Portalatin v. Blatt, Hasenmiller, Leibsker & Moore LLC et al
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 10/25/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants plaintiff's petition for attorney's fees and costs [dkt. no. 131] and awards plaintiff attorney's fees in the amount of $69,393.75 ($55,687.50 for Badwan and $13,706.25 for Wooten) and costs in the amount of $772.95. The status hearing set for 10/26/2017 is vacated. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LEIBSKER & MOORE, LLC,
Case No. 14 C 8271
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Iwona Portalatin sued Blatt, Hasenmiller, Leibsker & Moore, LLC, a law firm, and
Midland Funding, LLC, alleging they violated the Fair Debt Collection Practices Act, 15
U.S.C. § 1692i(a). Blatt filed a debt collection suit on Midland's behalf against Portalatin
in the Circuit Court of Cook County's First Municipal District—whose courthouse is in
downtown Chicago—rather than in the court's Fourth Municipal District, in which
Portalatin resided. Portalatin settled with Midland.
The Court entered summary judgment in favor of Portalatin against Blatt on the
issue of liability, overruling Blatt's contention that its violation of the FDCPA was based
on a "bona fide error" due to its reliance on legal precedent. Portalatin v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 125 F. Supp. 3d 810 (N.D. Ill. 2015). The Court
declined to stay the case pending the Seventh Circuit's en banc consideration of a case
called Oliva that also involved Blatt and the same bona fide error issue, so the case
proceeded to a jury trial on damages in November 2015.
At trial, Portalatin sought only statutory damages, asking the jury to award the
statutory maximum of $1,000. Blatt argued that the jury should award no damages.
The jury awarded Portalatin $200. The Court entered judgment in Portalatin's favor and
denied Blatt's post-trial motions in February 2016. See Portalatin v. Blatt, Hasenmiller,
Leibsker & Moore, LLC, No. 14 C 8271, 2016 WL 693208 (N.D. Ill. Feb. 20, 2016). Blatt
filed a notice of appeal in March 2016. The Seventh Circuit stayed the appeal pending
resolution of Oliva, and this Court similarly stayed the filing of Portalatin's fee petition.
In July of this year, the Seventh Circuit, sitting en banc, ruled against Blatt on the
bona fide error issue. Oliva v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 864 F.3d 492
(7th Cir. 2017). This Court then lifted the stay in the present case, and Portalatin has
filed a petition for attorney's fees and expenses, which the Court considers in this
There is no question that Portalatin is a prevailing party entitled to a fee award
under 15 U.S.C. § 1692k(a)(3). Portalatin won the case. The Court entered summary
judgment in her favor against Blatt on the issue of liability, and a jury awarded her
statutory damages, albeit less than what she requested.
Attorney's fees under the FDCPA are determined in the same way as under other
federal fee-shifting statutes, namely, by multiplying a reasonable hourly rate for the
attorney's services by the number of hours reasonably expended. See Gastineau v.
Wright, 592 F.3d 747, 748 (7th Cir. 2010) (citing Hensley v. Eckerhart, 461 U.S. 424,
433-37 (1983)). "If necessary, [a] district court has the flexibility to adjust that figure to
reflect various factors including the complexity of the legal issues involved, the degree
of success obtained, and the public interest advanced by the litigation." Id. (internal
quotation marks omitted).
Portalatin had three attorneys work on the case during the time it was pending in
this Court. The laboring oar was carried by Mohammed Badwan of Sulaiman Law
Group, Ltd. Ross Zambon, who is of counsel to Sulaiman Law Group, also performed
work on the case. Finally, Nick Wooten, an Arkansas-based attorney, came into the
case once it was set for trial and served as lead trial counsel.
Portalatin seeks to recover for 161.5 hours of Badwan's time at a rate of $375 per
hour. She seeks to recover for 64.5 hours of Wooten's time at a rate of $550 per hour;
Wooten put in another 20 hours on the case for which Portalatin does not seek to
recover fees. Finally, Zambon worked 29.4 hours and claims an hourly rate of $425, but
Portalatin has exercised "billing judgment," Spegon v. Catholic Bishop of Chi., 175 F.3d
544, 552 (7th Cir. 1999), and does not seek to recover for Zambon's time.
The total award that Portalatin requests is $96,037.50, plus costs of $772.95.
Blatt does not object to the requested cost award but argues that the requested
attorney's fees are excessive. The Court notes that records produced by Blatt at the
Court's direction during the process of briefing the petition reflect that Blatt's counsel
billed it for 173.9 hours at rates ranging from $350 per hour to $550 per hour, for a total
Portalatin has the burden of persuasion on whether the requested hourly rates
are reasonable. Hensley, 461 U.S. at 437. The Court begins with the proposed $375
hourly rate for Badwan. Badwan has been practicing law since 2009. He has had fees
approved in bankruptcy litigation at a higher rate ($425). Blatt has offered no contrary
evidence. The Court also notes that Blatt's counsel billed out at $350 per hour two
"junior associates" who appear to have somewhat less practice experience than
Badwan. In addition, the Court recently approved a $375 rate in a consumer-law case
for an attorney with a similar level of experience, finding that rate to be properly
supported with reference to rates commonly charged in this area under similar
circumstances. See Stockman v. Global Credit and Collection Corp., No. 14 C 6862,
2015 WL 4999851, at *4 (N.D. Ill. Aug. 21, 2015); Kasalo v. Trident Asset Mgmt., LLC,
No. 12 C 2900, 2015 WL 2097605, at *3 (N.D. Ill. May 3, 2015). For these reasons, the
Court finds that Portalatin has established that Badwan's requested rate of $375 is
Wooten has been practicing law since 1997. He seeks an hourly rate of $550.
His reasonable rate is appropriately higher than Badwan's given his greater level of
practice experience. But Wooten has done next to nothing to support his requested
rate. He cites no billed rates for hourly-rate-paying clients and no fee awards in other
cases. His only evidence of other specific hourly rates consists of somewhat vague and
unsupported references to rates charged by opposing counsel in other cases. This is
less than persuasive given (among other things) the absence of supporting detail. To
be sure, Wooten's requested rate is the same charged by lead defense counsel David
Hartsell for the latter part of this litigation—around the same period when Wooten was
involved—and, based on review of information on Hartsell's law firm's website, he
appears to have approximately the same amount of practice experience as Wooten.
But that is a rather thin reed on which to base an hourly rate. Wooten also cites the so-
called "Laffey Matrix," but its usefulness in determining reasonable market rates—at
least for Chicago—is suspect. See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632,
649-51 (7th Cir. 2011). This Court has declined to give it significant weight in other
cases, see, e.g., Wells v. City of Chicago, 925 F. Supp. 2d 1036, 1040 (N.D. Ill. 2013),
and Portalatin has made no effort to explain its usefulness here. With nothing more
than this and Wooten's essentially self-serving affidavit supporting his proposed rate,
the Court finds that Portalatin has not established that $550 is Wooten's reasonable
rate. The Court applies its experience in similar litigation and sets a rate of $425 for
The Sulaiman firm filed about 55 similar suits alleging violation of the FDCPA's
requirements for the venue of collection suits, 13 of them against Blatt. Blatt argues
that because of the significant legal (and, to some extent, factual) overlap among these
cases, the time spent on this one was excessive and represents duplication of effort visà-vis the other cases.
Badwan billed 36.8 hours from the outset of the lawsuit through the summary
judgment stage. During this period, Badwan drafted and filed the complaint; reviewed
Blatt's answer; prepared Rule 26(a)(1) disclosures; drafted written discovery requests;
prepared Portalatin for her deposition and attended the deposition; and attended
several status and other hearings before the Court. More significantly, Badwan
prepared not one, but two summary judgment briefs—because there were crossmotions—as well as Local Rule 56.1 statements. The Court has reviewed his time
records and finds the time spent during this period reasonable, except for a reduction of
2.1 hours for time spent in connection with Portalatin's deposition. Contrary to Blatt's
contention, the time Badwan spent preparing the summary judgment briefs and Local
Rule 56.1 statements, 11.5 hours, is quite modest and does not reflect overbilling or
effective double-billing or duplication for work done in or attributable to other cases. In
sum, the time that Badwan reasonably spent during this period is 34.7 hours.
Badwan spent 86.7 hours preparing for trial and trying the case. Blatt complains
that this is grossly excessive, but it is hard to take that too seriously. The Court granted
summary judgment in Portalatin's favor, a ruling later confirmed by the Seventh Circuit's
en banc decision in Oliva. There was only one issue left, namely what amount of
money Portalatin should recover for Blatt's violation of the FDCPA. Blatt could have
tried to settle at that point, but it expressed no interest in doing so—just as earlier, when
it rejected any effort at settlement (as was its right). Rather, Blatt consistently
expressed its intention to fight on. As the case approached trial, the Court urged Blatt
to consider an option under which it would agree to a statutory damage award in some
amount and preserve its liability and other issues for appeal. Blatt flatly rejected this
too. In doing so, Blatt's counsel made the firm's intentions clear: it hoped to persuade
the jury to award no damages and then argue that Portalatin should recover no
attorney's fees. See Nov. 19, 2015 Tr. at 3-6. 1 That strategy, we now know, was
unsuccessful, as the jury did in fact make an award of damages. Blatt also filed a flurry
of motions just before trial, to which Portalatin was required to respond. Fighting for
every last inch of ground was certainly Blatt's right, but Blatt cannot viably follow that
In this regard, the Court notes that in citing, at the final pretrial conference, another
previous case involving this same question regarding a fee award, it incorrectly
attributed the case to Hartsell's firm. See id. at 6. The Court apologizes for the error.
course and then successfully that Portalatin should have prosecuted the case more
cheaply or rolled over and played dead. See, e.g., Barrow v. Falck, 977 F.2d 1100,
1104 (7th Cir. 1992); see also City of Riverside v. Rivera, 477 U.S. 561, 581 n.11 (1986)
(a defendant "cannot litigate tenaciously and then be heard to complain about the time
necessarily spent by the plaintiff in response").
The Court also notes that time spent by Badwan preparing for trial—including
preparing the final pretrial order and responding to Blatt's eve-of-trial filings—was
reasonably comparable to that spent by Blatt. The same is true of the time spent on
post-trial motions; Badwan spent less time briefing these than defense counsel did, just
as he spent less time preparing the final pretrial order and jury instructions than defense
counsel. In sum, the Court finds reasonable the 86.7 hours Badwan spent on trial
preparation and trial and the 16.2 hours he spent on the post-trial motions. The Court
reduces by one-half, to 5.3 hours, the time requested for status conferences following
trial and during the stay period; Badwan billed 2 hours for several of these, which is
excessive. The Court also reduces by one-half, to 5.6 hours, the time spent on the fee
petition, as the time requested is excessive in light of the legal (as opposed to
clerical/compilation) work reasonably done.
In sum, the Court approves 148.5 hours of Badwan's time at $375 per hour, for a
total of $55,687.50.
Wooten's time is a different story. The Court finds persuasive Portalatin's
contention that it was reasonable to have two lawyers involved as the case neared trial,
given the need to respond to motions filed by Blatt around the same time as final
preparation for trial was taking place. In addition, Badwan, despite his significant overall
experience level, is not a member of this district's "trial bar," likely due to the fact that
virtually all consumer-law cases settle before trial. But the amount of time requested for
Wooten is excessive and unreasonable. The only issue for trial was exactly what
amount of damages, if any, to award, and this was a relatively simple and
straightforward issue, particularly given the statutory cap of $1,000. Under the
circumstances, Portalatin has not justified shifting to Blatt the cost of 64.5 hours of
Wooten's time. Given the brevity of the trial and the simplicity of the issues, the Court
reduces Wooten's requested time by one-half, to 32.25 hours, which represents the time
reasonably spent preparing for and conducting the trial. At an hourly rate of $425, the
total fee award attributable to Wooten is $13,706.25.
Blatt argues that any fee award should be reduced due to Portalatin's relative
lack of success, specifically her recovery of only a portion of the damages she sought.
The Court disagrees. It is true that the damages awarded were small, but statutory
damages under the FDCPA are capped at $1,000, meaning that even an award at the
maximum would have been small. As noted earlier, Blatt was shooting for a zero
award, and viewed through that lens Portalatin achieved a reasonable degree of
success by persuading the jury to make an award. And damages are not the only
issue: Portalatin prevailed as to liability on summary judgment, thereby establishing
that Blatt had violated the FDCPA. Finally, and perhaps most importantly, the
vindication of public rights like those established by the FDCPA and other consumer-law
statutes is not appropriately viewed simply in dollar terms. See City of Riverside v.
Rivera, 477 U.S. 561, 574 (1986); Zagorski v. Midwest Billing Servs., Inc., 128 F.3d
1164, 1167 (7th Cir. 1997). Litigation of this type serves an important public purpose of
cabining unfair activities by debt collectors, a purpose recognized by Congress in the
express findings it made when it adopted the FDCPA. 2 See 15 U.S.C. § 1692(a)-(e).
The Court declines to reduce Portalatin's fee award based on her purported "limited"
success, claimed disproportionality, or otherwise.
For the reasons stated above, the Court grants plaintiff's petition for attorney's
fees and costs [dkt. no. 131] and awards plaintiff attorney's fees in the amount of
$69,393.75 ($55,687.50 for Badwan and $13,706.25 for Wooten) and costs in the
amount of $772.95.
Date: October 25, 2017
MATTHEW F. KENNELLY
United States District Judge
The Court observes that if the case was as unimportant as Blatt suggests, it might
have been well-advised to offer a settlement at an early stage or even before the case
went to trial, as the Court suggested. By way of example, an offer of judgment of
$1,000 plus reasonable fees, or even $200 plus reasonable fees, made at or near the
outset of the case would have saved Blatt over $80,000 in its own legal fees plus almost
the entirety of the award the Court makes here.
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