By Ken Stone
On Friday, they specified how much — at least $333,671.28.
According to a 625-page legal filing, Judge Allison Goddard must award attorney fees and court costs to Los Angeles-based lawyers for Maddow, Comcast Corp., NBCUniversal Media and MSNBC.
“The only question for the court is whether the fees defendants seek are reasonable,” wrote Scott Edelman for Maddow and co-defendants.
That’s because Maddow won an anti-SLAPP motion against San Diego-based Herring Networks, which runs the conservative cable network. And state law provides that defendants in such a suit “shall be entitled to recover … attorney’s fees and costs.”
Edelman said Herring Networks brought a meritless SLAPP suit “primarily to chill the valid exercise” of their constitutional rights of freedom of speech. (SLAPP stands for strategic lawsuit against public participation.)
On May 22, U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit with prejudice, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement,” made during a July 22, 2019, segment of her show.
(The liberal host that day told her viewers that the Trump-friendly network “really literally is paid Russian propaganda.”)
As promised, Herring Networks filed a notice of appeal in the 9th U.S. Circuit.
Amnon Siegel of Miller Barondess in Los Angeles, who represents Herring Networks, said in a statement Wednesday: “We fully expect to prevail on appeal. The words – “that OAN is really literally paid Russian propaganda” — do not convey an opinion. This is a blatant defamatory falsehood.”
Robert Herring Sr., founder and CEO of Herring Networks Inc., added: “We are fully prepared to take this case to the United States Supreme Court if necessary. Maddow has claimed that our family has engaged in treasonous acts. Nothing is further from the truth and her propagated falsehood has hurt our integrity and viewership trust.”
Of the Maddow bill, Herring told Times of San Diego on Sunday: “No one wants to spend that kind of money, but it is just a part of business.” He said he didn’t know about any effort to get the judge to lower that figure.
The San Francisco-based court gave Herring Networks a deadline of Sept. 10, 2020, to file its opening brief and excerpts of record. Maddow’s Legal team has until Oct. 13, 2020, to respond.
That will pile up even more billable hours.
Of the third of a million dollars Maddow’s team wants so far, $323,965 is in fees to pay Los Angeles-based lawyers who made as much as $1,525 an hour. (The rest is $9,706 in court costs.)
The most expensive day was Dec. 4, 2019, when Nathaniel L. Bach worked 8.6 hours on a draft of a reply in support of a motion to strike.
His bill for the day: $7,869.
“As detailed in the Edelman Declaration, Defendants seek fees for 355.5 hours of work, plus any additional hours of work expended in connection with preparing a reply and attending a hearing on this motion (seeking fees and costs),” the filing said.
Edelman said many of those hours were devoted to research, since the case raised questions related to the legal doctrine of protected opinion.
“It also raised questions concerning the relationship between California’s state anti-SLAPP statute and the federal procedural law governing the parties in this district,” Edelman wrote.
Edelman quoted case law for why plaintiff Herring Networks must pay Maddow’s lawyers:
“The dual purpose of this mandatory attorney fee award is to discourage meritless lawsuits and to provide financial relief to the victim of a SLAPP suit by imposing the litigation costs on the party seeking to chill the valid exercise of the constitutional rights of freedom of speech.”
But protecting free speech isn’t free.
Edelman noted what the six-member Gibson, Dunn & Crutcher team (including paralegals) had to do to fend off the defamation suit filed last September, including researching and drafting the attorneys’ fees motion itself.
The briefing process was prolonged and made more labor-intensive, he said, by having to deal with what he called the filing of irrelevant and improper evidentiary submissions.
He referred to a UC Santa Barbara linguistics expert who analyzed Maddow’s speech patterns and an application to supplement the record with what former MSNBC host Chris Matthews said about OAN in a “Hardball” segment.
The request for fees included long biographies of the lawyers involved, led by Theodore J. “Ted” Boutrous Jr., a 1987 University of San Diego School of Law graduate famed for successfully arguing against California’s same-sex marriage ban in the U.S. Supreme Court.
Edelman revealed that his legal team was hired on a $100,000 retainer, which he called a modified contingency fee basis.
“Defendants agreed to pay Gibson Dunn attorneys $100,000 for the filing and argument of the anti-SLAPP motion, and further agreed that if defendants were successful on that motion and recovered from plaintiff, they would pay Gibson Dunn any difference between the $100,000 and the fees Defendants’ counsel incurred,” he wrote.
Gibson Dunn colleague Boutrous is a partner at the firm whose standard hourly rate in 2019 was $1,450, the filing said. In 2020, it was $1,525 an hour. He provided invoices.
Goddard, the judge who will decide how much to ding Herring Networks, is a 2000 graduate of the USD School of Law.
“She was part of the team that obtained a $5 million-plus judgment… against San Diego State University in the firing of women’s basketball coach Beth Burns” in 2018, reported The San Diego Union-Tribune.
“She was also the lead attorney representing more than 80 women in a recent lawsuit against Sharp Grossmont Hospital in La Mesa that alleged the hospital secretly recorded women during labor and delivery procedures,” the profile added.
Updated at 9:52 a.m. June 7, 2020.
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