By Ken Stone
Scott Edelman, an attorney for the MSNBC host, said Thursday that Herring, which runs One America News, should pay nearly $358,000 in legal costs — or about 7% above Maddow’s original request of $334,000.
Why the hike?
He said it was the 28.8-hour cost of preparing a response to Herrings’ effort to reduce the bill to $85,000.“Set forth below are the details of the work completed by the Gibson Dunn attorneys and other professionals from June 5, 2020, through the filing of this reply,” Edelman wrote in a nine-page brief to Judge Cynthia Bashant.
He said Maddow’s lawyers are entitled to their standard hourly rates, and “Plaintiff has failed to establish that any discount to those rates is appropriate or warranted in these circumstances.”
On June 30, Herring lawyer Amnon Siegel asked the court to award a fraction of the money Maddow, MSNBC and Comcast were asking for after they prevailed May 22 in an anti-SLAPP motion.
Siegel objected to hourly rates of $1,525 for partner Ted Boutrous Jr. and $1,395 for another on the Maddow team.
He said Bashant — who decides how much Herring will pay — should reject Maddow’s request for a “market-shattering fee award,” asking that it be based on “reasonable market rates and hours appropriately spent.”
But in his response Thursday, Edelman said: “Unsuccessful oppositions to anti-SLAPP motions carry well-known consequences, consequences of which Plaintiff is well aware.”
He quoted founder and CEO Robert Herring Sr. in a June 6 Times of San Diego story: “No one wants to spend [this] kind of money [paying defendants’ fees], but it is just a part of business.”
In fact, he said, Gibson Dunn’s standard billing rates appear to be comparable to those charged by Herrings’ law firm, Miller Barondess.
“Mr. Miller’s standard rate referenced therein, $1,095 per hour in 2014, is higher than Mr. Boutrous’ and my standard 2014 billing rates, which were $1,080 per hour and $1,060 per hour, respectively,” Edelman wrote.
“The Miller Barondess attorneys sought to recover a blended hourly rate of $500 for all three attorneys (two partners and one associate with nine years’ experience) staffed on the matter,” Siegel wrote. “This blended rate is less than one-third of what Defendants are seeking here for Mr. Boutrous.”
Siegel also said: “Defendants do not get a second chance to submit evidence with their Reply that they could have put forth with their moving papers.”
Maddow’s lawyers could have noted that in their first request for fees, he said.
“They failed to do so, and now Defendants are grasping at straws to justify their exorbitant rates,” Siegel said.
In Thursday’s filing, Edelman said ample support exists in the San Diego district to show the Maddow team’s rates are reasonable.
“Plaintiff’s claim that Defendants “cherry-pick[ed] the highest rate they could identify” and that an $800 per hour rate is an “exception” is not true and an effort to escape paying the fees that they owe,” he added.
Even though the Maddow team immediately saw the suit over her calling OAN “really literally … paid Russian propaganda” was an “unambiguous assault on Ms. Maddow’s First Amendment rights,” it didn’t mean preparing the case would be fast or easy, Edelman said.
The case, and its expenses, aren’t over yet, though. Herring has appealed to the 9th U.S. Circuit Court of Appeals. Herring has until Sept. 10, 2020, to file opening brief. Maddow has until Oct. 13 to reply.
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