PEOPLE WHO CARE, Plаintiff-Appellee, v. ROCKFORD BOARD OF EDUCATION, School District No. 205, Defendant-Appellant.
United States Court of Appeals, Seventh Circuit
272 F.3d 616
In the absence of a reliable market test of his own services, Norman had to show that lawyers of comparable ability commanded the rate he was asking the judge to assess. Blum v. Stenson, 465 U.S. 886, 895 and n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Small v. Richard Wolf Medical Instruments Corp., 264 F.3d 702, 707 (7th Cir.2001); Batt v. Micro Warehouse, Inc., supra, 241 F.3d at 894; Uphoff v. Elegant Bath, Ltd., supra, 176 F.3d at 408; Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir.1999); Pressley v. Haeger, supra, 977 F.2d at 299. Tо this end, Norman submitted the affidavit of a lawyer named James Wilber who does not practice law in Illinois or in any federal court, does not even live in Illinois, has not practiced law since 1990, and made no study of the Chicago (or any other) consumer fraud litigation lawyer market but instead relied on Norman’s own self-serving self-evaluation. His conclusion that Norman’s market value is indeed $310 (or higher, Wilber attested with a flourish) is groundless, the affidavit worthless and inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Dhillon v. Crown Controls Corp., 269 F.3d 865, 869-70 (7th Cir.2001) (expert’s failure to show that opinion is product of reliable principles and methods renders testimony inadmissible); People Who Care v. Rockford Board of Education, 111 F.3d 528, 537-38 (7th Cir.1997) (“a statistical study that fails to correct for salient explanatory variables, or even to make the most elementary comparisons, has no value as causal explanation and is therefore inadmissible in a federal court”). There are almost a million lawyers in the United States, and if Wilber’s affidavit counts as evidence there will never be a case in which a lawyer can’t produce the paid affidavit of another lawyer that his market value is whatever he says it is. Norman was rightly denied a judiciаl award of $310 an hour.
He argues that it was double counting for the judge to reduce his hours as well as his hourly fee. Not so. A lawyer worth only $185 an hour may still put in more hours in expectation of a court-awarded fee than he would if his client were breathing down his neck. See Eddleman v. Switchcraft, Inc., supra, 965 F.2d at 425. The judge reasonably concluded that that is what Norman had done.
AFFIRMED.
In the Matter of: NAVIGANT CONSULTING, INC., SECURITIES LITIGATION.
Appeal of: Charles L. Grimes and Gordon W. Chaplin, as Trustees under the Will of Louise C. Chaplin, еt al.
No. 01-2311.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 6, 2001. Decided Dec. 26, 2001.
Fay Clayton (argued), Robinson, Curley & Clayton, Chicago, IL, Daniel L. Berger, Bernstein, Litowitz, Berger & Grossmann, New York City, for Peter C. Stearns.
David F. Graham, Rhonda Rene Pengra, Sidley Austin Brown & Wood, Chicago, IL, for Navigant Consulting Inc.
David A. Jenkins (argued), Smith, Katzenstein & Furlow, Wilmington, DE, B. Franco Laterza, Laterza & Lofgren, Chicago, IL, for Charles L. Grimes and Gordon Chaplin.
Before CUDAHY, EASTERBROOK, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge.
Only parties may appeal from judgments entered in federal litigation. See
Intervention is possible only on “timely application”.
The objectors’ appellate brief in this case gives no reasоn for their delay in moving to intervene. Pressed at oral argument, counsel supplied one: His ignorance of Felzen and its predecessors. This may be the explanation but is not a justification. Many deadlines confront cоunsel, from the statute of limitations to the 30-day period for taking an appeal, and failure to inform oneself of the procedural requirements is no excuse for ignoring them. Although the district judge might have deemed the explanation sufficient, cf. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the judge was not required to do this, and deferential appellate review of this discretionary decision can have only one outcome.
Indeed, these objectors probably should have intervened before the settlement was negotiated. The class representatives in these 21 consolidated actions alleged that Navigant Consulting violаted the federal securities laws by making false statements, injuring investors in aftermarket trading. Like other actions of this sort, identifying injured traders required specifying the date when the price first was affected by the deceit and the date when the truth reached the market and the price adjusted to that news. The asserted fraud in this case was the use of pooling to account for four of Navigant’s acquisitions, although generally accеpted accounting principles prohibited the use of that method under the circumstances. (Pooling has since been abolished by the accounting profession for all transactions after June 29, 2001. See Financial Accounting Standards Board, Statements 141 and 142.) Navi
By August 2000 the objectors knew that the damages period proposed by the class representatives would close in November 1999, omitting some of their trades. That was the time to seek intervention, but the objectors did not. Instead they filed another class action in September 2000, naming themselves as representatives, and sought to have this twenty-second suit consоlidated with those already under way. The district court denied this motion. Denied this self-help role, the objectors then could have sought intervention or opted out and relied on their own class suit. But they did neither, waiting until May 4, 2001, to gеt the intervention process started. The district judge acted within his discretion in finding that this was too late for persons who had known for at least eight months about the aspects of the representatives’ position to whiсh they objected.
Anticipating that we might reach this conclusion, the objectors ask us to overrule Felzen and permit appeals by class members that have not become formal parties. That decision is not а candidate for reconsideration. The circuits are in conflict and will be no matter what we do. The ball is in another Court, which has indicated an inclination to take a new look at the subject. See Scardelletti v. Debarr, 265 F.3d 195 (4th Cir.), cert. granted under the name Devlin v. Scardelletti, — U.S. —, 122 S.Ct. 663, — L.Ed.2d — (2001). That is the right forum for further debate.
Still, we cannot resist a few comments. Although other circuits see the question as one for policymaking by judges—the divided opinion in Scardelletti is a good example, with both the majority and the separate opinion explaining why in their view sоund practice calls for one or another outcome—this court in Felzen took a more formal position.
Observance of form has benefits, such as a reduction in uncertainty and the costs that uncertainty breeds. Intervention identifies with precision who is entitled to take what procedural steps, and when. It also may facilitate accurate decision on the merits. Our case shows how. The objectors say that because of fraud the price of Navigant’s stock remained too high in the period between Novеmber 22, 1999, and January 24, 2000, and that investors who bought during these months should be entitled to a portion of the recovery. Intervention would have allowed the court to explore that question: the class representatives аnd Navigant could have taken discovery from the objectors to learn just what trades they made, how these may have been influenced by lack of information in the market, and so on. Intervention and extra discovеry might have led the judge to obtain the views of an expert in financial economics. But by remaining on the sidelines until after final decision in the district court, these objectors hobbled that inquiry and made the appeal a needlessly speculative venture.
By insisting on party status of appellants, then, we facilitate adjudication in district courts too. As we stressed in Crawford and Synthroid, it is vital that district courts use this formal rule to promote vindication of the сlass members’ rights; that’s why we insist that timely requests to intervene be freely granted. But these objectors tarried when their own deeds (especially their separate lawsuit) demonstrate that they understood the need for action.
The order denying the motion to intervene is affirmed, and the conditional appeal from the order approving the settlement is dismissed for want of jurisdiction.