USDC IN/ND case 2:12-cv-00306-WCL-PRC document 117 filed 11/18/16 page 1 of 19
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF INDIANA
`HAMMOND DIVISION
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`Cause No.: 2:12-CV-306
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`THE UNITED STATES OF AMERICA, ex rel.
`BRADLEY STEPHENS,
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`Plaintiffs,
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`v.
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`DR. ARSHAD MALIK, AFZAL J. MALIK, and
`PRIME HEALTH CARE SERVICES, INC.,
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`Defendants.
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`OPINION AND ORDER
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`This matter is before the Court on the Petition for Attorney Fees and Expenses and
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`memorandum in support filed by Relator/Plaintiff Bradley Stephens (docket entries 107 and
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`108). Defendants Afzal Malik and Prime Health Care Services, Inc., filed a response to the
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`petition (DE 113) and Stephens filed a reply (DE 114). Shortly after Stephens filed his petition,
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`Defendants moved to strike it as untimely. Defendants’ Motion to Strike (DE 109). The Court
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`(Magistrate Judge Paul R. Cherry) denied the motion (DE 112). Stephens then filed a
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`Supplemental Petition for an Award of Attorney’s Fees and Costs (DE 115) and a supplemental
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`supporting memorandum (DE 116). The Defendants did not file a supplemental response and so
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`this matter is ripe for resolution.
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`For the reasons discussed below, the Court GRANTS the Petition for Attorney Fees and
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`Expenses (DE 107), GRANTS the Supplemental Petition for an Award of Attorney’s Fees and
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` All the substantive claims in this case have been settled, as discussed below. This fee
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`litigation involves only Stephens and Defendants Afzal Malik and Prime Health Care Services.
`Defendant Dr. Arshad Malik already paid his portion of Plaintiff’s fees and so is not a party to
`the present dispute.
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`USDC IN/ND case 2:12-cv-00306-WCL-PRC document 117 filed 11/18/16 page 2 of 19
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`Costs (DE 115), and awards the total sum $81,790.50. The Clerk of the Court is instructed to
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`enter judgment in favor of Relator/Plaintiff Bradley Stephens, and against Defendants Afzal
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`Malik and Prime Health Care Services, Inc., jointly and severally, in the amount of $81,790.50,
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`plus interest, at the prevailing legal rate, from April 29, 2016, until judgment is paid in full.
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`DISCUSSION
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`Stephens filed this qui tam action on August 1, 2012, under the False Claims Act, 31
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`U.S.C. § 3729 et seq. Complaint (DE 1), p. 1. Stephens alleged that Defendant Arshad Malik, an
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`Indiana physician, “violated the [FCA] by referring Medicare patients to Defendant Prime Health
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`Care Services, Inc. (a company solely owned by his brother, Defendant Afzal J. Malik) which, in
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`turn, billed Medicare for home health services in violation of the Stark Law, 42 U.S.C. §
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`1395nn(a)(1)-(2).” Petition for Attorney Fees, p. 1. The United States filed a Notice of Election
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`to Intervene in Part and Decline in Part on March 24, 2014 (DE 17) and joined this action as a
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`plaintiff. After nearly four years of litigation, the parties filed a joint Notice of Settlement on
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`April 20, 2016 (DE 104). The court entered an Agreed Order of Dismissal on April 29, 2016,
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`dismissing this case without prejudice and retaining jurisdiction (at the request of all parties) for
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`purposes of enforcing the settlement agreement. Order of Dismissal (DE 15), p. 1. The
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`enforcement of the settlement, at least as to plaintiff’s counsel’s fee award, is what brings this
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`matter before the Court.
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`In his petition, Stephens states that because “settlement was reached resolving all False
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`Claims Act claims between the Relator, the United States of America, and the Defendants[,] . . .
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` Damages in False Claims Act cases are assessed jointly and severally against culpable
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`defendants. United States v. Hughes, 585 F.2d 284, 286 (7th Cir. 1978). See also, Jones v.
`Southpeak Interactive Corp. of Delaware, 777 F.3d 658, 677 (4th Cir. 2015).
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`USDC IN/ND case 2:12-cv-00306-WCL-PRC document 117 filed 11/18/16 page 3 of 19
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`the Relator is now a prevailing party and, as such, is entitled to recover reasonable attorney fees
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`and expenses attributable to the False Claims Act claims” asserted in this case. Petition for
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`Attorney Fees, p. 1. Stephens claims that “[w]hile an agreement was recently reached with
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`Defendant Dr. Arshad Malik, all attempts to do so with Defendant Afzal J. Malik and Defendant
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`Prime Health Care Services, Inc., via their common counsel, have been unsuccessful.” Id., pp. 1-
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`2. Stephens requests that “his counsel be paid attorney fees of $73,078.50 ($93,078.50 minus the
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`$20,000.00 paid by Defendant Dr. Arshad Malik) and expenses of $2,497.00, plus interest from
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`the April 29, 2016[,] settlement and dismissal of the qui tam allegations in this case.” Id., p. 2.4
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`In their response brief, Afzal Malik and Prime Health Care challenge Stephens’ fee
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`petition first by renewing their argument that it “is time barred and it does not comply with trial
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` The False Claims Act provides that a prevailing plaintiff/relator in a qui tam action is
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`entitled to an award of “reasonable attorneys’ fees and costs[]” (regardless of whether the United
`States intervenes in the case). 31 U.S.C. § 3730(c)(d)(1) and (2). The Act also provides that the
`prevailing plaintiff/relator “receive an amount for reasonable expenses necessarily incurred, . . .”
`in prosecuting the action and that “[a]ll such expenses, fees, and costs shall be awarded against
`the defendant.” 31 U.S.C. § 3730(d)(1).
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` In his petition, Stephens also asks that his counsel “be paid the reasonable fees for time
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`expended in drafting and litigating this Petition for Attorney Fees and Expenses.” Petition, p. 2.
`He goes on to state that “[t]hough some of those hours and expenses have already been incurred
`and are thus part of this fee application, the total additional amounts cannot be ascertained until
`the litigation of this fee petition is completed. The Relator will itemize this time in his Reply
`memorandum, should it become necessary, or in a supplemental petition.” Id., p. 2, n. 1.
`Stephens’ footnote was apparently prophetic, given that the parties ended up litigating the
`Defendant’s Motion to Strike (referenced above). This was the reason Stephens filed his
`supplemental petition (DE 115), i.e., to recover additional fees incurred in responding to (and
`ultimately defeating) the Defendants’ motion and litigating this fee issue. See Memorandum in
`Support of Supplemental Petition (DE 116), p. 2. In his supplemental petition, Stephens asks the
`Court for “an additional award of . . . [$6,215.00] for time spent litigating his Fee Petition and for
`the preparation of” the filing of the supplemental petition and memorandum in support. Id. So,
`Stephens is asking for “total requested fees and costs for all work performed on the case” in the
`amount of $81,790.50, plus interest from the date of the settlement. Id.
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`rules and should be denied.” Defendants’ Response, p. 1. The Defendants don’t expressly state
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`that they are asking this Court to reconsider the Order entered by Magistrate Judge Cherry, in
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`which he denied their motion to strike (which was based on this same argument), but clearly
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`that’s what they are requesting. The Court has considered the Defendants’ arguments presented
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`in their brief but declines the invitation to reconsider or reverse the Court’s July 5, 2016, Opinion
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`and Order.
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`Aside from their argument that his petition was untimely, the Defendants concede that
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`Stephens is entitled to recover fees and costs. They do, however, raise challenges as to the
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`amount. This argument is twofold. First, the Defendants contend that the “fee request should be
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`decreased by $5,625.50 because the time requested to be reimbursed is unreasonable and would
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`compensate the relator for attorney time not actually spent on this case.” Defendants’ Response,
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`p. 2. Second, the Defendants argue that Stephens “requests to be reimbursed at an attorney rate
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`that is not reasonable because it is not his attorney’s actual rate [and] a credit of $7,937.50 should
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`be given the Defendants [sic].” Id., p. 3.
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`I. Original fee petition.
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`In his memorandum in support of his first petition for fees and costs, Stephens notes that
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`“courts typically calculate attorney’s fees in qui tam cases using the same standard as applied in
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`42 U.S.C. § 1988 civil rights actions and other matters involving federal statutes. This is
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`commonly referred to as the ‘lodestar method.’” Plaintiff’s Memorandum, p. 2 (citations
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`omitted). Stephens contends that his request for fees is based on a reasonable hourly rate and a
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`reasonable number of hours of work, thereby providing a “reasonable lodestar” for Plaintiff’s
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`request. Id., pp. 2-4. Stephens’ counsel submitted a declaration in support of the fee petition that
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`summarizes his qualifications and expertise in cases like this, his work on this case, and his
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`calculation of fees. Declaration of Travis W. Cohron (DE 108-1). Mr. Cohron also submitted a
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`spreadsheet itemizing the fees and expenses incurred in this case. Plaintiff’s Exh. (DE 108-2).
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`The Defendants’ first argument for a decrease in the amount requested by Stephens is
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`based on its brow raising contention that Stephens’ fee petition contains “altered entries” and
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`they attach what they claim is “a summary of those altered entries[.]” Defendants’ Response, p. 2
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`(citing Defendants’ Exhibits 113-1 and 113-2). As the Defendants explain it, “[t]hrough informal
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`discovery, [Stephens] provided to these Defendants a listing of time spent working on th[is]
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`case[.] [Stephens] now reports attorney time that has been increased from the actual time
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`recorded at the time the work was completed[.]” Id. In other words, the Defendants are claiming
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`that Stephens’ counsel is fudging the numbers and consequently his fee award should be reduced
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`“by $4,922.50” for “work performed before 2016 (3.5 years)[.]” Id. (The 3.5 years refers to the
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`period from the inception of this case through December 2015.) As to fees incurred for the period
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`from January through May 2016, the Defendants state that since Stephens “did not supplement
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`[his] informal discovery with entries for time after [December 2015] . . . defendants cannot make
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`a reasoned decision as to the reasonableness of the attorney time requested to be reimbursed.” Id.,
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`p. 3. Still, argue the Defendants, “[i]t is reasonable to assume that [Stephens] has reviewed all of
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`his counsel’s time entries and made adjustments. . . . These Defendants believe that the court can
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`reasonably make a downward adjustment of 14% of the 3.5 Year Adjustment, or $703.00.” Id.
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`Thus, the Defendants seek a reduction in the attorney fee in the amount of $5,625.50 ($4,922.50
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`for pre-2016 fees and $703.00 for the period from January through May of 2016).
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`Stephens maintains in his reply brief that the alleged “altered entries” the Defendants
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`refer to are nothing more than a legitimate billing adjustment. Plaintiff’s Reply, pp. 2-3. He
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`claims the discrepancies in the two documents are the result of his efforts to compromise his
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`attorney’s fees to facilitate settlement, and that the exhibits submitted by the Defendants reflect
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`those efforts (that is, the hours listed on the document that later became the Defendants’ exhibit
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`were lower because they were reduced to facilitate a settlement). Id. He also contends that the
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`exhibits submitted by the Defendants–the ones that evidence the alleged “altered
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`entries”–“should be stricken or disregarded as they are the product of confidential settlement
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`communications, made pursuant to [Federal Rule of Evidence] 408, not ‘informal discovery.’”
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`Id., p. 3. So, the Defendants accuse Stephens and his counsel of altering time records in order to
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`recover an unfairly high fee award, and Stephens retorts by accusing the Defendants of
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`misrepresenting the contents of a document they should not have disclosed in the first place.
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`As to Stephens’ argument that the Defendants’ exhibits should be stricken or disregarded,
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`the Court is not inclined to adopt either option. If in fact the Defendants received Stephens’
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`counsel’s fee summary during settlement negotiations then their use of the document now might
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`very well violate (at least the spirit of) Rule 408, as Stephens argues. Rule 408 states in relevant
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`part as follows:
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`Evidence of the following is not admissible–on behalf of any party–either to prove
`or disprove the validity or amount of a disputed claim or to impeach by a prior
`inconsistent statement or a contradiction:
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`(1) furnishing, promising, or offering–or accepting, promising to accept, or
`offering to accept–a valuable consideration in compromising or attempting to
`compromise the claim; and
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`(2) conduct or a statement made during compromise negotiations about the
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`claim[.] . . .
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`Fed.R.Evid. 408.
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`However, the Rule 408 prohibition is not absolute. As one district court pointed out:
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`Rule 408, however, has limits. First, as the last part of its text indicates, evidence
`regarding settlement negotiations is admissible if used for a purpose other than
`one of those expressly prohibited by the Rule. See PRL USA Holdings, Inc. v. U.S.
`Polo Ass’n, 520 F.3d 109, 114 (2d Cir. 2008) (“The exception clearly intends to
`exempt from the absolute prohibition of the Rule evidence focused on issues
`different from the elements of the primary claim in dispute.”).
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`Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, 739 F.Supp.2d 125, 129 (D.Conn.
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`2010). The court in Master-Halco noted the purpose of Rule 408:
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`The Rule “essentially forbids a court from basing adverse findings on a party’s
`concessions in settlement negotiations.” Rein v. Socialist People’s Libyan Arab
`Jamahiriya, 568 F.3d 345, 351 (2d Cir. 2009). As Judge Weinstein has explained,
`“[t]he Rule is based on the policy of promoting the compromise and settlement of
`disputes,” by taking into account “the reality that permitting the consideration of
`settlement offers as reflecting an admission of liability would discourage parties
`from discussing settlement or making settlement offers.” 2 Jack B. Weinstein &
`Margaret A. Berger, Weinstein’s Federal Evidence § 408.02[1] (Joseph M.
`McLaughlin ed., 2d ed.).
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`Id.
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`The issue of whether the Defendants violated Rule 408 by submitting the fee summary as
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`an exhibit, as well as the conjunctive issue of whether the document falls under the exemption to
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`Rule 408 (for example, since it is before the Court only for purposes of determining a reasonable
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`attorney fee award and not for purposes of challenging “the elements of the primary claim in
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`dispute”), are nuances that need not be addressed now. The Court did review the Defendants’
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`exhibit and did consider it, but only to the extent that it served to frame the Defendants’
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`argument (i.e., Stephens’ fee request should be reduced because it is not based on a fair or
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`accurate lodestar calculation). Also, the Defendants did not submit this document for purposes
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`clearly prohibited by the rule, such as to unfairly influence a jury for example, which Rule 408
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`would obviously forbid. In other words, the dangers Rule 408 is designed to prevent are not
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`present in the current dispute over fees and costs. For these reasons, the Court rejects Stephens’
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`request to strike or disregard the Defendants’ exhibits.
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`A. Hourly billing rate.
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`Stephens explains in his reply brief that during the course of this litigation his hourly
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`billing rate was increased from $250 per hour, the rate he was charging when this case began, to
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`$275 per hour, and he used the latter figure when he submitted his fee petition. Stephens argues
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`that “a large number of . . . Supreme Court and Seventh Circuit cases have permitted use of
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`current billing rates . . .” since doing so “allows for the avoidance of complex interest
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`calculations while still acknowledging the time value of money and the requisite reasonableness
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`standard.” Id., p. 2 (citing Skelton v. General Motors Corp., 860 F.2d 250, 255 n. 5 (7th Cir.
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`1988)) (“The courts in this circuit generally use current rates.”) (additional citations omitted).
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`Finally, Stephens requests that “in the event the Court disagrees with the foregoing and elects to
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`utilize the lower Lodestar rate, . . . Stephens respectfully requests interest be assessed and added
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`to any ultimate award of attorney’s fees and costs.” Id., p. 3.
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`Both Stephens and the Defendants cite and rely on the case of Denius v. Dunlap, 330 F.3d
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`919 (7th Cir. 2003) to support their positions with regard to the hourly rate issue. The Defendants
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`say the case holds that attorney fee awards should be based on the hourly rate the plaintiff’s
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`attorney charged at the time work was done, not at a higher hourly rate that the attorney might be
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`charging at the time a request for fees is made. Defendants’ Response, p. 3. Stephens says that
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`the Defendants’ interpretation of Denius “is simply false. While it is true the Denius court
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`ultimately upheld the district court’s refusal to accept the petitioner’s current rate in its Lodestar
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`calculation, it did so because of the contradicting and insufficient evidence offered in support.”
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`Plaintiff’s Reply, p. 2. Stephens is correct that the Seventh Circuit in Denius found that the
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`district court was within its discretion to award attorney’s fees at a lower hourly rate based on the
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`fact that the petitioner’s evidence in support of his requested higher rate contained contradictions.
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`But the Denius case does not, as the Defendants argue (or at least imply), prohibit an award
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`based on a higher or current hourly rate, so long as that rate is reasonable and supported. As
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`Stephens points out, in this case “there is no such contradiction or discrepancy nor do the
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`Defendants contend the sought rate ($275.00) is inherently unreasonable.” Id.
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`Stephens cites several cases to support his argument. In Skelton, for example, the Seventh
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`Circuit noted as follows:
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`The Third Circuit also allows an upward adjustment of the lodestar to compensate
`attorneys for the delay in payment, when litigation extends over several years, and
`for the quality of the representation. In re Fine Paper Antitrust Litigation, 751
`F.2d 562, 583–84 (3d Cir. 1984). . . . This should be reflected in the lodestar in
`the form of a high hourly rate. Delay in payment may be compensated in either of
`two ways: (1) by using the attorneys’ current rates (as the district court did here);
`or (2) by using historical rates plus a prime rate enhancement. The courts in this
`circuit generally use current rates.
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`Skelton, 860 F.2d at 255 n. 5. This Court addressed this same issue in the case of Greenfield
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`Mills, Inc. v. Carter, and explained as follows:
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`There appear to be two methods of adjusting the lodestar to account for a delay in
`payment. The district court may compensate for a delay in payment either by
`applying an attorney’s current rates to all hours billed during the course of
`litigation, or by using attorney’s historical rates and adding a prime rate
`enhancement. See In re Washington Public Power Supply Sys. Secs. Litigation, 19
`F.3d 1291, 1305 (9th Cir. 1994); Fischel v. Equitable Life Assur. Soc’y, 307 F.3d
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`997, 1010 (9th Cir. 2002). This court has utilized the first of the two methods
`assuming a current hourly rate for [counsel] and adjusting upward to account for
`the delay in payment. See [Trustees of Chicago Plastering Inst. Pension Trust v.]
`Cork Plastering, Inc., 2008 WL 728897, at *2 (N.D. Ill. Mar. 18, 2008) (holding
`that case law within the Seventh Circuit supports paying an attorneys’ fees award
`at current billing rates).
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`Greenfield Mills, Inc., 569 F.Supp.2d 737, 758 (N.D. Ind. 2008). More recently, another district
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`court addressed this fee issue in Young v. Verizon’s Bell Atl. Cash Balance Plan, noting that the
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`use of “current hourly rates” in a lodestar calculation is an acceptable way to calculate an
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`attorney fee award in a case that has spanned several years. The court explained as follows:
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`Plaintiff also requests that the Court apply her lawyers’ current hourly rates to the
`entire period back to 2006, as an adjustment for delay in payment. The Supreme
`Court has held that “[a]n adjustment for delay in payment is . . . an appropriate
`factor in the determination of what constitutes a reasonable attorney’s fee.”
`Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).
`Trial courts may effect this adjustment by calculating the lodestar amount with
`“either current rates or past rates with interest.” Mathur v. Bd. of Trustees of S. Ill.
`Univ., 317 F.3d 738, 744–45 (7th Cir. 2003). This Court will apply current hourly
`rates to account for the delay in payment.
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`Young, 783 F.Supp.2d 1031, 1038 (N.D.Ill. 2011).
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`These cases make clear that Stephens is correct that a higher hourly rate is an acceptable
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`rate to use in a lodestar calculation in cases such as this. Accordingly, the Defendants’ objection
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`to Stephens’ counsel’s use of an hourly rate of $275.00 to calculate his fee award is overruled.
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`B. Number of hours billed.
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`That only resolves part of the matter, since the Defendants’ challenge to Stephens’ fee
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`petition questions not only his hourly rate, but also the number of hours Stephens’ counsel used
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`to calculate his fee request. This discrepancy is illustrated by the differences in the fee summary
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`Stephens gave to the Defendants (either during “informal discovery” or, as he says, as part of
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`settlement negotiations), and the fee petition he filed of record. A few examples will make this
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`issue clear.
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`In his fee petition Stephens’ counsel included two entries for June 1, 2012. Plaintiff’s
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`Exh. (DE 108-2), p. 1. The first entry is for 5.5 hours and includes the following notation: “cont
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`research on relevant Stark/FCA provisions; pull records to pin down ownership issue and
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`relationship between parties.” Id. The second entry on that same date is for 8.5 hours and
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`includes the following notation: “cont drafting Complaint and research on ACA/Stark issue;
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`explore Rule (9) pleading requirements; conf w/SAH.” Id. The fee summary Stephens gave to the
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`Defendants earlier in this case also includes two entries for June 1, 2012, which include the same
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`notations, but the hours assigned to those entries are 2.1 hours and 4.5 hours, which obviously is
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`7.4 hours less than what appears on Stephens’ fee petition. Defendants’ Exh. (DE 113-1), p. 1.
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`Also in his fee petition, Stephens’ counsel included four entries for work performed on May 15,
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`2015, totaling 3.8 hours. Plaintiff’s Exh., p. 4. In the Defendants’ exhibit, those same entries total
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`1.8 hours. Defendants’ Exh., p. 5. All told, the Defendants list 10 individual entries they claim
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`were inflated, for a total of 17.9 hours (which, at $275.00 per hour, totals $4,922.50, the amount
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`the Defendants want deducted from counsel’s fee request for pre-2016 fees).
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`Those examples make clear that Stephens’ counsel not only calculated his attorney’s fees
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`using a higher hourly rate than he was charging when this case began, which is perfectly
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`legitimate, but also apparently changed the number of hours he claims he worked on this case, at
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`least as to certain dates. The Defendants do not accuse Stephens’ counsel of anything untoward,
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`at least not expressly, arguing simply that Stephens’ fee petition “does not accurately reflect the
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`time actually worked and reported at the time the work was done.” Defendants’ Response, p. 2.
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`The Defendants then state that the discrepancies reveal that Stephens’ counsel “reviewed his
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`history of billings and made adjustments not based on actual time spent, but instead on some
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`unknown, unexplained and less reliable measure.” Id., p. 3. Stephens, however, insists that “if
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`any alteration did occur, it was done to promote a resolution to the issue of attorney fees and
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`overall settlement of the . . . case[.]” Plaintiff’s Reply, p. 3.
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`The Court did some arithmetic to determine where things really stand. Litigation is
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`expensive and so it is important for courts to help facilitate settlement, often by making sure the
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`parties in a suit aren’t jumping over dollars to argue about dimes. Unfortunately, to an extent,
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`that is what is happening here.
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`Stephens asks for fees of $73,078.50 ($93,078.50 minus the $20,000.00 already paid by
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`Defendant Dr. Arshad Malik). His formula for calculating that amount is 347.5 hours x $275/hr =
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`$95,562.50 (but since some of those hours were billed at a lower rate of $137.50 the total ended
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`up being $93,078.50). Stephens is also seeking supplemental fees of $6,215.00 (22.6 hours x
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`$275/hr) for the period from May 13, 2016, when he prepared his fee petition, to August 8, 2016,
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`the date he filed his supplemental petition. This totals $79,293.50, the total amount of attorney’s
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`fees Stephens’ counsel is seeking. Adding expenses of $2,497.00 equals a total sum of
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`$81,790.50, which is the total Stephens is seeking for fees, costs, and expenses.
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`Stephens’ fee petition indicates his counsel spent approximately 80 hours on this case
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`from January 13, 2016, up to and including May 13, 2016. Plaintiff’s Exh., pp. 9-14. He also
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`claims he worked on this case for a total of 347.5 hours from inception to May 13, 2016.
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`Subtracting 80 hours from 347.5 hours equals 267.5 hours, which is the number of hours
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`Stephens’ counsel says he spent on this case in total from May 10, 2012 (the date he began
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`billing) through December 2015. The Defendants argue that the fee summary they were given
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`totals only 232.2 hours of work for the same period. Defendants’ Exh., p. 11. The Defendants
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`argue that the fee award for the pre-2016 work should be $58,050.00 (232.2 hours x $250/hr).
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`But since Stephens and his counsel are entitled to use an hourly rate of $275 to calculate
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`attorney’s fees, they would receive $63,855.00 if the Defendants’ calculation of hours were
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`accepted (232.2 hours x $275/hr). Again, Stephens is asking for $73,078.50 for the same time
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`period, so now the parties are arguing over a difference of $9,223.50. That’s a fair chunk of
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`change, but whether it warrants months of litigation is questionable.
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`Finally, the Defendants contend that any award to Stephens for post-2015 fees, incurred
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`during the period from January through May 2016 should be reduced by $703.00, or 14% of the
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`$4,922.50 they argued should be deducted from the amount awarded for pre-2016 fees.
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`Defendants’ Response, p. 3. This is a curious argument, both mathematically and substantively.
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`First of all, $703.00 is not 14% of $4,922.50 (that would be $689.15). Also, the Defendants do
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`not explain how they arrived at the 14% figure, i.e., what its significance is. It would seem
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`logical that the 14% would refer to the number of “altered entries” the Defendants claim appear
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`in the fee petition, expressed as a percentage of the overall number of entries. In other words, if
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`Stephens’ attorney altered 14% of his billing entries for work done through the end of 2015, then
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`the same percentage could be assumed to be altered in his 2016 entries. But if this were the case
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`then it would seem that the Defendants should be asking for a 14% “across-the-board” reduction
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`in counsel’s 2016 fee request, rather than 14% of the reduction requested as to his pre-2016 fees.
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`The total reduction the Defendants seek is $13,563.00 (see Plaintiff’s Response, p. 4), which is
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`darn close to 14% of the total amount Stephens is requesting (14% of $93,078.50 is $13,030.99),
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`so perhaps that is where the 14% figure came from. But again, if that were the case, it would still
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`USDC IN/ND case 2:12-cv-00306-WCL-PRC document 117 filed 11/18/16 page 14 of 19
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`seem that the Defendants should be asking for a 14% across-the-board reduction of counsel’s
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`post-2015 fees, instead of 14% of $4,922.50. Be that as it may, an across-the-board reduction is
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`not what the Defendants are asking for; they ask only for a reduction of $703.00 as to counsel’s
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`requested fees for the period from January through May 13, 2016.
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`The Defendants maintain that this $703.00 reduction will account for discrepancies (or
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`altered entries, as they characterize them) that the Defendants assume must be present in
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`counsel’s 2016 billing entries since they were present in his pre-2016 entries. The Defendants
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`state that Stephens “did not supplement [his] informal discovery” with billing records reflecting
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`his hours worked on this case in 2016, but that nonetheless they “believe that the Court can
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`reasonably make a downward adjustment of . . . $703.00.” Defendants’ Response, p. 3. So, the
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`Defendants ask this Court to reduce Stephens’ fee request based on their assumption that
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`Stephens’ counsel inflated his 2016 fees by $703.00 even though they have no evidence
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`whatsoever to indicate that any of counsel’s 2016 billing entries were “altered.” They try to
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`blame Stephens by stating that he did not supplement his “informal discovery” and so they are
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`unable to point to specific altered entries, as they claimed to have done with the pre-2016 entries.
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`The Defendants are trying to convince this Court that “[i]t is reasonable to assume” that Stephens
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`altered his 2016 billing records and so the argument they employ as to the pre-2016 fees should
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`apply equally to all fees claimed anytime during 2016.
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`The Defendants’ objections to Stephens’ fee petition are based on conclusory allegations,
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`speculation, and assumptions. They fail to establish that the fees requested are unreasonable in
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`any way that would warrant reducing them. Instead, they resort to a sort of “this doesn’t look
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`right, so reduce it so it’s fair to us” argument, which is an insufficient basis for their objections.
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`USDC IN/ND case 2:12-cv-00306-WCL-PRC document 117 filed 11/18/16 page 15 of 19
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`What is really absurd is that the Defendants are asking the Court to reduce Stephen’s counsel’s
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`fee request for January through May of 2016 by $703.00, while his petition requests nearly
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`$22,000.00 for that time period (approximately 80 hours x $275/hr). See Plaintiff’s Exhibit (DE
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`108-2), pp. 9-14. This is what the Court means by jumping over dollars to argue about dimes.
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`To sum up, the Defendants argue that Stephens’ “fee request should be decreased by
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`$5,625.50 [$4,922.50 for pre-2016 and $703.00 for January through May of 2016] because the
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`time requested to be reimbursed is unreasonable and would compensate the relator for attorney
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`time not actually spent on this case.” Defendants’ Response, p. 2. This argument is based on the
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`discrepancies between the fee summary Stephens gave to the Defendants during settlement
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`negotiations and the fee petition he filed with the Court.
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`In support of his fee petition, Stephens’ counsel submitted his sworn declaration
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`itemizing his fees (and also noting his experience and expertise in civil rights cases). Declaration
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`of Travis W. Cohron (DE 108-1). He also submitted his detailed billing statement (DE 108-2).
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`He explains in his briefs that the discrepancies between the fee summary he gave to the
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`Defendants and the official, sworn fee petition he filed with the Court were the result of his
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`attempts to compromise his fee amount in an attempt to settle this case. And, as Stephens points
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`out, the claims in this case were settled–for the substantial sum of $2.5 million dollars. Plaintiff’s
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`Petition, p. 1. The Defendants’ argument that Stephen’s counsel’s fee award should be reduced is
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`based on a document they received earlier in this case (again, either during “informal discovery”
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`or during settlement negotiations) that reflects a lower number of total hours worked on this case
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`than does Stephen’s filed fee petition. This argument has a visceral appeal at first given the
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`discrepancies between the parties’ respective exhibits. But a closer look reveals that the
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`USDC IN/ND case 2:12-cv-00306-WCL-PRC document 117 filed 11/18/16 page 16 of 19
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`Defendants’