United States District Court, E.D. New York
United States EX REL. Joseph F. Tommasino, P.A., PhD, ET AL., Plaintiffs,
Anthony A. Guida, M.D., ET AL., Defendants.
MEMORANDUM AND ORDER
F. BIANCO United States District Judge.
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 also seeks $51,
132.50 in attorneys' fees and $4, 017.67 in costs in
connection with the instant fee application. (ECF No. 28.)
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.
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 U.S.C. 3730(d)(1)).
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
Hens-ley 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).
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 reduction 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
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).
other hand, the Second Circuit has “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.” 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 quitam 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).
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 by the relator, it
would discourage attorneys from investing the time and
resources necessary to bring a quitam 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 expenditures.”).
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 As-socs., No.
09-CV-3282 JBW, 2011 WL 5118438, at *9 (E.D.N.Y. Oct. 27,
2011) (awarding over $80, 000 in attorneys' fees despite
jury award of only $500); CDW-Gov-ernment, 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.
Reasonable Hourly Rates
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.'” Berger-son
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
(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) 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.
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.
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.
Ayken, Inc., No. 11-CV-3303 (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 factors 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,
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. at 4-5.)
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. ¶ 25.)
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 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); Bar-kley 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.
argues, however, that such a high rate is consistent with
U.S. ex rel. Doe v. Ac-upath 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 Sa-dowski had extensive expertise in
qui tam cases and healthcare fraud, having served as
the Health Care Fraud Coordinator in the U.S. ...