therefore, the Court concludes that Plaintiffs have not met their
burden ofjustifying the reasonableness of the requested rate, and proceeds to make its own
determination of the reasonable rute. See Pickett,644F.3d at 640.
The Matrix suggests a rate of $520 for an attorney with more than 20 years of experience.
(R.147-2, Ex. C, Matrix at 2.) However, because the Matrix calculates rates based on general
experience only, and because the Matrix rates are applied to match market rates in Washington,
D.C., and not Chicago, the Court finds the Report more persuasive here. See Obrycka, 2013 WL
1749803 at *3; Blackwellv. Kalinowsfri,No. 08C7257,2012WL469962, at *5 (N.D. Ill. Feb.
13,2012). The Report states that the average rate for all consumer law attorneys with
of l5
a median
years experience in Chicago is $430, with a 95Yomedianrate of $587. (R. 147-3, Ex. D,
Report at22.) Considering the fact that Safirstein concentrates his practice in consumer law, and
specifically in consumer class actions, and that he has more than 20 years of experience, his rate
should be reflected at the high end of the Report's figures. (R. 156, Polaszek Decl. at 11.)
Therefore, the Court finds that a reasonable rate for him should be slightly higher than
Defendants' proposed rate of $576.
Accordingly, the Court finds that $600 is
8.
a reasonable rate
for Safirstein.
Chris Polaszek's rate
Plaintiffs seek an hourly rate of $650 for Polaszek, a partner at Morgan & Morgan, P.A.
with nearly 20 years of experience. (R. 156, Polaszek Decl. at 6.) In support of the requested
rate, Plaintiffs submitted a declaration by Polaszek, which includes Polaszek's biography. (ld. at
40
12-13.) Defendants seek to reduce the rate to $558. (R. 147, Defs.' Resp.
Defendants submitted the Matrix and the Report. (R.147-2, Ex.
at2l.)
In support,
c, Matrix; R. 147-3, Ex. D,
Report.)
Plaintiffs' evidence in support of their requested rate is again lacking. Polaszek's
biography states that he concentrates his practice in class action litigation, and has "served a
prominent role in numerous class actions[.]" (R. 156, Polaszek Decl. at 12.) The biography also
provides examples of Polaszek's class actions that resulted in settlements of $30.5 million, $7
million, $13.7 million, $15 million, and $8.5 million. (/d.) However, Plaintiffs submit only
Polaszek's declaration in support of the rate. (R. 156, Polaszek Decl.) Thus, the Court
concludes that Plaintiffs have not met their burden, and the Court must determine the reasonable
rate. See Pickett, 644F.3d at 640.
It is appropriate for
a court to consider evidence of prior fee awards to an attorney
in
determining the reasonableness of a requested rate. Spegon,l75 F.3d at 557 (affirming district
court's fee award based on same hourly rate awarded two years earlier); Gibson,873 F. Supp. 2d
at 984-85 (considering prior fee award). Defendants offer evidence that less than two years ago
the district court for the Southern District of Florida determined that Polaszek's reasonable
hourly rate was $500. (R. 147, Defs.'Resp. at l8 (citingGolf Clubs Away, L.L.C. v. Hostway
Corp., No. 1l- 62326-C1V,2012WL2912709, at *4 (S.D. Fla. July 16,2012)).) Defendants'
proposed rate of $558 for Polaszek exceeds the $500 rate awarded in that case. Defendants'
proposed rate falls between the Report's median rate and 75o/o medianrate. (R. 147-3, Ex. D,
Report at 22.) Considering the fact that Polaszek concentrates his practice in class actions, and
that he has nearly 20 years of experience, the Court concludes that his rate should fall between
4l
the Report's T5Yomedianrate and 95Yomedian rate. (R. 156, Polaszek Decl. at 12; R. 147-3, Ex.
D, Report at22.)
Accordingly, the Court finds that $576 is a reasonable rate for Polaszek.
9.
Elizabeth Metcalfs rate
Plaintiffs seek a rate of $400 for Metcalf, an associate at Morgan & Morgan, P.A. with
six years of experience. (R. 156, Polaszek Decl. at 6, 15.) In support, Plaintiffs submitted a
declaration by Polaszek, which includes Metcalf s biography. (Id. at 15.) Defendants seek to
reduce Metcalf s rate to $346.50, without giving specific reasons for the reduction. (R. 147-1,
Ex. B, Charts at 3.)
Plaintiffs' evidence in support of the requested rate is insufficient. Metcalf
states that she "focuses her practice on antitrust and class action securities
other areas.
(ld.) Plaintiffs submitted only a declaration by Polaszek
s
biography
litigation," among
and Metcalf s biography to
support the rate. (R. 156, Polaszek Decl. at 15.) Thus, the Court concludes that Plaintiffs have
not met their burden, and the Court may properly "make its own determination of a reasonable
rate." Pickett, 644 F .3d at
640
. Considering
Metcalf s lack of experience, her rate should be
reflected at the low end of the Report's figures. (R. 156, Polaszek Decl. at 15.) The Report's
25o/o median rate
is $362. (R. 147-3, Ex. D, Report
at22)
Defendants' requested rate
of
$346.50 falls below the Report's25Yo median rate. (R. 147-1, Ex. B, Charts at 3.) The Matrix
suggests arate of $300 for attorneys with Metcalf s level of experience. (R.147-2, Ex. C,
Matrix.) Considering Metcalls lack of experience, and Plaintiffs' lack of evidence to support
their requested rate, the Court finds that Defendants' proposed rate of $346.50 is reasonable.
42
10.
Roger Sachar's rate
Plaintiffs seek an hourly rate of $350 for Sachar, an associate at Morgan & Morgan, P.A.
with six years of experience. (R. 156, Polaszek Decl. at 6, 16.) In support, Plaintiffs submitted
a
declaration by Polaszek, which includes Sachar's biography. (Id. at 16.) Defendants seek to
reduce Sachar's rate to $346.50, without giving specific reasons for the reduction. (R. 147-1, Ex.
B, Charts at 3.)
Plaintiffs' evidence in support of Sachar's requested rate is again lacking. Sachar's
biography states that he focuses his practice on "class action securities litigation, shareholder
derivative litigation, and consumer fraud." (R. 156, Polaszek Decl. at 16.) Because Plaintiffs
submitted only a declaration by Polaszek and Sachar's biography in support of the rate, the Court
concludes that Plaintiffs have not met their burden and proceeds to make its own determination
ofareasonablerate. SeePickett,644F.3dat640. ConsideringSachar'slackofexperience,his
rate should fall at the low end of the Report's figures. (R. 147-3, Ex. D, Report at22.) Because
Sachar's credentials are very similar to Metcalf s, and because Defendants' requested rate is
nearly identical to Plaintiffs' requested rate, the Court finds that Defendants' proposed rate of
$346.50 is reasonable.
11.
Sheila Feerick, David sclafani, and Jennifer post's rates
Plaintiffs seek hourly rates of $275 for Feerick, $250 for Sclafani, and $150 for post,
three "Professional Support Staff'employees at Morgan & Morgan, P.A. (R. 156, polaszek
Decl. at 6.) In support of the requested rates, Plaintiffs submitted a declaration by polaszek,
which includes Feerick's biography but does not include any information relating to Sclafani or
Post. (1d. at 18.) Defendants seek to reduce the rate for all three to $70 per hour. (R. 147, Defs.,
Resp. at 21.)
43
Feerick's biography states that she is the Director of Shareholder Communications, has
"nearly ten years of securities litigation experience," and earned an MBA in Finance in 2000.
(R. 156, Polaszek Decl. at 18.) In support of their requested rates, Plaintiffs assert that the
Matrix suggests an hourly rate of $ 150 for all paralegals and that Schiff Hardin billed Unilever
for work performed by similar employees at rates of $245 (paralegal), $265 (support staff
analyst), and $190 (librarian). (R. 159, Pls.' Reply at 12.) Again, Plaintiffs' evidence of Matrix
levels and that Schiff Hardin billed Unilever for similar work at similar rates is unconvincing.
The suggested Matrix rate of $150 per hour is lower than the rates Plaintiffs request for Feerick,
Sclafani, and Post. (R. 125, Miller Decl. at 3; R. 154, Miller Decl. at 3;R.147-2, Ex. C, Matrix
at
2.) Further, Plaintiffs provide no context
as to
how and why Schiff Hardin's paralegal rates
are relevant specifically to rates for Feerick, Sclafani, and Post. Thus, the Court concludes that
Plaintiffs have not met their burden, and proceeds to make its own determination of the
reasonable rates. See Pickett,644F.3d at 640.
Defendants, in support of their requested rate for these three support staff, again rely on
Blackwell and Goodale, cases where the court concluded that an appropriate rate for paralegals
in Chicago is between $75 and $100. (R. 147, Defs.'Resp. at20n.5 (citing Blackwell,2012WL
469962, at*9; Goodale,2Ol0 WL 2774013, at*4)). Defendants also point to the Report's
findings that the average hourly rate for all paralegals in Chicago in2010-201I was $123, with a
median rate of $112. (Id.;R.147-3, Ex. D, Report at22.)
As explained above, in Chorak the court ultimately awarded a law clerk with ten years
of
experience and a law degree arate of $125, and a law clerk with no law degree arate of $100.
2012 WL 157748, at
*2. Plaintiffs identify Feerick, Sclafani,
and Post as "Professional Support
Staff'employees; because Plaintiffs have produced little evidence describing their
44
responsibilities, the Court will treat them as paralegals or law clerks. (See R. 156, Polaszek
Decl. at 6, 18.) Based on Plaintiffs' evidence that Feerick has ten years of experience and an
MBA, the Court finds that $125 is a reasonable rate for Feerick. Based on Plaintiffs' lack of
evidence relating to Sclafani's and Post's experience or credentials, the Court finds that $100 is a
reasonable rate for Sclafani and Post.
12.
Richard Getty's rate
Plaintiffs seek a rate of $475 for Getty, the Principal of The Getty Law Group, PLLC.
(R. 157, Ex. A, Summary of Fees at 7.) Defendants do not object to this rate, and the Court
concludes that it is reasonable.
13.
Danielle Brown's rate
Plaintiffs seek an hourly rate of $325 for 28.3 hours, and
a rate
of $375 for 48.5
additional hours, for Brown, who is of counsel at The Getty Law Group,PLLC. (ld.)
Defendants propose a rate of $346.50 for the combined 76.8 hours, without offering specific
reasons for the proposed rate. (R. 147-1, Ex. B, Charts at 3.)
Plaintiffs do not submit any evidence in support of their requested rate for Brown, and do
not offer any justification for the difference between the requested rates for different hours
expended. Thus, Plaintiffs have not met their burden, and the Court must make its own
determination of a reasonable rate. Pickett,644 F.3d at 640. Because Plaintiffs offer no
evidence relating to Brown's level of experience or her credentials, the Matrix and the Report
lend little to the analysis of Brown's reasonable rate. Based on the lack of evidence presented by
the parties, the Court concludes that the average of the two rates is a reasonable rate for Brown.
Accordingly, the Court finds that $350 is a reasonable rate for Brown.
45
14.
Kristopher Collman's rate
Plaintiffs seek a rate of $230 for Collman, an associate at The Getty Law Group, PLLC.
(R. 157, Ex. A, Summary of Fees at 7.) Defendants do not object to this rate, and the Court
concludes that it is reasonable.
15.
Matthew English's rate
Plaintiffs seek an hourly rate of
$24
0 for 2.6 hours, and
a rate
hours, for English, an associate at The Getty Law Group, PLLC.
of
(ld.)
$27 5
for 3 .5 additional
Defendants propose a rate
of $240 for the combined 6.1 hours, without offering specific reasons for the proposed rate. (R.
147-1, Ex. B, Charts at 3.)
Plaintiffs do not submit any evidence in support of their requested rate for English, and
do not offer any justification for the difference between the requested rates for different hours
expended. Thus, Plaintiffs have not met their burden, and the Court proceeds to make its own
determination of a reasonable rate. Pickett,644 F.3d at 640. Because Plaintiffs do not offer any
evidence relating to English's level of experience or credentials, the Matrix and the Report
cannot provide support in determining English's rate. Based on the lack of evidence provided by
the parties, the Court concludes that the average of the two rates is a reasonable rate for English.
Accordingly, the Court finds that $257.50 is
16.
a reasonable rate
for English.
Evan Rice's and Ann Stithrs rates
Plaintiffs seek an hourly rate of $ 175 for Rice, a law clerk, and
$I
50 for Stith, a
paralegal, both employed at The Getty Law Group, PLLC. (R. 157, Ex. A, Summary of Fees at
7.) Defendants
seek to reduce both rates to
$70. (R. 147-1, Ex. B, Charts at 3.) Plaintiffs do not
offer any evidence relating to Rice's or Stith's experience or credentials. Thus, Plaintiffs have
not met their burden, and the Court must make its own determination of a reasonable rate.
46
Defendants, in support of their requested rate, once again cite the Northern District cases
concluding that an appropriate rate for paralegals is between $75 and $100, and the Report's
finding that the average hourly rate for all paralegals was $123, with a median rate of $112. (R.
147, Defs.' Resp. at 20 (citing
Blackwell,2012WL 469962, at*9; Goodale,2010 WL 2774013,
at*4);R.147-3, Ex. D, Report at22.) As explained above, inChorakthe court awarded a law
clerk with l0 years of experience and a law degree arate of $125, and a law clerk with no law
degree a rate of
$
100. 2012 WL 157748, at *2. Based on that decision and the lack of evidence
provided by Plaintiffs in relation to Rice's and Stith's credentials, the Court finds that $100 is a
reasonable rate for both Rice and Stith.
17.
Azra Mehdi's rate
Plaintiffs seek a rate of $775 for Mehdi, the principal of The Mehdi Firm, PC, who has
years of experience. (R. 122, Mehdi Decl. at
19
3.) In support of their requested rate, Plaintiffs
submitted a declaration by Mehdi that includes her biography. (Id. at 5-8.) Defendants suggest a
rate of $558 for Mehdi because she is less experienced and seeks a higher rate than Schiff Hardin
partners. (R. 147, Defs.' Resp. at19,21.)
Plaintiffs' evidence in support of the requested rate is again insufficient. Mehdi's
biography states that she specializes in "class action litigation in the securities, consumer fraud
and antitrust practice areas, among others." (R.122, Mehdi Decl. at
5.) Her biography
also
includes an extensive list of cases that she has litigated. (ld. at 5-7.) However, PlaintifTs offer
only Mehdi's declaration and her biography in support of her requested rate. (ld.) Plaintiffs do
47
not submit any third-party affidavits or any evidence of Medhi's fee awards in other cases.l0
Thus, the Court concludes that Plaintiffs have not their burden, and proceeds to make its own
determination of the reasonable rate for Mehdi. See Pickett,644 F.3d at 640.
The 95o/o median rate in the Report is $587. (R. 147-3, Ex. D, Report
at22)
Considering Mehdi's 19 years of experience in handling complex plaintiffs' class actions, her
rate should fall at the high end of the Report's figures. (R.122, Mehdi Decl. at 3.) Therefore,
the Court concludes that $600 is a reasonable rate for Mehdi.
18.
Gabriela Hamilton's rate
Plaintiffs seek a rate of $215 for Hamilton,
a paralegal at The
Mehdi Firm, PC. (R. 122,
Mehdi Decl. at 3.) Defendants seek to reduce the rate to $70. (R. 147-1, Ex. B, Charts at 3.)
Plaintiffs do not offer any evidence relating to Hamilton's experience or credentials, or any other
evidence to justify their requested rate. Thus, Plaintiffs have not met their burden, and therefore
the Court will make its own determination of a reasonable rate. Pickett,644 F.3d at 640.
As explained above, the Court finds that $100 is a reasonable rate for a paralegal,
particularly when no information is given regarding his or her credentials. Accordingly, the
Court concludes that $100 is a reasonable rate for Hamilton.
r0
In their reply brief, Plaintiffs cite to a Central District of California case where they claim the
court approved a "class attorney's fee award that result[ed] in Azra Medhi . . . receiving
professional fees in the amount of $725[.]" (R. 159, Pls.' Reply at 6 (citing Me. State Ret. Sys. v.
Countrywide Fin. Corp.,No.2:10-CV-00302 MRP (MANx),2013 WL 6577020,at *19 (C.D.
Cal. Dec. 5, 2013)).) In that case, however, the court granted attorney's fees in the amount of l7
percent of the gross settlement fund. Me. State Ret. Sys.,20l3 WL 6577020,at*19. The court
did not calculate attorney's fees based on the lodestar method, and therefore there was no
discussion of what the reasonable rates were for each attorney. This Court thus finds
countrywide inelevant to its determination of Medhi's reasonable rate.
48
After considering Plaintiffs' requested rates and Defendants' objections, the lodestar in
this case stands at $1,503,285.41 based on the following breakdown of reasonable hourly rates
and hours expended:
Firm
Attorney
Hourly Rate
Hours
The Law Offrce
of Jana Eisinser
Miller Law LLC
Jana Eisinger
$s20
941.25
Total per
attorney
$489,450
$6s0
42.70
$27,755
$600
I
$600
$ss8
s8.80
$32,810.40
$5s8
0.40
s223.20
$100
9.s0
$es0
$100
7.50
s750
sl00
2
$200
$600
466.s0
$279,900
$s76
945.05
$544,348.80
$346.s0
tt2.2s
$38,894.63
$346.50
9.25
$3.20s.13
$ 12s
134.50
$16,812.50
sl00
17
$1,700
sl00
14.2s
$ 1,425
s47s
30.80
$14,630
s3s0
63.80
$22.330
Miller Law LLC
Miller Law LLC
Miller Law LLC
Miller Law LLC
Miller Law LLC
Miller Law LLC
Morgan &
Morsan. P.A.
Morgan &
Morgan, P.A.
Morgan &
Morgan, P.A.
Morgan &
Morgan, P.A.
Morgan &
Morsan. P.A.
Morgan &
Morsan. P.A.
Morgan &
Morsan. P.A.
The Getty Law
Group, PLLC
The Getty Law
Group, PLLC
(Princioal)
Marvin Miller
(Attomey)
Matthew Van
Tine (Attorney)
Lori Fanning
(Attornev)
Andrew Szot
(Attorney)
Anne Jewell
(Paralegal)
Jorge Ramirez
(Law Clerk)
Dena Robinson
(Paralesal)
Peter Safirstein
(Partner)
Chris Polaszek
(Partner)
Elizabeth
Metcalf
(Attorney)
Roger Sachar
(Attomev)
Sheila Feerick
(Suooort Staffl
David Sclafani
(Support Staffl
Jennifer Post
(Support Staff)
Richard A. Getty
(Princioal)
Danielle H.
Brown (Of
Counsel)
49
The Getty Law
Group, PLLC
Kristopher D.
Collman
(Associate)
Matthew W.
English
(Associate)
Evan M. Rice
(Law Clerk)
Ann M. Stith
(Paralesal)
AzraZ. Mehdi
(Principal)
Gabriela
Hamilton
(Paraleeal)
The Getty Law
Group, PLLC
The Getty Law
Grouo. PLLC
The Mehdi Firm,
PC
The Mehdi Firm,
PC
IV.
I
s230
s2s7.s0
4.10
$1,055.75
$100
0
$0
$100
26.40
s2,640
s600
34.75
$20,850
sl00
25.25
s2,525
TOTALS
The Getty Law
Group, PLLC
$230
2948.05
$I
,503,285.4
1
Adjustment of the lodestar under Hensley
After calculating the lodestar, the Court may, in its discretion, increase or reduce the
lodestar amount by considering a variety of factors, including: the time and labor required;
whether the attorney's fee is fixed or contingent; the amount involved and the results obtained;
and the experience, reputation, and ability of the attorneys. Hensley,46l U.S. at 430 n.3.
However, there is a "strong presumption" that the lodestar amount represents the reasonable fee.
Perdue,559 U.S. at 554; City of Burlington,505 U.S. at 562. The presumption is that "the
lodestar includes most, if not all, of the relevant factors constituting a'reasonable'attorney's
fee[.]" Perdue,559 U.S. at 553 (citation omitted). Thus, "factors
subsumed in the lodestar
calculation cannot be used as a ground for increasing an award above the lodestarll" Id.at 546.
In that respect, the party seeking fees "has the burden of identifying a factor that the lodestar
does not adequately take into account and proving with specificity that an enhanced fee is
justified." Id. Although the Supreme Court'ohas never sustained
50
an enhancement of a lodestar
amount for performance," it has "repeatedly said that an enhancement may be awarded in 'rare'
and 'exceptional' circumstances." Id. at 552 (internal quotation marks and citation omitted).
Here, the total amount of Plaintiffs' lodestar is $1,503,285.41. Plaintiffs argue that their
requested fee award of $3,416,632.50 represents a "modest lodestar multiplier
126, Pls.' Mem. at
of 1.64."11
1R.
55.) Plaintiffs do not directly argue why the awarded lodestar amount should
be increased. (Id. at 54-55.) Instead, they argue that"a lodestar multiplier cross-check" further
confirms the reasonableness of their requested fee award.l2 1ld. at 54.) However, generally in
support of their requested fee award, Plaintiffs emphasize the risk of nonpayment involved in
this case, the extensive work required to litigate three class actions in different jurisdictions, and
the "positive result achieved for the Class." (ld. at 53-54.) Defendants argue that an increase
of
the lodestar is not appropriate. (R. 147, Defs.' Resp. at21-22.) Defendants contend that this
case does not
involve o'rare" or "exceptional" circumstances justifying an increase of the lodestar
because the litigation lasted less than two years and did not require an exceptional amount
of
work on the part of Plaintiffs' counsel. (Id. at22-23.) Defendants further argue that the
favorable result achieved for the Class and the "complex procedural issues" involved in the case
are factors that are "more than encompassed by a properly calculated lodestar." (ld.)
Plaintiffs' counsel litigated this case on a contingent-fee basis and thus risked
nonpayment for their efforts. (R. 126, Pls.' Mem. at 54.) However, it is well established that the
I
I
Plaintiffs calculated their lodestar multiplier value of 1.64 based on its purported lodestar
amount of $2,087,643. (R. 126, Pls.' Mem. at 55.) Based on the adjusted lodestar value of
$1,503,285.41, Plaintiffs' requested fee award of $3,416,632.50 now represents a multiplier of
2.27.
'2 In percentage-of-the-fund cases, courts sometimes conduct a "lodestar multiplier cross-check"
to further support their fee awards. See In re Trans Union Corp. Privacy Litig., No. 00 C 4729,
2009 WL 4799954, at * 17 (N.D. Ill. Dec. 9,2009) ("The purpose of a lodestar cross-check is
simply to determine whether a proposed fee award is excessive relative to the hours reportedly
worked by counsel, or whether the fee is within some reasonable multiple of the lodestar.").
51
risk of nonpayment involved in
not
justify the enhancement of
a contingent-fee case brought under a
a determined lodestar
fee-shifting statute does
amount. City of Burlington,505 U.S. at
562-65 (noting that "an enhancement for contingency would likely duplicate in substantial part
factors already subsumed in the lodestar[,]" and "concluding that no contingency enhancement
whatever is compatible with the fee-shifting statutes"). The Seventh Circuit has held that
Supreme Court authority on this issue "has been interpreted to preclude generally the use of risk
multipliers in fee-shifting cases." Florin,34 F.3d at 564. This is due in part to the fear that by
increasing a plaintiff s lodestar in a fee-shifting case based on the risk of nonpayment involved,
the "defendants would essentially be subsidizing plaintiffs' attorneys for unsuccessful lawsuits
against other defendants." Florin,34 F.3d at 565. In other words, such an increase would allow,
at the defendant's expense, a
risking
a net
plaintiff
s attorney to accept other, less meritorious cases
without
financial loss. Here, the MMA fee-shifting provision govems the Court's analysis
of Plaintiffs' fee petition, and thus based on the foregoing precedent, the Court declines to
increase
Plaintiffs' lodestar on the basis of the risk of nonpayment involved in the case.
Plaintiffs next point to the substantial settlement amount and the difficult nature of
litigating three class actions in different jurisdictions to justify an increase in the lodestar. (R.
126, Pls.' Mem. at
53.) Defendants argue that the amount recovered and the complexities of the
procedural issues are factors that are already subsumed in the lodestar calculation. (R. 147,
Defs.' Resp. at22-23.) Defendants are correct that in this District, the amount of
considered to be a factor that is subsumed in the lodestar calculation
.
a recovery is
See Warfield,733 F. Supp.
2d at 957 . Further, while this case may have involved some complex procedural issues, the
Court does not consider these to be rare or exceptional circumstances justifting an increase in
the lodestar. See Perdue, 559 U.S. at 553 ("an attorney's performance" and the "novelty and
52
complexity of a case" are presumably reflected in the attorney's billable hours and "may not be
used as a ground for an enhancement"). Thus, the Court declines to increase the lodestar on
either of those bases.
Accordingly, the Court, in its discretion, declines to increase or otherwise adjust
lodestar calculation.
V.
Plaintiffs' request for reimbursement of litigation
costs and expenses
Rule 23 provides that plaintiffs may recover reasonable nontaxable costs authorizedby
law or by the parties' agreement. Fed. R. Civ. P. 23(h). The MMA's fee-shifting provision
authorizes the prevailing party to recover reasonable costs and expenses. l5 U.S.C.
$
2310(dX2). Additionally, the parties have agreed that Unilever will pay Class Counsel for
costs incurred in connection with the prosecution of the three class action lawsuits. (R. 143, Ex.
1, Agreement at 36.)
Plaintiffs seek a total of $36,069.52 in costs and expenses. (R. 154, Miller Decl. at 3; R.
155, Eisinger Decl. at 8-9; R. 156, Polaszek Decl. at 8; R. 157, Getty Decl. at
9.) Specifically,
Miller Law LLC requests $1,054.98; The Law Office of Jana Eisinger requests $8,480.90;
Morgan & Morgan, P.A. requests$22,334.81; and The Getty Law Group, PLLC requests
$4,198.83. (R. 154, Miller Decl. at 3; R. 155, Eisinger Decl. at 8-9; R. 156, Polaszek Decl. at 8;
R. 157, Getty Decl. at 9.) Each law firm provided anitemization of all their costs and expenses.
(R. 154, Miller Decl. at 3; R. 155, Eisinger Decl. at 8-9; R. 156, Polaszek Decl. at 8; R. 157,
Getty Decl. at 9.) Defendants do not specifically object to any of Plaintiffs' claimed costs and
expenses. The Court has reviewed the requested costs and expenses and concludes that all the
charges are reasonable. Accordingly, the Court awards Plaintiffs their requested costs and
expenses. See Kurganv. Chiro One Wellness Ctrs. L.L.C., No. l0-cv-1899,2015 WL 1850599,
53
at t9 (N.D. Ill. Apr. 21,2015) (awarding plaintiffs their requested costs and expenses where
defendants did not challenge the costs and plaintiffs properly itemized the costs in the fee
petition); Iroanyahv. Bankof Am., N.l.,No. 09C94,2013 WL 268635,a1
*l
(N.D.lll.Jan.24,
2013) (awarding plaintiff his requested costs where defendant posed no objection); A.L. v. Chi.
Pub. Sch. Dist. No.
299,No.l0 C 494,2012WL3028337, at x7 Qrl.D. Ill. July 24,2012)
(same).
CONCLUSION
For the foregoing reasons, Plaintiffs' motion for attorneys' fees and costs (R. l2 t ) is
GRANTED in part and DENIED in part. The Court awards Plaintiffs attorneys' fees in the
amountof$1,503,285.41 andcostsandexpensesintheamountof$36,069.52,foratotalfee
award of $1,539,3 54.93.
ENTERED:
Chief Judge Rub6n Castillo
United States District Court
Dated: June 10,2015
54
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