United States of America et al v. Advanced Biohealing, Inc.

Filing 523

ORDER adopting 495 the Magistrate Judge's Report and Recommendation and incorporating it by reference into the attached written order; overruling 507 relator Brian Vinca's Objections; awarding a total amount of $6,128,500 to F ormer Counsel as a fair and reasonable quantum meruit award in satisfaction of 167 Former Counsel's charging liens; additionally, awarding 87% of the prejudgment interest held in the Court registry to Former Counsel and 13% to Vinca; and referring this matter to the Magistrate Judge to resolve how and when the monies should be distributed from the Court registry. See written Order for complete details. The Clerk shall provide a copy of this Order to the Hon. Anthony E. Porcelli. Signed by Judge Susan C. Bucklew on 4/19/2022. (DMB)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
ex rel. BRIAN VINCA and
JENNIFER STAUP SWEENEY,
Plaintiffs,
v.

Case No. 8:11-cv-176-SCB-AEP

ADVANCED BIOHEALING, INC.,
Defendant.
______________________________/
ORDER
THIS CAUSE is before the Court on the charging liens of Barry A. Cohen,
PA (“Cohen Firm”) and Saady & Saxe, PA (“Saady Firm”), (collectively “Former
Counsel”) asserted against their former client, Brian Vinca (“Vinca”) (Doc. 167)
and Vinca’s opposition (Doc.170). These matters were referred to Magistrate
Judge Anthony Porcelli who, after conducting an evidentiary hearing over the
course of five days, issued a Report and Recommendation (“the R&R”) in which
he recommended that Former Counsel’s charging liens be recognized and enforced
to the extent that Former Counsel be awarded a quantum meruit award in the
amount of $6,128,500 or 87% of the $7,150,000 principal being held in the Court

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registry. (Doc. 495). 1 In response to the Cohen Firm’s motion for clarification,
which Vinca opposed, the Magistrate Judge clarified his report to include a
recommendation that in addition to the principal, accrued interest held in the Court
registry be awarded and divided commensurate to the principal sum such that 87%
of the accrued interest be allotted to Former Counsel and 13% to Vinca.
All parties were furnished copies of the R&R and were afforded the
opportunity to file objections to it, pursuant to 28 U.S.C. §636(b)(1).
Vinca filed lengthy objections to the R&R. (Doc.507). Former Counsel did not file
objections; however, the Saady Firm filed a Motion to Strike Vinca’s Objections
(Doc. 508), which this Court denied (Doc. 511). Thereafter, both the Cohen Firm
and the Saady Firm filed responses to Vinca’s objections. (Docs. 515 and 516).
I. STANDARD OF REVIEW
After conducting a de novo determination of those portions of the report or
findings or recommendations to which objections are made, a district judge may
accept, reject, or modify in whole or in part the findings or recommendations of a
magistrate judge. 28 U.S.C. §636(b)(1)(C). Objections to a magistrate judge’s
report and recommendation must “pinpoint the specific findings that the party

1

United States District Judge James Moody, who referred the matters, subsequently recused
himself and the case was reassigned to the undersigned judge pursuant to the Court’s blind
rotation system on December 9, 2021.
2

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disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009).
For an objection to be considered by the district court, “[i]t is critical that the
objection be sufficiently specific and not a general objection to the report.” Macort
v. Prem, Inc., 208 F. App’x. 781, 784 (11th Cir. 2006). In the absence of specific
objections, there is no requirement that the district judge review factual findings de
novo even in the absence of an objection, Garvey v. Vaughn, 933 F. 2d 776, 779
n.9 (11th Cir 1991). However, the district judge must review legal conclusions de
novo even in the absence of an objection. See Cooper-Houston v. Southern Ry., 37
F3d 603, 604 (11th Cir. 1994).
Pursuant to its obligation to make a de novo determination of those findings
and recommendations to which there is an objection, this Court has read and
reviewed the R&R (Doc. 495), Vinca’s Objections thereto (Doc. 507), the Cohen
Firm’s Response to Vinca’s Objections (Doc. 515), the Saady Firm’s Response to
Vinca’s Objections (Doc. 516), the other pertinent filings include the transcripts
and exhibits of the five- day evidentiary hearing before the Magistrate Judge,
(Docs. 480, 518, 519, 520 and 521) and the post-charging lien hearing briefs.
(Docs. 487, 488 and 489). The Court now, upon careful consideration, adopts that
Report and Recommendation for the reasons that follow.

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II. BACKGROUND AND STATEMENT OF FACTS
In the fall of 2010, Vinca consulted with attorney Claire Saady (“Saady”) of
the Saady Firm to seek advice about pursuing a wrongful termination case against
Advanced Biohealing Inc. n/k/a Shire Regenerative Medicine, Inc. (“Advanced
Biohealing”). During the consultation, Vinca detailed for Saady allegations about a
scheme at Advanced Biohealing in which he and other Advanced Biohealing
employees were paying kickbacks to doctors and providers. Saady knew that
attorneys Barry A. Cohen (“Cohen”) and Kevin Darken (“Darken”) of the Cohen
Firm were experienced qui tam lawyers, and she told Vinca that she could
approach them about his allegations to see if they would be interested in pursuing
the matter. Vinca agreed and requested that Saady set up a meeting with the Cohen
Firm. Prior to his initial meeting with Saady, Vinca previously made statements to
agents of the Federal Bureau of Investigation (“FBI”) about the Advanced
Biohealing kickback scheme. He also called a government hotline and provided a
tip about the alleged kickback scheme.
Sometime in October or November of 2011, Vinca and Saady met with
Darken to discuss whether the Cohen Firm would pursue a qui tam action against
Advanced Biohealing on Vinca’s behalf. Eventually, Jennifer Stoup Sweeney
(“Sweeney”) was included as a co-relator with Vinca, and Sweeney and Vinca
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decided to retain the Cohen Firm to pursue their allegations against Advanced
Biohealing. Specifically, in January of 2011, Vinca and Sweeney entered into a
contract for legal representation (the “Retainer Agreement”) with the Cohen Firm,
in which the Cohen Firm would represent Vinca and Sweeney jointly as relators in
a qui tam action against Advanced Biohealing. (Docs. 491-1 & 490-2). Pursuant to
the Retainer Agreement, Vinca and Sweeney agreed to pay the Cohen Firm 40% of
any recovery. (Doc. 491-1, at 2). The Retainer Agreement was signed by Vinca
and Sweeney, and by Darken on behalf of the Cohen Firm. (Doc. 491-1, at 5). It
was also signed by Saady on behalf of the Saady Firm (Doc. 491-1, at 5). Pursuant
to the Retainer Agreement, the Saady Firm would serve as additional counsel to
Vinca and Sweeney in conjunction with the Cohen Firm, and the Saady Firm
would receive 25% of the attorneys’ fees, while the Cohen Firm would receive
75%. (Doc. 491-1, at 4-5).
Throughout the Cohen Firm’s representation of Vinca, Darken remained
Vinca’s primary point of contact with the Cohen Firm and Vinca never had any
substantive meetings or discussions with Cohen about his case until the two of
them met in approximately November 2016. (See Doc. 485-49). In fact, Darken
was the lead attorney on the matter and handled the majority of the work in the
case, including most communications with Vinca and Sweeney as well as the
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drafting and filing of the pleadings and memoranda with the Department of Justice
(“DOJ”) and the Court. (Id.).
On January 26, 2011, Former Counsel initiated the instant qui tam action on
behalf of Vinca and Sweeney, as co-relators against Advanced Biohealing for
violations of the False Claims Act (“FCA”), 31 U.S.C. §3729 et seq., based upon
allegations of excessive and fraudulent billing by Advanced Biohealing to
Medicare (the “Complaint”) (Doc. 2), which they subsequently amended (the
“Vinca Complaint”) (Doc. 37). The Vinca Complaint also asserted a claim for
unlawful retaliatory discharge in Count II (“Vinca Retaliation Claim”). (Doc. 37).
Specifically, Vinca and Sweeney filed the qui tam action against Advanced
Biohealing, raising several claims on behalf of the United States against Advanced
Biohealing under the FCA and a retaliation claim pursuant to 31 U.S.C. § 3730(h)
(Doc. 37, ¶¶ 25-38).
According to the Vinca Complaint, Vinca was employed by Advanced
Biohealing as a Sales Representative in the Tampa, Florida, region from July 2008
to January 2011, and Sweeney worked as a Reimbursement Specialist at Advanced
Biohealing beginning in January 2009 (Doc. 37, ¶¶ 5-6). Further, the Vinca
Complaint alleges that Advanced Biohealing caused private physicians to submit
false claims to the Medicare program, in violation of the Anti-Kickback Statute, by
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providing illegal remuneration to physicians to induce them and their staff to
purchase and use Dermagraft, an artificial skin tissue product intended to treat
diabetic foot ulcers, on Medicare patients (Doc. 37, ¶¶ 7-9, 18-30).
The instant action was the first of six FCA qui tam cases filed against
Advanced Biohealing related to unlawful kickbacks it provided to physicians and
other healthcare providers to induce them to purchase Dermagraft. 2 On January 3,
2017, the United States sought to intervene in the instant action for purposes of
settlement. (Doc. 66). Given the other pending qui tam cases, on June 13, 2017,
Vinca and Sweeney filed, through Former Counsel, a Motion to Consolidate Cases,
seeking the consolidation of all six FCA qui tam cases filed against Advanced
Biohealing. (Doc. 68). The District Judge granted the request to consolidate and
accepted the United States’ proposed allocation of the settlement proceeds amongst
the six relator actions, such that settlement proceeds were distributed as follows:
55.155% for the Vinca Complaint; 40.314% for the Harvey Complaint; 3.5299%
for the Medolla Complaint; 0.4% for the Petty Complaint; 0.35% for the Webb

2

On May 13, 2011, Mark Harvey (“Harvey”) filed the second qui tam complaint (the “Harvey
Complaint”), on March 15, 2012, Joseph Medolla (“Medolla”) filed the third qui tam complaint,
on November 21, 2012, Daniel Petty, Christopher Bell, Kyle Richardson, and Tara Denney filed
the fourth qui tam complaint (the “Petty Complaint”), on April 19, 2013, Heather Webb
(“Webb”) filed the fifth qui tam complaint (the “Webb Complaint”), and on February 14, 2014,
Antonio Montecalvo (“Montecalvo”) filed the sixth qui tam complaint (the “Montecalvo
Complaint”).
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Complaint; and 0.25% for the Montecalvo Complaint (Doc. 131). Subsequently,
the United States sought a dismissal of this case pursuant to the settlement. (Doc.
137). Upon consideration, the District Judge entered an Order dismissing all claims
against Advanced Biohealing. (Doc. 140).
On February 2, 2018, however, Montecalvo submitted a Notice of Appeal
challenging the consolidation of the cases and the disbursement of the settlement
funds. (Doc. 148). Other appeals soon followed. (Docs. 153, 157 & 158). Given
the pending appeals, on February 21, 2018, the District Judge stayed this case as to
all remaining issues until resolution of the appeals. (Doc. 156).
On March 28, 2019, Vinca submitted a Motion for Substitution of Counsel,
by which he requested that Former Counsel be removed and that Attorneys Noel P.
McDonell and Bryen N. Hill and the law firm of Macfarlane, Ferguson &
McMullen (collectively, “Current Counsel”) be substituted as counsel of record
(Doc. 161). The District Judge granted Vinca’s request and removed Former
Counsel from the case, substituting Current Counsel as Vinca’s counsel of record.
(Doc. 162). Following the substitution, on April 10, 2018, the United States moved
for a limited lift of the stay to deposit the settlement funds, in the sum of
$86,380,315.48, into the Court registry (Doc. 163). The District Judge then lifted
the stay and accepted the settlement funds into the Court registry pending a final
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determination as to the disbursement of the funds amongst the six qui tam cases.
(Doc. 164). Soon thereafter, on May 15, 2018, Former Counsel filed the charging
liens that are now before this Court. (Doc. 167).
Nearly a year later, on February 19, 2019, the District Judge granted the
parties’ joint request for mediation by a magistrate judge. (Doc. 181). Mediation
began in March 2019 and continued into April 2019. (Docs. 183, 191, 204). On
April 23, 2019, the parties entered into an agreement known as the “Settlement
Agreement Concerning Relators’ Shares” (the “Final Settlement Agreement”) in
which the parties resolved all disputes concerning the allocation of the proceeds of
the settlement reached between the DOJ and Advanced Biohealing (the “Advanced
Biohealing Settlement”) and the percentage of allocation to be awarded to each of
the relators in the six qui tam actions. (Docs. 204 & 227).
Under the terms of the Final Settlement Agreement, the parties moved to
dismiss their appeals in the United States Court of Appeals for the Eleventh Circuit
(the “Eleventh Circuit”) and agreed that no further appeals concerning the
allocation of the six relators’ shares would be pursued. (Doc. 227). Given the Final
Settlement Agreement, on May 17, 2019, the parties sought a release of the funds
maintained in the Court registry (Doc. 227), which the District Judge granted a few
days later, directing that the funds be distributed pursuant to the terms of the Final
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Settlement Agreement and the parties’ agreed allocation. (Doc. 227, at 2-3). On
May 24, 2019, the funds were disbursed as previously ordered. (Doc. 239).
Significantly, a total share of the settlement proceeds was allotted to Vinca in the
amount of $17,875,000, with $7,150,000 (40% of Vinca’s total share) retained in
the Court registry pending the resolution of Former Counsel’s charging liens, and
the remaining $10,725,000 was disbursed to Vinca through Current Counsel (See
Doc. 229).
Beginning on February 23, 2021, the Magistrate Judge conducted the fiveday evidentiary hearing in order to resolve Former Counsel’s charging liens,
during which Darken, Saady, and Vinca were called as witnesses to testify. (See
Docs. 456, 460, 464, 470, & 479). Upon the conclusion of the evidentiary hearing,
the parties submitted their respective post-hearing briefs. (Docs. 487, 488, & 489).
III. THE REPORT AND RECOMMENDATION
The core issue to be resolved by the Magistrate Judge was what amount of
attorneys’ fees, if any, Former Counsel should receive from the $7,150,000 plus
interest maintained in the Court registry. Former Counsel argued that they were
entitled to all of it while Vinca argued they were entitled to none of it. After
consideration of the parties’ submissions and the evidence adduced at the hearing,
the Magistrate Judge recommended that Former Counsel’s charging lien be
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recognized to the extent that $6,128,500 plus interest is a just quantum meruit
award which is fair to Former Counsel and Current Counsel and to Vinca. In
making that recommendation, the Magistrate Judge found that Former Counsel did
not abandon or withdraw from Vinca’s case, but instead, Vinca discharged Former
Counsel on March 21, 2018. (Doc. 495, pp. 55-58). However, the Magistrate Judge
further found that Former Counsel did not fully perform under the Retainer
Agreement and recommended that Former Counsel’s request that it receive
payment for the entire $7,150,000 in attorney fees be denied.
The Magistrate Judge then undertook the task of making a quantum meruit
determination of the reasonable value of the services rendered by Former Counsel
as compared to those rendered by Current Counsel and then considering the
reduction necessary for damages, if any, suffered by Vinca as a result of the
misconduct by Former Counsel. (Doc. 495, p. 61). 3 In considering the work
performed by both Former Counsel and Current Counsel, the Magistrate Judge
found that a reasonable and fair allocation for the work performed by each was
90% for Former Counsel and 10% for Current Counsel. He found that current
counsel had negotiated and secured a total recovery of $17,825,00 for Vinca, but

3

See Searcy, Denny, Scarola, Barnhart & Shipley, P.A. v. Scheller, 629 So.2d 947 (Fla. Dist.
Ct. App. 1993).
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that the recovery was based almost entirely on Former Counsel’s prior work.
“Current Counsel asserted no new legal theories, no challenges to the Court’s
Allocation Order or to the DOJ’s Relator’s share, and no objections to any results
achieved by Former Counsel. In other words, Former Counsel’s prior work formed
the basis of the recovery.” (Doc. 495, pp. 66-67). The Magistrate Judge’s apt
analogy to baking a cake likened Former Counsel’s work to deciding the type of
cake to make, shopping for and mixing the ingredients and baking the cake
compared to Current Counsel completing the cake by frosting it. (Doc. 496, p. 67).
The Magistrate Judge then recommended that Former Counsel’s services be valued
at $6,435,000 or 90% of the $7,150,000 being held in the Court Registry. (Doc.
495, p. 68)
Finally, the Magistrate Judge set about determining whether Former
Counsel’s attorney’s fees should be forfeited or reduced by damages, if any,
suffered by Vinca as a result of Former Counsel’s malpractice or misconduct. The
Magistrate Judge first considered Vinca’s claim that Vinca suffered actual
damages by Former Counsel’s malpractice in failing to assert VA claims in the
Complaint and found that Vinca failed to produce sufficient evidence to
demonstrate any damages for failure to investigate or include VA claims in the
complaint. (Doc. 496, p. 73).
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The Magistrate Judge then considered Vinca’s arguments that Former
Counsel should forfeit all, or part, of their attorneys’ fees based on allegations of
that Former Counsel prioritized their own financial interests over Vinca’s by: (1)
failing to be transparent regarding Cohen being terminally ill and the Cohen Firm’s
financial viability; (2) permitting Dominic Massari (“Massari”), a disbarred
attorney who worked for the Cohen firm as a paralegal, to commit the
unauthorized practice of law (“UPL”) in the settlement of Vinca’s case in violation
of the Florida Statutes and the Rules Regulating The Florida Bar; (3) inducing
Vinca to obtain a usurious gap loan to cover his financial expenses; (4) attempting
to get Vinca to pre-pay attorney’s fees; and (5) failing to reduce the settlement
demand immediately after the September 2017 mediation in an effort to settle the
case.
With respect to Vinca’s argument that Former Counsel knowingly permitted
Massari to commit UPL, the Magistrate Judge found that Vinca suffered no actual
damages by any of the alleged unlicensed activities and that there are better forums
in which to adjudicate Vinca’s claims related to Massari’s alleged UPL. (Doc. 495
p. 81). As to Vinca’s argument concerning the gap loan, the Magistrate Judge
found that Former Counsel committed no misconduct because it was Vinca who
sought Former Counsel’s help in obtaining a gap loan and that by identifying
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possible lenders Former Counsel did not require Vinca to obtain the loan, nor did
they negotiate the loan or make any money from it. And regarding Vinca’s
argument that Former Counsel failed to reduce the settlement demand immediately
after the 2017 mediation, as Vinca and Sweeney requested, the Magistrate Judge
found that Vinca did not suffer any harm and, in fact, increased his position of
strength by waiting.
Ultimately, the Magistrate Judge found that Vinca did suffer some harm
from the totality of circumstances created by Former Counsel and that the harm
warranted an additional forfeiture of part of the quantum meruit award.
Specifically, the Magistrate Judge found that Vinca lost confidence in Former
Counsel and “given Massari’s participation on his case, Cohen’s health and the
Cohen Firm’s financial instability, Vinca chose to terminate Former Counsel, even
though such termination resulted in harm to Vinca, as he was required by the
circumstances to obtain new counsel.” (Doc. 495, p. 84). The Magistrate Judge
then recommended that an additional 3% or $214,500 be subtracted from the
quantum meruit award for the harm caused Vinca by Former Counsel.
In conclusion, the Magistrate Judge recommended the reasonable value of
Former Counsel’s services was $6,435,000, and that this amount should be offset
by $214,500.00 in damages for the harm suffered by Vinca and by an additional
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$92,000, for the statutory fees previously obtained by Former Counsel for a total
quantum meruit award of $6,128,500. (Doc. 495, pp. 85-86). In a subsequent
Order, the Magistrate Judge supplemented his recommendation to include the
accrued prejudgment interest and recommended that it be divided as 87% to
Former Counsel and 13% to Vinca, commensurate to the principal sum. (Doc.501).
Vinca filed a 55-page Relator’s Objections to the R&R (Doc. 507), to which
the Cohen Firm and the Saady Firm filed responses (Docs. 515, 516). Neither the
Cohen Firm nor the Saady Firm filed any objections to the R&R.
IV. DISCUSSION
“Federal courts, although they recognize no common-law lien in favor of
attorneys, give effect to the laws of the states in which they are held.” Gottlieb v.
GC Fin. Corp., 97 F. Supp. 2d 1310, 1311 (S.D. Fla. 1999) (quoting Webster v.
Sweat, 65 F.2d 109, 110 (5th Cir. 1933)); accord Zaklama v. Mount Sinai Med.
Ctr., 906 F.2d 650, 652 (11th Cir. 1990) (indicating that the rights and obligations
of parties to a contract that provides for attorneys’ fees upon the happening of a
contingency are governed by state law). Under Florida’s common law, a charging
lien may be utilized to enforce the equitable right of an attorney to have fees owed
for legal services secured to the attorney by the judgment or recovery in a lawsuit.
See Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428
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So.2d 1383, 1384 (Fla. 1983); Flynn v. Sarasota Cnty. Pub. Hosp. Bd., 169 F.
Supp. 2d 1363, 1368 (M.D. Fla. 2001).
To impose a charging lien, a court in equity must find: (1) an express or
implied contract between the attorney and the client; (2) an express or implied
understanding that payment is either contingent upon recovery or will be paid from
the recovery; (3) an attempt by the client to avoid paying or a dispute as to the
amount of the fee; and (4) a timely notice of a request for a lien. Id. at 1385.
Considering these factors, Former Counsel’s charging liens are properly before the
Court for resolution. Namely, (1) the Retainer Agreement between Vinca and
Former Counsel expressly memorialized their agreement that 40% of any recovery
constituted the appropriate compensation for attorneys’ fees (Doc. 491-1); (2) the
payment of attorneys’ fees to Former Counsel is in dispute, since Vinca asserts that
either no monies or limited monies should be paid to Former Counsel as attorneys’
fees; and (3) Former Counsel timely submitted notice of their requests for charging
liens.
In resolving Former Counsel’s charging liens, the Magistrate Judge found
that under the totality of the circumstances, a quantum meruit award in the amount
of $6,128,500 is warranted given the Retainer Agreement and the significant
services performed by Former Counsel. Vinca states that he objects to the R&R to
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the limited extent that it fails to apply or misapplies the relevant statutes, case law
and rules of procedure that prohibit a party from receiving attorneys’ fees which
are unjust enrichment from unlawful activity. Specifically, the unlawful activity
about which Vinca complains is the alleged unauthorized practice of law (“UPL”)
by disbarred attorney Dominic Massari (“Massari”) who was employed by the
Cohen Firm as a paralegal. Vinca, however, goes on to claim that the R&R
overlooks other instances of misconduct or malpractice by Former Counsel.
Finally, Vinca points to the recusal of Judge Moody on December 1, 2021(Doc.
496) and suggests that had the Magistrate Judge been afforded knowledge of the
relationship between Massari and Judge Moody, the district judge presiding over
the case, it may have influenced the R&R.4
Vinca’s objections to the R&R are overruled for the reasons explained
below:
1. Dominic Massari’s Unauthorized Practice of Law
Vinca objects that the Magistrate Judge misapplied or failed to apply the law
as it relates to Former Counsel’s unjust enrichment from UPL In essence, Vinca
argues that Former Counsel are entitled to no attorneys’ fees because the fees are

4

Judge Moody recused himself on December 1, 2021, two days after the R&R was filed based
on the fact that “one of the issues involves Domenic Massari who is the father of the
undersigned’s daughter in law.” (Doc. 496)
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the direct result of a scheme to defraud Vinca by Former Counsel’s aiding and
assisting Massari’s practice of law while he was disbarred. The conduct which
Vinca argues is the UPL is Massari’s participation in the September 2017
mediation, Massari’s direct communication with Vinca and with opposing counsel,
and Massari’s part in securing a litigation loan for Vinca.
To state a cause of action under any legal theory that arises from the UPL, a
pleading must state that the Florida Supreme Court “has ruled that the specified
conduct at issue constitutes the unauthorized practice of law.” Goldberg v. Merrill
Lynch Credit Corp., 35 So.3d 905, 907 (Fla. 2010) (emphasis added). It is clear
that the Rules Regulating The Florida Bar--Rule 3-6(d) --prohibit a disbarred
attorney from having contact with any client and from engaging in conduct that
constitutes the practice of law. The testimony at the hearing proved that Massari
had direct contact with Vinca regarding his case. It is also clear from the testimony
at the hearing that Massari had contact with Vinca regarding the litigation loan.
However, it is not clear what role Massari played in the 2017 mediation and what
contact he had with opposing counsel. Vinca cites no case law and the Court is
unaware of any Florida Supreme Court case that holds that a paralegal who assists
a Florida licensed attorney with the mediation and settlement of a case constitutes
UPL.
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Notwithstanding, the Magistrate Judge made no finding in the R&R that
Massari did, or did not, engage in the UPL or that Former Counsel did or did not
aid and abet Massari in the UPL (Doc. 495, pp. 81-84). After careful consideration
of the record evidence, he found that Massari’s role was mostly limited to
following the directives of Darken or Cohen and that Vinca suffered no actual
damages as a result of Massari’s alleged UPL (Id.). He also observed that the
record on this issue was lacking and questioned why, given that the focus of the
alleged UPL was on Massari’s alleged misconduct, Massari was not called as a
witness in the evidentiary hearing. (Id.). The undersigned agrees. If Vinca’s focus
of the unjust enrichment and fraud claim was on Massari’s conduct, it is curious
why he was not called as a witness in the evidentiary hearing.
The Magistrate Judge did not excuse Massari’s alleged UPL, but rather,
found it should be sanctioned and that there are other appropriate forums “where a
record could be more fully developed to determine whether Massari committed
UPL and whether Former Counsel enabled such activity, and what sanction, if any,
is warranted.” (Doc. 495, p. 82).5 Punishing the offending lawyer is not the

5

The Court notes that Vinca already pursued Massari’s alleged UPL in state court, in which he
asserted claims for malpractice. See Vinca v. Cohen, No. 18-CA-7935 (Fla. Cir. Ct. Dec. 28,
2018) (Vinca’s Amended Complaint raising claims of professional negligence and unjust
enrichment against Cohen, Darken, and Saady and respondeat superior claims against Former
Counsel, the Barry A. Cohen Legal Team, and the Darken Firm, based, in part, on hiring and
using Massari to perform legal services). Further, Massari petitioned the Florida Supreme Court
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function of fee forfeitures. See Scheller, 629 So. 2d at 953-54 (stating that a court
does not act as a “lawyer disciplinary process” and that such activity should occur
in a different forum, such as the Bar disciplinary process, while the court should
determine whether the ordinary legal remedies will fairly uphold the high standards
governing lawyers); Eakin v. United Tech. Corp., 998 F. Supp. 1422, 1429 (S.D.
Fla. 1998) (noting that the case law on the issue is clear that Disciplinary Rules do
not create private causes of action). Therefore, the Magistrate Judge’s UPL
analysis is consistent with both Florida and federal law.
Furthermore, it appears to the undersigned that Vinca’s present UPL claim is
belied by the fact that he offered to stay with Former Counsel—if they agreed to a
reduced rate of 30% with no additional appellate fees—after he became aware of
the basis for his Massari UPL claim through discussions he had with other outside
counsel in January, 2018. (Doc. 492-7; Doc. 495, p. 84). It was only after Former
Counsel refused to accept a reduced fee that Vinca fired them. Based on the record
before it, this Court, like the Magistrate Judge, cannot make a finding that even if
Massari engaged in the UPL that Vinca suffered any specific damages because of
Massari’s conduct.

for disciplinary revocation without leave to seek readmission, which was granted by the Florida
Supreme Court. See In re: Massari, CASE NO.: SC19-1347, 2019 WL 5624587, at *1 (Fla. Oct.
31, 2019).
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After a thorough analysis of Vinca’s UPL arguments, the Magistrate Judge
properly concluded that regardless of Vinca’s theories of UPL, and whether he had
established any of the theories, a total forfeiture of any quantum meruit award
based on Massari’s UPL “would result in an unjust windfall for Vinca given the
substantial benefit of work performed by Former Counsel on Vinca’s case and the
lack of tangible harm to Vinca from Massari’s participation if the case.” (Doc. 495,
p. 82). However, the Magistrate Judge did find that Vinca established he suffered
“intangible harm in the form of lost trust in Former Counsel’s loyalty and good
faith,” as a result of Massasri’s conduct and the undersigned agrees.
2. Other Fraudulent Activity or Malpractice
Despite stating at the outset of his Objections that he objects to the R&R
only to the limited extent that it fails to apply, or misapplies, the relevant statutes,
case law and rules of procedure that prohibit a party from receiving attorneys’ fees
for fraud in UPL, Vinca proceeds to touch on other alleged acts of misconduct or
malpractice by Former Counsel—namely, hiding from Vinca the Cohen Firm’s
$35 million dollar debt and Cohen’s terminal health situation along with the
imminent closing of the Cohen Firm, the Cohen Firm’s request that Vinca prepay
attorneys’ fees, Vinca’s usurious loan facilitated by the Cohen Firm and a
surreptitious attempt by Darken and the Cohen Firm to substitute Darken’s own
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firm as counsel. (Doc. 507, pp. 5-7). Vinca also objects to the finding in the R&R
that the complaint in this action could not have included the VA claims because
Former Counsel could not plead sufficient details. Vinca believes that these bad
acts compel a total forfeiture of any quantum meruit fee award to Former Counsel.
These additional objections, however, lack the required specificity and the
background discussion Vinca provides to support them reads like a rambling,
stream of consciousness. (See Doc. 507, pp. 13-34; 46-54). As such, these
additional objections are subject to a clearly erroneous standard of review. Gropp
v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). And there was
no clear error here.
The Magistrate Judge properly looked to the outcome of the underlying case
to determine whether Vinca’s financial outcome was diminished by Former
Counsel’s alleged wrongful acts or omissions. Fee forfeitures are generally
inappropriate when a lawyer’s violation of legal duty “do[es] not significantly
harm the client” and “when a lawyer’s acts, although in breach of duty to the
client, cause[s] no harm to the client.” Scheller, 629 So. 2d at 952. Former
counsel’s quantum meruit fee can be reduced only by the amount of damages
suffered by the client as a result of former counsel’s misconduct. Cooper v. Ford &
Sinclair, P.A., 888 So.2d 683, 690 (Fla. Dist. Ct. App. 2004).
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After careful consideration, the Magistrate Judge concluded that “the total
forfeiture of any quantum meruit award under the circumstances of this case would
be inappropriate” based on the following specific factual findings that were not
specifically objected to by Vinca:
(1) That “Former Counsel’s work conferred a substantial benefit to Vinca”;
(2) That “Vinca suffered no actual damages by any of the alleged
unlicensed activities”;
(3) That “Former Counsel performed substantial work on Vinca’s case
without Massari’s participation,” which began “during the January 2017
initial mediation”;
(4) That “Massari’s role on Vinca’s case mostly was limited to following
the directives of either Darken or Cohen”;
(5) That “Vinca does not identify any activities by Massari that caused
actual damage to the financial outcome of Vinca’s case”;
(6) That “Massari’s suggestion for the percentage allotment matrix for the
Second Settlement Agreement with [Relator] Harvey enhanced the
potential value of Vinca’s case”;
(7) That “by January 2018, Former Counsel had positioned Vinca’s qui tam
action to recover a potential of $25,741,334.01, absent any changed
circumstances upon appeal” while “Current Counsel negotiated and secured
Vinca a total recovery of $17,875,000 in the Final Settlement Agreement”;
and
(8) That “[w]ithout question, Current Counsel secured such a recovery for
Vinca based almost entirely upon Former Counsel’s prior work.”

(Doc. 495 at 65-66, 81-82). Given these unobjected-to factual findings, the
Magistrate Judge correctly rejected the total forfeiture sought by Vinca.
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Former counsel is entitled to receive a fee for work performed before
committing misconduct. Hill v. Douglas, 271 So. 2d 1, 4 (Fla. 1972); James T.
Butler, P.A. v. Walker, 932 So. 2d 1218, 1221 (Fla. Dist. Ct. App. 2006). When
former counsel is discharged for cause, a court “should reduce the quantum meruit
award by the amount of damages, if any, suffered by the [former client] . . . . [I]f
the [client’s] damages do not exceed a quantum meruit fee, the court is then free to
consider whether forfeiture of some or all of the quantum meruit fee as already
reduced by the client’s damages is appropriate under [the] circumstances.”
Scheller, 629 So. 2d at 955. The client bears the burden of proving any damages
resulting from former counsel’s termination for cause. Shackleford v. Sailor’s
Wharf, Inc., 2018 WL 10373434, at *3 (M.D. Fla., Jan. 19, 2018). The court looks
at the totality of the circumstances to fashion an award that is fair to both the
attorney and the client. Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v.
Poletz, 652 So. 2d 366, 369 (1995). The balancing of relevant factors and the
ultimate determination of the quantum meruit award are matters within the sound
discretion of the trial court. Id.
The R&R recommendation that Former Counsel are entitled to
$6,128,500.00, after deductions, is amply supported. Former Counsel represented
Vinca from January 2011 to March 2019, a period of over eight years. Former
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Counsel obtained a 20% relator’s share for Vinca, a substantial percentage
allotment of the Advanced Biohealing Settlement proceeds (Doc. 495, p. 49).
Former Counsel constructed the primary framework for Vinca’s case and
performed most of the work that resulted in his significant recovery. (Id. at 67).
They did not abandon or withdraw from Vinca’s case, but were fired toward the
end of the case when Vinca lost faith and confidence in Former Counsel based on
Massari’s participation in the case, Cohen’s health, the Cohen Firm’s financial
problems and the unwillingness of Former Counsel to be open and honest about
those problems, and then Darken leaving the firm. Vinca justifiably sought new
counsel and therefore some amount of damages should be awarded Vinca in the
form of a reduction in the attorney fees. The Magistrate Judge’s recommendation
that a 3% reduction or $214,500 ($7,150,000 x .03) is an amount that recognizes
the intangible harm caused by former Counsel is reasonable.
3. Judge Moody’s Recusal
Vinca’s objection regarding Judge Moody’s recusal from this case is not an
objection to any of the findings and recommendations in the R&R inasmuch as the
recusal occurred after the Magistrate Judge filed his R&R. Vinca’s suggestion that
knowledge of the relationship between Judge Moody and Dominic Massari might

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have influenced the R&R is pure speculation. 6 Therefore, the Court will not
address this objection further.
ACCORDINGLY, it is now ORDERED AND ADJUDGED:
1.The Court overrules relator Brian Vinca’s Objections (Doc. 507) and
adopts the Magistrate Judge’s Report and Recommendation (Doc. 495) and
incorporates it by reference in this Order.
2. In consideration of the totality of the circumstances, this Court finds that
Former Counsel is entitled to 90% of the $7,150,000 in the Court registry or
$6,435,000 in satisfaction of their charging liens. However, the Court further finds
that this amount should be reduced by $214,500 as damages for the intangible
harm caused by Former Counsel, leaving $6,220,500. This amount should then be
offset by the previously obtained $92,000 in statutory fee, leaving a total amount of
$6,128,500. ($6,435,000 - $214,500 - $92,000).
Therefore, $6,128,500 is awarded to Former Counsel as a fair and
reasonable quantum meruit award in satisfaction of Former Counsel’s charging
liens (Doc. 167). In addition, 87% of the prejudgment interest held in the Court
registry is awarded to Former Counsel and 13% to Vinca.

6

Vinca concedes that he does not hold Judge Moody or Judge Porcelli responsible because
they were most likely unaware of Massari’s involvement, but he suggests it is another example
of Massari and Former Counsel’s fraud and deception.
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3. This matter is referred to the Magistrate Judge to resolve how and when
the monies should be distributed from the Court registry.
DONE AND ORDERED at Tampa, Florida, this 19th day of April, 2022.

Copy provided to:
The Honorable Anthony E. Porcelli

27