United States District Court, E.D. Louisiana
UNITED STATES OF AMERICA, ex rel. ERICA BOOGAERTS, ET AL.
VASCULAR ACCESS CENTERS, L.P., et al.
ORDER AND REASONS
E. FALLON, UNITED STATES DISTRICT JUDGE.
the Court is Relators' Motion for Attorneys' Fees. R.
Doc. 17. The motion is unopposed. Having considered
Relators' motion, exhibits, and the applicable law, the
Court now issues this Order and Reasons.
Boogaerts and Chad Edwards (collectively,
“Relators”) brought this qui tam action
against Vascular Access Centers, L.P. (“VAC”) and
twenty-two affiliate entities, alleging that they (1) billed
Medicare for noncovered vascular surgery procedures; (2)
engaged in a physician-investor referral scheme for
designated health services in violation of the Anti-Kickback
Statute and the Stark Law; and (3) entered into medical
directorship agreements that were illegally designed to
induce patient referrals in violation of the Anti-Kickback
United States intervened in part in this action and in an
earlier qui tam action with similar allegations
filed against many of the same defendants in the United
States District Court for the Southern District of New York.
Both actions were settled through a Consent Judgment in which
VAC agreed to pay a minimum of $3.825 million and a maximum
of $18, 360.794 if certain contingencies are triggered.
Counsel for Relators now request an order granting $156,
564.00 in fees and costs. The motion is not opposed.
LAW AND ANALYSIS
successful relator in a qui tam action shall
“receive an amount for reasonable expenses which the
court finds to have been necessarily incurred, plus
reasonable attorneys' fees and costs. All such expenses,
fees, and costs shall be awarded against the
defendant.” 31 U.S.C. § 3730(d)(1).
courts have followed the “lodestar” method
typically followed under other fee-shifting statutes in
calculating attorneys' fees in qui tam actions.
United States ex rel. Burr v. Blue Cross & Blue
Shield of Florida, 882 F.Supp. 166, 169 (M.D. Fla. 1995)
(collecting cases). The lodestar is “the product of
reasonable hours times a reasonable rate, ” and the
Supreme Court has “established a ‘strong
presumption' that the lodestar represents the
‘reasonable' fee.” City of Burlington v.
Dague, 505 U.S. 557, 559, 562 (1992).
for Relators attach time records showing that they have spent
525.45 hours preparing for and litigating this case. R. Doc.
17-3. Given the complexity of this case and the issues
involved, the Court finds that the hours expended in this
case are reasonable. Additionally, counsel for Relators hired
a third-party, Mr. Stephen J. Herman, to independently review
counsel's fee request. R. Doc. 17-4. Mr. Herman provided
a declaration that “the time entries reflected on the
Detail Fee Transaction List are consistent with the type of
entries [he] would expect to see in this type of case,
” and that in his opinion, the rates claimed are
request an hourly rate of $350 for Conrad Meyer and $300 for
Preston Hayes and Ryan Monsour, all equity partners at the
Chehardy Sherman Williams law firm. An appropriate hourly
rate is determined according to the prevailing rates in the
relevant legal market. McClain v. Lufkin Indus.,
Inc., 649 F.3d 374, 381 (5th Cir. 2011). Mr. Meyer has
practiced law for 18 years and is in charge of his own
healthcare practice group at the Chehardy Sherman Williams
law firm. In a case like this one, $350 is a reasonable
hourly rate for an attorney of Mr. Meyer's experience and
is within the range of prevailing market rates. Similarly,
Mr. Hayes and Mr. Monsour have practiced law for 14 and 11
years, respectively, and a rate of $300 per hour is
reasonable for attorneys with their experience in this
market. See, e.g., Funez v. EBM,
2018 WL 5004806, at *4 (E.D. La. Oct. 16, 2018) (finding a
partner rate of $350 per hour reasonable); Soonhee Kim v.
Ferdinand, 2018 WL 1635795, at *4 (E.D. La. Apr. 5,
2018) (finding $410 per hour “typical for partners in
this community”); Dadar v. T&C Marine,
L.L.C., 2018 WL 3950396, at *6 (E.D. La. May 3, 2018)
(finding $350 hourly rate reasonable in this market); M C
Bank & Tr. Co. v. Suard Barge Serv., Inc, 2017 WL
6344021, at *2 (E.D. La. Dec. 12, 2017) (finding partner
rates of $395 and $350 per hour reasonable). Furthermore,
counsel for Relators voluntarily reduce the fee sought to
$156, 564.00 in an exercise of sound billing judgment.
determining the lodestar, the court may consider the
applicability and weight of the twelve Johnson
factors: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved 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.
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). “[O]f the Johnson
factors, the court should give special heed to the time and
labor involved, the customary fee, the amount involved and
the result obtained, and the experience, reputation and
ability of counsel.” Migis v. Pearle Vison,
Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citation
omitted). After Johnson was decided, the
“Supreme Court has barred any use of the sixth factor,
” whether the fee is fixed or contingent. Walker v.
U.S. Dep't of Hous. & Urban Dev., 99
F.3d 761, 772 (5th Cir. 1996) (citing City of
Burlington, 505 U.S. at 567).
of the Johnson factors supports the reasonableness
of the requested $156, 564.00. This case required a
substantial time commitment and the Chehardy Sherman Williams
law firm expended over 500 hours preparing for and litigating
the case. Qui tam cases are often inherently complex
and challenging, and this case was no exception - counsel for
Relators were required to evaluate highly detailed factual
situations and a highly complex statutory and regulatory
regime. The resulting settlement was clearly a success for
Relators - Defendants will pay a minimum of $3, 825, 000.00
and a maximum of $18, 360, 794.00 if certain contingencies
are triggered, and Relators were awarded a share of the