claim.
Conclusion
For the reasons stated above, the Court grants plaintiffs’ fee petition and awards plaintiffs

attomcy’s fees and expenses in the amount of $27,007.43.

Whe

United States District Judge

Date: December 3{, 2002



approximation of the amount properly attributable to the breach of contract claim. Thus through
the conclusion of the trial plaintiffs are entitled to recover one-half of $48,114.87 (consisting of
attorncy’s fees of $46,586.25 and expenses of $1,528.62), or $24,057.43.

Plaintiffs are entitled to recover all of the attorney’s fees they reasonably incurred
following the Court’s ruling, as these fees were all related to the breach of contract claim. After
trial, defendants moved for reconsideration, and plaintiffs then had to file and brief their fee
petition. The Court does not believe, however, that all of these fecs were reasonably incurred.
First, the Court did not order or request plaintiffs to respond to defendants’ motion for
reconsideration, and indeed we ruled on the motion before receiving plaintiffs’ response.
Plaintiffs had no reason to incur this cxpensc unless and until they were directed to respond to
the motion. Second, it appears from plaintiffs’ attorneys’ time records that they charged
approximately $2,235 preparing the fee petition (1.5 hours of Mr. Levinson’s time at $425 per
hour, 8.5 hours of Mr. Chronowski’s time at $180 per hour, and 0.5 hours of Mr. Clark’s time at
$160 per hour). This is unreasonably excessive by perhaps onc-third; the petition was a
straightforward five and one-half page memorandum that involved no contested legal issucs.
‘Third, plaintiffs estimate a similar amount, $2,250, for their reply on the fee petition. This is
unreasonably excessive by a similar amount. The Court will award a total of $2,950 for the
preparation and bricfing of the fee petition. The total award of attorney’s fees and expenses is
$27,007.43,

The Court declines to reduce the award based on defendants’ argument that plaintiffs
achieved only limited success on the breach of contract claim. The contract provides no basis to

make such a reduction, and in any event plaintiffs achieved most of what they sought on that



£0108)

United States District Court, Northern District of Illinois

Name of Assigned Judge Matthew F. Kennelly Sitting Judge if Other
or Magistrate Judge ‘ than Assigned Judge
CASE NUMBER 01 C 8698 DATE 12/31/2002
CASE Henry vs. O'Keefe
TITLE
[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b} state brielly the nature
MOTION: ol the motion being presented. |
DOCKET ENTRY:
(1) u Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion duc
(3) 0 Answer brief to motion due . Reply to answer brief due__
(4) O Ruling/Hearing on setfor at
(3) a Status hearing[held/continued to] [set for/re-set for] on _, Set for _ at
(6) Oo Pretrial confercnce[held/continued to] (set for/re-set for] on___set for at
(7) i) Trial{set for/re-set for] on ate
(8) D [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) CLocalRule 41.1 CIFRCP41(a\1) OO FRCP41(a)(2).
(10) [Other docket entry] For the reasons set forth on the attached order, the Court grants plaintilfs’ fec
petition and awards plaintiffs attorncy’s fees and expenses in the amount of $27,007.43.
dl) [For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
No notiegs required snr ones Number
Notices mailed by judge's staff. ;
Notified counsel by telephone, JAN 08 2003
of | Docketiny to mail notices.
Mail AQ 450 foc hier
Copy In yudge/magisirate judge
courtroom date ues non
OR depuly's
initials
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O1u ‘al Clas Office wring deputy ink



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
arneren
: 03

PETER HENRY and O’KEEFE- ) JAN 08 aw
HENRY DIRECT, INC., y
)
Plaintiffs, )
)

vs. ) Case No. 01 C 8698

)
JEAN O°’ KEEFE and O’KEEFE )
DIRECT MARKETING, INC,, )
)
Defendant. }

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

After a bench trial, the Court found in favor of plaintiffs on their breach of contract claim
against defendants (Count 1 of their complaint) and in favor of defendants on plaintiffs’ claims
under the Lanham Act (Count 3), the Illinois Deceptive Trade Practices Act (Count 4), the
Illinois Consumer Fraud and Deceptive Business Practices Act (Count 5), and for common law
unfair competition and trademark infringement (Count 6). See Henry v. O'Keefe, No. 01 C 8698,
2002 WL 31324049 (N.D. Ill. Oct. 18, 2002). The latter four claims were tried based on a
common theory. See id. at *8. Count 2, another Lanham Act claim, was voluntarily dismissed
by plaintiffs.

The contract that was the subject of Count 1 contained a provision which stated:

Attorncys’ fees: In the event that any party to this agreement incurs attorneys’
fees and costs to enforce his/her/their respective rights due to a breach by a party
to this Agreement, the party enforcing its rights under this agreement shall be
entitled to payment of such attorneys’ fees and costs from the party who has
breached the Agreement.



Plaintiffs’ Fee Petition, Ex. A. The Court has previously ruled that plaintiffs are entitled to
recover (heir atlomey’s fees and costs under the contract. Henry, 2002 WL 31324049, at *8.

The parties agree that recoverable fees and costs are limited to those incurred in enforcing
the contract and do not include those incurred in pursuing plaintiffs’ remaining claims. Plaintiffs
state that through the conclusion of the case, including the briefing of the fee petition, they
incurred a total of $53,961.25 in attomey’s fees and $1,528.62 in expenses, for a total of
$55,489.87. Defendanis do not dispute these figures, nor do they challenge the hourly rates
claimed by plaintiffs’ counsel. Rather, the dispule concerns the proportion of the fees
attributable to the breach of contract claim.

Plaintiffs contend that their fees and expenses are attributable one-hal! to the contract
claim and one-half to the remaining claims. Defendants argue that only one-tenth of the total
amount should be awarded; they point out that the contract claim was only one of six claims, and
they argue that plaintiffs achieved only limited success on that one claim. The Court rejects both
ofthese arguments. First of all, as noted earlier, the four non-contract claims that were tried all
involved a common legal theory; they cssentially amounted to four ways of saying the same
thing. Thus the case did, as plaintiffs argue, divide into two parts, not five or six. Sccond,
though there arguably were more legal issucs involved in the non-contract claims, thus requiring
more legal research, the breach of contract claim was more fact-oriented and thus took up most
of the time and effort during discovery and al trial. Though, as one district judge has noted,
“[d]etcrmining an appropriate [fee] award is not an exact science,” /n re Computron Software,
Inc., 6 F. Supp. 2d 313, 321 (D.N.J. 1998), the Court agrees with plaintiff that a 50-50 split of the

total attorney’s fees and expenses through the conclusion of the trial results in a fair