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Jacobs Law, LLC v. Boston Out-Patient Surgical Suites, LLC

Superior Court of Massachusetts, Suffolk

August 17, 2018

The JACOBS LAW, LLC
v.
BOSTON OUT-PATIENT SURGICAL SUITES, LLC

          DECISION AND ORDER RE PLAINTIFF’S COUNSEL’S PETITION FOR FEES AND COSTS IN COMPLIANCE WITH COURT ORDER (DOCKET ENTRY NO. 36.0)

          Brian A. Davis, Associate Justice of the Superior Court

         This is a putative class action in which defendant Boston Out-Patient Surgical Suites, LLC ("Defendant" or "BOSS") stands accused of having illegally overcharged for providing copies of patient medical records in violation of G.L.c. 111, § 70 ("Chapter 70"). The named plaintiff is The Jacobs Law, LLC ("Plaintiff" or "Jacobs Law"), a Boston-based law firm. Jacobs Law alleges in its First Amended Class Action Complaint and Demand for Jury Trial ("Amended Complaint," Docket Entry No. 4.0) that it submitted requests for medical records to BOSS on behalf of certain Jacobs Law clients, and that BOSS improperly demanded the payment of various fees and costs that exceed the maximum amounts permitted by law as a precondition for production of the requested records. Amended Complaint, ¶¶ 13-27. Jacobs Law further claims that its difficulties with BOSS are not unique, and that BOSS "has engaged in similar acts and omissions in charging for and receiving payments ... in excess of what may be permissibly charged pursuant to [Chapter 70] with respect to numerous similarly situated business entities ..." Id., ¶ 40.

         Jacobs Law, through Attorneys Travis Jacobs, Stefano D’Agostino, and Eric Moreno, commenced this action in May 2014 "on behalf of [Jacobs Law] and all other similarly situated business entities." Plaintiff’s Class Action Complaint and Demand for Jury Trial (Docket Entry No. 1.0) at 1. As indicated, Jacobs Law acted, initially at least, as both the lead named plaintiff and lead counsel for the putative class, which it defined as,

those business entities or representatives as defined by M.G.L.c. 111, § 70, who (a) requested medical and/or billing records from Boston Out-Patient Surgical Suites; (b) received an invoice (without the documents requested) from BOSS demanding a prepayment administration fee for copies of medical and/or billing records; (c) paid BOSS in accordance with the invoice; (d) received medical records and/or bills from BOSS; and (e) were improperly charged a fee for copies of medical and/or billing records in an amount exceeding the charges permitted by M.G.L.c. 111, § 70.

Id., ¶ 45. Jacobs Law further represented that its claims were "typical of the claims of other members of the class," and that it would "fairly and adequately protect the interests of the class ..." Id., ¶¶ 47-48.

         BOSS responded to Plaintiff’s class action complaint by filing a motion to dismiss on various grounds, including the ground that Jacobs Law was prohibited, for ethical reasons, "from serving as both class counsel and named [class] plaintiff ..." Defendant’s Motion to Dismiss (Docket Entry No. 5.0) at 1. See also In re California Micro Devices Litigation, 168 F.R.D. 257, 262 (N.D.Cal. 1996) (recognizing the "long line of cases which have prevented attorneys from serving as both class representatives and class counsel" because, in part, "[i]f one attorney played both roles, he would be sorely tempted to sacrifice the interests of his fellow class members in favor of maximizing his own fees").

         Before BOSS’ motion to dismiss was heard by the Court, Jacobs Law attempted to resolve the conflict created by its participation as both class counsel and as named plaintiff by retaining new counsel-Attorney Walter H. Jacobs and Attorney Alexandria A. Jacobs of W. Jacobs and Associates at Law, LLC ("W. Jacobs and Associates")-who, while not strictly members of Jacobs Law, are the father and sister of Jacobs Law’s lead attorney, Travis Jacobs. Attorneys Travis Jacobs, Stefano D’Agostino, and Eric Moreno all withdrew as counsel for Plaintiff at the same time Attorney Walter Jacobs and Attorney Alexandria Jacobs filed their appearances in August 2014.

         Plaintiff’s conflict was not so easily laid to rest, however. In a decision issued on July 9, 2015, this Court (per Kaplan, J.) held that representation of the putative class members by the father and sister of the named plaintiff still presented an impermissible conflict of interest. See Memorandum and Order on Defendant’s Motion to Dismiss (the "July 2015 Order," Docket Entry No. 9.0) at 4-8. The Court simultaneously ordered that it would strike the class allegations of Plaintiff’s Amended Complaint,

unless, before the filing of any motion for class certification, either Class Counsel or the Class Representative has been replaced such that the holders of the two positions do not share any close familial, business or social ties ...

Id. at 11-12.

         Nine months later, Attorney Charles F. Perrault and Attorney Steven S. Blair of the Perrault Law Group filed appearances on Plaintiff’s behalf. Attorney Walter Jacobs and Attorney Alexandria Jacobs did not immediately withdraw, however, at that time. Rather, it took yet another order from this Court (again, per Kaplan, J.), issued on March 8, 2017 (Docket Entry No. 24.0), to get Attorney Walter Jacobs and Attorney Alexandria Jacobs to withdraw their appearances on behalf of Jacobs Law. Their joint Notice of Withdrawal eventually was filed on March 20, 2017.

         The litigation continued to move forward following the departure of Attorney Walter Jacobs and Attorney Alexandria Jacobs. At a status conference on July 12, 2018, the parties reported that they had reached a settlement of all class claims. A written settlement agreement reportedly is in the works, but has not yet been filed with the Court. What has been filed, however, is a Petition for Fees and Costs submitted by W. Jacobs and Associates for services allegedly rendered to Jacobs Law in the 2014-2017 timeframe. As represented to the Court, BOSS and Jacobs Law have agreed that Plaintiff’s counsel is entitled to recover their legal fees and costs in this proceeding as part of the parties’ proposed class action settlement. As further represented to the Court, BOSS and Jacobs Law also have agreed that what, if any, fees and costs are to be recovered by W. Jacobs and Associates for its services on behalf of Plaintiff is to be resolved by the Court.

         The Court has received and reviewed W. Jacobs and Associates’ Petition for Fees and Costs, which includes the supporting Affidavit of Attorney Walter Jacobs and a series of bi-monthly legal invoices. In total, W. Jacobs and Associates seeks attorneys fees in the amount of $96, 570.00, representing approximately 241 hours worked over a roughly three-and-a-half-year period at $400 per hour.[1] The vast bulk of the fees pertain to work performed after this Court expressly ordered in July 2015 that either class counsel or the named plaintiff be replaced "such that the holders of the two positions do not share any close familial, business or social ties," and at least $4, 400.00 of the fees pertain to work performed by Attorney Walter Jacobs after he withdrew as counsel for Jacobs Law in March 2017. W. Jacobs and Associates also seeks costs of $275.00 for "filing and summons by the Plaintiff" and $37.00 for "service of the Complaint," although no W. Jacobs and Associates attorney appeared in this action until after these costs were incurred. No opposition or response to W. Jacobs and Associates’ Petition for Fees and Costs has been submitted by Jacobs Law or BOSS.

         The amount of attorneys fees to be awarded in any particular case is "committed to the sound discretion of the judge." Berman v. Linnane,434 Mass. 301, 302-03 (2001). Notwithstanding that discretion, the Massachusetts Supreme Judicial Court has identified various objective and subjective ...


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