Palar v. Blackhawk Bancorporation, Inc.

Decision Date19 August 2014
Docket NumberNo. 4:11-cv-04039-SLD-JEH,4:11-cv-04039-SLD-JEH
CourtU.S. District Court — Central District of Illinois

Plaintiff Bryce Palar sued Defendant Blackhawk Bancorporation, Inc., alleging unpaid compensation and retaliatory firing, among other claims, after Blackhawk terminated Palar in 2010. The Court granted Blackhawk summary judgment on all but one of Palar's claims, which he subsequently settled with Blackhawk. Now Palar seeks attorney's fees and costs on that settled claim pursuant to the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1 et seq., and the parties' agreement. For the following reasons, Palar's Motion for Attorney's Fees and Costs, ECF No. 45, is GRANTED IN PART and DENIED IN PART.


The Blackhawk board of directors voted to fire Palar from his junior loan officer position at Blackhawk on October 18, 2010. The next day, prior to learning of his termination, Palar demanded that Blackhawk compensate him alleged unpaid overtime wages he earned while coaching the Orion High School baseball team, a duty he claims was a condition of his employment.

After Palar learned of his termination and could not reach a settlement with Blackhawk on severance pay, he brought the instant suit, alleging nine claims for relief under four statutes: the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; the IWPCA; the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq.; and the Illinois Personnel Record Review Act ("IPRRA"), 820 ILCS 40/1 et seq. The nine claims were for: under the FLSA, (1) unpaid overtime for coaching time and (2) termination in retaliation for filing an FLSA complaint for unpaid overtime; under the IWPCA, (3) interest on his delinquent wages, (4) failure to pay "wages" for coaching time, and (5) failure to compensate for unused personal days and his final day of employment; under the FCRA, (6) failure to make appropriate disclosure after conducting an investigative consumer report, (7) adverse action based on a consumer report without providing a copy and description of rights, and (8) failure to provide due process as a credit reporting agency; and under the IPRRA, (9) failure to grant Palar access to his full personnel file.

The Court granted Blackhawk summary judgment on all but Palar's claim for interest on his delinquent wages. Because Palar was fired on October 21, 2010, and Blackhawk admitted to failing to send Palar his final compensation check until around July 2011, the Court denied Blackhawk summary judgment as to whether Palar was timely paid under the IWPCA. Sept. 25, 2013 Order 13; see 820 ILCS 115/5. The statute entitles an employee to interest on unpaid final compensation at 2% per month delayed, along with costs and reasonable attorney's fees. 820 ILCS 115/14(a).

Blackhawk subsequently paid Palar the full amount of interest available on his IWPCA claim, $261.00, and also promised to "pay costs and reasonable attorney's fees as may be allowed by the court in regard to Plaintiff's pursuit of his [IWPCA] claim." Pl.'s Mot. Att'y Fees, Ex. D at 1, ECF No. 45-5; Def.'s Resp. to Mot. Att'y Fees 2, ECF No. 46. In the instant motion, Palar argues thathe is entitled to attorney's fees for135.30 hours at a rate of $400 per hour, reduced by 50% to reflect that part of the legal work advanced the unsuccessful claims, for a total of $27,060.00. Pl.'s Mot. Att'y Fees, Ex. G at 3, ECF No. 45-8; Pl.'s Mem. In Supp. Mot. Att'y Fees 6. He also requests $1,739.75 in costs: the $350.00 case filing fee plus $462.05 and $927.70 for a reporting service for the depositions of Palar and W. Gerard Huiskamp, James Huiskamp, and Thomas J. Hoffman, respectively. Blackhawk counters that, if Palar is entitled to attorney's fees and costs at all, both requested amounts should be significantly reduced to reflect the defeat of the majority of Palar's claims. See, e.g., Def.'s Resp. to Mot. Att'y Fees 5.


Blackhawk does not challenge Palar's ability to seek attorney's fees and costs under the IWPCA on the basis of their settlement. Cf. Maher v. Gagne, 448 U.S. 122, 129 (1980) (noting in the civil rights statutory context that "[t]he fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees").

I. Lodestar Method Applies

Blackhawk argues that, in light of the Court's rejection of all his other claims, the $261.00 settlement of Palar's IWPCA interest claim represents only a de minimis victory, and therefore the lodestar method does not apply to calculation of fees. Def.'s Resp. to Mot. Att'y Fees 2.

A. Legal Framework

The Federal Rules of Civil Procedure provide that a party may recover its attorney's fees if provided for in a judgment, statute, rule, or other authority. Fed. R. Civ. P. 54(d)(2)(B)(ii). The IWPCA provides that, where an employee is not timely paid wages, final compensation, or wage supplements as required by the IWPCA, "[i]n a civil action, such employee shall also recover costsand all reasonable attorney's fees." 820 ILCS 115/14(a). The IWPCA's purpose is "to ensure employees receive all earned benefits upon leaving their employer," and "the evil it seeks to remedy is the forfeiture of any of those benefits." Kim v. Citigroup, Inc., 856 N.E.2d 639, 646 (Ill. App. Ct. 2006) (quoting Swavely v. Freeway Ford Truck Sales, Inc., 700 N.E.2d 181, 189 (Ill. App. Ct. 1998)). Illinois attorney fee statutes are strictly construed. Brewington v. Dep't of Corr., 513 N.E.2d 1056, 1062 (Ill. App. Ct. 1987).

The U.S. Supreme Court has held that a plaintiff who wins only nominal damages in a civil rights suit is still a "prevailing party" eligible to receive reasonable attorney's fees; however, "reasonable" in that context usually means zero. Aponte v. City of Chicago, 728 F.3d 724, 726-27 (7th Cir. 2013) (citing Farrar v. Hobby, 506 U.S. 103, 113, 115 (1992)). A reasonable fee for such a "technical or de minimis" victory must reflect: (1) the difference between the amount sought and recovered, (2) the significance of the issue prevailed upon relative to all issues litigated, and (3) whether the case achieved some public benefit. Id. at 727 (citing Farrar, 506 U.S. at 120-22 (O'Connor, J., concurring)). In such a case, therefore, the traditional lodestar for determining attorney's fees is inapplicable. Aponte, 728 F.3d at 727.

Although Farrar addressed attorney's fees under 42 U.S.C. § 1988, federal courts have applied its alternative considerations for de minimis victories outside the civil rights context. See, e.g., Perlman v. Zell, 185 F.3d 850, 859 (7th Cir. 1999) (holding that plaintiff's recovery of only 7% of his initial demand in contract, fraud, and RICO suit undermined his claim to full attorney's fees); Anderson v. AB Painting & Sandblasting Inc., 578 F.3d 542, 545 (7th Cir. 2009) (rejecting application of Farrar in Employee Retirement Income Security Act suit because party recovered entire amount of claimed deficiency). Illinois courts also consider Farrar when applying Illinoisstatutory attorney's fees provisions. See, e.g., Doe v. Flava Works, Inc., 2014 IL App. (1st) 121491-U, 2014 WL 470638, at *4-*5 (Ill. App. Ct. Feb. 4, 2014) (upholding denial of attorney's fees where plaintiff achieved only "de minimis success" in Illinois Right to Publicity Act suit); Berlak v. Villa Scalabrini Home for the Aged, Inc., 671 N.E.2d 768, 771-72 (Ill. App. Ct. 1996) (distinguishing Farrar in upholding attorney's fees award to Illinois Nursing Home Care Reform Act plaintiff); see also Brewington, 513 N.E.2d at 1062 ("In the absence of Illinois cases on issue, we may look to analogous [f]ederal decisions.").

B. Analysis

The parties provide no case law interpreting the IWPCA attorney's fees provision on this issue, nor can the Court independently find any.2 However, an Illinois court's interpretation of a similar Illinois statutory fee provision indicates that Farrar is not applicable here.

At the outset, the Court notes that Farrar—although its principles have been applied broadly since their birth in the civil rights context—arises from different statutory language. Section 1988 provides that a court "may allow the prevailing party" reasonable attorney's fees. 42 U.S.C. § 1988(b). The IWPCA, by contrast, states that an employee "shall recover" attorney's fees and costs. 820 ILCS 115/14(a). Although a requirement that the plaintiff prevail on the IWPCA claim is arguably implicit in the structure of 820 ILCS 115/14(a), the absence of an express "prevailing" prerequisite, coupled with the use of "shall" versus "may," suggests a relatively stronger statutory intent that an IWPCA plaintiff (compared to one suing under § 1983) receive fees.

The presence of "shall" and absence of "prevailing" makes 820 ILCS 115/14 similar to the Illinois Nursing Home Care Reform Act ("NHCRA") attorney's fees provision, 210 ILCS 45/3-602. That section provides: "The licensee shall pay the actual damages and costs and attorney's fees to a facility resident whose rights, as specified [in this Act], are violated." Id. Courts interpreting this provision have held that "shall" indicates mandatory legislative intent. Rath v. Carbondale Nursing & Rehab. Ctr., Inc., 871 N.E.2d 122, 129 (Ill. App. Ct. 2007); Berlak, 671 N.E.2d at 771. Such a provision should not be interpreted permissively if a person's right or benefit depended on giving the provision a mandatory meaning. See Berlak, 671 N.E.2d at 771.

The Berlak Court, interpreting the NHCRA attorney's fees provision as a matter of first impression, looked for guidance to federal civil rights case law, but ultimately rejected application of the Farrar de minimis victory doctrine. 671 N.E.2d at 771-72. Berlak noted that the NHCRA's aim is to encourage residents to seek legal redress against nursing homes that violated their rights, and that many Act violations...

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