451 F.Supp.3d 657
E.D. La.2020Background
- Multiple relators (McNeil, Lawson, Green, Church, Bergeron, Outerbridge) filed qui tam actions alleging AKS and Stark Act violations for inducements to order unnecessary pharmacogenetic tests; the government investigated and intervened.
- Parties reached a global settlement (2019) allocating recovery among defendants (UTC majority, plus Jolly, Griffith, Ridgeway); the later Relators Settlement Agreement awarded relator shares only to Bergeron and McNeil.
- Several relators (all except Outerbridge) moved for attorneys’ fees, costs, and expenses under 31 U.S.C. § 3730(d)(1); the Court considered entitlement and the reasonableness of requested fees.
- The Court applied the lodestar method (hours × reasonable local rates), examined billing entries for vagueness, block-billing, clerical tasks, and whether counsel exercised billing judgment.
- Rulings: Lawson, Green, and Church denied fees (they received no share); McNeil awarded $48,558 in fees and $3,194.43 in costs (paid by Jolly and UTC); Bergeron awarded $64,040 in fees and $1,083.42 in costs (paid jointly and severally by Jolly, Griffith, Ridgeway, and UTC).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to § 3730(d)(1) attorneys’ fees for relators who were party to settlement but received no relator share | All relators who litigated consolidated/grouped claims are entitled to recover fees and costs from defendants when defendants settle the group of cases | § 3730(d)(1) awards apply only to relators who actually received a payment from the proceeds; those who recovered nothing are not entitled to fees | Only relators who received a share (McNeil, Bergeron) may recover attorneys’ fees, costs, and expenses; Lawson, Green, Church denied |
| Proper method to calculate reasonable fees | Lodestar (hours × reasonable rate), with adjustments reflecting counsel’s experience and claimed rates | Lodestar using prevailing local (E.D. La.) rates; reduce hours/rates for vague entries and nonlocal/home rates absent necessity | Court used lodestar, set rates to local prevailing market, and declined upward/downward Johnson adjustments beyond lodestar presumption |
| Reductions for vague entries, block-billing, clerical work, and failure to show billing judgment | Fee applicants’ billing records are reasonable and reflect necessary work; some unbilled time was submitted as evidence of billing judgment | Many entries are vague, block-billed, clerical, or inadequately documented; apply line-item exclusions or percentage reductions for lack of billing judgment | Court excluded specific vague/clerical entries (e.g., many “conference w/ client” and clerical paralegal tasks), and reduced Bergeron’s total hours by 10% for lack of billing judgment |
| Allocation of fee liability among multiple settling defendants (joint & several liability) | Fees should be assessed against defendants from whom a relator received a share (proportional responsibility) | Joint and several liability is appropriate where covered conduct is common and defendants played substantial roles; fee statutes do not limit recovery to payor of relator share | Court imposed joint and several liability: McNeil’s award against Jolly and UTC; Bergeron’s award jointly and severally against Jolly, Griffith, Ridgeway, and UTC |
Key Cases Cited
- U.S. ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899 (5th Cir.) (qui tam framework under the FCA)
- United States v. U.S. ex rel. Thornton, 207 F.3d 769 (5th Cir.) (government intervention in qui tam actions)
- U.S. ex rel. Longhi v. United States, 575 F.3d 458 (5th Cir.) (§ 3730(d) share percentages guidance)
- United States ex rel. Sharma v. Univ. of S. California, 217 F.3d 1141 (9th Cir.) (attorneys’ fees and costs awarded against defendants, separate from proceeds)
- United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir.) (fees assessed against defendants rather than taken from proceeds)
- Johnson v. Georgia Highway Express, Inc., 488 F.2d 715 (5th Cir.) (factors for adjusting lodestar)
- City of Burlington v. Dague, 505 U.S. 557 (1992) (strong presumption that lodestar is reasonable)
- Blum v. Stenson, 465 U.S. 886 (1984) (prevailing market rates and burden to prove them)
- Saizan v. Delta Concrete Prod. Co., 448 F.3d 795 (5th Cir.) (degree of success is critical in fee awards)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (billing judgment and exclusion of vague entries)
- United States ex rel. Drummond v. BestCare Lab. Servs., L.L.C., 950 F.3d 277 (5th Cir.) (joint and several liability under the FCA)
- United States v. Aerodex, Inc., 469 F.2d 1003 (5th Cir.) (permitting joint and several liability for damages and fees)