Part 2 of 2
B. Trump v. New York Attorney GeneralIn March 2019, the New York Office of the Attorney General (“OAG”) headed by Attorney General Letitia James (“AG James”), began investigating Mr. Trump and his New York business.22 (James AC ¶ 64). The OAG initiated its investigation following Congressional testimony by Michael Cohen, “a former senior executive of the Trump Organization and Special Counsel to Mr. Trump,” wherein he produced copies of Plaintiff’s financial statements that allegedly inflated the value of his assets to obtain favorable loans and insurance coverage, while the Trump Organization simultaneously deflated the value of those same assets to reduce its tax burden. (Trump v. James, DE 9 at 8-9). According to Mr. Trump, the Cohen testimony was a pretext to justify the OAG Investigation, and he points to various public statements by AG James as support for his theory that the OAG is “nothing more than a weapon in [AG James’s] arsenal to wage war on [Mr. Trump].” (James AC ¶¶ 67, 76).
On August 24, 2020, the OAG commenced a special proceeding in the New York Supreme Court, New York County, to enforce subpoenas served during the Investigation.23 (James AC ¶ 75). On February 17, 2022, Justice Engoron, the state-court Justice presiding over the special proceeding, denied a motion to quash filed by Mr. Trump and granted the OAG’s motion to compel (“February 2022 Order”). See People of the State of New York v. The Trump Organization, Inc., No. 451G85/2020, 2022 WL 489625 (Sup. Ct. N.Y. Cnty. Feb. 17, 2022). Justice Engoron rejected the Trump Respondents’24 argument that the OAG Investigation was based on “personal animus” and that it amounted to selective prosecution. See id. at *5-6.
Justice Engoron’s Order has been affirmed by the state-appellate courts in New York. On May 26, 2022, the February 2022 Order was unanimously affirmed by the New York Appellate Division’s First Department. People by James v. Trump Org., Inc., 205 A.D.3d 625 (1st Dep’t 2022) (affirming finding that the OAG Investigation was “lawfully initiated” and not selective prosecution). On June 14, 2022, in a two-sentence order, the New York Court of Appeals—New York’s highest court—dismissed Mr. Trump’s appeal. People by James v. Trump Org., Inc., 38 N.Y.3d 1053 (2022) (holding that “no substantial constitutional question is directly involved.”).
Simultaneously, in December 2021, Mr. Trump and the Trump Organization LLC sued AG James under 42 U.S.C. § 1983 in the United States District Court for the Northern District of New York. Trump v. James, No. 21-cv-1352, 2022 WL 1718951 at *1 (N.D.N.Y. May 27, 2022). Mr. Trump alleged that the OAG’s investigation infringed on various of his constitutional rights. As summarized by Judge Sannes, Mr. Trump (and the Organization) asserted that AG James:
(1) violated their Fourteenth Amendment due process rights by commencing “investigations against Plaintiffs in bad faith and without a legally sufficient basis,” (2) violated their First Amendment rights by seeking to stifle Plaintiffs’ free speech and retaliate against Plaintiffs based upon Mr. Trump's political views, (3) violated their Fourth Amendment rights by issuing subpoenas without any “justifiable legal or factual basis,” and (4) abused process to advance her own political career and injure Mr. Trump personally and politically.
Id. at *4. Judge Sannes granted AG James’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) on the grounds of Younger Abstention, id. at *14, and stated that, in the alternative, the case would be dismissed under Rule 12(b)(6) because of res judicata, id. at *19. The Court also noted: “Plaintiffs’ assertions that [AG James] conducted a ‘baseless fishing expedition’ and ‘knowingly advanced claims that were unwarranted under existing law,’ are wholly unsupported.” Id. at *12 n.13 (citation omitted). Mr. Trump has appealed to the Second Circuit. (Trump v. James DE 9 at 11).
On September 21, 2022, following its Investigation, the OAG commenced an enforcement action pursuant to New York Law §63(12) (“Enforcement Action”). (Id. at 12). On November 14, 2022, following a granting of the OAG’s motion for preliminary injunction, Justice Engoron appointed the Honorable Barbara Jones, a retired federal judge, to serve as monitor of the Trump Organization. (Trump v. James, DE 9-1 at 2). Mr. Trump appealed to the New York Appellate Division’s First Department, where it remains pending. (Trump v. James, DE 9 at 13).
Then, on November 2, 2022, Mr. Trump filed a lawsuit against AG James in a Florida state court, the Circuit Court of the Fifteenth Judicial Circuit for Palm Beach County, Florida. (Trump v. James, DE 1-1 at 11). The following day, he posted the following on Truth Social:
Statement by Donald J. Trump, 45th President of the United States of America
A puppet judge of the New York Attorney General and other sworn enemies of President Trump and the Republican Party has just issued a ruling never before seen anywhere in America. It is Communism come to our shores.
Businesses will be fleeing New York, which they already are, for other states and other countries. Today’s ridiculous ruling by a politically-motivated, hand-picked judge makes it even more vital for courts in both New York and Florida to do the right thing and stop this inquisition.
We have to fight back against radical tyranny and save our Country!25
On November 14, 2022, Plaintiff filed an Amended Complaint and an Emergency Motion for Temporary Injunction. (Trump v. James, DE 19; DE 1-1 at 113). Plaintiff brought three counts against Defendant, “individually.” Count I is brought under 42 U.S.C. § 1983 for various constitutional violations. (James AC at 26). Count II alleges violations of Plaintiff’s rights to privacy and property under Florida law. (Id. at 31). Count III alleges violations of Plaintiff’s rights as grantor and beneficiary of the Trust. (Id. at 35). In his Emergency Motion, Plaintiff requested a temporary injunction against Defendant, “either personally, through an agent or through any other persons acting in active concert or participation with her, from requesting, demanding, possessing or disclosing the 2020 or 2022 amendments” of Plaintiff’s Trust. (Trump v. James, DE 1-1 at 113).
On November 16, 2022, Defendant removed the case to this Court, where it is now pending before me. (Trump v. James, DE 1). The James AC copies verbatim substantial portions of the dismissed New York federal action. It begins with provocative rhetoric, all too familiar:
Extraordinary wrongdoing requires extraordinary relief. As set forth below, James has repeatedly abused her position as Attorney General for the State of New York to pursue a vendetta against President Trump, a resident of Palm Beach County, Florida, with the stated goal of destroying him personally, financially, and politically. Suffice it to say that these actions are contrary to both the Constitutions and the laws of New York and Florida and the United States Constitution.
(James AC ¶ 1).
On December 21, 2022, I denied the Emergency Motion for Temporary Injunction finding that none of the prerequisites for an injunction were met. (Trump v. James, DE 14). I found that Plaintiff’s attempt to sidestep rulings by the New York courts by suing AG James individually rather than in her official capacity was plainly frivolous. (Id. at 6). I found there was no likelihood of success on the merits, no irreparable harm, and to “impede a civil Enforcement Action by the New York Attorney General would be unprecedented and contrary to the interests of the people of New York.” (Id. at 8). I urged Mr. Trump and his lawyers to reconsider their opposition to AG James’s Motion to Dismiss because “[t]his litigation has all the telltale signs of being both vexatious and frivolous.” (Id. at n.6).
C. Trump v. TwitterOn July 7, 2021, Mr. Trump, Linda Cuadros, and the American Conservative Union, individually and on behalf of the class, sued Twitter, Inc. and Jack Dorsey. The complaint was filed in U.S. District Court in the Southern District of Florida. Donald J. Trump et al. v. Twitter, Inc. et al., No. 21-CV-22441 (S.D. Fla.) (hereinafter “Trump v. Twitter”).26 The case was subsequently transferred to the Northern District of California pursuant to Twitter’s forum selection clause. (Trump v. Twitter, DE 87).
Shortly after announcing the lawsuits, Mr. Trump started sending “breaking news alert” text messages directly to his followers including a link27 that asked them to donate to his Save America PAC:
President Trump is filing a LAWSUIT against Facebook and Twitter for UNFAIR CENSORSHIP! For the NEXT HOUR we’ve activated a 5X-IMPACT on ALL GIFTS! Please contribute IMMEDIATELY to INCREASE your impact by 500% and to get your name on the Donor List President Trump sees!28
Mr. Trump’s primary claim in all three of the cases is that the defendants censored his speech in violation of the First Amendment to the United States Constitution. See Trump v. Twitter, DE 1; Trump v. YouTube, DE 1; Trump v. Facebook, DE 1. A problem with his argument is that Twitter, Facebook, and YouTube are private companies, and the First Amendment applies only to governmental abridgements of speech. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (“[T]he Free Speech Clause prohibits only governmental abridgment of speech. The free-speech clause does not prohibit private abridgment of speech.”) (emphasis in original). Mr. Trump’s only viable course of action was to allege that the companies were so dominated by governmental authorities as to be considered “state actors.”
With respect to Twitter, aspects of Mr. Trump’s argument bear directly on the claims made against Ms. Clinton and the Defendants here. Recall that in this case, Mr. Trump’s lawyers point to the suspension of his Twitter account as the only example of economic injury that he suffered and blame the suspension on disinformation by Ms. Clinton; never mind that Twitter closed Mr. Trump’s account after the Jan 6th attack on the Capitol because of “the risk of further incitement of violence.” (Trump v. Twitter, DE 21 ¶114).
But in the Twitter litigation, the Trump lawyers claim that it was Democratic members of Congress, Vice President Harris, and First Lady Michelle Obama, that “coerced” Twitter to censor Mr. Trump. (Id. ¶¶ 48-61).
The District Court for the Northern District of California dismissed the case in its entirety finding that “the amended complaint does not plausibly allege that Twitter acted as a government entity when it closed plaintiffs’ accounts.” Trump v. Twitter Inc., No. 21-cv-08378-JD 2022 WL 1443233, at *7 (N.D. Cal. May 6, 2022). Appeal of the dismissal is currently pending in the Ninth Circuit. See Trump v. Twitter, Inc., et al., 22-cv-15961 (9th Cir.).
D. Trump v. CNNOn October 16, 2019, Charles Harder, as “litigation counsel for President Donald J. Trump and Donald J. Trump for President, Inc.” advised CNN that “my clients intend to file legal action against you to seek compensatory damages, treble damages, punitive damages, injunctive relief, reimbursement of legal costs, and all other available legal and equitable remedies to the maximum extent permitted by law.”29 Claiming violation of the Lanham Act because of “misrepresentations to the public, to your advertisers, and others,” the letter claimed “[n]ever in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks . . . . ” Id.
On March 6, 2020, represented by Mr. Harder, Donald J. Trump for President, Inc. sued CNN for libel based upon an article by a contributor entitled “Soliciting dirt on your opponents from a foreign government is a crime. Mueller should have charged Trump campaign officials with it.”30 Donald J. Trump for President, Inc. v. CNN Broad., Inc., 20-CV-01045-MLB (N.D. Ga. Mar. 6, 2020) (hereinafter “Trump v. CNN”) (DE 1). The district court found the complaint did not adequately plead actual malice and dismissed it with leave to amend no later than November 30, 2020. Trump v. CNN, 500 F. Supp. 3d 1349, 1358 (N.D. Ga. Nov. 11, 2020). Plaintiff’s counsel subsequently advised that an amended complaint would not be filed, so on December 31, 2020, the case was dismissed without prejudice for failure to comply with the Court’s order. (Trump v CNN, DE 38).
Mr. Trump then began fundraising for another lawsuit against CNN, issuing the following appeal:
I’m calling on my best and most dedicated supporters to add their names to stand with me in my impending lawsuit against fake news CNN . . . Add your name immediately to show your support for my upcoming lawsuit against fake news CNN.31
On October 3, 2022, Mr. Trump sued CNN for Defamation Per Se (Count I) and Defamation (Count II). Trump v. Cable News Network, Inc., No. 22-CV-61842-AHS (S.D. Fla. Oct. 3, 2022) (hereinafter “Trump v CNN II”), DE 1 at 19, 24. While claiming to meet the “actual malice” standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), Mr. Trump’s lawyers argue it “does not—and should not—apply where the defendant is not publishing statements to foster debate, critical thinking, or [the] ‘unfettered interchange of ideas’ but rather seeks to participate in the political arena by offering propaganda.” (Trump v CNN II, DE 1 ¶ 65 n.42).
Less than 24 hours later, a fundraising email from Mr. Trump proclaimed: “I am suing the Corrupt News Network (CNN) for DEFAMING and SLANDERING my name.” Supporters were encouraged to contribute $5 or more.32
To be clear, the sanction in this case is not imposed against Mr. Trump for the Pulitzer, Twitter, or CNN litigation. Those cases are before other judges who will make their own determinations. And a decision in Mr. Trump’s Florida lawsuit against the New York Attorney General, a case now pending before me, is premature.
However, this widespread and persistent conduct points to the need for deterrence in this case and helps explain why Rule 11, Section 1927, and the Defend Trade Secrets Act are not up to the task. This is purposeful conduct, some of which occurs beyond the pleadings and even outside of the courtroom. “[ I]t is a wrong against the institutions set up to protect and safeguard the public.” Chambers, 501 U.S. at 44. Mr. Trump’s deliberate use of a frivolous lawsuit for an improper purpose constitutes bad faith. And the behavior is not unique, but part of a plan, or at least a playbook. The telltale signs:
• Provocative and boastful rhetoric;
• A political narrative carried over from rallies;
• Attacks on political opponents and the news media;
• Disregard for legal principles and precedent; and
• Fundraising and payments to lawyers from political action committees.33
And when a ruling is adverse, accusations of bias on the part of judges—often while the litigation is ongoing.
But “[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Bridges v. California, 314 U.S. 252, 270 (1940). Frivolous lawsuits should not be used as a vehicle for fundraising or fodder for rallies or social media. Mr. Trump is using the courts as a stage set for political theater and grievance. This behavior interferes with the ability of the judiciary to perform its constitutional duty.
IV. CONSEQUENCESHaving determined that sanctions are appropriate under inherent authority, I must now determine what those sanctions should be. I find that an award of Defendants’ attorneys’ fees and costs is a fair and just sanction given Plaintiff’s and his counsel’s actions in this case. See Chambers, 501 U.S. at 56-58. What follows, then, is an analysis of what amount of fees and costs is reasonable. See Bynum v. Am. Airlines, Inc., 166 Fed. Appx. 730, 736 (5th Cir. 2006) (remanding imposition of sanctions for proof of incurred fees and expenses to determine reasonableness).
A. Defendants’ Fee Application And Plaintiff’s ObjectionsBefore analyzing the reasonableness of Defendants’ fee request, I will briefly explain what materials I considered in reaching my conclusions. A fee applicant bears the burden of providing an adequate application, but the opposing party must raise clear objections for a court to rule on them. See Am. Civ. Liberties Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (“‘objections and proof from fee opponents’ concerning hours that should be excluded must be specific and ‘reasonably precise.’”) (citation omitted).
Defendants request $1,058,283.50 in fees and costs. See generally Defendants’ Joint Motion for Sanctions (DE 280-2) (hereinafter “Application”). The Application is a 304-page document filed in support of Defendants’ fee request. See id. The Application contains eleven exhibits in support of the requested fees for each set of lawyers/law firms representing (some jointly) the Defendants in this case. Each exhibit contains (1) a declaration attesting to the authenticity of the hours and rates billed, with a corresponding summary of fees based on stages of the case; (2) background information on each timekeeper that describes professional experience and credentials; and (3) time entries.
In response, Plaintiff filed largely indecipherable objections. (DE 285-1) (hereinafter “Objections”); (DE 297) (hereinafter “Corrected Objections”). I will highlight just a few of these issues. First, Plaintiff’s Objections relied on an unsigned draft of the Application. Compare Objections at 241 (stating on Mr. Tyrrell’s signature line, “draft for circulation”) with Application at 255 (containing Mr. Tyrrell’s signature). This was significant not just because it was unsigned, but because some of the calculations changed from the draft to the final Application. Compare Objections at 273 (Ms. Lett’s declaration stating total fees under Chart C as $5,650) with Application at 285 (Ms. Lett’s declaration stating total fees under Chart C as $9,375). In an effort to clarify the record, I sua sponte ordered Plaintiff to file corrected objections. (DE 292).
Plaintiff’s Corrected Objections were equally unhelpful. First, Plaintiff still relies on certain draft portions of the Application. Compare Corrected Objections at 307 (Ms. Lett’s declaration stating in all caps and yellow highlighted text “DATE” and “FILL IN RESULT OF CONFERRAL”) with Application at 285 (Ms. Lett’s declaration stating the date and result of conferral). As a result, many of the same numerical discrepancies remained. See, e.g., id. Second, there are multiple miscalculations. For instance, in raising line-by-line objections to Defendant Joffe’s attorneys’ fees, Plaintiff failed to multiply the hourly rate by the number of hours billed, making the total amount objected to uncertain. (See Corrected Objections at 302). I doubt that this was intentional because nowhere else in the Corrected Objections does this appear to happen. (See, e.g., id. at 268). In another example, in calculating the total fees incurred by Defendant DNC, Plaintiff failed to include the $15,632.50 incurred in the third stage of the case. (See id. at 93) (concluding total fees incurred $170,192, rather than $185,824.50).
These errors, taken as a whole, render the entire document unreliable. I considered whether to offer Plaintiff yet another opportunity to cure his objections. Without a motion, however, I did not find it to be a fair exercise of this Court’s discretion. In almost every area of law, a party waives an objection for failing to properly raise it. So too here. Thus, to the extent that Plaintiff’s objections were not clearly identifiable, I did not consider them.
B. Reasonableness Of FeesOf the total request for fees and costs ($1,058,283.50), $14,292.39 are costs incurred for electronic legal research and $600 in pro hac vice filing fees. Plaintiff does not object to either.34 (See generally Corrected Objections at 33-35). Filing fees are taxable costs under 28 U.S.C. § 1920. However, consistent with the finding of other courts in this Circuit and other circuit courts, costs incurred for electronic legal research are considered a component of attorneys’ fees rather than costs under 28 U.S.C. § 1920. Springer v. Convergy's Corp., 2006 WL 8439203 at *2 (M.D. Fla. July 7, 2006). I find the award of $14,292.39 for electronic legal research reasonable given Plaintiff’s lack of objection and the sprawling nature of his claims, which while frivolous, were numerous enough to necessitate substantial legal research.
“[T]he starting point in any determination for an objective estimate of the value of a lawyer’s services is to multiply hours reasonably expended by a reasonable hourly rate.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “The product of these two figures is the lodestar and there is a ‘strong presumption’ that the lodestar is the reasonable sum the attorneys deserve.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (citation omitted). In determining the lodestar, “the court is to consider the 12 factors enumerated in Johnson v. Georgia Hwy. Exp., Inc., 488 F.2d 714 (5th Cir. 1974).”35 Id. at 1350. “After the lodestar is determined . . . the court must next consider the necessity of an adjustment for results obtained.” Norman, 836 F.2d at 1302. And finally, “‘[t]he court . . . is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.’” Id. at 1303 (citation omitted).
1. Reasonable Hourly Rate“A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1302. The “relevant legal community” is generally “‘the place where the case is filed.’” Barnes, 168 F.3d 437. “More typically, the fee applicant asks for rates approximating the highest charged in the community, whereas the fee opponent generally submits evidence of the lowest rate charged in any part of the community.” Norman, 836 F.2d at 1300. That is not the case here.
Almost all of Defendants’ attorneys seek substantially discounted rates, ranging from 28% to 66% less than the rates actually billed. (See, e.g., Application at 102). On a sliding scale based on experience, Defendants’ attorneys seek rates ranging from $255-800 for lawyers and $120-150 for paralegals. Plaintiff objects to the total amount as “unreasonable or excessive,” but he limits those objections to purported deficiencies in “billing judgment” (more on this below). Nowhere in his response in opposition or dozens of pages of line-by-line objections does Plaintiff challenge the rate charged by Defendants’ attorneys.
Defendant Joffe’s attorneys (and paralegal) are the only ones not to have discounted their rates. Defendant Joffe’s lead attorney, Mr. Tyrrell, seeks his “ordinary non-local rates,” on the grounds that he qualifies for an exception applicable to attorneys with “extensive prior experience with a particular factual situation.” (Id. at 252 n.1); see also Barnes, 168 F.3d at 438 (stating that non-local rates may be acceptable if attorney had “extensive prior experience with a particular factual situation,” but refusing to apply that exception where no obvious savings or efficiencies resulted). While Plaintiff does not object, I refuse to apply the Barnes exception where it is not obvious that Defendant Joffe’s attorneys provided any significant gains in efficiencies. Compare (Application at 283) (Defendant Orbis Business Intelligence Ltd.’s attorneys, who raised a successful personal jurisdiction challenge, seeking fees for about 90 hours) with (id. at 251) (Defendant Joffe’s attorneys, who also raised a successful personal jurisdiction challenge, seeking fees for about 208 hours). Moreover, Mr. Tyrell’s declaration (Application at 251) speaks to his purported prior knowledge, not that of Defendant Joffe’s other attorneys and paralegal who also seek their non-local rates. Accordingly, in considering the Johnson factors, the discounted rate of the other attorneys in this case, and my own experience, I will discount Defendant Joffe’s attorneys’ and paralegal’s fees. See Appendix A at 5.
I find the rest of the rates charged by Defendants’ attorneys reasonable. See generally Appendix A. In reaching this conclusion, I considered my own experience, the Johnson factors, and what reasonably comparable attorneys in a similar case in this legal community might be expected to charge. Plaintiff’s lack of objection further supports the reasonableness of the rates. Given that there are dozens of attorneys, I will refrain from explaining my reasoning for each and every one of them—although I have considered them all. In reference to the Johnson factors, I considered the complexity of the allegations leveled by Plaintiff and the skill it required to succinctly respond to each allegation with well-reasoned arguments. In my view, this case required excellent lawyering to defend against the overwhelming number of convoluted allegations and frivolous claims raised by Plaintiff. Indeed, these lawyers are some of the best in the country, and accordingly charge top dollar (as evidenced by the rates actually paid by Defendants). In their ranks are litigators that have argued, and won, several cases before the U.S. Supreme Court; served in positions of great significance in government; graduated from and taught at prestigious law schools; clerked for federal district courts, circuit courts, and the U.S. Supreme Court; and obtained victories for their clients to the tune of billions of dollars. (See, e.g., Application at 9, 53, 56, 105, 209).
Having set reasonable rates for the lawyers involved (See generally Appendix A), I now move on to evaluating the time they spent on their work in this case.
2. Hours Reasonably ExpendedIn determining the number of hours “reasonably expended,” the Supreme Court requires fee applicants to exercise “billing judgment.” Hensley, 461 U.S. at 434 (citations and quotations omitted). Therefore, attorneys “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Id. “This must necessarily mean that the hours excluded are those that would be unreasonable to bill to a client and therefore to one’s adversary irrespective of the skill, reputation or experience of counsel.” Norman, 836 F.2d at 1301 (emphasis in original). “Redundant hours generally occur where more than one attorney represents a client,” but in such cases attorneys may still be compensated “if they are not unreasonably doing the same work.” Id. at 1302.
Where—as is the case here—“fee documentation is voluminous . . . an hour-by-hour review is simply impractical and a waste of judicial resources.” Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994); see also Fox v. Vice, 563 U.S. 826, 838 (2011) (explaining that “trial courts . . . should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time. And appellate courts must give substantial deference to these determinations, in light of ‘the district court's superior understanding of the litigation.’”). Notwithstanding, I am mindful of this Court’s obligation to “produce an order on attorneys’ fees that allows for ‘meaningful review.’” Barnes, 168 F.3d at 428.
Here, the fee documentation is certainly voluminous. See, e.g., Padurjan v. Aventura Limousine & Transp. Serv., Inc., 441 Fed. Appx. 684, 687 (11th Cir. 2011) (“The more than $200,000 [the movant] seeks in attorneys’ fees is indication enough that this case is voluminous.”). Defendants’ Application seeks over a million dollars in fees, is 304-pages long, and includes hundreds of time entries by dozens of lawyers.
In response, Plaintiff raised line-by-line objections by way of tables at the end of each exhibit. (See generally Corrected Objections). The tables, while not descriptive in any meaningful way, do identify objected to entries under the following categories: block billing, duplicative, excessive, vague, and clerical. Accordingly, I will balance the aforementioned competing directives—not to attempt “auditing perfection” yet still allow for “meaningful review”—by analyzing a mostly random selection36 of Plaintiff’s “billing judgment” objections under each of his categories. The entries excerpted below serve as a representative sample of the entries that I examined and the reasoning applied therein.
C. Objections
1. Block BillingPlaintiff’s objections to block billing are largely overblown. It is true that lawyers should avoid block billing (i.e., billing for several tasks in the same time entry) to, at least in this context, allow a court to ascertain the number of hours reasonably expended per task. The degree of block billing identified by Plaintiff simply does not rise to a level that merits an across-the-board cut of hours. However, I am inclined to cut back in individual cases if the block billing spanned several hours and included numerous tasks. See, e.g., Barnes, 168 F.3d at 429 (“The records often lump together all the tasks performed by an attorney on a given day without breaking out the time spent on each task.”).
By way of example, Plaintiff objects to the following entries for block billing:
1) Review & revise defendants’ draft reply brief; review Trump’s opposition brief; emails re: draft reply brief.
(Application at 122) (8/10/2022, 3.9 hours, $2,145).
2) Review Trump amended complaint; review previous motions practice; review draft portion of motion to dismiss Trump amended complaint; discussion with A. Eisen re: draft motion to dismiss.
(Id. at 241) (6/28/2022, 5 hours, $3,500).
3) April 2022: Confer and strategize via email and telephone with counsel regarding case, initial appearances, local rules, and complaint; review complaint; review draft motion to dismiss; draft and file pro hac motions; review and file response to motion to expedite.
(Id. at 21) (4/1/2022, 15 hours, $9,375).
The first two examples do not merit a reduction in hours. The second tows the line, but I find that even if the timekeeper had entered those times separately, five hours would nonetheless be reasonable. This same reasoning applies to the first example and to all of the other objections for block billing that I looked at. The third, however, is the sort of block billing that requires a reduction in hours because it is impossible for the Court to accurately divvy up the time per task in a reasonable manner. The timekeeper for this entry is Attorney Markus. A closer look at his time entries revealed a similar pattern. I note however that as local counsel, his role was not as susceptible to itemized billing and his total hours were not substantial. But I will cut his hours by 15%. See Appendix A at 2.
2. DuplicativePlaintiff’s objections for “duplicative” time entries are not presented in a way that allows this Court to properly review and analyze them. Plaintiff’s table simply points out entries that he believes are “duplicative” but does not say what it duplicates. Instead, Plaintiff leaves it up to the Court to piece together a cogent series of objections. I refuse to do so. But even when I reviewed the relevant time entries with an eye for duplicative billing, I did not find any unreasonable billing that merits a cut in hours.
3. ExcessivePlaintiff objects to, among others, the following time entries as “excessive”:
1) Review draft DNC motion to dismiss brief and share with RAK for final review (Application at 76) (5/6/2022, 2.3 hours, $1,610).
2) Reviewing amended complaint; reviewing, editing draft brief. (Id. at 24) (7/7/2022, 5.5 hours, $3,850).
3) Review & revise motion to dismiss brief re: Trump lawsuit; emails to & from I. Garcez, A. Lopez re: same
(Id. at 118) (5/4/2022, 2.9 hours, $1,595).
Plaintiff’s objections are unconvincing. It is no surprise that these lawyers, when responding to such an egregious example of shotgun pleadings and subsequent opposition, had to spend numerous hours thoroughly analyzing the allegations and crafting exhaustive responses. I find these time entries, and others like it, reasonable.
4. Vague“[T]he general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.” Norman, 836 F.2d at 1303. Notwithstanding, the court can rely on “its own knowledge and experience . . . and may form an independent judgment” when determining the reasonableness of fees. Id. Plaintiff objects to the following time entries as “vague”:
1) Review complaint and continue revisions to [redacted].
(Application at 65) (4/6/2022, 4.5 hours, $3,150).
2) Research [redacted].
(Id. at 79) (5/18/2022, 1.7 hours, $637.50).
3) Miscellaneous communications, including with client and other counsel, regarding status of matter, ongoing coordination, and related matters; review and analyze materials re: same.
(Id. at 275) (7/19/2022, 1.4 hours, $1,435.50).37
The first and third time entries provide sufficient detail to overcome an objection for being vague. The same is true for almost all other time entries viewed under this category. Only the second time entry rises to the level of being vague. The timekeeper for the second entry is Attorney Turner. A closer look at her time entries revealed a similar pattern. While I find Attorney Turner’s total hours to be relatively low, I will cut her hours by 15% to account for the handful of vague entries. See Appendix A at 2.
5. ClericalConsistent with the idea that, “the hours excluded are those that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel,” Norman, 836 F.2d at 1301 (emphasis in original), lawyers should not (in the interest of reducing fees) bill their clients for clerical work that a non-lawyer could just as well do.
It appears that Plaintiff’s only objections under the category of “clerical” (totaling $390) is for work done by Ms. Dietrich, a “Senior Case Manager,” a role akin to a paralegal. (Corrected Objections at 33-35; 56; 92). Ms. Dietrich’s hourly rate is $150, a reasonable rate for paralegals. (Application at 58). Billing a client for clerical work done by a non-lawyer related to its case is completely reasonable and expected.
D. Adjustment Of The LodestarThe lodestar in this case is $937,989.39. See Appendix A at 1. Having determined the lodestar, the Court must next “consider the necessity of an adjustment for results obtained.” Norman, 836 F.2d at 1302. The Parties have not argued for an adjustment, and I do not find one to be necessary.
Relatedly, however, I find that apportionment of the lodestar is necessary. The amount of fees awarded in this case, while reasonable, is substantial. As such, joint and several liability (a presumption under Rule 11, but not here) would be inappropriate. Cf. Fowler v. Ritz-Carlton Hotel Co., LLC, No. 3:10-CV-884-J-34JRK, 2016 WL 11468583, at *7 (M.D. Fla. Aug. 2, 2016) (apportioning fee based on ability to pay). The parties that bear the brunt of the responsibility for the sanctionable conduct—Plaintiff and his lead attorney—should be jointly and severally liable for the sanction. The Rule 11 sanctions that I imposed on the other lawyers in this case (See DE 284) is sufficient. See Gallop v. Cheney, 667 F.3d 226, 231 (2d Cir. 2012), as amended (Feb. 3, 2012) (vacating sanctions against local counsel due to level of involvement).
Accordingly, Plaintiff Donald J. Trump and Plaintiff’s lead attorney—Alina Habba, and Habba Madaio & Associates—are jointly and severally liable for the total amount.
IV. CONCLUSIONFor the forgoing reasons, and having carefully considered the record, the written submissions of the Parties, and applicable law, it is hereby ORDERED AND ADJUDGED that:
1. Defendants’ Joint Motion for Sanctions (DE 280) is GRANTED.
2. Plaintiff Donald J. Trump and Plaintiff’s lead attorney—Alina Habba and Habba Madaio & Associates—are jointly and severally liable for $937,989.39.38
SIGNED in chambers at West Palm Beach, Florida this 19th day of January, 2023.
Donald M. Middlebrooks
United States District Judge
cc: counsel of record
_______________
Notes:1 Fox News, Trump Sues Clinton, Steele for ‘False Narrative’ About Russian Collusion (March 25, 2022),
https://www.foxnews.com/video/6301845469001. 2 Newsmax, Trump Suing Hillary Clinton Over Russia Hoax, Habba Madaio & Associates LLP – News (March 31, 2022),
https://habbalaw.com/news/trump-suing-h ... ussia-hoax.
3 The United States’ Motion to Dismiss under Federal Rule 12(b)(i) was granted and the Amended Complaint as to it was dismissed without prejudice.
4 Transcript from FOX: Hannity WLNR 28709447, Sept. 10, 2022.
5 Id.
6 This provocative allegation stirred my curiosity, so I looked up the Ratcliff letter. The allegation in the Amended Complaint fails to mention that the information came from a Russian intelligence analysis and that Mr. Ratcliffe commented: “The IC (intelligence community) does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” Letter from John Ratcliff, Dir. of Nat’l Intel., to Sen. Lindsey Graham, U.S. Senate (Sept. 29, 2020)
https://www.judiciary.senate.gov/press/ ... -hurricane. Mr. Trump’s lawyers saw no professional impediment or irony in relying upon Russian intelligence as the good faith basis for their allegation.
7 In a footnote to paragraph 456, the Amended Complaint cites to the Justice Department announcement of the appointment of the Special Counsel. That statement by Deputy Attorney Rosenstein, also sued by Mr. Trump, reads in part as follows: “‘My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.’” See Press Release, Office of Public Affairs, Appointment of Special Counsel, U.S. Dep’t of Just., (May 17, 2017) https://www.justice.gov/opa/pr/appointm ... al-counsel.8 Pelletier and Byrne were abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 661 (2008) (holding “plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations.”). I do not rely on Pelletier and Byrne as they relate to mail fraud. See Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358, 1360 (11th Cir. 2018) (citing Pelletier and Byrne as good law for purposes of sanctions resulting from improper pleading). A more detailed analysis of why Mr. Trump lacked standing to bring his RICO claim is set forth in my Order granting Defendants’ Motion to Dismiss. (DE 267 at 42-43).
9 In Pelletier, the Court not only reversed the district court’s denial of Rule 11 sanctions and remanded for a determination of an appropriate amount, but also determined that the appeal was frivolous on the merits and awarded double costs and reasonable attorney’s fees pursuant to Rule 38 of the Federal Rules of Appellate Procedure.
10 1 Robert S. Mueller, III, U.S. Dep’t of Just., Report on the Investigation into Russian Interference in the 2016 Presidential Election (2019); 2 Robert S. Mueller, III, U.S. Dep’t of Just., Report on the Investigation into Russian Interference in the 2016 Presidential Election (2019).
11 United States v. Danchenko, No. 1:21-cr-00245-AJT, (E.D. Va. Nov. 3, 2021) (hereinafter “Danchenko Indictment”).
12 United States v. Sussmann, No. 1:21-cr-00582-CRC, (D.D.C. Sept. 16, 2021) (Hereinafter “Sussmann Indictment”).
13 United States v. Clinesmith, No. 1:20-cr-00165-JEB, (D.D.C. Aug. 14, 2020) (Hereinafter “Clinesmith Indictment”).
14 Twitter Inc., Permanent Suspension of @realDonaldTrump, Twitter Blog (Jan 8, 2021),
https://blog.twitter.com/en_us/topics/c ... suspension.
15 Demand Letter from Alina Habba, Lawyer for Former President Donald J. Trump, to Bud Kliment, Interim Administrator, The Pulitzer Prizes (Nov. 15, 2021),
https://www.documentcloud.org/documents ... izes-board.
16 Letter from Donald J. Trump, to Ms. Marjorie Miller, Administrator, The Pulitzer Prize (May 27, 2022). For copy of letter see Katie Robertson, Pulitzer Board Rejects Trump Request to Toss Out Wins for Russia Coverage, N.Y. Times (July 18, 2022),
https://www.nytimes.com/2022/07/18/busi ... trump.html.
17 Letter from R. Quincy Bird and Jeremy D. Bailie, Lawyers for Donald J. Trump, to Marjorie Miller, Administrator, The Pulitzer Prize Board (Oct. 13, 2022)
https://cdn.nucleusfiles.com/bf/bf8ec68 ... -final.pdf.
18 See Julia Shapero, Trump doubles down on threats to sue Pulitzer board at Texas rally, The Hill (Oct. 22, 2022, 11:06 PM),
https://thehill.com/blogs/blog-briefing ... xas-rally/.
19 Defamation by implication is “the concept that literally true statements can be defamatory where they create a false impression.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). (citations omitted). The Florida Supreme Court explained that “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.” Id. at 1108.20 While first use of the phrase is debated, it is often attributed to Philip Graham, the former president and publisher of the Washington Post from a speech he gave to Newsweek reporters in 1963: “So let us today drudge on about our inescapably impossible task of providing every week a first rough draft of history that will never be completed . . . . ” Katherine Graham, Personal History (1998).
21 Staffs of The New York Times and The Washington Post, The Pulitzer Prizes,
https://www.pulitzer.org/winners/staffs ... ngton-post.
22 The following procedural history and underlying facts are taken from filings in the case which subsequently ended up before me: Donald J. Trump v. Letitia James, No. 22-81780-CV-DMM (S.D. Fla.) (hereinafter “Trump v. James”). The amended complaint in that case is at Docket Entry 19 and is hereafter referred to as “James AC.”
23 The special proceeding is styled, People v. The Trump Organization, Index No. 451685/2020.
24 Donald J. Trump, Ivanka Trump, and Donald Trump, Jr.
25 @realDonaldTrump, Truth Social (Nov. 2, 2022, 5:51 PM),
https://truthsocial.com/@realDonaldTrum ... 3674316908.
26 That same day, Mr. Trump also sued YouTube, LLC; Sundar Pichai, the chief executive officer of Google LLC and Alphabet Inc.; Facebook, Inc.; and its chief executive officer, Mark Zuckerberg. See Trump et al. v. YouTube, LLC,. et al., No. 21-CV-22445 (S.D. Fla.) (hereinafter “Trump v. YouTube”); Trump et al. v. Facebook, Inc. et al., No. 21-CV-22440 (S.D. Fla.) (hereinafter “Trump v. Facebook”). Both of these cases were transferred to the Northern District of California.
27 The text message read, “Pres Trump: I am SUING Facebook & Twitter for UNCONSTITUTIONAL CENSORSHIP. For a short time, 5X-IMPACT on all gifts! Donate NOW: bit.ly/3hiWKi5.” The link in the text message brought recipients to a dynamic website prompting them with the above request for donations. While the website has since changed, it has been documented in other places. See, e.g., Jake Lahut, Trump announces lawsuits against Facebook and Twitter, immediately starts fundraising off it, Business Insider (July 7, 2021, 12:54 PM),
https://www.businessinsider.com/trump-f ... ely-2021-7.
28 Lahut, supra note 26 (showing a Tweet from Twitter User @NYTnickc including screenshots of the text message and donation website) (emphasis in original).
29 Demand Letter from Charles J. Harder, Lawyer for Donald J. Trump, to Jeff Zucker, President and CEO of CNN, and David Vigilante, Executive Vice President and General Counsel of CNN (Oct. 16, 2019). For copy of letter see @michaelglassner, Twitter (Oct. 18, 2019 12:04 PM),
https://twitter.com/michaelglassner/sta ... l-coverage (posting copy of letter).
30 Larry Noble, Soliciting dirt on your opponents from a foreign government is a crime. Mueller should have charged Trump campaign officials with it, CNN (June 13, 2019 at 3:37 PM),
https://www.cnn.com/2019/06/13/opinions ... index.html.
31 Marco Margaritoff, Trump Begs Supporters For Donations Toward 'Upcoming' CNN Lawsuit, Yahoo News (August 6, 2022),
https://news.yahoo.com/trump-begs-suppo ... 11363.html.
32 See Erik Larsen, Trump Uses CNN Lawsuit to Raise Money, Bloomberg (Oct. 4, 2022),
https://money.yahoo.com/trump-uses-cnn- ... 32468.html.
33 Mr. Trump’s Save America PAC has spent $9.7 million in legal bills since 2021 according to a Washington Post review of FEC Filings. Devin Barrett, Josh Dawsey, and Isaac Stanley-Becker, Trump’s committee paying for lawyers of key Mar-a-Lago witnesses, The Washington Post (Dec. 5, 2022, 5:52 PM),
https://www.washingtonpost.com/national ... bills-pac/. Over $2 million has reportedly been paid to Ms. Habba. Steven Lubet, Cassidy Hutchinson transcript reveals new low for Trump World, The Hill (Dec 28, 2022, 8:00 AM),
https://thehill.com/opinion/judiciary/3 ... ump-world/. Ms. Habba, in addition to her role as a lawyer, has become a senior advisor for Mr. Trump’s new MAGA, political action committee. According to a MAGA Inc. spokesperson, “whether it’s on legal matters or political issues, she is more than capable to represent President Trump in a variety of venues.” Ryan King, Trump Attorney Alina Habba joins MAGA Inc., Washington Examiner (Oct. 26, 2022, 9:55 AM),
https://www.washingtonexaminer.com/poli ... s-maga-inc.
34 Plaintiff appears to object, without explanation, to Defendant Danchenko’s costs incurred for electronic legal research ($6,389) as “vague.” (Corrected Objections at 244). This is nonsensical and likely a mistake. “Vague,” as used by Plaintiff everywhere else in his Corrected Objections refers to vague time entries (more on this below). Nowhere else does Plaintiff raise a “vague” objection for costs incurred for electronic legal research, which are typically barebones receipts. (See, e.g., id. at 301). I will overrule this objection as I can discern no basis for it.
35 As summarized in Bivins, the 12 factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Bivins, 548 F.3d at 1350 n.2.
36 For “block billing” and “excessive,” I focused primarily on entries with unusually high amounts charged. The logic being that such entries were more likely to yield examples of improper block billing or excessive billing.
37 This is Mr. Tyrell’s non-local rate. For the reasons explained above, I am reducing it to $700. See Appendix A at 5.
38 “[S]anctions must never be hollow gestures: their bite must be real.” Martin v. Automobile Lamborghini Exclusive, Inc., 307 F. 3d 1332, 1336 (11th Cir. 2002). But for the bite to be real it must be an amount a person can pay. Id. I believe the monetary sanctions imposed here are well within Plaintiff and Plaintiff’s lawyer ability to pay, and therefore I have not thought it necessary to conduct an intrusive inquiry into their finances.
However, should Plaintiff or Plaintiff’s lawyer (and law firm) believe that the amount would seriously jeopardize their financial status, see, e.g., Baker v Alderman, 158 F. 3d 516 (11th Cir. 1998), that individual or firm should file within ten (10) days of this Order, under seal, a verified statement of net worth which includes assets and liabilities. In the event of such a filing, the obligation of that individual or law firm will be tolled until further order of the Court.