United States District Court, M.D. Georgia, Macon Division
UNITED STATES OF AMERICA ex rel. MELISSA D. ZEDIKER,
ORTHOGEORGIA. Defendant. And STATE OF GEORGIA ex rel. MELISSA D. ZEDIKER, Plaintiff – Relator,
T. TREADWELL, UNITED STATES DISTRICT JUDGE
November 9, 2015, Relator Melissa Zediker brought a qui
tam action under the False Claims Act, 31 U.S.C.
§§ 3729-3732 (“FCA”), and the Georgia
False Medicaid Claims Act, O.C.G.A. § 49-4-168, et
seq. (“GFMCA”), alleging the
Defendantssubmitted false claims to federal
healthcare programs and took illegal kickbacks. See
generally Doc. 2. After the Government (the United
States and the State of Georgia), intervened with its own
complaint and some Defendants were dismissed, the Relator,
the Government, and Defendant OrthoGeorgia reached a $760,
000.00 settlement of the Government’s claims. The only
remaining issues are (1) what percentage of the settlement
Zediker should recover for her contribution to the qui
tam action and (2) what amount Zediker’s counsel
should be awarded in attorneys’ fees and costs. For the
following reasons, Zediker is awarded a 15% share
($114, 000.00) of the $760, 000.00
settlement amount, and her counsel are awarded $145,
303.37 in attorneys’ fees and costs.
was employed by OrthoGeorgia for over ten years. Doc. 2
¶ 30. She initially handled administrative work, then
worked her way up to become Chief Operating Officer.
Id. After leaving OrthoGeorgia in December 2014,
Zediker worked for now-dismissed defendant Urology
Specialists of Georgia (“USG”) until she was
terminated in July 2015. Id. ¶ 32. Zediker was
then arrested and subsequently indicted under state law for
stealing from OrthoGeorgia and USG. Coincidentally, or not,
between the time of her arrest and indictment, Zediker filed
this qui tam action against OrthoGeorgia and USG.
Apparently convinced that Zediker had a “near
photographic memory, ” Zediker’s counsel included
in the 158-page complaint a vast and wide array of
allegations, so vast and so wide that the Government argues
the complaint was a mostly unhelpful “shotgun”
pleading. Docs. 44 at 13; 47 at 14; see generally
Doc. 2. Shortly after filing her complaint, Zediker asked the
Court to unseal her complaint because of the criminal
proceeding. Doc. 52 n.12. While her qui tam
complaint may have been of some benefit to Zediker in the
criminal prosecution, from that point forward, the Government
could not investigate the case covertly. See Doc. 47
the Government thoroughly investigated Zediker’s myriad
theories of liability and concluded most were “not
substantiated by other evidence, were not valuable enough to
be worthy of pursuit, were not legally viable, or were
factually impossible in light of the factual claims submitted
by the Defendants.” Doc. 47 at 5. According to the
Government, had Zediker complied with Federal Rule of Civil
Procedure 9(b)’s pleading requirements for fraud, she
would have made the Government’s job much easier. For
example, a properly drafted complaint could have likely
eliminated the need for the Government to ask extensive
follow-up questions about the allegations and “expend a
disproportionate number of resources at the outset of the
case to develop a meaningful investigative plan.”
Id. at 4-5. But even then, Zediker’s responses
were not satisfactory. For example, Zediker misidentified a
key witness for one of her claims. Id. at 5-6.
most significantly, the Government doubted, reasonably,
Zediker’s credibility and usefulness, given, initially,
the pending criminal charges and, ultimately, her guilty plea
to 50 counts of theft and forgery. Id. at 3, 7.
Unquestionably, and pretermitting whether Zediker’s
qui tam complaint was in whole or in part a tactic
employed in Zediker’s criminal defense,  Zediker’s
crimes have loomed large throughout this litigation. In her
guilty plea colloquy, the presiding judge told Zediker that
“[r]egardless of what OrthoGeorgia or the other entity
may have been doing . . . [t]wo wrongs don’t make a
right. . . .” Doc. 47-2 at 33:13-15. Zediker’s
wrongs were certainly significant. In a nutshell, through a
multifaceted series of fraudulent schemes involving company
credit cards, misuse of social security numbers, and forged
loan applications, Zediker stole $711, 881, or at least
that’s what she agreed to pay in restitution.
Id. at 5-16, 35. According to the prosecution, the
evidence would have showed that Zediker stole more. Doc. 47-2
Government only learned of Zediker’s guilty plea the
day after it was entered, and only then from news coverage
and counsel for OrthoGeorgia. Doc. 47 at 7. Up until then,
Zediker’s counsel had assured the Government that the
criminal charges were “trumped up.” Id.
at 17. Clearly, this was not true. Id.
Government came to the realization that almost all of
Zediker’s claims lacked merit, it engaged in settlement
discussions with OrthoGeorgia. Persistently and aggressively,
Zediker attempted to inject her rejected allegations into
those discussions. The Government, convinced her allegations
were unfounded, again and again rebuffed Zediker, sticking to
its decision to narrow the case and dismiss USG as a
defendant. Id. at 8.
December 2018, the Government and OrthoGeorgia reached an
agreement in principle, which Zediker strongly opposed.
Id. Then, days before the Government’s
deadline to intervene, Zediker “abruptly changed
position, reserving only disputes concerning Relator’s
share and attorney’s fees.” Id. at 9.
Zediker agreed “that [the] Agreement is fair, adequate,
and reasonable under all the circumstances.” Doc. 47-1
February 19, 2019, with the final settlement pending, the
Government filed its scaled-down intervenor complaint and
dismissed USG as a defendant. Docs. 35; 36. The complaint
raised only three relatively minor claims. See
generally Doc. 35. They were: (1) the E/M-Injection
claim, (2) the Arthrex claim, and (3) the Veritas
claim. Significantly, of Zediker’s 158-page
complaint, only a small fraction of the allegations are
specifically related to these claims. Docs. 47 at 4; 47-1 at
2; see generally Doc. 2. On March 27, 2019, the
parties filed a joint stipulation of dismissal, stating that
the parties had finalized their settlement agreement. Doc.
38. Pursuant to the agreement, OrthoGeorgia paid $760, 000,
only $380, 000 of which was restitution. See
generally Doc. 47-1; Doc. 47 at 3.
briefing, Zediker expends much energy extolling generally the
virtues of the FCA-a point, the Court told Zediker’s
counsel, not necessary to make; the Court knows the FCA to be
a good thing, its experience in this case notwithstanding.
Enacted in 1863 in an effort to combat massive fraud
perpetrated by large contractors during the Civil War, the
FCA prohibits false or fraudulent claims for payment from the
Government. Universal Health Servs., Inc. v. United
States ex. rel. Escobar, - U.S. -, 136 S.Ct. 1989, 1996
(2016) (internal quotation marks and citation omitted). The
FCA authorizes civil actions to remedy such prohibited
conduct, which may be brought by the Attorney General, 31
U.S.C. § 3730(a), or by private individuals in the
Government's name, § 3730(b)(1), also known as
“qui tam” suits. Hopper v. Solvay Pharm.,
Inc., 588 F.3d 1318, 1321-22 (11th Cir. 2009). When an
FCA suit is brought by an individual, the Government has the
right to intervene and take control of the action. 31 U.S.C.
§ 3730(b)(2), (c)(1). When the Government intervenes and
the suit is successfully concluded, the FCA provides that the
individual initiating the suit-known as the relator-is
entitled to an award, or relator’s share, of “at
least 15 percent but not more than 25 percent of the proceeds
of the action or settlement of the claim, depending upon the
extent to which the person substantially contributed to the
prosecution of the action, ” plus reasonable
attorneys’ fees and costs. 31 U.S.C. § 3730(d)(1).
Government contends that Zediker is entitled to the statutory
minimum share: 15% of the $760, 000 settlement. Doc. 47 at
13. Zediker strongly disagrees. She unhelpfully devotes a
significant portion of her briefs complaining about how the
Government’s “cram[ming] statutory minimums on
relators” shows its “animosity toward
relators.” See Docs. 44 at 3-7; 52 at 2-7.
She then argues that, under the “two-prong
contribution” test, she should be awarded a 24% share.
Id. at 9, 20. Her argument lacks merit.
minimum share is typically considered a finder’s fee.
United States ex rel. Alderson v. Quorum Health Grp.
Inc., 171 F.Supp.2d 1323, 1331 (M.D. Fla.
2001).“This incentive compensation is paid
to a relator ‘even if that person does nothing more
than file the action in federal court.’”
Id. n.29 (quoting 132 Cong. Rec. H9382–03
(Oct. 7, 1986) (statement of Rep. Berman)). Congress permits
increased rewards, “above 15% and up to 25%,
” to “encourage assistance from the private
citizenry that can make a significant impact on bolstering
the Government's fraud enforcement effort.” See
Id . at 1331, 1332 (quoting S.Rep. No. 99–345 at 8
(1986) and 132 Cong. Rec. H9382-03 (Oct. 7, 1986) (statement
of Rep. Berman) (emphasis added)). The maximum reward of 25%
is reserved for relators who “actively and uniquely
assist the government in the prosecution of the case.”
United States ex rel. Burr v. Blue Cross & Blue
Shield of Fla., Inc., 882 F.Supp. 166, 168 (M.D. Fla.
1995) (citation omitted). The relator bears “the burden
of proving that [her] contribution warrants up to 25% of the
settlement.” United States ex rel. Marchese v. Cell
Therapeutics, Inc., 2007 WL 4410255, at *7 (W.D. Wash.
2007). Logically, therefore, the starting point for
determining the relator’s share is 15%, and greater
assistance results in greater reward. The actual percentage
awarded is left to the court's informed discretion.
Quorum Health, 171 F.Supp.2d at 1331.
inform that discretion, courts have turned to what has been
called the “Senate factors” and the Department of
Justice’s (“DOJ’s”) internal criteria
for calculating the relator’s share. See Id .
at 1332-33; United States ex rel. Barker v. Columbus
Reg’l Healthcare Sys., 2016 WL 1241095, at *5
(M.D. Ga. 2016); see also United States ex rel. Bibby v.
Wells Fargo Bank, N.A., 369 F.Supp. 3d 1346, 1354
(N.D.Ga. 2019). The Senate factors are: (1) the significance
of the information provided to the government by the qui
tam plaintiff, (2) the contribution of the qui
tam plaintiff to the result, and (3) whether the
information provided by the relator was previously known to
the government. Quorum Health, 171 F.Supp.2d at 1332
(citing S. Rep. No. 99-345, at 28 (1986)). The DOJ guidelines
cover these factors and more. They are broken into two
categories. One category includes guidelines that increase
the relator percentage:
1. The relator reported the fraud promptly.
2. When he learned of the fraud, the relator tried to stop
the fraud or reported it to a supervisor or the Government.
3. The qui tam filing, or the ensuing investigation,
caused the offender to halt the fraudulent practices.
4. The complaint warned the Government of a significant
5. The complaint exposed a nationwide practice.
6. The relator provided extensive, first-hand details of the
fraud to the Government.
7. The Government had no knowledge of the fraud.
8. The relator provided substantial assistance during the
investigation and/or pre-trial phases of the case.
9. At his deposition and/or trial, the relator was an
excellent, credible witness.
10. The relator's counsel provided substantial assistance
to the Government.
11. The relator and his counsel supported and cooperated with
the Government during the entire proceeding.
12. The case went to trial.
13. The FCA recovery was relatively small.
14. The filing of the complaint had a substantial adverse
impact on the relator.
Id. at 1333-34. The second category includes
guidelines that decrease the percentage:
1. The relator participated in the fraud.
2. The relator substantially delayed in reporting the fraud
or filing the complaint.
3. The relator, or relator's counsel, violated FCA
a. complaint served on defendant or not filed under seal.
b. the relator publicized the case while it was under seal.
c. statement of material facts and evidence not provided.
4. The relator had little knowledge of the fraud or only
5. The relator's knowledge was based primarily on public