Boogaerts et al v. Vascular Access Centers, L.P. et al
Filing
18
ORDER & REASONS that the Relators' 17 Motion for Attorney Fees is GRANTED. Signed by Judge Eldon E. Fallon on 2/12/19. (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA,
ex rel. ERICA BOOGAERTS, ET AL.
*
*
*
*
*
*
VERSUS
VASCULAR ACCESS CENTERS, L.P., et al.
CIVIL ACTION
No. 17-2786
SECTION “L” (4)
ORDER AND REASONS
Before the Court is Relators’ Motion for Attorneys’ Fees. R. Doc. 17. The motion is
unopposed. Having considered Relators’ motion, exhibits, and the applicable law, the Court now
issues this Order and Reasons.
I.
BACKGROUND
Erica Boogaerts and Chad Edwards (collectively, “Relators”) brought this qui tam action
against Vascular Access Centers, L.P. (“VAC”) and twenty-two affiliate entities, alleging that they
(1) billed Medicare for noncovered vascular surgery procedures; (2) engaged in a physicianinvestor referral scheme for designated health services in violation of the Anti-Kickback Statute
and the Stark Law; and (3) entered into medical directorship agreements that were illegally
designed to induce patient referrals in violation of the Anti-Kickback Statute.
The United States intervened in part in this action and in an earlier qui tam action with
similar allegations filed against many of the same defendants in the United States District Court
for the Southern District of New York. Both actions were settled through a Consent Judgment in
which VAC agreed to pay a minimum of $3.825 million and a maximum of $18,360.794 if certain
contingencies are triggered. Counsel for Relators now request an order granting $156,564.00 in
fees and costs. The motion is not opposed.
1
II.
LAW AND ANALYSIS
A successful relator in a qui tam action shall “receive an amount for reasonable expenses
which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs.
All such expenses, fees, and costs shall be awarded against the defendant.” 31 U.S.C. § 3730(d)(1).
Federal courts have followed the “lodestar” method typically followed under other feeshifting statutes in calculating attorneys’ fees in qui tam actions. United States ex rel. Burr v. Blue
Cross & Blue Shield of Florida, 882 F. Supp. 166, 169 (M.D. Fla. 1995) (collecting cases). The
lodestar is “the product of reasonable hours times a reasonable rate,” and the Supreme Court has
“established a ‘strong presumption’ that the lodestar represents the ‘reasonable’ fee.” City of
Burlington v. Dague, 505 U.S. 557, 559, 562 (1992).
Counsel for Relators attach time records showing that they have spent 525.45 hours
preparing for and litigating this case. R. Doc. 17-3. Given the complexity of this case and the issues
involved, the Court finds that the hours expended in this case are reasonable. Additionally, counsel
for Relators hired a third-party, Mr. Stephen J. Herman, to independently review counsel’s fee
request. R. Doc. 17-4. Mr. Herman provided a declaration that “the time entries reflected on the
Detail Fee Transaction List are consistent with the type of entries [he] would expect to see in this
type of case,” and that in his opinion, the rates claimed are reasonable. Id.
Relators request an hourly rate of $350 for Conrad Meyer and $300 for Preston Hayes and
Ryan Monsour, all equity partners at the Chehardy Sherman Williams law firm. An appropriate
hourly rate is determined according to the prevailing rates in the relevant legal market. McClain v.
Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). Mr. Meyer has practiced law for 18 years
and is in charge of his own healthcare practice group at the Chehardy Sherman Williams law firm.
In a case like this one, $350 is a reasonable hourly rate for an attorney of Mr. Meyer’s experience
2
and is within the range of prevailing market rates. Similarly, Mr. Hayes and Mr. Monsour have
practiced law for 14 and 11 years, respectively, and a rate of $300 per hour is reasonable for
attorneys with their experience in this market. See, e.g., Funez v. EBM, 2018 WL 5004806, at *4
(E.D. La. Oct. 16, 2018) (finding a partner rate of $350 per hour reasonable); Soonhee Kim v.
Ferdinand, 2018 WL 1635795, at *4 (E.D. La. Apr. 5, 2018) (finding $410 per hour “typical for
partners in this community”); Dadar v. T&C Marine, L.L.C., 2018 WL 3950396, at *6 (E.D. La.
May 3, 2018) (finding $350 hourly rate reasonable in this market); M C Bank & Tr. Co. v. Suard
Barge Serv., Inc, 2017 WL 6344021, at *2 (E.D. La. Dec. 12, 2017) (finding partner rates of $395
and $350 per hour reasonable). Furthermore, counsel for Relators voluntarily reduce the fee sought
to $156,564.00 in an exercise of sound billing judgment.
After determining the lodestar, the court may consider the applicability and weight of the
twelve Johnson factors: (1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. Johnson v. Ga. Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). “[O]f the Johnson factors, the court should give special
heed to the time and labor involved, the customary fee, the amount involved and the result
obtained, and the experience, reputation and ability of counsel.” Migis v. Pearle Vison, Inc., 135
F.3d 1041, 1047 (5th Cir. 1998) (citation omitted). After Johnson was decided, the “Supreme Court
has barred any use of the sixth factor,” whether the fee is fixed or contingent. Walker v. U.S. Dep’t
3
of Hous. & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citing City of Burlington, 505 U.S. at
567).
Application of the Johnson factors supports the reasonableness of the requested
$156,564.00. This case required a substantial time commitment and the Chehardy Sherman
Williams law firm expended over 500 hours preparing for and litigating the case. Qui tam cases
are often inherently complex and challenging, and this case was no exception – counsel for
Relators were required to evaluate highly detailed factual situations and a highly complex statutory
and regulatory regime. The resulting settlement was clearly a success for Relators – Defendants
will pay a minimum of $3,825,000.00 and a maximum of $18,360,794.00 if certain contingencies
are triggered, and Relators were awarded a share of the proceeds.
III.
CONCLUSION
Accordingly, IT IS ORDERED that Relators’ Motion for Attorneys’ Fees, R. Doc. 17, is
GRANTED.
New Orleans, Louisiana, this 12th day of February, 2019.
______________________________
ELDON E. FALLON
United States District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?