1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR AWARD OF ATTORNEYS FEES – BY SUMMIT ENTERTAINMENT, LLC DAVID HALBERSTADTER (SBN 107033) [email protected]SALLY WU (SBN 266294) [email protected]KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East Suite 2600 Los Angeles, CA 90067-3012 Telephone: 310.788.4400 Facsimile: 310.788.4471 Attorneys for Defendant SUMMIT ENTERTAINMENT, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SGT. JEFFREY S. SARVER, Plaintiff, vs. THE HURT LOCKER, LLC; MARK BOAL; KATHRYN BIGELOW; GREG SHAPIRO; NICOLAS CHARTIER; TONY MARK; DONALL MCCLUSKER; SUMMIT ENTERTAINMENT, LLC; VOLTAGE PICTURES, LLC; GROSVENOR PARK MEDIA, LP ; FIRST LIGHT PRODUCTIONS, INC.; KINGSGATE FILMS, INC. and PLAYBOY ENTERPRISES, INC., Jointly and Severally, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:10-cv-09034-JHN (JCx) NOTICE OF MOTION AND MOTION BY DEFENDANT SUMMIT ENTERTAINMENT, LLC FOR AWARD OF ATTORNEYS’ FEES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: December 12, 2011 Time: 2:00 p.m. Courtroom: 790 Assigned to the Honorable Jacqueline H. Nguyen TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on December 12, 2011, at 2:00 p.m. or as soon thereafter as the matter may be heard in Courtroom 790 of the United States District Court for the Central District of California, located at 255 East Temple Street, Los Angeles, California, Defendant Summit Entertainment, LLC (“Summit”) will and Case 2:10-cv-09034-JHN -JC Document 134 Filed 10/27/11 Page 1 of 5 Page ID #:1941
Transcript
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1MOTION FOR AWARD OF ATTORNEYS FEES – BY SUMMIT ENTERTAINMENT, LLC
MEMORANDUM OF POINTS AND AUTHORITIES
I. PRELIMINARY STATEMENT.
The Court has already determined that Defendant Summit Entertainment, LLC
(“Summit”) should be awarded its attorneys’ fees in connection with its successfulmotion to strike under California Code of Civil Procedure section 425.16. For the
reasons discussed below and in the concurrently-filed Declaration of David
Halberstadter, Summit should be awarded the total sum of $65,994.78, comprising
$61,717.50 in attorneys’ fees and $4,277.28 in recoverable costs.
II. SUMMIT SHOULD BE AWARDED ITS ATTORNEYS FEES’ AND
COSTS IN THE AMOUNT OF $65,994.78.
The United States Supreme Court has recently reiterated that, under federal fee-
shifting statutes, the “lodestar approach” is “the guiding light” in determining a
“reasonable” fee. Perdue v. Kenny A., 599 U.S. __, 130 S.Ct. 1662, 1671–73, 176
L.Ed.2d 494 (2010) (internal quotation marks omitted); Resurrection Bay
Conservation Alliance v. City of Seward, Alaska, 640 F.3d 1087, 1095 (9th Cir.
2011).1 Similarly, the California Supreme Court has concluded that the “lodestar
approach” should be followed in determining the award of attorneys’ fees in anti-
SLAPP motion cases. Ketchum v. Moses, 24 Cal.4th 1122, 1136 (2001) (“because the
anti-SLAPP provisions refer to attorney fees and costs without indicating any
restrictions on how they are to be calculated, we accordingly presume that the
Legislature intended courts use the prevailing lodestar adjustment method”); see also
Cabral v. Martins, 177 Cal.App.4th 471, 491 (2009) (The amount of an attorney fee
award under the anti-SLAPP statute is computed by the trial court in accordance withthe familiar “lodestar” method).
Under this method, the court first determines a reasonable number of hours for
the work performed and multiplies those hours by a reasonable hourly rate. To
1 See also Farrar v. Hobby, 506 U.S. 103 (1992) (the usual approach to evaluating thereasonableness of an attorney fee award requires application of the lodestar method); Hensley v. Eckerhart , 461 U.S. 424 (1983) (same).
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2MOTION FOR AWARD OF ATTORNEYS FEES – BY SUMMIT ENTERTAINMENT, LLC
determine the reasonable number of hours, the Court must evaluate the time expended
the nature and need for the services performed, and the relevant fee records. Hensley
v. Eckerhart , 461 U.S. 424, 433-34 (1983). The court then must determine the
“reasonable hourly rate” by considering the rates customarily charged for work of thetype performed in the relevant legal community, the reputation and experience of the
attorneys who performed the services, the quality of counsel services on behalf of the
client, the complexity of the work performed, and the results achieved. Pennsylvania
v. Delaware Valley Citizens Council, 478 U.S. 546, 556-57 (1987). The “most critical
factor” in determining a reasonable fee “is the degree of success obtained.” Farrar v.
Hobby, 506 U.S. 103, 114 (1992). “Where a plaintiff has obtained excellent results,
his attorney should recover a fully compensatory fee. Normally this will encompass
all hours reasonably expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be justified.” Hensley, supra, 461 U.S. at
435.2
The fees and costs that Summit’s defense counsel charged in connection with
the Anti-SLAPP Motion are presumptively reasonable and should be awarded in full.
Summit was represented in this action by two attorneys: Partner David Halberstadter
and associate Sally Wu. They expended 115.9 hours and 25.5 hours, respectively,
investigating and researching the facts, circumstances and relevant defenses; preparing
the motion, joinder, reply papers, and evidentiary objections filed in connection with
the Anti-SLAPP Motion; reviewing and analyzing Plaintiff’s court filings in
connection with the Anti-SLAPP Motion; conferring with other Defendants’ counsel
regarding strategy and other issues relating to the Anti-SLAPP Motion; analyzing theCourt’s tentative opinion; and preparing for and attending the hearing on the Anti-
SLAPP Motion, among other things. [Declaration of David Halberstadter
2Essentially the same methodology for determining the “lodestar” amount is followed by
California courts. See, e.g., PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095 (2000)(computation of time spent on a case and the reasonable value of that time, as determined by thereasonable hourly rate prevailing in the community for similar work, is fundamental to adetermination of an appropriate attorneys’ fee award); Ketchum v. Moses, supra, 24 Cal.4th at 1132(expressly approving the use of prevailing hourly rates as a basis for the lodestar calculation).
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3MOTION FOR AWARD OF ATTORNEYS FEES – BY SUMMIT ENTERTAINMENT, LLC
(“Halberstadter Decl.”), ¶ 4.] Although it might appear at first blush as though
Summit was responsible only for filing a Notice of Joinder in connection with the
Anti-SLAPP Motion filed by Defendant The Hurt Locker, LLC and its co-defendants
(collectively, the “Hurt Locker Defendants”) and a subsequent reply brief, in fact,Summit’s counsel devoted substantial time and effort to researching and drafting all of
the sections of the Anti-SLAPP Motion filed by the Hurt Locker Defendants
pertaining to Plaintiff’s inability to demonstrate the probable validity of his claims.
[Id. at ¶ 5.]
Although Mr. Halberstadter currently bills his time at the hourly rate of $650,
Summit was charged an agreed-upon rate of $450 per hour for his services, and a
“blended” rate of $375 per hour for the services of any associates who worked on the
matter. The rates charged are reasonable not only due to the extent and complexity of
the work described above, but because they are consistent with the reputation and
experience of the attorneys and professionals who performed the services and because
of the result achieved (complete dismissal of the entire action). [Halberstadter Decl.,
¶¶ 7-10.] Summit also incurred third party costs totaling $4,277.28 in connection with
the Anti-SLAPP Motion, for expenses such as PACER charges, Westlaw/Lexis
research, courier charges, photocopying and transportation expenses. [Id. at ¶ 6.]
III. CONCLUSION.
For the foregoing reasons, Summit respectfully requests that this Court award it
attorneys’ fees and costs in the total amount of $65,994.78.
2DECLARATION OF DAVID HALBERSTADTER IN SUPPORT SUMMIT’S MOTION FOR ATTORNEYS’ FEES
which is counsel of record for Defendant Summit Entertainment, LLC (“Summit”) in
this action. I have personal knowledge of the facts set forth in this declaration and, if
called as a witness, could and would testify competently to such facts under oath. I
submit this Declaration in support of the Summit’s motion for an award of theattorneys’ fees it incurred in connection with Defendants’ successful anti-SLAPP
motions.
2. Summit is seeking an award of $61,717.50 in attorneys’ fees and
$4,277.28 in recoverable costs (for a total award of $65,994.78), which represents the
portion of the fees and costs that Summit incurred in connection with the special
motion to strike the Complaint pursuant to California Code of Civil Procedure section
425.16 (the “Anti-SLAPP Motion”) that all of the Defendants filed in this action, and
which the Court granted in its entirety pursuant to its Order dated October 13, 2011
(the “Order”). I have set forth below first a summary of the hours expended by
Summit’s counsel in connection with the Anti-SLAPP Motion, followed by an
explanation of why those hours, and the hourly rates charged to Summit in connection
with the Anti-SLAPP Motion, were reasonable.
Overview of the Time Spent In Connection With The Anti-SLAPP Motion
3. All of the named Defendants filed and/or joined in each others’ Anti-
SLAPP Motions on February 1, 2011, in connection with which Defendants requested
an award of attorneys’ fees as provided for by the applicable statute. On or about
March 14, 2011, Plaintiff filed his opposition to the Anti-SLAPP Motion. Defendants
filed and/or joined in reply briefs (including objections to Plaintiff’s supporting
declarations) on March 21, 2011. On March 28, 2011, the Court issued an ordertaking the scheduled motion hearing off-calendar. Then on March 29 and March 31,
2011, Plaintiff filed, respectively, evidentiary objections to the declaration submitted
by Defendant Boal, and an “opposition” to the evidentiary objections that Defendants
had filed with their reply briefs. By Minute Order dated July 22, 2011, the Court
placed the hearing on the Anti-SLAPP Motion back on calendar for August 8, 2011.
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3DECLARATION OF DAVID HALBERSTADTER IN SUPPORT SUMMIT’S MOTION FOR ATTORNEYS’ FEES
On August 4, 2011, the Court issued its tentative ruling on the Anti-SLAPP Motion,
which was then argued as scheduled on August 8. Following the argument, Plaintiff
filed (on August 13) a “Supplemental Brief” in further opposition to the Anti-SLAPP
Motion. Defendants Boal and Bigelow responded to this brief on August 15; andPlaintiff filed a “Sur-Reply Brief” on September 29. The Court’s October 13 Order
granted the Anti-SLAPP Motion in its entirety and awarded all Defendants their
attorneys’ fees.
4. Summit was represented in connection with all of this activity by two
attorneys: associate Sally Wu and me. Ms. Wu expended a total of 25.5 hours, and I
expended a total of 115.9 hours, engaged in the following activities relative to the
Anti-SLAPP Motion, among others: investigating and researching the facts,
circumstances and relevant defenses; preparing the Anti-SLAPP Motion, Notice of
Joinder, supporting Declarations; reviewing and analyzing, and conducting legal
research in connection with, Plaintiff’s opposition to the Anti-SLAPP Motion;
preparing a reply brief, a Notice of Joinder in the other Defendants’ reply briefs, and
evidentiary objections; reviewing and analyzing Plaintiff’s supplemental brief and
strategizing with respect to what further Court filings, if any, were warranted;
conferring with other Defendants’ counsel regarding strategy and other issues relating
to the Anti-SLAPP Motion; analyzing the Court’s tentative ruling on the Anti-SLAPP
Motion; preparing for and attending the hearing on the Anti--SLAPP Motion; and
reviewing the various post-hearing briefs submitted by other parties in connection
with the Anti-SLAPP Motion (Summit neither submitted nor joined in any such post-
hearing briefs).5. It might appear at first blush from the various court filings as though
Summit was responsible only for filing (i) a Notice of Joinder in connection with the
Anti-SLAPP Motion filed by Defendants The Hurt Locker, LLC, Greg Shapiro,
Nicholas Chartier, Voltage Pictures, LLC, Grosvenor Park Media, L.P. and Kingsgate
Films, Inc. (collectively, the "Hurt Locker Defendants") and (ii) a subsequent reply
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4DECLARATION OF DAVID HALBERSTADTER IN SUPPORT SUMMIT’S MOTION FOR ATTORNEYS’ FEES
brief. But in fact, the Hurt Locker Defendants’ motion was the product of a
collaborative effort between counsel for the Hurt Locker Defendants and counsel for
Summit. We worked together to prepare this motion so as to avoid duplication of
effort as much as possible, and in order to avoid presenting the Court with separateand potentially redundant motions. Accordingly, Summit’s counsel was primarily
responsible for drafting those portions of the Anti-SLAPP Motion filed by the Hurt
Locker Defendants pertaining to Plaintiff’s inability to demonstrate the probable
validity of his claims (and reviewing and suggesting revisions to the remaining
portions), while counsel for the Hurt Locker Defendants took primary responsibility
for drafting the other portions of the motion (and reviewing and suggesting revisions
to the portions of the motion that Summit’s counsel drafted).
6. In support of Summit’s request for an award of its attorneys’ fees and
recoverable costs, I have attached hereto as Exhibit 1 true and correct copies of
Katten’s invoices for this matter, which have been redacted to exclude privileged and
work product information and information pertaining to work performed that was not
related to the Anti-SLAPP Motion. Exhibit 1 supports Summit’s request for
attorneys’ fees totaling $61,717.50, and costs (comprising PACER charges,
Westlaw/Lexis research, courier charges, photocopying and transportation expenses)
totaling $4,277.28).
The Reasonableness of the Hourly Rates Charged
7. I was primarily responsible for defending this action on behalf of
Summit. I have been an attorney for nearly 30 years. I graduated magna cum laude
from Georgetown University Law Center in 1982, where I was an Editor of the lawschool’s international law journal. I was a Partner specializing in entertainment-
related and intellectual property litigation at Troop Steuber Pasich Reddick & Tobey,
LLP for 10 years (from 1990-2000) prior to becoming a partner at Katten in 2000.
8. I have substantial experience in intellectual property and entertainment
litigation, having practiced in this area continuously for more than 25 years. In 2010,
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5DECLARATION OF DAVID HALBERSTADTER IN SUPPORT SUMMIT’S MOTION FOR ATTORNEYS’ FEES
I was recognized as a ‘Power Lawyer’ on The Hollywood Reporter ’s list of the 100
most influential entertainment lawyers in the United States and was named one of
California’s Top 75 Intellectual Property Litigators by the Los Angeles Daily Journal.
I have been listed as a Southern California Super Lawyer for entertainment litigationin Los Angeles Magazine and Southern California Super Lawyers Magazine from
2004 through 2011.
9. My current hourly rate is $650 per hour; however, for purposed of this
action, I agreed to bill my time at the rate of $450 per hour. Accordingly, it is my
belief that the hourly rates being charged for my time on this matter are substantially
below those typically charged by attorneys with my years of experience and expertise,
and are most certainly “reasonable.”
10. For purposes of this action, I also agreed that any work performed on this
matter by any associate (including Ms. Wu) would be billed at the “blended” rate of
$375 per hour. Ms. Wu graduated from University of Southern California, Gould
School of Law in 2009. Ms. Wu has assisted in the litigation of multiple cases,
including the successful defense of a copyright infringement claim dismissed on
summary judgment by the United States District Court, Southern District of New
York (Latimore v. NBC Universal, Inc., case no. 07-cv-09338). Accordingly, it is my
belief that this hourly rate is reasonable for Ms. Wu, and consistent with the hourly
rates being charged in the Los Angeles legal community for attorneys at her level and
with her experience.
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