FORSYTH v MPAA: NOTICE OF MOTION FOR ATTORNEYS’ FEES, Dec 15, 2016

December 16, 2016 5:22 pm by Gene Borio

The PDF is Here

EXCERPT:

The mandatory fee award provision of the anti-SLAPP statute is imperative “to deter [the] chilling” of First Amendment rights through “abuse of the judicial process.” NATO therefore respectfully requests that this Court award $189,671.25, in addition to the fees expected to be further incurred on this motion, proof of which will be submitted in a supplemental declaration with NATO’s reply papers.

END EXCERPT

FULL TEXT:

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 1 of 12

BRYAN CAVE LLP

K. Lee Marshall, California Bar No. 277092

Roger Myers, California Bar No. 146164

Alexandra Whitworth, California Bar No. 303046

Three Embarcadero Center, 7th Floor

San Francisco, CA 94111

Telephone: (415) 675-3400

Facsimile: (415) 675-3434

Email: klmarshall@bryancave.com

roger.myers@bryancave.com

alex.whitworth@bryancave….

Attorneys for Defendant

NATIONAL ASSOCIATION OF THEATRE OWNERS, a New York corporation

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

TIMOTHY FORSYTH, individually and on behalf of a class of similarly situated individuals,

Plaintiff,

vs.

MOTION PICTURE ASSOCIATION OF AMERICA, INC., a New York corporation, THE WALT DISNEY COMPANY, a Delaware corporation, PARAMOUNT PICTURES CORPORATION, a Delaware corporation, SONY PICTURES ENTERTAINMENT INC., a Delaware corporation, TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation, UNIVERSAL CITY STUDIOS LLC. a Delaware corporation, WARNER BROS. ENTERTAINMENT INC., a Delaware corporation, and NATIONAL ASSOCIATION OF THEATRE OWNERS, a New York corporation,

Defendants.

SF01DOCS\292965.1

Case No. 3:16-CV-00935-RS

DEFENDANT NATIONAL ASSOCIATION OF THEATRE OWNERS’ NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES

Action Filed: February 25, 2016

Trial Date: None

Date: January 26, 2017

Time: 1:30

Place: Courtroom 3, 17th Floor

Judge: Hon. Richard Seeborg

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 2 of 12

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on January 26, 2017 at 1:30 p.m. or as soon thereafter as the matter may be heard in Courtroom No. 3 –17th Floor, United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102, before the Hon. Richard Seeborg, United States District Judge, Defendant National Association of Theatre Owners will, and here by does, move the Court for an award of attorneys’ fees under California Code of Civil Procedure section 425.16.

The Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of K. Lee Marshall, all pleadings and papers on file in this matter, and any other materials or argument the Court may consider.

Dated: December 15, 2016 BRYAN CAVE LLP

By: /s/ Lee Marshall

K. Lee Marshall

Attorneys for Defendant NATIONAL

ASSOCIATION OF THEATRE OWNERS

SF01DOCS\292965.1 1

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 3 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

INTRODUCTION

Defendant National Association of Theatre Owners (“NATO”), a non-profit trade organization, was forced to expend considerable resources responding to a lawsuit that was not only baseless, but also an attack on NATO’s First Amendment rights. Because NATO was successful in moving to strike Plaintiff Timothy Forsyth’s complaint under California’s anti- SLAPP statute, NATO seeks to recoup its reasonable attorneys’ fees.

“It is well-settled that an award of attorney’s fees and costs to a successful anti-SLAPP movant is mandatory.” Kearney v. Foley & Lardner, 553 F. Supp. 2d 1178, 1181 (S.D. Cal. 2008); accord, e.g., Henry v. Bank of Am. Corp., No. C 09-0628, 2010 WL 3324890, *1 (N.D. Cal. Aug. 23, 2010). This rule is applied in federal court the same as it is in state court. Id. Thus, the issue is not whether NATO is entitled to an award of attorneys’ fees, but how much should be awarded. Here, the fees for all hours spent on this litigation is patently reasonable and well within the range of fees typically awarded under the anti-SLAPP statute.

FACTS

On February 25, 2016, Plaintiff filed his putative class-action Complaint against NATO, the Motion Picture Association of America, and various motion picture studios. (ECF No. 1.) The Complaint was fifty-eight pages long and contained eight causes of action, all of which proved meritless. It alleged that Defendants, who control the Classification and Rating Administration (“CARA”), committed various torts by not automatically rating all movies containing tobacco use as “R” rated. (See generally ECF No. 1.)

In response to the Complaint, Defendants jointly filed a Special Motion to Strike pursuant to California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, or, in the Alternative, Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (“Joint Motion”). (ECF No. 31.) In addition, NATO filed a supplemental brief in support of the Joint Motion to emphasize the important First Amendment values at stake in the action and the breathtakingly unconstitutional remedy sought by Plaintiff. (ECF No. 33.)

Plaintiff opposed the Joint Motion on July 15, 2016. (ECF No. 44.) In his opposition,

SF01DOCS\292965.1 2

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 4 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

Plaintiff changed his theory of Defendants’ liability. The opposition “clarified” that Plaintiff’s claims were based entirely on “certification trademarks”—a term barely mentioned in the Complaint. Because of Plaintiff’s changed theory, NATO had to start from scratch in a sense, spending considerable time on both factual and legal research into Plaintiff’s new “certification trademarks” theory. Then, NATO had to draft a reply brief to address the new theory, along with a companion request for judicial notice of ratings-related trademark files from the U.S. Patent and Trademark Office put at issue by Plaintiff’s new theory. Defendants filed a joint reply brief in support of the Joint Motion on September 15, 2016. (ECF No. 48.)

The Court heard the Joint Motion on October 28, 2016. Shortly thereafter, Plaintiff filed a Motion for Leave to File a Post-Hearing Brief (ECF No. 56), causing NATO to incur additional attorneys’ fees opposing the motion (ECF No. 58). On November 10, 2016, the Court granted the Joint Motion in its entirety, finding that the California anti-SLAPP statute applied because CARA’s ratings were opinions that constituted an expression of free speech. (ECF No. 59.) On December 1, 2016, the Court entered a final judgment in favor of Defendants under which Plaintiff took nothing. (ECF No. 65.)

ARGUMENT

California’s anti-SLAPP statute provides, in no uncertain terms, that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Code Civ. Proc. § 425.16(c)(1) (emphasis added). Accordingly, fee awards to defendants prevailing under the California anti-SLAPP statute are mandatory. See Kearney, 553 F. Supp. 2d at 1181 (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001) (“Any SLAPP defendant who brings a successful motion to strike is entitled to mandatory fee.”)); see also, e.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 971 (9th Cir. 1999) (holding that section 425.16(c), under which parties prevailing on a special motion to strike are “entitled to attorney’s fees and costs to compensate them for the expense of responding to the SLAPP suit and the motion,” applies in federal court); Pearl, California Attorney Fee Awards § 2.10 (CEB 2002) (“Fee statutes phrased in mandatory terms (i.e., the court ‘shall’ award fees) afford no discretion to award fees to a prevailing party.”).

SF01DOCS\292965.1 3

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 5 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

To further the legislative purposes of the anti-SLAPP statute—namely, discouraging SLAPP lawsuits—the award of fees to defendants prevailing on a special motion to strike must “‘adequately compensate them for the expense of responding to a baseless lawsuit,’” Metabolife Int’l, Inc. v. Wornick, 213 F. Supp. 2d 1220, 1222 (S.D. Cal. 2002) (granting fee motion “in full”) (quoting Robertson v. Rodriquez, 36 Cal. App. 4th 347, 362 (1995)). “‘[A]bsent circumstances rendering an award unjust, the fee should ordinarily include compensation for all hours reasonably spent, including those relating solely to [obtaining] the fee [award].’” Id. (quoting Serrano v. Unruh, 32 Cal. 3d 621, 624 (1982)) (alterations in original).

A. NATO Is Entitled to a Fee Award for the Entire Amount of Fees It Incurred.

The anti-SLAPP statute is “intended to compensate a defendant for the expense of responding to a SLAPP suit. To this end, the [attorneys’ fees] provision is broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit.” Graham-Sult v. Clainos, 756 F.3d 724, 752 (9th Cir. 2013) (quoting Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15 (2006)); see also Code Civ. Proc. § 425.16(a) (“The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.”). Where the entire lawsuit is subject to the anti-SLAPP motion, the prevailing defendant is normally entitled to all of the fees reasonably incurred in defending the action. See Graham-Sult, 756 F.3d at 752; Metabolife, 213 F. Supp. 2d at 1223-24. In addition, the award must include fees and costs incurred on the fee motion and any appeal. Ketchum, 24 Cal. 4th at 1141; Metabolife, 213 F. Supp. 2d at 1222.

The rule derives from the policy behind the statute: Courts have long recognized that the cost of defending even meritless lawsuits can have a chilling effect on First Amendment rights. See, e.g., Franchise Realty Interstate Corp. v. San Francisco Local Jt. Exec. Bd., 542 F.2d 1076, 1082-83 (9th Cir. 1976). The fee award is designed to discourage such litigation “by imposing the litigation costs on the party seeking to ‘chill the valid exercise of the constitutional right[]of freedom of speech’. . . and to encourage private representation in SLAPP cases.” Ketchum, 24

SF01DOCS\292965.1 4

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 6 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

Cal. 4th at 1139.

Here, there is no question that NATO is a “prevailing defendant on a special motion to strike” under the California anti-SLAPP statute. In response to the Joint Motion, the Court dismissed the Complaint in its entirety, finding that the conduct Plaintiff challenged in his complaint was protected speech. Accordingly, an award of attorneys’ fees is mandatory in this case. See, e.g., Ketchum, 24 Cal. 4th at 1131.

Furthermore, NATO is entitled to all of the fees that it incurred defending this lawsuit because the entire Complaint, as opposed to only certain causes of action, was subject to the anti- SLAPP motion to strike and dismissed. See Graham-Sult, 756 F.3d at 752 (holding it was not abuse of discretion for court to award fees incurred that were not directly related to anti-SLAPP motion, such as “time lawyers spent on the motion to dismiss, reply, other filings, document review, and preparing initial disclosures,” where entire action was subject to motion to strike); Metabolife, 213 F. Supp. 2d at 1223-24 (distinguishing cases where anti-SLAPP motion applied to only part of complaint and holding that where entire lawsuit is subject to anti-SLAPP motion, all activity by defendant’s attorneys “occurred in the context of, and [was] inextricably intertwined with, the anti-SLAPP motion”).

As demonstrated below, the work performed by NATO’s counsel was directly related to researching, drafting, and arguing the anti-SLAPP motion. The related arguments made in that motion under Federal Rule of Civil Procedure 12(b)(6) were necessary to establish that Plaintiff was not likely to prevail on the merits—a showing that is required to succeed on an anti-SLAPP motion to strike based on deficiencies in the pleadings. And the other incidental tasks (i.e., case management, complying with local rules, etc.) were indispensable to NATO’s success in “extracting” itself from this “baseless lawsuit,” see Graham-Sult, 756 F.3d at 752, and “inextricably intertwined” with the anti-SLAPP motion, see Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., No. 12-cv-04634, 2015 WL 4932248, *4 (N.D. Cal. Aug. 18, 2015). Consequently, the fee award must include all of the fees incurred by NATO and submitted with this fee motion.

SF01DOCS\292965.1 5

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 7 of 12

B. The Amount of Fees Sought by NATO Is Reasonable.

The reasonableness of fees is determined by reference to the lodestar figure, which is the number of hours reasonably expended multiplied by a reasonable hourly rate. Piping Rock Partners, 2015 WL 4932248, at *2. A reasonable hourly rate ‘is that prevailing in the community for similar work.’” Id. “[A]djustments, both upward downward[,] to the lodestar amount are sometimes appropriate, albeit in ‘rare’ and ‘exceptional’ cases . . . .” Ruff v. County of Kings, 700 F. Supp. 2d 1225, 1228 (E.D. Cal. 2010) (quoting Clark v. City of Los Angeles, 803 F.2d 987, 990 n.3 (9th Cir. 1986) (further quotation omitted).

In this case, the lodestar figure is $189,671.25 for the following hours and tasks:

TASK HOURS FEES

Review and analyze Partner(s) – 6.5 $8,428.75

complaint; conduct Associate(s) – 9.5

initial research Legal Staff – 2.5

Prepare motion to strike Partner(s) – 52.25 $34,036.25

and motion to dismiss Associate(s) – 5.75

Compliance with local

rules; 26(f) preparation;

Partner(s) – 10 $7,362.50

litigation

correspondence

Associate(s) – 2.75

Review and analyze

plaintiff’s opposition

brief; research and

Partner(s) – 118.5 $104, 605.00

prepare reply brief and

notice of additional

authorities

Counsel – 66.75

Costs related to Partner(s) – 36.5 $22,930.00

SF01DOCS\292965.1 6

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 8 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

TASK HOURS FEES

preparation, attending, Counsel – .75

and debriefing oral

argument

Paralegal/library – 3.25

Costs related to

plaintiff’s motion for

leave to file post-

hearing brief

Partner(s) – 14.5 $7,997.50

Post-hearing tasks

related to potential

Partner(s) – 4.25 $4,311.25

appeal and motion for

fees

Associate – 3

TOTAL $189,671.25

In addition, it is anticipated that additional fees will be incurred in connection with this Motion, all of which are recoverable. See Ketchum, 24 Cal. 4th at 1141; Metabolife, 213 F. Supp. 2d at 1222. Accordingly, NATO seeks to recover the total amount of $189,671.25, plus reasonable fees required to prepare and argue this motion, which it will summarize in its reply.

1. The amount of hours expended was reasonable.

“By and large, the court should defer to the winning lawyer’s professional judgment as to how much time was required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008); Chaudry v. City of Los Angeles, 751 F.3d 1096, 1111 (9th Cir. 2014). Although every fee application must be assessed on its own merits, taking into account what is reasonable under the circumstances, several courts have recognized the time-consuming nature of anti-SLAPP motions. See, e.g., Piping Rock Partners, 2015 WL 4932248, at *5 (finding that 217 hours of legal work was not unreasonable and noting that “most anti-SLAPP motions . . . tend to present complex issues.”). The hours spent by NATO in this case are reasonable given the high- stakes nature of this putative class action, the important First Amendment values implicated, and

SF01DOCS\292965.1 7

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 9 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

Plaintiff’s evolving theories.

Defense counsel are very experienced at defending claims like those in this case and, based on that experience, are familiar with how many hours are necessary to defend such claims. Bryan Cave regularly defends against SLAPP lawsuits like the one here. Indeed, partner Roger Myers specializes in such litigation and has more than twenty years’ experience with First Amendment litigation. Declaration of K. Lee Marshall (“Marshall Decl.”), ¶ 8. Likewise, partner Lee Marshall is an experienced class-action litigator who regularly defends high-stakes class actions. Marshall Decl. at ¶ 6. Because of their experience, defense counsel were familiar with the principles at play and the applicable defenses, and were thus able to act efficiently in formulating and implementing NATO’s defense strategy. Furthermore, to keep hours and costs down, NATO’s in-house counsel did substantial research and drafting, saving roughly $20,000 in fees. Marshall Decl. at ¶ 13. As defense counsel also recognized, however, the specifics of Plaintiff’s allegations would require extensive factual and legal research to address, particularly given the length of Plaintiff’s Complaint, the number of factual allegations contained therein, the number of legal theories involved, and the novel trademark certification theory made up by Plaintiff.

Furthermore, the Court should consider that Plaintiff’s actions “overwhelmingly caused” defense counsel’s hours to be as high as they were. Metabolife, 213 F. Supp. 2d at 1224. As the above chart demonstrates, the most significant portion of NATO’s fees were incurred in responding to Plaintiff’s opposition to the Joint Motion. This is partially because Munger, Tolles & Olson LLP, counsel for MPAA and the studios, was the primary drafter for much of the initial motion,1 whereas NATO’s counsel took on a more substantial drafting role for the reply brief. But it is also because Plaintiff’s opposition explained that his theory of Defendants’ liability was based on certification trademarks, which was completely unforeseeable given that the allegations in the Complaint hardly mentioned the term “certification trademarks.” Because Plaintiff did not bring the certification trademark issue into play until he filed his opposition, NATO was not able to research and respond to this argument as efficiently as it would have if the argument had been set

1

NATO understands that the other Defendants in this action are not filing a motion for attorneys’ fees. As a result, Plaintiff is fortunate in that he is not being asked to pay all of the fees incurred in defending this action.

SF01DOCS\292965.1 8

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 10 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

forth in the Complaint. NATO spent considerable time researching Plaintiff’s certification trademark theory—both legally and factually, including review of all files in the Patent & Trademark Office related to the registrations for the ratings marks—and then preparing a reply brief, with a substantial request for judicial notice of the pertinent trademark records, necessary to adequately address it. Although none of the novel arguments in Plaintiff’s opposition had merit, they all required substantial time to research and address, both in the reply and at the hearing.

Plaintiff then filed an application for leave to submit a post-hearing brief, to which defense counsel had to reply. In light of the manner Plaintiff chose to litigate, the hours that NATO spent defending this suit were certainly reasonable. See Metabolife, 213 F. Supp. 2d at 1224 (finding fees reasonable where plaintiff’s actions “overwhelmingly caused [defendant] to incur the attorney fees and costs”).

2. The hourly rates charged were reasonable.

In determining whether the hourly rates charged were reasonable, the court should take into account “(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, and (4) the results obtained.” See Kilopass Tech., Inc. v . Sidense Corp., 82 F. Supp. 3d 1154, 1171 (N.D. Cal. 2015).

NATO seeks a fee award based on the hourly rates it actually paid its lawyers. Marshall Decl. at ¶ 3. These rates reflect a discount from Bryan Cave’s standard rates. Id. at ¶ 5. Bryan Cave’s rates, particularly taking into account the discount received by NATO, are in line with or below those prevailing in the community for similar services and are inherently reasonable. See id. at ¶.; Rosenfeld v. U.S. Dep’t of Justice, 904 F. Supp. 2d 988, 1002 (N.D. Cal. 2012) (finding, four years ago, that Bryan Cave’s hourly rates of $550 and $700 for lawyers with 21 and 28 years’ experience, respectively, reasonable and “in line with fee awards made in other recent cases in the San Francisco area”); see also Kilopass Tech., Inc. v . Sidense Corp., 82 F. Supp. 3d 1154, 1171 (N.D. Cal. 2015) (finding senior litigation partner’s hourly rates of $750-$830 reasonable); Public.Resource.org v. U.S. Internal Rev. Serv., No. 13-cv-02789, 2015 WL 9987018, *6-7 (N.D. Cal. Nov. 20, 2015) (finding 2015 hourly rates between $395 and $645 reasonable in FOIA case). For example, Marshall’s rate of $640 per hour is clearly reasonable and in line with

SF01DOCS\292965.1 9

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 11 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

lawyers with similar experience in the San Francisco market. Marshall graduated from the Washington University School of Law, Order of the Coif, in 1999. Marshall Decl. at ¶ 6. Since then, he has defended numerous class-action matters, including cases with billions of dollars of potential exposure. Id. He has consistently been voted one of the Best Lawyers in America, previously served as the firm-wide leader of Bryan Cave’s commercial litigation group, and currently serves on Bryan Cave’s Executive Committee. Id.

Myers’ rate, and those of associates at Bryan Cave, were recently held to be “reasonable rates charged by similarly situated attorneys in the area,” Choyce v. SF Bay Area Indep. Media Ctr., No. 13-cv-01842, 2014 WL 5597274, *6 (N.D. Cal. Nov. 3, 2014), a finding affirmed by the Ninth Circuit two months ago, –Fed. App’x –, 2016 WL 6123539, *1 (9th Cir. Oct. 20, 2016). This makes sense given Myers’ background and substantial experience in First Amendment law. Myers has been practicing media and intellectual property law for more than twenty-five years, was among the first attorneys to bring motions under the anti-SLAPP statute in both state and federal court,2 has won numerous anti-SLAPP cases since then, and has been named a Super Lawyer in Media Law and one of the Leading Lawyers in Media Law by Chambers & Partners. Marshall Decl. at ¶ 8. He has also taught media law and received awards for his representation of free speech rights in the U.S. and abroad. Id. Despite this, Myers’s rate was only $585, substantially lower than it could have been for someone of his experience in the San Francisco market. See, e.g., Kilopass Tech., 82 F. Supp. 3d at 1171.

The rates charged by the other Bryan Cave lawyers who did substantial work on this matter, Katherine Keating ($510) and Alexandra Whitworth ($420), were also well within the prevailing market rate in the San Francisco Bay Area for attorneys with the same amount of experience. Marshall Decl. at ¶¶ 5, 10-12.

3. The motion to strike was successful.

In determining the amount of a fee award, the Supreme Court has directed that “the district court should look to the important factor of the ‘results obtained.’” Metabolife, 213 F. Supp. 2d at 1223 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In other cases, prevailing

2 See, e.g., Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1109-11 (N.D. Cal. 1999). SF01DOCS\292965.1 10

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Case 3:16-cv-00935-RS Document 66 Filed 12/15/16 Page 12 of 12

BRYAN CAVE LLP

THREE EMBARCADERO CENTER , 7 TH FLOOR

SAN FRANCISCO , CA 94111 -4070

defendants have been “granted an award of all fees . . . where the defendants were successful in . . . extricating themselves from the lawsuit.” Kearney, 553 F. Supp. 2d at 1184 (citing cases). In this case, the motion to strike resulted in an order dismissing all of Plaintiff’s claims in their entirety at the outset. This is further proof that the time and money spent on this case was reasonable.

4. Awards in similar cases demonstrate the fees incurred are reasonable. Finally, the request is reasonable when compared with other awards. Federal and state courts have frequently awarded and affirmed fee awards under California’s anti-SLAPP statute that are either similar or higher to the request in this case. See, e.g, Graham-Sult, 756 F.3d at 752 (award of $240,506.00 plus reasonable fees on fees was not an abuse of discretion in anti-Slapp case); Metabolife, 213 F. Supp. 2d at 1228 (awarding $318,687.99 in 2002); Premier Medical Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n, 163 Cal. App. 4th 550, 560 (2008) (affirming $330,000 award, including 345 hours on motion to strike); Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 658-59 (1996) ($130,506.71).

CONCLUSION

The mandatory fee award provision of the anti-SLAPP statute is imperative “to deter [the] chilling” of First Amendment rights through “abuse of the judicial process.” Metabolife, 213 F. Supp. 2d at 1221 (internal quotation omitted). NATO therefore respectfully requests that this Court award $189,671.25, in addition to the fees expected to be further incurred on this motion, proof of which will be submitted in a supplemental declaration with NATO’s reply papers.

Dated: December 15, 2016 BRYAN CAVE LLP

By: /s/ Lee Marshall

K. Lee Marshall

Attorneys for Defendant NATIONAL

ASSOCIATION OF THEATRE OWNERS

SF01DOCS\292965.1 11

DEFENDANT NATO’S MOTION FOR ATTORNEYS’ FEES

Leave a Reply

The primary purpose of this site is to provide information in a timely manner. Postings should be informative. The usual rules apply: No libel, no profanity, no personal abuse, keep it on topic, and short.

If you are scheduled as a court witness, CHECK with your lawyer before posting anything here!