United States District Court, D. Kansas
UNITED STATES OF AMERICA ex rel BASHAR SEAN AWAD and CYNTHIA MCKERRIGAN, Plaintiffs,
COFFEY HEALTH SYSTEM, Defendant.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Bashar Sean Awad and Cynthia McKerrigan move for an award of
reasonable attorneys' fees, costs, and expenses incurred
pursuant to prosecuting claims against defendant Coffey
Health System on behalf of the United States of America under
the False Claims Act, 31 U.S.C. § 3729, et seq.
(“FCA”). (Doc. 26.)
January 15, 2016, relators filed a complaint in this
District, alleging violations of the FCA against defendant.
Relators served a disclosure statement upon the Department of
Justice (“DOJ”). The DOJ initiated an
investigation into the substance of the complaint, eventually
intervening in the action on May 23, 2019. The matter
resulted in a $250, 000 global settlement on the same day,
resolving relators' claims. The settlement provides for
recourse to court resolution if the parties are unable to
resolve disputes as to attorneys' fees. The parties were
unable to resolve their disagreements concerning
attorneys' fees, so relators' counsel (“fee
counsel”) submitted the matter to the court.
court concluded that fee counsel's pre-reply submissions
lacked detailed support for much of their requested award,
and their supporting affidavit, while helpful, did not
sufficiently enable court oversight. However, fee counsel did
submit more-detailed records on reply brief. Because this
timing denied defendant the ability to dispute particular
billing entries, the court ordered re-submission of detailed
support followed by supplemental briefing. Recognizing
defendant's concern that it had already briefed most of
the arguments relevant to this motion, the court relieved the
parties of re-briefing already-submitted arguments, limiting
briefing to “(1) hours that counsel believes to be
non-billable, and (2) other vagueness warranting a
reduction.” (Doc. 34, at 1.) The parties have
supplemented briefing as directed, and the court is ready to
the FCA, a prevailing party “shall also receive an
award an amount for reasonable expenses which the court finds
to have been necessarily incurred, plus reasonable
attorneys' fees and costs. . . . awarded against the
defendant.” 31 U.S.C. § 3730(d)(1). This case
resulted in a settlement of relators' FCA claims, and the
parties agree that relators are prevailing parties.
Accordingly, relators are entitled to compensation, subject
to ordinary scrutiny of reasonable attorneys' fees and
reasonable attorneys' fee award begins with a calculation
of the lodestar figure, “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate[.]” Anchodo v. Anderson, Crenshaw &
Assocs., L.L.C., 616 F.3d 1098, 1102 (10th Cir. 2010)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). The party seeking fees “bears the burden of
showing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Case
v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th
Cir. 1998) (citing Mares v. Credit Bureau of Raton,
801 F.2d 1197, 1201 (10th Cir. 1986)). With the aid of
meticulous and contemporaneous billing records, fee counsel
must “prove and establish the reasonableness of each
dollar, each hour, above zero.” Mares, 801
F.2d at 1210; see Jane L. v. Bangerter, 61 F.3d
15015, 1510 (10th Cir. 1995).
court must examine fee counsel's request and exclude any
hours that are inadequately supported or not reasonably
expended. See Hensley, 461 U.S. at 434;
Case, 157 F.3d at 1251-52. The court will
carefully scrutinize the total number of hours reported to
arrive at the number of hours that can reasonably be charged
to the losing party, much as a senior partner in a private
firm would review the reports of subordinate attorneys when
billing clients whose fee arrangement requires a detailed
report of hours expended and work done.
Joseph A. by Wolfe v. N.M. Dept. of Human Servs., 28
F.3d 1056, 1060 (10th Cir. 1994) (citing Ramos
v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983). This
review for “billing judgment” recognizes that
“hours that are not properly billed to one's
client are also not properly billed to one's
adversary pursuant to statutory authority.”
Hensley, 461 U.S. at 434 (citing Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)); see
also Pennsylvania v. Del. Valley Citizen's Council for
Clean Air, 478 U.S. 546, 565 (1986),
supplemented, 487 U.S. 711 (1987) (“if
plaintiffs . . . may engage a lawyer based on the statutory
assurance that he will be paid a ‘reasonable fee,'
the purpose behind the fee-shifting statute has been
counsel request compensation of $250, 118.75 in
attorneys' fees and $3, 586.55 in unreimbursed expenses
across 824.00 hours of work. For attorneys' fees, fee
counsel request compensation for four categories of
timekeepers: Mr. Seely, the partner on the case; Mr.
Templeton, an associate; paralegals; and several corporate
makes multiple challenges to fee counsel's request: (1)
duplicate billing and billing for non-billable work,
especially for conferences and strategy meetings; (2)
inadequate support for multiple entries due to excessive
redaction, block billing, and vagueness; and (3) unreasonable
rates requested for paralegals and “Corporate
Research” professionals. Fee counsel respond by
disagreeing on all counts and noting that significantly fewer
than the challenged “strategy meeting” entries
actually correspond to an inter-office strategy meeting. The
court addresses defendant's first two arguments now,
beginning with redaction.
is no per se rule mandating a reduction merely
because a party partially redacts some- or even many-entries.
Rather, redaction is merely one practice that can impact the
court's ability to determine and approve the hours
billed. In some instances, counsel's use of redaction
will be “inconsequential because the information
remaining [in the entries and on the record] is sufficient to
show the nature of the work performed by the
attorneys.” Flohrs v. Eli Lily & Co., No.
12-2439-SAC, 2013 WL 3947152, at *4 (D. Kan. July 31, 2013).
In others, redaction may be so great that the entry cannot
make the required showing. Id. (disallowing fees
when only remaining text was “Consider issue, ”
“forward to client, ” or party names); see
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