01-6858.123 October 31, 2012

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALEJANDRO DURAN, et al., )

)

Plaintiffs, )

)

v. ) No. 01 C 6858

)

TOWN OF CICERO, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The court has considered the affidavits of David A. Cerda,

John R. DeLeon and Joseph R. Lopez filed in response to our order

of October 10, 2012. The affidavits persuade the court that these

attorneys did in fact have written contingent-fee agreements with

the plaintiffs in this case. 

There were two things that caused the court to have

considerable doubt as to whether there had ever been written

contingent-fee agreements. One was the delay of Mr. Cerda in

revealing that the agreements were “missing” when called upon to

produce them. We could see no legitimate reason for this delay and

interpreted it as some evidence that the agreements had never

existed. The other circumstance was the obvious improbability of

Mr. Castellano’s having lost the agreements. 

Against these troubling matters, we now have the affidavits

of Messrs. Cerda, De Leon and Lopez attesting to the fact that the
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written agreements were executed and subsequently lost. The

affidavits overcome our skepticism. 

The court finds that the plaintiffs’ attorneys did have

enforceable written contingent-fee contracts with the plaintiffs. 

 * * * * 

There remains the motion of the Town of Cicero for sanctions

against David A. Cerda for the unnecessary delay in disclosing that

the contingent fee contracts are missing. We agree with the Town

that Mr. Cerda should have informed the court and counsel when the

matter first came up that the agreements could not be found. 

However, the issue arose only because the Town took the position

that the existence of a contingent-fee agreement barred the

collection of any statutory fees. Mr. Cerda knew this position was

wrong — as it was — and it is understandable how he might therefore

have concluded that whether contingent-fee agreements existed was

irrelevant. The Town was not raising the possibility that there

were no agreements; the Town saw it as being in its interest that

there were agreements, since this would, in its view, relieve it of

having to pay statutory fees. It was the court, not the Town, that

was concerned with the possibility that there had never been any

written agreements. 

Arguably, there was fault on both sides — on Mr. Cerda’s

part for withholding the fact that the agreements were missing and

on the Town’s part for making the invalid argument that contingent-
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fee agreements would bar the recovery of statutory fees. The

Town’s motion for sanctions [609] against plaintiffs’ counsel is

denied. 

 * * * * 

In the brief filed by Messrs. Parts and Lopez in response

to the court’s order of October 10, 2012, certain suggestions are

made as to how the necessary payments of fees and costs might be

made. (Brief at 10-11.) This case is set for a conference at

10:30 a.m. on November 7, 2012 for a ruling on what procedures

should be followed and for entry of a final order regarding the fee

and costs awards. 

DATED: October 31, 2012

ENTER: ______________________________________________

John F. Grady, United States District Judge