1. Even Abe Lincoln Got Paid: Attorneys’ Fees Under The False Claims Act 2016 TAXPAYERS AGAINST FRAUD James B. Helmer, Jr. Jan Soifer Mayflower Hotel - Washington, DCMarc S. RaspantiJeremy L. Friedman

2. Even Abe Lincoln Got Paid: Attorneys’ Fees Under The False Claims Act I.The basis for recovery of fees in a False Claims Act case. II. Getting started. A. Who do the fees belong to? B. Do assignments work? C. What impact does a contingency fee based on the relator share have on the statutory fee amount? D. Keeping adequate records of what you did. 2

3. Even Abe Lincoln Got Paid: Attorneys’ Fees Under The False Claims Act III. How are statutory fees determined? A. What is the lodestar? B. Are fees on fees limited? C. Do local or national rates apply? D. What is “the community”? E. Do current or historical rates apply? F. How does an attorney without hourly fee paying clients establish their reasonable rate? (Graduation year, borrowing from other practitioners, published rate schedules, Court decisions awarding fees) G. Can defense counsels’ rates be used and, if so, how do you find them? H. How do you find defense counsel’s rates (If you can use them)? 3

4. Even Abe Lincoln Got Paid: Attorneys’ Fees Under The False Claims Act IV.How are fees obtained? A. Settlement. 1.) What is the DOJ’s role? 2.) When can you ethically raise/negotiate the fees? (There are apparently DIFFERENT ethical rules for defense counsel and relator’s counsel) B. Litigate. 1.) When must the fee application be submitted? 2.) What should the fee application contain? a. Documented hours. b. Billers’ credentials. c. Explanation for block billing. d. Travel time. e. Demonstrate billing judgment by dealing with conference time/duplication. 3.) Use of experts. 4

5. Even Abe Lincoln Got Paid: Attorneys’ Fees Under The False Claims Act V.Miscellaneous. A. Do “upward adjustments” exist? B. How are unsuccessful claims paid for? C. If there are multiple defendants who pays the fees? D. Issues with co-counsel or non-first filer’s counsel. E. When can defendants obtain their legal fees? F. Do NOT forget your expenses. How do they differ from the costs awardable by statute? 5

6. 2016 TAXPAYERS AGAINST FRAUD Mayflower Hotel Washington, DC “Even Abe Lincoln Got Paid” Section I - The Basis for Recovery of Fees in a FCA Section II - Getting Started “Even Abe Lincoln Got Paid” Section I - The Basis for Recovery of Fees in a FCA Section II - Getting Started James B. Helmer, Jr., Esquire HELMER, MARTINS, RICE & POPHAM CO., LPA 600 Vine Street, Suite 2704 Cincinnati, Ohio 45202 (513) 421-2400 jhelmer@fcalawfirm.com www.fcalawfirm.com James B. Helmer, Jr., Esquire HELMER, MARTINS, RICE & POPHAM CO., LPA 600 Vine Street, Suite 2704 Cincinnati, Ohio 45202 (513) 421-2400 jhelmer@fcalawfirm.com www.fcalawfirm.com

7. I. ATTORNEYS' FEE PROVISION OF FALSE CLAIMS ACT  “Such person [qui tam relator]shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs.” 31 U.S.C. § 3730 (d) 7

8. II. STATUTORY FEES BELONG TO THE RELATOR  “Such person shall also receive….” means it is the prevailing party, rather than his lawyer, who is eligible for fees. Venegas v. Mitchell, 495 U.S. 82 (1990)  Such person has the right to waive, settle, or negotiate such eligibility. Evans v. Jeff D., 475 U.S. 717, 730 (1986). 8

9. RELATOR CAN CONTRACT AWAY HIS FEE RIGHTS TO HIS COUNSEL  Venegas’ contract gave his counsel the right to apply for and collect any attorney fee award and prohibited him from waiving his lawyer’s right to statutory fees. 9

10. RELATOR CAN ALSO AGREE TO SHARE BOTH THE STATUTORY AWARD OF FEES AND HIS CONTINGENCY WITH HIS COUNSEL  Providing Relators the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice furthers the statute’s purpose of enabling relators to secure competent counsel  Thus, statutory fee awards can coexist with private fee arrangements and a relator can pay his attorney a percentage of the recovery even if it is larger than the statutory fee.  Statutory fee is paid by the losing defendant and is based on what is “reasonable.”  Freedom of contract allows the relator to pay his counsel what is necessary to secure counsel of his choice. Venegas v. Mitchell, 495 U.S. 82 (1990) 10

11. WHILE THE RELATOR HAS THE POWER TO DEMAND THAT THE LOSING DEFENDANT PAY REASONABLE FEES, ONCE SUCH DEMAND IS MADE, THE ATTORNEYS’ RIGHT TO SUCH STATUTORY FEES VESTS  United States ex rel. Gonter v. Hunt Valve Co. Inc., 510 F.3d 610, 614 (6th Cir. 2007) 11

12. INTEREST ON THE ATTORNEYS’ FEE AWARD RUNS FROM THE DATE RELATOR BECAME ENTITLED TO FEES, NOT THE DATE THE FEE AMOUNT IS FINALLY DETERMINED  United States ex rel. LeFan v. General Electric Co., 2010 U.S. App. LEXIS 18638 *27 (6th Cir. Sept. 3, 2010) 12

13. IT IS THEREFORE CRITICAL THAT COUNSEL IS PROTECTED BY EXECUTING A CONTRACT CONTAINING ASSIGNMENT OF ALL OF THE RELATOR’S FEE RIGHTS ASSIGNMENT 1.I have entered into an April 22, 2016 representation agreement with the law firm of Helmer, Martins, Rice & Popham Co., L.P.A., concerning an action that is being brought on my behalf as a qui tam False Claims Act relator. 2.Pursuant to my contract with Helmer, Martins, Rice & Popham Co., L.P.A., I have agreed that their attorneys’ fees will be paid out of the proceeds of this action, however derived, whether by judgment, court award, or settlement. 3. In consideration of the legal services performed on my behalf and the expenses and costs advanced on my behalf, I hereby transfer, set over, and assign to the law firm of Helmer, Martins, Rice & Popham, Co. L.P.A., any and all interest which I have in any potential recovery of statutory or hourly attorneys’ fees sought by Helmer, Martins, Rice & Popham, Co. L.P.A. pursuant to my qui tam False Claims Act lawsuit. 4.I expressly agree that I will not waive the right to recover attorneys’ fees and expenses and costs and that any compromise of the right to recover attorneys’ fees, expenses or costs incurred or expended by Helmer, Martins, Rice & Popham, Co. L.P.A. requires the law firm’s written consent. 5.This Assignment does not affect the amount of fees due and owing by me to my attorneys pursuant to the representation agreement described above or in any subsequent contract. ______________________________________________ DateRelator 13

14. 2016 TAXPAYERS AGAINST FRAUD Mayflower Hotel Washington, DC “Even Abe Lincoln Got Paid” Section III - How are statutory fees determined? “Even Abe Lincoln Got Paid” Section III - How are statutory fees determined? Jan Soifer O’C ONNELL & S OIFER LLP 2525 Wallingwood, Bldg. 14 Austin, Texas 78746 512.583.0451 jsoifer@oconnellsoifer.com www.oconnellsoifer.com Jan Soifer O’C ONNELL & S OIFER LLP 2525 Wallingwood, Bldg. 14 Austin, Texas 78746 512.583.0451 jsoifer@oconnellsoifer.com www.oconnellsoifer.com

15. WHAT IS THE LODESTAR?  The court must determine the reasonable number of hours expended on the litigation and the reasonable hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).  The lodestar is computed by multiplying the number of hours reasonably expended “in pursuit of the ultimate result achieved” (Id. at 431) and reasonable hourly rates.  Contemporaneous billing records or other sufficient documentation is required to show hours; “excruciating detail” is not required. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 327 (5th Cir.), cert. denied, 116 S.Ct. 173 (1995). 15

16.  The Supreme Court has rejected a separate standard for recovery of fees for the fee stage of litigation. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 160-162 (1990).  The 3% cap for fees on fees imposed by Coulter v. State of Tenn., 805 F.2d 146, 149 (6 th Cir. 1986), has been explicitly abrogated by Ne. Ohio Coal v. Husted, 2016 U.S. App. LEXIS 13874 *76-77, *90-91 (6th Cir., Aug. 1, 2016). 16 ARE FEES ON FEES LIMITED?

17.  Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984) suggests that “In almost every case, the firms’ established billing rates will provide fair compensation.” But, “a reasonable rate must align with ‘those prevailing in the community for similar services.’”  What is the “community”? Most courts say it’s geographic (in or near the district where the case is filed). I found no cases stating that the community can be national in scope. 17 DO LOCAL OR NATIONAL RATES APPLY?

18. WHAT IS “THE COMMUNITY”?  McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011)(interpreting “prevailing in the community” to “mean what it says” – “the customary fee for similar work ‘in the community’”)  Cases in virtually every district suggest the case’s venue is the community.  U.S. ex rel. Liotine v. CDW Gov’t., Inc., 2013 U.S. Dist. LEXIS 138509 at *16 (S.D. Ill. May 17, 2013), magistrate judge’s decision adopted by district judge, 2013 U.S. Dist. LEXIS 138399 at *8 (S.D. Ill. Sept. 25, 2013)(relevant community includes Southern Illinois, St. Louis, and Cincinnati) 18 WHAT IS “THE COMMUNITY”?

19.  United States ex rel. Doe v. Biotronik, Inc., No. 2:09-cv- 3617-KJM-EFB, 2015 U.S. Dist. LEXIS 144447, at *34-36 (E.D. Cal. 2015): “A district court has discretion to award rates higher than the locally prevailing rate if a fee applicant proves local counsel was unavailable, whether due to unwillingness, lack of experience, expertise, or specialization.” But the court declined to “resort to extra- district rates here.”  NOTE: Biotronik incorrectly cites Liotine as “entertain[ing] the possibility that the market for capable FCA attorneys is national.” 19 WHAT IS “THE COMMUNITY”, CONT’D

20. DO CURRENT OR HISTORICAL RATES APPLY? In Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 556 (2010), the Supreme Court held: The delay in receiving fees in a federal fee-shifting statute case justifies awarding attorneys’ fees using the attorneys’ current rates rather than the rates at the time the services were rendered. 20

21. HOW DOES ATTORNEY WITHOUT HOURLY FEE PAYING CLIENTS ESTABLISH REASONABLE RATE? 21  The reasonable hourly rate is calculated based on the “prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984).  To determine “the prevailing market rate,” the court may consider hourly rates in other cases and affidavits regarding the reasonableness of suggested rates. Associated Builders & Contractors v. Orleans Parish Sch. Bd., 919 F.2d 374, 379 (5th Cir. 1990)  Successful small firm lawyers can be entitled to mega-firm rates. Miller v. Holzmann, 575 F.Supp. 2d 2, 22 (D.D.C. 2008)(“Defendants balk at the ‘mega-law firm rates’ relator seeks. But these rates reflect counsel’s “mega-law firm”- quality representation.”)

22. OTHER FACTORS CONSIDERED BY COURTS IN SETTING REASONABLE RATES  Laffey Matrix. Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983) (Adopted by 3 rd Cir., Interfaith Community Organization v. Honeywell International, Inc., 426 F.3d 694 (3rd Cir. 2005))  Other comparable lawyers (similar years of experience, similarly complex fed. ct. practice)  Published decisions on rates in similar cases 22 OTHER FACTORS CONSIDERED BY COURTS IN SETTING REASONABLE RATES

23. Questions? Maybe - it depends on the court. 23 CAN DEFENSE COUNSEL’S RATES BE USED?

24. HOW DO YOU FIND DEFENSE COUNSEL’S RATES (IF YOU CAN USE THEM)?  Google defense counsel and search PACER.  We found defense counsel’s rates in a bankruptcy proceeding in Florida and in a qui tam pending in New Mexico.  Most circuits allow discovery of defense’s fees; it’s in the court’s discretion. 24

25. FINDING DEFENSE COUNSEL’S RATES, CONT’D  1 st Circuit: limited discovery/relevance of defense fees. Ackerley Communications of Mass., Inc. v. City of Somerville, 901 F.2d 170, 172 n.5 (1st Cir. 1990); Dupont Plaza Hotel Fire Litigation, 56 F.3d 295, 303 (1st Cir. 1995)  2 nd Circuit: Blowers v. Lawyers Coop. Publ’g Co., 526 F. Supp. 1324, 1327 (W.D. N.Y. 1981); Grumman Corp. v. LTV Corp., 533 F. Supp. 1385, 1391 (E.D. N.Y. 1982)  3 rd Circuit: In re Fine Paper Antitrust Litig., 751 F.2d 562, 587 (3d Cir. 1984); In re First Peoples Bank Shareholders Litig., 121 F.R.D. 219, 228 (D.N.J. 1988); Coal. to Save Our Children v. State Bd. of Educ., 143 F.R.D. 61, 64-66 (D. Del. 1992) 25

26. FINDING DEFENSE COUNSEL’S RATES, CONT’D  4 th Circuit: Stastny v. S. Bell Tel. & Tel. Co., 77 F.R.D. 662, 663-64 (W.D. N.C. 1978)  5 th Circuit: Innovention Toys, LLC v. MGA Entm't, Inc., No. 07-6510, 2014 U.S. Dist. LEXIS 42035, at *24 (E.D. La. 2014); Howe v. Hoffman-Curtis Ptnrs., Ltd LLP, Civil Action No. H-03-4298, 2007 U.S. Dist. LEXIS 99244, at *3-4 (S.D. Tex. 2007); Ruiz v. Estelle, 553 F. Supp. 567, 589 (S.D. Tex. 1982)(if defendants wish to argue the unreasonableness of plaintiffs’ fees, discovery of their own fees is relevant and not unduly burdensome) 26

27. FINDING DEFENSE COUNSEL’S RATES, CONT’D  6 th Circuit: Humphreys, Hutcheson and Mosely v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) generally, “attorney fees are not deemed privileged and are subject to discovery”; Mitroff v. XOMOX Corp., 631 F. Supp. 25, 28 (S.D. Ohio 1985) aff’d in part and remanded in part 797 F.2d 271; Pollard v. E.I. Dupont de Nemours & Co., 2004 WL 784489 (W.D. Tenn. Feb. 24, 2004) *1-4; Falana v. Kent State University, 2012 WL 6084630 *1-4 (N.D. Ohio Dec. 6, 2012) 27

28. FINDING DEFENSE COUNSEL’S RATES, CONT’D  7 th Circuit: N.D. Ill. L.R. 54.3 requires production of billing records by respondents challenging movants’ fees; U.S. ex rel. Liotine v. CDW Gov’t., Inc., 2013 U.S. Dist. LEXIS 138509 (S.D. Ill. May 17, 2013)(rates charged by defense counsel have probative value), decision adopted by District Court, 2013 U.S. Dist. LEXIS 138399, at *8 (S.D. Ill. Sept. 25, 2013); Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768 (7th Cir. 1982) 28

29. FINDING DEFENSE COUNSEL’S RATES, CONT’D  8 th Circuit: Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1220 (8th Cir. 1981); Murray v. Stuckey’s Inc., 153 F.R.D. 151, 152-53 (N.D. Iowa 1993)  9 th Circuit: U.S. v. Biotronik, Inc., 2015 U.S. Dist. LEXIS 35321, at *18 (E.D. Cal. Mar. 20, 2015); Lobatz v. U.S. West Cellular of Cal., Inc., 222 F.3d 1142, 1148 (9th Cir. 2000); McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th Cir. 1994)  10 th Circuit: Hernandez v. George, 793 F.2d 264, 268 (10th Cir. 1986); Citgo Petroleum Corp. v. Krystal Gas Marketing Co., Inc., 466 F.Supp.2d 1263, 1264-65 (N.D. Okla. 2006) 29

30. FINDING DEFENSE COUNSEL’S RATES, CONT’D  11 th Circuit: Henson v. Columbus Bank & Trust Co., 770 F.2d 1566, 1574-75 (11th Cir. 1985); Naismith v. Prof’l Golfers Ass’n, 85 F.R.D. 552, 561 (N.D. Ga. 1979)  D.C. Circuit: New York v. Microsoft Corp., 2003 U.S. Dist. LEXIS 8713 (D.D.C. May 12, 2003)(since Microsoft didn’t challenge reasonableness of hours or rates, Microsoft’s motion for protective order granted.) 30

31. FINDING DEFENSE COUNSEL’S RATES, CONT’D  Rules/other authority:  FRCP 54 gives discretion to courts to resolve all fee-related issues. Advisory Committee Notes on the 1993 Amend. to 54 specify that, as an exercise of this discretion, “[t]he court may order disclosure of additional information, such as that bearing on prevailing local rates or on the appropriateness of particular services for which compensation is sought.” “On rare occasion[s] … the court may determine that discovery under Rules 26-37 would be useful to the parties.” Id.  FRCP 26(b)(3)(A)(ii) allows federal courts to permit discovery of time records and other trial-preparation documents on a showing that the party requesting discovery “has substantial need for the materials to prepare its case[.]”. See also Manual for Complex Litigation, Fourth, 14.224 (2004) (discovery in fee litigation should be allowed for information that the Court determines “is genuinely needed[.]”). 31

32. 2016 TAXPAYERS AGAINST FRAUD Mayflower Hotel Washington, DC “Even Abe Lincoln Got Paid” Section IV – Obtaining Statutory Attorneys’ Fees “Even Abe Lincoln Got Paid” Section IV – Obtaining Statutory Attorneys’ Fees Jeremy L. Friedman Attorney at Law 2801 Sylhowe Road Oakland, CA 94602 (510) 530-1433 jlfried@Comcast.net Jeremy L. Friedman Attorney at Law 2801 Sylhowe Road Oakland, CA 94602 (510) 530-1433 jlfried@Comcast.net

33. OBTAINING FEES THROUGH SETTLEMENT  Step One: Get Appropriate Language into Agreement  E.g.: “Relator and his attorneys have a claim for attorneys' fees and costs and will present the claim for fees and costs incurred in the prosecution of this action to Defendant. Relator’s claim for attorneys' fees and costs is not released herein. Defendant acknowledges the claim and agrees to pay the fees and costs that Relator is statutorily entitled to separate and apart from its payment to the United States under this agreement. Should the parties be unable to reach agreement on the amount of the attorneys' fees and costs payment, then the United States District Court shall have continuing jurisdiction to issue an order with regard to the payment of attorneys' fees and costs.”  Step Two: Engage Fee Opponent in Negotiations Issues: 1. Do Settlement Negotiations Mean Compromise? Fee opponents argued Government and Relator should discount merits claim based upon litigation risks. Did you support those arguments? Should you support them now? Are there other reasons to compromise? Yes. Courts are likely to order reductions if fee claimant does not make billing judgment reductions. But after Step One, there should be no reluctance to file for a fully-compensable fee award. 33

34. Issues: 2. Why Negotiate If Agreement is Unlikely?  Show the court who forced the fees litigation. Avoid a “second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) Note: document your offers of compromise  Learn Objections. Issues: 3. What Role Should You Expect DOJ to Play? None. If you do, you might be misunderstanding your situation Issues: 4. Issue of Timing – Should You Avoid Simultaneous Negotiations?  Evans v. Jeff D., 475 U.S. 717 (1986) – Fee opponents & the right to negotiate fees in settlement  Staged Negotiations: “Just Say No to Simultaneous Negotiations”  Intervened Cases – de facto process  Non-intervened cases – Should relator’s counsel insist? 34 OBTAINING FEES THROUGH SETTLEMENT

35. FEES LITIGATION Question of Timing  Rule 54(d)(2) of the Federal Rules of Civil Procedure : (A) Claim to Be by Motion. A claim for attorneys' fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages. (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; …  Local Rules (D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings. Also, the court may refer issues concerning the value of services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may refer a motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.  Stipulation – See Steps One and Two 35

36. FEES LITIGATION 36 What Gets Filed  Notice/Motion/MPA Introduction Summary of Litigation Efforts/Tasks Assessment of time Summary of Litigation Achievements Legal Standards for Adjusted Lodestar Methodology Argument:Time Reasonable, Compensable Rates Claimed, Justified Lodestar Enhancement Include Fee Chart and/or Proposed Order

37. Questions? 37 FEES LITIGATION  Fee Claimant Declaration Background and Experience of Lead Attorney Background and Experience of Other Timekeepers Rates History Summary of Litigation Efforts/Tasks Summary of Litigation Achievements Statement of Time Expenditures Statement of hours Foundation for Records Description of Timekeeping/Record Practices Statement of Coordination Efforts Review for Billing Judgment Reductions Statement of Enhancement Factors Extraordinary Results Contingent Nature Preclusion of Other Significant Employment

38. FEES LITIGATION 38  Expert Declarations - Retain Fees Counsel? Common Issues for Expert Declarations 1. Market rate declarations. Foundation and factual bases for testifying to rates charged by attorneys within a geographic area or practice area; attestation of own rates charged, relevant fees history; significance of statutory fees to firm practice, effect on whether the firm takes on new cases, which ones to take; opinion on whether rates claimed are within, or even below, rates charged by attorneys with similar skills and experience. 2. Need for attorneys with specialized skills and knowledge to successfully litigate qui tam cases. Foundation for testimony on False Claims Act litigation; opinions and bases for opinions on the need for specialized skills and experiences. 3. National marketplace. Foundation for testimony on nationwide qui tam practice; opinions and bases for opinions on national practice, the need to charge higher-than-forum rates in order to attract competent counsel; statement of higher-than-forum rates even by venue-based counsel, when experienced qui tam practitioners. 4. Reasonableness of time expenditures. Depending on what claims are made during settlement negotiations (see Step Two) or in the opposition, opinions and bases for opinions that time expended was necessary and reasonable. 5. Lodestar Enhancement. Opinions and bases for opinions as to the need for fees at rates which are significantly enhanced over non-contingent rates, in order to attract attorneys willing to undertake lengthy, risky cases under the False Claims Act.

39. 2016 TAXPAYERS AGAINST FRAUD Mayflower Hotel Washington, DC “Even Abe Lincoln Got Paid” Section V - Miscellaneous “Even Abe Lincoln Got Paid” Section V - Miscellaneous Marc S. Raspanti, Esquire PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI, LLP 1818 Market Street, Suite 3402 Philadelphia, PA 19103 (215) 988-1433 msr@pietragallo.com www.pietragallo.com www.falseclaimsact.com Marc S. Raspanti, Esquire PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI, LLP 1818 Market Street, Suite 3402 Philadelphia, PA 19103 (215) 988-1433 msr@pietragallo.com www.pietragallo.com www.falseclaimsact.com

40. UPWARD ADJUSTMENTS – FANTASY OR REALITY?  See U.S. ex rel., Thomas Poulton v. Anesthesia Associates of Burlington, 87 F.Supp 2d 351 (D. Vt., 2000):  “[A]s the Court also finds that several of the claims raised in this case under the False Claims Act were “real risk-of-not-prevailing issues,” an upward adjustment of the loadstar is warranted. Thus, a ten percent upward adjustment is applied to the loadstar.  U.S., ex rel. Abbott-Burdick v. U. Med. Associates, 2:96-1676- 12, 2002 WL 34236885, at *22 (D.S.C. May 23, 2002) (citing Poulton for the proposition that “it is only in rare cases that this figure will be adjusted” but providing no such adjustment given that the case was not exceptional) 40

41.  How do you define “unsuccessful”?  Do the claims share a “common core of facts?”  A “claim by claim” analysis but Courts have recognized that work on a case often blends across “multiple claims.”  U.S. ex rel. John Doe I v. Pennsylvania Blue Shield, 54 F. Supp. 2d 410, 414 (M.D. Pa. 1999):  “Hours may be excluded if they …relate to distinct claims on which the applicant did not succeed... The lodestar may be adjusted downward if the lodestar is not reasonable in light of the results obtained, thereby accounting for time spent litigating unsuccessful or partially unsuccessful claims that are related to the successful claims.”).  U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 786 F. Supp. 2d 110, 118-120 (D.D.C. 2011):  “Recognizing that work on a case often blends across multiple claims, the test for unrelatedness is a stringent one: Fees for time spent on claims that ultimately were unsuccessful should be excluded only when the claims are ‘distinctly different’ in all respects, both legal and factual, from plaintiff's successful claims.” (internal quotes omitted) 41 UNSUCCESSFUL CLAIMS AND ATTORNEY FEES

42. MULTIPLE DEFENDANTS AND ATTORNEY FEES  Did you allege and prove a conspiracy?  Joint and several liability!  Did you keep separate billing records per defendants?  Separation of expert and deposition costs  Ability to pay concerns 42

43. INTER-RELATOR ATTORNEY FEES 43  First Filer v. Other Filers  What is “scope of release” the defendant seeks? How might that impact fees?  Inter-Relator squabbles (OYE)

44. Questions? 44 WHEN CAN DEFENDANTS OBTAIN THEIR LEGAL FEES? WHEN CAN DEFENDANTS OBTAIN THEIR LEGAL FEES?  Rule 11  Discovery abuses - appeals / expenses  31 U.S.C. § 3730(d)(4) – a prevailing defendant in a False Claims Act action may move for an award of attorney fees and costs where “the Court finds that the claim…was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.”

45. 45  An “award of fees is reserved for rare and special circumstances.” U.S. ex rel., Rafizadeh v. Continental Common, Inc. 553 F. 3d 869  An action is not frivolous if existing law or a reasonable suggestion for its extension, modification, or reversal supports the action.  Fees have been granted in 9 cases  Fees have been denied in 15 cases