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Adelson v. Harris

United States District Court, S.D. New York

March 29, 2018



          J. PAUL OETKEN United States District Judge

         This is a defamation action filed by Sheldon G. Adelson arising out of the 2012 presidential campaign. Adelson brought suit against David A. Harris, Marc R. Stanley, and the National Jewish Democratic Council (“NJDC”) (together, “Defendants”) for libel based on a publication on NJDC's website in July 2012. This Court dismissed Adelson's complaint in 2013, and that dismissal was affirmed by the Second Circuit following a certification of questions to the Nevada Supreme Court. Presently before the Court is Defendants' motion for attorney's fees and costs.

         I. Background

         In 2013, this Court dismissed Adelson's complaint under both Rule 12(b)(6) of the Federal Rules of Civil Procedure and Nevada's anti-strategic litigation against public participation (“Anti-SLAPP”) statute, Nev. Rev. Stat. § 41.635-670. The Court also concluded that Defendants were entitled to reasonable attorney's fees and costs under Nevada's Anti-SLAPP statute, Nev. Rev. Stat. § 41.670(1). See Adelson v. Harris, 973 F.Supp.2d 467 (S.D.N.Y. 2013).

         On appeal, the Second Circuit certified to the Nevada Supreme Court two unresolved questions of Nevada law―one involving Nevada common law and one involving the scope of the Nevada Anti-SLAPP statute. See Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014). The Nevada Supreme Court answered both questions in a manner consistent with this Court's earlier decision. See Adelson v. Harris, 402 P.3d 665 (Nev. 2017). The Second Circuit then affirmed this Court's decision dismissing the complaint. See Adelson v. Harris, 876 F.3d 413 (2d Cir. 2017).

         Defendants originally filed a motion for attorney's fees and costs in October 2013 (Dkt. No. 81), after this Court's decision dismissing the complaint. Although that motion was fully briefed, the Court deferred ruling on it in light of the subsequent appeal to the Second Circuit and certification to the Nevada Supreme Court (which might have rendered moot the initial fee request had those courts ruled differently). Following the Second Circuit's affirmance in 2017, Defendants filed a supplemental motion for attorney's fees and costs (Dkt. No. 111), which is fully briefed. The Court now addresses both fee motions together.

         The Court assumes familiarity with the factual background, legal issues, and procedural history of this case, which are set forth in the above-cited opinions of the Second Circuit, the Nevada Supreme Court, and this Court.

         II. Discussion

         Where an action is dismissed pursuant to Nevada's Anti-SLAPP statute, “[t]he court shall award reasonable costs and attorney's fees to the person against whom the action was brought.” Nev. Rev. Stat. § 41.670. Thus, persons who are sued for communications protected by the statute are granted “immunity from civil liability” as well as “mandatory fee shifting.” Adelson, 774 F.3d at 809.

         The Supreme Court of Nevada has explained:

“[T]he method upon which a reasonable fee is determined is subject to the discretion of the court, ” which “is tempered only by reason and fairness.” Accordingly, in determining the amount of fees to award, the court is not limited to one specific approach; its analysis may begin with any method rationally designed to calculate a reasonable amount, including those based on a “lodestar” amount or a contingency fee. We emphasize that, whichever method is chosen as a starting point, however, the court must continue its analysis by considering the requested amount in light of the factors enumerated by this court in Brunzell v. Golden Gate National Bank, namely, the advocate's professional qualities, the nature of the litigation, the work performed, and the result. In this manner, whichever method the court ultimately uses, the result will prove reasonable as long as the court provides sufficient reasoning and findings in support of its ultimate determination.

Shuette v. Beazer Homes Holdings Corp., 124 P.3d 530, 548-49 (Nev. 2005) (footnotes omitted) (quoting Univ. of Nev. v. Tarkanian, 879 P.2d 1180, 1188, 1186 (Nev. 1994) (citing Brunzell v. Golden Gate Nat'l Bank, 455 P.2d 31, 33 (Nev. 1969)). As the court summarized in Shuette, the Brunzell factors are:

(1) the qualities of the advocate: his ability, his training, education, experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of the parties where they affect the importance of the litigation; (3) the work actually performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the attorney was successful and what benefits were derived.

Brunzell, 455 P.2d at 33.[1]

         The parties have briefed Defendants' fee request in two rounds of filings: first for the district court phase of litigation (i.e., fees and costs incurred from the beginning of the case through September 30, 2013); and second for the appellate phase (i.e., fees and costs incurred from October 1, 2013, through December 31, 2017). Each is addressed in turn.

         A. Fees and Costs in the District Court

         For the district court phase of the litigation, Defendants seek $989, 054.50 in attorney's fees and $25, 153.43 in expenses. (Dkt. No. 82 ¶¶ 18-19.) The requested fee amount is based on the lodestar method: the number of hours spent multiplied by the hourly fee. Defendants' law firm―at the time, Levine Sullivan Koch & Schulz, LLP (“LSKS”)―negotiated reduced hourly rates with Defendants' insurer, Travelers Indemnity Company (“Travelers”), agreeing to charge a blended hourly rate of $465 for attorneys and $200 for paralegals.[2] It is undisputed that Travelers has in fact paid the fees sought by Defendants. (Dkt. No. 82 ¶ 14.)

         Adelson does not challenge LSKS's hourly rate. That rate is clearly reasonable―indeed, cheap―in light of prevailing market rates, the level of quality of counsel, and the complexity of the legal issues involved. (See ...

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