United States of American v. Malik Dr et al

Filing 117

OPINION AND ORDER: GRANTS 107 MOTION for Attorney Fees and Expenses by Plaintiff Bradley A Stephens and Expenses and 115 Supplemental MOTION for Attorney Fees by Plaintiff Bradley A Stephens and awards the total sum $81,790.50. The Cle rk of the Court is instructed to enter judgment in favor of Relator/Plaintiff Bradley Stephens, and against Defendants Afzal Malik and Prime Health Care Services, Inc., jointly and severally, in the amount of $81,790.50, plus interest, at the prevailing legal rate, from April 29, 2016, until judgment is paid in full. Signed by Judge William C Lee on 11/18/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THE UNITED STATES OF AMERICA, ex rel.
BRADLEY STEPHENS,
Plaintiffs,
v.
DR. ARSHAD MALIK, AFZAL J. MALIK, and
PRIME HEALTH CARE SERVICES, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Cause No.: 2:12-CV-306

OPINION AND ORDER
This matter is before the Court on the Petition for Attorney Fees and Expenses and
memorandum in support filed by Relator/Plaintiff Bradley Stephens (docket entries 107 and
108). Defendants Afzal Malik and Prime Health Care Services, Inc., filed a response to the
petition (DE 113) and Stephens filed a reply (DE 114).1 Shortly after Stephens filed his petition,
Defendants moved to strike it as untimely. Defendants’ Motion to Strike (DE 109). The Court
(Magistrate Judge Paul R. Cherry) denied the motion (DE 112). Stephens then filed a
Supplemental Petition for an Award of Attorney’s Fees and Costs (DE 115) and a supplemental
supporting memorandum (DE 116). The Defendants did not file a supplemental response and so
this matter is ripe for resolution.
For the reasons discussed below, the Court GRANTS the Petition for Attorney Fees and
Expenses (DE 107), GRANTS the Supplemental Petition for an Award of Attorney’s Fees and

1

All the substantive claims in this case have been settled, as discussed below. This fee
litigation involves only Stephens and Defendants Afzal Malik and Prime Health Care Services.
Defendant Dr. Arshad Malik already paid his portion of Plaintiff’s fees and so is not a party to
the present dispute.

Costs (DE 115), and awards the total sum $81,790.50. The Clerk of the Court is instructed to
enter judgment in favor of Relator/Plaintiff Bradley Stephens, and against Defendants Afzal
Malik and Prime Health Care Services, Inc., jointly and severally,2 in the amount of $81,790.50,
plus interest, at the prevailing legal rate, from April 29, 2016, until judgment is paid in full.
DISCUSSION
Stephens filed this qui tam action on August 1, 2012, under the False Claims Act, 31
U.S.C. § 3729 et seq. Complaint (DE 1), p. 1. Stephens alleged that Defendant Arshad Malik, an
Indiana physician, “violated the [FCA] by referring Medicare patients to Defendant Prime Health
Care Services, Inc. (a company solely owned by his brother, Defendant Afzal J. Malik) which, in
turn, billed Medicare for home health services in violation of the Stark Law, 42 U.S.C. §
1395nn(a)(1)-(2).” Petition for Attorney Fees, p. 1. The United States filed a Notice of Election
to Intervene in Part and Decline in Part on March 24, 2014 (DE 17) and joined this action as a
plaintiff. After nearly four years of litigation, the parties filed a joint Notice of Settlement on
April 20, 2016 (DE 104). The court entered an Agreed Order of Dismissal on April 29, 2016,
dismissing this case without prejudice and retaining jurisdiction (at the request of all parties) for
purposes of enforcing the settlement agreement. Order of Dismissal (DE 15), p. 1. The
enforcement of the settlement, at least as to plaintiff’s counsel’s fee award, is what brings this
matter before the Court.
In his petition, Stephens states that because “settlement was reached resolving all False
Claims Act claims between the Relator, the United States of America, and the Defendants[,] . . .
2

Damages in False Claims Act cases are assessed jointly and severally against culpable
defendants. United States v. Hughes, 585 F.2d 284, 286 (7th Cir. 1978). See also, Jones v.
Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 677 (4th Cir. 2015).
2

the Relator is now a prevailing party and, as such, is entitled to recover reasonable attorney fees
and expenses attributable to the False Claims Act claims” asserted in this case. Petition for
Attorney Fees, p. 1.3 Stephens claims that “[w]hile an agreement was recently reached with
Defendant Dr. Arshad Malik, all attempts to do so with Defendant Afzal J. Malik and Defendant
Prime Health Care Services, Inc., via their common counsel, have been unsuccessful.” Id., pp. 12. Stephens requests that “his counsel be paid attorney fees of $73,078.50 ($93,078.50 minus the
$20,000.00 paid by Defendant Dr. Arshad Malik) and expenses of $2,497.00, plus interest from
the April 29, 2016[,] settlement and dismissal of the qui tam allegations in this case.” Id., p. 2.4
In their response brief, Afzal Malik and Prime Health Care challenge Stephens’ fee
petition first by renewing their argument that it “is time barred and it does not comply with trial

3

The False Claims Act provides that a prevailing plaintiff/relator in a qui tam action is
entitled to an award of “reasonable attorneys’ fees and costs[]” (regardless of whether the United
States intervenes in the case). 31 U.S.C. § 3730(c)(d)(1) and (2). The Act also provides that the
prevailing plaintiff/relator “receive an amount for reasonable expenses necessarily incurred, . . .”
in prosecuting the action and that “[a]ll such expenses, fees, and costs shall be awarded against
the defendant.” 31 U.S.C. § 3730(d)(1).
4

In his petition, Stephens also asks that his counsel “be paid the reasonable fees for time
expended in drafting and litigating this Petition for Attorney Fees and Expenses.” Petition, p. 2.
He goes on to state that “[t]hough some of those hours and expenses have already been incurred
and are thus part of this fee application, the total additional amounts cannot be ascertained until
the litigation of this fee petition is completed. The Relator will itemize this time in his Reply
memorandum, should it become necessary, or in a supplemental petition.” Id., p. 2, n. 1.
Stephens’ footnote was apparently prophetic, given that the parties ended up litigating the
Defendant’s Motion to Strike (referenced above). This was the reason Stephens filed his
supplemental petition (DE 115), i.e., to recover additional fees incurred in responding to (and
ultimately defeating) the Defendants’ motion and litigating this fee issue. See Memorandum in
Support of Supplemental Petition (DE 116), p. 2. In his supplemental petition, Stephens asks the
Court for “an additional award of . . . [$6,215.00] for time spent litigating his Fee Petition and for
the preparation of” the filing of the supplemental petition and memorandum in support. Id. So,
Stephens is asking for “total requested fees and costs for all work performed on the case” in the
amount of $81,790.50, plus interest from the date of the settlement. Id.
3

rules and should be denied.” Defendants’ Response, p. 1. The Defendants don’t expressly state
that they are asking this Court to reconsider the Order entered by Magistrate Judge Cherry, in
which he denied their motion to strike (which was based on this same argument), but clearly
that’s what they are requesting. The Court has considered the Defendants’ arguments presented
in their brief but declines the invitation to reconsider or reverse the Court’s July 5, 2016, Opinion
and Order.
Aside from their argument that his petition was untimely, the Defendants concede that
Stephens is entitled to recover fees and costs. They do, however, raise challenges as to the
amount. This argument is twofold. First, the Defendants contend that the “fee request should be
decreased by $5,625.50 because the time requested to be reimbursed is unreasonable and would
compensate the relator for attorney time not actually spent on this case.” Defendants’ Response,
p. 2. Second, the Defendants argue that Stephens “requests to be reimbursed at an attorney rate
that is not reasonable because it is not his attorney’s actual rate [and] a credit of $7,937.50 should
be given the Defendants [sic].” Id., p. 3.
I. Original fee petition.
In his memorandum in support of his first petition for fees and costs, Stephens notes that
“courts typically calculate attorney’s fees in qui tam cases using the same standard as applied in
42 U.S.C. § 1988 civil rights actions and other matters involving federal statutes. This is
commonly referred to as the ‘lodestar method.’” Plaintiff’s Memorandum, p. 2 (citations
omitted). Stephens contends that his request for fees is based on a reasonable hourly rate and a
reasonable number of hours of work, thereby providing a “reasonable lodestar” for Plaintiff’s
request. Id., pp. 2-4. Stephens’ counsel submitted a declaration in support of the fee petition that
4

summarizes his qualifications and expertise in cases like this, his work on this case, and his
calculation of fees. Declaration of Travis W. Cohron (DE 108-1). Mr. Cohron also submitted a
spreadsheet itemizing the fees and expenses incurred in this case. Plaintiff’s Exh. (DE 108-2).
The Defendants’ first argument for a decrease in the amount requested by Stephens is
based on its brow raising contention that Stephens’ fee petition contains “altered entries” and
they attach what they claim is “a summary of those altered entries[.]” Defendants’ Response, p. 2
(citing Defendants’ Exhibits 113-1 and 113-2). As the Defendants explain it, “[t]hrough informal
discovery, [Stephens] provided to these Defendants a listing of time spent working on th[is]
case[.] [Stephens] now reports attorney time that has been increased from the actual time
recorded at the time the work was completed[.]” Id. In other words, the Defendants are claiming
that Stephens’ counsel is fudging the numbers and consequently his fee award should be reduced
“by $4,922.50” for “work performed before 2016 (3.5 years)[.]” Id. (The 3.5 years refers to the
period from the inception of this case through December 2015.) As to fees incurred for the period
from January through May 2016, the Defendants state that since Stephens “did not supplement
[his] informal discovery with entries for time after [December 2015] . . . defendants cannot make
a reasoned decision as to the reasonableness of the attorney time requested to be reimbursed.” Id.,
p. 3. Still, argue the Defendants, “[i]t is reasonable to assume that [Stephens] has reviewed all of
his counsel’s time entries and made adjustments. . . . These Defendants believe that the court can
reasonably make a downward adjustment of 14% of the 3.5 Year Adjustment, or $703.00.” Id.
Thus, the Defendants seek a reduction in the attorney fee in the amount of $5,625.50 ($4,922.50
for pre-2016 fees and $703.00 for the period from January through May of 2016).

5

Stephens maintains in his reply brief that the alleged “altered entries” the Defendants
refer to are nothing more than a legitimate billing adjustment. Plaintiff’s Reply, pp. 2-3. He
claims the discrepancies in the two documents are the result of his efforts to compromise his
attorney’s fees to facilitate settlement, and that the exhibits submitted by the Defendants reflect
those efforts (that is, the hours listed on the document that later became the Defendants’ exhibit
were lower because they were reduced to facilitate a settlement). Id. He also contends that the
exhibits submitted by the Defendants–the ones that evidence the alleged “altered
entries”–“should be stricken or disregarded as they are the product of confidential settlement
communications, made pursuant to [Federal Rule of Evidence] 408, not ‘informal discovery.’”
Id., p. 3. So, the Defendants accuse Stephens and his counsel of altering time records in order to
recover an unfairly high fee award, and Stephens retorts by accusing the Defendants of
misrepresenting the contents of a document they should not have disclosed in the first place.
As to Stephens’ argument that the Defendants’ exhibits should be stricken or disregarded,
the Court is not inclined to adopt either option. If in fact the Defendants received Stephens’
counsel’s fee summary during settlement negotiations then their use of the document now might
very well violate (at least the spirit of) Rule 408, as Stephens argues. Rule 408 states in relevant
part as follows:
Evidence of the following is not admissible–on behalf of any party–either to prove
or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering–or accepting, promising to accept, or
offering to accept–a valuable consideration in compromising or attempting to
compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the
6

claim[.] . . .
Fed.R.Evid. 408.
However, the Rule 408 prohibition is not absolute. As one district court pointed out:
Rule 408, however, has limits. First, as the last part of its text indicates, evidence
regarding settlement negotiations is admissible if used for a purpose other than
one of those expressly prohibited by the Rule. See PRL USA Holdings, Inc. v. U.S.
Polo Ass’n, 520 F.3d 109, 114 (2d Cir. 2008) (“The exception clearly intends to
exempt from the absolute prohibition of the Rule evidence focused on issues
different from the elements of the primary claim in dispute.”).
Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, 739 F.Supp.2d 125, 129 (D.Conn.
2010). The court in Master-Halco noted the purpose of Rule 408:
The Rule “essentially forbids a court from basing adverse findings on a party’s
concessions in settlement negotiations.” Rein v. Socialist People’s Libyan Arab
Jamahiriya, 568 F.3d 345, 351 (2d Cir. 2009). As Judge Weinstein has explained,
“[t]he Rule is based on the policy of promoting the compromise and settlement of
disputes,” by taking into account “the reality that permitting the consideration of
settlement offers as reflecting an admission of liability would discourage parties
from discussing settlement or making settlement offers.” 2 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 408.02[1] (Joseph M.
McLaughlin ed., 2d ed.).
Id.
The issue of whether the Defendants violated Rule 408 by submitting the fee summary as
an exhibit, as well as the conjunctive issue of whether the document falls under the exemption to
Rule 408 (for example, since it is before the Court only for purposes of determining a reasonable
attorney fee award and not for purposes of challenging “the elements of the primary claim in
dispute”), are nuances that need not be addressed now. The Court did review the Defendants’
exhibit and did consider it, but only to the extent that it served to frame the Defendants’
argument (i.e., Stephens’ fee request should be reduced because it is not based on a fair or

7

accurate lodestar calculation). Also, the Defendants did not submit this document for purposes
clearly prohibited by the rule, such as to unfairly influence a jury for example, which Rule 408
would obviously forbid. In other words, the dangers Rule 408 is designed to prevent are not
present in the current dispute over fees and costs. For these reasons, the Court rejects Stephens’
request to strike or disregard the Defendants’ exhibits.
A. Hourly billing rate.
Stephens explains in his reply brief that during the course of this litigation his hourly
billing rate was increased from $250 per hour, the rate he was charging when this case began, to
$275 per hour, and he used the latter figure when he submitted his fee petition. Stephens argues
that “a large number of . . . Supreme Court and Seventh Circuit cases have permitted use of
current billing rates . . .” since doing so “allows for the avoidance of complex interest
calculations while still acknowledging the time value of money and the requisite reasonableness
standard.” Id., p. 2 (citing Skelton v. General Motors Corp., 860 F.2d 250, 255 n. 5 (7th Cir.
1988)) (“The courts in this circuit generally use current rates.”) (additional citations omitted).
Finally, Stephens requests that “in the event the Court disagrees with the foregoing and elects to
utilize the lower Lodestar rate, . . . Stephens respectfully requests interest be assessed and added
to any ultimate award of attorney’s fees and costs.” Id., p. 3.
Both Stephens and the Defendants cite and rely on the case of Denius v. Dunlap, 330 F.3d
919 (7th Cir. 2003) to support their positions with regard to the hourly rate issue. The Defendants
say the case holds that attorney fee awards should be based on the hourly rate the plaintiff’s
attorney charged at the time work was done, not at a higher hourly rate that the attorney might be
charging at the time a request for fees is made. Defendants’ Response, p. 3. Stephens says that
8

the Defendants’ interpretation of Denius “is simply false. While it is true the Denius court
ultimately upheld the district court’s refusal to accept the petitioner’s current rate in its Lodestar
calculation, it did so because of the contradicting and insufficient evidence offered in support.”
Plaintiff’s Reply, p. 2. Stephens is correct that the Seventh Circuit in Denius found that the
district court was within its discretion to award attorney’s fees at a lower hourly rate based on the
fact that the petitioner’s evidence in support of his requested higher rate contained contradictions.
But the Denius case does not, as the Defendants argue (or at least imply), prohibit an award
based on a higher or current hourly rate, so long as that rate is reasonable and supported. As
Stephens points out, in this case “there is no such contradiction or discrepancy nor do the
Defendants contend the sought rate ($275.00) is inherently unreasonable.” Id.
Stephens cites several cases to support his argument. In Skelton, for example, the Seventh
Circuit noted as follows:
The Third Circuit also allows an upward adjustment of the lodestar to compensate
attorneys for the delay in payment, when litigation extends over several years, and
for the quality of the representation. In re Fine Paper Antitrust Litigation, 751
F.2d 562, 583–84 (3d Cir. 1984). . . . This should be reflected in the lodestar in
the form of a high hourly rate. Delay in payment may be compensated in either of
two ways: (1) by using the attorneys’ current rates (as the district court did here);
or (2) by using historical rates plus a prime rate enhancement. The courts in this
circuit generally use current rates.
Skelton, 860 F.2d at 255 n. 5. This Court addressed this same issue in the case of Greenfield
Mills, Inc. v. Carter, and explained as follows:
There appear to be two methods of adjusting the lodestar to account for a delay in
payment. The district court may compensate for a delay in payment either by
applying an attorney’s current rates to all hours billed during the course of
litigation, or by using attorney’s historical rates and adding a prime rate
enhancement. See In re Washington Public Power Supply Sys. Secs. Litigation, 19
F.3d 1291, 1305 (9th Cir. 1994); Fischel v. Equitable Life Assur. Soc’y, 307 F.3d
9

997, 1010 (9th Cir. 2002). This court has utilized the first of the two methods
assuming a current hourly rate for [counsel] and adjusting upward to account for
the delay in payment. See [Trustees of Chicago Plastering Inst. Pension Trust v.]
Cork Plastering, Inc., 2008 WL 728897, at *2 (N.D. Ill. Mar. 18, 2008) (holding
that case law within the Seventh Circuit supports paying an attorneys’ fees award
at current billing rates).
Greenfield Mills, Inc., 569 F.Supp.2d 737, 758 (N.D. Ind. 2008). More recently, another district
court addressed this fee issue in Young v. Verizon’s Bell Atl. Cash Balance Plan, noting that the
use of “current hourly rates” in a lodestar calculation is an acceptable way to calculate an
attorney fee award in a case that has spanned several years. The court explained as follows:
Plaintiff also requests that the Court apply her lawyers’ current hourly rates to the
entire period back to 2006, as an adjustment for delay in payment. The Supreme
Court has held that “[a]n adjustment for delay in payment is . . . an appropriate
factor in the determination of what constitutes a reasonable attorney’s fee.”
Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).
Trial courts may effect this adjustment by calculating the lodestar amount with
“either current rates or past rates with interest.” Mathur v. Bd. of Trustees of S. Ill.
Univ., 317 F.3d 738, 744–45 (7th Cir. 2003). This Court will apply current hourly
rates to account for the delay in payment.
Young, 783 F.Supp.2d 1031, 1038 (N.D.Ill. 2011).
These cases make clear that Stephens is correct that a higher hourly rate is an acceptable
rate to use in a lodestar calculation in cases such as this. Accordingly, the Defendants’ objection
to Stephens’ counsel’s use of an hourly rate of $275.00 to calculate his fee award is overruled.
B. Number of hours billed.
That only resolves part of the matter, since the Defendants’ challenge to Stephens’ fee
petition questions not only his hourly rate, but also the number of hours Stephens’ counsel used
to calculate his fee request. This discrepancy is illustrated by the differences in the fee summary
Stephens gave to the Defendants (either during “informal discovery” or, as he says, as part of
settlement negotiations), and the fee petition he filed of record. A few examples will make this
10

issue clear.
In his fee petition Stephens’ counsel included two entries for June 1, 2012. Plaintiff’s
Exh. (DE 108-2), p. 1. The first entry is for 5.5 hours and includes the following notation: “cont
research on relevant Stark/FCA provisions; pull records to pin down ownership issue and
relationship between parties.” Id. The second entry on that same date is for 8.5 hours and
includes the following notation: “cont drafting Complaint and research on ACA/Stark issue;
explore Rule (9) pleading requirements; conf w/SAH.” Id. The fee summary Stephens gave to the
Defendants earlier in this case also includes two entries for June 1, 2012, which include the same
notations, but the hours assigned to those entries are 2.1 hours and 4.5 hours, which obviously is
7.4 hours less than what appears on Stephens’ fee petition. Defendants’ Exh. (DE 113-1), p. 1.
Also in his fee petition, Stephens’ counsel included four entries for work performed on May 15,
2015, totaling 3.8 hours. Plaintiff’s Exh., p. 4. In the Defendants’ exhibit, those same entries total
1.8 hours. Defendants’ Exh., p. 5. All told, the Defendants list 10 individual entries they claim
were inflated, for a total of 17.9 hours (which, at $275.00 per hour, totals $4,922.50, the amount
the Defendants want deducted from counsel’s fee request for pre-2016 fees).
Those examples make clear that Stephens’ counsel not only calculated his attorney’s fees
using a higher hourly rate than he was charging when this case began, which is perfectly
legitimate, but also apparently changed the number of hours he claims he worked on this case, at
least as to certain dates. The Defendants do not accuse Stephens’ counsel of anything untoward,
at least not expressly, arguing simply that Stephens’ fee petition “does not accurately reflect the
time actually worked and reported at the time the work was done.” Defendants’ Response, p. 2.
The Defendants then state that the discrepancies reveal that Stephens’ counsel “reviewed his
11

history of billings and made adjustments not based on actual time spent, but instead on some
unknown, unexplained and less reliable measure.” Id., p. 3. Stephens, however, insists that “if
any alteration did occur, it was done to promote a resolution to the issue of attorney fees and
overall settlement of the . . . case[.]” Plaintiff’s Reply, p. 3.
The Court did some arithmetic to determine where things really stand. Litigation is
expensive and so it is important for courts to help facilitate settlement, often by making sure the
parties in a suit aren’t jumping over dollars to argue about dimes. Unfortunately, to an extent,
that is what is happening here.
Stephens asks for fees of $73,078.50 ($93,078.50 minus the $20,000.00 already paid by
Defendant Dr. Arshad Malik). His formula for calculating that amount is 347.5 hours x $275/hr =
$95,562.50 (but since some of those hours were billed at a lower rate of $137.50 the total ended
up being $93,078.50). Stephens is also seeking supplemental fees of $6,215.00 (22.6 hours x
$275/hr) for the period from May 13, 2016, when he prepared his fee petition, to August 8, 2016,
the date he filed his supplemental petition. This totals $79,293.50, the total amount of attorney’s
fees Stephens’ counsel is seeking. Adding expenses of $2,497.00 equals a total sum of
$81,790.50, which is the total Stephens is seeking for fees, costs, and expenses.
Stephens’ fee petition indicates his counsel spent approximately 80 hours on this case
from January 13, 2016, up to and including May 13, 2016. Plaintiff’s Exh., pp. 9-14. He also
claims he worked on this case for a total of 347.5 hours from inception to May 13, 2016.
Subtracting 80 hours from 347.5 hours equals 267.5 hours, which is the number of hours
Stephens’ counsel says he spent on this case in total from May 10, 2012 (the date he began
billing) through December 2015. The Defendants argue that the fee summary they were given
12

totals only 232.2 hours of work for the same period. Defendants’ Exh., p. 11. The Defendants
argue that the fee award for the pre-2016 work should be $58,050.00 (232.2 hours x $250/hr).
But since Stephens and his counsel are entitled to use an hourly rate of $275 to calculate
attorney’s fees, they would receive $63,855.00 if the Defendants’ calculation of hours were
accepted (232.2 hours x $275/hr). Again, Stephens is asking for $73,078.50 for the same time
period, so now the parties are arguing over a difference of $9,223.50. That’s a fair chunk of
change, but whether it warrants months of litigation is questionable.
Finally, the Defendants contend that any award to Stephens for post-2015 fees, incurred
during the period from January through May 2016 should be reduced by $703.00, or 14% of the
$4,922.50 they argued should be deducted from the amount awarded for pre-2016 fees.
Defendants’ Response, p. 3. This is a curious argument, both mathematically and substantively.
First of all, $703.00 is not 14% of $4,922.50 (that would be $689.15). Also, the Defendants do
not explain how they arrived at the 14% figure, i.e., what its significance is. It would seem
logical that the 14% would refer to the number of “altered entries” the Defendants claim appear
in the fee petition, expressed as a percentage of the overall number of entries. In other words, if
Stephens’ attorney altered 14% of his billing entries for work done through the end of 2015, then
the same percentage could be assumed to be altered in his 2016 entries. But if this were the case
then it would seem that the Defendants should be asking for a 14% “across-the-board” reduction
in counsel’s 2016 fee request, rather than 14% of the reduction requested as to his pre-2016 fees.
The total reduction the Defendants seek is $13,563.00 (see Plaintiff’s Response, p. 4), which is
darn close to 14% of the total amount Stephens is requesting (14% of $93,078.50 is $13,030.99),
so perhaps that is where the 14% figure came from. But again, if that were the case, it would still
13

seem that the Defendants should be asking for a 14% across-the-board reduction of counsel’s
post-2015 fees, instead of 14% of $4,922.50. Be that as it may, an across-the-board reduction is
not what the Defendants are asking for; they ask only for a reduction of $703.00 as to counsel’s
requested fees for the period from January through May 13, 2016.
The Defendants maintain that this $703.00 reduction will account for discrepancies (or
altered entries, as they characterize them) that the Defendants assume must be present in
counsel’s 2016 billing entries since they were present in his pre-2016 entries. The Defendants
state that Stephens “did not supplement [his] informal discovery” with billing records reflecting
his hours worked on this case in 2016, but that nonetheless they “believe that the Court can
reasonably make a downward adjustment of . . . $703.00.” Defendants’ Response, p. 3. So, the
Defendants ask this Court to reduce Stephens’ fee request based on their assumption that
Stephens’ counsel inflated his 2016 fees by $703.00 even though they have no evidence
whatsoever to indicate that any of counsel’s 2016 billing entries were “altered.” They try to
blame Stephens by stating that he did not supplement his “informal discovery” and so they are
unable to point to specific altered entries, as they claimed to have done with the pre-2016 entries.
The Defendants are trying to convince this Court that “[i]t is reasonable to assume” that Stephens
altered his 2016 billing records and so the argument they employ as to the pre-2016 fees should
apply equally to all fees claimed anytime during 2016.
The Defendants’ objections to Stephens’ fee petition are based on conclusory allegations,
speculation, and assumptions. They fail to establish that the fees requested are unreasonable in
any way that would warrant reducing them. Instead, they resort to a sort of “this doesn’t look
right, so reduce it so it’s fair to us” argument, which is an insufficient basis for their objections.
14

What is really absurd is that the Defendants are asking the Court to reduce Stephen’s counsel’s
fee request for January through May of 2016 by $703.00, while his petition requests nearly
$22,000.00 for that time period (approximately 80 hours x $275/hr). See Plaintiff’s Exhibit (DE
108-2), pp. 9-14. This is what the Court means by jumping over dollars to argue about dimes.
To sum up, the Defendants argue that Stephens’ “fee request should be decreased by
$5,625.50 [$4,922.50 for pre-2016 and $703.00 for January through May of 2016] because the
time requested to be reimbursed is unreasonable and would compensate the relator for attorney
time not actually spent on this case.” Defendants’ Response, p. 2. This argument is based on the
discrepancies between the fee summary Stephens gave to the Defendants during settlement
negotiations and the fee petition he filed with the Court.
In support of his fee petition, Stephens’ counsel submitted his sworn declaration
itemizing his fees (and also noting his experience and expertise in civil rights cases). Declaration
of Travis W. Cohron (DE 108-1). He also submitted his detailed billing statement (DE 108-2).
He explains in his briefs that the discrepancies between the fee summary he gave to the
Defendants and the official, sworn fee petition he filed with the Court were the result of his
attempts to compromise his fee amount in an attempt to settle this case. And, as Stephens points
out, the claims in this case were settled–for the substantial sum of $2.5 million dollars. Plaintiff’s
Petition, p. 1. The Defendants’ argument that Stephen’s counsel’s fee award should be reduced is
based on a document they received earlier in this case (again, either during “informal discovery”
or during settlement negotiations) that reflects a lower number of total hours worked on this case
than does Stephen’s filed fee petition. This argument has a visceral appeal at first given the
discrepancies between the parties’ respective exhibits. But a closer look reveals that the
15

Defendants’ argument is based on assumptions and conclusions rather than actual evidence. They
argue that the fee summary they received should be used for purposes of calculating a fee award,
rather than the sworn, itemized billing records Stephens submitted with his petition. Stephens, on
the other hand, argues that his fee petition is accurate and the fee summary on which the
Defendants rely reflects a lower number of hours worked because it reflects Stephens’ attempts
to compromise a portion of his fee to facilitate the final settlement of this case. In other words,
the Defendants urge the Court to award a reduced amount for fees because Stephens’ fee petition
doesn’t pass a smell test. This argument would require the Court to conclude that Stephens’
counsel’s petition is inaccurate or inflated, but the Defendants’ “evidence” is insufficient to
support such a conclusion. See, e.g., Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 646 (7th
Cir. 2011) (“A district court ‘is entitled to determine the probative value of each [evidentiary]
submission.’ . . . 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.”).
The Defendants don’t challenge the reasonableness of counsel’s current hourly rate,
instead arguing that since he charged $250 per hour at the beginning of this litigation he should
be locked into that rate for the entire time. As discussed above, case law does not support this
argument. As to the reasonableness of the total number of hours Stephens’ counsel billed in this
case, the Defendants argue that since their fee summary exhibit differs a bit from Stephens’
sworn fee petition, the attorney fee award should be reduced, at least by a few thousand dollars,
to make it more fair. But a court “may not cut down the requested fees by an arbitrary amount
just because they seem excessive[,]” Strange v. Monogram Credit Card Bank of Georgia, 129
16

F.3d 943, 946 (7th Cir. 1997), which is what the Defendants’ argument boils down to.
The Court concludes that Stephens’ fee petition is reasonable in terms of hourly rate and
total hours expended, and that the Defendants’ arguments on both points fail to establish
otherwise. For all of the foregoing reasons, the Defendants objections to Stephens’ fee petition
are overruled.
II. Supplemental fee petition.
As stated at the outset, Stephens filed a supplemental fee petition to recover fees he says
were “incurred in preparing [filings] and litigating this matter since May 13, 2016.”
Supplemental Petition (DE 115), p. 2. By way of that petition he seeks an additional fee award of
$6,215.00 (22.6 hours x $275.00/hr). The Defendants did not challenge this supplemental
petition. The Court concludes that this supplemental fee request is reasonable both in terms of
hourly rate and number of hours expended. From May 13, 2016, until August 8, 2016 (the date
he filed his supplemental petition), Stephens litigated (and defeated) the Defendants’ motion to
strike his fee petition and then had to litigate the Defendants’ current arguments in opposition to
his petition. As Stephens notes correctly in his supplemental brief, “the law is clear that time
spen[t] preparing the fee petition [is] fully compensable.” Plaintiff’s Memorandum in Support of
Supplemental Petition (DE 116), p. 2 (citations omitted). See Beattie v. Line Mountain Sch. Dist.,
2014 WL 7183343, at *3 (M.D. Pa. Dec. 16, 2014) (“A party entitled to a fee award is also
entitled to reimbursement for the time spent preparing the fee petition, often referred to as ‘fees
on fees.’ Walker v. Gruver, 2013 WL 5947623, *17 (M.D.Pa. Nov.5, 2013) (citing Prandini v.
Nat'l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978)).” Accordingly, Stephens is entitled to recover
attorney’s fees in the amount of $6,215.00 for fees incurred in litigating his fee petition and
17

supplemental petition.
III. Costs and expenses.
Stephens seeks to recover the sum of $2,497.00 for costs and expenses. He itemizes those
expenses on the last page of his itemized fee statement. Plaintiff’s Exhibit (DE 108-2), p. 14. The
expenses include mostly mileage fees but also postage fees, copy fees, and filing fees. The
Defendants do not challenge Stephens’ request for expenses and the Court concludes that they
are compensable and reasonable. Accordingly, Stephens is entitled to recover expenses in the
amount of $2,497.00.
CONCLUSION
For the reasons set forth above, the Court GRANTS the Petition for Attorney Fees and
Expenses (DE 107), GRANTS the Supplemental Petition for an Award of Attorney’s Fees and
Costs (DE 115), and awards the total sum $81,790.50. The Clerk of the Court is instructed to
enter judgment in favor of Relator/Plaintiff Bradley Stephens, and against Defendants Afzal
Malik and Prime Health Care Services, Inc., jointly and severally, in the amount of $81,790.50,
plus interest, at the prevailing legal rate, from April 29, 2016, until judgment is paid in full.

Date: November 18, 2016.
________________________ ___/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana

18

19