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United States ex el. Awad v. Coffey Health System

United States District Court, D. Kansas

December 19, 2019

UNITED STATES OF AMERICA ex rel BASHAR SEAN AWAD and CYNTHIA MCKERRIGAN, Plaintiffs,
v.
COFFEY HEALTH SYSTEM, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         Relators 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.)

         I. FACTUAL BACKGROUND

         On 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.

         The 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.[1] 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 rule.

         II. LEGAL STANDARDS

         Under 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 costs.

         A 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).

         The 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 satisfied.”).

         III. DISCUSSION

         Fee 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 research staff.

Timekeeper
Hours
Seely
149.50
Templeton
396.75
Paralegals
41.75
Corporate Research
236.00
Total
824.00

         Defendant 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.

         A. Redactions

         There 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 Heavy Petroleum Partners, LLC v. ...


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