IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMARCO NICHOLS )

)

 Plaintiff, )

) 

v. ) No. 12-CV-1789

) 

ILLINOIS DEPARTMENT OF ) Honorable Thomas M. Durkin 

TRANSPORTATION et al.; )

)

Defendants. )

DEFENDANTS’ RESPONSE TO PLAINTIFF’S PETITION FOR ATTORNEY’S FEES

AND COSTS

NOW COMES Defendants by and through their attorney, Lisa Madigan, Attorney 

General for the State of Illinois, hereby responds to Plaintiff DeMarco Nichols’ Petition for 

Attorney Fees and Costs:

For the litigation of this single-employee discrimination case Plaintiff seeks over $1.7 

million dollars ($1,709,345) in attorneys’ fees and $4,460.47 in costs, for a total award of 

$1,713,805.47 pursuant to 42 U.S.C. § 2000e-5(k). Defendants object to this excessive and 

unreasonable amount. Plaintiff’s petition is long on verbosity and short on controlling precedent 

in an attempt to convince the Court he is entitled to an amount of attorney’s fees that is 

unwarranted. Simply put, Plaintiff’s fees are not reasonable. For the reasons set forth below, the 

Court should award Plaintiff $282,870 for attorney’s fees and $4,061.02 for costs, for a total 

award of $286,931.02. See Defendants’ Statement of Fees, attached as Exhibit A.1

 

1

Prior to the submission of Plaintiff’s fee petition Mr. Longo provided to Defendants his itemized fees for 

the entirety of the litigation. Defense counsel responded to every single entry (over 6,000) either agreeing 

to the entry or objecting to it and providing the basis of the objection. The attached tables contain 

Plaintiff’s claimed fees and Defendants’ objections. Due to the sheer volume of these entries Defendants 

will not go through every entry they object to. As seen below, these entries can fit broadly into several 

categories the Supreme Court has delineated as unreasonable. See Hensley, 461 U.S. at 434. Defendants 

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ARGUMENT

The district court exercises wide discretion, and its decision to award or deny fees is 

reviewed with deference. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Pickett v. Sheridan 

Health Care Center, 664 F.3d 632, 639 (7th Cir. 2011). In fact, the court has the discretion to 

deny a fee petition in its entirety. See, Budget Rent-A-Car Sys. v. Consol. Equity LLC, 428 F.3d 

717, 718 (7th Cir. 2005) (internal citations and quotation marks omitted).

I. HOURLY RATE

“A reasonable hourly rate is based on the local market rate for the attorney’s services.” 

Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). The best evidence of the local market 

rate would be “the amount the attorney actually bills for similar work, but if that rate [cannot] be 

determined, then the district court may rely on evidence of rates charged by similarly 

experienced attorneys in the community and evidence of rates set for the attorney in similar 

cases.” Id. Plaintiff bears the burden of establishing his attorney’s market rate. Id. If Plaintiff 

meets his burden, then Defendant has to present evidence on why the attorneys’ hourly rate 

should be lowered. Pickett, 664 F.3d at 640. In this case, none of the evidence Plaintiff has 

presented meets the burden of establishing the market rate for his attorney’s work and therefore 

the hourly rate proposed by Plaintiff for Mr. Longo should be reduced. 

A. Plaintiff’s affidavits fail to establish Mr. Longo’s market hourly rate

Plaintiff relies on the affidavits of seven individuals (including Mr. Longo) to support the 

requested fee of $550 an hour. (Plaintiff’s Petition for Attorney’s Fees (“Pl.’s Pet.”), Ex. 1-7).

An examination of these affidavits demonstrates several deficiencies that do not support a fee of 

$550 an hour for Mr. Longo. John P. DeRose (Pl. Pet. Ex. 1) focuses his practice mainly on 

 

stand by their objections and maintain that the hours not objected to are the only “reasonable” hours that 

should be included in the lodestar calculation.

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criminal law and his affidavit does not establish his fee in employment case. Robin Potter (Pl. 

Ex. 2) works primarily as an attorney representing unions, not individual plaintiffs, her focus 

appears to be on wage and hour law, and she does not establish her fee in employment cases. 

See Montanez, 755 F.3d at 554 ((“[c]onclusory affidavits from attorneys ‘merely opin[ing]’ on 

the reasonableness of another’s fee—unlike affidavits describing what ‘comparable attorneys 

charge for similar services’—have little probative value”). David Lee’s affidavit (Pl. Pet. Ex. 3) 

is a cookie-cutter form he has filed in previous litigation (Lee Affidavit, attached hereto as 

Exhibit B) and does not represent his specific opinion of the reasonableness of Mr. Longo’s rate, 

and in fact incorrectly refers to Mr. Longo’s proposed rate as $600 per hour and not the $550 

Plaintiff requests. Aaron Maduff (Pl. Pet. Ex. 4) also copied an affidavit that clearly is a cut and 

paste job from another case (Maduff Affidavit, attached hereto as Exhibit C) and does not 

support Mr. Longo’s specific claim for an hourly rate of $550 in this matter. John Moran (Pl. 

Pet. Ex. 6) arbitrarily states he has had “contact with many employment lawyers” and therefore 

Mr. Longo’s rate of $550 per hour is “below market.” Dennis Favaro (Pl. Pet. Ex. 7) does not 

provide an hourly rate nor does he state Mr. Longo’s claimed rate is reasonable. See Pickett, 664 

F.3d at 647. Lastly, Mr. Longo’s self-serving affidavit (Pl. Ex. 5) is long on hyperbole and short 

on actual facts to support his billing rate and fails to properly establish a market rate for his 

services. Harper v. City of Chi. Heights, 223 F.3d 593, 604 (7th Cir. 2000) (“[A]n attorney’s 

self-serving affidavit alone cannot establish the market rate for that attorney’s services....”). 

In submitting these deficient affidavits, Plaintiff argues that he has met his “minimal 

burden” of establishing the market rate. (Pl. Pet. p. 5). However, these affidavits from thirdparty attorneys, on their own, are not sufficient to support Mr. Longo’s rate. “A prevailing party 

who merely tells an attorney in a related area of law the number of hours he spent on a case 

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would only provide the attorney attesting that such hours were reasonable a skeletal framework 

of a case. It is the court and the judge who understands the finite details and intricacies of a 

case.” Sommerfield v. City of Chicago, 2013 WL 139502, at *3 (N.D. Ill. Jan. 10, 2013) (calling 

such affidavits “ludicrous”). Moreover, Mr. Longo’s argument that he is a licensed attorney for 

30 years and therefore deserves even $395 per hour has been summarily rejected by another 

court. Sommerfield v. City of Chicago, WL 3675722, at *2 (N.D. Ill. Aug. 25, 2017) (“At 

bottom, the arguments boil down to nothing more than that Longo has been an attorney for 30 

years and that his tenure alone, uncoupled from any skillfulness or competence shown in 

prosecuting the case, justifies payment of $395 for every hour worked....As far as the Court can 

tell from the latest fee Petition, Longo's skills as an attorney have not much changed since Judge 

Cole assessed them. As such, neither should his hourly rate be increased, nor the time spent 

arguing otherwise be remunerated.”).

B. The Laffey Matrix is an improper benchmark for attorneys’ fees 

Plaintiff also uses the Laffey Matrix as proof that the rate sought by Mr. Longo is

reasonable. (Pl. Pet. p. 5). However, in Pickett, the Seventh Circuit noted that no federal appeals 

court outside of the D.C. Circuit has formally adopted it, and even the D.C. Circuit has referred 

to the Matrix as “crude.” Pickett, 664 F.3d at 650. Many judges in this jurisdiction have 

specifically declined to use the Laffey Matrix for a variety of reasons. See, e.g., Obrycka, 2013 

WL 1749803, at *3 (N.D. Ill. Apr. 23, 2013) (declining to use the Laffey Matrix because it “does 

not take into account an individual attorney's ability, experience, or reputation”); Wells v. City of 

Chicago, 925 F. Supp. 2d 1036, 1040 (N.D. Ill. 2013) (noting “the Seventh Circuit’s expressed 

preference for other, more direct measures of reasonable hourly rates”). The Court should

therefore not use the Laffey Matrix to determine Mr. Longo’s reasonable hourly rate.

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C. Recent decisions establish Mr. Longo’s market rate is at most $350/hour 

Directly contradicting Plaintiff’s claim that Mr. Lango’s market rate is $550/hour are the 

most recent orders on record in the Northern District of Illinois and the Seventh Circuit, firmly 

establishing his rate as much lower. See Sommerfield v. City of Chicago, 2012 WL 5354987, at 

*16 (N.D. Ill. Oct. 29, 2012) (“Longo’s contention that he should be paid $395 per hour is 

unacceptable. If he were to be paid what competent, rule-abiding lawyers in comparable cases 

are paid, we would create a perverse disincentive for lawyers to conduct themselves 

professionally. Against so pernicious a result this court should resolutely set its face. I 

recommend that Mr. Longo’s hourly rate not exceed $300 per hour.”). Here, Plaintiff is 

requesting a $250 per hour increase in Mr. Longo’s last awarded hourly rate, over a four-year 

period, whereas Defendants believe an increase of $50 per hour is more appropriate. Defendants

therefore dispute the $550 hourly rate that is requested for Mr. Longo and instead suggest his 

hourly rate be set at $350. See Jeffboat, LLC v. Director, Office of Workers' Comp. 

Programs, 553 F.3d 487, 491 (7th Cir.2009) (“[A] previous attorneys’ fee award is useful for 

establishing a reasonable market rate for similar work whether it is disputed or not.”); Smith v. 

Altman, 2015 WL 5675376 (N.D. Ill. Sep. 21, 2015) (using the most recent fee award received 

by plaintiff’s counsel in determining his market rate for the current case).

II. REASONABLENESS OF HOURS EXPENDED

Many of Plaintiff’s claimed fees are unreasonable and should not be included in the 

lodestar. “Counsel for the 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.” Hensley, 461 U.S. 

at 434. Attorney activities that are unnecessary, excessive, or so vague as to provide any 

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meaningful insight into whether the hours expended were reasonable will be excluded from an 

award of fees. Id. Here, Plaintiff’s claimed hours are riddled with entries that are unreasonable 

per the Supreme Court in Hensley, and therefore should be disregarded. See Blum v. Stenson,

465 U.S. 886, 897 (1984) (“[A] reasonable attorney’s fee is one that is adequate to attract 

competent counsel, but that does not produce windfalls to attorneys.”). The fee shifting 

provisions of civil rights statutes aim to enforce their provisions, not to provide “a form of 

economic relief to improve the financial lot of attorneys.” Pennsylvania v. Delaware Valley 

Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986).

A. Lodestar

To determine a reasonable amount of fees to be awarded to the prevailing party, courts in 

this jurisdiction use the lodestar method which involves “multiplying the number of hours 

reasonably expended on the litigation . . . by a reasonable hourly rate.” Pickett, 664 F.3d at 639.

In arguing that the lodestar should not be reduced, Plaintiff relies heavily on Perdue v. Kenny A. 

ex rel. Winn, 559 U.S. 542 (2010) for the proposition that “adjustments to the lodestar are rare.” 

(Pl. Pet. pp. 4-5, 8). However, Plaintiff misrepresents the case as the “rare” language was 

referring to enhancements in the lodestar, and not reductions. The Supreme Court said “we have 

repeatedly said that enhancements may be awarded in ‘rare’ and ‘exceptional’ circumstances.” 

Perdue, 559 U.S. 542, 552 (reversing the district court’s awarding of an enhancement to the 

lodestar). In fact, Perdue did not deal with, mention, or in any way discuss reductions to the 

lodestar. See id. Plaintiff further states that Perdue contains a “mandate” that the District Court 

focus on the lodestar and “nothing else.” (Pl. Pet. pp. 7-8). Perdue contains no such mandate. 

In fact, the Court in Perdue stated that “[t]he lodestar method was never intended to be 

conclusive in all circumstances.” Perdue, 559 U.S. 542, 553; see Estate of Enoch ex. rel. Enoch 

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v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009) (“The lodestar figure is the starting point in fee 

determinations and may by adjusted for a variety of factors.”).

B. Much of Mr. Longo’s entries are for unnecessary work

Even a cursory examination of Mr. Longo’s time entries demonstrates that the majority of 

his time was spent on unnecessary tasks. “In the years in which he prosecuted the merits of the 

case, Longo engaged in a pattern of litigation tactics that, as Judge Cole recounted, included 

risking sanctions time and again, ‘ignoring court order after court order,’ filing motions that were 

‘frivolous,’ ‘manipulative,’ ‘inordinately stale,’ ‘disingenuous,’ ‘baseless,’ ‘nonsensical,’ and 

generally making unnecessary work for all parties involved by evincing an unwillingness to take 

no for an answer when his motions were denied.” Sommerfield, WL 3675722, at *2 (N.D. Ill. 

Aug. 25, 2017). As can be seen in his time entries here, Mr. Longo seems to have billed for 

every single hour worked despite the fact that “the number of hours actually worked rarely 

equals the number of hours reasonably expended.” (See Ex. A): Ohio-Sealy Mattress Mfg. Co. v. 

Sealy, Inc., 776 F.2d 646, 651 (7th Cir. 1985). Thus, the petition itself demonstrates that Longo 

exercised no “billing judgment,” contrary to what is required by precedent and ethical 

norms. See, Hensley, 461 U.S. at 434. 

1. Administrative tasks are not compensable

Many of the entries submitted by Plaintiff contain administrative tasks that are not 

compensable. “[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, 

regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274, 287-88 n.10 (1989). For 

example, Mr. Longo billed for such tasks as “dictate new date for docket; calendar date; [and] 

ensure inclusion of new date in docket.” (Ex. A). These tasks do not require the skill of a 

lawyer or a paralegal; rather, these are the same clerical tasks which courts have found are nonCase: 1:12-cv-01789 Document #: 295 Filed: 09/01/17 Page 7 of 16 PageID #:7966
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billable and should be absorbed in the overhead costs of running a law firm. See Sommerfield,

WL 3675722, at *2 (N.D. Ill. Aug. 25, 2017) (denying Mr. Longo fees for the very same clerical 

tasks) (citing Spegon v. Catholic Bishop, 175 F.3d 544, 553 (7th Cir. 1999). Accordingly, the 

Court should exclude all of Mr. Longo’s entries in which he bills for administrative tasks.2

2. Time spent reading court orders 

It appears that every time the court issued a minute order, Mr. Longo billed at least 0.1 

hours reading this order. As these orders are generally only a couple of sentences long, each 

entry must be an exaggeration of time actually spent reading the order. This poses a small 

problem when examined on an individual basis, but a large problem in the aggregate, due to the 

voluminous orders issued throughout the duration of the litigation. Accordingly, Defendants 

believe the elimination of these fees is appropriate.

3. Commuting time is not billable

Mr. Longo billed the exact same amount of time for every trip he made from his office in 

Mount Prospect to the federal courthouse in Chicago. Each one way trip was always billed at 1.4 

hours, for a total roundtrip time of 2.8 hours. (Ex. A). Courts in this District have clearly held 

that travel time for commuting is not compensable as part of a fee award. Franks v. MKM Oil, 

Inc., 2016 WL 861182 at *7 (N.D. Ill. Mar. 7, 2016) (refusing to award travel time for 

commuting to court from the suburbs as part of travel time). Therefore, Plaintiff’s hours claimed 

for commuting to and from the federal courthouse should be disregarded.

C. Excessive billing for emails and phone calls

Throughout the entire litigation Mr. Longo spent an exorbitant amount of time on 

 

2 The fact that Mr. Longo is a solo practitioner does not mean that he should be paid the same hourly rate

no matter what work he performed. Sommerfield, WL 3675722, at *4 (N.D. Ill. Aug. 25, 2017)

(citing Montanez v. Simon, 755 F.3d 547, 565-66 (7th Cir. 2014) (affirming the district court's decision to 

disallow “time billed for clerical work that was nonetheless recorded at an attorney’s rate”).

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emails—including follow-up emails for non-responsiveness, and reviewing these emails and 

follow up emails —to and from Plaintiff. (See Ex. A). Additionally, Every time Mr. Longo 

corresponds with any individual via email there is always at least a 0.1 time entry for “review, 

revise correspondence.” (See Ex. A). Mr. Longo also spends at least 0.2 hours every time he 

receives an email, billing “received, reviewed...correspondence.” (See Ex. A). These are 

excessive and should be disregarded from his fees. Taylor v. Law Offices of Vincent Peter 

Cignarale, LLC, 2011 WL 6102020, at *2 (N.D. Ill. Dec. 5, 2011) (finding billing in 0.1 hour 

increments for each email received, amounting to 6 minutes expended per email, is excessive). 

D. Imprecise and vague description of time entries

Judges in this district have recognized the problem of imprecision in the description of 

billable time entries, and have adjusted hours accordingly. See Bretford v. Smith, 421 F. Supp. 

2d 1117 (N.D. Ill. 2006) (reducing fees by nearly 70% due to inadequate documentation). 

“[W]hen a fee petition is vague or inadequately documented, a district court may either strike the 

problematic entries or . . . reduce the proposed fee by a reasonable percentage.” Harper, 223 

F.3d at 605. Here, many of the time entries for emails and phone calls are vague as to the subject 

matter. (See Ex. A); Abbott v. Vill. of Winthrop Harbor, 1999 WL 675292, at *4 (N.D. Ill. Aug. 

24, 1999) (“Evidence indicating a telephone conversation without identification of the subject 

matter is an inadequate documentation of hours.”). Thus, Mr. Longo’s vague time entries should 

not be included in any fee award.

E. Excessive time entries 

Plaintiff’s counsel billed a great deal of time to complete tasks that were excessive and

should have taken much less effort given that Plaintiff’s counsel has alleged substantial 

experience litigating employment discrimination cases. (See Ex. A, 2015 time records, billable 

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time spent on Plaintiff’s summary judgment response totals 284.8 hours; 2012 time records, time 

spent “analyzing defendant’s documents” 250.1 hours). “Hours that are not properly billed to 

one’s client are also not properly billed to one’s adversary pursuant to statutory authority.” 

Hensley, 461 U.S. at 434. 

F. Plaintiff’s hours are unreasonable compared to defense counsel’s hours 

Courts may take into account the hours billed by opposing counsel in performing similar 

tasks when determining the reasonableness of petitioner’s hours, and may use this to reduce or 

eliminate certain entries from the lodestar. See Delgado v. Mak, No. 06 CV 3757, 2009 WL 

211862, at *7 (N.D. Ill. Jan. 29, 2009). Here, the attorneys representing defendants were all 

Assistant Attorneys General (“AAsG”) working for the Office of the Illinois Attorney General. 

As such, the AAsG did not keep track of their hours spent working on this matter, nor do they 

bill their clients (exclusively arms of the State of Illinois). Plaintiff repeatedly refers to this fact 

—that defense counsel does not keep time records—and that this somehow is a deficiency that 

leads to awarding Plaintiff all of his requested fees. (Pl.’s Pet. pp. 10-11). Defendants are at a 

loss as to how the fact that their attorneys do not bill their State agency clients or keep track of 

billable hours somehow entitles Plaintiff’s counsel to receiving all of his claimed fees.

Although AAsG do not bill clients, trial counsel for Defendants can attest that his yearly 

salary is $70,000. (See Affidavit of John R. Hayes, attached hereto as Exhibit D). This salary is 

for an assistant unit supervisor position and is higher than any other attorney who worked on this 

case. (Id.). Moreover, as a member of the Employment Unit in the General Law Bureau, 

counsel carries an active case load of 20 to 25 employment discrimination cases at any one time. 

It would take defense counsel working full-time on this case over 24 years at his current annual 

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salary to reach what Plaintiff now claims are reasonable attorney’s fees for a single-employee 

discrimination case filed in 2012. 

Further, Plaintiff baldly claims that at trial Defendants “had multiple attorneys, 

paralegals, other assistants, either sitting at the counsel table or in the pews.” (Pl. Pet. p. 7). 

Again, Plaintiff misrepresents the facts. Defendants had two attorneys at the trial table who were 

trying the case, and at all times had one representative from Defendant IDOT at the table. There 

were no “paralegals, other assistants” that were either at the table or “in the pews” that assisted 

the trial attorneys. (Ex. D). 

III. DEFENDANTS’ OBJECTIONS

Plaintiff argues that it was Defendants that have a “heavy burden” to provide how fees 

are not reasonable and that this burden was “dumped” on the Court and Plaintiff (Pl.’s Pet. p. 

9)—ignoring case law and also the considerable time spent by defense counsel in reviewing and 

responding to each and every one of Plaintiff’s over 6,000 mostly vague, redundant, and 

unreasonable time entries. (Ex. A). “A district court may strike billing entries so long as the 

party requesting fees has an opportunity to respond to any objections.” Montanez, 755 F.3d at

555 (finding the City’s line-by-line objections specific enough to allow a response, “and the 

format was considerably more practical and economical than a long memorandum detailing each 

objection”). Plaintiff had the opportunity to respond to Defendants’ objections in his fee

petition. (See Pl. Pet.). 

Additionally, Plaintiff attempts to paint defense counsel as the “unreasonable” one in that 

he allegedly refused to “resolve the defendant’s objections” to his fees. (Pl. Pet. p. 9). Setting 

aside the unreasonableness of $1.7 million in fees, Plaintiff’s allegations are untrue. Defense 

counsel responded to every single time entry submitted by Mr. Longo. (Ex. A). Moreover, 

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defense counsel informed Mr. Longo that he would happily engage in a discussion to come to an 

agreement over fees, as long as Mr. Longo was willing to negotiate in good faith, i.e., come 

down off his exorbitantly high number, a fact Plaintiff does not mention in his petition. (July 7, 

2017 email, attached hereto as Exhibit E). In fact, Mr. Longo’s position was clear that 

“resolving” Defendants’ objections meant dropping them and agreeing to his fees in total. 

Therefore, it was clearly Mr. Longo who was being obstructionist, while defense counsel 

responded to Mr. Longo and made clear Defendants’ position more than once. (Id.).

IV. EXPERIENCE, REPUTATION, AND ABILITY

It is not improper for the Court to consider Mr. Longo’s “experience, reputation, and 

ability” in determining a fee award. Sommerfield v. City of Chicago, 863 F.3d 645, 652 (7th Cir.

2017) (finding that even though the magistrate judge stated he ignored Longo’s “previous 

mischief” in calculating the lodestar, it would not have been improper for the magistrate judge to 

take such “mischief” into consideration). Here, Mr. Longo’s: (1) dilatory tactics; (2) redundant 

and unnecessary motion practice; (3) excessive, redundant, and unwarranted communications

with his client and opposing counsel; (4) misrepresentations and mischaracterizations of both 

facts and communications; and (4) filing of frivolous motions not just in this case but in several 

other cases Mr. Longo has handled, necessitates a downward departure of the lodestar.3

A. Reputation

Contrary to the vague affidavits provided by Mr. Longo’s peers alleging his solid 

reputation, there are numerous decisions in this Circuit detailing the “mischief” Mr. Longo 

 

3 Mr. Longo’s litigation tactics also lead to the filing of unnecessary motions by Defendants. For 

example, Mr. Longo’s refusal to hire a court reporter for depositions he was taking of defense witnesses 

(and for which he said he would record the testimony on a tape recorder) led to the filing of an 

emergency motion by Defendants. (Dkt. No. 40). Mr. Longo also billed for the research on this issue. 

(Ex. A, 9/23/2012 entry). Tactics such as these from a lawyer with 30 years of experience is inexcusable 

and should not be condoned with a large fee award.

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engages in as a matter of course. See Sommerfield, 863 F.3d at 652; James v. Hyatt Regency 

Chicago, 707 F.3d 775, 784-85 (7th Cir. 2013) (upholding district court’s sanctions against Mr. 

Longo as “[t]he record indicates that the district court thoughtfully attempted to lead James’

attorney towards a more reasonable and appropriate approach to the discovery process, and he 

declined to follow on multiple occasions. The district court found that rather than using 

discovery as a tool to uncover facts and evidence to support his case, James was using 

unreasonable discovery requests as a weapon against Hyatt.”); Atkins v. City of Chicago, 631 

F.3d 823, 831 (7th Cir. 2011) (noting the “curious evolution of allegations in successive 

iterations of the complaint” and that they “are riddled with contradictions” that “were drafted by 

plaintiff’s lawyer [Mr. Longo]”); Atkins v. City of Chicago, 547 F.3d 869, 872 (7th Cir. 2008)

(finding “Longo’s failure to ask for an extension of the 90-day deadline within the 90 days” to be 

“inexcusable,” and referring to one of Longo’s filings as “strange” and one of arguments as 

“ridiculous”); Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012, 1014 (7th Cir. 1999)

(“Mr. Longo's extensive but inept and wholly unsuccessful efforts to conduct class actions have 

drawn unusually pointed criticisms from Illinois state judges.”) (collecting cases); Letellier v. 

First Credit Services, Inc., 2001 WL 826873, at *3 (N.D. Ill. July 20, 2001) (giving defendant’s 

offer of judgment full weight in light of “such clear and convincing evidence of Longo’s attempt 

to conceal the mistake in the defendant’s Offer.”); Mader v. Motorola Inc., 1999 WL 519020, at 

*1 (N.D. Ill. July 14, 1999) (referring to the motion filed by Mr. Longo as “incredibly 

suspicious” and refusing to consider “correction pages” of plaintiff’s deposition as they were “a 

transparent attempt to change the substance of [plaintiff]’s testimony”). 

B. Defendants were ready, willing, and able to settle this matter

Plaintiff claims that instead of moving for summary judgment Defendants “could have, 

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and indeed, should have, engaged in settlement discussions.” (Pl. Pet. p. 3). Plaintiff overlooks 

the fact that he attended with Defendants two settlement conferences with Judge Finnegan—one

before and one after Defendants’ motion for summary judgment—and the Defendants also 

engaged in meaningful settlement talks with the assistance of the Court immediately preceding 

trial. To now claim that Defendants chose “to fight this case tooth and nail to the bitter end” (Pl. 

Pet. p. 3) is simply disingenuous on the part of Plaintiff. Mr. Longo also overlooks the fact that

he pushed back on—at every turn—the possibility of a settlement conference and also steadfastly 

refused to engage even in informal settlement discussions that involved in any way him coming 

down from his demand of $1.5 million. (2016 Settlement emails, attached hereto as Exhibit F); 

see Shea v. Galaxie Lumber & Const. Co., Ltd., 1999 WL 138791,*3 (noting the court’s 

skepticism of the motives behind counsel’s actions in “refusing to consider any settlement at 

several pretrial conferences before the court and instead demanding the right to go to trial”; 

suggesting that counsel’s motivation was to expand the amount of attorney’s fees). 

V. PLAINTIFF IS NOT ENTITLED TO AN UPWARD ADJUSTMENT OF THE 

LODESTAR AMOUNT

Plaintiff also argues for an upward adjustment of 15 percent of the already exorbitant 

lodestar (including an upward adjustment of his requested for hourly rate) because it was risky 

for his attorney to take this case. (Pl. Pet. pp. 11-15). However, courts have rejected awarding 

an enhanced rate based on the general risk of nonpayment. See Blum v. Stenson, 465 U.S. 886, 

901 & n. 17 (1984). Plaintiff makes several unsupported arguments such as attorneys working 

on these types of cases on a contingency basis cannot make a living and the State of Illinois 

“refuses to settle.” (Pl. Pet. p. 13). Plaintiff again forgets the three attempts at settlement in 

front of federal judges, and specifically that the final attempt at settlement with the Court 

included a separate amount for attorney’s fees. Moreover, the Supreme Court has clearly held 

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that “enhancement for contingency is not permitted under the fee-shifting statutes.” City of 

Burlington v. Dague, 505 U.S. 557, 567 (1992). 

Plaintiff also argues the delay in being paid necessitates an upward adjustment in the 

lodestar, making a somewhat tortured analogy to “Wall Street financiers.” (Pl. Pet. p. 14). 

Again, Plaintiff fails to mention the three (3) settlement attempts and the Rule 68 offer of 

judgment by Defendants that would have resulted in payment to Mr. Longo. Moreover, as seen 

in other litigation, it is Mr. Longo’s refusal to accept the opinion of the court and his decision to 

litigate, litigate some more, and appeal his fee awards that leads to the delay in payment. See 

Sommerfield v. City of Chicago, WL 3675722, at *2 (N.D. Ill. Aug. 25, 2017) (awarding Mr. 

Longo no fees on his second fee petition, prefacing the decision with: “[d]espite having thrown 

good money after bad by fighting the Magistrate Judge’s recommendations and appealing the fee 

award, Longo followed up on this first-round effort with yet another petition for fees and 

costs.”).

IV. PLAINTIFF’S CLAIMED COSTS

In his petition, Plaintiff appears to drop his claimed costs of $4,460.47 and agrees to 

Defendants’ calculation of $4,061.02. (Pl. Pet. p. 15). The Court retains the same discretion to 

grant or deny costs as it does with fees. See Baker v. Lindgren, 856 F.3d 498, 502 (7th Cir. 

2017). The Court should therefore award no more than $4,061.02 in costs to Plaintiff.

WHEREFORE, Defendants respectfully request that should the Court order attorney’s 

fees, Plaintiff’s attorney’s fees and costs be awarded in accordance with the rates suggested by 

Defendants in the amount of no more than $286,931.02.

Case: 1:12-cv-01789 Document #: 295 Filed: 09/01/17 Page 15 of 16 PageID #:7974
16

Respectfully submitted,

LISA MADIGAN

Attorney General of Illinois /s/ John R. Hayes 

JOHN R. HAYES

Office of the Illinois Attorney General

General Law Bureau

100 West Randolph Street, 13th Fl.

Chicago, Illinois 60601

(312) 814-5022

jhayes@atg.state.il.us

Case: 1:12-cv-01789 Document #: 295 Filed: 09/01/17 Page 16 of 16 PageID #:7975