ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE.
ORDER GRANTING IN PART DEFENDANT NOVELLA'S OMNIBUS MOTION FOR ATTORNEYS' FEES AND COSTS AND DENYING BONA AND GOTT'S MOTION FOR SANCTIONS
I. PROCEDURAL HISTORY
Initial Claims and Parties
This lawsuit was initially filed in June 2014. The claims arose from two internet articles written by Defendant Dr. Steven Novella, which criticized Plaintiff Dr. Edward Lewis Tobinick's use of a drug known as Enbrel to treat Alzheimer's disease. Plaintiff Tobinick contended that these articles made false statements concerning the viability of the treatments, the scientific literature and testing that had been conducted as to those treatments, the size and locations of Plaintiff Tobinick's Institutes, and, by implication, the categorization of Plaintiff Tobinick's practice as "health fraud." These articles were published on a website called sciencebasedmedicine.org.
The initial complaint brought claims under: (1) the Lanham Act, 15 U.S.C. § 1125(a); (2) unfair competition; (3) trade libel; (4) libel per se; and (5) tortious interference with business relationships. See DE 1 (Complaint); DE 55 (Amended Complaint). The listed Plaintiffs were Tobinick and related professional entities, and Defendants were Novella and the Society for Science-Based Medicine, Inc. ("the Society"), an organization owned by Novella that produces content for the sciencebasedmedicine.org website.
Both sides aggressively litigated this case from the outset. On June 11, 2014, Plaintiffs moved for a preliminary injunction. See DE 6. On August 18, 2014, the Society filed a motion to dismiss, which the Court later converted into a motion for summary judgment. See DE 74, 120. On September 30, 2014, Novella filed a special motion to strike the claims brought by Edward Lewis Tobinick, M.D., a California medical corporation, pursuant to California's Anti-SLAPP Statute, California Code § 425.16. See DE 93.
Substitution of Counsel: Attorneys Cahen, Bona, and Gott begin representing Plaintiffs.
On January 28, 2015, shortly after the Court converted the Society's motion to dismiss into a motion for summary judgment, Plaintiffs' counsel withdrew and were replaced by attorneys from the law firm Broad and Cassel. See DE 126. In late February and early March 2015, counsel from Broad and Cassel withdrew and were replaced by Geoffrey M. Cahen of Cahen Law. P.A., Jarod Bona of Bona Law, P.C., and Aaron R. Gott of Bona Law, P.C. See DE 148, 149, 156.
Substitution of Counsel: Attorneys Cahen, Bona, and Gott begin representing Plaintiffs.
On March 16, 2015, following a hearing, the Court granted summary judgment for the Society. See DE 157. The Court found that the articles were not actionable under the Lanham Act or as unfair competition because "no reasonable jury could find the articles constitute commercial speech, at least with respect to the Society." Id. at 12. The Court also noted: "[T]he targeted
Order Denying Plaintiffs' Motion for a Preliminary Injunction: The Court finds they are unlikely to prevail on the Lanham Act claims because the speech at issue is not commercial.
On April 2, 2016, following an evidentiary hearing, the Court denied Plaintiffs' motion for preliminary injunction. See DE 172. The Court reasoned that Plaintiffs had failed to demonstrate a substantial likelihood of prevailing on the merits with respect to their Lanham Act claim, again finding that the speech at issue was not commercial. Id. at ¶¶ 3-13. The Court found that Plaintiffs had "failed to demonstrate that Dr. Novella has an economic motivation for the speech," rejecting Plaintiffs' contention that income from courses and podcasts related to the Society or from a legal defense fund set up in response to the lawsuit transformed the speech into commercial speech. Id. at ¶¶ 10-11. The Court noted, "[S]cience communication is Dr. Novella's passion, interest and hobby. No evidence was introduced to indicate that it is his primary source of income (or even, with respect to the Society and www.sciencebasedmedicine.org, a source of income at all), and the Court accordingly concludes that his motivation for authoring the articles was not economic in nature." Id. at ¶ 12.
Plaintiffs Seek Leave to File a Second Amended Complaint
About a month later, Plaintiffs moved for leave to file a second amended complaint. See E 173, 177. The amendment sought to add a claim for civil conspiracy under Florida common law, alleging that Defendants "agreed to embark on a campaign under which Defendants would act in concert to republish false statements alleged herein "in order to "promote the original ESA webpage, to raise the Defendants' profiles within the skeptic community, and to drive web traffic, membership, and sale of merchandise on Defendants' websites." See DE 177-1 at ¶¶ 155-56 (Proposed Second Amended Complaint). The amendment also sought to add three Defendants: two new parties, Jay Novella and Paul Ingraham, and one previously-dismissed party, SGU Productions, LLC. Id. at 1.
Defendant Steven Novella opposed the amendment, see DE 188, and also moved for sanctions against Plaintiffs' counsel under 28 U.S.C. § 1927, arguing counsel was unreasonably and vexatiously multiplying the proceedings. See DE 175. The Court denied the § 1927 motion without prejudice, finding the issues would be more suitably decided after the conclusion of the case. See DE 190.
Order Granting Defendant Novella's Anti-SLAPP Motion: The Court finds no evidence that the statements were made with actual malice and that Novella is entitled to attorney's fees and costs.
On June 4, 2015, while the motion to amend was pending, the Court issued an
Several weeks later, on June 18, 2015, the Court held a status conference with the parties to discuss Plaintiffs' motion for leave to file a second amended complaint. See DE 201. Following the hearing, the Court issued an order denying the motion, finding:
Order Denying the Society's Motion for Fees under the Lanham Act: The Court finds that, prior to March 2015, Plaintiffs had no reason to know how the Court would rule on the "commercial speech" issue.
Meanwhile, Defendant the Society, for whom the Court had granted summary judgment in March 2015, moved for attorney's fees and costs under the Lanham Act. See DE 176. On August 6, 2015, the Court denied the motion, finding that Plaintiffs had not pursued their Lanham Act claim in a malicious, fraudulent, deliberate, or willful manner, such that the case could be considered the "exceptional" case to merit an award of attorney fees. See DE 227. The Court noted that resolving the Lanham Act question with regard to the
After Defendant Novella indicates he plans to seek summary judgment, Plaintiffs ramp up discovery, again request leave to amend their complaint, and move for sanctions, accusing Defendant Novella of perjury.
On June 26, 2015, Defendant Novella, now the only remaining defendant, moved for summary judgment. See DE 206. At Plaintiffs' request, the Court extended discovery deadlines to allow further written discovery, expert depositions, and a deposition of Defendant Novella's brother. See DE 212. Defendant Novella withdrew his summary judgment motion until this discovery was completed. See DE 215. This led to discovery motion practice and hearings before Magistrate Judge Brannon. See DE 219 (Novella's Motion for Protective Order); DE 222 (Order Setting Discovery Hearing); DE 232 (Order Setting Discovery Hearing).
On August 18, 2015, Plaintiffs again requested leave to amend their complaint, this time to add a claim against Novella for violation of the Florida Deceptive and Unfair Trade Practices Act. See DE 241. This new claim would rest, Plaintiffs asserted, on statements Defendant Novella had posted on his website since the filing of the complaint, including statements about the present lawsuit. Id. at 3-4. In a brief order, the Court denied leave to amend "for all of the reasons previously stated on the record at the Court's Status Conference on June 18, 2015, as well as the timing of the Motion in relation to the dispositive motion deadline, which is imminent, and trial, which is two months hence." DE 245.
On August 25, 2015, Defendant Novella re-filed his motion for summary judgment. See DE 251. On August 31, 2015, Plaintiffs filed a motion for relief from judgment under Rule 60(b) and moved for sanctions against Defendant Novella under Florida Rule of Civil Procedure 37. SeeDE 258, 259.
Substitution of Counsel: O'Brien Enters the Case
On September 18, 2016, Jarod M. Bona and Aaron R. Gott of Bona Law, P.C. withdrew as counsel. See DE 276. Cullin O'Brien of O'Brien Law, P.A. was substituted as counsel for Plaintiffs. Id. Counsel Geoffrey Michael Cahen also remained on the case.
Order Granting Novella's Motion for Summary Judgment: The Court again rules that the articles at issue are not commercial speech under the Lanham Act.
On September 30, 2015, nine days after the motion became ripe, the Court granted Defendant Novella's motion for summary
Id. at 7-8.
The Present Motions for Attorneys' Fees and Sanctions
Following the Court's grant of summary judgment for Defendant Novella, Novella filed the present Omnibus Motion for Attorneys' Fees and Costs. See DE 292. He seeks fees and costs under the California Anti-SLAPP Statute, the Lanham Act, and 28 U.S.C. § 1927. Insofar as the motion is under 28 U.S.C. § 1927, Novella seeks fees against Plaintiffs' counsel Cullin O'Brien, Geoffrey M. Cahen, Jarod M. Bona, and Aaron R. Gott. All Plaintiffs have opposed the motion. Plaintiffs' Counsel Bona and Gott have also filed a motion for sanctions under Federal Rule of Civil Procedure 11, alleging that the relief sought against them is frivolous.
Defendant Novella's Motion for Fees
The Court will first address Plaintiffs' general objections to an award of fees and costs under any of these statutes. The Court will then discuss Novella's entitlement to fees and costs under each of the statutes and, to the extent entitlement is found, the amount of those fees and costs.
Plaintiffs' General Objections to Recovery of Fees
Plaintiffs argue, first, that the motion for fees and costs should be denied because Novella has not produced his fee contract with his counsel, or produced evidence that Novella actually paid the attorney's fees to his counsel. See E 304 at 8. The only authority Plaintiffs cite for this proposition is an opinion by Novella's expert, in an unrelated case involving fees under Florida law, where Novella's expert opined: "Without a fee contract it is impossible for the undersigned attorney to determine whether the hourly rate sought by
Second, Plaintiffs argue that the hourly rate sought by Novella's lead counsel, Marc Randazza, should be reduced because Randazza's affidavit in support of fees lacks credibility. See DE 304 at 9-10 (Response to Motion for Fees). Plaintiffs point to two legal proceedings unrelated to the present case: (1) a bankruptcy proceeding initiated by Randazza, see DE 304-10 at 15-28 (Bankruptcy Petition); and (2) an arbitration award finding that Randazza breached an employment agreement with a former employer, see DE 304-10 at 30-56. Plaintiffs also submit an affidavit from a representative of Randazza's same former employer, noting that Randazza omitted that employer from his curriculum vitae and noting that the employer had alleged — in yet another case unrelated to the present one — that Randazza made inaccurate statements in a motion for attorney's fees filed on that employer's behalf. SeeDE 329-1 (Declaration of Jason Gibson).
Lastly, to the extent Plaintiffs argue that there has been block-billing, over-billing, or other inappropriate billing practices, see DE 304 at 8-10 (Response to Motion for Fees), the Court finds that these allegations do not warrant an outright denial of Novella's motion for fees. The Court has reviewed the relevant records and the opinions of Plaintiffs' experts, see DE 304-3 (Declaration of John G. Heller); DE 304-10 (Declaration of Lester Langer), and has taken those opinions into account in determining the amount of fees to be awarded to Novella.
Accordingly, the Court now turns to the three statutes under which Novella seeks fees.
The California Anti-SLAPP Statute
i. Entitlement to Fees: The Court has previously ruled that Novella is entitled to recover fees from the California Plaintiff under California's Anti-SLAPP statute.
When the Court granted Novella's Anti-SLAPP motion on June 4, 2015, the Court also ruled that Novella was entitled to fees and costs under California's Anti-SLAPP Statute, Cal. Civ. Proc. Code § 425.16(c)(1). See DE 193 at 16. Plaintiffs nevertheless attempt to re-argue the issue of entitlement.
The Court does note that the Anti-SLAPP order was directed solely to Plaintiff Edward Lewis Tobinick, M.D., a California Medical Corporation, and not to the other Plaintiffs. See DE 193 at 4-5 (Order); DE 93 at 2-3 (Anti-SLAPP Motion). Accordingly, fees and costs under this statute can be recovered only against Plaintiff Edward Lewis Tobinick, M.D.
ii. Amount of Fees: The Court finds that the fees sought by Novella's counsel should be reduced due to duplicative time entries and to reflect only time spent on the Anti-SLAPP motion; the Court also finds that a fee multiplier is not warranted.
"A defendant prevailing on a special motion to strike [that is, an Anti-SLAPP motion] is entitled to recover its attorney fees and costs." City of Industry v. City of Fillmore, 198 Cal.App.4th 191, 129 Cal.Rptr.3d 433, 456 (2011). However, "[t]he defendant can recover only its fees and costs in connection with the motion, not the entire action." Id. "[A] court assessing attorney fees begins with a touchstone or lodestar figure, based on the `careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.'" Ketchum v. Moses, 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735, 741 (2001) (quoting Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303 (1977)). "[T]rial courts must carefully review attorney documentation of hours expended; `padding' in the form of inefficient or duplicative efforts is not subject to compensation." Id. Additionally, the lodestar amount "may be adjusted by the court based on factors including ... (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award." Id. "In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services." Id.
Novella's counsel charged him $52,694.55 for researching, drafting, and presenting the Anti-SLAPP motion, and an additional $9,147.50 for responding to Plaintiffs' motion for reconsideration. See DE 292 at 10. Novella's counsel explains that these fees were discounted because the case was taken on a contingency basis; normally, Novella's counsel would have charged Novella $73,993.55 for work on the Anti-SLAPP motion and $10,995.00 for work on the motion for reconsideration. Id. Novella seeks a two-times fee enhancement multiplier due to the "novelty and complexity of the issues, the level of expertise of counsel, the contingency nature of a portion of the fees, and in recognition of the stated policy of discouraging meritless lawsuits." Id. at 11. Novella's counsel further seeks $31,980.50 for time spent bringing the instant fee motion. Id. Novella's counsel thus seeks a total fee award of
Plaintiffs raise several objections to the requested fees based on opinions from their experts, attorneys John Heller and Lester Langer. First, they contend that the fee records contain duplicate entries, see DE 304-5 (Heller's spreadsheet identifying duplicate entries), and that Novella's counsel is seeking recovery of time not related to litigating the Anti-SLAPP motion, see DE 304-4 (Heller spreadsheet identifying time entries not related to the Anti-SLAPP motion). Second, they contend that some of time records contain block billing. See DE 304-10 at 5-6 (Langer Declaration). Third, they contend that the hourly rates charged by Novella's counsel are not reasonable. See DE 304 at 9-10 (Omnibus Opposition to Fee Motion). Last, they contend the fees should not be subject to a multiplier. Id. at 23.
With the exception of the challenge to Novella's counsel's hourly rates, the Court agrees with Plaintiffs. Novella's reply largely admits that his counsel's time records contain duplicative entries and that he sought recovery of time not related to litigation of the Anti-SLAPP motion. See DE 315 at 10 (Reply). Additionally, the Court does not find that this case contained novel issues or other factors that California courts have recognized as warranting a fee multiplier. The Court therefore agrees with Plaintiffs' expert, see DE 304-3 at 3 ¶ 4 (Heller Declaration), that Novella is entitled to recover
The Lanham Act
i. Entitlement to Fees: The Court finds that this is an "exceptional" case warranting an award of fees under the Lanham Act.
Under the Lanham Act, a court may award a prevailing party reasonable attorney fees "in exceptional cases." 15 U.S.C. § 1117(a). "While Congress has not further defined `exceptional,' the legislative history of the Act suggests that exceptional cases are those where the infringing party acts in a malicious, fraudulent, deliberate, or willful manner." Burger King Corp. v. Pilgrim's Pride Corp., 15 F.3d 166, 168 (11th Cir.1994) (internal quotation marks omitted). An "exceptional" case may also be one in which "evidence of fraud or bad faith exists." Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir.2001) (internal quotation marks omitted). Based on Burger King and Tire Kingdom, it was previously understood that, in the Eleventh Circuit, "[b]ad faith or fraud [was] necessary for a case to be `exceptional'" under the Lanham Act. Cardinal Freight Carriers, Inc. v. Cardinal Logistics, Inc., 155 F.Supp.2d 1352, 1354 (S.D.Fla.2001).
Yet recently, in considering an identically worded fee provision in the Patent Act, the Supreme Court rejected a standard from the Federal Circuit that required evidence of misconduct and subjective bad faith. Octane Fitness, LLC v. ICON Health & Fitness, Inc., ___ U.S. ___, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). The Supreme Court held that this standard was unduly rigid and not required by the common understanding of the word "exceptional":
Id. Although the Eleventh Circuit has not yet considered the effect of Octane Fitness on its Lanham Act "exceptional case" jurisprudence, district courts in this circuit and other circuit courts have consistently held that a showing of subjective bad faith or fraud is no longer required. See CarMax Auto Superstores, Inc. v. StarMax Fin., Inc., No. 615CV898ORL37TBS, 192 F.Supp.3d 1279, 1283-84, 2016 WL 3406425, at *3 (M.D.Fla. June 21, 2016) (collecting cases); Donut Joe's Inc. v. Interveston Food Servs., LLC, 116 F.Supp.3d 1290, 1292-93 (N.D.Ala. July 7, 2015) (same).
In evaluating whether this is an exceptional case, the Court considers the procedural history described supra, at the beginning of this Order. Novella argues that once the Court had granted the Society's motion for summary judgment and found that the speech at issue was not commercial speech, Plaintiffs' continued pursuit of the Lanham Act claims made this case "exceptional" and sanctionable under the Lanham Act. See DE 292 at 26. Plaintiffs' expert John G. Heller opines that this is not an exceptional case, first, because the Court's order granting summary judgment for the Society specifically stated that its ruling was only "with respect to the Society." DE 304-3 at 21 ¶ 54(b). Second, he opines that the Court's preliminary injunction ruling that the speech was not commercial did not "obligate [Plaintiffs] to abandon the Lanham Act claim" because "that ruling was made in a different context, with a much higher bar, than either summary judgment or trial" because "a preliminary injunction is a drastic remedy[.]" Id. at 21 ¶ 54(c). Third, he opines that, in opposition to Novella's motion for summary judgment, Plaintiffs "submitted evidence demonstrating a financial link [that is, a potential financial motivation for the speech] which, though it failed to carry the day, represent[ed] a plausible explanation as to why" the speech could be considered commercial. Id. at 21-22 ¶ 54(d).
It is true that the Court's earlier rulings on the commercial speech issue were made as to different Defendants and in different procedural postures. Yet, it is also true that the Court's analysis of the commercial speech issue in each of these orders — its March 16, 2015 order granting summary judgment for the Society, its April 2, 2016 order denying Plaintiffs' motion for preliminary injunction; and its September 30, 2015 order granting summary judgment for Novella — is strikingly consistent. Plaintiffs repeatedly failed to produce new arguments or evidence to distinguish the Court's prior rulings.
Furthermore, after the Court had twice ruled against Plaintiffs on the commercial speech issue, and more than eleven months after the litigation began, Plaintiffs repeatedly sought to multiply the proceedings by adding new parties and claims. See DE 202, 241. After this was unsuccessful, Defendant Novella moved for summary judgment on the commercial speech issue. Seeing the proverbial writing on the wall, Plaintiffs then attempted to salvage their case by moving for sanctions and accusing Defendant Novella of perjury, an accusation that the Court found no evidence to support. See DE 258, 259, 275.
It is true that the Court previously denied the Society's motion for fees under the Lanham Act. See DE 227. The Society's motion for fees is distinguishable from the present motion by Novella, however,
Based on the totality of the record, particularly the Court's repeated rulings that the speech at issue was not commercial speech and Plaintiffs' belated attempts to inject new issues into the proceedings by making unsupported allegations of perjury, the Court finds this case to be an "exceptional" one meriting an award of fees under the Lanham Act.
ii. Amount of Fees
The Court finds it appropriate to award Novella fees that were incurred after the Court's March 16, 2015 ruling, in its order granting summary judgment for the Society, that the speech at issue was not commercial speech and thus not actionable under the Lanham Act. According to Novella, the fees incurred thereafter total
Fees Against Plaintiffs' counsel under 28 U.S.C. § 1927
Novella seeks to hold Plaintiffs' current counsel — Cullin O'Brien and Geoffrey Cahen — and Plaintiffs' former
Plaintiffs' counsel raise several arguments against sanctions under § 1927. First, they complain that Novella has not submitted any sworn evidence in favor of bad faith multiplication of proceedings, but "merely points to the outcome of certain motions." DE 304 at 16 (Omnibus Opposition to Fees Motion). Plaintiffs' counsel have not submitted any authority holding that this Court cannot consider the record and its own knowledge of the procedural history of this case when deciding whether to impose sanctions under § 1927. Cf. Murray v. Playmaker Servs., LLC, 548 F.Supp.2d 1378, 1382 (S.D.Fla.2008) ("Bad faith [for purposes of fees under § 1927] can be either objective or subjective.").
Second, Plaintiffs' counsel argue that the Court's previous denial of Novella's § 1927 motion mitigates against an award. The order counsel is referring to merely stated that the motion was denied without prejudice because "the issues raised therein would be more suitably decided after the conclusion of the case." DE 190. That Order in no way precludes Novella from seeking relief now. In fact, the Order explicitly invited Novella to "refile the Motion if he so chooses after a final judgment on the merits has been rendered." Id.
Finally, Plaintiffs' counsel argue, in short, that what Novella characterizes as multiplication of the proceedings were merely attempts to cure defects in Plaintiffs' case regarding the commercial speech issue, which the Court had identified in its previous orders. See DE 304 at 18-20. The Court is mindful that it should not punish counsel under § 1927 merely for zealous advocacy or for being on the losing side of a case. The Court also notes that Plaintiffs' counsel were not involved in this litigation from its inception to its conclusion, and is therefore inclined to offer them the benefit of the doubt. Accordingly, despite the Court's conclusion that Plaintiffs' conduct justifies an award of fees against them, the Court is unwilling to find that Plaintiffs' counsel's conduct is tantamount to bad faith. An award of fees against Plaintiffs' counsel under § 1927 is therefore inappropriate. See Peterson, 124 F.3d at 1396; Hudson, 499 F.3d at 1262.
Motion for Sanctions by Attorneys Bona and Gott
Bona and Gott's motion for sanctions is based on their contention that Novella's motion for sanctions against them under 28 U.S.C. § 1927 is frivolous. See DE 317. As discussed supra, the Court disagrees. Accordingly, this motion is denied.
Based on the foregoing, it is