UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AMANDA MAYLE, )

)

Plaintiff, )

) Hon. Blanche M. Manning

v. )

) Case No. 03 CV 8746

EQUIFAX INFORMATION )

SERVICES, INC., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Having previously sanctioned the plaintiff and her attorneys by ordering them to pay the

defendants’ attorneys fees, the sole issue before the court is the reasonableness of the fees

requested. For the reasons that follow, the court grants in part and denies in part the defendants’

request for fees.

Background

Amanda Mayle attended Nova Southeastern University in 1993 when she applied for a

student loan. Mayle attempted to cancel the loan, but the loan was eventually approved and

proceeds in the amount of $1,207.96 were deposited into her school account. Ten years later,

she received notice from defendant Nelnet, Inc., that she owed $1,313 on the loan. Mayle

investigated and in June 2003 received a fax from Nova Southeastern confirming that the

proceeds of the loan had indeed been deposited into her school account in 1993. Nevertheless,

Mayle contested the validity of the loan with Nelnet as well as with defendants Trans Union,

LLC and Experian Information Solutions, Inc.

Eventually Mayle retained Krohn & Moss and gave them all of the documents she

possessed about the loan, including the June 2003 fax she received from Nova Southeastern
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confirming the loan. Krohn & Moss filed suit on her behalf alleging violations of the Fair Credit

Reporting Act, see 15 U.S.C. § 1681 et seq., and defamation. The defendants consequently

expended considerable time investigating and answering Mayle’s claims. As part of their

investigation, the defendants obtained from Nova Southeastern Mayle’s student account records,

which confirmed that the proceeds of the loan had been deposited. The day after receiving

Mayle’s records from Nova Southeastern, the defendants made a written demand that Mayle

dismiss all her claims with prejudice, which she did.

The defendants subsequently moved for sanctions, specifically the attorneys fees they

incurred defending against Mayle’s frivolous claims. The court denied sanctions under Federal

Rule of Civil Procedure 11 because Mayle dismissed her suit within 21 days of the defendant’s

written demand. But it granted sanctions against Krohn & Moss under 28 U.S.C. § 1927, which

requires an attorney who “multiplies the proceedings in any case unreasonably and vexatiously”

to pay “fees reasonably incurred because of such conduct.” It also granted the request for

sanctions against Mayle under 18 U.S.C. § 1681n(c), which entitles a prevailing defendant to

reasonable attorney’s fees from a plaintiff who proceeded under the Fair Credit Reporting Act

“in bad faith or for the purposes of harassment.”

The court awarded the defendants the fees they requested, but upon reconsideration,

struck the award and directed the defendants to substantiate their requests by submitting

supporting documentation. The defendants have now documented fees and costs in the amount

of $27,644.25 for Nelnet, $10,157.19 for Experian, and $29,541.95 for Trans Union. Mayle

contends that the amount of time the defendants’ attorneys devoted to defending against her suit

is excessive, and asks the court to reduce the hours allowed substantially.
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Analysis

Fair Credit Reporting Act

The Fair Credit Reporting Act permits consumers to sue credit reporting agencies for

disseminating false information about their credit histories. Sarver v. Experian Information

Solutions, 390 F.3d 969, 971-72 (7th Cir. 2004). Consumers can recover actual damages for

negligent violations of the Act, plus punitive damages for willful violations. Stergiopoulos &

Ivelisse Castro v. First Midwest Bancorp, Inc., 427 F.3d 1043, 1046 (7th Cir. 2005). Mayle

requested punitive damages, alleging in her complaint that the defendants had “deliberately” and

“willfully” disseminated derogatory information about her credit history, which caused Mayle

“emotional distress” and “mental anguish,” and impaired her ability to get credit. She set forth

similar allegations to support her state law claim for defamation.

While the Act imposes stiff penalties on defendants who violate its provisions, it also

penalizes plaintiffs who file false claims under the Act. Specifically, the Act directs that:

[u]pon a finding by the court that an unsuccessful pleading, motion, or other paper

filed in connection with an action under this section was filed in bad faith or for

purposes of harassment, the court shall award to the prevailing party attorney’s fees.

15 U.S.C. § 1681n(c). In its order dated March 18, 2005, the court previously determined that

Mayle violated § 1681n(c):

both Mayle and Krohn & Moss acted unreasonably in filing this action because they

knew (or should have reasonably known) that the claims against Defendants were

frivolous. Prior to the filing of this action, both Mayle and Krohn & Moss had

documentation that the Loan was dispersed to Mayle’s student account with Nova.

Therefore, under § 1681n(c), as well as 28 U.S.C. § 1927, defendants are entitled to fees.

However, before awarding fees, the court must ensure that the defendants’ request for fees is
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“reasonable in relation to the work expended in responding to the pleading, motion, or other

paper.” 15 U.S.C. § 1681n(c).

Reasonableness Of Fees

Mayle has not taken issue with the hourly rates charged by defendants’ attorneys, but

rather objects to the amount of time attorneys billed. When determining whether counsel

expended a reasonable amount of hours, the court must ensure that counsel exercised proper

“billing judgment;” that is, the court may allow only those fees that would normally be billed to

a paying client. Hensley v. Eckerhart, 461 U.S. 424, 441 (1983). The court will not, however,

“eyeball” the fee request and cut it down by an arbitrary percentage, even if the request seems

excessive, in the absence of objections stated with particularity and clarity. People Who Care v.

Rockford Bd. of Educ. Sch. Dist. No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996); Ohio-Sealy

Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646, 664 (7th Cir. 1985). The defendants bear the

burden of demonstrating that their request for fees is reasonable, and must submit evidence

supporting the hours worked and rates claimed. See Spellan v. Board of Educ., 59 F.3d 642, 646

(7th Cir. 1996).

The court has wide discretion to adjust the fees requested in light of any objections. 

Moriarity ex rel. Local Union No. 727, Int’l Bhd. of Teamsters Pension Trust v. Svec, 429 F.3d

710, 717 (7th Cir. 2005). In exercising its discretion, the court will draw upon its knowledge of

the history of this case, its review of the pertinent pleadings and briefs, and its years as a judge

and practicing attorney as well as its familiarity with the customs of attorneys in the area. The

court also notes that it has reviewed all of the parties’ briefs, affidavits, and attachments, and has

analyzed for itself the bills submitted by defendants’ counsel. The court will also keep in mind

that while Mayle’s complaint was fairly straightforward, its frivolousness did not come to light
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until after considerable diligence on the part of the defendants and their attorneys who eventually

uncovered the document from Nova University that undermined Mayle’s claim.

The court acknowledges that at first blush the defendants’ requests appear steep. Added

together, the requests exceed $65,000, dwarfing the relatively meager $1,200 student loan from

which this case stems. This enormous disparity underscored the court’s need to diligently

review defendants’ fee requests and ensure that only those fees that are reasonable be awarded.

However, when determining whether the hours the defendants’ attorneys billed were

reasonable, the court must also bear in mind the potential liability the defendants faced. 

Defendants’ liability would have been based not upon the $1,200 value of Mayle’s loan, but

rather would have been based upon actual damages Mayle suffered as a result of inaccuracies in

her credit report. Even more significant, because Mayle included allegations that the defendants

violated the Fair Credit Reporting Act willfully and libeled her, the defendants faced punitive

damages in the tens or even hundreds of thousands of dollars.

Accordingly, the court has thoroughly reviewed the defendants’ billing statements in

order to identify any instances of work billed by the defendants’ attorneys which was not

reasonable. As detailed below, fees for work the court has identified as unreasonable will not be

awarded. However, for work the court believes was performed reasonably, fees will be awarded

to the defendants as required under both the Fair Credit Reporting Act, see 15 U.S.C. § 1681n(c),

as well as 28 U.S.C. § 1927.

Nelnet’s Fees

With all that in mind, the court turns first to Nelnet’s request for $27,644.25 in costs and

fees. Mayle objects first to the amount of time Nelnet’s attorneys spent drafting pleadings and

discovery requests, as well as responses to Mayle’s discovery requests. In all, Nelnet attorneys
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billed 31.3 hours researching Mayle’s claims, discussing them with their client, drafting

pleadings and attending court. In addition, Nelnet attorneys billed 42.1 hours on discovery,

including reviewing plaintiff’s requests for discovery, reviewing documents from their client and

producing them to Mayle, and drafting discovery requests and reviewing Mayle’s responses.

Mayle’s objection that Nelnet attorneys spent too much time preparing their defense is

peculiar. She attempts to portray the time Nelnet’s attorneys billed as excessive when compared

to the time her attorneys spent on similar tasks, yet spending too little time on investigation and

preparation is what resulted in the sanctions leveled against her and her counsel. Had she and

her attorneys invested more time in reviewing Mayle’s documents, they would have realized she

had no claim. Consequently, her criticism of the time Nelnet invested in this case is not

persuasive.

Beyond that, the 70 or so hours Nelnet spent on pleadings and discovery does not strike

the court as excessive. According to billing records, much of the time was necessitated by

Mayle herself. For instance, defendants had to respond to her complaint, requests for discovery,

and requests to admit. To its credit, Nelnet attempted to keep down its costs by procuring

Mayle’s consent to the release by Nova Southeastern of her student account records, avoiding

the expense of obtaining the records by subpoena. Nelnet billed very little between the time it

forwarded Mayle’s consent to Nova Southeastern and when Nova Southeatern responded with

documents that showed loan proceeds deposited into Mayle’s student account. The day after

Nelnet received those documents, it wrote Mayle demanding that she drop her suit. In sum, it

appears from the billing records that Nelnet’s attorneys incurred most of their time responding to

Mayle’s pleadings and discovery requests, while obtaining records of Mayle’s student account as
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quickly and cheaply as possible. Accordingly, the fees Nelnet incurred for pleadings and

discovery appear to be reasonable.

Next, Mayle objects to the time Nelnet devoted to its motion for sanctions. A party

entitled to fees is also entitled to the time spent on a motion for fees. Stark v. PPM America,

Inc., 354 F.3d 666, 674 (7th Cir. 2004) (affirming fees incurred drafting motion for fees). 

According to Nelnet’s affidavits, its attorneys billed more than 50 hours researching and drafting

its motion for sanctions under Rule 11, 28 U.S.C. § 1927 and 15 U.S.C. § 1681n(c).

The court agrees with Mayle that 50 hours is excessive, especially given that 50 hours is

not much less than the total time Nelnet spent on pleadings and discovery. Nelnet contends that

it “did not decide to file its Motion for Sanctions lightly,” and therefore “thoroughly researched”

whether such a motion would be prudent. Although the court appreciates the thought that Nelnet

put into its decision to seek sanctions, the court is not convinced that the thought process should

have taken the better part of 50 hours. Nelnet had already determined that Mayle had no claim. 

Beyond that, it should not have taken more than 10 hours to conclude that Mayle’s suit was

frivolous and warranted sanctions. Add to that another 15 hours for drafting the motion and

reviewing Mayle’s response (Experian’s attorneys drafted the reply), the court believes that a

reasonable amount of time to devote to the motion for sanctions was 25, not 50, hours. (The

court notes that Nelnet’s motion for sanctions under Rule 11 failed, but Nelnet’s motion also

asserted two other bases for sanctions which succeeded. The court concludes that the

unsuccessful Rule 11 portion of the motion for sanctions accounted for an insignificant amount

of Nelnet’s work preparing the motion, and, accordingly, does not believe that any additional

reduction in time is appropriate).
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Next, Mayle contends that Nelnet is not entitled to recover any of its fees for responding

to her motion for reconsideration of this court’s order granting the motion for sanctions. In

support, Mayle asserts that she “has every right to defend herself and should not be forced to

compensate Defendant for its reply.” The court understands Mayle to be distinguishing her

frivolous complaint, which she was not entitled to file, from her motion for reconsideration,

which succeeded partially. However, even though Mayle convinced the court that the

defendants should be required to substantiate their requests for fees, the vast majority of Mayle’s

motion merely rehashed the arguments she made when opposing the motion for sanctions. A

motion for reconsideration is not a party’s second chance to make its argument hoping to

persuade the court that its ruling was wrong. Talano v. Northwestern Medical Faculty

Foundation, Inc., 273 F.3d 757, 762 (7th Cir. 2001). Furthermore, as discussed earlier, Nelnet is

entitled to recover fees it spends seeking sanctions, or in this case preserving its award of

sanctions. See Stark, 354 F.3d at 674. Accordingly, Nelnet is entitled to the fees it incurred

responding to her mostly frivolous motion for reconsideration.

Finally, Mayle objects to paying $52 in cabfare to transport a Nelnet attorney to and from

court. The court agrees with Mayle that the offices of Nelnet’s attorneys are not so far as to

warrant passing along the cost of a cab ride to its client, and in turn to Mayle.

In sum, the court finds, in its discretion, that the number of hours Nelnet’s attorneys

billed were reasonable except for 25 of the hours they spent on the motion for sanctions. 

According to the affidavit of Nelnet attorney Scott Frost, and the documents attached, the

majority of the work on the motion for sanctions was billed by an associate at an hourly rate of

$185(which is also the rate Mayle recommends be used). Accordingly, the court reduces
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Nelnet’s request for fees by $4,625 (25 x $185), reduces its costs by $52 for cabfare, leaving a

total of $22,967.25.

Experian’s Fees

Mayle also objects to the $10,157.19 in fees that defendant Experian requests. First, she

contends that Experian spent too much time preparing its pleadings and engaging in discovery. 

Specifically, she argues that 9.5 of the hours Experian’s attorneys spent on pleadings and

discovery should have taken only 4 hours.

For the reasons discussed above, Mayle’s criticism is unpersuasive given the shoddy

preparation that went into her complaint. The court does not believe that Experian’s decision to

spend five hours longer preparing its pleadings and discovery than Mayle would have spent is

unreasonable.

Next, Mayle objects to the 13.1 hours Experian’s counsel spent on the motion for

sanctions. The court believes that the hours are reasonable. Although Experian merely joined

in the motion drafted by Nelnet, it spent time reviewing Nelnet’s draft and Mayle’s response,

and on drafting the defendants’ joint reply. In fact, Experian saved substantial effort by joining

in Nelnet’s motion for sanctions; had it filed its own motion, its fees could reasonably have been

expected to be much higher.

Mayle also objects to the time Experian spent responding to her motion to reconsider the

court’s order granting the defendants’ request for sanctions. The court believes that the entire

eight hours Experian spent reviewing Mayle’s motion for reconsideration and responding was

reasonable. Although Mayle partially succeeded, mostly she rehashed old arguments that were

not the proper basis of a motion for reconsideration.
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Next, we agree with Mayle that Experian is not entitled to $30 in cab fare spent traveling

to and from court.

Finally, Mayle argues that Experian is not entitled to fees exceeding $4,731, the amount

Experian sought in its original motion for sanctions for work done through October 2004. 

Attorneys’ billing statements reveal that the fees beyond the $4,731 originally requested were

incurred after October 2004, mostly for reviewing Mayle’s response to the motion for sanctions,

preparing the defendants’ reply, and responding to Mayle’s motion for reconsideration. As

discussed above, these fees are recoverable.

In sum, the court concludes that all but $30 of Experian’s request for fees and costs is

reasonable, for a total of $10,127.19.

Trans Union

As she did with Nelnet and Experian, Mayle objects to the amount of time Trans Union

attorneys spent drafting pleadings, attending court, and engaging in discovery. Specifically, she

argues that what took Trans Union attorneys 22.2 hours to accomplish should have taken no

more than 7 hours. As the court has already stated, Mayle’s criticism is unpersuasive, and the

court does not believe that the decision by Trans Union’s counsel to spend more time preparing a

defense than Mayle would have spent was unreasonable. Likewise, the court does not believe

that the 31 hours Trans Union devoted to discovery was unreasonable, even though Mayle

contends it should have taken no longer than 4.8 hours.

Next, Mayle objects to the 27.6 hours Trans Union’s attorneys billed for researching its

sanctions motion and reviewing Mayle’s response. The court agrees that this number is

excessive. According to Trans Union, it spent more than 18 hours researching whether to file a

motion for sanctions. For the same reasons the court articulated earlier while analyzing Nelnet’s
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fee requests, the court does not believe that Trans Union’s counsel needed any more than 10

hours to research its motion given the extensive work it had already completed researching

plaintiff’s claims and engaging in discovery. The court also believes that counsel needed no

more than 5 hours to review Mayle’s response, especially in light of the fact that Trans Union

did not prepare the defendants’ reply in support of the motion. Consequently, the court believes

that a reasonable amount of time to devote to the motion for sanctions was 15, not 27.6, hours.

In sum, the court finds, in its discretion, that the number of hours Trans Union’s

attorneys billed were reasonable except for 12.6 of the hours they spent on the motion for

sanctions. According to the affidavit of Trans Union attorney Judith Schuch, she worked on the

motion for sanctions and her billing rate was $270.00. Accordingly, the court reduces Trans

Union’s request for fees by $3,402 (12.6 x $270), leaving a total of $26,139.95.

Conclusion

In sum, the defendants have demonstrated that most, but not all, of the fees they incurred

were reasonable, and therefore their petition for fees [56-1] is granted in part and denied in part. 

The court recognizes that the resulting sanction involves a significant award, especially in light

of the relatively small size of Mayle’s student loan. But under the provisions of the Fair Credit

Reporting Act as well as 28 U.S.C. § 1927, Mayle and her counsel brought the sanctions upon

themselves by failing to properly investigate her claim before filing suit.
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Accordingly, Mayle and her counsel, Krohn & Moss, are directed to pay fees as follows: 

$22,967.25 to Nelnet; $10,127.19 to Experian, and $26,139.95 to Trans Union. The defendants’

remaining requests for fees are denied.

ENTER:

DATE: February 14, 2006 

Blanche M. Manning

United States District Judge