We previously posted about President Donald Trump’s successful use of the First Amendment in bringing an anti-SLAPP against Stormy Daniels based on her claim of defamation.  On October 15, 2018, Stormy appealed that decision to the Ninth Circuit.  The lawsuit is Stephanie Clifford v. Donald J. Trump, et al., Case No. 18-cv-06893-SJO (FFMx) in the United States District Court for the Central District of California.  The appeal is Stephanie Clifford v. Donald J. Trump, Case No. 18-56351 in the Ninth Circuit Court of Appeals.

Trump Wins His Attorney’s Fees Motion

Yesterday, the trial court awarded the President the majority of his attorneys’ fees and costs based on his successful anti-SLAPP motion—an award totaling nearly $300,000.  As discussed below, such an award is not uncommon when a defendant successfully brings an anti-SLAPP motion.

Like California, the Texas anti-SLAPP statute (applied in this case) includes a mandatory fee-shifting provision when a defendant succeeds on his or her motion.  See Tex. Civ. Prac. & Rem. Code (“TCPR”) § 27.009(a)(1); compare Cal. Code Civ. Proc. § 425.16(c)(1).  In fact, the Texas statute provides for mandatory court costs, reasonable attorney’s fees, and other expenses incurred in defending the legal action, plus sanctions against the plaintiff sufficient to deter her from bringing similar actions in the future.

Fees & Costs – $292,052.33

In calculating Trump’s reasonable attorney’s fees and costs, the Los Angeles federal court applied what is referred to as the “lodestar” (not Lone Star) method, essentially multiplying the reasonable hours expended with reasonable hourly rates, which are then be enhanced by another multiplier, if necessary, to arrive at a reasonable fee.

Trump’s lawyers sought to recover their fees and costs incurred as a result of (i) their initial strategy; (ii) their motion to transfer the case from New York to California; (iii) their successful anti-SLAPP motion; and (iv) their motion for fees.  The Texas statute provides for an award of fees “incurred in defending the legal action.”  TCPR § 27.009(a)(1).  Here, Stormy’s lawsuit included only a single cause of action—for defamation.  Because Trump successfully SLAPP’d that one claim, the Court concluded that he could recover on his entire defense of the action, including each of the four categories above.

Trump sought $389,403.11 in attorney’s fees and costs.  The Court concluded that Trump’s lawyers’ hourly rates – ranging from $307.60 per hour for an associate to $841.64 per hour for a partner – were reasonable, but took issue with the number of hours expended by his lawyers in defending the lawsuit and bringing the anti-SLAPP motion.  As a result, the Court reduced the total amount of claimed fees and costs by 25%, resulting in an award of $292,052.33 in fees and costs.

Sanctions – $1,000

In calculating sanctions under the Texas law, courts apply a direct relationship between the offensive conduct and the sanction imposed, with the caveat that the sanctions must be just and must not be excessive.  Here, the Court recognized that sanctions were mandatory under the Texas statute, but declined to impose significant additional sanctions given (i) the already-significant award totaling nearly $300,000; (ii) Stormy’s pending attempt to withdraw her other defamation lawsuit against Trump; and (iii) the fact that Stormy had not brought additional lawsuits despite all of the “rhetorically hyperbolic statements that [Trump] has made about [Stormy] in the recent past[.]”  This last part certainly feels like a wink and a nudge about Trump’s proclivity for Tweeting, if you ask us.

At the end of the day, the Court awarded Trump $1,000 in sanctions.

These Types Of Large Attorney’s Fees Awards Are Not Uncommon

In both California state and federal courts, it is not uncommon for trial courts to award significant attorney’s fees and costs following defendants’ successful anti-SLAPP motions.  It is also not uncommon for appellate courts to uphold those awards and to award additional fees incurred on appeal.

Some examples include:

  • Vargas v. City of Salinas, 200 Cal. App. 4th 1331 (2011) – affirming award of $226,928 in fees and $2,495.84 in costs
  • Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628 (1996) – affirming award of $130,506.71
  • Lunada Biomedical v. Nunez, 230 Cal. App. 4th 459 (2014) – affirming award of $162,059.38
  • Premier Medical Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n, 163 Cal. App. 4th 550 (2008) – affirming awards exceeding total of $275,000
  • Bernardo v. Planned Parenthood Federation of America, 115 Cal. App. 4th 322 (2004) – affirming award of $77,835.25
  • Wynn v. Chanos, No. 14-cv-04329-WHO, 2015 WL 3832561 (N.D. Cal. June 19, 2015) – awarding $390,149.63 in fees and $32,231.23 in costs
  • Metabolife International, Inc. v. Wornick, 213 F. Supp. 2d 1220 (S.D. Cal. 2002) –awarding $318,687.99
  • Makaeff v. Trump Univ., LLC, 2015 WL 1579000 (S.D. Cal. Apr. 9, 2015) – awarding $790,083.40 in fees and $8,695.81 in costs

These cases are just some of the many in which defendants have successfully recovered hundreds of thousands of dollars in legal fees based on their successful anti-SLAPP motions.  Under California law, a defendant will be awarded his or her fees even where an anti-SLAPP motion is only partially successful.  See, e.g., Mann v. Quality Old Time Service, Inc., 139 Cal. App. 4th 328, 339 (2006) (“Given the express legislative preference for awarding fees to successful anti-SLAPP defendants, a party need not succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16.”).

Moreover, similar to Stormy’s lawsuit, under California law a defendant will not be limited to recovering just the fees and costs incurred in bringing the anti-SLAPP motion itself.  The award will include, for example, “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.”  Ketchum v. Moses, 24 Cal. 4th 1122, 1141 (2001); see also Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15, 21 (2006) (recoverable attorney’s fees under anti-SLAPP statute “include expenses incurred in litigating an award of attorney fees after the trial court has granted the motion to strike.”).

The Court’s fee award is just the latest in a line of many such awards following a successful anti-SLAPP motion.  Stormy’s tale may rightly be considered a cautionary one.

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