MEMORANDUM DECISION and ORDER I. INTRODUCTION On November 8, 2016, relator Barbara Lopez (“Lopez” or “relator”) brought this qui tam action on behalf of the United States of America and the State of New York against defendants Nassau Pharmacy, Inc. and Cathy Grossman (collectively “defendants”) alleging that defendants committed health care claims fraud in violation of the False Claims Act (“FCA”) and related state law. On May 20, 2019, the parties1 entered into a Settlement Agreement in which defendants agreed to pay $56,297.00 to the United States and $43,703.00 to the State of New York to resolve all of the FCA violations alleged by Lopez. Dkt. No. 18. Relator herself received $12,385.34 from the United States and $9,614.88 from the State of New York as a result of this written agreement. Id. However, the settlement explicitly reserved relator’s right to “recover expenses, costs or attorneys’ fees” under 31 U.S.C. §3730(d). Id. 8. On May 20, 2020, Lopez moved for fees and costs under Federal Rule of Civil Procedure (“Rule”) 54 and 31 U.S.C. §3730(d), a fee-shifting provision for qui tam plaintiffs found in the FCA. According to plaintiff, an award of reasonable fees and costs is warranted in light of her status as a “prevailing party.” Defendants have opposed plaintiff’s request, which has been fully briefed and will be considered on the basis of the submissions without oral argument. II. DISCUSSION2 Lopez seeks an award of $64,832.80 in attorneys’ fees and costs in the amount of $506.00, plus interest3 running from the settlement date of May 20, 2019. Pl.’s Mem., Dkt. No. 21-1, 5.4 Relator also seeks an additional $14,300.00 in fees associated with the time spent litigating this contested motion. Id. at 11. A. Reasonable Fee for the Litigation “Under the False Claims Act, a qui tam plaintiff who obtains a settlement with a defendant is entitled to an award of reasonable attorneys’ fees and costs.” United States ex rel. Keshner v. Nursing Personnel Home Care, 794 F.3d 232 (2d Cir. 2015) (citing 31 U.S.C. §3730(d)(1)). “To determine a reasonable amount of attorneys’ fees, courts use the lodestar method — the product of a reasonable hourly rate and the hours reasonably spent on the case.” United States ex rel. Rubar v. Hayner Hoyt Corp. (“Rubar”), 306 F. Supp. 3d 478, 488 (N.D.N.Y. 2018) (Sharpe, J.) (citations omitted); see also Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (observing that the Second Circuit and the Supreme Court have held that the lodestar calculation creates a “presumptively reasonable fee”). The “reasonable hourly rate” is determined by reference to “what a reasonable, paying client would be willing to pay.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany (“Arbor Hill”), 522 F.3d 182, 184 (2d Cir. 2008). As the Second Circuit has explained, “the reasonable, paying client” is one “who wishes to pay the least amount necessary to litigate the case effectively.” Id. To make that determination, the district court should consider a number of factors, including but not limited to: the complexity and difficulty of the case, the availability expertise and capacity of the client’s other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself,…and other returns (such as reputation, etc.) that an attorney might expect from the representation. Arbor Hill, 522 F.3d at 184. Going beyond this non-exclusive list of factors, district courts enjoy substantial discretion in determining an appropriate fee award, and “may use estimates based on their overall sense of a suit.” Rubar, 306 F. Supp. 3d at 489; see also Fox v. Vice, 563 U.S. 826, 838 (2011) (“The essential goal in shifting fees…is to do rough justice, not to achieve auditing perfection.”). Indeed, a district court may even use a “percentage deduction of the requested fees ‘as a practical means of trimming fat from a fee application[.]‘” Rubar, 306 F. Supp. 3d at 489 (quoting McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006)). Lopez has submitted two declarations and a consolidated timekeeping record in support of her requested fees. The first declaration belongs to David R. Ross, a senior shareholder in the firm who has been admitted to practice since 1991. Ross Decl., Dkt. No. 21-2,
1, 13-14. As Mr. Ross explains, he was the supervising attorney responsible for handling relator’s case. Id. Mr. Ross has requested $37,342.50 in fees, an amount which is broken down into 41.1 hours at $475 per hour and 36 hours at $495 per hour. Ross Decl. 8. According to his declaration, Mr. Ross has substantial experience handling false claims cases, and he previously served in various roles in New York State government that involved investigation into health care fraud, waste, and abuse. Id.
