louis r. miller (state bar no. 54141) miller barondess, llp … · 2020-06-30 · cv-02509-lhk,...
TRANSCRIPT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
LOUIS R. MILLER (State Bar No. 54141) [email protected] AMNON Z. SIEGEL (State Bar No. 234981) [email protected] MILLER BARONDESS, LLP 1999 Avenue of the Stars, Suite 1000 Los Angeles, California 90067 Telephone: (310) 552-4400 Facsimile: (310) 552-8400 Attorneys for Plaintiff Herring Networks, Inc.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HERRING NETWORKS, INC.,
Plaintiff,
v. RACHEL MADDOW; COMCAST CORPORATION; NBC UNIVERSAL MEDIA, LLC; AND MSNBC CABLE LLC.
Defendants.
CASE NO. 3:19-cv-01713-BAS-AHG Assigned for All Purposes to: Hon. Cynthia Bashant PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT [Filed Concurrently with Declaration of Amnon Z. Siegel and Evidentiary Objections in Support of Opposition] Action Filed: September 9, 2019 Trial Date: None
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.931 Page 1 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 i Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
TABLE OF CONTENTS Page
I. INTRODUCTION ..................................................................................................................1
II. BACKGROUND ....................................................................................................................2
A. The Lawsuit ................................................................................................................2
B. The Anti-SLAPP Motion ...........................................................................................3
C. The Court Grants The Anti-SLAPP Motion, And Plaintiff Appeals .........................4
III. DEFENDANTS’ FEE REQUEST IS UNREASONABLE ...................................................4
A. Defendants’ Rates Exceed The Reasonable Rates For This Matter ...........................5
1. The Attorneys’ Hourly Rates Are Excessive .................................................5
2. The Paralegal Rates Are Excessive and Unsubstantiated ..............................8
B. The Hours Worked Are Excessive .............................................................................9
1. Experienced Counsel ....................................................................................10
2. Overstaffing and Duplicative Work .............................................................10
3. Work Not Related to the Anti-SLAPP Motion ............................................11
4. Ministerial Tasks ..........................................................................................12
IV. CONCLUSION ....................................................................................................................12
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.932 Page 2 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 ii Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Ambriz v. Arrow Fin. Servs., LLC, No. CV 07-5423-JFW (SSx), 2008 WL 2095617 (C.D. Cal. May 15, 2008) ..................... 12
Barjon v. Dalton, 132 F.3d 496 (9th Cir. 1997) ............................................................................................. 1, 5
Brighton Collectibles, Inc. v. RK Tex. Leather Mfg., No. 10-CV-419-GPC (WVG), 2014 WL 5438532 (S.D. Cal. Oct. 24, 2014) ...................... 8
Clifford v. Trump, No. CV 18-06893-SJO (FFMx), 2018 WL 6519029 (C.D. Cal. Dec. 11, 2018) .................. 9
Cornwell v. Belton, No. 04-CV-658 H(BLM), 2008 WL 80724 (S.D. Cal. Jan. 7, 2008) .................................... 7
D’Lil v. Best W. Encina Lodge & Suites, No. CV 02-9506 DSF (VBKx), 2010 WL 11655476 (C.D. Cal. Apr. 13, 2010) ............... 12
Fleming v. Coverstone, No. 08cv355 WQH (NLS), 2009 WL 764940 (S.D. Cal. Nov. 18, 2009) ............................ 7
Graham-Sult v. Clainos, 756 F.3d 724 (9th Cir. 2014) ................................................................................................. 9
In re High-Tech Emp. Antitrust Litig., No. 11-CV-02509-LHK, 2015 WL 5158730 (N.D. Cal. Sept. 2, 2015) ............................... 8
Metabolife Int'l, Inc. v. Wornick, 213 F. Supp. 2d 1220 (S.D. Cal. 2002) ................................................................................. 9
Milton H. Green Archives, Inc. v. Julien’s Auction House, LLC, No. CV 05-7686 AHM (FMOx), 2007 WL 4898365 (E.D. Cal. Dec. 20, 2007) ............... 11
Mogck v. Unum Life Ins. Co. of Am., 289 F. Supp. 2d 1181 (S.D. Cal. 2003) ............................................................................... 11
Plush Lounge Las Vegas LLC v. Hotspur Resorts Nev. Inc., 371 F. App’x 719 (9th Cir. 2010) .......................................................................................... 8
Ravet v. Stern, No. 07CV31 JLS (CAB), 2010 WL 3076290 (S.D. Cal. Aug. 6, 2010) ............................... 7
Rudy v. City of Lowell, 883 F. Supp. 2d 324 (D. Mass. 2012) ................................................................................. 10
ScripsAmerica, Inc. v. Ironridge Glob. LLC, No. CV 14-03962 SJO (AGRx), 2016 WL 6871280 (C.D. Cal. Jan. 12, 2016) ................... 8
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.933 Page 3 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 iii Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001) ............................................................................................... 5
Souryavong v. Lackawanna County, 159 F. Supp. 3d 514 (M.D. Pa. 2016) ................................................................................. 10
Yeager v. Bowlin, No. CIV. 2:08-102 WBS JFM, 2010 WL 2303273 (E.D. Cal. June 7, 2010) ..................... 12
Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-CV-0541-GPC (WVG), 2014 WL 6851612 (S.D. Cal. Dec. 3, 2014) ..................... 8
STATE CASES
590 E. Cty. Boulevard LLC v. Backcountry Against the Dump, Inc., 6 Cal. App. 5th 426 (2016) .................................................................................................... 7
Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315 (2008) .................................................................................. 5, 11, 12
Ketchum v. Moses, 24 Cal. 4th 1122 (2001) ......................................................................................................... 5
Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 39 Cal. App. 4th 1379 (1995) .............................................................................................. 11
S. B. Beach Props. v. Berti, 39 Cal. 4th 374 (2006) ......................................................................................................... 11
Vargas v. City of Salinas, 200 Cal. App. 4th 1331 (2011) .............................................................................................. 9
FEDERAL RULES
Fed. R. Civ. P. 26 .............................................................................................................................. 3
OTHER AUTHORITIES
S. Comm. on Judiciary, analysis of S. 1264, 1991-1992 Reg. Sess. (as introduced Jan. 6, 1992) .................................................................................................................................... 11
U.S. Bureau of Labor Statistics, https://www.officialdata.org/us/inflation/2008?amount=450 (last visited June 25, 2020) ...................................................................................................................................... 7
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.934 Page 4 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 1 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
I. INTRODUCTION
Defendants seek more than $300,000 in attorneys’ fees for a single anti-
SLAPP motion challenging a single cause of action for defamation over a one-line
statement. Defendants have not met their burden to justify this exorbitant request.
According to Defendants’ counsel, the statement at issue was a “classic
example of nonactionable opinion based on truthful disclosed facts.” Yet
Defendants still retained two senior, high-profile partners, along with a large team of
associates, paralegals, and “researchers,” to rack up over 355 hours of work.
Defendants’ overstaffing led to excessive, duplicative, and unnecessary work.
Defendants are now trying to collect all of those unwarranted fees from Plaintiff.
Defendants also seek astronomical rates of up to $1,525 per hour for one
partner and $1,395 for another. The rates for associates are also excessive: one
associate (Mr. Bach) charges just under $1,000 per hour ($960); and a junior
associate’s rate (Ms. Moshell, who graduated from law school three years ago and
spent over 100 hours on the anti-SLAPP motion) is $740 per hour. Defendants fail
to submit evidence meeting their burden of showing these rates are appropriate for
this type of case in this community. Instead, Defendants point to requested rates
from the $59 billion Pacific Gas & Electric bankruptcy in the Northern District of
California, which are still lower than Defendants’ exorbitant rates. Defendants’
strategy seems to be to request an outlandish rate such that, even when it is reduced,
they still receive above-market fees. This strategy should not be countenanced.
The law is clear: Defendants are entitled only to the reasonable hourly rates
prevailing in the community for similar work. The “relevant community” is the
district in which the lawsuit proceeds. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.
1997). Defendants do not point to a single decision from the Southern District of
California or California state court cases in San Diego to support the rates they
request for a straightforward, one-claim defamation case. That is because the
prevailing rates in the Southern District of California for this type of work are
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.935 Page 5 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 2 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
significantly lower (even for more complex matters); specifically, reasonable rates
for a similar anti-SLAPP motion in the Southern District of California would be
$535 per hour for partners, $300 per hour for senior associates, and $260 per hour
for junior associates. This prevailing rate is approximately three times lower than
the rates Defendants seek here.
On top of overbilling, overstaffing, and excessive hourly rates, Defendants are
also requesting fees that are not recoverable under the anti-SLAPP statute, including
fees for procedural matters and case management unrelated to the anti-SLAPP
motion.
The Court should reject Defendants’ request for a market-shattering fee
award. Plaintiff respectfully requests that the Court give Defendants what the law
provides for: a lodestar award based on reasonable market rates and hours
appropriately spent. As set forth in more detail below and the concurrently filed
Declaration of Amnon Z. Siegel (“Siegel Decl.”), the Court should award no more
than $84,995.80 in fees.
II. BACKGROUND
A. The Lawsuit
This action arises out of a short July 22, 2019 segment of the Rachel Maddow
Show on MSNBC. (Compl. ¶ 35.) On the show, Maddow made the claim that
Plaintiff’s news network, One America News (“OAN”), “really literally is paid
Russian propaganda.” (Id. ¶ 38.)
On July 25, 2019, OAN wrote to Maddow requesting a retraction because the
statement is provably false (OAN is owned and funded exclusively by the Herring
family located in San Diego). (Id. Ex. B.) Though one of Maddow’s colleagues
(Chris Matthews) would later retract a similar statement about OAN, Maddow
refused. (Id. Ex. C.) On September 9, 2019, Plaintiff filed a Complaint asserting a
single claim for defamation.
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.936 Page 6 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 3 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
B. The Anti-SLAPP Motion
On September 25, 2019, counsel for Defendants contacted Plaintiff’s counsel
to inform them of Defendants’ intention to file the anti-SLAPP motion. (Siegel
Decl. ¶ 2.) Defendants did not initially specify whether their anticipated motion
would raise factual issues requiring discovery. (Id.) On September 26, 2019,
Defendants’ counsel informed Plaintiff’s counsel that they did not intend to raise
factual issues in their anti-SLAPP motion, but did not disclose what the basis for
their motion would be. (Id. ¶ 3.)
On September 26, 2019, Plaintiff’s counsel explained that Plaintiff could not
simply take Defendants at their word that their anti-SLAPP motion would not
involve factual issues and requested to meet and confer to discuss the basis of their
motion. (Siegel Decl. ¶ 4.) The parties held that conference on October 7, 2019.
Defendants’ counsel told Plaintiff’s counsel that their motion would not challenge
the malice element (an issue commonly requiring discovery). (Id.) While
Defendants claim that the parties “did not reach agreement on the permissibility of
discovery” (Edelman Decl. ¶ 7), Plaintiff thereafter did not propound discovery on
Defendants or make any motion for expedited discovery. (Siegel Decl. ¶ 5.) The
parties did not hold, and Plaintiff did not ask for, a Rule 26 conference nor did the
parties file Rule 26 reports. (Id.)
Defendants filed their anti-SLAPP motion on October 21, 2019. (Dkt. 18.)
The motion was framed as a pleadings challenge. (Id.) The issue presented was
whether Maddow’s statement as alleged was protected opinion or, if not, was
substantially true. (Id.)
On December 2, 2019, Plaintiff filed its opposition. (Dkt. 19.) The
opposition included an expert analysis from Professor Stefan Gries and other
evidence. (Dkt. 19-5.)
Defendants filed their reply on December 9, 2019. (Dkt. 20.) Defendants did
not address the substance of Plaintiff’s evidentiary submissions or provide their own
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.937 Page 7 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 4 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
evidence. (Id.) Instead, Defendants argued that evidentiary submissions were
procedurally improper. (Id.) The rest of the reply brief was a rehashing of the
arguments Defendants made in their opening anti-SLAPP motion. (Id.)
On December 9, 2019, Chris Matthews, the host of “Hardball,” a popular TV
show on MSNBC, stated that OAN was “Russian owned,” but later retracted his
statement. (Dkt. 21.) On December 11, 2019, Plaintiff filed an ex parte application
to supplement the record with the video and transcript of Matthews’ segment. (Id.)
Defendants filed a four-page opposition to the ex parte application on December 13,
2019. (Dkt. 22.)
The Court held a telephonic hearing on the anti-SLAPP motion on May 19,
2020. During the hearing, counsel for Defendants stated that the defamatory
statement at issue was a “classic example of nonactionable opinion based on truthful
disclosed facts,” and he’d never “seen a case where there has been more Ninth
Circuit decisions that directly support” Defendants’ position. (Siegel Decl. Ex. A
(Transcript of May 19 Proceedings at 5:3-7).)
C. The Court Grants The Anti-SLAPP Motion, And Plaintiff Appeals
On May 19, 2020, the Court issued an order granting Defendants’ anti-
SLAPP motion. (Dkt. 30.) Although the Court found that Maddow’s statement was
susceptible to being proven true or false, the Court held that a reasonable factfinder
could nevertheless only conclude that the statement was one of opinion. (Id.)
On June 2, 2020, Plaintiff filed a notice of appeal. (Dkt. 31.) In light of the
pending appeal, Plaintiff suggested that Defendants raise the issue of attorneys’ fees
after resolution of the appeal, when it would either be moot or could be handled
more efficiently in combination with their fees motion for the appeal. (Siegel Decl.
¶ 8.) Defendants never responded to Plaintiff’s request. (Id.)
III. DEFENDANTS’ FEE REQUEST IS UNREASONABLE
The California Supreme Court has ruled that the “lodestar adjustment
approach should be applied to fee awards under Code of Civil Procedure section
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.938 Page 8 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 5 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
425.16” based on the “careful compilation of the time spent and reasonable hourly
compensation of each attorney” who worked on the motion. Ketchum v. Moses, 24
Cal. 4th 1122, 1131-32, 1136 (2001) (citation omitted). The Legislature “did not
intend recovery of fees and costs as a windfall.” Christian Research Inst. v. Alnor,
165 Cal. App. 4th 1315, 1321 (2008). Courts have “broad discretion to adjust the
fee downward or deny an unreasonable fee altogether.” Id. at 1321-22 (citation
omitted) (affirming reduction of recoverable hours on anti-SLAPP motion in
defamation action from 600 to 71).
A. Defendants’ Rates Exceed The Reasonable Rates For This Matter
1. The Attorneys’ Hourly Rates Are Excessive
Defendants cannot justify the astronomical rates—as high as $1,525 per
hour—they use for their proposed lodestar calculation.
Defendants admit that rates in a fee award must be calculated based upon “the
reasonable hourly rate prevailing in the community for similar work.” (Mot. at 7:5-6
(emphasis added).) The “relevant community” is the district in which the lawsuit
proceeds. Barjon, 132 F.3d at 500. But Defendants do not point to a single decision
from the Southern District of California to support the rates they request. As the
moving parties, Defendants bear the burden of proof as to the prevailing market rate.
Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). They have failed to meet
that burden.
In fact, Defendants’ own evidence undermines the reasonableness of their
rates. Defendants submit an excerpt from the Public Rates Report issued by
Thomson Reuters on January 14, 2020. (Edelman Decl. Ex. H.) As an initial
matter, the Public Rates Report is devoid of any detail concerning the type of work
the attorneys performed for those rates or whether a court deemed them reasonable.
The relevant inquiry must be focused on rates in the community for “similar work,”
so the Public Rates Reports are not reliable evidence because they do not identify
the type of work involved. Moreover, this report “shows the rates charged by
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.939 Page 9 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 6 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
attorneys in various jurisdictions, including the northern and central districts of
California,” with rates in the Northern District of California of up to $1,145 per
hour. (Id. (emphasis added).) Defendants would like to keep the focus on the
wrong jurisdictions (Northern and Central District of California), because the rates
are higher there. That is not the law. Defendants must prove their rates are
reasonable in the Southern District of California, but they have not done so.
Defendants also submit a 2018 version of the same Public Rates Report (the
“2018 Report”). (Id. Ex. I.) Without specifying the type of work involved, the 2018
Report nonetheless shows that rates in the Southern District of California are far less
than what Defendants seek. (See id. at 18 ($640 per hour for partner at Sheppard
Mullin Richter & Hampton in 2015, $575 per hour for senior associate with 13
years’ experience); id. at 64 ($435 per hour for partner); id. at 71 ($590 per hour for
partner, $395 per hour for associate with seven years’ experience); id. at 80 ($595
per hour for shareholder, $350 per hour for associate); id. at 104 ($550 per hour for
partner); id. at 117 ($550 per hour for partner, $295 per hour or associate).
Defendants cherry-pick the highest rate they could identify—$800 per hour, still
many hundreds of dollars less than what they seek—but they are not entitled to the
exception; they are entitled to the prevailing rates.
Defendants’ contention that their rates are “in accord with what other
California district courts have found reasonable” is thus misguided because they cite
exclusively to cases from other districts: the Northern and Central Districts of
California. (Mot. at 12:19-13:17.) Those cases are not relevant to establishing the
prevailing rate in the local community at issue here. Defendants’ submission of an
April 2020 fee application from a bankruptcy court in the Northern District of
California illustrates the overreaching Defendants engage in to justify their
exorbitant hourly rates. (Edelman Decl. Ex. G.) Again, the Northern District is not
the relevant community. Making matters worse, those proceedings involve a
complex $59 billion Chapter 11 reorganization plan for Pacific Gas & Electric, one
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.940 Page 10 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 7 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
of the nation’s largest public utility providers—proceedings far more complex than
determining whether a single sentence was fact or opinion. (Siegel Decl. Ex. B.)
There is a reason Defendants do not point to any case law on the rates in the
Southern District of California: case law shows that the prevailing rates in the
Southern District of California and San Diego are significantly less than what
Defendants are requesting here: 590 E. Cty. Boulevard LLC v. Backcountry Against
the Dump, Inc., 6 Cal. App. 5th 426, 437-39 (2016) (hourly rate of $275 per hour
was reasonable for anti-SLAPP motion challenging a single cause of action); Ravet
v. Stern, No. 07CV31 JLS (CAB), 2010 WL 3076290, at *5 (S.D. Cal. Aug. 6,
2010) (finding hourly rate of $350 for complex civil litigator practicing since 1981
was reasonable); Fleming v. Coverstone, No. 08cv355 WQH (NLS), 2009 WL
764940, at *7 (S.D. Cal. Nov. 18, 2009) (finding that $425 for shareholder, $245 for
senior associate, and $220 for junior associate were reasonable hourly rates for the
anti-SLAPP attorneys’ fees for defamation claim based on the Court’s “knowledge
of prevailing standards in the community”); Cornwell v. Belton, No. 04-CV-658
H(BLM), 2008 WL 80724, at *1 (S.D. Cal. Jan. 7, 2008) (granting anti-SLAPP
attorneys’ fees at $400 per hour for the lead counsel and partner, $350 for appellate
law and motion counsel, and $250 for associates). Given this authority, reasonable
rates in the community when these cases were decided would be approximately
$450 per hour for partners, $250 per hour for senior associates, and $220 per hour
for junior associates.
After adjusting for inflation over this time period,1 Plaintiff respectfully
requests that the Court reduce the recoverable hourly rates to prevailing rates in the
community as follows: $535 for partners, $300 for senior associates, and $260 for
1 According to the U.S. Bureau of Labor Statistics’ Consumer Price Index, today’s
prices in 2020 are 19.09% higher than average prices in 2008. See
https://www.officialdata.org/us/inflation/2008?amount=450 (last visited June 25,
2020).
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.941 Page 11 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 8 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
junior associates.2
2. The Paralegal Rates Are Excessive and Unsubstantiated
Defendants seek hourly rates of $460 per hour for a paralegal and $270 per
hour for two “researchers.” But Defendants have failed to produce any evidence to
support these requested rates. And legal authority shows that these rates are actually
similar to prevailing attorney rates. There is thus no justification for these rates.3
Defendants cite only two cases granting fees for paralegals—one in the
Central District of California (ScripsAmerica, Inc. v. Ironridge Glob. LLC, No. CV
14-03962 SJO (AGRx), 2016 WL 6871280 (C.D. Cal. Jan. 12, 2016)) and one from
the Northern District of California (In re High-Tech Emp. Antitrust Litig., No. 11-
CV-02509-LHK, 2015 WL 5158730 (N.D. Cal. Sept. 2, 2015). Defendants have
presented no evidence of prevailing rates for paralegals or researchers in the relevant
community—the Southern District of California. Defendants have not met their
burden as to these fees. The Court should therefore deny their request for paralegal
and researcher fees. See Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No.
10-CV-0541-GPC (WVG), 2014 WL 6851612, at *6 (S.D. Cal. Dec. 3, 2014)
(denying paralegal fees because insufficient facts were presented as to the paralegal
hourly rate); Brighton Collectibles, Inc. v. RK Tex. Leather Mfg., No. 10-CV-419-
GPC (WVG), 2014 WL 5438532, at *5 (S.D. Cal. Oct. 24, 2014) (same).
The paralegals and researchers collectively billed 16.8 hours. (Edelman Decl.
2 The amount of the reduction for Defendants’ excessive hourly rates, and other
improper fees sought by Defendants, is set forth in the conclusion below. 3 Mr. Edelman’s Declaration stating that he “believe[s] that Gibson Dunn staffed
and litigated this case in a reasonable, efficient, and appropriate manner” is
conclusory and inadmissible. The Court should disregard that statement, which
certainly does not support the excessive hours and rates here. See Plush Lounge Las
Vegas LLC v. Hotspur Resorts Nev. Inc., 371 F. App’x 719, 720 (9th Cir. 2010)
(district court “did not abuse its discretion in striking large portions” of declarations
which “presented legal conclusions”).
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.942 Page 12 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 9 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
¶ 24.) The Edelman Declaration does not explain how much of this time was billed
at 2019 or 2020 rates, so it is impossible to precisely quantify the exact appropriate
reduction. Plaintiff calculates that Defendants request approximately $7,623 in
unsubstantiated fees for paralegals and researchers. This is not compensable.
B. The Hours Worked Are Excessive
Defendants spent over 350 hours on a single anti-SLAPP motion concerning a
single cause of action for defamation that hinged on a single statement. Defendants
fail to identify authority justifying these hours.
Instead, Defendants point to a series of decisions whose differences from this
matter serve to highlight how excessive their request is in context. (Mot. at 7:14-
8:3.) The anti-SLAPP motion at issue in Graham-Sult v. Clainos, 756 F.3d 724 (9th
Cir. 2014), challenged nine causes of action, implicating complex issues
surrounding the application of the litigation privilege, the statute of limitations, res
judicata, and the business judgment rule. Id. at 734-748. Metabolife International,
Inc. v. Wornick, 213 F. Supp. 2d 1220 (S.D. Cal. 2002), considered an anti-SLAPP
motion that challenged five causes of action and had already gone up on appeal to
the Ninth Circuit. Id. at 1220-21. Similarly, in Vargas v. City of Salinas, 200 Cal.
App. 4th 1331 (2011), the case had already made its way up to the California
Supreme Court, resulting in a seminal decision on the propriety of government
spending during elections, and the fee award included fees for the appellate
proceedings. Id. at 1336, 1351. In Clifford v. Trump, No. CV 18-06893-SJO
(FFMx), 2018 WL 6519029 (C.D. Cal. Dec. 11, 2018)—a high profile case against
the President—the court noted that the parties had briefed and litigated several other
motions prior to the anti-SLAPP motion, which was recoverable under Texas’ anti-
SLAPP statute. Id. at *2-3. None of these cases support Defendants’ request to
recover over 350 hours on an anti-SLAPP motion that challenged a single cause of
action about one statement on a brief segment of a cable news show.
In particular, the Court should reduce the number of lodestar hours because of
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.943 Page 13 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 10 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
the following reasons:
1. Experienced Counsel
According to Defendants, Theodore J. Boutrous is “a decorated First
Amendment attorney” and Scott A. Edelman is “one of the country’s preeminent
media and entertainment attorneys.” (Mot. at 11.) One might think that hiring two
of the nation’s leading partners on the issues raised by the anti-SLAPP motion
would at least have cut down on extensive background research into the area—
instead, they and their team of associates, paralegals, and researchers collectively
billed over 350 hours. In light of their experience and the limited set of issues
implicated in the anti-SLAPP motion, Defendants’ requested hours should be
reduced. See Rudy v. City of Lowell, 883 F. Supp. 2d 324, 327 (D. Mass. 2012)
(cutting the billed hours in half because the attorney “contends that his skill and
familiarity enabled him to work efficiently but, in light of that experience, the time
spent on such work was excessive”); Souryavong v. Lackawanna County, 159 F.
Supp. 3d 514, 538 (M.D. Pa. 2016) (cutting hours by nearly half because
experienced attorney should have been familiar with the issues).
Moreover, Scott Edelman’s time (17.5 hours) should be cut entirely, as it was
completely unnecessary to staff this case with two high-profile senior partners.
2. Overstaffing and Duplicative Work
Despite calling Maddow’s statement a “classic example of nonactionable
opinion based on truthful disclosed facts,” Boutrous and Gibson Dunn chose to staff
this case with five attorneys, two paralegals, and two researchers. Two of the
associates on the case have only three years of legal experience. (Edelman Decl.
Exs. D & E.) It is clear that Defendants’ counsel viewed this case as an opportunity
to train new associates and now wants OAN to cover the cost of that training.
This overstaffing resulted in excessive fees for duplicative work. The time
entries show that two associates spent significant time researching the same issues.
(Siegel Decl. ¶ 10.) Associates with minimal legal experience also spent excessive
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.944 Page 14 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 11 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
time drafting the anti-SLAPP motion (apparently as a training exercise), which was
then revised by a more senior associate, and then revised again by two partners.
(Id.)
In one instance, multiple attorneys spent hours drafting a one-page set of
notes for the hearing on the anti-SLAPP motion. (Id. ¶ 11.) Moreover, the time
entries show substantial time spent on internal communications between and among
the many lawyers staffed on the case. (Id. ¶ 12.)
These duplicative and unwarranted hours justify a 10% across-the-board
reduction. See Milton H. Green Archives, Inc. v. Julien’s Auction House, LLC, No.
CV 05-7686 AHM (FMOx), 2007 WL 4898365, at *6 (E.D. Cal. Dec. 20, 2007)
(reducing fee award by 10% based on duplicative work); Mogck v. Unum Life Ins.
Co. of Am., 289 F. Supp. 2d 1181, 1195 (S.D. Cal. 2003) (reducing fees for
“redundant, or otherwise unnecessary” hours spent on internal communications
(citation omitted)); Christian Research Inst., 165 Cal. App. 4th at 1326 (finding
matter was “overstaffed” and reducing fees where five attorneys were deployed on
anti-SLAPP motion).
3. Work Not Related to the Anti-SLAPP Motion
The California Supreme Court has made clear that “the fee ‘provision [in
Section 425.16] applies only to the motion to strike, and not to the entire action.’”
S. B. Beach Props. v. Berti, 39 Cal. 4th 374, 381 (2006) (quoting S. Comm. on
Judiciary, analysis of S. 1264, 1991-1992 Reg. Sess. (as introduced Jan. 6, 1992,
p.5)); Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 39 Cal. App. 4th 1379,
1383 (1995) (reversing fee award because trial court awarded fees for work other
than on the anti-SLAPP motion); Christian Research Inst., 165 Cal. App. 4th at
1323-26 (same).
Despite that clear guidance, Defendants seek to recover for the following
categories of work that were unrelated to the anti-SLAPP motion:
Addressing service of process;
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.945 Page 15 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 12 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
Drafting a stipulation for a courtesy extension of time to respond to the
complaint;
Drafting corporate disclosure statements; and
Preparing notices of appearance.
In total, Defendants seek to recover $11,085.50 for 11.8 hours of work not
related to the anti-SLAPP motion. These fees are not recoverable. Moreover, the
inclusion of these “time entries devoted to matters other than the motion to strike . . .
undermin[es] the credibility of counsel’s other entries.” Christian Research Inst.,
165 Cal. App. 4th at 1325 (“Counsel’s willingness to flout the statutory restriction
on the scope of anti-SLAPP fee claims justified the trial court in taking a jaundiced
view of the fee request.”).
4. Ministerial Tasks
Defendants seek to recover attorneys’ fees for ministerial or administrative
tasks. For example, Defendants seek to recover time spent to arrange for a court
reporter and order the hearing transcript. (Siegel Decl. ¶ 14.) Given these billing
practices, Defendants’ hours should be reduced. See, e.g., Ambriz v. Arrow Fin.
Servs., LLC, No. CV 07-5423-JFW (SSx), 2008 WL 2095617, at *5 (C.D. Cal.
May 15, 2008) (reducing hours for administrative tasks because “it would be
unreasonable” to bill clients for those tasks); D’Lil v. Best W. Encina Lodge &
Suites, No. CV 02-9506 DSF (VBKx), 2010 WL 11655476, at *5 (C.D. Cal.
Apr. 13, 2010) (same); Yeager v. Bowlin, No. CIV. 2:08-102 WBS JFM, 2010 WL
2303273, at *8 (E.D. Cal. June 7, 2010) (“[S]ecretarial tasks are generally not
recoverable as attorney’s fees . . . .”).
Plaintiff requests that the fees be reduced by $819 for 1.2 hours of fees spent
on ministerial tasks. (Siegel Decl. Ex. 14.)
IV. CONCLUSION
When you strip away the improper requests, and apply reasonable hourly
rates, you arrive at a total of $84,995.80 for Defendants’ anti-SLAPP motion:
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.946 Page 16 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 13 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
Hourly Rate Reductions
Attorney Requested Hours Reasonable Hourly
Rate
Total
Recoverable
Theodore J. Boutrous
Jr. (partner)
55.8 hours $535 $29,853
Scott A. Edelman
(partner)
17.5 $535 $9,362.50
Nathaniel L. Bach
(senior associate)
135.1 hours $300 $40,530
Marissa B. Moshell
(junior associate)
113.7 hours $260 $29,562
Daniel M. Rubin
(junior associate)
16.6 $260 $4,316
Total Costs N/A $9,706.28 $9,706.28
Total $123,329.78
Further Reductions
Category of Reduction Total Requested Proposed Reduction
Scott Edelman’s Time
(Unnecessary Staffing of
Two Partners)
17.5 hours 17.5 hours, at a reasonable
hourly rate of $535 =
$9,362.50
Work Not Related to Anti-
SLAPP Motion
$11,085.50 for 11.8 hours
of work
$11,085.50
Ministerial Tasks $819 for 1.2 hours $819
Unsubstantiated
Paralegal/Researcher Fees
Approximately $7,623 for
16.8 hours
$7,623
Total Further Reductions 46.8 hours $28,890
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.947 Page 17 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463888.3 14 Case No. 3:19-cv-01713-BAS-AHG PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
In sum, based upon reasonable hourly rates, the total that Defendants could
potentially recover for all hours expended is $123,329.78. From this amount, an
additional $28,890 should be cut, as set forth above, for a total of $94,439.78. Then,
the additional 10% reduction for unnecessary and duplicative work should be
applied, resulting in a final recoverable amount of $84,995.80.
DATED: June 26, 2020 MILLER BARONDESS, LLP
By: /s/ Amnon Z. Siegel
AMNON Z. SIEGEL
Attorneys for Plaintiff Herring Networks,
Inc.
Case 3:19-cv-01713-BAS-AHG Document 37 Filed 06/26/20 PageID.948 Page 18 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
LOUIS R. MILLER (State Bar No. 54141) [email protected] AMNON Z. SIEGEL (State Bar No. 234981) [email protected] MILLER BARONDESS, LLP 1999 Avenue of the Stars, Suite 1000 Los Angeles, California 90067 Telephone: (310) 552-4400 Facsimile: (310) 552-8400 Attorneys for Plaintiff Herring Networks, Inc.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HERRING NETWORKS, INC.,
Plaintiff,
v. RACHEL MADDOW; COMCAST CORPORATION; NBC UNIVERSAL MEDIA, LLC; AND MSNBC CABLE LLC.
Defendants.
CASE NO. 3:19-cv-01713-BAS-AHG Assigned for All Purposes to: Hon. Cynthia Bashant DECLARATION OF AMNON Z. SIEGEL IN SUPPORT OF PLAINTIFF HERRING NETWORK’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT [Filed Concurrently with Opposition and Evidentiary Objections in Support of Opposition] Action Filed: September 9, 2019 Trial Date: None
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.949 Page 1 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 2 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
DECLARATION OF AMNON Z. SIEGEL
1. I am an attorney duly admitted to practice before this Court. I am a
partner with Miller Barondess, LLP, counsel of record for Plaintiff Herring
Networks, Inc. I have personal knowledge of the facts set forth herein, and if called
as a witness, I could and would competently testify to all of said facts. I make this
declaration in support of Plaintiff’s Opposition to Defendants’ Motion for
Attorneys’ Fees and Costs.
Background
2. On September 25, 2019, counsel for Defendants contacted me to
inform me of Defendants’ intention to file an anti-SLAPP motion (the “anti-SLAPP
Motion”). Defendants did not initially specify whether their anticipated motion
would raise factual issues requiring discovery.
3. On September 26, 2019, Defendants’ counsel informed me that they
did not intend to raise factual issues in their anti-SLAPP motion, but did not disclose
what the basis for their motion would be.
4. On September 26, 2019, I explained that Plaintiff could not simply take
Defendants at their word that their anti-SLAPP motion would not involve factual
issues and requested to meet and confer to discuss the basis of their motion. The
parties held that conference on October 7, 2019. Defendants’ counsel told me that
their motion would not challenge the malice element (an issue commonly requiring
discovery).
5. Defendants claim that the parties “did not reach agreement on the
permissibility of discovery.” I do not agree with that statement. Plaintiff did not
propound discovery on Defendants or make any motion for expedited discovery.
The parties did not hold, nor did Plaintiff request, a Rule 26 conference; and the
parties did not file Rule 26 reports. No discovery was taken in the case.
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.950 Page 2 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 3 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
6. The Court held a telephonic hearing on the anti-SLAPP motion on
May 19, 2020. A true and correct copy of the transcript from that hearing is
attached hereto as Exhibit A.
7. On May 19, 2020, the Court issued an order granting Defendants’ anti-
SLAPP motion. Although the Court found that Maddow’s statement was
susceptible to being proven true or false, the Court held that a reasonable factfinder
could nevertheless only conclude that the statement was one of opinion.
8. On June 2, 2020, Plaintiff filed a notice of appeal. In light of the
pending appeal, I asked Defendants if they would consider raising the issue of
attorneys’ fees after resolution of the appeal, when it would either be moot (if
Plaintiff prevails) or could be handled more efficiently in one combined fees
motion. Defendants’ counsel told me they would take it under consideration but
ultimately never responded.
Proposed Reductions to Defendants’ Fee Award
9. My firm has reviewed the materials submitted in the Declaration of
Scott A. Edelman In Support Of Defendants’ Motion For Attorneys’ Fees And Costs
(“Edelman Decl.”) and identified the following categories of time entries that should
not be recovered.
Overstaffing and Duplicative Work
10. The time entries submitted in the Edelman Declaration show that two
associates spent significant time researching the same issues. Associates with
minimal legal experience also spent excessive time drafting the anti-SLAPP Motion,
which was then revised by a more senior associate, and then revised again by two
partners. The following time entries are representative of these practices:
9/27/2019 4.1 $3,751.50 Bach, Nathaniel L.
Research and draft outline for anti-SLAPP motion (3.6); review materials relevant to anti-SLAPP briefing (.4).
9/28/2019 .3 $187.50 Moshell, Marissa B. Research for anti-SLAPP motion.
9/29/2019 .7 $437.50 Moshell, Marissa B. Research for anti-SLAPP motion.
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.951 Page 3 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 4 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
10/7/2019 4.3 $2,687.50 Moshell, Marissa B. Research for anti-SLAPP motion (4.3).
10/11/2019 2 $2,900.00 Boutrous Jr., Theodore J.
Working on anti-SLAPP motion.
10/12/2019 5 $4,575 Bach, Nathaniel L. Working on draft of anti-SLAPP motion.
10/11/2019 8 $7,320.00 Bach, Nathaniel L. Drafting anti-SLAPP motion to strike (5.8); researching issues re same (2.2).
10/13/2019 4 $5,800.00 Boutrous Jr., Theodore J.
Working on anti-SLAPP motion.
10/14/2019 1 $1,335 Edelman, Scott. A. Review anti-SLAPP brief (.5); team call re same (.5).
10/14/2019 6 $8,700 Boutrous, Jr., Theodore J.
Working on anti-SLAPP motion.
10/15/2019 2.9 $3,871.50 Edelman, Scott A. Review draft anti-SLAPP Motion, edit same.
11. In one instance, multiple attorneys spent hours drafting a one-page set
of notes for hearing on the anti-SLAPP Motion:
5/18/2020 2.2 $2,112.00 Bach, Nathaniel L. Draft one-sheets and hearing arguments.
5/18/2020 1.3 $962.00 Moshell, Marissa B. Draft one-pager for oral argument (1); correspond with team re hearing preparation (.3).
12. Moreover, the time entries show substantial time spent on internal
communications between and among the many lawyers staffed on the case:
9/23/2019 0.2 $183.00 Bach, Nathaniel L. Call with S. Edelman re seeking extension of time to respond.
9/25/2019 0.6 $801.00 Edelman, Scott A.
Review correspondence from plaintiffs regarding Rule 26 meeting (.2); correspond with team regarding same (.2); telephone conference with M. Moshell regarding same (.1); update clients (.1).
9/25/2019 1.4 $875.00 Moshell, Marissa B.
Call with S. Edelman re response to Plaintiffs' counsel (.2); research for T. Boutrous (.2); draft response to Plaintiffs' counsel (1 .0).
9/25/2019 0.5 $457.50 Bach, Nathaniel L. Telephone conference with client, T. Boutrous, S. Edelman, T. Evangelis re initial strategy.
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.952 Page 4 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 5 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
9/25/2019 0.4 $534.00 Edelman, Scott A. Telephone conference with M. Moshell regarding extension of time to respond.
9/26/2019 2.6 $1,625.00 Moshell, Marissa B.
Calls with N. Bach and T. Boutrous re anti-SLAPP motion (.2); research federal court procedural question (1.0); research for anti-SLAPP motion (1.4).
9/26/2019 2.6 $2,379.00 Bach, Nathaniel L.
Calls with T. Boutrous, S. Edelman, M. Moshell re anti-SLAPP brief (.2); research for and begin drafting anti-SLAPP motion to strike (2.4).
10/1/2019 0.6 $549.00 Bach, Nathaniel L.
Emails with A. Jacobs re joint motion to extend time to respond to complaint (.4); email to M. Moshell re corporate disclosure statement (.2).
10/7/2019 2 $1,830.00 Bach, Nathaniel L.
Prepare for meet and confer with Plaintiff's counsel (.3); meet and confer call with A. Seigel re Anti-SLAPP motion (.4); emails with M. Moshell re research for anti-SLAPP motion (.5); review case law re same (.8).
10/13/2019 6.6 $6,039.00 Bach, Nathaniel L. Emails with T. Boutrous re comments to Anti-SLAPP motion (.8); further revisions to same (5.8).
10/14/2019 7.7 $7,045.50 Bach, Nathaniel L.
Call with T. Boutrous, S. Edleman, T. Evangelis re anti-SLAPP brief (.5); further calls with T. Boutrous re same (.3); further revisions to brief (6.9).
10/14/2019 1 $1,335.00 Edelman, Scott A. Review anti-SLAPP brief (.5); team call re same (.5).
10/15/2019 4.9 $4,483.50 Bach, Nathaniel L.
Implementing further edits, revisions to anti-SLAPP draft (3.5); emails and calls with T. Boutrous, S. Edleman, T. Evangelis re same (.5); emails with D. Rubin re supporting motion documents (4.); emails with T. Boutrous re upcoming client meeting (.5).
10/16/2019 7.4 $6,771.00 Bach, Nathaniel L.
Review client comments on draft anti-SLAPP motion (.6); prepare for client meeting (.5); telephonic conference with S. Weiner, T. Hoff, A. Jacobs, T. Boutous, S. Edelman re same (.6); further revisions to anti-SLAPP motion (5.7).
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.953 Page 5 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 6 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
10/17/2019 4.7 $4,300.50 Bach, Nathaniel L.
Further revisions to anti-SLAPP motion (3.0); emails with T. Boutrous, client re same (.5); review and revise supporting motion documents (RJN, proposed order, notice of motion, notice of lodging) and send same to client (1.2).
10/18/2019 0.9 $823.50 Bach, Nathaniel L.
Call with A. Jacobs re anti-SLAPP brief (.1); review further edits to same (.5); emails with D. Rubin re upcoming filing and lodging (.3).
10/18/2019 0.6 $375.00 Rubin, Daniel M. Confer with N. Bach re filing of anti-SLAPP motion.
10/21/2019 3.6 $3,294.00 Bach, Nathaniel L.
Final review of anti-SLAPP motion, memorandum, request for judicial notice, notice of lodging, proposed order (2.7); emails with client re same (.4); emails and calls with D. Rubins re filing (.5).
10/21/2019 0.9 $562.50 Rubin, Daniel M. Confer with N. Bach re anti-SLAPP motion to strike and supporting documents.
12/2/2019 4.7 $2,937.50 Moshell, Marissa B.
Call with N. Bach re reply brief (.1); research for reply brief (.1); review and analyze moving and opposition papers on anti-SLAPP motion (2.4); begin drafting reply in support of anti-SLAPP motion (2.1).
12/2/2019 2.5 $2,287.50 Bach, Nathaniel L.
Review opposition to motion to strike and supporting documents (.8); meet with M. Moshell re drafting reply brief (.2); emails with GDC team re reply brief (.3); draft talking points for reply brief (1 .2).
12/3/2019 12.1 $7,562.50 Moshell, Marissa B.
Call with client and N. Bach re reply brief (.5); meeting with N. Bach re reply brief (.2); draft reply brief (11.4).
12/3/2019 1.2 $1,098.00 Bach, Nathaniel L.
Call with A. Jacobs, M. Moshell re reply brief (.5); meeting with M. Moshell re same (.2); reading Plaintiff’s cases (.5).
12/4/2019 3.5 $2,187.50 Moshell, Marissa B. Continue drafting reply brief (3.2); correspond with N. Bach re reply brief (.3).
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.954 Page 6 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 7 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
12/9/2019 3.5 $3,202.50 Bach, Nathaniel L.
Final revisions to reply in support of motion to strike (2.0); emails with C. O'Hagan, S. Weiner, M. Moshell re same (.5); final proofs of motion before filing (1.0).
12/10/2019 0.9 $823.50 Bach, Nathaniel L.
Emails with A. Siegel, client team re ex parte application to supplement record (.6); call with A. Siegel re same (.2); call with S. Edelman re same (.1).
12/10/2019 0.2 $267.00 Edelman, Scott A. Telephone conference with N. Bach regarding ex parte application.
5/14/2020 2.9 $2,146.00 Moshell, Marissa B.
Meeting with team and client re hearing (.8); research and correspond with team re hearing on anti-SLAPP motion (2.1).
5/14/2020 0.9 $864.00 Bach, Nathaniel L. Pre-hearing call with client, T. Boutrous, S. Edelman, M. Moshell.
5/17/2020 0.3 $222.00 Moshell, Marissa B.
Correspond with T. Boutrous re materials for hearing preparation (.1); correspond with N. Bach and court reporter re hearing transcript (.2).
5/18/2020 1.3 $962.00 Moshell, Marissa B. Draft one-pager for oral argument (1); correspond with team re hearing preparation (.3).
5/19/2020 1 $740.00 Moshell, Marissa B.
Attend telephonic hearing on anti-SLAPP motion (.6); call with team re hearing (.1); correspond with court reporter re hearing transcript (.3).
5/27/2020 10.1 $7,474.00 Moshell, Marissa B.
Continue drafting and researching for motion for attorneys' fees (9.9); call with N. Bach re motion for attorneys' fees and costs (.2).
5/27/2020 1.2 $1,152.00 Bach, Nathaniel L.
Call with M. Moshell re drafting fee motion (.3); emails with M. Moshell, S. Edelman re same (.3); reviewing fee summary for motion (.6).
6/1/2020 2.3 $1,702.00 Moshell, Marissa B.
Review and revise motion for attorneys' fees and supporting declaration (1.8); correspond with team re motion for attorneys' fees (.5).
6/1/2020 0.4 $384.00 Bach, Nathaniel L. Emails with S. Edelman, M. Moshell re motion for fees.
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.955 Page 7 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 8 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
6/2/2020 3.5 $2,590.00 Moshell, Marissa B.
Call with S. Edelman and N. Bach re motion for attorneys' fees (.4); continue revising motion for attorneys' fees and supporting declaration (3.1).
6/2/2020 1 $1,395.00 Edelman, Scott A. Work on motion for attorneys' and telephone conference with N. Bach and M. Moshell regarding same.
Work Not Related To The Anti-SLAPP Motion
13. Defendants also seek to recover for time spent on work unrelated to the
anti-SLAPP Motion. These fees total $11,085.50:
9/23/2019 0.2 $183.00 Bach, Nathaniel L. Call with S. Edelman re seeking extension of time to respond.
9/23/2019 0.3 $400.50 Edelman, Scott A. Address service of process.
9/25/2019 1.4 $875.00 Moshell, Marissa B.
Call with S. Edelman re response to Plaintiffs' counsel (.2); research for T. Boutrous (.2); draft response to Plaintiffs' counsel (1 .0).
9/25/2019 0.5 $457.50 Bach, Nathaniel L. Telephone conference with client, T. Boutrous, S. Edelman, T. Evangelis re initial strategy.
9/25/2019 1.6 $2,320.00 Boutrous Jr., Theodore J.
Analyzing issues, strategy, participate in strategy call with clients.
9/25/2019 0.3 $400.50 Edelman, Scott A. Review complaint, background.
9/25/2019 0.5 $667.50 Edelman, Scott A. Research in preparation for call with client.
9/25/2019 0.4 $534.00 Edelman, Scott A. Telephone conference with M. Moshell regarding extension of time to respond.
9/26/2019 0.6 $162.00 Kurinsky, Erin E. Research for M. Moshell.
9/26/2019 0.2 $267.00 Edelman, Scott A. Correspond with client.
9/26/2019 0.6 $801.00 Edelman, Scott A. Address time to respond to complaint with substituted service and email A. Siegel regarding extension.
9/27/2019 1.4 $875.00 Moshell, Marissa B. Draft stipulation and proposed order for extension of time to respond to Plaintiff's Complaint.
9/27/2019 0.6 $801.00 Edelman, Scott A. Correspond with plaintiff's counsel regarding extension.
9/30/2019 0.1 $27.00 Jones, Carla H. Legal research for N. Bach.
10/1/2019 0.8 $500.00 Moshell, Marissa B. Draft corporate disclosure statement.
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.956 Page 8 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 9 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
10/1/2019 0.6 $549.00 Bach, Nathaniel L.
Emails with A. Jacobs re joint motion to extend time to respond to complaint (.4); email to M. Moshell re corporate disclosure statement (.2).
10/2/2019 0.7 $640.50 Bach, Nathaniel L.
Emails with client re joint stipulation to extend time to respond to complaint (.4); emails with A. Siegel re meet and confer (.3).
10/7/2019 0.5 $312.50 Moshell, Marissa B. Begin preparing notices of appearance.
10/8/2019 0.5 $312.50 Moshell, Marissa B. Prepare and file notices of appearance.
Ministerial Tasks
14. Defendants also seek to recover attorneys’ fees for ministerial or
administrative tasks:
10/2/2019 0.6 $375.00 Moshell, Marissa B. Finalize stipulation and rule 7 .1 statement for filing and file same.
5/16/2020 0.3 $222.00 Moshell, Marissa B. Research court reporting and hearing transcription for anti-SLAPP hearing.
5/17/2020 0.3 $222.00 Moshell, Marissa B.
Correspond with T. Boutrous re materials for hearing preparation (.1); correspond with N. Bach and court reporter re hearing transcript (.2).
Other Documents
15. On June 19, 2020, Law360 published an article entitled “PG&E
Bankruptcy Judge Confirms $59B Reorganization.” A true and correct copy of that
article is attached hereto as Exhibit B.
DATED: June 26, 2020 MILLER BARONDESS, LLP
By:
/s/ Amnon Z. Siegel
AMNON Z. SIEGEL
Attorneys for Plaintiff Herring Networks,
Inc.
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.957 Page 9 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
465376.1 10 Case No. 3:19-cv-01713-BAS-AHG SIEGEL DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR ATTORNEYS’ FEES AND COSTS
INDEX OF EXHIBITS TO THE DECLARATION OF AMNON Z. SIEGEL
Exhibit
No.
Description Pg. No.
A. Hearing Transcript of Anti-SLAPP motion on May 19,
2020
11-35
B. “PG&E Bankruptcy Judge Confirms $59B
Reorganization” - Law360
36-38
Case 3:19-cv-01713-BAS-AHG Document 37-1 Filed 06/26/20 PageID.958 Page 10 of 10
EXHIBIT A
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.959 Page 1 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
United States District Court
for the Southern District of California
HERRING NETWORKS, INC.,
Plaintiff,
v.
RACHEL MADDOW, et al.,
Defendants.
)))))))))))
No. 19cv1713
May 19, 2020
San Diego, California
TRANSCRIPT OF MOTION HEARINGBEFORE THE HONORABLE CYNTHIA BASHANT
United States District Judge
APPEARANCES:
For the Plaintiff: MILLER BARDONDESS, LLPLOUIS MILLER AMNON ZVI SIEGEL Attorneys at Law
For the Defendant: GIBSON, DUNN & CRUTCHER LLPTHEODORE JOSEPH BOUTROUS, JR. SCOTT ALAN EDELMAN THEANE E. KAPUR Attorneys at Law
Court Reporter: Dana Peabody, RDR, CRRDistrict Court Clerk's Office333 West Broadway, Suite 420 San Diego, California 92101
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.960 Page 2 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2
San Diego, California, May 19, 2020
* * *
THE CLERK: Good morning, Judge.
This is Stephanie, the judge's court clerk. I'm going to
go ahead and give a brief admonishment regarding the
proceedings today.
Just so you know, the normal rules of courtroom decorum
apply, and only counsel is able to provide argument.
We ask that any members of the public or media mute their
phones and that they remain muted.
No recordings of the proceedings are permitted, and if you
would like a copy of the transcript, you may contact
Dana Peabody, who is our wonderful court reporter, who is on
the line, and you may contact her for any transcript of the
hearing.
And, counsel, if you can also after I call the case, if you
could state your name and your appearance slowly for the
record, and each time before you speak if you could state your
name as well just because our court reporter can't see you.
With that, I'm calling matter Number 1, 19cv1713, Herring
Networks, Inc., versus Maddow, et al., on calendar for motion
hearing.
THE COURT: Counsel, state your appearances for the
record, please.
MR. MILLER: Sure, Your Honor. Good morning. This is
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.961 Page 3 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
Skip Miller. I'm representing the plaintiff, Herring Networks,
along with my partner, Amnon Siegel, who's going to be doing
the argument this morning.
MR. SIEGEL: Good morning, Your Honor. This is
Amnon Siegel.
THE COURT: Good morning.
MR. BOUTROUS: And good morning, Your Honor.
Theodore Boutrous for the defendants, and appearing with me
today are my partners, Scott Edelman and Theane Evangelis.
THE COURT: Good morning. I should make it even
clearer, I think, than my courtroom deputy did. I am ordering
that everyone else on the line other than the lawyers mute
their phones. I appreciate everyone appearing by phone. We're
kind of in unprecedented territory here, so we're doing these
hearings by phone, and if you don't have muted background for
the rest of you, then we get dogs barking and radios playing,
and it makes it difficult for all of us to hear. So I am
ordering that all of you mute your phones so I can hear the
lawyers in this case.
Just so you know, I've read the defense's motion and the
plaintiff's response as well as the defendants' reply.
I don't think there's any question that the contested
statement was one arising from protected activity. It was
First Amendment free speech, so the burden shifts to the
plaintiff to establish a probability of prevailing on the
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.962 Page 4 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
claim.
My understanding is that plaintiff does not take issue with
most of what Rachel Maddow said during the broadcast.
Kristian Rouz is paid by Sputnik, which is a kremlin-owned news
wire. Mr. Rouz also reports for OAN.
The only statement challenged by the plaintiff is Maddow's
statement at the end of the segment that, quote, the most
obsequiously pro-Trump right-wing news outlet in America really
literally is paid Russian propaganda.
And my understanding is OAN says this is false, it is not
paid Russian propaganda, even if it does have a staff reporter
who writes simultaneously for Sputnik.
And the real question I have is whether this was a
statement of opinion given the whole context of the statements
or one of fact.
So I think I would like to hear -- since it's defendants'
motion, I think I'd like to hear from the defendant first.
MR. BOUTROUS: Thank you very much, Your Honor. This
is Theodore Boutrous for the defendants.
And you've laid it out exactly right I think in terms of
the posture of the case.
And we believe the Court should grant the motion to strike
and dismiss the case because this is exactly the kind of
legally baseless defamation lawsuit targeting truthful speech
and opinion about a public issue that California defamation law
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.963 Page 5 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
in its First Amendment and the anti-SLAPP statute forbid, and
the six-word phrase, as the Court noted, is the only contested
statement in the piece. It was both true, and it's a classic
example of nonactionable opinion based on truthful disclosed
facts.
And I don't think I've seen a case where there has been
more Ninth Circuit decisions that directly support us that the
other side has not grappled with.
The Partington versus Bugliosi, the Dodds case, Yagman,
Gardner, Knievel all make clear that where this -- someone is
making -- is commenting and making assessment about truthful
facts that are disclosed, then, that is protected by the First
Amendment, and that's --
THE COURT: Let me interrupt you for a minute. If
it's susceptible to different constructions, does that mean
it's a jury question, and is this statement susceptible to
different constructions?
MR. BOUTROUS: No, Your Honor, it is not, in the sense
that it is commentary and opinion, but it's also based on
disclosed facts.
And so first of all, the article, the Daily Beast article
itself, which is not being challenged here, says literally,
Your Honor, and I'm using "literally," "Kremlin propaganda
sometimes sneaks into Rouz's segments on unrelated matters in
the OAN broadcast."
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.964 Page 6 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6
And then the article itself says that there's Kremlin
propaganda in his stories. And that's the article that was the
subject of the story.
And so here the key, Your Honor, that I think is
the -- there are many fatal flaws in this claim. One, it was
absolutely clear this was a story and a commentary and
Ms. Maddow's take on this Daily Beast story. So that's what
the whole segment was about.
And I'm sure the Court has watched the videos as well as
read the transcript, and she's giving her take in a
entertaining, somewhat critical of both President Trump, of the
network, and the key here is context. That's the thing that
the plaintiff is ignoring. And the Ninth Circuit has said it
over and over again that context is key.
And we hammered, as the Court probably noticed, that before
that statement and after that statement, multiple times,
Ms. Maddow said exactly what she was talking about. She
said -- right before the statement about "literally paid
Russian propaganda," she says, "We literally learned today that
the outlet that the president is promoting shares staff with
the Kremlin." And then she goes on, and she's kind of
chuckling while she's talking about it because, as she said,
it's a ridiculous, astonishing story. So she's expressing her
opinion and her view. And then she makes the statement about
paid Russian propaganda as the introductory statement to the
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.965 Page 7 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7
following statement, which plaintiff never addresses. She
says, "Their on-air U.S. politics reporter is paid by the
Russian government to produce propaganda for that government."
She doesn't say for OAN. She doesn't say they committed
treason. She says exactly what she's talking about when she
made the "paid Russian propaganda" statement. So I don't think
it's open to more than one interpretation.
And as for the jury question, again, the Ninth Circuit made
very clear, the supreme court has made clear, this is the pure
legal question under the First Amendment and under California
law. Is this capable of defamatory meaning when looked at in
context? And context is key. Plaintiffs don't address the
fact that she says repeatedly what the story is about, what
she's referring to, this remarkable situation where you have
the reporter for OAN using Russian propaganda on the air, as
the Daily Beast reported, being paid by Sputnik, which, as the
Court knows, and as Ms. Maddow reported, and the Daily Beast
reported, was deemed to have participated in the interference
by Russia using propaganda in the election in 2016 and was
required to register as a foreign agent of the government, an
obviously important public issue, so the network
President Trump has pointed to and told people to watch, so
she's giving her take.
And I think it's completely accurate and truthful, her
take, and if people disagree with it, and that's the thing
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.966 Page 8 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
8
about the opinion doctrine, Your Honor, as the Ninth Circuit
has said, that, you know, where you have commentators who lay
out the facts that they're relying on to make their assessment,
then others can agree or disagree with it because they know the
full facts, which they did here, and they hear what the
commentator's views are of those facts.
And again, the Knievel case is a good example on the jury
question, that they made the same argument there, that this
should go to the jury, and the Court said no, we've looked at
the context, this is a legal issue, it's a First Amendment
issue, and we can rule on this based on 12(b)(6).
THE COURT: Okay. Thank you.
MR. BOUTROUS: If I could just amplify on two
questions and maybe just address a couple of the plaintiff's
arguments and then turn it over.
On the context point, I want to go back to this.
Plaintiff's brief doesn't talk about any of the other
statements or the whole overall program, and again, the
Ninth Circuit in the Norse case said that the defamatory --
alleged defamatory statement must be judged not in isolation
but within the context in which it is made. That's a quote.
Then Judge Kennedy in the Koch case, soon to be
Justice Kennedy, said, "Context does resolve the matter when
we're looking at commentary and political debate and
discussion."
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.967 Page 9 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
9
The Information Control case said, "The Court must consider
all the reviews, not merely a particular phrase or sentence."
And the Knievel case said, "Context is paramount in our
analysis."
The plaintiffs do not address that. They ignore the
context, and they focus on the six words.
They submitted this expert report, which I think shows the
desperation here, an 18-page, single-spaced analysis of six
words, basically. It's impermissible, as we argued, because
this is a motion to dismiss.
Planned Parenthood says that this is viewed under the
12(b)(6) standards, and so that should not be considered, but
even it's irrelevant, and this is a legal question for the
Court, so that expert is invading the province of this Court if
you were to consider it.
And then on the use of the word "literally," Your Honor,
what she said, as we argue, it's true. It's characterizing
what is in the Daily Beast article.
And, as I said, the article itself not only made the
statement I mentioned about propaganda sneaking into Mr. Rouz's
pieces for OAN, but it quotes an FBI agent who said that this
completes the merger between the Kremlin's official propaganda
outlet -- excuse me -- completes the merger between Russian
state-sponsored propaganda in American conservative media.
So Ms. Maddow was giving her take on the disclosed facts of
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.968 Page 10 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10
the Daily Beast article, which is not challenged here, and all
those cases I mentioned say that's protected.
And then finally, Your Honor, what the plaintiffs are
trying to do is put words in Ms. Maddow's mouth. She did not
say that they committed treason. Even if she had, it's in a
rhetorical, hyperbolic way. Under cases like Letter Carriers
and Knievel, Letter Carriers it was traitor, and the supreme
court says, well, everyone knows that's not what they meant
when they used that word. But she didn't use that word. She
didn't say that Russia owned OAN. She just repeated what the
Daily Beast said. They employ the same person, which is a
remarkable fact. And she didn't say that he was being paid for
stories on OAN by Russia. She reported exactly what the
Daily Beast said, that they both employed or paid the same
person, and that's the gist of the story. It was all laid out,
and she was offering commentary about this important political
and policy issue.
So we believe it's fully protected speech, important
speech, and the Court should grant our motion.
THE COURT: Okay. Thank you.
Mr. Siegel.
MR. SIEGEL: Thank you, Your Honor.
I think the primary argument that we're hearing from the
defendant is that this was opinion based on disclosed facts.
And I think the problem with that argument is that -- and we
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.969 Page 11 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
11
see this out of the D.C. Circuit in Competitive Entertainment
Industries versus Mann, that recent decision, that if the
statement itself is factual and not opinion or can be
reasonably interpreted as factual and not opinion, then you
don't get into this it's-opinion-based-on-fact analysis because
the statement could be interpreted as fact. And we believe
that to be the case here. This is a statement that certainly
is provably false, that can reasonably be interpreted as a
statement of fact and not as opinion, and I think the problem
with putting this statement in between other disclosed facts
doesn't make it less likely for people to believe it to be
fact, but in fact, makes it more likely for a reasonable viewer
to interpret the statement as being one of fact.
THE COURT: What about the overall context of it? I
mean, it's clearly her show, she's stating fact and then giving
her opinions about those facts. The way she does it, I mean,
she kind of laughs through it, and, "This is a sparkly story,"
and she's -- what about the overall context where she outlines
what the facts are before she gives an opinion about them?
MR. SIEGEL: I think the fundamental problem is that
she does not make it clear that she's giving an opinion when
she states very clearly and very firmly that One America News
is really literally paid Russian propaganda. That's not an
equivocal statement. That's not a statement -- it's not
couched in any way. It's not framed in any way.
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.970 Page 12 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
12
In fact, when she wants to give her opinion or assessment,
she knows how to do it, and throughout this very segment, she
does so. She does rhetorical questions like, "What?" Or, "I
mean," she'll start off sentences with "I mean" or "we expect,"
she says it three times, "we expect," which makes it a little
more clear that she's providing her assessment or her opinion.
She says in another place, "You know, I guess," which is
another way to do it. And these opinion markers are important,
and they matter.
In fact, in the Dickinson versus Cosby case out of the
California Court of Appeal, we see the Court analyzing is there
a way for a reasonable viewer or a reasonable listener to be
able to distinguish between when the person is providing stats
and opinions? Do they use -- do they couch their phrases? Do
they use those opinion markers or not? And here we don't see
any of that. Instead, the statement is made very firmly, and
it's made in between other factual statements, as I said,
making it more likely for a reasonable viewer to interpreter it
as fact.
And I would point out that even if the -- even if
the -- even if it was opinion for a moment, even if we were to
indulge that, that it was opinion based on disclosed fact, the
supreme court in the Milkovich case says -- and this is a
direct quote from Milkovich. It's 497 U.S. 1 at page 18 to 19,
1990 case. Quote, even if the speaker states the facts upon
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.971 Page 13 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13
which he bases his opinion, if those facts are either incorrect
or incomplete or if his assessment of them is erroneous, the
statement may still imply a false assertion of fact.
So I don't think that the statement is one of opinion, and
I think we submitted enough to satisfy the legal standard that
a reasonable juror could potentially interpret this one, this
statement, as a statement of fact.
But even if it were, her opinion is clearly erroneous, and
there's absolutely no evidence to support it, and that's not
what the Daily Beast article was about. Ms. Maddow went well
beyond what the Daily Beast article was about.
As to Professor Gries' opinion, the linguist, you know,
using corporate linguistics and using actually a technology --
THE COURT: I have to tell you, I don't really find
the expert's opinion very helpful. I mean, first of all, I
don't think it's appropriate for me to consider it at this
stage the motion to dismiss; and second of all, you know, it's
my call on this issue, and I found the expert's statements to
be largely irrelevant, frankly. But you can make your pitch,
but I don't find it necessarily helpful.
MR. SIEGEL: I would like to respond to your point
about whether you can consider it or other evidence at this
point.
I think there's an improper cobbling together by my
opponent of what the law is on these anti-SLAPP motions and
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.972 Page 14 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
14
where the collision is. And I think they've misstated the
standard, and they've gone too far. And I will explain to you
why I think that is.
In Planned Parenthood, the Ninth Circuit in 2018 said that,
"When an anti-SLAPP motion is brought challenging just the
legal sufficiency of the pleadings and not the factual
sufficiency, a plaintiff is not required," and the Court uses
"required" in numerous places -- "plaintiff is not required to
submit evidence." And the reason why the Court made that
decision, the conflict or the collision with the Federal Rules
of Civil Procedure is that requiring a plaintiff to present
evidence without accompanying discovery in this early motion to
strike, the anti-SLAPP motion, would essentially transform the
motion into a motion for summary judgment without providing any
of the procedural safeguards that have been firmly established
by the Federal Rules of Civil Procedure; namely, Rule 56.
And that was the collision the Court was worried about.
The Court was worried about protecting plaintiff whose cases
might be dismissed and ensuring those plaintiffs had certain
procedural safeguards that the Federal Rules of Civil Procedure
provided.
I do not believe, and I don't think it's reasonable to
interpret that case as saying, that a plaintiff is prohibited
from submitting evidence in opposition to an anti-SLAPP motion,
and as the Court knows.
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.973 Page 15 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
15
So I don't think there's any conflict here, and I don't
think it's improper for the Court to consider evidence. I
think, in fact, it would be improper to not consider or strike
the evidence at this point.
And then, as the Court knows, even if we treat this as a
12(b)(6) motion, if the Court does consider evidence, it
converts the motion into -- or can convert the motion into a
motion for summary judgment.
So I do believe the evidence is properly before the Court
and can be considered. That's my pitch on that.
I won't go into the details of professor Gries because I
think your court has expressed -- you've expressed your opinion
on that.
THE COURT: My opinion.
MR. SIEGEL: One point on Professor Gries' statement
because I do think corporate linguistics does go beyond some of
the exercises that we're going through because he's able to
look, and what he did look at was how the term "really
literally" is used in other American talk shows. And he says
that the term "really literally" based on his research almost
always precedes an actually true statement. And I think that's
important. I do think that's something that's a little bit
different than the analysis the Court is undertaking, though I
do agree that it's certainly your call at the end of the day.
But again, the Court has a limited gatekeeper function in
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.974 Page 16 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
16
these cases. The gatekeeper function is to determine whether
the statement unambiguously constitutes a statement of opinion.
But whereas here, we believe the statement could have been
understood by the average listener as having been one of fact,
and the issue has to be left up to the jury's determination.
And those cases are up and down the federal and state courts.
In fact, we have many cases which are reversing trial court
grants of directed verdicts and motions to dismiss and
anti-SLAPP motions and summary judgment motions on this very
issue. And we even have courts of appeal saying things like,
maybe the trial court's right that a reasonable interpretation
of this statement is that it was opinion. But it's also
possible that a reasonable viewer would interpret it as a
statement of fact, and because of that, we have to leave this
up to the factfinder.
So it is a question of law in the initial sense unless
there's any ambiguity.
And so there are lots of examples of this up and down the
federal and state courts. The Ninth Circuit in Manufactured
Home Communities have reversed the district court, granted a
SLAPP motion for this reason. Unelko versus Rooney.
Andy Rooney, a very famous political commentator and satirist,
did a 60 Minutes piece, and the Ninth Circuit found, reversing
the grant of a motion for summary judgment, that it could be
interpreted as a statement of fact notwithstanding the humorous
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.975 Page 17 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
17
and satirical nature of the rest of the piece.
So just because the rest of the piece may have some humor,
some satire, some over-the-type hyperbole, does not immunize
the defendant from potential liability from defamation.
MR. BOUTROUS: Your Honor, may I briefly address a few
of those points?
THE COURT: Sure.
MR. BOUTROUS: This is Mr. Boutrous.
First, let me start with the Rooney case. There the
statement that was challenged was a purely factual one, that he
had tried a product and the product didn't work, and the Court
said he was making a factual statement, so it's nothing like
this case.
Second, Mr. Siegel's suggestion that because there was a
factual element to Ms. Maddow's statement that the opinion
doctrine doesn't apply, that's just incorrect. All of the
opinion cases involve a factual statement -- a statement
of -- that conveys an assessment of the facts, so that someone
was a traitor, that Evel Knievel was a pimp, that the author in
the Norse case was unpublished, so that's always part of the
inquiry.
The question is, what did the facts -- the surrounding
context tell us? And you're right, Your Honor, the context of
this program, it's a program that does convey news and
Ms. Maddow's assessment and commentary on the news. And you
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.976 Page 18 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
18
put your finger on it. Her entire tone. She's chuckling,
she's, you know, mocking the whole situation for its absurdity
in a sense.
And again, the Ninth Circuit cases, it's a line of
authority that we've relied on, is overwhelming, and they state
the same. The Dodds case versus ABC said -- and, again, states
the general rule: "An opinion based on an implication arising
from disclosed facts is not actionable, and the disclosed facts
themselves are not actionable." And Mr. Siegel said
Ms. Maddow -- he criticized her for not framing her -- I think
were the words he used -- not framing her statement. She
absolutely framed it with the exact language from the
Daily Beast article that states that the point she's making
when she says this is literally -- "really literally paid
Russian propaganda," that's introducing the next sentence that
says, "They're employing a guy who works for Sputnik to produce
Russian propaganda for that government." So it's absolutely
clear.
On the 12(b)(6) standard, I think Mr. Siegel, respectfully,
is just misreading it. The Court said -- the Ninth Circuit
said, "The defendant has the option of invoking an anti-SLAPP
statute in federal court at a motion to dismiss challenging the
legal sufficiency of the complaint," which is what we're doing,
and these are legal questions, all those Ninth Circuit cases,
including the Cochran case with Judge Wardlaw, which was then
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.977 Page 19 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19
adopted by the Ninth Circuit, the plaintiff can't convert it
into a summary judgment motion. That would mean the defendants
could never file a motion to dismiss. The defendant can -- if
they cite things outside the record, can.
And so the Ninth Circuit said that there's a pleading
challenge, which is what we are making here, and there's
just -- there's no legal basis for this claim.
And I think I heard Mr. Siegel say that even if it was
opinion, it could be wrong. Well, that really is a problem
because, as the supreme court has said, you know, there's no
such -- once we're into the opinion world, and Girks, I think
it was, the Court said, you know, there's no such thing as a
false opinion. And I mention that the language from -- you
know, I think the Yagman case, maybe I didn't mention it --
where the Court said that the way to respond is that the reader
or viewer can make their own assessment.
I disagree with that. I don't think that is paid Russian
propaganda. It was all laid out. We -- and the Court clearly
watched the broadcast, but we have a screenshot from the video
on page 5 of our reply brief. The pullout, it's the
Daily Beast title, "Trump's New Favorite Channel Employs
Kremlin-Paid Journalist" and a pullout quote there that says,
"One of the on-air reporters at the 24-hour network is a
Russian rational on the payroll of the Kremlin's official
propaganda outlet." And if you look at that Daily Beast
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.978 Page 20 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
20
article, it goes through reports by Mr. Rouz that were just,
you know, fabrications that incorporated Russian propaganda.
So this is the essence of both truthfully reporting on
facts -- none of those facts have been challenged by the
plaintiff, and giving her assessment of its remarkable
significance in commenting on it in a colorful way and talking
about it, as the Court noted, "sparkly stories," "giblets
dropped from the gods," and it's all right there. She does not
hint or suggest she did some independent reporting or that she
has any other information. It was a story about the
Daily Beast story, and she's crediting the Daily Beast reporter
for sussing out this amazing story. That's all it was. It was
truthful. It was her assessment of it.
And for all those reasons, the Court should grant the
motion to strike and dismiss the case and award the defendants
their attorney's fees.
THE COURT: Anything further?
MR. SIEGEL: Your Honor, one more point on "really
literally." This is Mr. Siegel.
You know, I do think the use of the term "literally," and
she uses it earlier in the story as well to mean literally in
the literal sense, and the use of the term "really literally"
here, especially when we look at how Ms. Maddow normally uses
the term "literally" because, again, we have to think about it
from the sense of a reasonable viewer that watches her show,
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.979 Page 21 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
21
and so we provided that evidence of how she uses the term
"literally" regularly here, and here she uses "really" to
emphasize that she means "literally." The alternative
definition provided and relied on by the defendants here is
that "literally" means figuratively or something used in an
exaggerated way to emphasize that a statement is not literally
true or possible.
Well, again -- and the example from Merriam-Webster is kind
of telling here, the very definition that the defendants rely
on. The example is, you know, "This is going to turn the world
upside down." "This is literally going to turn the world
upside down." And obviously, that's not literally possible,
and it's used as a form of exaggeration, but here saying
"really literally paid Russian propaganda," she's not using it
to describe something that is not literally possible or
impossible by the laws of physical nature. She's using it in
the more traditional and the predominant use of the word, which
is "literal, actual, to emphasize the truth or accuracy of the
statements." And she doesn't couch it in any way.
And the fact that she follows it with another truthful
statement, as I said, does not make it more likely that a
viewer is going to think she's just providing her assessment or
opinion. They're going to think it's part of the true
information that she's reporting. So I do think that's
important.
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.980 Page 22 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
22
And then we have one piece of evidence we submitted where
one viewer thought it was true, and that was attached as
Exhibit A to the declaration of Charles Herring.
MR. BOUTROUS: If I can just address that point very
briefly, Your Honor, again, you know, the "really literally"
was meant to emphasize and lead into -- yeah, it was her
expression of, you know, astonishment, somewhat amusement, the
absurdity of the situation.
First of all, here's what the Sputnik -- the Daily Beast
article begins with this statement: "If the stories broadcast
by the Trump-endorsed One America News Network sometimes look
like outtakes from a Kremlin trolling operation, there may be a
reason. One of their on-air reporters at the 24-hour network
is a Russian national on the payroll of the Kremlin's official
propaganda outlet, Sputnik." And by saying "really literally,"
Ms. Maddow is saying she -- this is basically Russian
propaganda that's, you know, by a reporter. So I think that
was her view, that was her assessment, and I believe that she
was relying on truthful facts from the Daily Beast article that
haven't been challenged, and the Ninth Circuit makes very clear
that viewers can make their own assessment. Do they agree with
her? Do they disagree with her? She disclosed all the facts.
And again, that sentence, that phrase, those six words, was
simply a lead-in. She said -- she immediately, and, again,
Mr. Siegel doesn't even address it, even now. I mean, I
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.981 Page 23 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
23
called -- we've called him on this repeatedly, that the very
next sentence states specifically what she's referring to, that
he's being paid by Sputnik to produce propaganda for the
Russians.
Thank you very much.
MR. SIEGEL: Can I make one more point?
THE COURT: Rerererebuttal, but go ahead, Counsel.
MR. SIEGEL: This is Mr. Siegel again. I appreciate
it.
Just on the last point, the fact that we're having this
conversation, and then I hear Mr. Boutrous in his rebuttal or
rerebuttal, whatever number it was, mention the fact that,
well, Ms. Maddow, she was using the word "really literally" to
emphasize the absurdity of the situation or the remarkableness
of the situation, and again, the fact that, you know, the Court
cannot rely on the statements of defendants' counsel and
defendants' -- and counsel's interpretation, the question is
could a reasonable juror, could the Court, assess the truth or
falsity of the statement? Can the truth or falsity of this
statement be proven, you know, to a jury? And the answer is
absolutely, yes, it can be. And it can be proven false. And I
think the fact that we can go on and on having this discussion
of what she really meant and how she really meant it leads to
the inevitable conclusion that it has to be left up to the
factfinder.
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.982 Page 24 of 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
24
That's it, Your Honor.
THE COURT: Okay. Thank you.
The matter's taken under submission, and I will issue a
written order, I hope, in the not-too-distant future.
Thank you very much.
MR. BOUTROUS: Thank you very much.
MR. MILLER: Thank you.
MR. SIEGEL: Thank you.
---000---
C-E-R-T-I-F-I-C-A-T-I-O-N
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.
Dated May 19, 2020, at San Diego, California.
/Dana Peabody/Dana Peabody, Registered Diplomate ReporterCertified Realtime Reporter
Case 3:19-cv-01713-BAS-AHG Document 37-2 Filed 06/26/20 PageID.983 Page 25 of 25
EXHIBIT B
Case 3:19-cv-01713-BAS-AHG Document 37-3 Filed 06/26/20 PageID.984 Page 1 of 3
Case 3:19-cv-01713-BAS-AHG Document 37-3 Filed 06/26/20 PageID.985 Page 2 of 3
Case 3:19-cv-01713-BAS-AHG Document 37-3 Filed 06/26/20 PageID.986 Page 3 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 Case No. 3:19-cv-01713-BAS-AHG
LOUIS R. MILLER (State Bar No. 54141) [email protected] AMNON Z. SIEGEL (State Bar No. 234981) [email protected] MILLER BARONDESS, LLP 1999 Avenue of the Stars, Suite 1000 Los Angeles, California 90067 Telephone: (310) 552-4400 Facsimile: (310) 552-8400 Attorneys for Plaintiff Herring Networks, Inc.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HERRING NETWORKS, INC.,
Plaintiff,
v. RACHEL MADDOW; COMCAST CORPORATION; NBC UNIVERSAL MEDIA, LLC; AND MSNBC CABLE LLC.
Defendants.
CASE NO. 3:19-cv-01713-BAS-AHG Assigned for All Purposes to: Hon. Cynthia Bashant EVIDENTIARY OBJECTIONS IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT [Filed Concurrently with Opposition;
Declaration of Amnon Siegel] Action Filed: September 9, 2019
Trial Date: None
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.987 Page 1 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 2 Case No. 3:19-cv-01713-BAS-AHG
Plaintiff Herring Network, Inc. (“Plaintiff” or “Herring”) respectfully submits
the following Evidentiary Objections to the Declaration of Scott A. Edelman
submitted in support of Defendants Rachel Maddow, Comcast Corporation,
NBCUniversal Media, LLC, and MSNBC Cable L.L.C. (“Defendants”) Motion for
Attorneys’ Fees and Costs.
I. OBJECTIONS TO THE DECLARATION OF SCOTT A. EDELMAN
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
Paragraph 5, page 2, lines
7-10
I believe all of the
aforementioned attorneys
were both necessary and
reasonable for the litigation
of Defendants’ successful
Motion to Strike, and, based
on my experience, I believe
that Gibson Dunn staffed
and litigated this case in a
reasonable, efficient, and
appropriate manner.
Lacks Personal
Knowledge, Lack of
Foundation, and
Speculation (FRE 602);
Improper Legal
Conclusion (FRE 701,
702);
Relevance (FRE 401, 402,
104(b)).
Sustained:
Overruled:
Paragraph 8, page 2, line
24 to page 33, line 4.
Substantial efforts went into
the preparation of this
dispositive motion. Gibson
Dunn attorneys researched
the legal doctrine of
protected opinion, which
requires a totality of the
circumstances test in which
numerous factors may be
considered, requiring
significant legal research.
Lacks Personal
Knowledge, Lack of
Foundation, and
Speculation (FRE 602);
Hearsay (FRE 801, 802);
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Relevance (FRE 401, 402,
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.988 Page 2 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 3 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
Defendants’ counsel also
researched the case law
surrounding substantially
true speech. Further, given
that Plaintiff brought its
Complaint in federal district
court, Gibson Dunn
attorneys needed to research
the interplay between
California’s state anti-
SLAPP statute and federal
procedural law. Gibson
Dunn attorneys also spent
time analyzing the segment
of The Rachel Maddow
Show that was at the center
of Plaintiff’s lawsuit.
104(b));
Lack of Authentication
(FRE 901).
Paragraph 11, page 3,
lines 11-18
Gibson Dunn did not hire an
expert to rebut Professor
Gries' expert report.
Defendants' counsel
understood that evidentiary
submissions of this sort
were improper at this stage
of the proceedings, and
chose not to waste time and
resources retaining an expert
to work on a report that
should not be considered.
Plaintiffs improper
submission did, however,
compel Defendants to
research the impropriety of
evidentiary submissions in
the context of a special
motion to strike submitted
Improper Expert Opinion
(FRE 702);
Relevance (FRE 401, 402,
104(b));
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403).
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.989 Page 3 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 4 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
on a legal basis only
Defendants' counsel also
conducted further research
to respond to Plaintiffs other
arguments.
Paragraph 13, page 3,
lines 20-25
The next day, Mr. Siegel
contacted Defendants'
counsel and informed
Defendants of his plan to
file an Ex Parte Application
to Supplement the Record.
Mr. Siegel wanted to submit
new evidence of a
December 9, 2019 episode
of Hardball with Chris
Matthews. Defendants'
counsel again told Mr.
Siegel that evidentiary
submissions were improper
at this stage, and that the
video was irrelevant.
Plaintiff nonetheless filed its
Ex Parte Application on
December 11, 2019.
Hearsay (FRE 801, 802);
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Lack of Authentication
(FRE 901).
Sustained:
Overruled:
Paragraph 14, page 3,
lines 26-28
As a result of Plaintiffs Ex
Parte Application,
Defendants' counsel was
forced to undertake even
further research and briefing
to oppose the Application.
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Sustained:
Overruled:
Paragraph 17, page 4,
lines 13-17
Hearsay (FRE 801, 802);
Probative value
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.990 Page 4 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 5 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
Gibson Dunn was retained
on a modified contingency
fee basis NBCU agreed to
pay Defendants' counsel a
rate of $100,000 for the
filing and argument on the
Anti-SLAPP Motion.
NBCU further agreed that, if
they were successful on the
Anti-SLAPP Motion and
recovered from Plaintiff,
they would pay Gibson
Dunn any difference
between the $100,00 and the
fees actually incurred by
counsel.
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403).
Paragraph 20, page 5,
lines 16-19
Based on my reading of the
relevant case law, fee
applications submitted in
other district courts in
California, and my overall
familiarity with rates
charged by my firm's
competitors, it is my
understanding that these
rates are comparable to the
rates charged by peer firms
and attorneys with similar
skill and experience.
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Improper Legal
Conclusion (FRE 701,
702);
Lack of Authentication
(FRE 901).
Sustained:
Overruled:
Paragraph 20, page 5,
lines 20-26
Attached hereto as Exhibit
G is a true and correct copy
of an April 2020 fee
application submitted in
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Lack of Authentication
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.991 Page 5 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 6 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
bankruptcy court in the
northern district of
California, which reflects
hourly billing rates for
litigation partners and
associates from Weil,
Gotshal & Manges LLP
charged in 2019 and 2020.
This fee application shows
that Weil charged rates up to
$1,325 per hour for
litigation partners, and
between $595 and $1,050
for litigation associates.
(FRE 901);
Improper Legal
Conclusion (FRE 701,
702).
Paragraph 21, page 6,
lines 19-21
Gibson Dunn's hourly rates
are also appropriate in light
of the high degree of
sophistication, experience,
and excellence that Gibson
Dunn attorneys bring to bear
on their work (as
demonstrated by the success
in the present litigation).
Hearsay (FRE 801, 802);
Improper Legal
Conclusion (FRE 701,
702);
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403).
Sustained:
Overruled:
Paragraph 22, pages 6:22-
7:2
I have reviewed Gibson
Dunn's timekeeping records
for this case, and the time
referenced in these records
reflects the time actually
worked in connection with
this matter. I have become
very familiar with such
records and the processes by
which the firm creates and
Relevance (FRE 401, 402,
104(b));
Lack of personal
knowledge and foundation
(FRE 602);
Improper Legal
Conclusion (FRE 701,
702);
Probative value
outweighed by unfair
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.992 Page 6 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 7 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
maintains them. In the
regular course of business,
Gibson Dunn maintains
records of time spent by
individual attorneys and
other professionals with
respect to each client matter.
In recording their
timekeeping entries,
attorneys at Gibson Dunn
are required to specify the
client and matter, the nature
of the work performed, and
the amount of time that they
expend on a designated
task(s).
prejudice, confusing the
issues, vague and
misleading (FRE 403).
Paragraph 23, page 7,
lines 3-15
The work performed on this
matter by the attorneys and
other professionals at
Gibson Dunn can be
categorized as follows:
• (1) reviewing and
analyzing Plaintiffs
Complaint and discussing
initial strategy to defeat
Plaintiffs defamation claim;
• (2) researching and
drafting the Anti-SLAPP
Motion and supporting
documents;
• (3) reviewing and
responding to Plaintiffs
opposition brief, including
Plaintiffs improper
evidentiary submission;
• (4) reviewing and
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403).
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.993 Page 7 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 8 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
responding to Plaintiffs Ex
Parte Application to
Supplement the Record;
• (5) preparing for and
attending the hearing on the
Anti-SLAPP Motion and
Plaintiffs Ex Parte
Application to Supplement
the Record; and
• ( 6) researching and
drafting the Attorneys' Fees
Motion and supporting
documents.
Paragraph 25, page 22:25-
23:2
In sum, through the filing of
this Motion for Attorneys'
Fees and Costs, attorneys
and other professionals
collectively spent 355.5
hours working on this
matter, which resulted in
$323,965 in attorneys' fees.
Gibson Dunn is also seeking
any additional fees incurred
in connection with preparing
a Reply and attending a
hearing on this Motion.
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Improper Legal
Conclusion (FRE 701,
702).
Sustained:
Overruled:
Paragraph 26, page 23,
lines 4-9
In addition to the fees for
Gibson Dunn attorneys and
other professionals,
Defendants incurred certain
costs in connection with
their Motion to Strike. I
have reviewed Gibson
Hearsay (FRE 801, 802);
Lack of personal
knowledge and foundation
(FRE 602);
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.994 Page 8 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 9 Case No. 3:19-cv-01713-BAS-AHG
EVIDENCE OBJECTIONS AND
AUTHORITIES
RULING ON THE
OBJECTION
Dunn's record of costs for
this case, and I am familiar
with such records and the
processes by which the firm
creates and maintains them.
In the regular course of
business, Gibson Dunn
maintains records of costs
incurred in connection with
a particular client and
matter.
misleading (FRE 403).
Paragraph 27, page 25,
lines 10-17
The costs incurred by
Gibson Dunn in connection
with this matter can be
categorized as follows:
• Courier costs;
• Document retrieval service
costs;
• Process server costs;
• Photocopying costs;
• Research costs; and
• Transcript costs.
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Lack of Authentication
(FRE 901).
Paragraph 28, page 25,
lines 24-28
In sum, through the filing of
this Motion for Attorneys'
Fees and Costs, Gibson
Dunn incurred $9,706.28 in
costs. Gibson Dunn is also
seeking any additional costs
incurred in connection with
preparing a Reply and
attending a hearing on this
Motion.
Probative value
outweighed by unfair
prejudice, confusing the
issues, vague and
misleading (FRE 403);
Improper Legal
Conclusion (FRE 701,
702).
Sustained:
Overruled:
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.995 Page 9 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
463614.1 10 Case No. 3:19-cv-01713-BAS-AHG
DATED: June 26, 2020 MILLER BARONDESS, LLP
By: /s/ Amnon Z. Siegel
AMNON Z. SIEGEL
Attorneys for Plaintiff Herring Networks,
Inc.
Case 3:19-cv-01713-BAS-AHG Document 37-4 Filed 06/26/20 PageID.996 Page 10 of 10