United States of America et al v. Anthony Guida, M.D., et al
ORDER granting 22 Motion for Attorney Fees For the reasons set forth herein, plaintiff-relator's motion for attorneys' fees is granted. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/6/2017. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No 10-cv-4644 (JFB) (AKT)
UNITED STATES EX REL. JOSEPH F. TOMMASINO, P.A., PHD, ET AL.,
ANTHONY A. GUIDA, M.D., ET AL.,
MEMORANDUM AND ORDER
March 6, 2017
also seeks $51,132.50 in attorneys’ fees and
$4,017.67 in costs in connection with the instant fee application. (ECF No. 28.)
JOSEPH F. BIANCO, District Judge:
Suspecting Medicare fraud, Relator Joseph F. Tommasino (“relator”) commenced
this action against defendants Anthony
Guida, M.D., Dr. Joseph Gigante, Dr. Leonard Savino, Dr. Robert Sica, Island Medical
of Medford LLP, and Guida and Savino, LLP
(collectively “defendants”) in the name of the
United States (the “government”) pursuant to
the qui tam provisions of the False Claims
Act (“FCA”), 31 U.S.C. §§ 3729-33.
(Compl., ECF No. 1, at ¶ 9.) The government
settled the case on August 28, 2015 in the
amount of $106,393.30, and relator received
an 18% relator share of the proceeds. (ECF
No. 22-4, Exs. B, C.) Relator now seeks reasonable attorneys’ fees from defendants in
the amount of $115,807 and costs in the
amount of $1,127.68 in connection with the
underlying qui tam action. (ECF No. 22.) He
For the reasons set forth below, the Court
awards relator $79,953.30 in attorneys’ fees
and $1,127.68 in costs for the underlying qui
tam action, and $14,422 in fees and $1,312 in
costs for the instant fee application.
I. ATTORNEYS’ FEES
“The general rule in our legal system is
that each party must pay its own attorney’s
fees and expenses.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 550 (2010). Under
the FCA, however, a relator who brings a successful qui tam lawsuit is entitled to attorneys’ fees. See United States v. Keshner, 794
F.3d 232, 237 (2d Cir. 2015) (citing 31
duction because, from counsel’s ex ante perspective, the case appeared to be worth much
more, the government intervened in the action (and thus confirmed its merit), and reduction based on disproportionality would
undermine the purpose of the FCA. (Pl.’s Reply Mem. Supp. Award of Attorneys’ Fees
and Expenses (“Pl.’s Reply”), ECF No. 28, at
Generally, to determine reasonable attorneys’ fees, a court must calculate a “lodestar
figure,” which is determined by multiplying
the number of hours reasonably expended on
a case by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);
see also Luciano v. Olsten Corp., 109 F.3d
111, 115 (2d Cir. 1997). “Both [the Second
Circuit] and the Supreme Court have held
that the lodestar . . . creates a ‘presumptively
reasonable fee.’” Millea v. Metro-N. R.R.
Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing
Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182,
183 (2d Cir. 2008); Perdue, 559 U.S. at 542).
“‘[T]he lodestar figure includes most, if not
all, of the relevant factors constituting a ‘reasonable’ attorney’s fee.’” Perdue, 559 U.S.
at 553 (quoting Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S.
546, 566 (1986)). Thus, the Supreme Court
has recognized that “the lodestar method produces an award that roughly approximates
the fee that the prevailing attorney would
have received if he or she had been representing a paying client who was billed by the hour
in a comparable case.” Id. at 551. “The burden is on the party seeking attorney’s fees to
submit sufficient evidence to support the
hours worked and the rates claimed.” Hugee
v. Kimso Apartments, LLC, 852 F. Supp. 2d
281, 298 (E.D.N.Y. 2012) (citing Hensley,
461 U.S. at 433).
The Supreme Court has recognized that
“plaintiff’s success is a crucial factor in determining the proper amount of an award of
attorney’s fees.” Hensley, 461 U.S. at 440;
see also Stanczyk v. City of New York, 752
F.3d 273, 284–85 (2d Cir. 2014) (citing
Hensley, 461 U.S. at 434–35). The Court has
also stated that, “where the plaintiff achieved
only limited success, the district court should
award only that amount of fees that is reasonable in relation to the results obtained.”
Hensley, 461 U.S. at 440; see also Green v.
Torres, 361 F.3d 96, 99 (2d Cir. 2004). Correspondingly, in determining the prevailing
party’s degree of success, a court must consider “‘the quantity and quality of relief obtained,’ as compared to what the plaintiff
sought to achieve as evidenced in her complaint . . . .” Barfield v. N.Y. City Health &
Hosps. Corp., 537 F.3d 132, 152 (2d Cir.
2008) (quoting Carroll v. Blinken, 105 F.3d
79, 81 (2d Cir. 1997)). For instance, the Second Circuit has indicated that a reduction in
attorneys’ fees is warranted where a plaintiff
who sought substantial monetary damages is
only awarded a nominal sum. See, e.g., Carroll, 105 F.3d at 81–82 (affirming district
court’s reduction of requested attorneys’ fees
because, inter alia, “[t]here was no damage
award”); Pino v. Locascio, 101 F.3d 235,
238–39 (2d Cir. 1996) (holding that district
court erred in awarding attorneys’ fees in
civil rights action where plaintiff only recovered $1 in nominal damages).
As a threshold matter, defendants argue
that relator’s request for $115,807 in attorneys’ fees is excessive and should receive an
across-the-board cut because the case settled
for $106,393.30, of which relator only received $19,150.79. (Def.’s Mem. Law Opp’n
Mot. for Attorneys’ Fees and Expenses
(“Def.’s Br.”), ECF No. 27, at 1–2, 11–13.)
Relator counters that disproportionality between results and fees does not warrant a re-
On the other hand, the Second Circuit has
“repeatedly rejected the notion that a fee may
by the relator, it would discourage attorneys
from investing the time and resources necessary to bring a qui tam action, thereby undermining the purpose of the FCA. See CDW–
Government, 2013 WL 11267176, at *13.
Thus, a disproportionality rule in this context
would have the same effect as that rule in the
civil rights context, discouraging lawyers
from pursuing potentially meritorious actions
because the risk significantly outweighs the
reward. See Kassim, 415 F.3d at 252; see
also Grant v. Martinez, 973 F.2d 96, 99 (2d
Cir. 1992) (“The relevant issue, however, is
not whether hindsight vindicates an attorney’s time expenditures, but whether, at the
time the work was performed, a reasonable
attorney would have engaged in similar time
be reduced merely because the fee would be
disproportionate to the financial interest at
stake in the litigation.” Kassim v. City of
Schenectady, 415 F.3d 246, 252 (2d Cir.
2005) (collecting cases); see also City of Riverside v. Rivera, 477 U.S. 561, 574 (1986)
(“We reject the proposition that fee awards
under [42 U.S.C.] § 1988 should necessarily
be proportionate to the amount of damages a
civil rights plaintiff actually recovers.”);
Townsend v. Benjamin Enterprises, Inc., 679
F.3d 41, 60 (2d Cir. 2012) (“[A] presumptively correct ‘lodestar’ figure should not be
reduced simply because a plaintiff recovered
a low damage award.” (quoting Cowan v.
Prudential Ins. Co. of Am., 935 F.2d 522, 526
(2d Cir. 1991))). This rule is especially prevalent in the civil rights context, where “a rule
calling for proportionality between the fee
and the monetary amount involved in the litigation would effectively prevent plaintiffs
from obtaining counsel in cases where deprivation of a constitutional right caused injury
of low monetary value.” Kassim, 415 F.3d at
252. Some courts have applied this rule in
qui tam cases as well, reasoning that large fee
awards advance the purpose of the FCA to
encourage employees to report suspected violations by their employers. See U.S.A. v.
CDW–Government, Inc., No. 305CV00033
(DRH) (PMF), 2013 WL 11267176, at *13
(S.D. Ill. May 17, 2013).
In addition, even if a disproportionality
rule were appropriate in the FCA context, the
Court concludes that its application is not
warranted here. First, although the case only
settled for $106,393.30 where relator initially
expected a recovery of millions, relator’s
counsel had no control over the settlement
procured by the government and limited influence in the investigation once the government intervened. Counsel, therefore, bears
no responsibility for the settlement’s relative
modesty—at least in comparison to their initial expectations. Furthermore, relator did
not obtain only nominal damages. See, e.g.,
Carroll, 105 F.3d at 81–82; Pino, 101 F.3d at
238–39. Instead, his recovery was substantial, amounting to almost $20,000 (from a settlement of $106,393.30), an amount large
enough to warrant a significant fee. See
Townsend, 679 F.3d at 47 (affirming award
of $141,308.80 in attorneys’ fees despite recovery of about $30,000); Grant v. Martinez,
973 F.2d 96, 101 (2d Cir. 1992) (upholding
award of over $500,000 despite recovery of
only $60,000); Brown v. Starrett City Assocs., No. 09-CV-3282 JBW, 2011 WL
5118438, at *9 (E.D.N.Y. Oct. 27, 2011)
The Court declines to reduce attorneys’
fees in this case based on the amount of the
recovery. Congress designed the FCA “to
prevent the United States Treasury from being drained of millions of dollars by fraudulent billings by federal government contractors.” U.S. by Dep’t of Def. v. CACI Int’l Inc.,
953 F. Supp. 74, 77 (S.D.N.Y. 1995). Correspondingly, the FCA’s qui tam provisions
“encourage private individuals to bring suits
on behalf of the government.” Id. If, however, a court were to substantially reduce a
relator’s attorneys’ fees because the government settles for less than the amount expected
the time limitations imposed
by the client or the circumstances; (8) the amount involved in the case 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.
(awarding over $80,000 in attorneys’ fees despite jury award of only $500); CDW–Government, 2013 WL 11267176, at *13 (awarding approximately $3.7 million in attorneys’
fees, “53% of the entire recovery in this
case”); see also Hines v. City of Albany, 613
F. App’x 52, 54 (2d Cir. 2015) (“We are unpersuaded by Defendants’ attempts to characterize the $10,000 settlement in this case as
meager. Moreover, the success here was
hardly technical.”). Accordingly, the Court
declines to reduce the award for disproportionality under the circumstances of this case.
Id. at 186 n.3 (quoting Johnson, 488 F.2d at
717–19). Finally, a district court should also
consider “that a reasonable, paying client
wishes to spend the minimum necessary to
litigate the case effectively,” and “that such
an individual might be able to negotiate with
his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.” Id.
at 190. “The burden rests with the prevailing
party to justify the reasonableness of the requested rate,” and a plaintiff’s attorney
“should establish his hourly rate with satisfactory evidence—in addition to the attorney’s own affidavits.” Hugee, 852 F. Supp.
2d at 298.
B. Reasonable Hourly Rates
“The reasonable hourly rate is the rate a
paying client would be willing to pay.” Arbor Hill, 522 F.3d at 190. The Second Circuit’s “‘forum rule’ generally requires use of
‘the hourly rates employed in the district in
which the reviewing court sits in calculating
the presumptively reasonable fee.’” Bergerson v. N.Y. State Office of Mental Health,
Cent. N.Y. Psychiatric Ctr., 652 F.3d 277,
290 (2d Cir. 2011) (quoting Simmons v.
N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d
Cir. 2009)). The Second Circuit also instructed district courts to consider the factors
set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 92–93 (1989). See
Arbor Hill, 522 F.3d at 190. The twelve
Johnson factors are:
In general, “[c]ourts in the Eastern District of New York award hourly rates ranging
from $200 to $450 per hour for partners, $100
to $300 per hour for associates, and $70 to
$100 per hour for paralegals.” D’Annunzio v.
(WFK)(WDW), 2015 WL 5308094, at *4
(E.D.N.Y. Sept. 10, 2015); see also Sass v.
MTA Bus Co., 6 F. Supp. 3d 238, 261
(E.D.N.Y. 2014) (“Recent opinions issued by
courts within the Eastern District of New
York have found reasonable hourly rates to
be approximately $300–$450 for partners,
$200–$325 for senior associates, and $100–
$200 for junior associates.” (citations omitted)). Of course, in light of the numerous fac-
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3)
the level of skill required to
perform the legal service
properly; (4) the preclusion of
employment by the attorney
due to acceptance of the case;
(5) the attorney’s customary
hourly rate; (6) whether the
fee is fixed or contingent; (7)
partners, $200–$325 for senior associates,
and $100–$200 for junior associates.” (citations omitted)); see, e.g., 246 Sears Rd. Corp.
v. Exxon Mobil Corp., No. 09-CV-889 NGG
JMA, 2013 WL 4506973, at *11 (E.D.N.Y.
Aug. 22, 2013) (awarding $425 hourly rate
for attorney with 30 years’ experience); Barkley v. United Homes, LLC, No. 04-CV-875
KAM RLM, 2012 WL 3095526, at *8
(E.D.N.Y. July 30, 2012) (awarding $400
hourly rate for attorney with 30 years’ experience and $450 for attorney with 40 years’
experience). Indeed, they even exceed “[t]he
highest rates in this district,” which “are reserved for expert trial attorneys with extensive experience before the federal bar, who
specialize in the practice of [a particular area
of] law and are recognized by their peers as
leaders and experts in their fields.” Hugee,
852 F. Supp. 2d at 300.
tors that courts in this circuit consider to determine a reasonable hourly rate, “the range
of ‘reasonable’ attorney fee rates in this district varies depending on the type of case, the
nature of the litigation, the size of the firm,
and the expertise of its attorneys.” Siracuse
v. Program for the Dev. of Human Potential,
No. 07-CV-2205 (CLP), 2012 WL 1624291,
at *30 (E.D.N.Y. Apr. 30, 2012).
Relator requests a billing rate of between
$425 and $525 for the two attorneys for
whom he seeks attorneys’ fees, William
Leonard and Kimberly D. Sutton. (See Mot.
for Attorney Fees by Joseph F. Tommasino,
ECF No. 22, Ex. A (“Billing Mem.”), at 3–
12.) He also seeks between $160 and $175
per hour in fees for the work completed by
three paralegals. (See id.) Defendant claims
that these rates are not consistent with rates
typically awarded in this district. (Defs.’ Br.
Relator argues, however, that such a high
rate is consistent with U.S. ex rel. Doe v. Acupath Labs., Inc., No. CV 10-4819, 2015 WL
1293019, at *10 (E.D.N.Y. Mar. 19, 2015), a
qui tam case where Judge Wexler adopted the
Magistrate Judge’s recommendation that Attorney Robert Sadowski receive an hourly
rate of $450 for 2010, $500 for 2011, $550
for 2012, and $600 for 2013. At the outset,
however, it should be noted the Magistrate
Judge reduced the hourly rate in that case
from a requested rate of $575 for 2010, $600
for 2011, $700 for 2012, and $850 for 2013.
See id. at *9. It should also be noted that Sadowski had extensive expertise in qui tam
cases and healthcare fraud, having served as
the Health Care Fraud Coordinator in the
U.S. Attorney’s Office for the Southern District of New York, where he supervised all
civil health care fraud prosecutions, including FCA cases, prior to his work in private
practice. Id. at *6.
1. William Leonard
Leonard graduated from the Dickinson
School of Law and is currently a partner at
the law firm of Obermayer Rebmann Maxwell & Hippell LLP (“Obermayer”), where
he has worked for 22 years. (Decl. of William J. Leonard Supp. Mot. for Attorneys’
Fees and Expenses (“Leonard Decl.”), ECF
No. 22-2, ¶¶ 1, 3.). He has practiced law as a
commercial litigator for 31 years and as a qui
tam litigator since 2009. (Id. ¶ 3.) His customary hourly rate was $500 from 2010
through 2011 and then increased to $525 on
January 1, 2012, where it remains today. (Id.
The rates sought for Leonard exceed the
rates normally awarded in the Eastern District for attorneys of similar experience. See
Sass, 6 F. Supp. 3d at 261 (“Recent opinions
issued by courts within the Eastern District of
New York have found reasonable hourly
rates to be approximately $300–$450 for
The Magistrate Judge listed several reasons for setting the rates above the market
rate. On the one hand, the Magistrate Judge
DRH ETB, 2011 WL 7114006, at *4
(E.D.N.Y. June 17, 2011) (awarding $475 to
a senior partner with over 30 years of experience in a securities fraud case), report and
recommendation adopted as modified, No. 06
CV 1500 DRH ETB, 2012 WL 273080
(E.D.N.Y. Jan. 30, 2012); Manzo v. Sovereign Motor Cars, Ltd, No. 08 Civ. 1229, 2010
WL 1930237, at *8 (E.D.N.Y. May 11,
2010) (awarding, in a Title VII case, $480 per
hour to a litigator with 30 years of experience
because, though the rate was “at the upper
end of the range typically awarded in this district, [the attorney] was brought in to try the
case, [and] his trial skills may well be the reason for the favorable jury award,” and awarding hourly rates of $360 and $300, respectively, to attorneys with 19 and 11 years of
experience). Furthermore, another court in
this district awarded substantially lower fees
in a qui tam case, albeit for a defendant. See
Pugach v. M & T Mortg. Corp., 564 F. Supp.
2d 153, 159 (E.D.N.Y. 2008) (awarding defendant’s counsel, two partners with 18 and
30 years’ experience and specialization in
complex commercial cases, including qui
tam defense, $250 per hour).
noted that the second and third Johnson factors—the novelty and difficulty of the questions and the level of skill required to perform
the legal services properly—militated against
a high rate because “Medicaid fraud is a typical kind of fraud covered by the FCA.” Id.
Similarly, the Magistrate Judge noted that
counsel’s “‘customary rate’ of $650 is significantly higher than the upper limit of the
usual range for this District, where rates
higher than $350 per hour are generally reserved for the unusually expert litigation or
other special circumstances.” Id. (collecting
cases). On the other hand, the Magistrate
Judge recognized that “qui tam litigation under the False Claims Act is a specialized area
of law with which only a small number of
practitioners are familiar” and that “such
practice requires knowledge of procedural
rules which do not apply in other types of litigation.” Id. at *10. The Magistrate Judge
justified the above-market rates because
“they reflect[ed] the skill, quality, and experience of the attorney, as well as the degree of
specialization required by this case.” Id.
Beyond Acupath Labs, however, relator
has identified no other qui tam case where
such high rates were approved, and, as noted
above, the highest rates in this district rarely
exceed $450 per hour, even for the most experienced attorneys in similarly complex
commercial cases. See, e.g., Hilton v. Int’l
Perfume Palace, Inc., No. 12–CV–5074,
2013 WL 5676582, at *11 (E.D.N.Y. Oct. 17,
2013) (reducing rate of partners from $645 to
$450 in trademark, trade dress, and patent infringement action involving Paris Hilton fragrances); Leser v. U.S. Bank Nat’l Assn., No.
09–CV–2362, 2013 WL 1952306, at *10–11
(E.D.N.Y. May 10, 2013) (reducing hourly
rate from $790 to $425 where counsel was a
senior litigator with 28 years of experience at
a major firm, in complex commercial matter
involving real estate loan development projects and guaranties and breach of contract
claims); Libaire v. Kaplan, No. CV 06-1500
Although the Court agrees with Acupath
Labs that “qui tam litigation under the False
Claims Act is a specialized area of law with
which only a small number of practitioners
are familiar” and that “such practice requires
knowledge of procedural rules which do not
apply in other types of litigation,” 2015 WL
1293019, at *10, it is not clear that such cases
are so complex and specialized that they
merit higher rates than other commercial
cases involving areas of law as complex as
patent infringement, commercial real estate,
or securities, see Hilton, 2013 WL 5676582,
at *11 (patent infringement); Leser, 2013 WL
1952306, at *10–11 (real estate); Libaire,
2011 WL 7114006, at *4 (securities). In addition, lead counsel in Acupath Labs was
uniquely specialized in the field of FCA liti6
care litigation. (See Suppl. Leonard Decl. ¶
4; id., Ex. A.)
gation, having spent several years supervising FCA prosecutions.
See 2015 WL
1293019, at *6. Furthermore, like in Acupath
Labs, the type of healthcare fraud at issue in
this case “is a typical kind of fraud covered
by the FCA,” and thus the second and third
Johnson factors “do not weigh strongly in favor of a higher than usual hourly rate.” Id. at
*9. Finally, this case involved no novel questions of law and required limited commitment from relator’s counsel once the government intervened. See Westport Ins. Corp. v.
Hamilton Wharton Grp. Inc., 483 F. App’x
599, 604 (2d Cir. 2012) (affirming fee reduction based on “the limited time and labor required, the relatively straightforward nature
of the case, the absence of severe time demands, and the rates awarded in similar
cases”); Estiverne v. Esernio-Jenssen, 908 F.
Supp. 2d 305, 312 (E.D.N.Y. 2012) (declining to award the “highest approved rate in the
District” where “the issues involved in the
preliminary injunction were not overly complex or difficult; [and] only one aspect
was novel”); Warner Bros. Entm’t v. Carsagno, No. 06 CV 2676(NG)(RLM), 2007
WL 1655666, at *8 (E.D.N.Y. June 4, 2007)
(reducing fee where, inter alia, “relatively little time and labor were required in prosecuting this case; [and] the legal questions presented were neither difficult nor novel”).
The rate for senior-level associates commonly awarded in this district is $200 to
$325. Sass, 6 F. Supp. 3d at 261. It is true
that partners with as much experience in
complex commercial cases as Sutton are typically awarded up to $400 per hour, see, e.g.,
Leser, 2013 WL 1952306, at *10 (awarding
$400 per hour to partner with 18 years’ experience who second-chaired a trial and $375 to
a partner with 16 years’ experience), but associates with even more experience than her,
still receive the senior associate rate, see, e.g.,
Libaire, 2011 WL 7114006, at *4 (awarding
associate with 26 years’ experience $300 per
hour in complex securities case).
In light of the prevailing hourly rates in
this district and all other factors set forth in
Arbor Hill, the Court concludes that $300 per
hour is a reasonable hourly rate for Sutton.
The Court reaches this conclusion in light of
Sutton’s extensive legal career, her focus on
health care litigation, her position as an associate at Obermayer, and the rates in this district for senior associates (as high as $325 per
hour) and partners (as low as $300 per hour).
See Sass, 6 F. Supp. 3d at 261; see also Libaire, 2011 WL 7114006, at *4. For the reasons stated above, the Court finds that the nature of the legal work at issue in this case does
not warrant a higher hourly rate.
As such, especially in light of the prevailing hourly rates in this district for complex
commercial cases, the Court concludes that
$425.00 per hour is a reasonable hourly rate
Finally, relator requests hourly rates of
$160 for two paralegals and $175 for one paralegal without explaining why these rates, almost double the market rate for paralegals in
this district, are warranted. See Hall v.
ProSource Techs., LLC, No. 14-CV-2502
(SIL), 2016 WL 1555128, at *12 (E.D.N.Y.
Apr. 11, 2016) (“Courts in the Eastern District of New York award hourly rates ranging
from . . . $70 to $100 per hour for paralegals.”). Therefore, based upon the nature of
2. Kimberly Sutton
Sutton, the primary associate on the case,
is a former registered nurse and a graduate of
Rutgers School of Law. (Leonard Decl. ¶ 9;
Suppl. Decl. of William J. Leonard (“Suppl.
Leonard Decl.”), ECF No. 35, ¶ 4.) She has
been litigating in commercial cases for approximately 20 years, specializing in health
board reduction); Kirsch, 148 F.3d at 173
(upholding “20% reduction for vagueness,
inconsistencies, and other deficiencies in the
the legal work and all related factors, the
Court concludes that $90 per hour is a reasonable rate for all three paralegals.
C. Reasonable Hours
The Second Circuit has said that calculating reasonable hours expended is “best made
by the district court on the basis of its own
assessment of what is appropriate for the
scope and complexity of the particular litigation.” Carey, 711 F.2d at 1146; see also Lore
v. City of Syracuse, 670 F.3d 127, 175 (2d
Cir. 2012) (holding that “the district court,
which is intimately familiar with the nuances
of the case,” is in the best position to determine an appropriate fees award). “In making
this examination, the district court does not
play the role of an uninformed arbiter but
may look to its own familiarity with the case
and its experience generally as well as to the
evidentiary submissions and arguments of the
parties.” Gierlinger v. Gleason, 160 F.3d
858, 876 (2d Cir. 1998) (quoting DiFilippo v.
Morizio, 759 F.2d 231, 235–36 (2d Cir.
“The party seeking attorney’s fees also
bears the burden of establishing that the number of hours for which compensation is
sought is reasonable.” Custodio v. Am. Chain
Link & Const., Inc., No. 06-CV-7148 (GBD),
2014 WL 116147, at *9 (S.D.N.Y. Jan. 13,
2014) (citing Cruz v. Local Union No. 3 of
Int’l Bhd. of Elec. Workers, 34 F.3d 1148,
1160 (2d Cir. 1994)). “Applications for fee
awards should generally be documented by
contemporaneously created time records that
specify, for each attorney, the date, the hours
expended, and the nature of the work done.”
Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173
(2d Cir. 1998). “Hours that are ‘excessive,
redundant, or otherwise unnecessary,’ are to
be excluded, and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number
of hours claimed ‘as a practical means of
trimming fat from a fee application.’” Id.
(quoting Hensley, 461 U.S. at 434; N.Y. State
Ass’n for Retarded Children, Inc. v. Carey,
711 F.2d 1136, 1146 (2d Cir. 1983)); see also
Lunday v. City of Albany, 42 F.3d 131, 134
(2d Cir. 1994) (“We do not require that the
court set forth item-by-item findings concerning what may be countless objections to
individual billing items.”). For example, in
Matusick v. Erie County Water Authority, the
Second Circuit upheld a district court’s 50
percent across-the-board reduction of hours
in light of “concerns regarding unspecified
conferences, telephone calls, email correspondence, and reviews.” 757 F.3d 31, 64
(2d Cir. 2014) (citation omitted); see also
Francois v. Mazer, 523 F. App’x 28, 29 (2d
Cir. 2013) (upholding 40 percent across-theboard reduction in hours); Green v. City of
New York, 403 F. App’x 626, 630 (2d Cir.
2010) (upholding 15 percent across-the-
Relator requests compensation for 266.1
hours of legal work, not including time spent
on the instant fee application (discussed below). (Decl. of Michael S. Pepperman Supp.
Relator’s Mot. for Attorney’s Fees (“Pepperman Decl.”), ECF No. 22-3, ¶ 4.) Leonard
billed 107 hours, Sutton billed 138.3 hours,
paralegal Lisa Buenzle billed 20.4 hours, paralegal Drew Panciera billed 0.20 hours, and
paralegal Gregory Weyant billed 0.20 hours.
(Id.) These hours encompass, inter alia,
counsel’s work in connection with the complaint, investigation, presentation to the government, and correspondence between counsel, the government, and relator. (See Billing
Mem. at 3–12.) Defendants challenge 20.8
specific hours billed and request an acrossthe-board cut of at least 10% for block billing. (Defs.’ Br. at 5–7.)
1. Post-Intervention Hours
First, defendants challenge 4.2 hours
billed after the government advised relator’s
counsel that it was meeting with defendants’
attorneys. (Id. at 5–6.) Relator’s counsel
listed a total of 4.2 hours after January 2013,
1.2 of which related to either updates on the
“status” of the case or “follow-up” correspondence, but lacking more specific information. (Billing Mem. at 11.) Of the remaining 3 hours, 1.2 hours involved reviewing a
draft stipulation of settlement and discussing
it with the government, 0.3 hours involved reviewing a client email and communications
between Leonard and Sutton about a call to
the government, and 0.2 hours involved a call
to the government. (Id.) Counsel did not
charge for the remaining 1.1 hours, which are
not included in the 266.1 total hours for
which they request compensation. (Id.)
2. Abandoned Claim
Defendants also request that the Court cut
16.6 hours billed for an abandoned claim.
(Defs.’ Br. at 7.) Specifically, they point out
that counsel billed 3.9 hours for legal research on “group practice” on September 9,
2010, 3.7 hours shortly thereafter on September 21, 2010 to “review and revise complaint” (which defendants presume were
spent adding group practice allegations), and
9 hours in total between October 6 and 7,
2010 to remove the group practice allegations. (Id.; see also Billing Mem. at 4, 5.)
As noted above, “where the plaintiff
achieved only limited success, the district
court should award only that amount of fees
that is reasonable in relation to the results obtained.” Hensley, 461 U.S. at 440. In Medina v. Donaldson, No. 10 CIV. 5922 (VMS),
2015 WL 77430, at *16 (E.D.N.Y. Jan. 6,
2015), a court in this district cited this rule to
reduce attorneys’ fees where the plaintiff voluntarily dismissed a number of claims. Similarly, courts in the Southern District of New
York have held that “counsel may be denied
compensation for work done . . . on claims
that were abandoned.” Rozell v. Ross-Holst,
576 F. Supp. 2d 527, 538 (S.D.N.Y. 2008)
(citing Cooper v. Sunshine Recoveries, Inc.,
No. 00 Civ. 8898, 2001 WL 740765, at *3
(S.D.N.Y. June 27, 2001)). This is particularly appropriate where “the tasks performed
by plaintiff’s counsel were unjustified,” such
as filing a motion that “counsel themselves
recognized” as futile.” Id. Conversely, in
Castelluccio v. Int’l Bus. Machines Corp.,
No. 3:09CV1145 TPS, 2014 WL 3696371, at
*4 (D. Conn. July 23, 2014), a court in this
Circuit declined to reduce fees based on
abandoned claims where they were “factually
interrelated” to claims that succeeded and
were “reasonably viable legal theories that
counsel had a duty to investigate.”
The Court concludes that it was reasonable to bill some time for some status updates
and follow-up correspondence, but the entries are vague regarding the content of those
communications. As discussed below, however, the Court concludes that an across-theboard cut is appropriate for entries like these.
Therefore, it declines to reduce any time for
these specific entries, as the across-the-board
cut outlined below adequately accounts for
them. Furthermore, the Court declines to cut
any of the 1.7 hours billed for reviewing and
discussing the settlement because the government sought relator’s assent before the settlement could move forward. Thus, contrary to
defendants’ contention, those hours did advance the case and thus do not trigger a reduction. See U.S., ex rel. Abbott-Burdick v.
Univ. Med. Assocs., No. 2:96-1676-12, 2002
WL 34236885, at *15 (D.S.C. May 23, 2002)
(“Merely arguing that hours billed assisting
government post-intervention are ‘unnecessary’ is clearly insufficient [to merit a reduction].” (citing United States ex rel. Doe v.
Penn. Blue Shield, et al., 54 F. Supp. 2d 410,
414 (M.D. Pa. 1999))).
inscrutable entries that mention communications between the attorneys or with others
without specifying the reason for the communication or vaguely describing it as involving
“status.” (See, e.g., Billing Mem. at 3–4 (entries for 5/17/10, 8/6/10, 9/3/10, 9/8/10,
9/15/10, 9/23/10, 10/6/10).) Accordingly, the
Court, in its discretion, has determined that a
10% reduction to billed hours is appropriate
in this case. See Spence v. Ellis, No. CV 075249 (TCP) (ARL), 2012 WL 7660124, at *7
(E.D.N.Y. Dec. 19, 2012) (reducing hours in
attorneys’ fees application because the “substantial amount of block billing in the fee requests here renders it difficult to determine
whether, and/or the extent to which the work
done by plaintiff’s attorneys is duplicative or
unnecessary”), report and recommendation
adopted, No. 07-CV-5249 (TCP), 2013 WL
867533 (E.D.N.Y. Mar. 7, 2013); Molefi v.
Oppenheimer Trust, No. 03 CIV. 5631 (FB)
(VVP), 2007 WL 538547, at *7–8 (E.D.N.Y.
Feb. 15, 2007) (applying 15% reduction for,
inter alia, a “substantial amount” of blockbilling); Melnick v. Press, No. 06-CV-6686
(JFB) (ARL), 2009 WL 2824586, at *6
(E.D.N.Y. Aug. 28, 2009) (applying 10% reduction based on counsel’s “repeated use of
block-billing such that the reasonableness of
each entry could not be as easily determined”); Aiello v. Town of Brookhaven, 94
CIV. 2622 (FB) (WDW), 2005 WL 1397202,
at *3 (E.D.N.Y. June 13, 2005) (applying
10% reduction to billed hours because of attorneys’ “substantial” use of block-billing).
The Court concludes that no reduction is
warranted for relator’s abandoned group
practice claim. The complaint set forth a
claim for a violation of Medicare rules that
allowed a physician assistant to bill services
at a doctor’s rate under some circumstances.
(Compl. ¶¶ 7–8). The volume of services allegedly performed by physician assistants at
the defendants’ facilities raised a question
about whether the individual doctors were
performing at least 75% of the services provided by those facilities. (Id. at ¶ 53.) If the
doctors performed less than 75% of those services, defendants could have been in violation of regulations concerning group practicing. See 42 C.F.R. § 411.352(d). It is clear,
therefore, that any abandoned group practices
claim was factually interrelated with the
straightforward Medicare fraud claim on
which the government recovered, and it was
reasonable for counsel to investigate that
claim. Furthermore, counsel timely abandoned that claim when they determined it had
no merit. Under these circumstances, given
the interrelated nature of the claims, no reduction is warranted for the abandoned claim.
See Castelluccio, 2014 WL 3696371, at *4.
3. Block Billing
Finally, defendants argue that the Court
should reduce the hours billed to account for
block billing in the Billing Memorandum.
(Defs.’ Br. at 6.) Although defendants failed
to identify any specific instances of block
billing, the Court agrees that a reduction in
hours on this ground is appropriate because
the block billing “frustrated meaningful review of the reasonableness of the claimed
hours.” Hines, 613 F. App’x at 55 (affirming
30% reduction based in part on prevalence of
block-billed entries). The Court has reviewed relator’s submissions and noted repeated use of block-billing such that the reasonableness of each entry cannot be easily
determined. For instance, there are numerous
Applying the rates and reductions outlined above and excluding the instant fee application (discussed below), the lodestar
amount amounts to $79,953.30. 1 For the reasons outlined above, the Court finds this
amount reasonable and adopts it as the fee
award for the underlying qui tam action. See
Millea, 658 F.3d at 166.
a rate of $275.00, but the Court takes judicial
notice that Batoff was admitted to practice
law in Pennsylvania on October 27, 2014, has
active status with the Pennsylvania Bar
Association, and is employed by Obermayer.
See The Disciplinary Board of the Supreme
Court of Pennsylvania, PA Attorney
Information: Alexander Victor Batoff,
http://www.padisciplinaryboard.org/lookup/pa-attorney-search.php (last visited Mar.
2, 2017) (listing bar number, status, date of
admission, and law firm). Given the lack of
more specific information in relator’s
submissions, however, the Court concludes
that $100 per hour is a reasonable rate for
Batoff. See Sass, 6 F. Supp. 3d at 261
(E.D.N.Y. 2014) (“Recent opinions issued by
courts within the Eastern District of New
York have found reasonable hourly rates to
be approximately . . . $100–$200 for junior
D. Fee Application
For his attorneys’ work on the instant fee
application, relator requests $51,132.50.
(Suppl. Leonard Decl. ¶ 18.) This amount reflects 55.80 hours billed by Leonard, 49.30
hours billed by Sutton, and 0.30 hours billed
by paralegals, all at the rates initially requested. (Suppl. Leonard Decl., Ex. B
(“Suppl. Billing Mem.”), at 1.) It also reflects
8.10 hours billed at a rate of $275.00 per hour
by attorney Alexander Batoff. Almost all of
this time was spent preparing Leonard’s declarations, Pepperman’s declaration, and the
two briefs relator filed in connection with this
motion. (See id. at 2–4.)
The Court concludes, in its discretion,
that relator is entitled to attorneys’ fees for
counsel’s work on the instant motion. See
Wilder v. Bernstein, 975 F. Supp. 276, 283
(S.D.N.Y. 1997) (“It is well settled that
reimbursement for the time spent by their
attorneys in preparing fee applications.”).
Nevertheless, as discussed above, the hourly
rates requested for this work are excessive
and shall be reduced accordingly to match the
rates that apply in the underlying action. In
addition, relator provides no information
about the credentials of Batoff, who billed at
In addition, the Court concludes that the
amount of time billed on this fee application
is excessive. First, Leonard and Sutton billed
10.1 and 49.3 hours, respectively, on the initial application, declarations, and briefing
even though, at that time, they had not received specific objections from defendants
regarding the fee requested. (See Suppl. Billing Mem. at 2–3.) 2 Rather than simply submitting their Billing Memorandum along
with a straightforward brief explaining why
the award sought was consistent with other
awards in the Eastern District, counsel submitted a lengthy brief that recounted in excessive detail the underlying qui tam proceeding,
The Court calculated this number as follows: The
lodestar amount for Leonard is $40,927.50, reflecting
96.3 hours (after the 10% reduction) at $425 per hour.
The lodestar amount for Sutton is $37,341, reflecting
124.47 post-reduction hours at a rate of $300 per hour.
Finally, the lodestar amount for the three paralegals is
$1,684.8, reflecting 18.72 post-reduction hours at a
rate of $90 per hour. Combined, the lodestar amount
for the underlying qui tam action is therefore
In his initial declaration, Leonard asserts that he
billed 13.8 hours and Sutton billed 41.6 hours in preparing the initial brief. (Leonard Decl. ¶ 24.) On review of the Supplemental Billing Memorandum, however, it appears that they billed 10.1 and 49.3 hours,
respectively, prior to submission of the motion on November 6, 2015. (See Suppl. Billing Mem. at 2–3.)
The Court concludes this was the time spent on the initial brief.
as well as the specific law that applied in that
proceeding. (See Pl.’s Mem. Law Supp. Mot.
for Attorneys’ Fees (“Pl.’s Br.”), ECF No.
22-4, at 1–8.) Then, in an attempt to preempt
defendants’ opposition, counsel explains why
a number of specific actions they took were
reasonable, even though, at that time, defendants had made no indication that they would
challenge those actions. (Id. at 13–16.) As
relator recognizes, this approach “required
research into a five and a half year period, and
it took time.” (Pl.’s Reply at 14.) The Court
disagrees, however, with the contention that
it was “reasonable and necessary.” (Id.) Instead, relator’s approach proved unnecessary,
as much of the argument in the opening brief
concerned issues that ultimately were not in
dispute. Attorneys as experienced as relator’s counsel should have recognized the dangers of such preemptive briefing, and, therefore, this approach was unreasonable. Consequently, the Court shall reduce the hours
billed on the initial brief (and its accompanying exhibits) by 75% (i.e., to 3.45 for Leonard
and to 12.325 for Sutton). See Big R Food
Warehouses v. Local 338 RWDSU, 896 F.
Supp. 292, 299 (E.D.N.Y. 1995) (awarding
“12 hours for the preparation of attorney’s
the underlying issues”). On the contrary, defendants’ arguments were fairly typical of an
attorneys’ fees motion, especially their arguments concerning the consistency of the requested rates with the usual rates in this district, the reasonableness of the hours, and
block billing. See, e.g., Houston v. Cotter,
No. 07-CV-3256 (JFB)(AYS), 2017 WL
587178, at *5–*12 (E.D.N.Y. Feb. 14, 2017)
(all of these arguments raised in opposition to
attorneys’ fees motion); Sheet Metal Workers’ Nat. Pension Fund v. Coverex Corp. Risk
Sols., No. 09-CV-0121 SJF ARL, 2015 WL
3444896, at *9 (E.D.N.Y. May 28, 2015)
(same); Bobrow Palumbo Sales, Inc. v.
Broan-Nutone, LLC, 549 F. Supp. 2d 274,
282 (E.D.N.Y. 2008) (same). Their most
unique argument—that the award should be
reduced in proportion to the settlement
amount—is also far from novel. See Kassim,
415 F.3d at 252 (“[W]e have repeatedly rejected the notion that a fee may be reduced
merely because the fee would be disproportionate to the financial interest at stake in the
litigation.”) Furthermore, as noted above,
counsel has several years’ experience litigating qui tam cases, which result in attorneys’
fees awards when successful. See Keshner,
794 F.3d at 237 (“Section 3730(d)(1) provides that a successful qui tam plaintiff shall
receive reasonable attorneys’ fees and
costs.”) This experience should have made
responding to these arguments a relatively
simple task. Thus, in light of the straightforward nature of the issues and counsel’s extensive experience, the Court concludes that
a 50% reduction on the time spent on the reply brief is warranted (i.e., to 20.25 for Leonard and to 2.7 for Batoff). See Big R Food
Warehouses, 896 F. Supp. at 299.
Once defendants filed their opposition
listing specific objections to the requested
award, relator’s counsel billed 46.9 hours
drafting a reply brief and its supporting documents, 3 which counsel characterizes as “a
completely new and different undertaking
compared to the opening brief.” (Pl.’s Reply
at 14.) Nevertheless, the issues raised were
far from complex or novel. See Mid-Hudson
Legal Servs. v. G & U, Inc., 465 F. Supp. 261,
273 (S.D.N.Y. 1978) (allowing over 200
hours on attorneys’ fee application based on
the “novelty, complexity and importance of
The remaining time was spent on
(1) communications about other subjects (0.2
Relator does not specify precisely how many hours
each attorney worked on the reply brief, but, on review
of the Supplemental Billing Memorandum, the Court
calculates that Batoff billed 5.4 hours on it, and Leonard billed 41.5 hours on it. (See Suppl. Billing Mem.
hours by Leonard), (2) the procurement of
documents from the Eastern District (0.3
hours by a paralegal), (3) Leonard’s pro hac
vice admission to the Eastern District (2.7
hours by Batoff), and (4) an opposition to defendants’ request for an extension of time to
file the opposition based on defense counsel’s family health issues (4 hours by Leonard). (See Suppl. Billing Mem. at 3.) The
Court concludes that the hours billed on the
first three tasks were reasonable, but the four
hours spent opposing a fairly routine extension request—which the Court granted—was
unreasonable, especially given that the opposition was barely over a page and included
two simple arguments (i.e., that the opposition was untimely and would have been futile). (See Response in Opposition, ECF No.
24; Order granting Motion for Extension of
Time to File Response/Reply dated December 2, 2015.) Therefore, those four 4 hours
will be deducted from the total.
1999); see also Commercial Union Assur.
Co., plc v. Milken, 17 F.3d 608, 613 (2d Cir.
Here, the FCA does not explicitly provide
for prejudgment interest on an attorneys’ fees
award. See 31 U.S.C. § 3730(d)(2) (“Any
such person shall also receive an amount for
reasonable expenses which the court finds to
have been necessarily incurred, plus reasonable attorneys’ fees and costs.”). In addition,
given the substantiality of the fee award, the
Court concludes that it adequately compensates relator’s counsel. Therefore, in its discretion, the Court declines to award prejudgment interest.
In his motion for attorneys’ fees and
costs, relator requests $1,127.68 in costs on
the underlying motion (Pepperman Decl.
¶ 5), and $4,018.67 in costs on the present fee
application (Suppl. Leonard Decl. ¶ 18).
Thus, the lodestar figure for the instant
fee application amounts to $14,422.4 The
Court finds this number fair and reasonable
and adopts it as the award for the instant fee
application. See Millea, 658 F.3d at 166.
“As for costs, a court will generally
award ‘those reasonable out-of-pocket expenses incurred by attorneys and ordinarily
charged to their clients.’” Pennacchio v.
Powers, No. 05-CV-985 (RRM)(RML), 2011
WL 2945825, at *2 (E.D.N.Y. July 21, 2011)
(quoting LeBlanc-Sternberg v. Fletcher, 143
F.3d 748, 763 (2d Cir. 1998)). “The fee applicant bears the burden of adequately documenting and itemizing the costs requested.”
Id.; see also First Keystone Consultants, Inc.
v. Schlesinger Elec. Contractors, Inc., No.
10-CV-696 (KAM)(SMG), 2013 WL
950573, at *10 (E.D.N.Y. Mar. 12, 2013)
(same). In particular, under Local Civil Rule
54.1, “the party must include as part of the
request ‘an affidavit that the costs claimed are
allowable by law, are correctly stated and
were necessarily incurred,’” and “[b]ills for
Relator also requests an assessment of
prejudgment interest on the award of attorneys’ fees from September 25, 2015, thirty
days following the signing of the settlement
agreement. In federal civil cases, interest is
awarded after the judgment. See 28 U.S.C.
§ 1961(a) (“Interest shall be allowed on any
money judgment in a civil case recovered in
a district court.”). Where the governing statute is silent on prejudgment interest, a district
court may award such interest in its discretion. See Bd. of Governors of Fed. Reserve
Sys. v. Pharaon, 169 F.3d 110, 114 (2d Cir.
The Court calculated this figure as follows: 23.9
hours for Leonard at $425 per hour for a total of
$10,157.50; 12.325 hours for Sutton at $300 per hour
for a total of $3,697.50; 5.4 hours for Batoff at $100
per hour for a total of $540; and 0.30 hours for paralegals at $90 per hour for a total of $27.
Thus, relator is awarded $1,312 in costs for
the present motion.
the costs claimed must be attached as exhibits.” D.J. ex rel. Roberts v. City of New York,
No. 11-CV-5458 (JGK)(DF), 2012 WL
5431034, at *9 (S.D.N.Y. Oct. 16, 2012)
(quoting Local Civ. R. 54.1(a)), report & recommendation adopted sub nom. Roberts v.
City of New York, 2012 WL 5429521
(S.D.N.Y. Nov. 7, 2012).
Accordingly, the Court awards plaintiff
$1,127.68 in costs for the underlying qui tam
action and $1,312 in costs for the instant motion.
As a threshold matter, defendants do not
object to an award of the $1,127.68 in costs
initially sought by plaintiff. In any event, the
Court has independently reviewed these costs
and examined the Billing Memorandum,
which explains the costs requested consist of:
(1) a $350.00 filing fee, (2) $415.30 in document imaging, (3) $6.32 in postage, (4)
$36.05 in telephone costs, (5) $288.71 in
travel expenses, (6) $1.00 in fax expenses,
and (7) $30.30 in messenger delivery, for a
total of $1,127.68. (Billing Mem. at 1–2.)
Having reviewed the Pepperman Declaration
and the accompanying bill for costs, the
Court determines these to be reasonable outof-pocket expenses.
In sum, the Court awards relator
$79,953.30 in attorneys’ fees and $1,127.68
in costs for the underlying qui tam action.
For the instant fee application, the Court
awards $14,422 in fees and $1,312 in costs.
In total, the award is $96,814.98. The Clerk
of the Court shall enter judgment accordingly
and close the case.
JOSEPH F. BIANCO
United States District Judge
The additional costs sought by relator in
connection with this fee application, however, are excessive. Relator has properly
itemized those costs, which consist of: (1)
$80.96 in messenger and delivery service, (2)
$283.60 in document imaging, (3) $14.84 in
telephone costs, (4) $30.41 in secretarial reimbursements, and (5) $3,608.86 in Lexis expenses. Although the first four costs are reasonable, out-of-pocket expenses, the Court
concludes that over $3,600 in legal research
costs—over three times the total costs sought
in connection with the underlying action—is
excessive. Thus, for the reasons discussed
above in connection with the Court’s reduction of attorneys’ fees for the instant motion,
the Court reduces this legal research cost by
75 percent. See Big R Food Warehouses, 896
F. Supp. at 299 (reducing award on fee application where issues were not complex).
March 6, 2017
Central Islip, NY
Relator is represented by William J. Leonard,
Esq., Kimberly Sutton, and Alexander Batoff
of Obermayer Rebmann Maxwell & Hippell,
LLP, One Penn Center – 19th Floor, 1617
John F. Kennedy Boulevard, Philadelphia,
PA 19103. Defendants are represented by
Stuart Weichsel of Kern Augustine Conroy &
Schoppman, P.C., 865 Merrick Avenue,
Suite 200, Westbury, NY 11590.
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