ADESANYA v. NOVARTIS PHARMACEUTICALS CORPORATION
OPINION. Signed by Judge Susan D. Wigenton on 6/5/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Case No. 2:13-cv-5564 (SDW) (SCM)
June 5, 2017
WIGENTON, District Judge.
Before this Court is Defendant Novartis Pharmaceuticals Corporation’s (“Novartis” or
“Defendant”) application for reasonable attorneys’ fees and costs and damages to be paid by pro
se Plaintiff Dr. Afoluso Adesanya (“Plaintiff”), and her husband, Adenekan Hezekiah Adesanya
(“Mr. Adesanya”) (collectively, the “Adesanyas”) which was filed on September 9, 2016. The
Adesanyas opposed Novartis’s application on October 12, 2016 and requested a stay pending
appeal of the Court’s August 15, 2016 Order granting Defendant’s motion for sanctions and
granting, in part, Defendant’s motion for summary judgment. After considering the parties’
written submissions, and for the reasons set forth below, this Court GRANTS Novartis’s
application subject to reductions, with Plaintiff to pay $457,040.22 and Mr. Adesanya to pay
$23,714.00; GRANTS damages totaling $1,393,918.23; and DISMISSES AS MOOT the
Adesanyas’ motion to stay.
BACKGROUND AND PROCEDURAL HISTORY
As the parties are intimately familiar with the facts surrounding this case, this Opinion will
address only those relevant to the present motion. This Court incorporates the August 15, 2016
Opinion as the relevant factual and procedural background. (Dkt. No. 251). At issue is Novartis’s
fee application which requests an award of attorneys’ fees and costs amounting to $1,927,801.09
for representation by McCusker, Anselmi, Rosen & Carvelli, P.C. (hereinafter “the MARC Firm”)
and $4,002,190.38 in damages. (Dkt. Nos. 253, 270). After finding that Plaintiff willfully
deceived Novartis and this Court in bad faith and manipulated the judicial process, this Court
dismissed the Complaint, granted Novartis’s motion for summary judgment as to Counts One,
Three, Four, Five and Eight of its Counterclaims, and awarded sanctions against the Adesanyas.
(Dkt. No. 252). The Adesanyas immediately filed an appeal with the Third Circuit which was
denied because this Court had “not yet calculated the amount of damages” nor “the amount of
monetary sanctions.” (Dkt. Nos. 255, 264). In sum, the Order was not “final and appealable.”
(Dkt. No. 264).
In connection to Novartis’s success, this Court provided the following Order:
[Novartis] shall submit a certification of attorneys’ fees and costs as it relates to
the dismissal of Plaintiff’s claims; . . . and a certification of attorneys’ fees and
costs incurred as to [Novartis’s] motion for sanctions against Mr. Adesanya.
Plaintiff and Mr. Adesanya shall submit any opposition within fifteen (15) days
of the filing of [Novartis’s] certification and [Novartis] shall have seven (7) days
to reply. (Dkt. No. 252).
Novartis initially sought “$1,833,959.02 in attorneys’ fees and costs” against Plaintiff and
$138,234.79 against Mr. Adesanya. (Dkt. No. 253, Ex. A and C). Upon referral of this matter to
Magistrate Judge Mannion for review, Novartis was directed to file a supplemental affidavit or
declaration including “detailed timesheets for each attorney with descriptions of work performed
and hours billed on each date for the fees and costs respectively sought against Plaintiff Adesanya
and her husband Mr. Adesanya.” (Dkt. No. 265). This Court also ordered Novartis to indicate the
amount of billed and unbilled fees and costs. (Id.).
On February 28, 2017, Novartis submitted the Certification of John McCusker (hereinafter
“McCusker Certification”) which “supersedes and updates the amount of attorney’s fees and costs
[initially] requested.” (Dkt. No. 270 ¶ 2). At present, Novartis seeks $1,789,566.30 ($1,569,416.83
in billed fees plus an additional $220,149.47 in unbilled fees) to be paid by Plaintiff, and the same
$138,234.79 to be paid by Mr. Adesanya. (Dkt. No. 270 ¶ 8).
For damages incurred in connection to the dismissal of Plaintiff’s claims Novartis requests
$4,002,190.38. (Dkt. No. 253-4 ¶ 3). Specifically, Novartis seeks $1,670,323.80 on Count One
(employment application and resume fraud); $25,818.71 on Count Three (breach of Relocation
Agreement); $210,403 for Count Four (breach of Annual Incentive Plan or “AIP”); $1,670,323.80
on Count Five (breach of the duty of good faith and fair dealing); and $497,907.56 as to Count
Eight (breach of duty of loyalty and Defendant’s Conflict of Interest Policy). (Dkt. No. 253 Ex. B
DISCUSSION & ANALYSIS
Novartis seeks $1,927,801.09 in attorneys’ fees and costs ($1,789,566.30 to be paid by
Plaintiff and $138,234.79 to be paid by Mr. Adesanya), and a damage award of $4,002,190.38. 1
This Opinion will first assess the reasonableness of Novartis’s fee application, then determine the
damage award, and lastly address the Adesanyas’ motion to stay. Based on the below analysis
which is summarized in Section III, this Court concludes that $480,754 in fees and costs shall be
This Court notes that although Novartis seeks reimbursement of fees and costs, the application
itself does not provide for fees separate from costs. Consistent with the evidence provided, the
total award is provided as a single figure representing both fees and costs to be paid by Plaintiff
and Mr. Adesanya.
paid by the Adesanyas; that $1,393,918 in damages shall be awarded; and that the motion to stay
is dismissed as moot.
A. Novartis’s Fee Application
The law requires attorneys’ fees or costs to be reasonable. See FED. R. CIV. P. 37. The
reasonableness of fees is determined by examining the attorney’s reasonable hourly rate and the
number of hours expended on the litigation. See Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426
F.3d 694, 703 n.5 (3d Cir. 2005) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). To determine
the amount of fees, the Court must calculate the “lodestar” amount by multiplying the attorney’s
hourly rate by the number of hours spent performing the work. Id. As the moving party, Novartis
bears the burden of proving its requested hourly rates and the hours it claims are reasonable. Id.
(citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d. Cir. 1990)). If the burden is sustained, the
Adesanyas must rebut the reasonableness of the proposed fees with competent evidence. See id.
If “the adverse party raises specific objections to the fee request, the district court has a great deal
of discretion to adjust the award in light of those objections.” Blakey v. Cont’l Airlines, 2 F. Supp.
2d 598, 602 (D.N.J. 1998) (internal citations omitted). “Determining an appropriate award is not
an exact science” and “[t]he facts of each individual case drive the amount of any award.” In re
Computron Software, Inc., 6 F. Supp. 2d 313, 321 (D.N.J. 1998).
Novartis bears the burden of establishing its requested hourly rates are reasonable. In
satisfying this initial burden, attorneys may not rest on their own affidavits to support a party’s
claim of reasonable fees. Rather, they must submit evidence that the requested rates fall within
the norm of attorneys in the relevant community. See Rode, 892 F.2d at 1183. A reasonable hourly
rate is determined in reference to the prevailing market rates in the relevant community. See
Interfaith, 426 F.3d at 708 (internal citation omitted). The “prevailing market rates in the relevant
community” are determined by “assess[ing] the experience and skill of the prevailing party’s
attorneys and compar[ing] their rates to the rates prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and reputation” at the time the fee petition
was filed. L.J. v. Audubon Board of Educ., 373 F. App’x 294, 296 (3d Cir. 2010) (internal citation
omitted). Accordingly, this Court only considers whether the present rates set forth in the
McCusker Certification are reasonable. “Once a district court finds that the prevailing party has
failed to sustain its burden with respect to a reasonable market rate, it must use its discretion to
determine the market rate.” Id. at 297 (internal citation omitted). If the initial burden is met, the
opposing party can contest the rate with record evidence. Id. at 296.
The McCusker Certification outlines the fees sought for partners, John B. McCusker, Esq.
(“McCusker”) at $395/hour and Patricia Prezioso, Esq. (“Prezioso”) at $390/hour; of counsel,
Suzanne M. Murphy, Esq. (“Murphy”) at $275/hour; and associates, Patrice LeTourneau, Esq.
(“LeTourneau”) at $250/hour, and Bianca M. Olivadoti, Esq. (“Olivadoti”) at $185/hour. (Dkt.
No. 270 ¶¶ 5-7). In opposition, the Adesanyas argue that the hourly rates set forth in the fee
application are inconsistent because “no reasons were given” for the “substantial increase” in legal
fees. (Dkt. No. 274-1 at 4). They also contend that while the supporting certification pertains to
attorneys McCusker, Prezioso, Murphy, LeTourneau and Olivadoti, the accompanying time
records show that “up to [seven] attorneys . . . plus external counsel” billed for this matter. (Id. at
This Court finds that although hourly rates increased over the course of this litigation, the
increases were not substantial. Furthermore, this Court only considers whether the present rates
set forth in the McCusker Certification are reasonable because attorneys’ prevailing market rates
are assessed at the time the fee petition is filed. See L.J., 373 F. App’x at 296 (emphasis added).
Novartis only seeks to recover fees for McCusker, Prezioso, Murphy, LeTourneau and Olivadoti.
The additional attorneys who billed for this matter will not be considered.
Here, the McCusker Certification does not detail the prevailing rates for New Jersey
attorneys comparable to those in this case. However, this Court exercises its discretion to fix a
reasonable hourly rate by looking to recent cases in this District that have determined prevailing
market rates. This Court’s research reveals that Novartis’s requested rates are consistent with
comparable New Jersey attorneys of similar experience and skill, and fall below prevailing rates.
See Boles v. Wal-Mart Stores, Inc., No. 12-1762, 2015 U.S. Dist. LEXIS 102920, at *15-16 (D.N.J.
Aug. 5, 2015) (approving rates of $400/hour for an employment and labor law attorney with over
sixteen years’ of experience and $250/hour for associate attorneys as “consistent with rates . . .
that other courts in this District have approved”) aff’d, 650 F. App’x 125 (3d Cir. 2016); see also
Chaaban v. Criscito, No. 08-1567, 2013 U.S. Dist. LEXIS 58051, at *34-35 (D.N.J. Apr. 3, 2013)
(finding that the requested hourly billing rates “ranging from $350-$500 for partners; $225-$300
for associates; and $105-$130 for paralegals are well within, if not below, the prevailing rates of
The McCusker Certification sufficiently outlines that McCusker is the Director/Partner of
the MARC Firm who specializes in employment litigation and has practiced law since 1982; that
Prezioso, also an experienced attorney since 1988, has focused on employment litigation and has
been a partner at the firm for nine years; and that Murphy, who is of counsel, and LeTourneau and
Olivadoti, both associates, assisted with this matter. (Dkt. No. 270 ¶¶ 5-7). Since no contesting
evidence is provided by the Adesanyas, this Court approves the requested hourly rates ranging
from $390-395 for partners and $185-$275 for of counsel and associates as they are comparable
to the prevailing rates of New Jersey attorneys with similar experience and skill.
Having found the requested hourly rates reasonable, this Court must next consider whether
the number of hours spent on the litigation are reasonable. “Hours are not reasonably expended if
they are excessive, redundant, or otherwise unnecessary” and should be excluded. Rode, 892 F.2d
at 1183 (internal citations omitted). In opposition, the Adesanyas contend that the fee application
is “riddled with misrepresentations, false entr[ies], illegal acts, redactions, duplications, and nonattorney work.” (Dkt. No. 274-1 at 3). This contention is without merit, as the documents
submitted by the MARC Firm support the instant fee application. This Opinion shall address the
reasonableness of the time claimed for the services performed in relation to the dismissal of
Plaintiff’s claims and the motion for sanctions against Mr. Adesanya. See Maldonado v. Houstoun,
256 F.3d 181, 185 (3d Cir. 2001).
In making this determination, the Court is mindful that fees and costs incurred during
litigation are not usually recoverable. See Christiansburg Garment Co. v. Equal Employment
Opportunity Comm'n, 434 U.S. 412, 415 (1978) (“It is the general rule in the United States that in
the absence of legislation providing otherwise, litigants must pay their own attorney's fees.”)
(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975)). One exception to
this general rule is when “a party has acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991) (internal marks omitted). “In this
regard, if a court finds that fraud has been practiced upon it, or that the very temple of justice has
been defiled, it may assess attorney's fees against the responsible party.” Id. at 46 (internal marks
While discovery was at all times “contentious and marked by delay,” in large part, this
Court will not award fees and costs that were incurred while Plaintiff was represented by counsel.
Plaintiff’s attorney, Ari Karpf (“Karpf”), relied upon Plaintiff’s misrepresentations in prosecuting
her case. This continued until May 2015, at which time he received documents that caused him to
doubt Plaintiff’s truthfulness. 2 (Dkt. Nos. 251 at 17, 232 at 25-26). Beyond that time, Plaintiff’s
claims had little chance of success yet she continued to thwart Novartis’s efforts, “forc[ing]
Defendants to issue and defend third-party subpoenas and incur additional effort and expense to
obtain information that Plaintiff possessed and should have provided.” (Dkt. No. 251 at 13-14).
For these reasons, the fees and costs incurred prior to May 2015 are recoverable only in part
because ultimately, Plaintiff’s dogged pursuit of baseless claims and fraud led to the dismissal of
the Complaint.3 With respect to Mr. Adesanya, the fees and costs sought from him prior to his
counsel’s withdrawal on September 29, 2015 are included in Plaintiff’s fees and costs and cannot
also be paid by him. (Dkt. No. 103). This Opinion focuses on the fees and costs incurred in
relation to Mr. Adesanya’s false testimony and his failure to comply with Defendant’s document
demands. It is within this backdrop that this Court addresses the Adesanyas’ objections that
counsel provided “vague time entries” and that the MARC Firm performed duplicative work in
light of “the simplicity of legal questions involved.” (Dkt. No. 274-1 at 5-7, 10-12).
As explained more fully below, Novartis’s fee application presents some concerns due to
the generic manner in which tasks were billed by multiple attorneys and the lack of detail
pertaining to the fees and costs sought from Plaintiff versus the fees and costs sought from Mr.
Karpf moved to withdraw on July 20, 2015. From August 28, 2015 forward, Plaintiff
proceeded pro se in this matter. (Dkt. No. 251 at 7).
This general proposition does not apply to Novartis’s fees and costs incurred as a result of the
Adesanyas’ obfuscation of discovery. As outlined in Section A(v), a portion of the fees and
costs leading up to May 2015 are subject to reimbursement.
Adesanya. See Blakey, 2 F. Supp. 2d at 604 (noting that “[t]he presentation of billable hours should
be in sufficient detail to permit the Court to determine how the hours were divided among various
attorneys”); see also Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 181 (3d Cir. 2001) (internal
citation omitted). This Court therefore considers the initial September 2016 fee certification in
addition to the superseding McCusker Certification which “updates the amount of attorney’s fees
and costs [initially] requested.” (Dkt. No. 270 ¶ 2).
Notwithstanding, performing an entry-by-entry analysis remains unmanageable. Cf. Evans
v. Port Authority of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001) (stating that fee requests are
subject to a “thorough and searching analysis” requiring the Court to “go line, by line, by line”
through the billing records). Instead, this Court reviewed the billing invoices containing monthly
cumulative totals, considered whether tasks were necessary in relation to the Adesanyas’
objections, and determined the number of hours reasonably needed to perform the work. See
Maldonado, 256 F.3d at 186-88. Presently, the MARC Firm billed approximately 7,702 hours,
but as shown in Section III of this Opinion, 3,594 hours were reasonably expended to obtain
dismissal of Plaintiff’s claims and an award of sanctions against Mr. Adesanya.
Vague Time Entries
The Adesanyas challenge the hours expended based upon “extraordinarily” redacted and
“vague time entries.” (Dkt. No. 274-1 at 5-7). “The Court may . . . deduct hours that are
inadequately documented.” Blakey, 2 F. Supp. 2d at 604 (internal citation omitted). A fee petition
must “be specific enough to allow the district court to determine if the hours claimed are
unreasonable for the work performed.” Loughner, 260 F.3d at 181 (internal citation omitted).
While certain redactions are necessary to protect privileged or confidential information, a
portion of Novartis’s billing records are heavily redacted or do not contain enough specificity to
allow this Court to assess the reasonableness of the hours claimed for the work performed. For
example, numerous entries bill for internal meetings, team strategy sessions, and “legal research”
but only provide general descriptions. As a result, this Court reviewed each invoice from May
2015 through November 2016 and totaled the redacted or otherwise vague entries. (Dkt. Nos. 27022 Ex. V through 270-31 Ex. EE). The table below demonstrates that 223.4 hours in vague billing
entries will be deducted from Novartis’s recovery, amounting to a total deduction of $53,818
($26,909 to be deducted from the fees and costs owed by Plaintiff; $26,909 to be deducted from
fees and costs owed by Mr. Adesanya).
Hours Reasonably Spent
January – August 2016
August – November 2016
Contrary to the Adesanyas’ general arguments that Novartis blocked discovery, this Court
previously found that both Plaintiff and Mr. Adesanya interfered with the discovery process and
provided false and misleading testimony. (Dkt. Nos. 274-1 at 12, 16, 251 at 13-16). Notably, the
Adesanyas’ misconduct forced Defendants to issue and defend third-party subpoenas and incur
additional effort and expense to obtain information that Plaintiff possessed and should have
provided. Although fees and costs incurred prior to May 2015 discovery are generally not
recoverable because they were incurred in the normal course of litigation, this Court finds that the
additional fees and costs sustained and caused by the Adesanyas’ obfuscation of discovery are
subject to reimbursement.
Discovery began in this case in September 2014. Upon review of the billing records,
Novartis expended approximately 2,590 hours and incurred $768,496 from October 1, 2014 to
May 30, 2015. (Dkt. Nos. 270-15 Ex. O through 270-22 Ex. V). The majority of Novartis’s
expenses for this time period were incurred in the normal course of these particularly litigious
proceedings. However, it is important to note that during this time, Plaintiff’s refusal to produce
documents forced Novartis to spend additional resources in connection with the following: issuing
a subpoena to Mr. Adesanya to obtain documents concerning Plaintiff’s joint ownership of Global
Drug Safety & Surveillance, Inc. a/k/a LaRon Pharma, Inc. (“LaRon”) and membership in Ron
Nuga, LLC (“Ron Nuga”); filing applications with the court in attempts to obtain Plaintiff’s
compliance with discovery; addressing challenges to, and issuing, third-party subpoenas to Klein
Hersh, the employment agency used by Plaintiff during her employment, Ron Nuga’s insurance
broker, the Adesanyas’ tax preparer, Ronald Kamens (“Kamens”), and Wells Fargo for financial
documents that should have been produced; and reviewing tax documents which had previously
been denied under oath. (Dkt. No. 253 Ex. A ¶¶ 9-11).
Based upon a line-by-line analysis, Novartis expended 143.2 additional hours as a result of
Plaintiff’s discovery misconduct. Plaintiff is therefore responsible for $40,098 in fees and costs
she caused Novartis to expend to obtain information she possessed and should have provided.
Novartis also incurred additional expenses due to Mr. Adesanya’s interference with
discovery. Mr. Adesanya is responsible for a portion of the $40,237 in fees and costs incurred
from September 1, 2015 to October 31, 2015 which are presently sought by Novartis. (Dkt. No.
253 Ex. C ¶ 8). During this time period, Mr. Adesanya falsely certified that he and his wife did
not possess any relevant documents regarding LaRon or Ron Nuga even though thousands were
located in their home. (Dkt. No. 209-4 ¶¶ 109, 112, 132-133). This Court also ordered Mr.
Adesanya to produce the subpoenaed documents on October 6, 2015 and October 30, 2015 yet he
did not comply. (Dkt. Nos. 109, 115). As a result of his actions, Novartis was forced to issue a
supplemental subpoena to Wells Fargo to obtain Ron Nuga’s financial documents that were in the
Adesanyas’ possession; engage a tax expert to assist in analyzing Wells Fargo’s documents; and
submit requests to the court to hold Mr. Adesanya in contempt and/or impose sanctions against
him. (Dkt. No. 253 Ex. C ¶ 8). For this work, Novartis reasonably spent 114.1 hours and
$35,599.75 is reimbursable. (Dkt. Nos. 270-26 Ex. Z, 270-29, Ex. AA). Accounting for these
adjustments, the $40,237 in fees and costs sought from Mr. Adesanya will be reduced by
$4,637.25, resulting in a net amount due by Mr. Adesanya of $35,599.75. 4
Excessive, Duplicative, or Unnecessary Expenditures
Accordingly, this Court will deduct $35,599.75 from the total amount of fees and costs to
be paid by Plaintiff so as to not duplicate Novartis’s recovery. (See infra p. 26.)
The Adesanyas maintain that in light of the “simplicity of the legal questions involved”
and Plaintiff’s ultimate status as a pro se litigant, Novartis’s “massive defense team” of four to six
attorneys was excessive and resulted in duplicative efforts throughout this litigation. (Dkt. No.
274-1 at 10-12). A reduction for duplicative work “is warranted only if the attorneys are
unreasonably doing the same work.” Rode, 892 F.2d at 1187 (emphasis added) (internal citation
omitted). The Third Circuit has held that deductions for overstaffing are warranted and “should
not be included in a request for counsel fees from an adversary” because “in many cases, the
attendance of additional counsel representing the same interests as the lawyers actually conducting
the deposition is wasteful.” Planned Parenthood of Central N.J. v. Attorney Gen. of N.J., 297 F.3d
253, 272 (3d Cir. 2002) (quoting Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 943
(3d Cir. 1995)).
While a private client may wish to pay for multiple attorneys to merely attend hearings on
that client’s behalf, this practice is not necessarily reasonable when they are to be paid by the other
party to the proceedings. Halderman, 49 F.3d at 943. However, where the case involves complex
legal questions and the declarations submitted in support of the fee application demonstrate various
attorneys were assigned specific tasks, claims of overstaffing have been rejected. See Planned
Parenthood of Central N.J., 297 F.3d at 272. “Even if the attorneys had worked on similar tasks,
this would not be per se duplicative” because “careful preparation often requires collaboration and
rehearsal.” Id. (internal citations omitted).
1. Court Conferences
While the Adesanyas do not provide specific examples to support their position that four
to six attorneys litigating against Plaintiff was excessive, this Court’s review of the billing records
reveals that reductions to the lodestar are warranted for overstaffing court appearances. In total,
three to four attorneys billed for a total of 159 hours or $45,120 in connection to five court
appearances. In May, July, and August of 2015, Novartis expended over 86 hours and billed for
$25,066 with respect to two court appearances. (Dkt. Nos. 270-22 Ex. V, 270-24 Ex. X, 270-25
Ex. Y). While “careful preparation often requires collaboration and rehearsal,” this Court finds
that the attendance of two associates (LeTourneau and Olivadoti) was unnecessary where two
partners (McCusker and Prezioso) were present. For example:
For a May 5, 2015 status conference, McCusker, LeTourneau, Prezioso, and
Olivadoti billed $8,956 for 28.8 hours of work. All attorneys except Olivadoti
attended the conference. (Dkt. No. 270-22 Ex. V).
The same four attorneys spent 17.3 hours or $4,466 preparing for a July 2015
conference which was ultimately adjourned to August 28, 2015. (Dkt. No. 77).
Counsel spent an additional 40 hours or $11,644 preparing for the new conference
date. (Dkt. No. 270-25 Ex. Y). Again, all attorneys except Olivadoti appeared in
court. For this work, counsel spent over 57 hours and billed $16,110. (Id.).
Novartis may have agreed to pay for multiple attorneys to attend hearings on their behalf, but it is
not necessarily reasonable for the Adesanyas to bear this extra expense. See Halderman, 49 F.3d
at 943. For these reasons, this Court deducts additional counsels’ (LeTourneau and Olivadoti)
attendance as well as their time spent preparing and strategizing for the outlined conferences as
duplicative of McCusker and Prezioso’s work. After adjusting for additional counsels’ attendance
and preparation, this Court concludes that 31 out of 86 hours were reasonably expended in
connection with the May 5, 2015 and August 28, 2015 conferences (15 and 16 hours, respectively).
Plaintiff’s fees and costs shall be reduced by $12,835, with $3,072 appropriated from the May 5,
2015 conference and $9,763 from the August 28, 2015 conference.
Similarly, for conferences held after Plaintiff entered her pro se appearance, this Court
finds that only one partner’s attendance (either McCusker or Prezioso) and the work of one
additional attorney to prepare for the below conferences was reasonably necessary. Following
Karpf’s withdrawal, this Court conservatively estimates that Novartis spent over 73 hours
preparing for, and attending three court conferences which cost $20,053.
The Court held oral argument on Novartis’s motion to compel discovery on October
2, 2015. Three attorneys (McCusker, Prezioso, Olivadoti) spent 16 hours preparing,
strategizing, and attending the conference which lasted 90 minutes. (Dkt. No. 27027 Ex. AA). This cost approximately $5,218. Together, McCusker and Prezioso
billed for 6.5 hours to prepare for, and attend, the conference.
McCusker, Prezioso, and Olivadoti spent over 26 hours at $6,898 preparing for a
November 6, 2015 status conference that lasted 120 minutes. Both partners
(McCusker and Prezioso) attended and billed for a total of 8.2 hours. (Dkt. No.
270-28 Ex. BB).
In January 2016, three attorneys (Prezioso, Olivadoti, Murphy) spent 31 hours
totaling $7,937 in preparation for a court conference which was attended by
Prezioso and lasted for 95 minutes. (Dkt. No. 199). Together Prezioso and Murphy
billed for 14.5 hours. (Dkt. Nos. 270-29 Ex. CC, 270-30 Ex. DD).
With regard to the October 2015, November 2015, and January 2016 conferences, Novartis
reasonably and respectively spent: 6.5 hours ($2,561) by McCusker and Prezioso; 8.2 hours
($4,204) by McCusker and Prezioso; and 14.5 hours ($4,884) by Prezioso and Murphy. In total,
Novartis reasonably spent 29 hours such that $11,650 is reimbursable. Accordingly, a total
deduction of $8,403 shall be evenly split from the fees and costs owed by Plaintiff and Mr.
The Adesanyas argue that counsel “wasted” 7.2 hours preparing for the deposition of Dr.
Alessandro Riva (“Dr. Riva”), Novartis’s Global Head of Oncology, and another 11.2 hours
attending his deposition which lasted just 40 minutes. (Dkt. Nos. 274-1 at 14-15). This Court
disagrees. A review of the billing records reveals that together, McCusker and LeTourneau spent
under 9 hours preparing for, and conducting, Dr. Riva’s deposition, the purpose of which was to
develop the facts of this case. (Dkt. No. 270-15 Ex. O) (emphasis added). This time was reasonably
spent and a deduction is therefore inappropriate.
Upon further review of the billing records; however, a reduction in time is warranted for
overstaffing three or more attorneys at the depositions of Valerie Acito (“Acito”), Novartis’s
Global Head of Human Resources, Annick Krebs (“Krebs”), Plaintiff’s Manager, and Kamens, the
Adesanyas’ Tax Preparer. Three to four attorneys spent over 153 hours preparing, strategizing,
and attending the depositions of these individuals and billed $44,332.
From May to June 2015, up to four attorneys (McCusker, Prezioso, LeTourneau,
Olivadoti) interviewed Acito, prepared for, conducted, and attended Acito’s
deposition. (Dkt. Nos. 270-22 Ex. V, 270-23 Ex. W). For this work, counsel spent
over 72 hours or $20,841.
In May 2015, four attorneys (McCusker, Prezioso, LeTourneau, Olivadoti) spent
over 49 hours or $13,513 with respect to the deposition of Krebs. (Dkt. No. 270-22
For the Kamens deposition in October 2015, McCusker, Prezioso, and Olivadoti
expended 32 hours and billed for $9,978. (Dkt. No. 270-27 Ex. AA).
Based on the number of sophisticated attorneys and the nature of the legal issues involved, only
two attorneys were reasonably needed to prepare for, conduct, and provide assistance at the
depositions of Acito, Krebs, and Kamens. Beyond the two attorneys who deposed the witnesses
and thus performed the majority of the work, the billing records demonstrate that the remaining
one or two attorneys duplicated preparation and strategizing efforts. For these reasons, this Court
finds that 119 hours or $36,186 was reasonably spent in connection with the depositions of: (1)
Acito, 64.9 hours ($19,469) by McCusker and LeTourneau; (2) Krebs, 31.8 hours ($10,531) by
McCusker and LeTourneau; and (3) Kamens, 22.8 hours ($6,186) by Prezioso and Olivadoti.
Subject to these adjustments, Plaintiff’s fees and costs shall be reduced by $4,354 in connection to
the Acito and Krebs depositions. Mr. Adesanya’s fees and costs shall be reduced by $3,792 for
the Kamens deposition.
Invoices Reflecting Flat Fee Payments
The Adesanyas argue that billing invoices containing flat fee payments for the periods of
December 17, 2015 to January 7, 2016 and January 8, 2016 to August 16, 2016 conflict with the
actual amount Novartis billed. (Dkt. No. 274-2 Ex. A at 13-14). They also argue that any time
billed after March 2016 should be ignored because discovery was completed and motions for
summary judgment were submitted. (Id.). While the Adesanyas’ contentions are without merit,
Defendant cannot recover for any unbilled costs. See Maldonado, 256 F.3d at 184 (“[h]ours that
would not generally be billed to one’s own client are not properly billed to an adversary”).
Novartis was not billed for $220,149.47 in fees and costs. “Due to the extraordinarily
litigious nature of this case,” the MARC Firm “absorbed $54,569.09 in attorneys’ fees and costs
incurred from December 1, 2015, through December 16, 2015.” (Dkt. No. 270 ¶ 4). Novartis and
the MARC Firm also entered into two flat fee arrangements for legal services rendered between
December 17, 2015 and January 7, 2016 ($45,000 flat fee) and January 8, 2016 to August 16, 2016
($50,000 flat fee). (Dkt. No. 270 ¶ 4). The “true cost of the services provided” during these two
time periods amounted to $35,989.82 and $224,590.56, respectively, totaling $220,149.47 in
unbilled services (cost of services less the flat fee payments). (Dkt. No. 270 ¶ 4). Since Novartis
and the MARC Firm chose to enter into two flat fee agreements rather than bill and pay for the
true costs of services, Novartis cannot now recover the $220,149.47 unbilled costs from Plaintiff.
On balance, this Court finds that $480,754, with $457,040 apportioned to Plaintiff and
$23,714 apportioned to Mr. Adesanya, reasonably compensates Novartis for the fees and costs
incurred regarding the dismissal of Plaintiff’s claims and sanctions against Mr. Adesanya. While
this Court is cognizant of the extensive efforts Novartis expended in litigating against Plaintiff’s
frivolous claims and enduring Mr. Adesanya’s impeding conduct, $480,754 is the product of a
reasoned assessment of the fees and costs incurred based on the evidence and certifications
submitted for review. 5 In addition to the above analysis, an outline of the fees and costs to be paid
by the Adesanyas is set forth in Section III of this Opinion.
Novartis seeks $4,002,190.38 in damages resulting from Plaintiff’s employment
application and resume fraud (Count One); breach of Relocation Agreement (Count Three); breach
of AIP (Count Four); breach of the duty of good faith and fair dealing (Count Five); and breach of
the duty of loyalty and Novartis’s Conflict of Interest Policy (Count Eight). (Dkt. No. 253, Ex. B
¶ 3). With respect to Counts One and Five, Novartis requests $1,140,178 in cash compensation
and $530,144 in company benefits. (Id. ¶¶ 10, 13). Based on the evidence submitted, this Court
cannot clearly deduce what Novartis considered in arriving at these figures. For example, while it
is evident that insurance and retirement benefits constitute “company benefits,” other aspects of
Plaintiff’s total compensation package are not as obvious. The accompanying certification does
not lessen the ambiguity as it only states the total amounts sought. To the best of this Court’s
ability, Plaintiff’s payroll earnings, W-2s, and total compensation package were considered in
determining the damages award. For the reasons that follow, this Court awards $1,393,918.23 for
Novartis’s successful Counterclaims.
Count I – Fraud (Employment Application and Resume)
Novartis seeks a full return of $1,670,323.80 ($1,140,178.85 in cash compensation plus
$530,144.95 in company benefits) paid over the course of Plaintiff’s tenure as a result of her fraud.
(Id. ¶ 10). “New Jersey . . . recognizes benefit-of-the-bargain damages in fraud cases.” McConkey
v. Aon Corp., 804 A.2d 572, 588 (N.J. 2002). “In a case involving the fraudulent inducement of
Notably, this Court could not distinguish the work each attorney performed in relation to the
fees and costs sought from Plaintiff as opposed to the fees and costs sought from Mr. Adesanya.
an employment contract, under “the benefit-of-the-bargain” damage rule “the defrauded
[employer] is entitled to such damages as will most nearly approximate the benefits he would have
realized under the contract had the representations which induced him to contract been true.” Id.
at 587 (internal citations omitted); see also Shulton, Inc. v. Optel Corp., 698 F. Supp. 61, 64 (D.N.J.
1988) (explaining that the “benefit of the bargain formula” is “the difference between the fraud
induced price and the price plaintiff would have received absent the fraud”).
Here, while Novartis is entitled to damages it suffered for hiring and paying Plaintiff more
than her experience warranted, Plaintiff is also entitled to the reasonable value of her services. See
Restatement (Second) of Agency, § 469, comment c (“[a]n agent who obtains h[er] employment
by fraud, as by misrepresenting that [s]he has had experience, is not entitled to compensation at
the contract rate, although [s]he may be entitled to the reasonable value of h[er] services”). In this
case, Plaintiff conferred a benefit to Novartis as a “cross-disciplinary team” member who “worked
on different aspects of drugs in various stages of development,” and she is entitled to the reasonable
value of the services she rendered. (Dkt. No. 209-4 ¶ 17); see Weichert Co. Realtors v. Ryan, 608
A.2d 280, 285 (N.J. 1992) (explaining that a party who confers a benefit with a reasonable
expectation of payment is entitled to recoup the reasonable value of services rendered). While it
is nearly impossible to delineate between Plaintiff’s reasonable compensation and the money
Novartis lost by relying on her misrepresentations, the following analysis most nearly
approximates the benefits Novartis would have realized had the representations which induced it
to hire Plaintiff been true. See McConkey, 804 A.2d at 587 (internal citations omitted).
Under the benefit-of-the-bargain approach, this Court finds that determining the
supplemental salary Novartis paid to Plaintiff as a result of her falsification of information is an
appropriate starting point. In fashioning Plaintiff’s base salary of $243,000 in 2010, Novartis
relied on her exaggerated prior salaries ($315,000 annual income at LaRon) and misrepresentations
of her previous experience. (Dkt. Nos. 209-4 ¶¶ 9, 11, 15, 253 Ex. B ¶ 6). Specifically, Novartis
increased Plaintiff’s signing bonus from $25,000 to $35,000 and paid another $10,000 due to her
representations that she was “leaving money on the table” at LaRon. (Dkt. No. 209-4 ¶ 15). In
reality, Plaintiff did not earn any income from LaRon, other than $127,500 in 2008. (Dkt. No. 2094 ¶ 11).
Based on this evidence, this Court calculates the salary that Novartis would have paid to
Plaintiff is a $198,000 base salary in 2010 ($243,000 less the $35,000 signing bonus and $10,000
competitive offer). This Court then accounted for annual increases in the contract rate of 1.5%,
2%, and 1% in the first three years, respectively, and thereafter adjusted Plaintiff’s base salary
amount for each subsequent year. In addition to the annual salary increases, the table 6 below
illustrates the money actually paid to Plaintiff (contract rate), the salary that would have been paid
to her absent her misrepresentations (projected salary), and the benefit she received because of her
fraud (difference). In sum, Novartis is entitled to recover $184,317 it paid to Plaintiff in reliance
on her false statements.
Increase in Salary
$ 3,645.00 (1.5%)
$ 4,933.00 (2.0%)
$ 2,516.00 (1.0%)
The numbers in this table were generated from Plaintiff’s base salary which was pulled from
Plaintiff’s Total Compensation Package. (Dkt. No. 253 Ex. B ¶ 6).
Plaintiff must also repay the annual increase in cash compensation received from 2010 to
2013, which equals $11,094. (Id. ¶ 16). This is necessary given that Novartis “would not have
hired Plaintiff if it knew about the numerous, significant misrepresentations in Plaintiff’s
application for employment and resume.” (Dkt. No. 209-4 ¶ 16). Novartis is therefore entitled to
repayment of $45,000 (signing bonus plus competitive offer), $184,317 (the benefit Plaintiff
received as a result of her fraud), and $11,094 (total increase in salary), totaling $240,411 in cash
compensation. Given the lack of clarity as to what Novartis considered in fashioning the cash
compensation it seeks, $240,411 best approximates what Novartis would have received absent
Plaintiff’s fraud. This amount does not entitle Plaintiff to compensation at the contract rate and
importantly, returns the benefit she received while accounting for the reasonable value of services
Next, this Court concludes that Novartis is entitled to $418,377 for retirement and other
company benefits paid. Upon review of Plaintiff’s total compensation package for 2010 through
2013, this Court totaled the amount in benefits Novartis contributed on Plaintiff’s behalf and
adjusted for the amounts Plaintiff contributed.
Accordingly, Novartis is entitled to full
reimbursement of $212,347 in equity, $4,000 in additional company benefits ($1,000 paid per
year), and $40,156 for Plaintiff’s Defined Contributed Plan (an investment funded 100% by
Novartis). (Dkt. No. 253 Ex. B ¶ 6, citing Ex. 3). Plaintiff did not contribute in any form to these
savings. By comparison, Plaintiff did contribute to her insurance and retirement benefits. After
adjusting for Novartis’s contribution to Plaintiff’s insurance and retirement benefits, Plaintiff shall
also pay $161,873 as detailed in the immediately succeeding table.
Contributed by Novartis
2010 Total $
Contributed by Plaintiff
2011 Total $
2012 Total $
2013 Total $
For damages suffered by hiring and paying Plaintiff more than her experience warranted,
Novartis shall be reimbursed $240,411 in cash compensation plus $418,377 in company benefits
amounting to $647,694.
Count III – Breach of Contract (Relocation Agreement)
Novartis hired Plaintiff with an understanding that she would relocate closer to its Florham
Park office and offered her money to do so. (Dkt. No. 209-4 ¶ 18). Under the Relocation
Agreement, Plaintiff accepted $26,818.71, told Novartis she intended to relocate, and failed to do
so. (Id. ¶ 19, 250 Ex. B ¶ 11 citing Ex. 1 and 4). Due to Plaintiff’s breach, Defendant lost the
relocation funds it paid to her and did not receive the anticipated benefit of having Plaintiff closer
to its desired office. Thus Novartis shall be refunded $26,818.71 as to Count Three.
Count IV – Breach of Contract (Annual Incentive Plan or “AIP”)
Subject to Plaintiff’s “adherence to and compliance with” Novartis’s rules and policies,
bonuses were available and paid to the Plaintiff under the AIP. (Dkt. No. 209-4 ¶¶ 6-7). This
Court previously found that Plaintiff was in violation of these policies from the very start of her
employment and breached the AIP by accepting outside employment positions with
Biomedical/Auxilium and Astellas. (Dkt. No. 251 at 3-4, 20). Under the AIP, “any breach . . .
requires return of the funds paid, permits the company to sue for ‘recovery of such proceeds on
the basis of breach of contract’ and exposes the breaching party to pay Novartis’s ‘reasonable
attorneys’ fees and costs in recovering such amounts.’” (Dkt. No. 209-4 Ex. 6). Notwithstanding
the requested fees and costs addressed in Section A of this Opinion, Novartis paid a total of
$210,403 ($57,605 in 2011; $70,343 in 2012; and $82,455 in 2013) in bonuses to Plaintiff under
the AIP. (Dkt. No. 253 Ex. B ¶ 12). Plaintiff’s bonuses were conditioned upon her compliance
with Novartis’s internal rules and policies, including the Conflicts Policy, and she was in violation
of these policies at the outset of her employment. Novartis is therefore entitled to full repayment
of the $210,403 in bonuses paid to Plaintiff during her tenure.
Count V – Breach of Duty of Good Faith and Fair Dealing
Novartis requests $1,670,23.80 ($1,140,178.85 in cash compensation plus $530,144.95 in
retirement and other company benefits) paid to Plaintiff as a result of her breach of the duty of
good faith and fair dealing. (Id. ¶¶ 10, 13). In granting summary judgment on Count Five of
Defendant’s Counterclaims, this Court held that Plaintiff violated her duty to act in good faith and
to deal fairly with Novartis by “actively seeking out additional competing employment during her
tenure . . . in violation of her contractual obligations” and “fail[ing] to provide her employer with
her full attention, efforts and time.” (Dkt. No. 251 at 22). This conduct comports with the conduct
that resulted in Plaintiff’s breach of the Relocation Agreement (Count Three) and AIP (Count
Four). As this Court has already awarded damages resulting from Plaintiff’s breach of both
agreements, constructing a damages award for her breach of the implied covenant of good faith
and fair dealing would impermissibly result in a duplicative damages award. See Kurnik v. Cooper
Health Sys., No. A-4686-06T1, 2008 N.J. Super. Unpub. LEXIS 2267, at *63-64 (Super. Ct. App.
Div. July 24, 2008) (finding that the lower court erred by allowing the jury to award separate
damages for breach of contract and breach of the implied covenant of good faith and fair dealing
“where the two breaches arose from . . . identical conduct”); see also Wade v. Kessler Inst., 778
A.2d 580 (N.J. 2001), aff’d as modified, 798 A.2d 1251 (N.J. 2002). Thus, an assessment of
separate damages as to Count Five is not proper. The total damages already awarded adequately
compensate Novartis for Plaintiff’s breach of duty of good faith and fair dealing.
Count VIII – Breach of Duty of Loyalty and Conflict of Interest Policy
As a result of Plaintiff’s breach of her duty of loyalty, Defendant seeks the profits she
earned from Biomedical/Auxilium and Astellas while she was employed at Novartis. An
employee’s breach of the duty of loyalty can result in a variety of relief on behalf of the wronged
employer, including “profits the employee earned in another enterprise while still employed” and
“disgorgement of the disloyal employee’s past compensation.” See Cameco, Inc. v. Gedicke, 157
N.J. 504, 518 (1999); Kaye v. Rosefielde, 223 N.J. 218, 222 (2015). The Restatement (Second) of
Agency § 403 provides: “[i]f an agent receives anything as a result of h[er] violation of a duty of
loyalty to the principal, [s]he is subject to a liability to deliver it, its value, or its proceeds, to the
principal.” See also Cameco, 157 N.J. at 518 (noting that the employer may recover the value of
the “secret profit” earned by a disloyal employee).
This Court previously recognized that Novartis was harmed by Plaintiff’s breach of her
duty of loyalty by losing the money it paid her to work full time. (Dkt. No. 251 at 23). Without
Defendant’s knowledge, Plaintiff actively solicited and accepted two consulting positions with
Novartis’s competitors and earned secret profits amounting to $497,907.56 ($41,783 from
Biomedical/Auxilium, and a total of $456,124.56 from Astellas). (Dkt. No. 253 Ex. B ¶ 14). With
regard to Plaintiff’s breach of her duty of loyalty, Novartis seeks the wrongful profits she earned
for the time she did not commit to the company. Plaintiff is therefore disgorged of $497,907.56
in profits she obtained from Biomedical/Auxilium and Astellas, which shall be payable to
C. The Adesanyas’ Motion to Stay
On September 13, 2016, Plaintiff and Mr. Adesanya filed a motion to stay this matter
pending appeal of this Court’s August 15 Order to the Third Circuit. (Dkt. No. 257). On December
21, 2016, the Third Circuit denied the Adesanyas’ appeal as this Court had “not yet calculated the
amount of damages” nor “the amount of monetary sanctions,” thus the Order was not yet “final
and appealable.” (Dkt. Nos. 255, 264). Since no appeal is pending, the motion to stay this matter
is moot and will be dismissed accordingly.
For the reasons stated herein, and outlined in detail below, this Court GRANTS Novartis’s
fee application with modifications in connection with the dismissal of Plaintiff’s claims; GRANTS
Novartis’s motion for sanctions against Mr. Adesanya in the amount of $23,714.00; GRANTS
damages in the amount of $1,393,918.23, and DISMISSES AS MOOT the Adesanyas’ motion to
stay. An Order consistent with this Opinion follows.
Total Hours Billed
September 2013 to January 2014 Invoice
February to May 2014 Invoice
June to September 2014 Invoice
October 2014 to January 2015 Invoice
February to March 2015 Invoice
April to May 2015 Invoice
Overstaffing at Court Conferences
Overstaffing at Depositions
3,599.4 (Total Hours Billed Less Deductions)
Total Fees and Costs Sought
Total Fees and Costs Sought From Plaintiff
Costs Sought From Mr. Adesanya
September 2013 to January 2014 Invoice
February to May 2014
June to September 2014
October 2014 to January 2015
February to March 2015
April to May 2015
June to August 2015
September to October 2015
Unbilled Fees and Costs
Total Fees and Costs Owed
Total Fees and Costs To Be Paid by Plaintiff
Total Fees and Costs To Be Paid by Mr. Adesanya
s/ Susan D. Wigenton___________
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Clerk of the Court
Hon. Steven C. Mannion, U.S.M.J.
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