Winston v. O'Brien

951 F. Supp. 2d 1004, 2013 WL 2897161, 2013 U.S. Dist. LEXIS 83776
CourtDistrict Court, N.D. Illinois
DecidedJune 13, 2013
DocketNo. 10 C 8218
StatusPublished

This text of 951 F. Supp. 2d 1004 (Winston v. O'Brien) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winston v. O'Brien, 951 F. Supp. 2d 1004, 2013 WL 2897161, 2013 U.S. Dist. LEXIS 83776 (N.D. Ill. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

ELAINE E. BUCKLO, District Judge.

On November 27, 2012, after a two-day trial, a jury entered a verdict in favor of plaintiff Robert Winston and against Officer O’Brien, one of two Chicago Police Officers named as defendants in this excessive force action arising under 42 U.S.C. § 1983. The jury awarded plaintiff nominal compensatory damages of one dollar, plus $7,500 in punitive damages. Now before me plaintiffs petition for attorneys’ fees, which I grant in part as explained below.

[1006]*1006I.

A party who prevails in a § 1983 lawsuit is presumptively entitled to recover reasonable attorney’s fees. 42 U.S.C. § 1988. To determine whether, and in what amount, an award of fees is appropriate, I start with the threshold question of whether the fee petitioner has established that he or she is a “prevailing party” under the statute. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Under the Supreme Court’s “generous formulation” of this requirement, a prevailing plaintiff must only have succeeded “on any significant issue in litigation which achieves some of the benefit” sought in the lawsuit. Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933). If this standard is met, I proceed to a determination of what fees are reasonable. Hensley, 461 U.S. at 433, 103 S.Ct. 1933.

The “most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate.” Id. This is the “lodestar” amount. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010) (describing lodestar approach as “the guiding light” of the Court’s post-Hensley fee-shifting jurisprudence). An attorney’s actual billing rate for comparable work is presumed to be a reasonable hourly rate. People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 90 F.3d 1307, 1310 (7th Cir.1996). This presumption reflects a proper emphasis on the “opportunity cost” of lawyers who give up work for clients who would have paid them their standard hourly fees for each of the hours they spent on this case. Cooper v. Casey, 97 F.3d 914, 920 (7th Cir.1996). An “important qualification” to this principle, however, is that “the reasonable fee is capped at the prevailing market rate for lawyers engaged in the type of litigation in which the fee is being sought.” Id. (citing McNabola v. Chicago Transit Authority, 10 F.3d 501, 519 (7th Cir.1993); Buffington v. Baltimore County, 913 F.2d 113, 130 (4th Cir.1990)) (original emphasis).

In this case, petitioner seeks a total award of $336,918 in attorney’s fees. Defendants argue that petitioner is not entitled to any award of fees because his victory at trial was “nominal at best.” Alternatively, defendants argue that even assuming an award of fees is appropriate, the hourly rates charged by petitioner’s counsel are excessive. Defendants do not object to the number of hours petitioner’s counsel spent on the case.

Petitioner was represented by attorneys Alan Salpeter, Ross Neihaus, and Eric Sussman of the law firm Kaye Scholer. Their work on the case was supported by paralegal Kenneth Anderson. Petitioner’s requested award is based on hourly rates of $925 for Salpeter, $425 for Neihaus, $715 for Sussman, and $210 for Anderson.

II.

Defendant’s first argument — that petitioner not entitled to any fee award because his trial victory was nominal or de minimis — is plainly without merit. This is not a case like Farrar v. Hobby, in which the plaintiff “asked for a bundle and got a pittance.” 506 U.S. at 120, 113 S.Ct. 566 (O’Connor, J., concurring). In Farrar, the plaintiff sued six defendants for seventeen million dollars but was awarded only one dollar from one defendant, or “one seventeen millionth” of what he sought. Id. at 121, 113 S.Ct. 566. In this case, despite its conclusion that petitioner had not proven actual damages, the jury nevertheless awarded petitioner sizable punitive [1007]*1007damages against Officer O’Brien, whose actions were the primary focus of plaintiffs case. Petitioner’s victory was real, not Pyrrhic.

I thus turn to the reasonableness of the hourly rates petitioner asserts. Petitioner submits that Salpeter is a highly accomplished trial attorney who has litigated some of the largest securities fraud eases ever filed, including Enron and WorldCom, and whose actual billing rate of $925 per hour is commensurate with, or slightly below, that of his peers. Petitioner also points out that in Johnny’s IceHouse, Inc. v. AHAI, No. 00 C 7363, 2001 WL 893840 (N.D.Ill. Aug. 7, 2001) (Shadur, J.), a Title IX case in which Salpeter represented the plaintiffs successfully on a pro bono basis, the court granted the plaintiffs’ request for an award based on Salpeter’s then-current hourly rate of $495.

With respect to the remaining professionals who billed time on his case, petitioner asserts that Neihaus’s hourly rate is reasonable because it is comparable to that of other, second year associates at law firms similar to Kaye Scholer, and because Neihaus represented him with the skill and ability of a more experienced attorney. Petitioner argues that Sussman’s rate is reasonable in view of his substantial trial experience, reflected in both his current position as Kaye Scholer’s Chicago Co-Chair of the White Collar Litigation and Internal Investigations Practice and his past tenure as Deputy Chief of the Financial Crimes and Special Prosecutions Section of the U.S. Attorney’s Office in this district. Finally, petitioner asserts that Anderson is an experienced paralegal with ten years of experience, and that his hourly rate is commensurate with other paralegals at large, national law firms.

Petitioner amply supports his factual assertions with Salpeter’s own affidavit; the affidavit of Randall Oppenheimer, a partner at O’Melveny & Myers who is familiar with Salpeter’s reputation and work, and familiar with the hourly rates charged by law firms with national litigation practices; and a chart (to which copious supporting documentation is appended) setting forth the hourly rates of comparable professionals at law firms with practices similar to Kaye Scholer’s.

Defendants make no meaningful effort to rebut the facts that petitioner offers in support of his petition. Moreover, I agree with petitioner’s argument that his case presented many difficulties, and that his counsel’s representation overall was superb. Nevertheless, I conclude that the hourly rates he seeks are not reasonable under the governing fee-shifting statute.

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Related

Hensley v. Eckerhart
461 U.S. 424 (Supreme Court, 1983)
Farrar v. Hobby
506 U.S. 103 (Supreme Court, 1992)
William McNabola v. Chicago Transit Authority
10 F.3d 501 (Seventh Circuit, 1993)
People Who Care v. Rockford Board Of Education
90 F.3d 1307 (Seventh Circuit, 1996)
Darnell Cooper and Anthony Davis v. Michael Casey
97 F.3d 914 (Seventh Circuit, 1996)
Perdue v. Kenny A. ex rel. Winn
176 L. Ed. 2d 494 (Supreme Court, 2010)
Buffington v. Baltimore County
913 F.2d 113 (Fourth Circuit, 1990)
Youakim v. McDonald
171 F.R.D. 224 (N.D. Illinois, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
951 F. Supp. 2d 1004, 2013 WL 2897161, 2013 U.S. Dist. LEXIS 83776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winston-v-obrien-ilnd-2013.