United States of America ex rel. Palmer v. C&D Technologies, Inc., 897 F.3d 128 (3d Cir. 2018). Today’s opinion by Judge Greenberg (no relation) in a False Claims Act case involved the issue of an attorneys’ fee award to the relator’s counsel. The decision went through questions as to appropriate hourly rates, the reasonableness of hours claimed, and the level of success achieved. Ultimately, the panel affirmed the District Court’s decision on all but a “fees on fees” issue, which was remanded for further consideration.
Fee awards generally are reviewed for abuse of discretion, as Judge Greenberg stated. However, on one issue, the legal question of whether the District Court erred in reducing the fee award to a level below what the defense had sought, the panel applied de novo review. On that issue, Judge Greenberg concluded that there was no impediment to what the District Court had done. Quoting prior caselaw, Judge Greenberg observed that sua sponte fee reductions are improper only where a judge “decrease[s] a fee award based on factors not raised at all by the adverse party” (emphasis by Judge Greenberg).
Reductions need not be “exactly the same as that requested by the adverse party,” as long as “(1) ‘the fee applicant is given sufficient notice to present his or her contentions with respect to the reduction that the district court ultimately makes’: (2) ‘any reduction is based on objections actually raised by the adverse party’; and (3) ‘the district court … provide[s] a concise but clear explanation of its reasons for the fee award.'” That occurred here.
The gory details are well worth reading. Some of the results certainly could not have been surprising to the relator. For example, his counsel sought to be compensated for the attendance of “upwards of four attorneys” at “straightforward depositions,” and for spending 78 billable hours on a response to a five-page motion for reconsideration. Counsel who submit fee applications will benefit from studying this opinion, as instruction in both what to do and what not to do.