Pickett v. Sheridan Health Care Center

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-2146

D ANIELLE P ICKETT,
Plaintiff-Appellant,
v.

S HERIDAN H EALTH C ARE C ENTER,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 1722— Rebecca R. Pallmeyer, Judge.

A RGUED O CTOBER 27, 2011—D ECIDED D ECEMBER 15, 2011

Before F LAUM, K ANNE, and W OOD , Circuit Judges.
F LAUM, Circuit Judge. Ernest T. Rossiello & Associates,
P.C. successfully represented plaintiff Danielle Pickett in
a Title VII retaliation suit against her employer, defendant
Sheridan Health Care Center (“Sheridan”). The jury
awarded $65,000 in damages to Pickett, and her attorneys
then sought to recover attorneys’ fees in the amount
of $131,665.88. The district court granted plaintiff’s
fee request in part and denied it in part, resulting in a
fee award to Rossiello of $70,000.
2 No. 11-2146

Although we appreciate the district court’s desire to limit
the substantial fees that Rossiello stands to recover from
this case, we conclude that the district court looked
to certain impermissible considerations in calculating
the fee award. Most significantly, the district court erred
to the extent that it relied on the existence of the contin-
gent fee agreement to reduce the statutory fee award.
Further, the court should have provided plaintiff with
an opportunity to respond before applying the Con-
sumer Price Index (“CPI”) and the Laffey Matrix, and
the court should have provided a clear explanation as
to how it arrived at the hourly rate of $400. Finally,
the district court erred in reversing its award of fees
to outside counsel. We therefore vacate the award of
attorneys’ fees and remand for further proceedings.

I. Background
The present dispute over attorneys’ fees stems from
litigation brought under Title VII of the Civil Rights Act
of 1964. Pickett claimed that she was fired from her job
as a housekeeper for complaining to management about
being sexually harassed by residents of the Sheridan
Health Care Center, a nursing home. The district
court granted Sheridan’s motion for summary judgment
on the sexual harassment claim but permitted the retalia-
tion claim to go to trial. After a two-day trial, the
jury returned a verdict for plaintiff in the amount
of $65,000, consisting of $15,000 in compensatory damages
and $50,000 in punitive damages. In addition, the district
court awarded equitable relief, including back pay
No. 11-2146 3

of $1,357.42. We affirmed these judgments. Pickett v.
Sheridan Health Care Ctr., 610 F.3d 434 (7th Cir. 2010).
The parties then attempted but were unable to settle
the issue of attorneys’ fees.
Plaintiff’s contract with her attorneys requires her to
pay a 33.33% contingent fee and a $7,500 flat fee, in addi-
tion to assigning her statutory right to fees. The contract
states that no portion of the contingent fee will be credited
towards the statutory fee and that any statutory award
is in addition to the contingent fee. Plaintiff sought
a statutory award of $131,665.88 in attorneys’ fees
and $1,271.27 in costs. Accompanying the fee petition
was an affidavit from Rossiello, affidavits from three
experienced employment lawyers in Chicago, evidence
of Rossiello’s past fee awards, time and billing records
for this case, and time records from Davis v. Electrical
Insurance Trustees, No. 06C5913, a two-day Title VII
case decided around the same time. Plaintiff also filed
three motions requesting an evidentiary hearing on the
fee petition, but none was held.
On March 29, 2011, the district court issued an opinion
that granted in part and denied in part plaintiff’s request
for fees and costs. The court eliminated 20 hours due
to Rossiello’s failure to remove hours spent on the
losing sexual harassment claim. The court further reduced
the award by 2.17 hours of associate time because Rossiello
should not have been supervising while suspended
from the practice of law. The district court then reduced
the fee award due to duplicative work on the fee petition:
even though Rossiello had retained outside counsel,
4 No. 11-2146

Abrahamson, Vorachek & Levinson (“Abrahamson”), to
prepare the fee petition, Rossiello also spent 17.16 hours
on this task. The court awarded Rossiello only 10
of those hours but approved all 13.75 of Abrahamson’s
hours.
Moreover, the court determined that Rossiello had
not established his claimed hourly rate of $592.50 to be
his market rate. The district court instead used the CPI and
the Laffey Matrix (a measure used by some district courts
to determine hourly rates), even though neither methodol-
ogy had been presented by the parties. The district
court then noted “most significantly” that Rossiello
was entitled to receive a contingent fee and a flat fee,
in addition to the statutory fee. The court stated that
“[i]n light of this agreement, the evidence that Mr.
Rossiello cites in support of his very substantial hourly
fee is less persuasive” and concluded that “an hourly
rate of $400 will amply compensate” him.
The district court ordered the parties to submit an agreed
calculation of the amounts owed in accordance with
its opinion. The parties arrived at a reduced fee award
of $70,000 (175 hours at $400 per hour) for Rossiello
and $9,268.79 in fees and costs for Abrahamson. The
district court then entered its final award two days
later, awarding $70,000 in fees to plaintiff for Rossiello’s
work. Unexpectedly, the court denied the $9,268.79 award
to Abrahamson, reversing its previous position on
the ground that Rossiello had failed to establish that he
had prepaid Abrahamson’s fees.
Plaintiff now appeals certain aspects of the district
court’s fee reduction. Specifically, plaintiff argues that the
No. 11-2146 5

district court improperly reduced Rossiello’s hourly rate
based on the contingent fee agreement and that the
court improperly rejected the evidence submitted by
Rossiello in support of his claimed hourly rate. Plaintiff
also argues that the district court should not have applied
the CPI adjustment or the Laffey Matrix without
prior notice. Plaintiff further contends that the court failed
to explain how it arrived at an hourly rate of $400 and
that it abused its discretion in refusing to conduct
an evidentiary hearing regarding attorneys’ fees. Finally,
plaintiff argues that the district court erred in
denying Abrahamson’s fees on the ground that they
had not been prepaid.

II. Discussion
A. Standard of Review
We review the award of attorneys’ fees for abuse of
discretion. Anderson v. AB Painting & Sandblasting Inc.,
578 F.3d 542, 544 (7th Cir. 2009). This is a “highly deferen-
tial abuse of discretion standard.” Estate of Borst v.
O’Brien, 979 F.2d 511, 514 (7th Cir. 1992). We accord
this significance deference to the district court because:
“(1) it possesses ‘superior understanding of the litigation
and [there exists a] desirability of avoiding frequent
appellate review of what essentially are factual matters’;
(2) the need for uniformity in attorneys’ fees awards is
not great enough to warrant appellate review of
minutia; and (3) the desirability of avoiding ‘a second
major litigation’ strictly over attorneys’ fees is high.”
Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 645 (7th
6 No. 11-2146

Cir. 1995) (citation omitted) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983)). But even this “ ‘wide
latitude’ is not unlimited latitude, and the district court
still bears the responsibility of justifying its conclusions.”
Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010); see
also Perdue v. Kenny A., 130 S. Ct. 1662, 1676 (2010).
We review the district court’s “legal analysis and meth-
odology” de novo, see Anderson, 578 F.3d at 544, because
“the justifications for the generally deferential standard
of review are absent” when the district court denies a
fee award based on a legal principle. Jaffee v. Redmond,
142 F.3d 409, 412 (7th Cir. 1998).

B. Reasonable Hourly Rate
In Title VII actions, the prevailing party may recover
reasonable attorneys’ fees pursuant to 42 U.S.C. § 2000e-
5(k).1 To determine a reasonable fee, the district court
uses the lodestar method, multiplying the “number of
hours reasonably expended on the litigation . . . by a
reasonable hourly rate.” Hensley, 461 U.S. at 433.
The lodestar approach forms the “centerpiece” of attor-
neys’ fee determinations, and it applies even in
cases where the attorney represents the prevailing
party pursuant to a contingent fee agreement. Blanchard
v. Bergeron, 489 U.S. 87, 94 (1989). There is a strong pre-

1
The standards for determining reasonable attorneys’ fees in a
Title VII action are the same as those used to determine 42 U.S.C.
§ 1988 fees. See Hensley, 461 U.S. at 433 n.7.
No. 11-2146 7

sumption that the lodestar calculation yields a
reasonable attorneys’ fee award. See Perdue, 130 S. Ct.
at 1673; Eddleman v. Switchcraft, Inc., 927 F.2d 316, 318
(7th Cir. 1991).
We have defined a reasonable hourly rate as one that
is “derived from the market rate for the services rendered.”
Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003). We
presume that an attorney’s actual billing rate for similar
litigation is appropriate to use as the market rate.
Id. The fee applicant bears the burden of “produc[ing]
satisfactory evidence — in addition to the attorney’s own
affidavits — that the requested rates are in line with
those prevailing in the community.” Blum v. Stenson,
465 U.S. 886, 895 n.11 (1984). If the fee applicant satisfies
this burden, the burden shifts to the other party
to offer evidence that sets forth “a good reason why
a lower rate is essential.” People Who Care v. Rockford Bd.
of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996) (internal quota-
tion marks omitted) (quoting Gusman v. Unisys Corp.,
986 F.2d 1146, 1151 (7th Cir. 1993)).
Recognizing the difficulty of determining the hourly rate
of an attorney who uses contingent fee agreements,
we have advised district courts to rely on the “next best
evidence” of an attorney’s market rate, namely “evidence
of rates similarly experienced attorneys in the community
charge paying clients for similar work and evidence of
fee awards the attorney has received in similar cases.”
Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 555 (7th
Cir. 1999); see also People Who Care, 90 F.3d at 1310. Of
these two alternatives, we have indicated a preference
8 No. 11-2146

for third party affidavits that attest to the billing rates
of comparable attorneys. See Spegon, 175 F.3d at 556. If
a fee applicant does not satisfy its burden, the district
court has the authority to make its own determination of
a reasonable rate. See Uphoff v. Elegant Bath, Ltd., 176
F.3d 399, 409 (7th Cir. 1999). Once the district court
has established the lodestar, the court may adjust it
to account for factors not subsumed by the lodestar
calculation. See Perdue,130 S. Ct. at 1673.

1. Reduction Due to Contingent Fee Arrangement
In reducing Rossiello’s hourly rate from $595 to $400,
the district court appears to have relied in part on the
fact that Rossiello will recover a contingent fee and a
flat fee, amounting to nearly $30,000, aside from
any statutory fees. The district court criticized Rossiello
for not using the statutory award to offset Pickett’s con-
tingent fee obligation, noting that he did not cite to
any case that has enforced “an agreement that so gen-
er[ous]ly compensates counsel.” The district court also
found the third party affidavits presented by plaintiff to
be less persuasive because those attorneys did not receive
contingent fees on top of their hourly rates. The district
court further seemed to rely on its notions of fairness
in concluding that “an hourly rate of $400 will
amply compensate Mr. Rossiello.”
We are unsure whether the court reduced the rate to
prevent excessive recovery (i.e., reducing the rate by nearly
30% to balance out the 30% contingent fee) or whether
it reduced the rate due to the lower persuasive weight
No. 11-2146 9

of the affidavits from non-contingent-fee-earning
attorneys — but we hold that either approach constitutes
reversible error. The contingent fee that an attorney earns
from his client and the statutory fee that an attorney
recovers from the losing party represent distinct
entitlements. In reviewing a fee petition, a district court
is tasked only with examining whether the rate and
hours requested are reasonable; the total amount that
the attorney stands to recover must not influence this
determination. We therefore vacate the award of attorneys’
fees and remand to the district court to redetermine
Rossiello’s reasonable hourly rate without consideration
of the contingent fee.
The Supreme Court has made clear that courts are to
use the lodestar method to calculate the statutory fee
even when the attorney does not bill by the hour.
See Venegas v. Mitchell, 495 U.S. 82, 87 (1990); Blanchard,
489 U.S. at 94 (“We have never suggested that a different
approach is to be followed in cases where the prevailing
party and his (or her) attorney have executed a contingent-
fee agreement.”); Blum, 465 U.S. at 894. Because contingent-
fee-earning attorneys do not possess the hourly billing
rate needed to compute the lodestar, both the Supreme
Court and this court have instructed courts to rely on
the hourly rates that attorneys of comparable skill, experi-
ence, and reputation charge for similar work. See Blum,
465 U.S. at 894-95 & n.11; People Who Care, 90 F.3d at
1310. Neither the Supreme Court nor this court has implied
that district courts should adjust the hourly rate of compa-
rable attorneys to reach an hourly rate for a contingent-fee-
earning attorney.
10 No. 11-2146

Despite recognizing the lodestar method as “not perfect,”
the Supreme Court recently extolled its virtues and reaf-
firmed its dominant role in federal fee-shifting cases.
See Perdue, 130 S. Ct. at 1672. The Court observed that
the lodestar method: (1) “produces an award that roughly
approximates the fee that the prevailing attorney
would have received if he or she had been representing
a paying client who was billed by the hour in a compar-
able case,” (2) “is readily administrable,” and (3) “is
‘objective’ and thus cabins the discretion of trial judges,
permits meaningful judicial review, and produces reason-
ably predictable results.” Id. (citation omitted) (quoting
Hensley, 461 U.S. at 433). The Court contrasted the lodestar
method with the earlier approach from Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974), which had provided twelve (largely subjective)
factors to consider when determining a reasonable fee. See
Perdue, 130 S. Ct. at 1671-72. The Court criticized
the Johnson approach for yielding minimal guidance,
disparate results, and unlimited discretion. See id. The
Court had similarly relied on the virtues of the lodestar
method when the Court ruled out contingency enhance-
ments to the lodestar. See City of Burlington v. Dague,
505 U.S. 557, 566 (1992) (citing interests of
“ready administrability” and the avoidance of “burden-
some satellite litigation,” which arise when contingency
enhancements make fee determinations “more complex
and arbitrary”).
The Supreme Court has balanced the advantages and
disadvantages of using the lodestar approach and has
concluded that the lodestar’s imperfect estimate is prefera-
No. 11-2146 11

ble to a multifactor, case-by-case attempt to more accu-
rately determine the fee. The district court in this case went
beyond the bounds of the lodestar method when it reduced
Rossiello’s hourly rate by a factor that has no bearing
on the prevailing market rate. We recognize the district
court’s desire to craft a more accurate award, but the
Supreme Court adopted the lodestar approach to prevent
this type of unbounded discretion.
Moreover, a fee applicant need only offer third party
affidavits attesting to billing rates that truly are compara-
ble to meet her burden, see Spegon, 175 F.3d at 556 — she
does not need to establish that her attorney would receive
this hourly rate on top of a contingent fee. Cf. Dague,
505 U.S. at 566-67 (“It is neither necessary nor even possible
for application of the fee-shifting statutes to mimic
the intricacies of the fee-paying market in every respect.”).
The court is to consult the same market when determining
a reasonable hourly rate for contingent fee cases and non-
contingent fee cases. See id. at 564 (rejecting an approach
that would require courts to look to a market of contingent-
fee cases). Here, the district court reduced the hourly
rate established by the comparators based on a presump-
tion that those attorneys are able to bill at the high
rates only because hourly billing represents their sole
form of remuneration. But the opposite argument also
has merit: the hourly rate could be adjusted upward
because hourly-billing attorneys have the security
of knowing that, win or lose, they will receive that rate,
whereas contingent-fee-earning attorneys actually need
to recover above their “market rate” in cases they win
12 No. 11-2146

to balance out cases where they lose and recover nothing.2
Cf., e.g., Medders v. Autauga Cnty. Bd. of Educ., 858 F. Supp.
1118, 1125-26 (M.D. Ala. 1994) (argument made by counter-
plaintiffs). There is thus no guarantee that the district
court’s downward adjustment yields a more accurate rate,
and this approach conflicts with the Supreme Court’s
guidance.3
Further, when a district court deems a third party
affidavit to carry less persuasive value because the affiant
bills by the hour, the court erects an obstacle to the recov-
ery of statutory fees by contingent-fee-earning attorneys.
This is particularly problematic given that many civil rights
plaintiffs cannot afford to pay attorneys by the hour.
See City of Riverside v. Rivera, 477 U.S. 561, 576-77 (1986).
The contingent fee arrangement creates the need to look
to evidence of comparable lawyers — but these comparable
lawyers must bill by the hour in order to help with the
lodestar calculations.

2
In fact, prior to Dague’s prohibition of contingency enhance-
ments to the lodestar, we had allowed upward adjustments to
more effectively compensate contingent-fee-earning attorneys
for the “risk of never being paid and the time-value of money.”
See Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646, 660
(7th Cir. 1985).
3
To precisely translate the earnings of a contingent-fee
attorney into an hourly rate equivalent, we would need to
divide each of the attorney’s past contingent fee awards by the
number of hours spent on each case. This approach would
result in widely varying rates, administrative difficulties, and
tension with the instructions of Supreme Court.
No. 11-2146 13

The Supreme Court has recognized that private fee
arrangements and statutory fee awards can coexist.
See Venegas, 495 U.S. at 88. The Court has repeatedly
distinguished between the statutory fee award,
which compels the losing party to compensate the prevail-
ing party for the attorney’s services, and the contingent
fee, which the plaintiff may contract to pay her attorney.
See id. at 90. This perspective conveys to district courts
that they should view these fees as distinct and not
allow a contingent fee to influence the determination of the
reasonableness of an hourly rate. When a district court
reduces an attorney’s hourly rate because the attorney also
stands to receive a contingent fee from the plaintiff, the
defendant is no longer paying the attorney’s full market
value (i.e., reasonable hours spent multiplied by a reason-
able hourly rate). The district court has essentially deter-
mined that the reduced statutory fee combined with the
contingent fee will yield the market value. But this formu-
lation is not what Congress or the Supreme Court in-
tended. This attempt to prevent the plaintiff’s attorney
from recovering a windfall causes the defendant to receive
a windfall benefit as it avoids its full fee-shifting obliga-
tion.
Moreover, the Supreme Court has repeatedly empha-
sized that a plaintiff is free to contract with her attorney to
pay a contingent fee in addition to assigning rights to the
statutory fee. See Gisbrecht v. Barnhart, 535 U.S. 789, 806
(2002) (stating that, in fee-shifting cases, “nothing prevents
the attorney for the prevailing party from gaining addi-
tional fees, pursuant to contract, from his own client.”);
Venegas, 495 U.S. at 86-89 (“[T]here is nothing in the section
14 No. 11-2146

to regulate what plaintiffs may or may not promise to pay
their attorneys if they lose or if they win.”). The Court
has stated that, if civil rights plaintiffs are permitted
to waive their causes of action entirely, “there is little
reason to believe that they may not assign part of their
recovery to an attorney if they believe that the contingency
arrangement will increase their likelihood of recovery.”
Venegas, 495 U.S. at 88.
In attempting to prevent plaintiff’s attorney from recov-
ering a windfall, the district court impedes plaintiff’s right
to contract and plaintiff’s ability to attract competent
counsel. The Supreme Court has stated that “depriving
plaintiffs of the option of promising to pay more than
the statutory fee if that is necessary to secure counsel
of their choice would not further § 1988’s general purpose
of enabling such plaintiffs in civil rights cases to secure
competent counsel.” Venegas, 495 U.S. at 89-90; see also In
re Cont’l Ill. Sec. Litig., 962 F.2d 566, 573 (7th Cir.
1992) (“[T]he purpose of fee-shifting is to assure competent
representation for plaintiffs rather than to make the cost
of litigation to the successful plaintiff zero.”). Reducing the
statutory award due to the existence of the contingent
fee has a similar effect of preventing a plaintiff from
paying a contingent fee on top of a statutory fee — both
actions constrain plaintiffs by limiting their contractual
options and reducing the incentive for some attorneys
to take their cases.
We do not intend to minimize the district court’s duty
to prevent windfall recovery to attorneys in fee-shifting
cases. See Rivera, 477 U.S. at 580 (“Congress intended that
No. 11-2146 15

statutory fee awards be adequate to attract competent
counsel but . . . not produce windfalls to attorneys.”
(internal quotation marks omitted)). However, this
duty and its attendant discretion involve only the determi-
nation of whether the hours requested and the rate re-
quested are reasonable. See Hensley, 461 U.S. at 433-34.
The “very nature of recovery under § 1988 is designed to
prevent . . . ‘windfall’ ” because “[f]ee awards are to be
reasonable, reasonable as to billing rates and reasonable
as to the number of hours spent in advancing the success-
ful claims.” Blanchard, 489 U.S. at 96. Fee awards that
are properly calculated using the lodestar method
“by definition will represent the reasonable worth of
the services rendered in vindication of a plaintiff’s
civil rights claim.” Id.
In this case, the district court reduced the fee award
for numerous reasons that fall squarely within its
authority and discretion, such as subtracting hours
spent on an unsuccessful claim and disallowing duplica-
tive hours spent on fee recovery. The district court could
have reduced Rossiello’s claimed hourly rate if it found
that the evidence did not support the claimed rate — e.g.,
because the third party affidavits are actually from attor-
neys with dissimilar experience or because the past fee
awards support a lower rate.4 See Mathur v. Bd. of

4
In Connolly v. National School Bus Service, Inc., 177 F.3d 593 (7th
Cir. 1999), we held that the district court did not abuse its
discretion in reducing Rossiello’s hourly rate from $320 to $285
based on his failure to establish his market rate. Rossiello had
(continued...)
16 No. 11-2146

Trustees of So. Ill. Univ., 317 F.3d 738, 743-44 (7th Cir.
2003). But the district court’s authority to scrutinize the
statutory fee award for reasonableness does not permit
it to reduce the statutory award based on an additional
amount that the attorney stands to recover. The Supreme
Court has cautioned that “[w]hat a plaintiff may be bound
to pay and what an attorney is free to collect under a
fee agreement are not necessarily measured by the ‘reason-
able attorney’s fee’ that a defendant must pay pursuant
to a court order.” Venegas, 495 U.S. at 90. Here, the district
court erred by extending its reasonableness inquiry beyond
the contours of the statutory fee award.
We are sympathetic to the court’s perception that
Rossiello stands to recover an excessive amount. But once
the court has determined that the rate claimed and
hours spent are reasonable, the district court’s supervisory
authority over statutory fee awards does not permit it

4
(...continued)
represented the Title VII plaintiff pursuant to the same type of
fee arrangement used here: $7,500 flat fee, one-third contingent
fee, assignment of statutory fee, and prohibition on offset. Id. at
595. The district court lowered the rate after finding the past fee
awards unpersuasive due to the lack of explanation as to how
the courts had arrived at those rates. Id. at 596-97. The district
court was instead persuaded by defendant’s third party affida-
vits, which stated that Rossiello’s rate exceeded rates that they
would charge for similar work. Id. Thus, Connolly demonstrates
that Rossiello’s fee arrangement is not immune to judicial
supervision—but the supervision is limited to the reasonable-
ness of the rate and hours.
No. 11-2146 17

to reduce the lodestar to prevent the attorney from recover-
ing a windfall. 5 See id.; Van Gerwen v. Guarantee Mut. Life

5
We recognize that this fee agreement, which highly compen-
sates Rossiello by requiring Pickett to turn over three types of
fees, may unfairly take advantage of Pickett. Although the
Supreme Court has recognized that a plaintiff has the freedom
“to become contractually and personally bound to pay an
attorney a percentage of the recovery,” Venegas, 495 U.S. at
88, this particular contract seems to exact too high of a cost on an
unsophisticated party seeking to vindicate her civil rights.
We question whether Pickett understood the steep compensation
arrangement that she agreed to. Our suspicions are bolstered
by Rossiello’s apparent disregard for proper “billing judgment,”
as required by Hensley, 461 U.S. at 437, evidenced by his request
for hours spent on losing claims and hours spent while sus-
pended from legal practice. Thus, we emphasize that, even
though a court cannot exercise its supervisory authority to
prevent a windfall by reducing an otherwise reasonable lode-
star, a court may exercise this authority by scrutinizing a suspect
contingent fee agreement, see Rosquist v. Soo Line R.R., 692
F.2d 1107, 1111 (7th Cir. 1982).
We are aware that, even after Venegas, the Eighth Circuit has
held that an attorney in a Title VII case is only entitled to the
greater of the contingent fee award and the attorneys’ fee award,
effectively imposing a requirement that the statutory award
offset the amount that the prevailing plaintiff owes to
her attorney. See Ross v. Douglas Cnty., 244 F.3d 620, 622 (8th
Cir. 2001). The court relied on its “supervisory powers to ensure
that contingency fee contracts are fair and reasonable” and on
an earlier decision that required offset for an Equal Access
to Justice Act fee award. Id.; see Talbott v. Bowen, 832 F.2d 111
(continued...)
18 No. 11-2146

Co., 214 F.3d 1041, 1048 (9th Cir. 2001) (“A district court
may not rely on a contingency agreement to increase or
decrease what it determines to be a reasonable attorney’s
fee.”).
As further support for our conclusion that the district
court lacks the authority to lower the hourly rate due to the
existence of a contingent fee agreement, the Supreme Court
held in Dague that courts cannot enhance the lodestar
to account for the risk of nonpayment incurred by attor-
neys who take cases pursuant to contingent fee agree-

5
(...continued)
(8th Cir. 1987). We decline to take this approach here since this
appeal was brought by the losing party over the propriety of the
statutory fee award. We also question whether this approach
aligns with Supreme Court precedents regarding the limited
scope of the reasonableness inquiry and its acceptance of private
fee arrangements. Under the Eighth Circuit’s approach, when-
ever the statutory award exceeds the contingent fee, a district
court effectively voids the contingent fee arrangement by
determining that counsel cannot recover more than the statutory
award. We are not persuaded by Talbott, a two-paragraph order
that does not cite any legal authority for its conclusion that
plaintiff’s counsel cannot receive both fees. Other courts have
declined to take this bright-line approach. See, e.g., Quint v. A.E.
Staley Mfg. Co., 245 F. Supp. 2d 162, 178 (D. Me.), aff’d, 84 F.
App’x 101, 102 (1st Cir. 2003). Although we believe that a
contingent fee contract that allows for offset can be more just, we
cannot conclude that an offset provision is legally required.
No. 11-2146 19

ments.6 505 U.S. at 562. The Court deemed the multiplier
impermissible because it would largely duplicate factors
already subsumed into the lodestar calculation, since
contingent fee cases tend to be difficult cases that require
a significant amount of hours or a skilled attorney who
commands a high hourly rate. Id. at 562-63. The Third
Circuit has construed the reasoning underlying the
Dague’s prohibition on contingent-fee-enhancements to
apply equally to reductions. See Guarnieri v. Borough, 364
F. App’x 749, 755-56 (3d Cir. 2010), vacated in part on
other grounds sub nom., Borough of Duryea, Pa. v.
Guarnieri, 131 S. Ct. 2488 (2011). Moreover, the Ninth
Circuit has construed Dague as an “outright rejection
of contingency as a factor relevant to the establishment
of a reasonable fee,” reasoning that the Court’s rejection
of contingency as a basis for determining the lodestar
multiplier similarly leads to a rejection of contingency as
a basis for determining the hourly rate. Davis v. City
& Cnty. of San Francisco, 976 F.2d 1536, 1549 (9th Cir.
1992), vacated in part on other grounds, 984 F.2d 345 (9th
Cir. 1993); see also Medders, 858 F. Supp. at 1126 (same);

6
Though Dague involved fee-shifting provisions from the Solid
Waste Disposal Act, 42 U.S.C. § 6972(e), and the Federal Water
Pollution Control Act, 33 U.S.C. § 1365(d), the Court recognized
that the language was similar to that of many other federal
fee-shifting statutes and stated that “our case law construing
what is a ‘reasonable’ fee applies uniformly to all of them.”
Dague, 505 U.S. at 561-62; see also Eirhart v. Libbey-Owens-Ford Co.,
996 F.2d 846, 852 (7th Cir. 1993) (extending Dague’s enhancement
prohibition to Title VII).
20 No. 11-2146

Watkins v. Fordice, 807 F. Supp. 406, 417 (S.D. Miss. 1992)
(same). These decisions provide further support for
our conclusion that a court cannot adjust an hourly rate
based on the existence of a contingent fee agreement.
For the foregoing reasons, we conclude that a district
court may not reduce an attorney’s hourly rate or disregard
third party affidavits based on the existence of a contingent
fee agreement. Here, the district court criticized
the contingent fee agreement but did not explain how
it reduced the rate to account for the additional recovery.
The district court’s language leaves us unable to conclude
that the contingent fee arrangement played no part in
the rate reduction. Thus, we remand to permit the district
court to consider whether it would reach the same lodestar
calculation in the absence of any consideration of the
contingent fee.

2. Evidence Offered by Rossiello
Rossiello, as lead counsel, sought $592.50 for each hour
that he spent on Pickett’s case. In support of this rate,
Rossiello presented records from a 2008 Title VII case
in which he received fees at an hourly rate of $620
and copies of settlements in similar cases in which
he obtained rates between $540 and $585 in 2007.
The exhibits attached to plaintiff’s fee petition
demonstrate a significant range in the size of the
recent awards obtained by Rossiello: $260 per hour in
1996; $305 per hour in 1996; $320 per hour in 1997; $350
per hour in 1999; $375 per hour in 1999; $475 per
hour in 2002; and $500 in 2003. In addition to his own
No. 11-2146 21

affidavit, Rossiello produced affidavits from Richard
Schnadig, Stephen Erf, and Vicki Lafer Abrahamson, who
have each worked in employment law for more than
30 years. They offered their own hourly rates as support
for the reasonableness of Rossiello’s claimed rate of $580
to $620, and they stated that this rate is reasonable
for someone with Rossiello’s substantial experience and
success in Title VII cases in Chicago. Schnadig and
Erf asserted that the market rate for similarly experienced
lawyers in their firms is $450 to $500 and $600 to $700,
respectively. Abrahamson, a lawyer with less experience
than Rossiello, stated her own rate as $550 for non-trial
cases and noted that she would charge a higher rate
for trial.
The district court found “little evidence” to support
Rossiello’s claimed rate. The court acknowledged that
certain evidence indicates “more substantial rates in a
handful of circumstances” and that “these affidavits, and
the settlement agreements in 2007 and 2008, arguably
support an award in the range Mr. Rossiello seeks,” but
the court expressed reluctance to approve that high rate
here. We remind the district court not to “set[] the amount
of evidence required at a nearly unattainable level,”
People Who Care, 90 F.3d at 1311, but we conclude
that — with two exceptions — the district court acted within
its discretion in determining that plaintiff’s evidence
did not support Rossiello’s claimed rate.
A district court “is entitled to determine the probative
value of each [evidentiary] submission.” Batt v.
Micro Warehouse, Inc., 241 F.3d 891, 895 (7th Cir. 2001).
22 No. 11-2146

The fact that we might have weighed the evidence differ-
ently does not necessarily mean that the district
court abused its discretion. Cf. Tomazzoli v. Sheedy, 804
F.2d 93, 97 (7th Cir. 1986) (“There is no one correct formula
for determining a fee award . . . .”). The highly deferential
standard that we apply to the district court’s determination
of attorneys’ fees counsels against disturbing the
district court’s determination here. We accord significant
deference to the district court out of recognition that
these disputes are essentially factual, that they do not
need to be resolved in a uniform manner, and that we
must avoid “a second major litigation” over fees. See
Spellan, 59 F.3d at 645.
Although plaintiff provided some evidence that supports
the requested rate, it is undeniable that substantial evi-
dence supports much lower rates. Many of Rossiello’s
fee awards, even after accounting for inflation, use lower
rates. In Uphoff, we stated that, “while evidence of
fee awards in prior similar cases must be considered by
a district court as evidence of an attorney’s market rate,
such evidence is not the sine qua non of that attorney’s
market rate—for each case may present its own special set
of circumstances and problems.” 176 F.3d at 408; see
also Spegon, 175 F.3d at 557 (“[A] district court abuses its
discretion not when it declines to follow another
court’s determination of an attorney’s reasonable
hourly rate, but rather, when it dismisses that court’s
determination as irrelevant.”). Here, the district court
adequately considered the past fee awards as part of
its determination of Rossiello’s market rate and properly
recognized the vast range of rates awarded. Similarly,
No. 11-2146 23

the third party affidavits assert that Rossiello’s
requested rate is reasonable, but we have previously
criticized third party affidavits that merely opine
on Rossiello’s market rate. See Batt, 241 F.3d at 895. We
have indicated a preference for affidavits that actually
provide evidence as to what the comparable attorneys
charge for similar services. See id. The affidavits here
do provide some support for a rate in the range requested
by Rossiello but also provide support for a lower rate.
The district court further acted within its discretion
in discounting the probative value of the few hourly
billing contracts presented since Rossiello did not
submit proof that his clients had paid these amounts.
We do note that, in contrast to the substantial evidence
presented by plaintiff, defendant offered hardly any
evidence in support of a lower hourly rate. Defendant’s
evidence consists only of citations to previous cases
in which the court reduced Rossiello’s hourly rate, as well
as a comment from defendant’s counsel that he charged
his client less than $250 per hour for his work in this case.
Had defendant submitted no evidence, the district court
would have had to award fees at Rossiello’s proposed rate.
See People Who Care, 90 F.3d at 1313. Yet we have recog-
nized that “if a fee applicant can establish that his re-
quested hourly rate is the ‘market rate’ by reference to
his prior fee awards, then we see no reason why a defen-
dant cannot point to that attorney’s past fee awards
to suggest that a lower hourly rate should be awarded.”
24 No. 11-2146

Spegon, 175 F.3d at 556.7 Thus, defendant’s sparse evidence
does satisfy its burden.
There are, however, two evidentiary determinations that
we conclude exceeded the scope of the district court’s
discretion. First, as noted in the previous section, the
fact that the affidavits came from attorneys who do
not receive contingent fees does not lessen their persuasive
value. Plaintiff is not able to submit the best type
of evidence — evidence of Rossiello’s own billing
rate— because Rossiello does not typically bill by the hour.
But plaintiff did produce what we have labeled the “next
best evidence,” see Spegon, 175 F.3d at 555-56, and thus
the court should not have disregarded the rates attested
to in the affidavits on the ground that the attorneys do
not earn contingent fees. Second, the district court erred
to the extent that it reduced the hourly rate based
on plaintiff’s failure to introduce evidence of fee awards
in contested cases that approach the rate requested
here. We have expressly stated that “[n]othing in the case
law requires that a party show that the hourly rate
they have requested has previously been disputed

7
Additionally, we reject plaintiff’s contention that defendant
previously agreed to the rate of $595. As proof of this claim,
plaintiff includes in the appendix an excerpt of defendant’s
December 22, 2008 response to plaintiff’s fee petition, on which
defendant used $595 to calculate the fee award. But plaintiff left
out of the appendix the three preceding pages, on which
defendant strenuously contested this rate. This misrepresenta-
tion of the record is troubling, and we remind Rossiello of his
duty of candor to the court.
No. 11-2146 25

and upheld, however. Indeed, a previous attorneys’ fee
award is useful for establishing a reasonable market
rate for similar work whether it is disputed or not.”
Jeffboat, LLC, v. Dir., Office of Workers’ Comp. Progams,
553 F.3d 487, 491 (7th Cir. 2009).
We are unable to determine what role the impermissible
considerations played in the district court’s reduction
of Rossiello’s hourly rate. Therefore, we remand to give
the district court an opportunity to reevaluate the
evidence consistent with our conclusions.

3. Reliance on the Consumer Price Index and the
Laffey Matrix
The district court cited several reasons for its reluctance
to approve the hourly rate sought by Rossiello, including
the lower rates that resulted from the district court’s
sua sponte use of the Consumer Price Index and the Laffey
Matrix. We do not question that these two measures
can assist the district court with the challenging task
of determining a reasonable hourly rate. But even though
the district court has the discretion to rely on these mea-
sures, the district court should have given the parties
the opportunity to debate the strengths and weaknesses
of applying these measures in this particular case.
Federal Rule of Evidence 201(c)(1) authorizes a court
to take judicial notice without a request from a party.
However subsection (e) of Rule 201 emphasizes that
a party “is still entitled to be heard” when a court takes
judicial notice before notifying a party. Underlying this
26 No. 11-2146

rule is the notion that “[b]asic considerations of procedural
fairness demand an opportunity to be heard on the propri-
ety of taking judicial notice and the tenor of the
matter noticed.” FED. R. E VID. 201(e) advisory committee’s
note. Thus, Rule 201 contains a procedural require-
ment—“namely, that the parties be given notice and
an opportunity to object to the taking of judicial no-
tice.” United States v. Hoyts Cinemas Corp., 380 F.3d 558,
570 (1st Cir. 2004). We have recognized the authority of
a court to take judicial notice of government websites.
See Denius, 330 F.3d at 926; see also Bova v. U.S. Bank, N.A.,
446 F. Supp. 2d 926, 931 n.2 (S.D. Ill. 2006). However, given
that the Internet contains an unlimited supply of informa-
tion with varying degrees of reliability, permanence,
and accessibility, it is especially important for parties
to have the opportunity to be heard prior to the taking
of judicial notice of websites.8

a. Consumer Price Index
The district court used the CPI to determine Rossiello’s
reasonable hourly rate by starting with the $350 rate
that we approved for Rossiello in 2001, see Batt, 241 F.3d at

8
As an alternative to taking judicial notice of the Laffey Matrix
and the CPI, the district court could have requested additional
evidence from the parties. See People Who Care, 90 F.3d at 1315
(“[I]f the court believes that additional evidence is necessary for
it to achieve rate determinations that are supported by the
record, then further evidentiary submissions should be required
of the parties.”).
No. 11-2146 27

895. The court then took judicial notice that the CPI
increase since 2001 is less than 30% and remarked that
“[t]he increase in Mr. Rossiello’s claimed hourly rate from
$350 to almost $600 runs well in excess of that.” The
district court cited to two government websites about
the CPI but provided no further explanation.
Although we have never addressed whether a court may
take judicial notice of the CPI, we now hold that the CPI
belongs to the category of public records of which a
court may take judicial notice. See Pugh v. Tribune Co.,
521 F.3d 686, 691 n.2 (7th Cir. 2008) (judicial notice
of publicly reported stock prices); Indianapolis Water Co.
v. McCart, 89 F.2d 522, 526-27 (7th Cir. 1937) (judicial
notice of an upward trend in prices); see also Cal.
Marine Cleaning, Inc. v. United States, 43 Fed. Cl. 724,
734 (Fed. Cl. 1999) (judicial notice of the CPI).
The district court’s opinion does not identify what years
it used for the calculation or what CPI-adjustment it found,
leaving us unable to determine exactly what the
court found Rossiello’s CPI-adjusted hourly rate to be.
Attempting to speculate with regard to the district court’s
approach, we arrive at a CPI increase of 26.2%,
which produces a 2011 hourly rate of $441.70 for
Rossiello.9 Thus, reliance on the CPI appears to yield a

9
We selected 2001 (the year in which Batt was decided) and
March 2011 (the month and year in which the district court’s
opinion was decided) as the guideposts for the calculation. See
Bureau of Labor Statistics, How to Use the Consumer Price Index for
(continued...)
28 No. 11-2146

higher rate than the rate ultimately approved by the
district court.
If the district court had given plaintiff notice that it
intended to rely on the CPI and an opportunity to respond,
plaintiff might have argued for the use of different years as
guideposts or for the use of a different award as the
starting point. The district court’s reliance on an hourly
rate that we previously approved for Rossiello is logical,
but our approval of a rate does not make that rate inher-
ently more reasonable than other rates obtained by
Rossiello. Aside from the $350 rate that we approved
in Batt in 2001, Rossiello had been awarded rates of $350
and $375 two years earlier. The district court referred to
these rates as “much more modest” but still selected
an even lower award as the basis for the CPI adjustment.
Since we have stated that “a previous attorneys’ fee award
is useful for establishing a reasonable market rate
for similar work whether it is disputed or not,” Jeffboat,
LLC, 553 F.3d at 491, plaintiff might have persuasively
argued for the use of a different award in the CPI calcula-
tion. Further, plaintiff might have argued that the
court should increase Rossiello’s rate by more than
the CPI-increase due to the fact that Rossiello’s market
value increased by more than the amount of inflation as
he acquired additional experience and successful outcomes
over the past decade.
We therefore hold that the district court abused its
discretion by relying sua sponte on a CPI-adjusted rate.

9
(...continued)
Escalation, http://www.bls.gov/cpi/cpi1998d.htm.
No. 11-2146 29

This approach deprived plaintiff of an opportunity to
contest the application of the CPI or to argue for a particu-
lar manner of applying it to the present case.

b. Laffey Matrix
The district court also relied on the Laffey Matrix,
even though it too had not been referenced by either
party. The Laffey Matrix is a chart of hourly rates
for attorneys and paralegals in the Washington, D.C.
area that was prepared by the United States Attorney’s
Office for the District of Columbia to be used in fee-
shifting cases. See Warfield v. City of Chicago, 733 F.
Supp. 2d 950, 960 n.11 (N.D. Ill. 2010); Dep’t of
Justice, Laffey Matrix–2003-2012, http://www.justice.gov/
usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf.
The district court did not explicitly take judicial notice
of the Matrix, though it could have as a document in the
public domain. The district court stated that the Matrix
suggests an hourly rate “no greater than $475” for
an attorney with Rossiello’s experience in the years
2010–2011. The Matrix in fact indicates a rate of exactly
$475 for attorneys with Rossiello’s experience, but the
court may have adjusted this figure downward based on
its reliance on a district court case that noted lower
billing rates in Chicago than in the D.C. market.
In the twenty years since the creation of the Laffey
Matrix, we have never addressed this measure. No
circuit outside the D.C. Circuit has formally adopted
the Laffey Matrix, and few have even commented on
30 No. 11-2146

it. While some circuits have applied the Laffey Matrix,
see, e.g., Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426
F.3d 694, 708-10 (3d Cir. 2004), other circuits have ex-
pressed concerns about the Matrix’s utility outside
its circuit of origin, see, e.g., Prison Legal News v.
Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) (“[J]ust
because the Laffey matrix has been accepted in the District
of Columbia does not mean that it is a sound basis for
determining rates elsewhere . . . .”); Newport News Ship-
building & Dry Dock Co. v. Holiday, 591 F.3d 219, 229 (4th
Cir. 2009).
District courts in this Circuit have occasionally consid-
ered the Laffey Matrix when considering the reasonable-
ness of hourly rates for fee awards. See Hadnott v. City
of Chicago, No. 07 C 6754, 2010 WL 1499473, at *6 (N.D.
Ill. Apr. 12, 2010) (noting that “numerous judges in
this district” have considered the Laffey Matrix as
one factor). The district courts that have considered
the Laffey Matrix have viewed it with differing levels
of praise and skepticism. Compare Perry v. City of Gary,
Ind., No. 2:08-CV-280 JVB, 2011 WL 3444007, at *3 (N.D.
Ind. Aug. 8, 2011) (finding the Matrix to be “unpersua-
sive”), and Thompson v. City of Chicago, No. 07 C 1130,
2011 WL 2923694, at *4 (N.D. Ill. July 18, 2011) (“afford[ing]
little weight” to the Matrix), with Berg v. Culhane, No. 9
C 5803, 2011 WL 589631, at *3 (N.D. Ill. Feb. 10, 2011)
(finding the Matrix to constitute “satisfactory evidence”).
A recent decision highlighted these divergent opinions
and then rejected the assertion that the Laffey Matrix is
a “well-established neutral source” that has been widely
accepted by federal courts. Soleau v. Ill. Dep’t of Transp.,
No. 11-2146 31

No. 09 C 3582, 2011 WL 2415008, at *4 (N.D. Ill. June 11,
2011). The court in Soleau acknowledged that the “Laffey
Matrix may be one factor in a rate inquiry” but saw
“no reason to disregard the longstanding rule that
looks first to the attorney’s actual rates, then to the
rates charged by comparable attorneys in the same geo-
graphic area.” Id.
We have not come across any other opinion from
the Northern District of Illinois in which the court relied
on the Laffey Matrix when it was not raised by a party.
The Laffey Matrix is not without its critics, and plaintiff
should have had the opportunity to contest its value
in general and as applied to him. Even the D.C. Circuit
has referred to the Matrix as “crude” and has recom-
mended that plaintiffs provide affidavits, surveys, and
past fee awards to enable the district court to refine
the Matrix for the particular attorney. See Covington v.
District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir.
1995). Additionally, plaintiff might have chosen to contest
whether the district court should depart upward
or downward from the rates on the Matrix. In this case,
the district court relied on Elusta v. City of Chicago, 760
F. Supp. 2d 792, 798 (N.D. Ill. 2010), for the conclusion
that the Matrix rates, based on the D.C. market, should
be adjusted downward for the lower cost of living
in Chicago. But the Elusta court provided only minimal
support for this assertion, merely comparing the
Matrix rates to the rates in cases submitted by plaintiff
and ultimately declining to use the Laffey Matrix. Id.
Moreover, another decision in the district suggested
that the high cost of living in Chicago necessitates
32 No. 11-2146

an upward adjustment to the Matrix. See Schultz v. City of
Burbank, No. 06 C 5646, 2007 WL 1099479, at *2 (N.D. Ill.
Apr. 10, 2007).
Here, plaintiff presented substantial evidence to support
the requested fee award. If the district court found
this evidence to be unpersuasive and therefore intended
to rely on an independent basis for the hourly rate, then
the district court should have given the parties an opportu-
nity to respond. The parties had no notice that they
should address the CPI or the Laffey Matrix in their
briefing, and the case law within this Circuit would not
have put them on constructive notice. Even when relying
on these “objective” measures, the district court
still exercised discretion in determining how to apply
them, ultimately arriving a rate lower than those proposed
by the CPI and the Laffey Matrix. The district court did
not err simply by using the CPI and the Laffey Matrix
to determine a reasonable hourly rate, but we hold that
the court did err by relying on these measures without
giving plaintiff an opportunity to respond. We instruct
the district court, on remand, to give the parties an oppor-
tunity to comment on whether and how these two mea-
sures should be used to determine Rossiello’s reasonable
hourly rate.

4. Clear and Concise Explanation for Hourly Rate
The district court must “provide a concise but clear
explanation of its reasons for the fee award.” Hensley,
461 U.S. at 437; see also Small v. Richard Wolf Med. Instru-
ments Corp., 264 F.3d 702, 708 (7th Cir. 2001). The Supreme
No. 11-2146 33

Court has recently defined this obligation as requiring a
judge to “provide a reasonably specific explanation for
all aspects of a fee determination.” Perdue, 130 S. Ct. at
1676. In the absence of such explanation, “adequate
appellate review is not feasible, and without such review,
widely disparate awards may be made, and awards may
be influenced (or at least, may appear to be influenced)
by a judge’s subjective opinion regarding particular
attorneys or the importance of the case.” Id. The explana-
tion need not be lengthy—we have affirmed brief explana-
tions that sufficiently describe the district court’s approach
to calculating the fee award and dispel any notion of
“an unfounded, arbitrary reduction based on the
court’s subjective view of what might be excessive.”
Strange v. Monogram Credit Card Bank of Ga., 129 F.3d
943, 946 (7th Cir. 1997); see also Small, 264 F.3d at 709.
But however concise the explanation is, it must still be
a “rendering of reasons in support of a judgment — rather
than a mere conclusory statement.” Sottoriva, 617 F.3d at
976.
The district court’s opinion leaves us uncertain as to
how it arrived at $400 as the reasonable hourly rate
for Rossiello. The district court acknowledged that the
affidavits and settlement agreements “arguably support”
the hourly rate requested. The district court referenced
the Laffey Index and the CPI adjustment as yielding
rates lower than Rossiello’s proposed rate, but both
approaches still yield an hourly rate above $400. In fact,
the district court’s only reference to a rate lower than $400
was its comment that defendant’s counsel “reports”
charging defendant less than $250 per hour for his services.
34 No. 11-2146

To conclude its discussion of hourly rate, the district
court stated that “an hourly rate of $400 will amply
compensate Mr. Rossiello for his successful efforts.” This
language suggests that the district court may have made
a subjective determination as to the “just” price
for Rossiello’s work, instead of making an objective
determination — supported by the evidence — as to the
reasonable rate for Rossiello. See Pressley v. Haeger, 977
F.2d 295, 299 (7th Cir. 1992) (“Prevailing plaintiffs are
entitled not to a ‘just’ or ‘fair’ price for legal services, but
to the market price for legal services.”).
We do not require district courts to give extensive
explanations, but a clear and concise explanation is needed
so that we can determine whether the district court consid-
ered the evidence and how it arrived at its ultimate award.
Although the district court’s opinion sufficiently describes
its assessment of the evidence presented, the opinion
does not sufficiently explain its reasons for selecting
$400 as the hourly rate. In the absence of this explanation,
we are unable to determine whether the district court’s
conclusion rests on a sound analysis. When the
district court revisits this issue on remand, we urge
the court to provide a meaningful explanation of its
basis for the reasonable hourly rate.
We do not pass judgment on whether $400 is a reason-
able hourly rate for Rossiello. We hold only that the district
court may not reduce the claimed hourly rate due to
the presence of a contingent fee agreement, that the court
may not disregard evidence of uncontested fee awards,
that the court must provide plaintiff with an adequate
No. 11-2146 35

opportunity to respond if it decides to rely on indepen-
dent evidence, and that the court must sufficiently explain
its fee determination with a clear and concise statement.

C. Refusal to Conduct an Evidentiary Hearing Regard-
ing Fees
We review the district court’s denial of a motion for an
evidentiary hearing on attorneys’ fees for abuse of discre-
tion. See Small, 264 F.3d at 706, 709; Jancik v. Dep’t of
Hous. & Urban Dev., 44 F.3d 553 (7th Cir. 1995). A
district court does not abuse its discretion by denying
evidentiary hearings that would only address arguments
and materials already presented to the court in the par-
ties’ briefings. See Small, 264 F.3d at 709; see also Sablan v.
Dep’t of Fin. of N. M. Is., 856 F.2d 1317, 1322 (9th Cir. 1988)
(“Fee awards . . . need not be preceded by an evidentiary
hearing if the record and supporting affidavits
are sufficiently detailed to provide an adequate basis
for calculating an award, and if the material facts necessary
to calculate the award are not genuinely in dis-
pute” (citations omitted)). We recognize the need
to balance a plaintiff’s interest in being heard with
the court’s interests in efficiency and administrative
ease. See Spellan, 59 F.3d at 647.
However, we have held that a district court must afford
plaintiffs an opportunity to respond when the court raises
concerns about the fee petition that are based upon its
independent scrutiny of the record or when the court
establishes reasons sua sponte for reducing the fee award.
See Jaffee, 142 F.3d at 416 n.2 (“[W]hen a court raises
36 No. 11-2146

independent concerns about a fee petition, we have
recognized that the court should afford the plaintiffs
an opportunity to address its concerns.”); Spellan, 59
F.3d at 646; cf. Small, 264 F.3d at 709 (concluding that
the district court did not err in declining to hold an eviden-
tiary hearing because “[n]othing in the court’s order
suggests that the court devised additional reasons sua
sponte to reduce the fee award without giving plaintiffs an
opportunity to respond”).
In this case, plaintiff filed three separate motions to
request an evidentiary hearing on the fee petition. The
district court explained that it does not ordinarily
hold hearings to determine attorneys’ fees but would hold
one if needed. Although no hearing was held, the district
court based its significant fee reduction on several ratio-
nales that plaintiff did not have the opportunity to respond
to: (1) the hourly rate reduction due to the presence of
the contingent fee agreement; (2) the application of the
Laffey Matrix, which has not been adopted by the Seventh
Circuit or the Northern District of Illinois, and which
was not proffered by either party; and (3) the post-opinion
decision to reverse the award of fees to outside counsel
because they were not prepaid. Although plaintiff had
the opportunity to support the requested fee award
through briefs and exhibits, plaintiff was deprived of the
opportunity to respond to the reasons that the district
court ultimately relied on when reducing the fee award.
We therefore conclude that the district court abused its
discretion when it declined to hold an evidentiary hearing
or to otherwise provide the parties with an opportunity
to respond to the sua sponte reasoning used by the
district court.
No. 11-2146 37

D. Denial of Fees to Outside Counsel Because They
Were Not Prepaid
Finally, plaintiff argues that the district court erred when
it reversed its award of fees to Abrahamson because
Rossiello had not prepaid these fees. Because there is no
requirement that Rossiello or Pickett have prepaid the fees
incurred for pursuing fees, we direct the district court
to reinstate its previous award.
In its March 29, 2011 opinion, the district court elimi-
nated as duplicative 10 hours of time that Rossiello had
spent but approved the 13.75 hours spent by Abrahamson’s
firm on the fee petition. The district court did not analyze
the reasonableness of the hourly rates sought by
Abrahamson’s firm except to note that “retained counsel
assigned the bulk of the work to an associate at a
lower billable rate” and that “Ms. Abrahamson’s claimed
hourly rate is a market rate, and the court presumes
that Mr. Rossiello has paid it.” Despite its approval of both
the hours spent and the rate requested, the district
court ordered Rossiello to “demonstrate that he had
paid Ms. Abrahamson at her billed rate.”
Rossiello had not prepaid Abrahamson’s fees, however,
and he was thus unable to comply with the district court’s
order. But the parties did respond with a joint certification,
agreeing that defendant would issue and deliver a check
in the amount of $9,268.97 to Abrahamson’s firm. Notwith-
standing this apparent agreem ent, the district
court reversed its position and denied the fees and costs
to Abrahamson’s firm, stating:
38 No. 11-2146

[Plaintiff’s counsel] has declined, however, to demon-
strate that he has paid Ms. Abrahamson. As the court
noted in its opinion, Ms. Abrahamson claimed a
substantial rate as her market rate. Plaintiff’s counsel
asserted that Ms. Abrahamson’s fees were payable, at
the hourly rate she claimed, regardless of the court’s
ruling on the fee petition. Accordingly, the court
presumed that she had been paid and expected counsel
to confirm this, in order to eliminate any suspicion that
Ms. Abrahamson would collect her substantial rate
only if the court were to approve recovery from Defen-
dant.
No such confirmation has been provided. . . . The court
concludes that Mr. Rossiello has not in fact paid Ms.
Abrahamson. The court declines therefore to award the
requested fees for her services.
We find district court’s sudden reversal to be concerning
for several reasons, and we are unable to conclude that the
district court acted properly by denying these fees.
First, we note that, contrary to the district court’s later
statement, the district court had not referred to
Abrahamson’s rate as “substantial” in its earlier opinion.
The opinion had only referred to Abrahamson’s claimed
rate as “market rate.” In fact, the court seemed to
praise Abrahamson for assigning most of the work to
an associate at a lower hourly rate.
Second, the denial of the fee award does not appear to be
grounded in a conclusion that Abrahamson’s hourly rate
is unreasonable. Such a conclusion might have been
proper, given our recognition that the “best evidence of
No. 11-2146 39

whether attorney’s fees are reasonable is whether a
party has paid them.” Cintas Corp. v. Perry, 517 F.3d
459, 469-70 (7th Cir. 2008). Thus, the district court theoreti-
cally could have relied on the absence of advance payment
to support a determination that Abrahamson’s fees
are unreasonable—but the district court never expressed
or even hinted at this rationale. Both parties had viewed
the issue of Abrahamson’s fees as resolved by the language
in the district court’s opinion that had expressed approval
of those fees. If the district court’s subsequent order
signifies a reversal of its view of the reasonableness of
Abrahamson’s requested hours or rate, the district court
should have explained its reasoning and given plaintiff
an opportunity to respond. Without this explanation,
plaintiff is unable to effectively contest this decision, and
we are similarly unable to review whether the court acted
within its broad discretion.
Third, we note that the court does not cite to any legal
support, nor have we found any, that requires a party in a
fee-shifting case to have prepaid the fees incurred by
an outside firm as a precondition for recovery. This
approach threatens the objectives underlying the fee
award. We have explained that “[f]ee-shifting statutes
in civil rights legislation are intended to allow litigants
access to attorneys who would otherwise be inaccessible.”
Mathur, 317 F.3d at 743. There is no question that a prevail-
ing plaintiff’s entitlement to fees “extends to the fee he
reasonably incurs in defending the award of that fee.
Otherwise the fee will undercompensate.” Gorenstein
Enters. v. Quality Care-USA, Inc., 874 F.2d 431, 438 (7th
Cir. 1989) (citation omitted). Pickett is the one entitled to
40 No. 11-2146

the attorneys’ fees, not Rossiello or Abrahamson. See
Venegas, 495 U.S. at 88. The district court’s decision
to reverse the fee award on the sole ground that plaintiff
did not pay these fees in advance runs counter to the policy
of 42 U.S.C. § 2000e-(k) and appears unsupported by
case law.
Fourth, we are puzzled by the district court’s explanation
that the prepaid requirement was necessary to “to elimi-
nate any suspicion that Ms. Abrahamson would collect
her substantial rate only if the court were to approve
recovery from Defendant.” The district court’s concern
is not misplaced, but it does not justify imposing a require-
ment that is not grounded in law and reversing its award
without any opportunity to respond. We see nothing in
the record, moreover, that would suggest that outside
counsel ran up costs or otherwise took excessive risks, on
the assumption that someone else was sure to pay the
bill (i.e., there is no indication of moral hazard).
We are mindful of the fact that “[o]nly in extraordinary
circumstances will we disturb a district judge’s exercise of
his discretion in awarding or denying fees for establishing
fees.” Muscare v. Quinn, 680 F.2d 42, 45 (7th Cir. 1982).
Nevertheless, the district court’s reversal, without legal
support and without an opportunity for the parties to
respond, requires us to vacate the district court’s April 21,
2011 order denying attorneys’ fees to Abrahamson and to
remand with instructions to reinstate its original award of
$9,268.97.
No. 11-2146 41

III. Conclusion
Although we conclude that the district court abused its
discretion in certain aspects of its fee determination, we
do not intend to signal a retreat from the significant
deference that we accord to a district court’s fee award,
and we remain of the view that a fee petition “should
not result in a second major litigation,” Hensley, 461 U.S. at
437.
For the foregoing reasons, we V ACATE the award of
attorneys’ fees for Rossiello’s services, and we R EMAND for
further proceedings consistent with this opinion. Further,
we direct the court to R EINSTATE the award of attorneys’
fees for Abrahamson’s firm.

12-15-11