UNITED STATES OF AMERICA

v.

HEALTH MANAGEMENT ASSOCIATES, INC.

This matter comes before the Court on Relator’s Motion for Award of Attorney Fees, Costs, and Expenses (Doc. #12) and his Memorandum in Support (Doc. #13), both filed on May⁴, 2020. Defendants filed an Opposition (Doc. #24) on May 18, 2020, to which Relator filed a Reply (Doc. #26) on June 3, 2020. The parties participated in a settlement conference with the assigned magistrate judge, but were unable to resolve the motion. (Docs. 27, 33.) For the reasons set forth below, the motion is granted to the extent that attorney fees, costs, and expenses are awarded, but denied in part as to the amounts requested.

I.

The False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, imposes civil liability on persons who commit certain types of material fraud against the United States government.¹ To enforce the provisions of the False Claims Act, the Attorney General may sue a violator in a civil lawsuit pursuant to § 3730(a), or a private plaintiff, known as a relator, may bring a qui tam civil action in the name of the United States against a violator pursuant to § 3730(b). 2 “In a qui tam action, the relator pursues the government&#x²⁷;s claim against the defendant, and asserts the injury in fact suffered by the government. [ ] In bringing a qui tam action, the relator in effect, sues as a partial assignee of the United States.” United States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F. 3d 1081, 1086 (11th Cir. 2018), aff&#x²⁷;d, 139 S. Ct. 1507 (2019)(citations and internal quotations omitted). The FCA places a number of restrictions on suits by relators and establishes specific procedures a relator must follow in filing the complaint, State Farm Fire & Casualty Co. v. United States,

137 S. Ct. 436, 440 (2016), discussed below. On or about June 3, 2010 Edward Sanders (Sanders), a sole practitioner licensed to practice law in Mississippi, was retained

District of Florida against Health Management Associates, Inc., Charlotte HMS, LLC, and Punta Gorda HMA, LLC (collectively defendants) for violation of the FCA. The Complaint alleged that defendants knowingly induced doctors to make patient referrals and hospital admissions by intentionally and knowingly providing the doctors with improper remuneration; intentionally and knowingly submitted false certifications of compliance; and intentionally and knowingly submitted false claim forms. This misconduct was intended to cheat the United States out of $100-$150 million. The Court granted Nurkin’s accompanying Motion to Seal (Doc. #35) and stayed the case except for service of the Complaint and statutory disclosures upon the government. (Doc. #36.)

Special procedures apply when a relator brings an FCA action; these procedures afford the government the opportunity to intervene and assume primary control over the litigation. A relator who initiates an FCA action must file her complaint under seal and serve it only on the United States. 31 U.S.C. § 3730(b)(2). While the lawsuit remains under seal, the United States has the opportunity to investigate and decide whether to intervene as a party. Id. During this period, the United States may serve a civil investigative demand upon any person believed to be in possession of documents or information relevant to an investigation of false claims, requiring that person to produce documents, answer interrogatories, or give oral testimony. Id. § 3733(a)(1). In addition, the United States may meet with the relator and her attorney, giving the government an opportunity to ask questions to assess the strengths and weaknesses of the case and the relator a chance to assist the government&#x²⁷;s investigation. If the United States decides to intervene, the government acquires “primary responsibility for prosecuting the action,” although the relator remains a party. Id. § 3730(c)(1). In contrast, if the United States declines to intervene, the relator may proceed with the action alone on behalf of the government, but the United States is not a party to the action. Id. § 3730(c)(3). Cochise Consultancy, Inc., 887 F. 3d at 1086–87. As it turned out, the United States spent almost three years deciding whether to intervene in Nurkin’s case. The primary activity in the court file during this time was multiple unopposed requests by the government for extensions of time to decide whether to intervene and several matters relating to the sealing or unsealing of the Complaint. (Docs. ##37-60.) On December¹⁶, 2013, the United States filed its Notice of Election to Intervene. (Doc. #2.) The Government advised the Court that it intended to file a motion renewing its request to the Judicial Panel on Multidistrict Litigation (the MDL Panel) that the MDL Panel transfer most of the other qui tam cases against HMA, including this case, to a single district. (Id.) The government also sought a stay of the proceedings pending a ruling by the MDL Panel. (Id.) The Government’s request for stay was granted on December 19, 2013, and the Complaint was unsealed. (Doc. #3.)3 On January 15, 2014, the United States filed Notice of its second motion seeking transfer of the case to the MDL Panel. (Doc. 6.) On April¹⁰, 2014, the MDL Panel transferred this case, and seven others, to the District of the District of Columbia for centralized handling. (Doc. #7.) The allegations in six of the transferred cases concerned the improper admissions of patients through the Emergency Departments of hospitals without medical necessity, while the seventh case alleged wrongdoing in connection

3On January 8, 2021, the Court unsealed the remainder of the court file. (Doc. #34.) with a joint venture arrangement with a physician’s group at HMA hospitals in Pennsylvania. Shortly after the cases arrived at the MDL Court, the MDL parties moved for and obtained a stay of proceedings in order to pursue settlement discussions. As it turned out, settlement discussions occurred over the next four years, with periodic requests to extend the stay in the case being granted by the assigned MDL judge. Sanders asserts that on or about May⁹, 2017, the government and defendants agreed to the amount to be paid to the government by defendants in the Nurkin matter. (Doc. #13-5, ¶ 40.) On February¹, 2018, Sanders filed an unopposed motion for extension of time in which to file motion for attorneys’ fees, costs, and expenses (Doc. #9-2, pp. 9-11)4, which was granted. Sanders asserts that on or about March²², 2018 Nurkin’s share of the government’s recovery was agreed upon. (Doc. #13-5, ¶ 41.) In late September 2018, a settlement was announced, and in October 2018, a global settlement was formalized between the Department of Justice and defendants in all eight cases. None of the relators in the eight cases, including Nurkin and his counsel, had participated in these settlement negotiations. Among other things, HMA agreed to pay the United States $262.2 million to

Any recovery obtained from a defendant in an FCA qui tam action belongs to the United States, regardless of whether the government has intervened. The relator is entitled to a portion of the recovery, however. Id. § 3730(d). . . . The size of the relator&#x²⁷;s share depends upon whether the United States intervenes. In an intervened case, the relator usually is entitled to between 15 and²⁵ percent of the proceeds, as well as reasonable expenses, attorney&#x²⁷;s fees, and costs. 31 U.S.C. § 3730(d)(1). In a non-intervened case, the relator&#x²⁷;s share usually is greater: between²⁵ and 30 percent of the proceeds, as well as reasonable expenses, attorney&#x²⁷;s fees, and costs. Id. § 3730(d)(2). Even though the relator receives a smaller share in an intervened case, relators generally try to persuade the United States to intervene because the government&#x²⁷;s intervention makes it far more likely that there will be a recovery. When the United States elects to intervene, about 90 percent of the time the case generates a recovery, either through settlement or a final judgment. But only about¹⁰ percent of non-intervened cases result in recovery. See David Freeman Engstrom, Public Regulation of Private Enforcement: Empirical Analysis of DOJ Oversight of Qui Tam Litigation Under the False Claims Act, 107 Nw. U. L. Rev. 1689, 1720-21 (2013). Indeed, when the government declines to intervene, more than 50 percent of the time the relator decides not to proceed and voluntarily dismisses the action. See id. at 1717-18. Cochise Consultancy, Inc., 887 F. 3d at 1087–88 (footnote omitted). On October²², 2018, a Joint Stipulation of Dismissal (Doc. 9-2, pp. 1-4) was signed by Sanders and the other parties, agreeing to dismissal of Nurkin’s case pursuant to the Settlement

Agreement. On October²⁵, 2018, an Order (Doc. #9-2, pp. 7-8) was entered dismissing Nurkin’s FCA case, but retaining jurisdiction over any claim by Nurkin for expenses, attorneys’ fees and costs pursuant to 31 U.S.C. § 3730(d). On an unspecified date Nurkin received $14,952,913 of the $93.5 million allocated to his case (approximately 16%) from the government. (Doc. #13, p. 4.) HMA did not dispute that Nurkin was entitled to attorneys’ fees pursuant to the FCA (Doc. #9-2, p. 40), and for much of 2019 Nurkin and HMA attempted to resolve their disagreement over the amount of attorneys’ fees HMA owed to Nurkin. (Id. at 41.) These efforts were unsuccessful. On November¹², 2019, HMA filed a Motion To Suggest Remand (Doc. #9-2, pp. 39-43) of the case back to the Middle District of Florida to resolve the only remaining issue – the amount of attorney fees, expenses, and costs. The government agreed to the motion, but Nurkin filed a written opposition. (Doc. #9-2, pp. 48-55.) On April 2, 2020, the MDL Panel issued a Conditional Remand Order (Doc. #9) remanding this case because the pretrial proceedings had been completed. Attached was a copy of the Order signed October²⁵, 2018, dismissing Nurkin’s FCA claim except for the request for attorneys’ fees, expenses and costs, which was remanded to this Court. (Doc. #9-2, pp. 7-81.)

II.

The Supreme Court has stated that “a request for attorney&#x²⁷;s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). That ship sailed long ago in this case. Pursuant to the contingent fee Contract with Sanders, Nurkin paid his attorneys approximately $4,934,461.29 - one-third of the amount Nurkin received from the government. The “American Rule” is a bedrock principle under which “[e]ach litigant pays his own attorney fees, win or lose, unless a statute or contract provides otherwise.” Peter v. Nantkwest, Inc., 140 S. Ct. 365, 370 (2019)(citation omitted). A court does not deviate from the American Rule “absent explicit statutory authority.” Baker Botts

LLP v. ASARCO LLC, 576 U.S. 121, 126 (2015)(citation omitted). Nurkin now seeks attorney fees under the fee-shifting provision of the FCA.⁵ Under the FCA, in addition to a shared recovery of the funds obtained by the government, a qui tam relator “shall also receive

III.

The Court first addresses defendants’ request to eliminate all shifted fees as a sanction. The Court recognizes its inherent authority, which includes fee shifting and, the Court believes, fee reduction or elimination.

IV.

Generally, courts calculate attorney fees using one of two methods – the percentage method or the lodestar method, with or without a lodestar multiplier (enhancement). In re Home Depot Inc., 931 F. 3d 1065, 1076 (11th Cir. 2019). The Court discusses

A. Percentage Methodology

Nurkin argues that the Court should use a contingency fee methodology because the lodestar method does not “adequately model the risk taken by counsel” that the government would not intervene. The contingency fee method, on the other hand, “accurately compensates counsel for the risk undertaken and also considers the spectacular results obtained for the United States.” (Doc. #13, pp. 11-12.) Nurkin’s expert William Henry Shawn (Mr. Shawn) favors this methodology over either lodestar approaches. (Doc. #13-1, pp. 12, 18-19.) Mr. Shawn asserts that Nurkin is entitled to a percentage of the net recovery by the government, i.e. a percentage of all the money recovered by the government allocated to the Nurkin case ($93.5 million) less the amount paid to Nurkin ($14,952,913). Utilizing $79,475,000 as the net amount recovered by the government, Mr. Shawn asserts Nurkin is entitled to his contractual 33.33 percent contingency, but nonetheless reduces the percentage to 15%. Mr. Shawn then computes 15% of the net recovery obtained by the United States, arriving at “a fair and reasonable full contingency fee of $11,921,250.00.” (Id. at 19.) Nurkin and Sanders utilized a contingency fee arrangement under which the attorney fees were to be paid by Nurkin from his recovery (if he obtained one). Such an arrangement, however, cannot be utilized where the fees are being awarded pursuant to a fee-shifting statute under which a non-client will be paying the fees. “In statutory fee-shifting cases, the Supreme Court has said that courts should use the lodestar method.” In re Home Depot Inc., 931 F. 3d at 1081 (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). See also Blanchard v. Bergeron, 489 U.S. 87, 96 (1989)(“The contingent-fee model, premised on the award to an attorney of an amount representing a percentage of the damages, is thus inappropriate for the determination of fees under § 1988.”) Rather, the lodestar methodology is used to determine the amount of a reasonable attorney fee under the FCA. The FCA permits a relator “reasonable attorney&#x²⁷;s fees and costs.” 31 U.S.C. § 3730(d)(1) (2006). The district court calculates attorney&#x²⁷;s fees under the lodestar formula, which is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983); Norman v. Housing Auth. of the City of Montgomery, 836 F. 2d 1292, 1299 (11th Cir.1988) (citing Hensley). United States v. Patrol Servs., Inc., 202 F. App’x 357, 358–59 (11th Cir. 2006). There is no convincing legal basis which supports applying a contingency percentage to an amount awarded to a party other than the client - here the United States, which was represented by its own attorneys. Even if available in a FCA case, the contingency fee as determined by Mr. Shawn would be grossly excessive. Nurkin asserts that his attorneys worked⁴,618.55 hours on his case. As a result, the contingency fee requested by Mr. Shawn is the functional equivalent of approximately $2,581.00 an hour for each hour expended, not counting almost $5 million (approximately $1,068 per hour) already paid to Nurkin’s attorneys. Accordingly, the Court declines to utilize a percentage method to determine the amount of reasonable attorney fees in this FCA case.

B. Lodestar and Enhanced Lodestar Methodology

“The amount of the fee, of course, must be determined on the facts of each case.” Hensley, 461 U.S. at 429. Under the lodestar methodology, the trial court makes “an initial estimate of reasonable attorney&#x²⁷;s fees by applying prevailing billing rates to the hours reasonably expended on successful claims.” Bergeron, 489 U.S. at 87 (citing Hensley, 461 U.S. at 433). See also Norman v. Housing Authority of City of Montgomery, 836 F. 2d 1292, 1299 (11th Cir. 1988). “[T]he 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.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)(emphasis in original). While the lodestar approach is “the centerpiece of attorney’s fee awards,” Blanchard, 489 U.S. at 94, “[t]he courts may then adjust this lodestar calculation by other factors.” Id. The socalled Johnson factors8 “may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended.” Id. The Supreme Court has rejected undue reliance on the¹²–factor test. Murphy v. Smith, 138 S. Ct. 784, 790 (2018). Adjustments to the lodestar result may only be awarded in “rare” and “exceptional” circumstances. Perdue, 559 U.S. at 552 (citations omitted). The Supreme Court has consistently rejected enhancing a lodestar calculation based on risk, highly favorable results, novelty and complexity of the issues, special skill and experience of counsel, and quality of representation. Delaware Valley Citizens&#x²⁷; Council for Clean Air, 478 U.S. at 564-

65; Dague, 505 U.S. at 566; Perdue, 559 U.S. at 554.

8The twelve Johnson factors are: (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. Georgia Highway Exp., Inc., 488 F. 2d 714, 717-719 (5th Cir. 1974). The existence of a contingent fee Contract between Nurkin and Sanders, however, does not change the lodestar methodology. “We have never suggested that a different approach is to be followed in cases where the prevailing party and his (or her) attorney have executed a contingent-fee agreement.” Blanchard, 489 U.S. at 94. A “reasonable attorney&#x²⁷;s fee” contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. Should a fee agreement provide less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount. The defendant is not, however, required to pay the amount called for in a contingent-fee contract if it is more than a reasonable fee calculated in the usual way. Blanchard, 489 U.S. at 93. “The attorney&#x²⁷;s fee provided for in a contingent-fee agreement is not a ceiling upon the fees recoverable under § 1988.” Id. at 96. Nurkin computes the lodestar amount as follows: A reasonable hourly rate of $894 per hour multiplied by⁴,618.55 reasonable hours for a fee total of $4,128,983.70. (Doc. #13, p. 10.) Nurkin uses a multiplier of 2.23 to arrive at an enhanced lodestar amount of $9,207,633.45. (Id. pp. 10-11.) Defendants object to almost everything involved with this proposed attorney fee calculation. Defendants assert that the lodestar amount should be $229,544.70. (Doc. #24, p. 31.) (1) Reasonable Hourly Rate Relator seeks an hourly rate of $894 for each of his three attorneys. (Doc. #13, p. 6.) Defendants’ expert A. Brian

Albritton (Mr. Albritton) recommends an hourly rate of $400 for Sanders when engaged in non-associate type of legal work, $300- $350 for Branning when performing partner-level work, and $250 for all of Johnson’s work. (Doc. #24-1, pp. 16-17.)⁹ “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F. 2d at 1299 (citations omitted). The general rule is that the ‘relevant market’ for purposes of determining the reasonable hourly rate for an attorney&#x²⁷;s services is ‘the place where the case is filed.’ If a fee applicant desires to recover the non-local rates of an attorney who is not from the place in which the case was filed, he must show a lack of attorneys practicing in that place who are willing and able to handle his claims. Am. Civil Liberties Union of Georgia v. Barnes, 168 F. 3d 423, 437 (11th Cir. 1999) (citing Cullens v. Georgia Dep&#x²⁷;t of Transp.,²⁹ F. 3d 1489, 1494 (11th Cir. 1994)). The burden is on the fee applicant “to produce satisfactory evidence” that the rate is in line with those prevailing in the relevant legal community. Blum

The case was filed in the Fort Myers Division of the Middle District of Florida after Nurkin’s attorneys specifically researched the proper venue for the case. (See Doc. # 24-1, p. 11, n.13.) The facts underlying plaintiff’s claim clearly support venue in the Fort Myers Division. The great majority of the work by attorneys Sanders and Branning occurred prior to the transfer of the case to the District of Columbia. The extensive activities in the District of Columbia occurred when the case was controlled by government attorneys, who reached the global settlement with HMA without participation of relator or his attorneys. Relator has not attempted to establish the unavailability of FCA-qualified counsel in either Fort Myers or the Middle District of Florida.

The Court concludes that the Fort Myers Division of the Middle District of Florida is the relevant legal community for purposes of determining the reasonable hourly rates for an attorney’s services in this FCA case. The record contains relatively little background concerning plaintiff’s attorneys. The Declaration of Edward Sanders (Doc. 13-5) shows that Sanders is a 1990 graduate of the University of Mississippi School of Law, and the managing partner (and sole member) of Sanders Law. Mr. Sanders has 28 years of litigation experience with a focus that appears to be product liability cases, as well as involvement in mass tort, consumer finance, personal injury, class action, antitrust, medical malpractice, and insurance cases. (Id., ¶¶ 2, 3, 5.) Sanders has no documented experience in FCA cases prior to his representation of Nurkin, although defendants acknowledge that he “had successfully litigated complex product liability and other tort actions.” (Doc. #24, p. 4.) Robert Joseph Branning (Branning) is, according to defendants, a 1996 graduate of the Mississippi College School of Law who was admitted to The Florida Bar in December, 1999. Branning was appointed as a Lee County, Florida, Circuit Court Judge in 2014. (Doc. #24-1, pp. 8-9.) Prior to his appointment to the bench, Branning was a partner at a small Fort Myers law firm which focused on criminal defense. Branning has no documented experience in FCA cases prior to his representation of Nurkin. Branning is well-known to the Court, having tried at least one federal criminal case before the undersigned. Bethany Brantley Johnson (Johnson) was hired by Sanders to assist in the preparation of an application for attorney fees, expenses and costs. Ms. Johnson is a 1996 summa cum laude graduate of the Mississippi College School of Law and is licensed to practice law in Mississippi. Defendants report that a Google search reflects that Johnson is currently with a law firm in Mississippi and concentrates her practice in the areas of the Fair Labor Standards Act, the Employment Retirement Income Security Act, and employment litigation. (Doc. #24-1, p. 9.)

None of relator’s attorneys specify what their actual hourly rates were at the time or are currently.¹⁰ There is no evidence of hourly rates in prior attorney fees awarded to any of the attorneys.11 Relator has presented no evidence as to the hourly rates in the Middle District of Florida. Defendants have cited

Attorney Total Hours Mr. Sanders 3771.35 Mr. Branning 479.8 Ms. Johnson 368.2

TOTAL 4619.3512

Relator seeks a lodestar attorney fee based upon the⁴,618.55 hours. As the party opposing the fee application, defendants have “an obligation to identify the hours that should be excluded with some degree of specificity.” Rodriguez v. Molena Healthcare, Inc., 806 F. App’x 797, 804 (11th Cir. 2020)(citation omitted). Defendants argue that the requested hours are “grossly excessive” and “wildly inflated,” that many entries “appear to be outright fictitious,” and that a number of the hours cannot be shifted as a matter of law. (Doc. #24, pp. 7, 9, 17.) More specifically, defendants challenge as unnecessary and unreasonable many of the hours leading to the filing of the Complaint, the hours spent preparing the attorney fee petition, the hours spent communicating with Nurkin, the hours spent checking PACER, and the hours spent

This includes some attorney services performed prior to the filing of a complaint. “Of course, some of the services performed before a lawsuit is formally commenced by the filing of a complaint are performed ‘on the litigation.’ Most obvious examples are the drafting of the initial pleadings and the work associated with the development of the theory of the case.” Webb v. Bd. of Educ. of Dyer County, Tenn., 471 U.S. 234, 243 (1985). Nurkin claims a total of¹,441.55 hours (1,272.5 hours in 2010 and 169.05 hours in 2011) were worked by his attorneys in the

31 weeks between June 3, 2010 (when Nurkin spoke with Sanders about bringing a claim against his former employer) and January¹³, 2011 (the day before the Complaint was filed). (Doc. #13, p. 9; Doc. 13-4, pp. 2-13.) Sanders explains that during this time period he met and corresponded extensively with Nurkin in order to fully understand the “complexity, nature, and severity of the fraud” and to draft a complaint which would withstand legal challenges both as to drafting sufficiency and Rule 11 sanctions. (Doc. #13-5, ¶¶ 21-26.) Defendants assert that these hours were “grossly excessive” and “wildly inflated,” and that no more than 300 hours should have been spent on this stage of the case. (Doc. #24, pp. 9-10.) Using defendants’ Index of Exhibits (Doc. #24-3) as an outline of the bases for contesting the hours, the Court determines that during this pre-Complaint time period the following contested hours in the following categories will be allowed:¹ Communications with 197.5 197.5 Client 2 Analyze Stock Prices 0.4 0.4 3 “T/c and text with None¹³ None

status⁴ Text re Ethics Rule None None⁵ Check PACER None None⁶ Putter Trial None None⁷ Basic Qui Tam Research 763.314 200.0 8 Criminal Matters None None⁹ Relator’s Share 7.415 0.0 10 Travel to/from Florida 15.5 0.0 Total 984.1 397.9 Defendants have objected to 197.5 hours spent communicating with Nurkin prior to the filing of the Complaint as being unreasonable. (Doc. #24-4, pp. 2-6.) After reviewing each time

In sum, plaintiff asserts his attorneys expended¹,441.55 hours during this time period (June 2, 2010 through January¹³, 2011). Defendants objected to 984.1 of these hours, and therefore 457.45 hours were not specifically contested (1,441.55 hours minus 984.1 hours).¹⁶ The Court overrules defendants’ objections as

shifting under the FCA. Hours Claimed¹,441.55 Uncontested Hours Allowed 457.45 Contested Hours Allowed 397.9 Total Hours Allowed 855.35 (b) After Complaint But Before Government Intervention Between filing the Complaint on January 14, 2011, and intervention by the United States on December¹⁶, 2013, Nurkin claims his attorneys expended¹,577 additional hours on the case. Counsel expended 885.4 hours in 2011 after the Complaint was filed; 316.60 hours in 2012; and 375 hours in 2013 before the government’s intervention. (Doc. #13-4, pp. 32, 44, 55.) According to Sanders, during this time period, Nurkin and his counsel began working extensively with United States Attorneys and federal investigators in Florida and Washington, D.C. to explain and demonstrate the complex web of improper conduct HMA had spun in order to steal from the United States. Nurkin’s counsel outlined to the authorities the huge amount of money this fraud was costing the United States taxpayers. (Doc. #13, pp. 3-4.) See also Doc. #13-5, ¶¶ 34-36. Sanders asserts that in 2011 and 2012, he spent many hours assisting government agencies with the examination of hundreds of thousands of pages of documents, doc. #13-5, ¶ 29, and in 2013 he continued to assist the government to review documents, id. at ¶ 30. Defendants object to over half of the¹,577 hours for various reasons. Again, using defendants’ Index of Exhibits (Doc. #24-3) as an outline of the bases for contesting the hours, the Court determines that during this post-Complaint, pre-intervention time period the following contested hours in the following categories will be allowed:¹ Communications with 406.717 351.7 Client 2 Analyze Stock Prices 5.6 0.0 3 “T/c and text with None18 None

status⁴ Text per Ethics Rule 6.3 0.0 5 Check PACER None None⁶ Putter Trial None None⁷ Basic Qui Tam Research 190.8 36 8 Criminal Matter Re: 235.2 0.0 Nurkin (Not Putter)⁹ Relator’s Share 53.6 0.019 10 Travel to/from Florida 26.35 10.0 Total 924.55 397.7

Nurkin. (Doc. #24-5, p. 2.) Sanders consistently billed .4 hour to periodically analyze the stock prices for HMA, doing so on fourteen occasions during this time period. (Id.) The Court finds that all of these hours were unnecessary to Nurkin’s FCA case, and cannot be shifted to the opposing party. The Court will disallow the 5.6 hours. Defendants challenge 6.3 hours in which Sanders asserts he was texting his client “per Ethics Rule 1.4.” (Doc. #24-7, p. 2.) Defendants point out that all nineteen texts were on a Saturday, and all but one was for .3 hour. (Doc. #24, p. 14 n.16.) “Ethics Rule 1.4” is apparently a reference to an attorney’s obligation to keep a client reasonably informed about a matter, although neither side identifies an actual Rule. The billing records amply demonstrate multiple communications keeping Nurkin reasonably well informed about the case, even when it was stayed and very little was going on. The Court finds that these texts were unnecessary and cannot be shifted to the opposing party. The Court will disallow 6.3 hours. During the course of deciding whether to intervene in Nurkin’s qui tam case, the government began to see the potential for criminal prosecutions, including Nurkin and Joshua Putter. A criminal investigation of Nurkin was begun by the U.S. Attorney’s Office in Fort Myers. This investigation did not conclude until shortly before the government decided to intervene in Nurkin’s qui tam case. Defendants object to 235.2 hours spent in connection with Nurkin’s defense of the government’s criminal investigation. (Doc. #24-11, pp. 2-4; Doc. #24, pp 18-19.) There is no question that Nurkin was entitled to be represented by counsel in connection with the government’s criminal investigation, and that the hours expended by Sanders were compensable. The hours expended defending the criminal investigation of Nurkin may not, however, be shifted to a defendant in the qui tam action. “Time expended independent of the relevant federal litigation is not compensable.” Loranger,¹⁰ F. 3d at 782. Like Title VII of the Civil Rights Act, the FCA does not envision reimbursement for legal work done in criminal cases. Mayson v. Pierce, 806 F. 2d 1556, 1558 (11th Cir. 1987). Accordingly, the Court will disallow all 235.2 hours expended in connection with the potential criminal prosecution of Nurkin. The Relator’s Share 53.6 hours will be disallowed for reasons set forth in footnote 15. Defendants object to 26.35 hours for travel to and from Florida during this time period (Doc. #24-13, p. 2) because competent FCA attorneys were available in Florida. (Doc. #20, p. 20.) The Court disallows the 3.75 travel hours on January 14, 2011 because, as stated in the pre-Complaint discussion, there was no need for Sanders to travel to Florida. The Court allows the 10.0 hours in March 2011 to meet with the AUSA in Tampa concerning the qui tam investigation. The meeting was clearly in furtherance of the underlying qui tam action and Sanders’ presence was necessary. The Court disallows the 6.5 travel hours on October⁹, 2013, because it involved activities in connection with the defense of Nurkin in the criminal investigation. The Court disallows the 6.1 travel hours on October 24-25, 2013 because it involved meeting with the AUSA conducting the criminal investigation of Nurkin. In sum, the Court disallows 16.35 hours and allows 10.0 hours of the travel in this period of time. Defendants object to 190.8 hours of additional qui tam research during this time period. (Doc. #24-10, pp. 9-11.) The Complaint had been sealed and not served on defendants, and the case was stayed, but Sanders decided to work on the qui tam case just in case the government did not intervene. (Doc. #13-5, ¶ 28.)²⁰ Sanders researched discovery procedures if the government did not intervene (28.7 hours), potential discovery issues, requests for discovery, and prepared for asserting privileges (79.1 hours) as well as the consolidation with similar cases and

status⁴ Text per Ethics Rule None24 None⁵ Check PACER 18.9 4.2 6 Putter Trial 47.5 0.0 7 Basic Qui Tam Research 104.8 104.8 8 Criminal Matter Re: 244.7 0.0 Putter

compare and contrast with existing filings and notify client of developments.” There was very little activity in terms of the court file, and the .9 hour per event is excessive. The Court reduces this time to .2 hour per activity, and will allow 4.2 hours and disallow 14.7 hours. In this time period, the criminal aspects of the government’s investigation had moved away from Nurkin and focused on Joshua Putter. Sanders states that during 2014, he and Nurkin began assisting the government with the preparation for the Putter trial. (Doc. #13-5, ¶ 31.) Sanders asserts that in 2014, 2015, and 2016 there were numerous calls and letters with regard to the criminal investigation, and Nurkin’s likely testimony in the Putter trial.

(Id., ¶ 37.) Two categories of defendants’ objections relate to the Putter criminal investigation and trial. First, Sanders expended 47.5 hours in October 2014 to attend five days of Putter’s federal criminal trial in Fort Myers, Florida. Each of his five time entries read: “Attend Putter trial; post-trial meetings with Nurkin to discuss updates and progress of trial,” and each billed 9.5 hours. (Doc. #24-9.) Second, Sanders expended a total of 244.7 hours concerning Putter-related criminal matters, including the 47.5 hours Sanders spent at the Putter trial. (Doc. #24-11.) On October 3, 2013, Joshua S. Putter was named in a one-count

Indictment (Case No. 2:13-cr-141-JES-CM, Doc. #3). On December 18, 2013, a Superseding Indictment (id., Doc. #18) charged that on October⁷, 2008, Putter did knowingly falsify or make a false entry in a letter to the Chief Executive Officer of C.R.M.C. with the intent to impede, obstruct, or influence the investigation and proper administration of any matter within the jurisdiction of the United States Department of Health and Human Services, Office of Inspector General. A copy of the offending letter was provided in a Bill of Particulars. (Id. at Doc. #41.) Nurkin was named as one of 61 witnesses in the government’s Witness List (id. at Doc. #79), but was not called as a witness at the trial. After a twelve-day jury trial before the undersigned, Putter was found not guilty on November¹³, 2014. (Id. at Doc. #113.) Defendants argue that none of this time is compensable because Putter’s criminal trial did not advance the civil case against HMA, and Putter was not charged with an FCA violation. Further, Putter was acquitted and Nurkin was never called as a witness. (Doc. #24, pp. 18-19.) Although the verdict is not attributable to Nurkin, “[t]ime expended independent of the relevant federal litigation is not compensable” Loranger,¹⁰ F. 3d at 782, and a typical fee-shifting statute such as the FCA does not envision reimbursement for legal work done in criminal cases. Mayson, 806 F. 2d at 1558. The court disallows all 244.7 hours (which includes within it the 47.5 hours of trial attendance) as being improper to shift to the FCA defendant. Defendants object to 104.8 hours of qui tam research conducted during this time period. (Doc. #24-10, pp. 11-12.) These hours related to specific qui tam issues that had arisen. Many of these hours overlap with other categories, including attorney fees, relators share, which are already disallowed, and the “criminal aspect” of the civil case. Upon review, the Court declines to disallow other hours. Defendants object to 6.8 hours for travel to and from Florida in connection with the Putter trial. (Doc. #24-13.) Since time spent in connection with the criminal investigation of Putter may not be shifted to the opposing party, the Court disallows these

6.8 hours. Defendants have objected to 111.5 hours of billed time involving communications between Nurkin and his attorneys. (Doc. 24-4, pp. 19-29.) The duplicated hours were disallowed from other categories, e.g., criminal matters, Putter investigation and trial, share hours. The Court declines to disallow other hours. In sum, plaintiff asserts his attorneys worked for¹,601.4 hours during this time period (December¹⁶, 2013 through April 23, 2019). Defendants objected to 937.2 of these hours, and therefore 206.4 hours were not specifically contested (1,143.6 hours minus 937.2).26 The Court sustains defendants’ objections to 697.9 of the contested hours. Therefore, the Court will allow 239.3 hours to be included in the fee-shifting under the FCA. Hours Claimed¹,143.6 Uncontested Hours Allowed 206.4 Contested Hours Allowed 239.3 Total Hours Allowed 445.7 (d) Hours Related to Attorney Fees, Expenses, Costs Motion Nurkin also seeks attorney fees for the time his attorneys expended on preparation of the attorney fee application motion and supporting documents. (Doc. #13, pp. 12-13.) Defendants do not object to the principle that “fees for fees” are recoverable, but do object to the number of hours and amount sought. “Like other courts, we have allowed parties to recover the cost of establishing their right to, and the amount of attorney&#x²⁷;s fees—the right to fees-on-fees.” Norelus v. Denny&#x²⁷;s, Inc., 628 F. 3d 1270, 1301 (11th Cir. 2010). The Court concludes that this principle applies to the fee-shifting statute contained in the FCA, and Nurkin is entitled to recover reasonable attorneys fees for time expended on the preparation of the fee application and supporting documents. Nurkin asserts that his attorneys spent 457.8 hours preparing the fee application and supporting documents in 2017, 2018, and

Year Sanders Johnson Total 2017 27.0 80.4 107.4 2018 11.5 185.6 197.1 2019 51.1 102.2 153.3 Total 89.6 368.2 457.8 (Doc. #13-6, p. 2; Doc. #13-8, pp. 2-3.) Thus, at the $300 per hour rate the Court has found reasonable for this type of task, Nurkin seeks $137,340 to prepare the attorney fee application and supporting documents. Sanders started working on the fee application on May 15, 2017 (Doc. #24-10, p. 12), but soon realized he needed the help of another attorney and retained Johnson in August 2017. (Doc. #13- 4, p. 84; Doc. #13-5, ¶¶ 43, 45.) Sanders states that Johnson’s “engagement was necessary and required for me to appropriately prepare a complete and accurate 8-year bill record to submit for recovery, as outlined in the FCA.” (Id.) It is clear that Johnson was not reviewing contemporaneous billing records, but was creating billing records from numerous documents provided by Sanders. The result was that this process took a grossly excessive amount of time.

While the fee motion and its Memorandum and Reply are not clear on the issue, it appears that Nurkin believes that any of the attorney fees, costs, or expenses belong to Sanders, in addition to what Sanders has received pursuant to the contingent fee Contract. This is certainly the way defendants read relator’s papers. (Doc. #24, p. 30 n.32.) In this case, however, that view is incorrect. To be sure, there are situations when an attorney is entitled to the amount agreed upon in a contingent fee agreement plus the amount awarded pursuant to a fee-shifting statute. For example, a relator may prevail, but the recovery is so humble that the resulting percentage does not result in a reasonable attorney fee.

In such a situation, counsel would be entitled to some or all of the shifted attorney fees in order to accomplish a reasonable attorney fee. Thus, the Supreme Court has held that a contingent fee agreement does not impose a ceiling of the recovery of an attorney fee. Blanchard, 489 U.S. at 93-94. This is not one of those situations. By all accounts, the recovery made by the government attributable to Nurkin’s case was excellent. The resulting dollar amount of Nurkin’s share was substantial enough to result in a contingent attorney fee which was ample and did not need to be supplemented to arrive at a “reasonable” amount. Therefore, the amount awarded as shifted attorney fees, expenses, and costs belong to Nurkin.

Both Sanders and Nurkin have stated that the contingency fee Contract assigned any recovery of attorney fees to Sanders. (Doc. 13-5, ¶ 20; Doc. #13-5, p. 16.) This is clearly incorrect. Nothing in that Contract (Doc. #13-3) assigns attorney fees to Sanders or any one else. Nurkin filed a Declaration stating he “hereby assigns” the attorney fees to Sanders, and that he has acquired other obligations to Sanders. (Doc. #13-5.) Nothing in the Declaration suggests that the “hereby assigns” language creates a binding assignment. If Nurkin owes Sanders fees for services not encompassed by the FCA representation, then obviously he may use any of his resources, including these awarded fees, to pay his obligations. However, this award of attorney fees does not belong to Sanders, but to Nurkin, as the relator. See 31 U.S.C. § 3730(d) (“Any payment to a [qui tam plaintiff28] shall be made from the proceeds. Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys&#x²⁷; fees and costs.”).

28“Section 3730(b) allows a private plaintiff, known as a relator, to bring a qui tam action in the name of the United States against a violator.” Cochise, 887 F. 3d at 1086. In the exercise of its discretion based on the reasonable hourly rates and reasonable number of hours discussed above, the Court awards attorney’s fees totaling $952,480.

Time Period Total Hours Total Hours Total Fees Claimed Allowed Pre-Complaint¹,441.55 855.35 $342,140 ($400/h) Post Complaint,¹,577.0 1,050.15 $420,060 Pre-Intervention ($400/h) Post Intervention¹,143.6 445.7 $178,280 ($400/h) Attorney Fee 457.8 40 $12,000 Application ($300/h) Total⁴,619.95 2,391.2 $952,480

V.

The Relator also seeks to recover costs and expenses of $14,730.30. (Doc. #13-5, ¶ 47; Doc. #13-12, pp. 2-3.) Defendants suggest that reasonable expenses are $6,869.70. (Doc. #24-15, Exh. 12.) Defendants’ view is more generous than the Court’s, so the Court will award the amount agreed-to by defendants. Relator seeks $360 as reimbursement of the filing fee. The Court will allow $350 for the filing fee²⁹ and $13.00 for certified mail as taxable costs under 28 U.S.C. § 1920(1). Relator seeks travel expenses of $1,068.48 for a January 14, 2011 for a trip to Fort Myers to file the Complaint. The Court

15, 2011, trip in which Sanders flew to Tampa for a relator interview with an AUSA concerning the qui tam action. The Court will allow this travel expense, with one exception. Without receipts or an explanation, the Court finds that over $500 for meals for a one-day trip based on the billing records (Doc. #13- 4, p. 19) is excessive. The Court will allow the airfare, lodging, car rental, parking, meals of $150, for a total of $2,086.77. On October²⁷, 2011, Sanders flew to D.C. to meet with the Department of Justice, Health and Human Services, and the Federal Bureau of Investigations for an interview of Nurkin. Sanders returned to Mississippi on October²⁹, 2011. (Doc. #13-4, p. 30.) The Court will reduce the meals to $300, and otherwise allow the expenses. The Court will allow a total of $1,870.00. Nurkin seeks expenses of $1,269.38 for Sanders’ travel on July²⁵, 2012, to Boston for grand jury proceedings, and to prepare Nurkin’s testimony. Sanders returned on July²⁹, 2012. (Doc. 13-4, p. 42.) These proceedings were presumably related to Nurkin’s potential testimony in the Joshua Putter case, or at least some criminal case, the travel was unrelated to the advancement of the FCA civil case. The Court will not allow these expenses. Nurkin seeks expenses of $1,056.07 for Sanders’ travel on October⁹, 2013, to Florida to consult with Peter Ringsmuth and Ms. Burby as Nurkin’s criminal defense attorneys, and returned the same day. (Doc. #13-4, p. 53.) The Court will disallow these expenses relating to potential criminal charges. Nurkin seeks expenses of $1,620.67 for Sanders’ travel on October 23, 2013, to Atlanta and Fort Myers for a meeting with Nurkin and Ms. Burby. Sanders also attended a meeting with DOJ, and returned to Mississippi on October²⁵, 2013. Since these meetings appear to be concerning criminal matters, the Court will disallow all these expenses. The Court will not allow the October²⁶, 2014, expenses of $1,645.61 for travel to Fort Myers for Putter’s trial. Not only was there a local attorney for the civil case, but Nurkin also had criminal counsel locally and Nurkin did not testify.

Therefore, the Court will allow $363 in taxable costs, plus expenses of $6,869.70, as suggested by defendants, for a total of $7,232.70 in costs and expenses. Accordingly, it is hereby ORDERED: The Relator&#x²⁷;s Motion for Award of Attorney Fees, Costs, and Expenses (Doc. #12) is GRANTED in part. Bradley Nurkin is awarded $952,480 in attorney fees, $363 in taxable costs, and $6,869.70 in expenses against defendants Health Management Associates, Inc., Charlotte HMS, LLC and Punta Gorda HMA, LLC, jointly and severally. The Clerk shall enter judgment in favor of relator and against defendants accordingly. DONE and ORDERED at Fort Myers, Florida, this 8th day of February, 2021.

9 m= (>of 0 VAM Z~ DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of Record