Rodriguez O'Donnell Gonzalez & Williams P.C. v. Yusen Logistics (Americas) Inc.

Filing 79

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 9/12/2017: ROGW's motion for summary judgment is granted. Yusen's motion for summary judgment is denied. [For further detail see attached order.] A status hearing is set for 9/26/17 at 9:30 a.m. Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODRIGUEZ O’DONNELL GONZALEZ &
WILLIAMS, P.C. f/k/a RODRIGUEZ
O’DONNELL ROSS,
Plaintiff,
v.
YUSEN LOGISTICS (AMERICAS) INC. f/k/a
YUSEN AIR & SEA SERVICE (U.S.A.)
INCORPORATED,

No. 15 CV 3030
Judge Manish S. Shah

Defendant.
and
YUSEN LOGISTICS (AMERICAS) INC. f/k/a
YUSEN AIR & SEA SERVICE (U.S.A.)
INCORPORATED,
Counter-Plaintiff,
v.
RODRIGUEZ O’DONNELL GONZALEZ &
WILLIAMS, P.C. f/k/a RODRIGUEZ
O’DONNELL ROSS, THOMAS J.
O’DONNELL, R. KEVIN WILLIAMS,
CARLOS RODRIGUEZ, and HENRY
GONZALEZ,
Counter-Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff and counter-defendant, Rodriguez O’Donnell Gonzalez & Williams,
P.C., and defendant and counter-plaintiff, Yusen Logistics, entered into a
contingency fee agreement that governed ROGW’s representation of Yusen as a

claimant against settlement funds, which arose from a multidistrict civil antitrust
class action. Seven years after signing the agreement, Yusen terminated ROGW.
Yusen continued to receive payments from the settlement funds after it fired
ROGW, which prompted ROGW to file this action to recover its contingency fee from
the later-received payments. Yusen counterclaimed against the firm and its
lawyers, Thomas J. O’Donnell, R. Kevin Williams, Carlos Rodriguez, and Henry
Gonzalez, seeking disgorgement of the fees it had already paid ROGW on the basis
of breach of fiduciary duty. Both parties have filed motions for summary judgment.
For the following reasons, ROGW’s motion is granted and Yusen’s motion is denied.
I.

Legal Standards
Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists
if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A court must view all facts and reasonable inferences in the light most
favorable to the non-moving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735
F.3d 962, 965 (7th Cir. 2013). On cross-motions for summary judgment, a court
must draw inferences “in favor of the party against whom the motion under

2

consideration was made.” Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658
(7th Cir. 2005).
II.

Background
Beginning in 1997 or 1998, ROGW represented Yusen in a host of legal

matters ranging from tariff classifications and free trade agreements, to foreign
trade zone issues, custom penalty claims, and related regulatory matters. [62] ¶ 1.1
Yusen had ROGW on retainer from approximately 2003 to 2007 for a fixed fee of
$3,000 per month. Id. ¶¶ 2, 5; [70] ¶ 10. Pursuant to the retainer agreement, Yusen
could request legal assistance from ROGW in customs-related matters2 each month
for a limited number of hours without being billed at ROGW’s hourly rate.3 [62] ¶ 2.
In June or July 2007, Mark Hogan, Yusen’s Director in International
Operations, and his boss, Tony Kitagawa, spoke with Thomas O’Donnell about
ROGW representing Yusen in a multidistrict civil antitrust class action. [70] ¶ 10.
At that time, it was widely known within the air cargo industry (of which Yusen
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of
citations to depositions, which refer to the deposition transcript’s original page number. The
facts are largely taken from Rodriguez’s responses to Yusen’s Local Rule 56.1 statements,
[62], and Rodriguez’s responses to Yusen’s Local Rule 56.1 statements, [70], where both the
asserted fact and the opposing party’s response are set forth in one document. Any
arguments raised in the Local Rule 56.1 statements, additional facts included in responses
or replies, and statements that are unsupported by admissible evidence (or where a party
fails to follow Local Rule 56.1’s direction to cite to supporting material in the record) will be
disregarded. Only facts that are properly controverted will be considered disputed.
1

This included customs and international trade law, as well as transportation regulatory
law. [62] ¶ 2; [43-2] at 40:6–10.
2

Thomas O’Donnell, the “O” in ROGW, testified that “whatever the agreement said, the
understanding involved was we could devote three hours of time or so to any matter
without – and that would fall under the retainer. [. . .] If it was something that was going to
be 30 hours, we’d say okay, henceforth it’s going to be on an hourly basis, and we’re going to
open a separate file and bill for it.” [43-2] at 42:16–22, 43:4–7.
3

3

and ROGW were a part) that the lawsuit existed. Id. ¶ 12. The lawsuit involved
antitrust violations committed by airline carriers in the air-cargo shipping industry
through fee charges; both Hogan and O’Donnell knew that Yusen, as a frequent
purchaser of air-cargo shipping services, was a member of the putative class. Id.
¶ 11; [43-2] at 47:2–20; [59-2] at 21:2–11. After that conversation, ROGW began
representing Yusen in connection with the antitrust litigation.4 [62] ¶¶ 4–5.
Initially, O’Donnell treated his discussions with Yusen in June or July 2007 about
the antitrust litigation as covered by the 2003 retainer agreement. Id. ¶ 5. A few
months later, at a lunch with Hogan and Kitagawa, O’Donnell proposed that ROGW
represent Yusen in the antitrust litigation on a twenty-five percent contingency fee
basis. Id. ¶ 9, 11. O’Donnell, Hogan, and Kitagawa formalized the contingency fee
basis of ROGW’s representation of Yusen at that lunch meeting in October 2007.
[70] ¶ 16. A letter from O’Donnell to Hogan, dated November 2, 2007, constitutes
the written contingency fee agreement; from the face of the document, it appears
that Hogan executed it on behalf of Yusen on November 3, 2007.5 [62] ¶ 13; see also
[43-13].

The antitrust litigation is a multidistrict class action that was filed in the U.S. District
Court for the Eastern District of New York in 2007. [62] ¶ 3 (citing In re Air Cargo
Shipping Services Antitrust Litigation, Case No. 1:06-md-01775 (E.D.N.Y.)). On July 13,
2007, class counsel and Lufthansa filed a motion for preliminary approval of an $85,000,000
settlement. Id. ¶ 6. On October 26, 2007, the Magistrate Judge in the antitrust litigation
issued his report and recommendation that the parties’ motion for preliminary approval of
the Lufthansa settlement be granted. Id. ¶ 8.
4

O’Donnell says that Hogan executed the contingency fee agreement at the lunch meeting,
which occurred in November 2007, [59-1] at 110:2–21, but Hogan says that he executed it
after the lunch meeting, [59-2] at 33:7–19, 79:7–12.
5

4

Before signing the agreement, Hogan: (i) read and understood it; (ii)
discussed it with Kitagawa; (iii) expressly told Kitagawa that he understood it and
agreed with its terms; (iv) believed Kitagawa agreed to and understood its terms;
and (v) believed its terms were straightforward. [70] ¶ 20; [59-2] at 32:21–33:1,
78:17–79:6, 94:23–95:1, 96:12–21. Kitagawa did not comment on the agreement
after the lunch meeting; he simply instructed Hogan to sign it on Yusen’s behalf. Id.
¶ 18. Hogan did not find Kitagawa’s lack of further commentary odd because they
had already discussed the details with O’Donnell and he believed that the issues
were straightforward.6 Id. When Hogan signed the agreement, he understood that
Yusen was agreeing to hire ROGW on a contingency fee basis to process Yusen’s
refunds from any settlement in the antitrust litigation. Id. ¶ 17. He knew about the
Lufthansa Settlement Fund, which he did not think would yield much money for
Yusen, but he did not know there would be other settlements. [70] ¶ 34. Based on
the advice Hogan had received from O’Donnell and the information he had at the
time, Hogan thought that it seemed fair to agree to a twenty-five percent
contingency fee. [59-2] 42:3–20. Hogan did not believe he was coerced into signing
the agreement. [70] ¶ 22. One of the reasons Yusen signed the agreement, from
Hogan’s perspective, was because Yusen knew that it was not capable of filing

The “Scope of Engagement” states: “You are requesting Rodriguez O’Donnell Ross to assist
your company in obtaining the maximum possible monetary recovery for damages incurred
because of the anticompetitive activities of various airlines in fixing prices for certain fuel
surcharges, security charges, U.S. Customs surcharges, and war risk surcharges. This
includes filing appearances in the courts having jurisdiction of this matter, handling
discovery and objections thereto, filing and responding to motions, filing pleadings, and all
other matters necessary to achieve the highest monetary recovery for Yusen Air & Sea
Services.” [43-13] at 1.
6

5

claims in the antitrust litigation on its own; but that if they hired a firm to submit
claims on its behalf, it had a chance of getting some money. [59-2] 42:21–43:6.
Shortly after Hogan executed the agreement, Yusen assigned Dale Todaro7
with primary responsibility for collecting the data ROGW needed to submit claims
on Yusen’s behalf in the antitrust litigation. [70] ¶ 42; [60] at 12:22–13:20. In 2008,
Todaro discussed the contingency fee with O’Donnell and O’Donnell represented
that he believed the fee was fair and standard in the industry.8 [60] 84:15–86:6; id.
at 82:1–85:6. At the time of that conversation, Todaro did not have (and could not
have had) an understanding of how large Yusen’s claim would be in the Lufthansa
Settlement because the data was not available yet; as such, he relied on O’Donnell’s
representation. Id. at 85:3–86:19. But, Todaro also was aware that Yusen had
received hundreds of solicitations, beginning in November 2007, from third parties
seeking to submit claims on Yusen’s behalf in the antitrust litigation, and Todaro
was not aware of any solicitation that offered to perform services on an hourly basis.
Id. at 183:19–185:7, 188:8–18.
Before filing the first claim for Yusen, ROGW performed many tasks for
Yusen. [70] ¶ 44; see, e.g., [62] ¶ 7 (quashing subpoenas); id. ¶ 27 (providing forms
for Yusen to distribute to its affiliates in other countries so that they could assign
their claims to Yusen for the right to represent them in the antitrust action). In
relevant part, ROGW engaged in detailed discussions about Yusen’s cost-benefit
7

Todaro reported directly to Yusen’s President. [70] ¶ 43.

As of September 18, 2008, ROGW had not received data from Yusen to submit the claim
form against the Lufthansa Settlement, but ROGW did expect that Yusen’s claim would be
one of the larger claims submitted. [62] ¶ 24; [43-9] at 110:21–112:23.
8

6

analysis regarding its participation in the antitrust litigation. From the start,
Yusen was concerned about whether its potential recovery was worth spending the
time and effort to submit claims against the settlement fund. Yusen’s
communications with ROGW show that it was continuously seeking ROGW’s advice
and carefully considering—if not reevaluating—ROGW’s recommendations. For
example, in response to questions from Kitagawa on July 11, 2008, Rifkin explained
that Yusen could claim against the Lufthansa Settlement not only for air cargo
shipping purchases from Lufthansa, but also from other air carriers. [43-15] at 2.
Hogan asked, “[A]re any other carriers contributing to this fund? How can
Lufthansa settle for other carriers? The $85 million after lawyer fees will not cover
much from claims worldwide.” Id. at 1–2. Rifkin explained the facts, predictions,
and risks:
Lufthansa is not settling for other carriers; the civil litigation
against those carriers is still pending. [. . .] There may be
additional sources of money available in the future to satisfy
claims regarding air freight price fixing defendants other than
Lufthansa may settle with the plaintiffs and set up their own
funds to satisfy claims and/or the plaintiffs may prevail in the
pending litigation and be awarded damages, to be shared with
other claimants. At the moment, however, the only source of
funds available for claims regarding the alleged air freight price
fixing is the Lufthansa Settlement Fund. Therefore, as you
correctly point out, the Fund is not going to be sufficient to cover
all claims likely to be filed against it. Claimants are instead
going to receive proportionate shares; direct claimants will be
better off than indirect claimants, as they will have a greater
portion of the funds available to them to claim against.9

9

Yusen was a direct claimant; its customers were indirect claimants.

7

Id. at 1. Similarly, in a memorandum dated July 31, 2008, ROGW acknowledged a
concern that Yusen raised concerning whether the volume of Yusen’s shipments was
worth the effort of filing a claim against the Lufthansa Settlement. [59-4] at 5.
ROGW recommended that Yusen gather initial data to come up with a “rough”
dollar amount of its shipment purchases, which ROGW could examine and discuss
with Yusen in its upcoming meeting. Id. ROGW also outlined the more detailed
data it would need from Yusen in order to proceed with filing a claim.10 Id.
After ROGW filed the first claim, and throughout the attorney-client
relationship, Jessica Rifkin from ROGW frequently communicated with Yusen’s
Todaro about the status of Yusen’s claims, requests for supporting data, updates
from the claims administrator and class counsel regarding the settlement funds,
and any predictions or risks of which ROGW was aware.11 See, e.g., [44-22], [44-23],
[44-24]. For example, when a second settlement was in its preliminary stages,
Rifkin emailed Yusen on July 15, 2010, to request that Yusen continue to preserve
See also ROGW’s September 15, 2008 memorandum confirming that it had considered
Yusen’s proposal to file claims, but to not affirmatively notify Yusen’s customers of the
settlement, and to only comply with customers’ requests if they ask Yusen for help with
filing claims or for a share of the funds Yusen ultimately receives. [59-4] at 9. The
memorandum explains ROGW’s assessment of Yusen’s potential liability under this
proposed approach and confirms that ROGW is “comfortable with proceeding as [Yusen
has] suggested.” Id. Notably, the memorandum also stated: “[W]e estimate that the
Lufthansa Indirect Purchasers Settlement Fund has about $16 million [. . .]. The amount of
any such refunds to Yusen’s customers is unknown at this time, but [. . .], the amount of
any refund to a particular shipper probably would be quite small.” Id. at 10.
10

Despite these communications, Rifkin did not tell Todaro that ROGW was sending to
other clients, who were also claimants, the same notifications about the ongoing status of
the antitrust litigation. [62] ¶ 61. Nor did Rifkin tell Todaro that the documentation the
class administrator required of Yusen was the same as it required of Rifkin’s and ROGW’s
other client (another claimant). Id. ¶ 34. But, the parties dispute whether Yusen knew that
ROGW represented other claimants in the antitrust class action. Compare id. at 36 ¶ 3 with
[43-5] at 31:6–32:13.
11

8

data and relevant documents for claiming against the Lufthansa Settlement
because “[ROGW] believe[s] that these data and documents will be substantially the
same as those which will be needed to file a claim against the [Settlement 2] Fund.”
[43-20] at 1. When eight other airlines established their own settlement fund worth
$193.43 million, Rifkin emailed Todaro and others on March 31, 2011, to notify
them of that fact and that ROGW would send a memorandum describing the
requirements for filing claims against Settlement 2 by the deadline of July 26, 2011.
[43-26] at 1–2. Finally, when Settlement 3’s notice made it “explicitly clear that if
you have already filed a claim against [. . .] Settlement 2, you need not file another
claim against [. . .] Settlement 3 to recover from this fund,” Rifkin emailed Todaro
on March 20, 2012, to inform Yusen of that fact and that the claims administrator
“will use the data that you have already provided in connection with [. . .]
Settlement 2 to calculate your recovery from [. . .] Settlement 3.”12 [44-9] at 1–2.
ROGW made clear to Yusen that when ROGW was assessing a risk or stating
a prediction, that information was not guaranteed to happen; it was uncertain. For
example, on January 11, 2013, Rifkin emailed Todaro stating: “While it is
impossible to predict the amount which Yusen will receive from Air Cargo
Settlement 3 with any certainty at this time, we believe that Yusen’s recovery from
Air Cargo Settlement 3 is likely to be at least equal to, if not greater than its

From this email, Todaro understood that no further substantive work would need to be
done by Yusen or by ROGW for Settlement 3. [70] ¶ 65; [60] at 204:22–205:16. He informed
Yusen’s president and Executive Vice President that they would not need to do “so much
work anymore.”12 [60] at 207:14–208:14. In fact, ROGW did not submit a claim on behalf of
Yusen against Settlement 3. [62] ¶ 46.
12

9

recovery from Air Cargo Settlement 2.” [44-11] at 1.13 Significantly, ROGW also
described to Yusen what factors it was basing its conclusions on so that Yusen was
able to consider the same and decide for themselves. For example, on July 21, 2011,
O’Donnell informed Todaro that ROGW believed that Yusen’s recovery against
Settlement 2 and any subsequent settlement funds “could be substantially higher,
given the fact that at the present time the amount to be distributed in [. . .]
Settlement 2 is approximately three times that of the Lufthansa Settlement Fund,
and that (unlike the Lufthansa Settlement Fund) indirect purchasers may not claim
against [. . .] Settlement 2 and other subsequent funds.” [43-31] at 1.
When Yusen raised an issue, ROGW responded with analysis and action. On
December 2, 2011, Todaro raised the issue that Yusen had not notified the court
about its ownership interest in an affiliate of one of the antitrust litigation
defendants, which could make Yusen ineligible to receive settlement funds. [44-1] at
1. Before Yusen had reached a final decision to abandon the antitrust litigation
effort, it gave ROGW permission to look into the affiliate issue.14 [59-1] at 33:4–34:7.
With ROGW’s help, Yusen returned the initial payment it had received from the
Lufthansa Settlement to the claims administrator pending resolution of the affiliate
issue. [70] ¶ 62. On March 16, 2012, ROGW sent a letter to the claims administrator
in the antitrust class action, representing that Yusen was not an affiliate of one of
the defendants in that action, and arguing that Yusen should not be barred from

Todaro forwarded that message to “President Ishizukasan” and highlighted the quoted
language above. [44-11] at 1.
13

14

Yusen disputes that it was going to abandon the antitrust litigation effort.

10

recovering from the Lufthansa Settlement. [62] ¶ 41; [44-4] at 1–9. In the
alternative, if the claims administrator found that Yusen was an affiliate, ROGW
noted that Yusen was only an “affiliate” for part of the class period and should be
able to participate on a pro rata basis for the time period when it was not an
“affiliate” of one of the defendants. [44-4] at 6 n.1. ROGW did not cite any authority
to support its argument (and when Rifkin was asked if she was aware of any
supporting authority at the time, she said “I don’t think so. I don’t remember at this
point.”). Id.; [43-9] at 176:20–177:14. Ultimately, the claims administrator
concluded that Yusen qualified as a class member before the acquisition date, but
was excluded from the class definition as an affiliate of a defendant after the
acquisition date, and it cited the In Re Records and Tapes Antitrust Litigation case
for

support.15

Id.

¶ 42;

[43-3]

at

21:1–11.

Pursuant

to

class

counsel’s

recommendation to file amended claims consistent with the March 16, 2012 letter,
ROGW filed amended claims on behalf of Yusen for the Lufthansa Settlement and
for Settlement 2. [62] ¶¶ 43–44.
By October 2014, Yusen knew that Settlement 4 had been approved. [70]
¶ 77. Around the same time, Yusen requested to proceed with ROGW’s services on
an hourly basis instead of on a contingency fee basis in that action; but, ROGW
rejected that request. [62] ¶ 52. Upon advice from Tom Lewis, Yusen’s in-house
Class counsel identified the In Re Records and Tapes Antitrust Litigation case for the
court; ROGW never brought that case to class counsel’s attention at any time. [43-3] at
21:17–22, 22:11–16. Rifkin believed that the only reason Yusen recovered monies from the
settlement funds was because of the letter that ROGW submitted on Yusen’s behalf, which
convinced the claims administrator that Yusen should not be excluded from being a class
member for most of the class period. [70] ¶ 61; [59-5] at 58:6–16.
15

11

counsel, Yusen terminated the contingency fee agreement with ROGW on October
13, 2014. [70] ¶¶ 70, 73; [60] at 147:12–20.
On or before December 30, 2014, Yusen hired the firm Baker & Hosteller LLP
to file a claim on its behalf against Settlement 4. [44-14] at 3. Approximately one
year later, Baker submitted that claim; it contained data that Yusen had not
previously submitted in its claim against Settlement 2.16 [62] ¶ 54. Yusen received
$1,314,886.79 for Settlement 4 in May 2016. Id. ¶ 55. Settlement 5, which is worth
approximately $387.5 million, has been approved, but the amounts that Yusen and
other claimants will be paid have not been determined yet. Id. ¶ 56.
Yusen received the following from the antitrust litigation: (1) $287,057.83
from the Lufthansa Settlement; (2) $785,153.40 from Settlement 2, plus an
additional $66,318.75 in a subsequent distribution in Settlement 2; (3) $776,605.70
from Settlement 3; (4) $1,314,886.79 from Settlement 4; and (5) $1,606,043.30 from
supplemental funds in Settlements 2, 3, and 4 since filing this action. [62] ¶ 55; [70]
¶¶ 32–33. To date, Yusen has paid ROGW approximately $478,783.90 pursuant to
the contingency fee agreement.17 [62] ¶ 62. But, Yusen has not made any additional
payments to ROGW since Yusen terminated the contingency fee agreement in
October 2014. [70] ¶ 94.

A paralegal at Baker collected data from Yusen and prepared an amended claim form,
schedules, and correspondence to the claims administrator for the submission of that
amended claim form. [62] ¶ 54. Baker Hostetler billed Yusen a total of $6,356.25 for its
work on that amended claim. Id.
16

Contemporaneously, Yusen approved the payment of ROGW’s contingency fee with
regards to the Lufthansa Settlement, Settlement 2, and Settlement 3. [70] ¶ 56.
17

12

III.

Analysis
A.

Timeliness of Yusen’s Counterclaim

Yusen’s counterclaim alleges that ROGW breached its fiduciary duty to
Yusen by collecting an excessive fee. Yusen’s theory of the case is that the
contingency fee agreement described a broad range of legal tasks that ROGW would
perform for Yusen in the antitrust litigation, but that ROGW only performed
perfunctory work to submit claims against the settlement funds, and that as a
result, taking twenty-five percent of the moneys Yusen recovered is excessive.
A plaintiff must bring an action against an attorney that arises out of an act
or omission in the performance of professional services within two years from the
time the plaintiff knew or reasonably should have known of the injury. 735 ILCS
5/13-214.3(b). According to ROGW, Yusen should have known of its injuries from
the alleged minimal work ROGW performed by March 2012, when the claims
administrator determined it would use data from Settlement 2 to determine the
remaining claims in Settlements 3, 4, and 5. Since Yusen did not file its
counterclaim by March 2014, ROGW concludes that § 214.3(b) bars Yusen’s breach
of fiduciary duty counterclaim.18 Yusen does not dispute that § 214.3(b) applies, but
instead argues that ROGW has not come forward with evidence that would support
an accrual date for Yusen’s counterclaim that would render it time-barred as a
matter of law. Yusen says it could not have known whether ROGW breached its
At the motion to dismiss stage, ROGW offered February 2009 as the date by which Yusen
should have realized its injuries because that is when the claims to the first settlement
were due. See [18] at 11; Rodriguez O’Donnell Gonzalez & Williams, P.C. v. Yusen Logistics
(Americas) Inc., No. 15 CV 3030, 2016 WL 427570, at *8 n.11 (N.D. Ill. Feb. 4, 2016).
18

13

duty not to collect a reasonable fee until after Yusen paid ROGW for Settlement 3 in
October 2013, because that is when Yusen was able to assess the total amount of its
recovery versus the nature and total amount of work performed by ROGW.
A cause of action accrues when the facts that authorize bringing the cause of
action exist. Henderson Square Condo. Ass’n v. LAB Townhomes, LLC, 399 Ill.Dec.
387, 402, opinion modified on denial of reh’g (Jan. 28, 2016). Based on the
undisputed record, Yusen had knowledge of facts that support its theory by March
2012. First, Yusen knew that it would have to pay ROGW twenty-five percent of its
recovery in the antitrust litigation as early as November 3, 2007, when it executed
the contingency fee agreement. Yusen reaffirmed the contingency fee agreement at
least twice during its attorney-client relationship with ROGW. See [70] ¶ 52; [43-26]
at 1.
Second, Yusen knew what tasks ROGW was and was not performing in
submitting claims against the settlement funds, and Yusen knew what work it was
doing itself, in furtherance of submitting a claim, as of March 20, 2012. By that
time, ROGW had already submitted claims for Yusen against two funds, which
involved ROGW and Yusen monitoring each other’s progress as well as providing
each other updates. In a series of emails on June 7 and 8, 2011, about Yusen’s
status in collecting data for ROGW for Settlement 2, Todaro expressed confusion—
Todaro thought that O’Donnell already had the information ROGW needed to file a
claim against Settlement 2, [43-28] at 2–3; and Todaro was simultaneously unsure
of how ROGW could have had enough data, because Yusen had only given ROGW

14

data for one airline. Id. at 2. This suggests that Yusen was content to have ROGW
submit a new claim on its behalf based on previously collected data for one airline,
even though it knew that more data existed. Ultimately, it was not until Settlement
3 that previously collected and submitted data would be used to the exclusion of all
new data. To file a claim on Yusen’s behalf against Settlement 2, ROGW needed
additional data from Yusen beyond what Yusen had already provided to claim
against the Lufthansa Settlement. See id. at 1–2.
ROGW’s email in response to Todaro stated, in relevant part, “While I wish
that we could simply use the data that Yusen has already provided to us and
prepare Yusen’s claim against [. . .] Settlement 2, unfortunately, it is impossible for
us to do so. Therefore, we will need data from Yusen to file this next claim.” Id. at 1.
The message also described the format that Yusen should use to submit data for
Settlement 2. Id. at 1–2. Yusen clearly understood ROGW’s directive because
Yusen’s IT department went on to collect additional data, which Todaro later
forwarded to Rifkin, thereby allowing ROGW to submit a claim on Yusen’s behalf
for Settlement 2. [62] ¶ 38. Moreover, on March 20, 2012, ROGW informed Yusen
that the data they had used to file a claim against Settlement 2 would be used in
Settlement 3, such that no further work would need to be done in order for Yusen to
recover from Settlement 3. There is nothing in the record that shows Yusen
objecting to that strategy.
Finally, Yusen argues that its counterclaim is not barred under 735 ILCS
5/13-207. Section 13-207 saves counterclaims from being time-barred if the primary

15

cause of action, to which the counterclaim responds, commences before the
counterclaim would have become time-barred. Barragan v. Casco Design Corp., 216
Ill.2d 435, 449 n.4 (2005) (citing 735 ILCS 5/13-207). In this case, Yusen’s
counterclaim became time-barred as of March 20, 2014, which was before ROGW
filed its complaint (the primary cause of action) in DuPage County on March 6,
2015, see [1-1] at 2; thus, § 13-207 cannot save Yusen’s counterclaim.19 The
counterclaim is barred by the statute of limitations. The parties have fully briefed
the merits of the counterclaim, and I address them in the interests of completeness.
B.

Breach of Fiduciary Duty
1.

Presumption of Undue Influence

Yusen argues that the presumption of undue influence applies since it had
ROGW on retainer for almost a decade before it signed the contingency fee
agreement. When a previously retained attorney enters into a transaction with a
client, it is presumed that the attorney exercised undue influence. In re Marriage of
Pagano, 154 Ill.2d 174, 185 (1992). The attorney can rebut that presumption by a
showing of clear and convincing evidence. Id. A variety of factors help a court
determine whether the attorney has overcome that presumption, including whether:
(1) the attorney fully disclosed all relevant information, (2) the client’s agreement
was based on adequate consideration, (3) the client had independent advice before
I do not reach ROGW’s argument that under Illinois law, a rebuttable presumption arises
that a party waives any claim of undue influence or of fraud in the inducement of an
agreement when it accepts the benefits of the contract for three years. See Maksym v.
Loesch, 937 F.2d 1237, 1244–45 (7th Cir. 1991). In any event, as Yusen asserts, reliance on
this authority is inapposite; Yusen’s counterclaim alleges a breach of fiduciary duty, not
undue influence or fraudulent inducement.
19

16

completing the transaction, and (4) the client had a full understanding of all the
acts and their legal importance. Id. at 186.
ROGW points to evidence in the undisputed record that Yusen and ROGW
met and discussed the terms of their relationship before signing the contingency fee
agreement. Specifically, Hogan read and understood the agreement before he signed
it, and he discussed it with Kitagawa, who Hogan believed understood it as well.
Hogan also said that he did not feel coerced into signing the agreement, and that
based on the information he had at the time, he thought the agreement was fair.
But, Yusen argues that the agreement was not the product of informed consent
because ROGW knowingly misstated the scope of its engagement in the agreement
and failed to advise Yusen of this fact. To support this argument, Yusen notes that
ROGW only filed one document in the antitrust litigation, an Appearance; it
otherwise performed administrative work, which it was simultaneously performing
for other clients, and it did nothing to secure the actual settlements.
Evidence of what work ROGW performed ex post is not decisive evidence of
what work ROGW was agreeing to do or what work ROGW believed it would do ex
ante. The record does not support a finding that ROGW knew it would not handle
any discovery matters or file any pleadings in the antitrust litigation. There is no
evidence in the record that ROGW knowingly misstated the work it would perform
for Yusen in the agreement or that it intentionally failed to disclose facts about the
scope of engagement to Yusen. To the contrary, the record shows significant
uncertainty as to how the antitrust litigation would unfold and as to what work

17

would be required—how many settlement funds there would be, how many
claimants, what type of claimants, how claims would be submitted, how claims
would be supported, how great the recovery, and the like. Amidst this uncertainty,
the record shows that Yusen and ROGW discussed how to proceed in their attorneyclient relationship with respect to this litigation.
From there, the record shows ROGW working alongside Yusen to cull the
necessary data, ROGW reviewing the data and submitting it along with the claim
forms, ROGW communicating with Yusen frequently and providing updates, ROGW
communicating with class counsel about requirements and procedures, ROGW
assessing Yusen’s potential liability for choosing to not affirmatively inform its
customers about their claims against the settlement funds, and ROGW strategizing
with Yusen about whether to proceed with the antitrust litigation in the face of the
affiliate issue. While not all of those acts fall within the scope of traditional
litigation tasks, they do fall under the agreement’s broader category of “all other
matters necessary to achieve the highest monetary recovery for Yusen.” See [43-13]
at 1. Some of those tasks were administrative and some involved work that ROGW
simultaneously performed for Yusen and for other clients, but other tasks entailed
legal analysis or strategy that was specific to Yusen.
ROGW did not advise Yusen to review the contingency fee agreement with
independent counsel, but Yusen received hundreds of solicitations from other firms
to represent Yusen on a contingency fee basis in submitting claims against the
settlement funds, which gave Yusen some indication that it had options beyond

18

ROGW in pursuing its legal rights in the antitrust litigation. The absence of
evidence of independent counsel, compared to the evidence that Yusen considered
the agreement before signing it and that Yusen reportedly understood it before
signing it, is not enough to warrant the presumption here. ROGW provided clear
and convincing (and, most importantly at summary judgment, undisputed) evidence
that Yusen was not unduly influenced when it signed the contingency fee
agreement.
2.

Collection of an Excessive Fee

Yusen maintains that ROGW breached its fiduciary duty to not collect an
excessive fee. The reasonableness of a contingency fee agreement is always subject
to court supervision. In re Teichner, 104 Ill.2d 150, 161 (1984). In other words, a
contingency fee agreement may be valid upon formation, but a court may later deem
it invalid pursuant to the court’s duty to prevent the collection of an excessive fee.
In re Doyle, 144 Ill.2d 451, 463 (1991). The attorney bears the burden of proving
that his fee is reasonable; and courts construe contingency fee agreements against
the drafting attorney. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
One measure of a contingency fee agreement’s reasonableness is how it
compares to the prevailing market rate. Goesel v. Boley Int’l (H.K.) Ltd., 806 F.3d
414, 420 (7th Cir. 2015) (applying Illinois law). “[T]his inquiry can take the form of
a side-by-side comparison between the fee ultimately recovered and the lodestar.”
Id. The “lodestar” represents the reasonable number of hours expended on the
litigation, multiplied by a reasonable hourly rate. Id. A second measure of a

19

contingency fee agreement’s reasonableness takes into consideration the factors
outlined in the Illinois prohibition on unreasonable fees, Illinois Rule of Professional
Conduct 1.5(a):
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly; (2) the likelihood, if apparent to the client, that
the acceptance of the particular employment will preclude other
employment by the lawyer; (3) the fee customarily charged in
the locality for similar legal services; (4) the amount involved
and the results obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and length of the
professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the
services; and (8) whether the fee is fixed or contingent.”
See Ill. R. Prof. Conduct R. 1.5(a).
ROGW’s position is that the lodestar has no application in this case because
“[t]o allow otherwise would forever moot an attorney’s right to enforce a contingency
fee agreement that, like here, [. . .] resulted in million dollars [sic] of recovery and
savings to the client.”20 See [66] at 10. This argument is unfounded; the lodestar is
one data point that courts consider in determining the reasonableness of an
attorney’s fee. See Goesel, 806 F.3d at 420. Yusen argues that ROGW cannot
establish the reasonableness of its fees through the lodestar method because ROGW
included inflated and improper entries in its bills for work it performed for Yusen
and for other clients. Additionally, Yusen asserts that comparing the contingency
fee to the product of hours worked by ROGW lawyers and those lawyers’ hourly

ROGW also argues that Yusen waived its argument concerning the lodestar method
because it did not affirmatively raise it; but ROGW cites no authority for this proposition.
20

20

rates yields a contingency fee that would reflect a high multiple (between 1.8 and
4.7) of ROGW’s regular hourly rates. See [42] at 10; [62] ¶¶ 57–58.
There are several issues concerning the accuracy of Yusen’s “multiple”
calculation. First, Yusen represented that it based its calculation on a report that
one of ROGW’s attorneys, Robert Williams, generated in May 2015 using ROGW’s
historical billing records. [62] ¶ 57. Second, the report calculated a “realization rate”
for all of the work ROGW performed for Yusen in the antitrust litigation of
$341,652.80. Id. Williams explained that the “realization rate” was the quotient of
the amount ROGW collected and the hours an attorney worked. [43-7] at 17:5–11
(“So if someone’s standard billing rate was – say it’s a contingent matter. Standard
billing rate was $300 an hour. They had worked one hour on the matter but
collected $600. The system would generate $600 as their rate. Simply just collected
monies divided by the hours.”). Third, Yusen calculated three different contingency
fee multiples—(1) using the report’s total “realization rate” ($341,652.80) yields a
1.8 multiple over ROGW’s regular hourly rates; (2) using all of the fees that ROGW
already recovered from Yusen ($478,783.90) yields a 2.5 multiple over ROGW’s
regular hourly rates; and (3) combining all of the fees ROGW has already recovered
with all other payments Yusen has received to date ($953,083.85) yields a 4.7
multiple over ROGW’s regular hourly rate—but, Yusen does not explain how it
calculated ROGW’s regular hourly rate. [62] ¶ 58.
ROGW takes issue with Yusen’s reliance on the data from Williams’s report;
ROGW argues that its attorneys did not record the time they worked for Yusen in

21

the antitrust action “meticulously” because they knew they were operating under a
contingency fee agreement, which meant they were not charging the client by the
hour. See id. ¶ 57. Yet, ROGW does not offer an alternative approach to calculating
the lodestar; it simply points to evidence in the undisputed record that Yusen
received hundreds of solicitations from firms to submit claims on Yusen’s behalf in
the antitrust litigation on a contingency fee basis. Those solicitations could serve as
evidence of the prevailing market rate in the air cargo industry, but details of those
contingency fee rates are not in the record.
In any event, accepting Yusen’s calculation that ROGW’s requested
contingency fee is a 4.8 multiple over ROGW’s regular hourly rate does not lead to
the conclusion that that fee is unreasonable as a matter of law. Yusen cites no
authority for a rule that a high multiple is necessarily unreasonable, and the
context here shows that a contingency percentage is the market rate (so looking
simply at the multiple of the lodestar is not a market-based approach to
reasonableness). See, e.g., Williams v. Rohm & Haas Pension Plan, 658 F.3d 629,
636 (7th Cir. 2011) (“percentage awards in these cases were consistent with the
declarations, proffered by Class counsel, that reported the market rate for ERISA
class action attorney’s fees is a contingency fee between 25% and 33%”);
Blankenship v. Dialist Int’l Corp., 209 Ill.App.3d 920, 927 (1991) (finding the
contingency fee contract of 33 ⅓% was “normal” in the relevant community).
For over seven years, ROGW represented Yusen in the antitrust litigation
while assuming the risk that it would not be paid in exchange for its work. See

22

Hensley, 461 U.S. at 448 (“Attorneys who take cases on contingency, thus deferring
payment of their fees until the case has ended and taking upon themselves the risk
that they will receive no payment at all, generally receive far more in winning cases
than they would if they charged an hourly rate.”). The uncertainty of recovery was a
real risk here; Yusen’s success in the antitrust litigation depended on a number of
factors: the number of claimants, eligibility to submit claims, ability to support
claims, and the like.
In the antitrust litigation, the court approved fees for class counsel at the
following rates: fifteen percent in the Lufthansa Settlement; twenty-five percent in
Settlements 2 and 3, except for certain opt-out funds where class counsel were
awarded twenty percent; and twenty-two percent in Settlement 4. [62] ¶ 63. Those
fee percentages were divided amongst the law firms that served as class counsel. Id.
Notwithstanding the different types of work performed by ROGW and class counsel,
the fact that ROGW’s percentage was higher than that of class counsel does not
make the contingency fee unreasonable because ROGW drew from a smaller pool of
money than did class counsel. In other words, ROGW was only entitled to twentyfive percent of Yusen’s recovery, whereas class counsel was entitled to fifteen to
twenty-two percent (depending on the fund) of the entire class’s recovery. ROGW’s
percentage was within a reasonable realm of contingency fee arrangements in this
type of litigation.
Considering the factors in Rule 1.5(a) has some utility here. The record is
silent on many of the factors, but where the parties have marshaled evidence, the

23

factors demonstrate the reasonableness of the fee arrangement.21 Yusen received
other contingency-fee based solicitations, and this indicates that such arrangements
are customary. Although ROGW’s seven-year representation of Yusen did not
require continuous labor, there were periods of time where ROGW devoted
considerable time and attention to pursuing Yusen’s recovery against the
settlement funds. Yusen attempts to diminish the time and labor ROGW spent by
noting that ROGW was able to use some of the work it did for other clients in
Yusen’s case and that much of ROGW’s work was administrative. Yusen has not
produced evidence of the amount of work ROGW did for the benefit of multiple
clients, and there is no evidence that any efficiency ROGW achieved caused a
disproportionate fee to be extracted from Yusen. Moreover, Yusen’s characterization
of ROGW’s work as administrative is undermined by Hogan’s admission that Yusen
could not have done the work itself, and by evidence in the record that ROGW did
more than merely reformat data provided by Yusen into claim forms. The amount
involved in the antitrust litigation revealed itself over time to be significant, as was
Yusen’s recovery. Based on the record, ROGW can take credit for much of that
reward. Finally, the fee was contingent, but the record shows that that was the
norm for Yusen in the antitrust litigation.

ROGW does not believe that Rule 1.5(a) applies to this action because the contingency fee
agreement was reached three years before that version of the rule came into effect. As
Yusen notes, however, the factors regarding the reasonableness of an attorney fee in Rule
1.5(a) were left unchanged in 2010. See In re Estate of Sass, 246 Ill.App.3d 610, 614–15
(1993). Rule 1.5(a) applies to this case.

21

24

The crux of Yusen’s argument is that to give ROGW twenty-five percent of all
the monies Yusen recovered from the antitrust litigation would result in a windfall
to ROGW because ROGW bore little risk of non-payment for its work in that action.
To support its position, Yusen asserts that: (1) the Lufthansa Settlement had been
reached before ROGW filed an Appearance in the antitrust litigation; (2) ROGW
believed Yusen’s recovery would be substantial; (3) ROGW did no work to procure
any settlements; (4) ROGW performed administrative work to submit claims on
Yusen’s behalf only in the first two settlements; and (5) ROGW overstates its
contribution to the resolution of the affiliate issue. The undisputed record, however,
tells a different story. It shows that the Magistrate Judge in the antitrust litigation
issued a report and recommendation that the parties’ motion for preliminary
approval of the Lufthansa Settlement be granted before the parties signed the
contingency fee agreement; not that the settlement was reached or that all risk of
Yusen’s recovery had been eliminated by that point. Similarly, the record shows
that ROGW informed Yusen that its claim was likely to be one of the largest claims
submitted in the Lufthansa Settlement,22 not that ROGW believed or knew that
Yusen would receive a substantial recovery from that settlement or future
settlements. Yusen’s point that ROGW did not procure settlements is irrelevant; as
the record shows, Yusen hired ROGW to help Yusen recover against the settlement

Prompted by questions from Kitagawa, Rifkin explained over email: “We expect that
Yusen’s claim against the [Lufthansa] Fund is likely to [be] one of the larger claims
submitted, which will raise the likelihood of an audit. Therefore, it is important that all
documentation supporting Yusen’s claim is complete and accurate.” [43-15] at 2.
22

25

fund(s), not to negotiate the settlements themselves; and ROGW delivered on that
promise.23
The record does not show that ROGW only (or mostly) performed
administrative work; it shows that ROGW did work that Yusen could not have done
itself, such as consulting with class counsel regarding claim submission
requirements and facilitating Yusen’s recovery against several settlement funds
through submissions of claim forms. That the claims administrator decided to rely
on data from Settlement 2 to determine Yusen’s recovery for future settlements was
not known to ROGW until 2012; thus, the fact that ROGW only had to perform new
work in the first two settlement funds in order for Yusen to recover was out of
ROGW’s control.
Finally, to the same extent that ROGW overstates its contribution to the
resolution of the affiliate issue, Yusen understates it. The record shows that Yusen
wanted to return the moneys it had recovered from the Lufthansa Settlement and
seek the court’s guidance in the antitrust litigation. ROGW complied with its
client’s request by returning the money and seeking the court’s guidance. In so
doing, and with Yusen’s permission, ROGW made the case for Yusen’s entitlement
to recover from the funds. ROGW raised an alternative argument about Yusen
recovering on a pro rata basis; ROGW did not support that argument with a citation
to a legal authority. In turn, class counsel provided supportive authority for
ROGW’s alternative argument and the claims administrator ultimately cited that

23

Yusen knew that ROGW was not class counsel. [43-1] at 94:4–13.

26

authority in deciding to permit Yusen to recover from the Lufthansa Settlement on
a pro rata basis. That decision allowed Yusen to recover from future settlements as
well.24 In other words, without ROGW’s alternative argument and the supporting
authority class counsel provided, Yusen likely would not have recovered from any of
the settlement funds. In sum, ROGW performed work that the claims administrator
required to ensure Yusen’s recovery from the settlement funds. A twenty-five
percent contingency fee for that work is not unreasonable.25
C.

Quantum Meruit

ROGW’s quantum meruit claim is based on ROGW’s theory that the only
reason Yusen is entitled to collect from the settlement funds is because of the work
ROGW performed for Yusen in submitting claims for the Lufthansa Settlement and
for Settlement 2. [1-1] ¶¶ 45–49. As such, ROGW believes it is entitled to recover
twenty-five percent of the amounts Yusen received from the settlements.26 See [58]
at 6. Yusen has already paid ROGW approximately $478,783.90, pursuant to the
contingency fee agreement; but Yusen has not made any payments to ROGW since
Yusen terminated ROGW in October 2014, even though Yusen has received (and
will receive) additional payments through Settlements 4 and 5, as well as

See [59-6] at 18 (Rifkin explaining that Yusen is eligible to claim against Settlements 2
and 3, subject to the same exclusion it faced in the Lufthansa Settlement).
24

Since I conclude that the fee was not excessive or unreasonable, the statutes of
limitations and repose were not tolled, and equitable estoppel does not apply to stop ROGW
from asserting a limitations defense. And I do not reach Yusen’s arguments about joint and
several liability.
25

Consistent with the basic principles of quantum meruit, I understand ROGW’s argument
to be that it is entitled to receive twenty-five percent of the amount Yusen received from the
settlements, based on ROGW’s work, and for which ROGW has not been paid.
26

27

supplemental funds in Settlements 2, 3, and 4 since filing this action. Consequently,
ROGW seeks twenty-five percent of Yusen’s later-received payments.
When a client terminates its attorney and the parties are subject to a
contingent fee agreement, the agreement simply becomes void and the contingency
term becomes unenforceable. Will v. Nw. Univ., 378 Ill.App.3d 280, 303 (2007). An
attorney who provided services on a contingency fee basis, but who the client
eventually fires, is entitled to be paid a reasonable fee on a quantum meruit basis
for services rendered before the termination. Id. at 304. This equitable remedy
exists to prevent perverse incentives for clients. Quantum meruit is based on the
implied promise of a recipient of services to pay for those services, otherwise the
recipient would be unjustly enriched. Much Shelist Freed Denenberg & Ament, P.C.
v. Lison, 297 Ill.App.3d 375, 379 (1998). An attorney’s action for a quantum meruit
fee accrues immediately after termination. Id.
There are four elements to a quantum meruit claim; the attorney must show
that: (1) he performed a service to the benefit of the client; (2) he did not perform
that service gratuitously; (3) the client accepted the service; and (4) no contract
existed to prescribe payment. Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C.,
402 Ill.App.3d 961, 979 (2010). The attorney bears the burden of proof in
establishing the value of his services. Will, 378 Ill.App.3d at 304. The trial court has
broad discretion to determine a reasonable fee; the court “is not limited to the
evidence presented [. . .] but may also use the knowledge it has acquired in the
discharge of professional duties to value legal services rendered.” Id. Trial courts

28

assess several factors to determine a reasonable fee: the time and labor required,
the attorney’s skill and standing, the nature of the case, the novelty and difficulty of
the subject matter, the attorney’s degree of responsibility in managing the case, the
usual and customary fee for that type of work, and the benefits to the client. Id.
To satisfy the four elements, ROGW first notes that it performed legal
services for Yusen for over seven years in the antitrust litigation, which resulted in
a benefit for Yusen for over $3.5 million. To prove the remaining elements—that
such services were not gratuitous, that Yusen accepted them, and that no contract
exists regarding payment—ROGW points to the contingency fee agreement that
Yusen executed in 2007 and terminated in 2014. Nevertheless, Yusen argues that
ROGW cannot recover on a quantum meruit basis because ROGW cannot establish
that its fee was reasonable. Yusen also re-iterates many of its arguments from the
breach of fiduciary duty issue, discrediting the work ROGW did under the
contingency fee agreement. See, e.g., [71-1] at 3 (“Filling in the blanks with names
and numbers on claim forms that were supplied by a court was perfunctory work
that for the most part was not dependent on the skills of a lawyer.”).
ROGW retorts that it did much more than fill in the blanks with data
provided by Yusen. By analogizing to the process of filing tax forms, ROGW insists
that the work it performed leading up to the submissions is what allowed Yusen to
recover against the settlement funds in the first instance. Moreover, the work class
counsel did to procure settlements may have allowed Yusen to submit claims
against the settlement funds, but it is not what facilitated Yusen’s actual recovery.

29

But for ROGW’s work up to and including the submissions, Yusen would not have
recovered from the settlement funds, even though class counsel had negotiated
settlements. The risk of no recovery was real, ROGW contends, when Yusen
executed the contingency fee agreement. At that time, ROGW argues and Yusen
does not credibly dispute, the class had not been defined (it was unknown whether
it would include direct and indirect claimants), the amount of recovery was
unknown, and the size of Yusen’s claim was unknown. Even after the contingency
fee agreement was signed and ROGW was well underway with its representation of
Yusen in the antitrust litigation, risk of no recovery reared its head again with the
affiliate issue and Yusen’s wish to return the funds it had received until that issue
was resolved. The undisputed record does not support a finding that ROGW had
information from which it could predict that none of those risk factors would bear
fruit and that Yusen would recover millions of dollars against the settlement funds
based, almost exclusively on, the work ROGW did for the first two settlement
funds.27
Perhaps the risk was smaller than the ultimate reward in this case, but it
does not follow that the twenty-five percent contingency fee is unreasonable here.
Instead, the record shows that ROGW took necessary steps to facilitate Yusen’s
recovery from the Lufthansa Settlement and Settlement 2. Due to the claims
administrator’s decision that submissions for Settlement 2 would constitute the
Even when ROGW filed the first claim in February 2009, O’Donnell understood that the
court in the antitrust litigation had approved the settlement and that money had been
deposited into a fund, but that other issues remained to be decided, which would affect
Yusen’s recovery. [59-1] at 89:12–93:13.
27

30

basis for recovery in future settlements, ROGW did not have to submit new claims
or to perform new work for Settlements 3, 4, or 5. ROGW’s work allowed Yusen to
recover from the settlements after it fired the firm, the claims administrator
decided that the work was sufficient, and the client and firm agreed that a
contingency fee was the reasonable method of quantifying the value of the firm’s
services. See Will, 378 Ill.App.3d at 304 (“In those cases where an attorney who has
done much work is fired immediately before settlement is reached, these factors
involved in determining a reasonable fee ‘would justify a finding that the entire
contract fee is the reasonable value of services rendered.’”) (citation omitted). Yusen
does not cite any authority for the proposition that the claims administrator’s
reliance on and use of the firm’s previous work for the client’s benefit is grounds for
limiting the firm’s ability to collect fees or for reevaluating the market-based
reasonableness of a contingency fee to which the client consented.28
In addition to the above arguments, I also consider the traditional reasonable
fee factors, and I note the following. A seven-year representation results in not an
insignificant amount of time and labor spent by the attorney on the client’s behalf,
even when that representation only requires intermittent work. ROGW was not
The cases Yusen cites are distinguishable from this case. See, e.g., In re Estate of Sass,
246 Ill.App.3d 610 (limiting the attorney’s fee award to half the amount provided by the
contingency fee agreement where attorneys spent little time working on the case, did not
file a lawsuit, lacked special skill or experience, and presented no evidence that they lost
business due to working on that case); In re Sulzer Hip Prosthesis & Knee Prosthesis Liab.
Litig., 290 F.Supp.2d 840, 855 (N.D. Ohio 2003) (attorneys knew or should have known,
before entering into contingency fee agreements that “the contingency factor was negligible,
their effort would not bear a reasonable relationship to the size of their client’s recovery,
and the fee agreement would work to yield them a windfall”; thus, “their insistence on
receiving the full contingent fee amount may well amount to a breach of their fiduciary
relationship with their own clients.”).
28

31

experienced in antitrust law, but it was skilled in customs and international trade
law, as well as transportation regulatory law, which provided useful context about
the underlying air cargo industry. ROGW was in good enough standing to have
maintained Yusen as a client for approximately ten years before the antitrust
litigation commenced and to have appeared more attractive to Yusen than the
hundreds of other solicitations it received to represent Yusen in the antitrust
litigation. ROGW was only responsible for analyzing and submitting Yusen’s data,
not the entire class’s data. At the outset, ROGW helped Yusen decide whether it
was worth it to participate in the litigation; advised Yusen on the potential liability
Yusen faced if it was not forthright with its customers about its participation in the
litigation; informed Yusen about the data collection process; and discussed general
strategies with Yusen. Later on, ROGW had to analyze the affiliate issue for Yusen
and to advocate for Yusen’s entitlement to the funds. Beyond those more involved
tasks, managing the case typically involved communicating with Yusen, class
counsel, and the claims administrator regarding submission requirements,
timelines, updates, as well as deciding what and how to submit on Yusen’s behalf.
Given the hundreds of solicitations, a contingency fee arrangement is typical here,
and Yusen offers no evidence that a twenty-five percent fee is non-standard.
Finally, Yusen has benefitted from ROGW’s services; it recovered millions of dollars
before it fired ROGW, and that same work led to successful claims after the firm
was fired. ROGW is entitled to recover from Yusen on a quantum meruit basis.29
Now that judgment on quantum meruit will be entered, ROGW’s alternative claims for
unjust enrichment and promissory estoppel should be dismissed.
29

32

ROGW’s motion for summary judgment on this issue is granted; Yusen’s
motion for summary judgment on this issue is denied. ROGW is entitled to receive
twenty-five percent of any payments Yusen received because of the work the firm
performed for Yusen before Yusen terminated it. In this case, that includes
settlement funds from Settlements 4 and 5, as well as supplemental funds it
received from Settlements 2, 3, and 4.30
IV.

Conclusion
ROGW’s motion for summary judgment is granted. Yusen’s motion for

summary judgment is denied.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: September 12, 2017

The parties will be given leave to brief the precise calculations necessary to reduce the
amount to a final judgment.
30

33