distinguishing the disparate standards 17 for reviewing evidence on a motion for new trial as opposed to a motion for judgment 18 as a matter of law
How later courts described this case
- distinguishing the disparate standards 17 for reviewing evidence on a motion for new trial as opposed to a motion for judgment 18 as a matter of law
- “When clerical tasks are billed at hourly 6 rates, the court should reduce the hours requested to account for the billing errors.”
- noting, when the jury’s verdict is 24 “merely advisory,” that such verdict “does not bind the court”
- “[A] court should render 8 judgment as a matter of law when . . . there is no legally sufficient evidentiary basis 9 for a reasonable jury to find for [the prevailing] party on that issue.” (internal 10 quotation marks omitted)
Written by the judges who cited it.
The opinion
O
1
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7
8 United States District Court
9 Central District of California
10
11 MULTIPLE ENERGY Case № 2:21-cv-01149-ODW (RAOx)
TECHNOLOGIES, LLC,
12
Plaintiff, ORDER RE POST-TRIAL MOTIONS
13
v. [218][219][220][228]
14
SETH CASDEN,
15
Defendant.
16
17
18 I. INTRODUCTION
19 Plaintiff Multiple Energy Technologies, LLC (“MET”) brought this action
20 against Defendant Seth Casden for false advertising and tortious interference with
21 contractual relations. After a jury trial, the Court granted in part MET’s Federal Rule
22 of Civil Procedure (“Rule”) 50(a) motion on one claim, the jury returned a verdict in
23 favor of MET on the second, and the Court issued a Post-Trial Order (“PTO”)
24 addressing the remaining claims and issues. (Verdict, ECF No. 190; PTO, ECF
25 No. 198.) Casden and MET now renew post-trial motions. (ECF Nos. 218, 219, 220,
26 228.) The Court deemed the motions appropriate for decision without oral argument.
27 Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. As the motions overlap, the Court addresses
28 them in a single omnibus order. For the reasons below, the Court rules as follows.
1 II. BACKGROUND1
2 MET developed a patented bioceramic infrared material branded as “Redwave.”
3 Casden is the co-founder and CEO of Hologenix, which manufactures, markets, and
4 licenses a patented bioceramic material branded as “Celliant.”
5 Prior to this case, in February 2019, MET sued Hologenix for allegedly
6 engaging in false advertising of Celliant. See Multiple Energy Technologies, LLC v.
7 Hologenix, LLC, No. 2:19-cv-01483-PA (RAOx) (C.D. Cal. filed February 28, 2019)
8 (“MET v. Hologenix”). On March 6, 2020, MET and Hologenix entered into a
9 Settlement Agreement and General Release (“Settlement Agreement”), which settled
10 MET’s claims in MET v. Hologenix. Casden negotiated and signed the Settlement
11 Agreement on behalf of Hologenix.
12 In the Settlement Agreement, Hologenix agreed to pay MET a total of
13 $2,500,000 according to a schedule whereby Hologenix would pay $100,000 within
14 one business day of executing the Settlement Agreement, $1,400,000 on or before
15 April 23, 2020, and the remaining $1,000,000 in 2021. As part of the Settlement
16 Agreement, Hologenix and MET also agreed to stipulate to a permanent injunction
17 enjoining Hologenix from “stat[ing] or suggest[ing]” that the Food and Drug
18 Administration (“FDA”) “approved” Celliant or “made a ‘determination’” that
19 Celliant promoted any benefits. On March 10, 2020, the court in MET v. Hologenix
20 entered the requested permanent injunction.
21 Following entry of the permanent injunction, Casden made or approved
22 statements about Celliant that violated the stipulated permanent injunction.
23 Additionally, on April 22, 2020—the day before Hologenix was scheduled to pay
24 $1,400,000 to MET pursuant to the Settlement Agreement—Hologenix filed for
25 Chapter 11 bankruptcy. As a result of the bankruptcy proceedings, MET returned the
26 only payment that it had received from Hologenix under the Settlement Agreement—
27 the initial $100,000 payment.
28
1 The Court draws the background from the PTO.
1 A. Procedural History
2 MET subsequently filed this action against Casden. (See First Am. Compl.
3 (“FAC”), ECF No. 24.) MET asserted four causes of action: (1) violation of the
4 Lanham Act, 15 U.S.C. § 1125(A)(1)(B); (2) false advertising under California
5 Business & Professions Code section 17500; (3) unfair competition under California
6 Business & Professions Code section 17200; and (4) tortious interference with
7 contractual relations. (Id. ¶¶ 76–108.)
8 From June 20 to 23, 2023, MET tried its claims before this Court and a jury.
9 (See Mins. Trial, ECF Nos. 177–80.) After the close of evidence, both parties moved
10 for judgment as a matter of law pursuant to Rule 50(a). (See Trial Tr. (“Tr.”) 455:21 to
11 487:1, ECF Nos. 243–46.) The Court granted in part only MET’s Rule 50(a) motion,
12 with respect to its claim for tortious interference. (Tr. 491.) In doing so, the Court
13 found that Casden acted to advance his personal interests when he tortiously interfered
14 with the Settlement Agreement, thus foreclosing any agency immunity defense. (Id.
15 at 492.)
16 Nonetheless, at Casden’s request, the Court submitted to the jury for advisory
17 findings two questions related to Casden’s agency immunity defense. (Id. at 493:19 to
18 497:2; Verdict 4.) Consistent with the Court’s ruling, the jury issued an advisory
19 finding that Casden acted to advance his own personal interests. (Verdict 4.)
20 Relatedly, the jury returned an advisory verdict in MET’s favor on its tortious
21 interference cause of action with an award of $1 in nominal damages. (Id.) The jury
22 also returned a verdict in MET’s favor on its Lanham Act false advertising cause of
23 action, similarly awarding $1 in nominal damages. (Id. at 1–2.)
24 Several issues remained for the Court’s resolution. (PTO 2.) The Court
25 expanded on the factual and legal bases for its ruling on MET’s Rule 50(a) motion,
26 granting judgment as a matter of law for MET on the claim for tortious interference
27 and rejecting Casden’s agency immunity defense. (Id. at 4–9.) The Court awarded
28 MET $2.5 million in damages on the tortious interference claim. (Id. at 9–10.) On the
1 Lanham Act false advertising claim, the Court found that MET is entitled to
2 disgorgement of Casden’s profits, treble damages, and attorneys’ fees. (Id. at 10–13.)
3 Similarly, the Court found Casden liable for false advertising and unfair competition
4 under California law, and issued a permanent injunction. (Id. at 13–16.) Finally, the
5 Court denied MET’s requests for punitive damages and restitution. (Id. at 10, 14–16.)
6 On September 26, 2023, the Court entered judgment consistent with these
7 determinations, awarding MET monetary and injunctive relief. (J., ECF No. 199.)
8 B. Post-Trial Proceedings
9 On October 10, 2023, MET moved for an order awarding attorneys’ fees
10 pursuant to the Court’s PTO and the Lanham Act. (First Mot. Att’ys’ Fees, ECF
11 No. 204.) On October 13, 2023, Casden moved to alter or amend the judgment, and
12 for judgment as a matter of law (“JMOL”) or in the alternative for a new trial. (Mot.
13 Alter-Am., ECF No. 209; Mot. JMOL, ECF No. 210.) Also on October 13, 2023,
14 Casden filed an ex parte application seeking an order staying execution of the
15 monetary component of the judgment and a waiver or reduction of the supersedeas
16 bond for an appeal. (Ex Parte Appl., ECF No. 208.) In the ex parte application,
17 Casden stated that without a stay, “he will have no choice but to immediately file
18 personal bankruptcy.” (Id. at 3.) On October 17, 2023, before the Court ruled on
19 Casden’s application, he filed for bankruptcy. (Notice Bankruptcy, ECF No. 212.)
20 Consequently, the Court stayed the case pursuant to 11 U.S.C. § 362’s automatic
21 bankruptcy stay. (Stay Order, ECF No. 213.) The Court denied all pending motions
22 as moot, with leave to renew the motions upon the stay being lifted. (Id.)
23 On June 11, 2024, Casden obtained an order from the bankruptcy court lifting
24 the automatic stay in this action, “to permit [Casden] to proceed with his challenges to
25 the judgment obtained by MET,” “including pursuing [his] post-trial motions, all
26 post-judgment challenges, any and all appeals, including from the Judgment, and any
27 retrial and/or remand.” (Status Report Ex. A (“Bankruptcy Court Order”) 2, ECF
28 No. 217.) The stay was also lifted “for MET to pursue its motion for attorney’s fees.”
1 (Id.) On July 19, 2024, the parties notified the Court of the Bankruptcy Court’s order
2 and, on July 31, 2024, the Court lifted the stay. (Lift Order, ECF No. 222.)
3 Casden now renews his three post-trial motions. First, Casden renews his
4 renewed motion for judgment as a matter of law pursuant to Rule 50(b), or
5 alternatively for a new trial pursuant to Rule 59(a). (Renewed Mot. JMOL (“Mot.
6 JMOL”), ECF No. 218.) Second, Casden renews his motion to alter or amend the
7 judgment pursuant to Rule 59(e). (Renewed Mot. Am. J. (“Mot. AJ”), ECF No. 219.)
8 Third, Casden moves to waive the requirement of a bond on appeal and stay execution
9 of the monetary component of the judgment. (Mot. Waive Bond & Stay Enforcement
10 (“Mot. Waive & Stay”), ECF No. 220.) Additionally, MET renews its motion for
11 attorneys’ fees. (Renewed Mot. Att’ys’ Fees (“Mot. Fees”), ECF No. 228.) The
12 Court considers each motion in turn.
13 III. MOTION FOR JUDGMENT AS A MATTER OF LAW—RULE 50(b)
14 Casden renews his Rule 50(b) motion for judgment as a matter of law on the
15 grounds that there is no legally sufficient basis for finding in MET’s favor on MET’s
16 Lanham Act and tortious interference causes of action. (Mot. JMOL 2–3, 11.)
17 A. Legal Standard—Rule 50(b)
18 To succeed on a renewed motion for judgment as a matter of law under
19 Rule 50(b), the moving party must: (1) have raised the issues in its pre-verdict
20 Rule 50(a) motion; and (2) demonstrate that there is “no legally sufficient basis for a
21 reasonable jury” to have found in the non-moving party’s favor. Winarto v. Toshiba
22 Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001); Tortu v. Las Vegas
23 Metro. Police Dep’t, 556 F.3d 1075, 1081 (9th Cir. 2009) (discussing the procedural
24 requirement for a Rule 50(a) pre-verdict motion). The issues raised in the pre-verdict
25 motion must be specific enough to notify the court and the opposing party of the
26 underlying issue. Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990).
27 Thus, where a party did not raise grounds in a pre-verdict Rule 50(a) motion, a court
28
1 may not grant judgment as a matter of law on that basis. E.E.O.C. v. Go Daddy
2 Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009).
3 In ruling on a Rule 50(b) motion, judgment as a matter of law is appropriate “if
4 the evidence, construed in the light most favorable to the nonmoving party, permits
5 only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.”
6 Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014); Reeves v.
7 Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (“[A] court should render
8 judgment as a matter of law when . . . there is no legally sufficient evidentiary basis
9 for a reasonable jury to find for [the prevailing] party on that issue.” (internal
10 quotation marks omitted)). However, “[a] jury’s verdict must be upheld if it is
11 supported by substantial evidence that is adequate to support the jury’s findings, even
12 if contrary findings are also possible.” Escriba, 743 F.3d at 1242. “Substantial
13 evidence” means such relevant evidence as a reasonable mind might accept as
14 adequate to support a conclusion. Fisher v. City of San Jose, 558 F.3d 1069, 1074
15 (9th Cir. 2009).
16 The standard under Rule 50(b) mirrors that of summary judgment in that, while
17 the court must scrutinize the entire evidentiary record, it may not make credibility
18 determinations or weigh the evidence. Reeves, 530 U.S. at 150. The court must
19 “disregard all evidence favorable to the moving party that the jury is not required to
20 believe.” Id. at 151. Thus, “when two sets of inferences find support in the record,
21 the inferences that support the jury’s verdict of course win the day.” Winarto,
22 274 F.3d at 1287.
23 B. Discussion—Rule 50(b)
24 Casden seeks judgment as a matter of law as to MET’s Lanham Act and tortious
25 interference causes of action, on the grounds that MET failed to prove the elements of
26 the claims or support the damages awarded. (Mot. JMOL 11.) As Casden’s arguments
27 are unavailing, the Court DENIES the Rule 50(b) motion, for the following reasons.
28
1 1. Lanham Act—Rule 50(b)
2 The jury returned a verdict in favor of MET on its Lanham Act cause of action,
3 finding that: (1) Casden made false statements of fact about his own or another’s
4 product after March 6, 2020; (2) the statement was made in a commercial
5 advertisement or promotion; (3) the statement was deliberately or intentionally false;
6 (4) the statement actually deceived or had the tendency to deceive a substantial
7 segment of its audience; (5) the deception was material; (6) Casden caused the false
8 statement to enter interstate commerce; and (7) MET was or is likely to be injured as a
9 result of the false statement due to a diversion of sales or a lessening of goodwill.
10 (Verdict 1–2.) Although the jury awarded $1 in nominal damages, the Court found it
11 appropriate to award disgorgement of Casden’s profits, trebled. (Id. at 2; PTO 10–13.)
12 In challenging the Lanham Act verdict and judgment, Casden contends there is
13 no legally sufficient basis for the jury’s verdict in MET’s favor as to the findings
14 regarding: (1) false statement, (3) deliberate and intentional falsity, (4) actual or likely
15 deception, and (7) that MET was or is likely to be injured. (Mot. JMOL 2.) Casden
16 also argues against the Court’s order awarding disgorgement of Casden’s salary and
17 the Court’s finding that the case is “exceptional” under the Lanham Act for awarding
18 attorneys’ fees. (Mot. JMOL 3, 28–29.) Casden did not challenge in his Rule 50(a)
19 motion that Casden’s statements were “deliberately or intentionally false,” or that the
20 case is exceptional for awarding attorneys’ fees. (See generally Tr. 474–81, 492–94.)
21 Thus, he may not raise these bases for his renewed motion under Rule 50(b).
22 E.E.O.C., 581 F.3d at 961. As to his remaining grounds for judgment as a matter of
23 law, the Court finds the evidence admitted at trial was adequate to support the
24 findings. Escriba, 743 F.3d at 1242.
25 (a) False statements, deception, and injury
26 Casden argues MET did not prove Casden made false statements or that any
27 statements he made actually deceived or had the tendency to deceive customers.
28 (Mot. JMOL 15.)
1 Where an advertisement is literally false, a presumption arises that consumers
2 were in fact deceived and the burden shifts to the defendant to prove otherwise. Avid
3 Identification Sys. v. Schering-Plough Corp., 33 F. App’x 854, 856 (9th Cir. 2002).
4 MET identifies substantial evidence in the record that is adequate to support the
5 jury’s findings, that Casden made “false statements of fact about his own or another’s
6 product after March 6, 2020” and “the statement actually deceived or had the tendency
7 to deceive a substantial segment of its audience.” (Verdict 1.) Specifically, the jury
8 viewed exhibits that reflect the statements Casden authorized or made himself, and
9 they heard testimony from Casden acknowledging his discovery admissions that those
10 statements were not true. (See Opp’n Mot. JMOL 2–3, ECF No. 234 (citing Exs. 36,
11 72, 91, 108; Tr. 374–75).) This evidence is sufficient such that a reasonable jury could
12 find the statements literally false. Consequently, MET did not have to prove
13 deception, as it is presumed as a matter of law. See Avid, 33 F. App’x at 856
14 (“Because these representations were literally false, the statements carry with them the
15 presumption that consumers relied on and were deceived by them.”). Regardless of
16 the presumption, testimony and evidence supports the jury’s further findings that the
17 statements were deceptive, material, and caused MET to lose business. (See, e.g.,
18 Tr. 170:3–4, 172:8–10, 173:6–7, 173:23–25, 178:3–17 (testimony from MET’s CEO
19 that MET lost clients to Hologenix linked to Casden’s “false FDA claims”).)
20 (b) Disgorgement of Casden’s salary as profits and trebling
21 Casden also argues there is no legally sufficient basis for the Court’s finding
22 that Casden’s salary resulted with reasonable certainty from his false statements or for
23 the Court’s trebling of that sum. (Mot. JMOL 17–20.)
24 Under 15 U.S.C. § 1117(a), the Court has the discretion to award up to three
25 times the “financial benefit [Casden] received because of the [false] advertising.”
26 U-Haul Intern., Inc. v. Jartran, Inc., 793 F.2d 1034, 1042 (9th Cir. 1986). In assessing
27 this financial benefit, it is the plaintiff’s “burden to show with reasonable certainty
28 [the defendant’s] gross sales from [the infringing activity].” Rolex Watch, U.S.A., Inc.
1 v. Michel Co., 179 F.3d 704, 712 (9th Cir. 1999). “Once the plaintiff demonstrates
2 gross profits, they are presumed to be the result of the infringing activity.” Lindy Pen
3 Co. v. Bic Pen Corp., 982 F.2d 1400, 1408 (9th Cir. 1993), abrogated on other
4 grounds by SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179 (9th Cir.
5 2016). “The defendant thereafter bears the burden of showing which, if any, of its
6 total sales are not attributable to the infringing activity, and, additionally, any
7 permissible deductions for overhead.” Id.
8 As the Court found in the PTO, MET presented evidence at trial that Casden
9 received an annual salary of $300,000 as CEO of Hologenix since 2019. (PTO 11;
10 Tr. 316:11.) It is undisputed that the only product Hologenix sells is Celliant, such
11 that all salary paid to Casden from Hologenix derives from the sales of Celliant. (See
12 PTO 11.) Accordingly, the Court determined that Casden’s salary for the relevant time
13 period when he made the false statements should be considered his “profits” from
14 engaging in the false advertising of Celliant. (Id.) As Casden offered no evidence that
15 his salary from Hologenix was not attributable to his false advertising or that any
16 deductions should apply, the Court awarded disgorgement of Casden’s salary for the
17 relevant time period as Casden’s profits derived from his false advertising of Celliant.
18 (Id. (calculating that total to be $983,171).)
19 Further, the evidence was more than adequate to support the jury’s and the
20 Court’s findings that Casden’s false statements were “deliberately and intentionally
21 false.” (PTO 12 (quoting Verdict 1 and discussing the “substantial evidence of the
22 willful and deliberate nature of Casden’s false advertising”).) The Court determined
23 that the deliberate and willful nature of Casden’s conduct warranted trebling the award
24 of Casden’s financial benefit. (Id. at 12–14). This trebling is not a “penalty” or
25 “windfall,” as Casden argues. (Mot. 18–19.) Rather, the trebled amount is the amount
26 the Court found to be “just, according to the circumstances of the case.” 15 U.S.C.
27 § 1117(a).
28
1 2. Tortious Interference—Rule 50(b)
2 The Court granted MET’s Rule 50(a) motion as to MET’s claim for tortious
3 interference with contractual relations and rejected Casden’s agency immunity and
4 Noerr-Pennington doctrine defenses. (Tr. 491–92; id. at 481.) At Casden’s request,
5 the Court submitted to the jury for advisory findings two questions related to Casden’s
6 agency immunity defense. (Id. at 496–99 (colloquy on two advisory questions);
7 Verdict 4 (Nos. 15–16).) The jury issued an advisory finding consistent with the
8 Court’s ruling, that Casden was acting to advance his own personal interests when he
9 interfered with the Settlement Agreement. (Verdict 4 (No. 16).) The Court awarded
10 MET the monetary value of the Settlement Agreement in damages, $2.5 million.
11 (PTO 10.)
12 In challenging the advisory verdict and judgment on MET’s tortious
13 interference cause of action, Casden contends there is no legally sufficient basis for a
14 finding in MET’s favor, that (a) “the Noerr-Pennington doctrine did not shield Casden
15 from liability”; (b) “the agency immunity doctrine did not shield Casden from
16 liability”; and (c) Casden’s statements breached the Settlement Agreement or caused
17 $2.5 million in damages. (Mot. JMOL 2–3, 20–28.) He also argues that the jury’s
18 advisory tortious interference verdict awarding MET $1 nominal damages was a final
19 determination, binding on the Court. (Id. at 23–24.)
20 Casden did not raise in his Rule 50(a) motion that his statements did not violate
21 or breach the Settlement Agreement; or that they did not cause $2.5 million in
22 damages; or that the jury’s advisory agent-immunity-verdict would somehow render a
23 final binding damages figure. (See generally Tr. 474–81, 492–94.) Thus, he may not
24 raise these as bases for his renewed motion under Rule 50(b). E.E.O.C., 581 F.3d
25 at 961. As to his remaining grounds, the Court finds the evidence admitted at trial was
26 adequate to support the Court’s and the jury’s findings, as follows.
27
28
1 (a) Noerr-Pennington doctrine
2 The Court and the parties addressed Casden’s Noerr-Pennington arguments at
3 length, before, during, and after trial. The Court concluded that the Noerr-Pennington
4 doctrine was inapplicable to MET’s tortious interference claim, including because the
5 gravamen of the claim is non-petitioning activity, liability is premised on more than
6 only Casden’s vote for Hologenix’s bankruptcy, and MET’s claim for tortious
7 interference with the Settlement Agreement is not in the nature of anti-trust.
8 In his Rule 50(b) motion, Casden recycles the Noerr-Pennington arguments he
9 has previously raised. (See generally Def.’s Pocket Br., ECF No. 171; Tr. 23–27;
10 Mot. 20–23.) The Court finds them no more compelling now than when it determined
11 the doctrine was inapplicable before the trial began. (See Tr. 6:15
12 (“Noerr-Pennington, that’s—it’s not an issue.”); id. at 25:17–20 (“[Y]ou want to use
13 Noerr-Pennington, and you’re just trying to find a way to somehow insert that into
14 this case. I don’t see that it’s applicable at all.”). Accordingly, for all the reasons
15 previously discussed, the Noerr-Pennington doctrine does not apply here to immunize
16 Casden from liability on MET’s tortious interference cause of action.2
17 (b) Agency immunity doctrine
18 Similarly, the Court and the parties addressed Casden’s agency immunity
19 arguments at length, before, during, and after trial. (Prop. Pretrial Conf. Order 11,
20 ECF No. 129; Tr. 17–20, 459–62, 476–81, 492–99.) After the conclusion of evidence,
21 the Court determined that the agency immunity defense was inapplicable in light of
22 the exceptional facts of this case and Casden’s tortious conduct for his own personal
23 interests. (PTO 7–9.)
24 In his Rule 50(b) motion, Casden repeats the agency immunity arguments he
25 has previously raised. (See Mot. 26–28.) As with the Noerr-Pennington defense, the
26
2 As the Court finds the gravamen of MET’s tortious interference claim is non-petitioning activity, it
27
need not and does not reach the question of whether Hologenix’s bankruptcy filing was a sham.
28 Accordingly, Casden’s supplemental authority, Relevant Grp., LLC v. Nourmand, 116 F.4th 917
(9th Cir. 2024), is inapposite. (See Statement Recent Decision, ECF No. 251.)
1 Court finds Casden’s agency immunity arguments no more compelling now than when
2 the Court granted MET’s Rule 50(a) motion on the tortious interference cause of
3 action. The Court already rejected Casden’s agency immunity defense. (Tr. 492:7–
4 11.) It expanded on that conclusion in the PTO, finding that “Casden tortiously
5 interfered with the Settlement Agreement for his own personal benefit such that the
6 agency immunity defense does not apply.” (PTO 7–9.) Accordingly, for the reasons
7 stated on the record and in the PTO, the agency immunity doctrine does not immunize
8 Casden from liability on MET’s tortious interference cause of action.
9 (c) Advisory damages verdict
10 Notwithstanding Casden’s failure to raise the argument in his Rule 50(a)
11 motion, that the jury’s advisory tortious interference verdict should render a final and
12 binding damages figure, the Court finds it would be beneficial to address this issue, as
13 it is relevant to arguments in Casden’s other post-trial motions as well.
14 MET argued in its Rule 50(a) motion that it was entitled to judgment as a matter
15 of law on the entirety of its tortious interference claim, including the element of harm,
16 which it argued included the $2.5 million owed under the breached Settlement
17 Agreement. (Tr. 461:5–7.) When Casden subsequently argued his Rule 50(a) motion,
18 he conceded that all elements of the tortious interference claim had been met, except
19 the agency immunity defense. (Id. at 476:6–8 (“On the intentional interference with
20 contractual relations, all elements are met except for the agency element which is
21 plainly not met.”).) And again, after the Court’s tentative ruling, Casden repeated that
22 concession. (Id. at 492:22–24 (“Mr. Casden at this point concedes that all of the
23 elements but for the agency defense or agency immunity have been met by
24 Plaintiff.”).) “All elements” necessarily includes the elements of causation and harm.
25 (See PTO 5–7 (finding each element satisfied by evidence admitted at trial).) Casden
26 did not argue otherwise in opposing MET’s Rule 50(a) motion or in arguing in support
27 of his own. (See generally Tr. 474–81, 492–94.)
28
1 Thus, when the Court granted MET’s Rule 50(a) motion on tortious interference
2 cause of action, that grant included finding that MET had established its harm: “The
3 Court has concluded that at least in its view plaintiff is entitled to judgment as a matter
4 of law with respect to the tortious interference with contractual relations cause of
5 action.” (Id. at 491:17–21.) “The Court has actually been somewhat expressive in
6 terms of its view of that particular cause of action and the facts underlying that claim.
7 And the Court doesn’t believe that it’s seriously a close call.” (Id. at 491:22–25.)
8 In granting judgment as a matter of law on the tortious interference claim, the
9 Court rejected Casden’s agency immunity defense and found that Casden was acting
10 in his own personal interests when he interfered with the Settlement Agreement. (Id.
11 at 492:7–11.) Although the Court granted Casden’s request to submit two questions
12 regarding the agency immunity defense to the jury for an advisory finding, (PTO 9),
13 the Court made it clear that the jury’s findings would not be binding: “Keep
14 something in mind. These issues that we submit to the jury and whatever their
15 conclusions are, are advisory only. And I’m free to accept them or reject them.”
16 (Tr. 496:11–14). See Hannibal Pictures, Inc. v. Sonja Prods., LLC, No. 2:06-cv-01814
17 WDK (VBKx), 2009 WL 10673572, at *1 (C.D. Cal. Aug. 31, 2009) (stating the
18 accepted rule that a district court may “accept or reject the advisory jury’s verdict,
19 [and] the advisory jury’s decision is not binding on the district court”), aff’d, 432 F.
20 App’x 700 (9th Cir. 2011); see also Ashland v. Ling–Temco–Vought, Inc., 711 F.2d
21 1431, 1438 (9th Cir. 1983) (treating findings of the court, when tried with an advisory
22 jury, “as if there had been no verdict from an advisory jury”); Cutter Lab’ys v. R.W.
23 Ogle & Co., 151 Cal. App. 2d 410, 418–19 (1957) (noting, when the jury’s verdict is
24 “merely advisory,” that such verdict “does not bind the court”). The advisory jury’s
25 verdict was just that: advisory.
26 Further, Casden requested only that the two agency immunity defense questions
27 be submitted to the advisory jury—he did not seek to also submit the question of
28 damages, nor any other element of the cause of action. (See Tr. 493:22–25 (requesting
1 advisory findings on only the “agency immunity question”), 497:6–10 (“Our proposal
2 would be to submit . . . this agency question in[] two questions . . . for an advisory
3 opinion.”).) As stated in the PTO, the damages line on the verdict form was present
4 only to avoid signaling that a determination had already been made on the cause of
5 action or any of its constituent parts. (PTO 10.) Thus, the advisory questions
6 submitted to the jury included only whether Casden acted as an agent and/or in his
7 own personal best interests. (Verdict 4 (Nos. 15–16).) The advisory question was not
8 what damages to award for the tortious interference cause of action, and the jury’s
9 finding on that question is not binding.
10 C. Conclusion—Rule 50(b)
11 Having considered the entire record and construed reasonable inferences in
12 favor of the verdict and judgment, and without making credibility determinations or
13 weighing the evidence, the Court finds substantial evidence exists to support the jury’s
14 and the Court’s findings in the verdict, PTO, and judgment, as discussed above.
15 Further, the Court concludes there is a legally sufficient basis for the findings that
16 Noerr-Pennington and agency immunity doctrines do not apply to shield Casden from
17 liability on the tortious interference claim. Accordingly, the Court DENIES Casden’s
18 renewed Rule 50(b) motion for judgment as a matter of law. (ECF No. 218.)
19 IV. MOTION FOR NEW TRIAL—RULE 59(a)
20 Casden moves in the alternative for a new trial pursuant to Rule 59(a). He
21 argues that a new trial is necessary because the jury’s verdict is against the clear
22 weight of the evidence, the Court committed prejudicial evidentiary errors, and the
23 Court awarded excessive damages. (Mot. JMOL 3, 12.)
24 A. Legal Standard—Rule 59(a)
25 Rule 59(a) governs motions for a new trial. Kim v. BMW Fin. Servs. NA, LLC,
26 142 F. Supp. 3d 935, 946 (C.D. Cal. 2015). Under Rule 59(a), a court may grant a
27 new trial “on all or part of the issues, ‘for any reason for which a new trial has
28 heretofore been granted in an action at law in federal court.’” Id. (quoting Fed. R.
1 Civ. P. 59(a)). This includes a verdict that is “contrary to the clear weight of the
2 evidence, or is based upon evidence which is false, or to prevent, in the sound
3 discretion of the trial court, a miscarriage of justice.” Silver Sage Partners, Ltd. v.
4 City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001). To establish a
5 miscarriage of justice on the basis of legal error, the error must have substantially
6 prejudiced a party. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir.
7 1995); see also E.E.O.C. v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997) (stating
8 that a new trial may be granted “only if the verdict is against the great weight of the
9 evidence or it is quite clear that the jury has reached a seriously erroneous result”
10 (internal quotation marks omitted)).
11 Unlike a Rule 50(b) motion, a motion for a new trial is not limited by a
12 pre-verdict Rule 50(a) motion. See Medisim Ltd. v. BestMed, LLC, 758 F.3d 1352,
13 1359 (Fed. Cir. 2014). Additionally, “[t]he district court can weigh the evidence and
14 assess the credibility of the witnesses,” and need not “view the trial evidence in the
15 light most favorable to the verdict.” Experience Hendrix L.L.C. v.
16 Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014). Still, “a district court
17 may not grant a new trial simply because it would have arrived at a different verdict.”
18 Silver Sage, 251 F.3d at 819. Indeed, it is the court’s duty “to reconcile the jury’s
19 special verdict responses on any reasonable theory consistent with the evidence.” Guy
20 v. City of San Diego, 608 F.3d 582, 586 (9th Cir. 2010) (quoting Pierce v. S. Pac.
21 Transp. Co., 823 F.2d 1366, 1370 (9th Cir. 1987)). Ultimately, “[t]he grant of a new
22 trial is ‘confided almost entirely to the exercise of discretion on the part of the trial
23 court.’” Murphy, 914 F.2d at 186 (quoting Allied Chem. Corp. v. Daiflon, Inc.,
24 449 U.S. 33, 36 (1980)).
25 B. Discussion—Rule 59(a)
26 Casden raises five grounds for a new trial: (1) the Court’s disgorgement of
27 Casden’s pre-tax salary as profits (Lanham Act); (2) the Court’s finding that this case
28 was “exceptional” (Lanham Act); (3) the Court’s “exclusion of the Noerr-Pennington
1 doctrine” defense (tortious interference); (4) the Court’s “misapplication of the law
2 with respect to the agency immunity defense” (tortious interference); and (5) the
3 Court’s “excessive and incorrect” tortious interference damages award. (Mot.
4 JMOL 3.) These grounds “overlap with those raised in Casden’s renewed motion for
5 judgment as a matter of law,” and Casden submits the same arguments addressed
6 above as supporting a new trial. (Mot. JMOL 12, 29–30 (“For the reasons set forth
7 above . . . the Court should order a new trial, in its discretion, under Rule 59.”).)
8 Casden does not specify which of these grounds he contends are “against the clear
9 weight of the evidence” and which he contends constitute “prejudicial evidentiary
10 error.” (See Mot. JMOL 3.) As such, with the exception of his argument that the
11 tortious inference damages are excessive, the Court evaluates each of Casden’s
12 grounds for a new trial with respect to both the clear weight of the evidence and
13 prejudicial evidentiary error.
14 Under Rule 59(a), unlike Rule 50(b), the Court independently weighs the
15 evidence and assesses witness credibility. See Moist Cold Refrigerator Co. v. Lou
16 Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957) (distinguishing the disparate standards
17 for reviewing evidence on a motion for new trial as opposed to a motion for judgment
18 as a matter of law). As the Court finds Casden’s arguments unavailing, the Court
19 DENIES the Rule 59(a) motion, for the following reasons.
20 1. Disgorgement (Lanham Act)—Rule 59(a)
21 Casden seeks a new trial based on the “Court’s disgorgement of Casden’s
22 pre-tax salary as ‘profits’ with respect to MET’s Lanham Act claim, including the lack
23 of any reasonable certainty that any false statements caused Casden to receive the
24 salary, or the amount of the salary, and the Court’s trebling of the disgorgement.”
25 (Mot. JMOL 3, 17–20.) For the same reasons discussed above, the Court’s
26 determination in the PTO, that Casden’s salary should be deemed as profits for the
27 purposes of Lanham Act and under the unique circumstances of this case, is not
28 against the clear weight of evidence or error. See above Section III.B.I.(b).
1 2. Exceptional (Lanham Act)—Rule 59(a)
2 Casden seeks a new trial based on the “Court’s finding that this was an
3 ‘exceptional case’ under the Lanham Act for purposes of awarding MET attorneys’
4 fees.” (Mot. JMOL 3, 28–29.)
5 The Court’s finding that the case is exceptional for the purposes of awarding
6 attorneys’ fees is neither against the clear weight of the evidence nor an error of law.
7 Under the Lanham Act, “[t]he court in exceptional cases may award reasonable
8 attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). “[P]laintiffs may be
9 considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any
10 significant issue in litigation which achieves some of the benefit the parties sought in
11 bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “Exceptional cases”
12 may include those in which a defendant’s conduct is “fraudulent, deliberate, or
13 willful.” Horphag Rsch. Ltd. v. Garcia, 475 F.3d 1029, 1039 (9th Cir. 2007). In
14 determining whether a case is exceptional for awarding fees, the court exercises it
15 discretion based on the “totality of the circumstances” using a preponderance of the
16 evidence standard. SunEarth, 839 F.3d at 1181; 15 U.S.C. § 1117(a).
17 As noted, the jury returned a verdict in MET’s favor on its Lanham Act claim,
18 including specific findings that Casden made false statements of fact about his own or
19 another’s product that were “deliberately or intentionally false.” (Verdict 1.) The
20 evidence admitted at trial easily supported the jury’s findings. (See PTO 12
21 (discussing abundant evidence at trial supporting that Casden’s statements were
22 “deliberately or intentionally false”).) In evaluating whether the case should be
23 considered “exceptional” under the Lanham Act, the Court found the deliberate and
24 willful nature of Casden’s conduct strongly supported such a finding. (Id. at 12–13.)
25 As this is a sufficient basis for finding the case exceptional under the Lanham Act,
26 Horphag, 475 F.3d at 1039, Casden’s further arguments on this point are
27 unpersuasive, (see Mot. JMOL 28–29).
28
1 Accordingly, the Court’s determination, that the deliberate and willful nature of
2 Casden’s conduct renders this an exceptional case for which MET is entitled to
3 attorneys’ fees, is not against the clear weight of evidence or error.
4 3. & 4. Excluded Defense Doctrines (Tortious Interference)—Rule 59(a)
5 Casden seeks a new trial based on the “Court’s exclusion of the
6 Noerr-Pennington doctrine” and the “Court’s misapplication of the law with respect to
7 the agency immunity defense.” (Mot. JMOL 3, 20–23, 26–28.)
8 For the same reasons discussed above, the Court’s determination, that the
9 Noerr-Pennington doctrine does not apply to immunize Casden from liability on
10 MET’s tortious interference cause of action, is not against the clear weight of evidence
11 or error. See above Section III.B.2.(a). Similarly, the Court’s determination, that
12 “Casden tortiously interfered with the Settlement Agreement for his own personal
13 benefit such that the agency immunity defense does not apply,” (PTO 7–9), is also not
14 against the clear weight of evidence or error. See above Section III.B.2.(b).
15 The Court and the parties have addressed these doctrines at length. (See, e.g.,
16 Def.’s Pocket Brief; Pl.’s Pocket Brief, ECF No. 172; Tr. 6–25, 455–94; PTO 7–9.)
17 Based on the law and the evidence at trial, the Court found Noerr-Pennington
18 inapplicable and agency immunity precluded by Casden’s conduct for personal
19 benefit. As Casden preserves these issues for appeal, the Court welcomes clarity and
20 guidance from the Ninth Circuit.
21 5. Excessive Damages (Tortious Interference)—Rule 59(a)
22 Finally, Casden argues a new trial is necessary based on the “Court’s excessive
23 and incorrect damages award with respect to MET’s tortious interference with
24 contractual relations cause of action.” (Mot. JMOL 3.) In the body of the motion,
25 Casden’s only argument touching upon tortious interference damages is that the
26 evidence does not support that his false statements caused Hologenix to breach the
27 Settlement Agreement, and even if his statements did, there is no evidence that they
28 caused MET $2.5 million in damages. (Id. at 23–26.)
1 Casden’s arguments here contradict express concessions he made during his
2 Rule 50(a) motion. As discussed, see above Section III.B.2.(c), MET argued that it
3 was entitled to judgment as a matter of law on the entirety of its tortious interference
4 claim. MET asserts that Casden’s tortious interference harmed MET by depriving it
5 of the $2.5 million. (Tr. 459:4–61:12.) Casden then conceded that MET had
6 established “all elements” of the tortious interference claim. (See id. at 476:6–8,
7 492:22–24.) The only issue he reserved was that of agency immunity. (Id.) Thus,
8 Casden conceded, as MET had argued, that Casden’s false statements caused
9 Hologenix to breach the Settlement Agreement and harmed MET, including depriving
10 MET of the monetary value of its bargain.
11 Casden argues that the Settlement Agreement does not prohibit him from
12 making false statements because it only required Hologenix to request entry of a
13 permanent injunction prohibiting those statements. (See Mot. JMOL 24, 25 (arguing
14 that the Settlement Agreement only required Hologenix to request that the Court enter
15 a permanent injunction prohibiting specific false statements; it did not itself prohibit
16 those statements).) This nonsensically exalts form over substance. The evidence
17 admitted at trial established that a significant aspect of the Settlement Agreement was
18 to stop Hologenix and Casden’s repetition of the false statements. The parties in that
19 case resolved this conflict by agreeing in the Settlement Agreement that specific
20 statements would be prohibited and effectuated that agreement by stipulating to a
21 permanent injunction. Casden helped negotiate those terms. His immediate, willful,
22 and continued use of the very false statements he had agreed would be prohibited
23 violated the agreement.
24 Finally, the Court’s award of $2.5 million in damages on the tortious
25 interference cause of action is within reason. See Sole Energy Co. v. Petrominerals
26 Corp., 128 Cal. App. 4th 212, 232 (2005) (noting the measure of damages for tortious
27 interference with contract includes “[t]he financial loss of the benefits of the
28 [contract]” (alterations in original).). Evidence at trial established that the Settlement
1 Agreement with which Casden interfered had a monetary value of $2.5 million. MET
2 argued Casden’s tortious conduct deprived it of this value, and Casden conceded MET
3 established the entire cause of action. Accordingly, the Court’s award of the value of
4 the contract is consistent with the record, supported by and based on the evidence, and
5 not grossly excessive. Cf. Bigler-Engler v. Breg, Inc., 7 Cal. App. 5th 276, 299, 303
6 (2017) (finding a damages award “excessive” where it “shock[ed] the conscience and
7 suggest[ed] passion, prejudice or corruption on the part of the” factfinder).
8 C. Conclusion—Rule 59(a)
9 Having reviewed the entire record, weighed the evidence, and assessed witness
10 credibility pursuant to Rule 59(a), the Court finds the evidence supports the jury’s
11 verdict and the Court’s judgment, neither of which amounts to a miscarriage of justice.
12 Accordingly, in its discretion, the Court DENIES Casden’s Rule 59(a) motion for a
13 new trial. (ECF No. 218.)
14 V. MOTION TO ALTER OR AMEND JUDGMENT—RULE 59(e)
15 Casden also moves to alter or amend the judgment under Rule 59(e), on the
16 same grounds as the above motions. (See Mot. AJ 2, 10.) Indeed, the issues and
17 arguments raised in this motion are identical to those in his motion for a new trial.
18 (Compare Mot. JMOL 2, with Mot. AJ 2.)
19 A. Legal Standard—Rule 59(e)
20 “Although Rule 59(e) permits a district court to reconsider and amend a
21 previous [judgment], the rule offers an extraordinary remedy, to be used sparingly in
22 the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.
23 Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted).
24 “[A] motion for reconsideration [under Rule 59(e)] should not be granted, absent
25 highly unusual circumstances, unless the district court is presented with newly
26 discovered evidence,” clear error, an intervening change in controlling law, or
27 manifest injustice. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); Turner v.
28 Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).
1 A motion to alter or amend a judgment “may not be used to relitigate old
2 matters, or to raise arguments or present evidence that could have been raised prior to
3 the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008);
4 Kona, 229 F.3d at 890. Therefore, a court may disregard “repeated legal arguments”
5 and “facts that were available earlier in the proceedings.” Zimmerman v. City of
6 Oakland, 255 F.3d 734, 740 (9th Cir. 2001). A district court has considerable
7 discretion when considering a motion to amend a judgment under Rule 59(e).
8 McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.1999); Arteaga v. Asset
9 Acceptance, 733 F. Supp. 2d 1218, 1236 (E.D. Cal. 2010).
10 B. Discussion—Rule 59(e)
11 Casden argues the judgment must be amended with respect to the Lanham Act
12 and tortious interference claims, to correct manifest errors of law and fact and to
13 prevent manifest injustice. (Mot. AJ 10.) Casden’s arguments are based on many of
14 the same grounds as in his prior two motions. As Casden’s arguments are again
15 unavailing, the Court DENIES the Rule 59(e) motion, for the following reasons.
16 1. Lanham Act—Rule 59(e)
17 Casden seeks to amend the judgment as to the Lanham Act claim, arguing the
18 Court erred by ordering disgorgement of Casden’s salary as profits, by trebling those
19 profits, and by finding this case “exceptional” under the Lanham Act for purposes of
20 awarding attorneys’ fees. (Id. at 10 (Nos. 4 & 5).)
21 As to disgorgement, in his Rule 50(a) motion, Casden argued that his salary
22 should not be considered profits under the Lanham Act. (Tr. 475:15–476:4.)
23 Therefore, the Court disregards this repeated argument. (Compare id., with Mot.
24 AJ 24–25.) Zimmerman, 255 F.3d at 740; Kona, 229 F.3d at 890. And in any event,
25 the Court addressed this argument above.
26 The Court also already addressed trebling and “exceptional.” See above
27 Sections III.B.1.(b), IV.B.2. As to trebling, the Court found that the deliberate and
28 willful nature of Casden’s conduct warranted trebling the award of Casden’s “profits”
1 under the Lanham Act “[a]ccording to the circumstances of the case.” (PTO 12
2 (quoting 15 U.S.C. § 1117(a)).) Casden argues the Lanham Act permits monetary
3 damages to be trebled, but that the Court exceeded its discretion by trebling
4 disgorgement here. (Mot. AJ 23.) However, in the next sentence, he acknowledges
5 that “the Court has discretion to adjust the amount of the disgorgement of Casden’s
6 ‘profits.’” (Id. (citing 15 U.S.C. § 1117(a)).) It exercised that discretion here by
7 trebling Casden’s profits. (PTO 15.) Turning to “exceptional,” the Court found that
8 the deliberate and willful nature of Casden’s conduct supported finding the case
9 exceptional under the Lanham Act for purposes of awarding attorneys’ fees. (Id.
10 at 11–13.) Therefore, for the reasons previously stated, the Court does not find the
11 trebled award or exceptional finding to be the result of a manifest error or to constitute
12 manifest injustice.
13 2. Tortious Interference—Rule 59(e)
14 Casden seeks to amend the judgment on the tortious interference cause of
15 action, arguing the Court erred by excluding Casden’s Noerr-Pennington and agency
16 immunity defenses, and by awarding excessive damages. (Mot. AJ 10 (Nos. 1–3).)
17 Casden raised the Noerr-Pennington and agency immunity defenses prior to
18 judgment, in pretrial briefing, in pretrial argument, and during his Rule 50(a) motion.
19 Therefore, the Court need not address these repeated arguments. Zimmerman,
20 255 F.3d at 740; Kona, 229 F.3d at 890.
21 Casden could have argued that awarding the monetary value of the Settlement
22 Agreement was excessive before entry of judgment, but he did not. Specifically, MET
23 raised the issue in its Rule 50(a) motion when it argued it was entitled to $2.5 million
24 on the tortious interference claim. (Tr. 461:5–12.) As Casden could have, but failed
25 to, raised this challenge before judgment, he may not seek an amended judgment on
26 this basis now. See Exxon Shipping, 554 U.S. at 485 n.5; Kona, 229 F.3d at 890. In
27 any event, the Court has addressed Casden’s argument regarding excessive tortious
28 interference damages above. See above Section IV.B.5. For the reasons previously
1 stated, the Court does not find the awarded tortious interference damages to be the
2 result of a manifest error or to constitute manifest injustice.
3 C. Conclusion—Rule 59(e)
4 For the reasons discussed, the Court declines to grant the “extraordinary
5 remedy” of Rule 59(e), see Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014), and
6 therefore DENIES Casden’s motion to alter or amend the judgment, (ECF No. 219).
7 VI. MOTION TO WAIVE BOND & STAY ENFORCEMENT
8 The Court next addresses Casden’s Motion to Waive Requirement of Bond and
9 Stay Enforcement of Judgment. (Mot. Waive & Stay.)
10 Through this motion, Casden seeks an order staying execution of the monetary
11 component of the Judgment pending (1) resolution of his post-trial motions and
12 (2) completion of appellate proceedings. (Id. at 8.) If the Court declines to issue this
13 relief, Casden asks the Court for a stay pending resolution of a motion to stay to be
14 filed with the Ninth Circuit. (Id.) Additionally, Caden moves for an order permitting
15 him to appeal without posting a supersedeas bond, or in the alternative, with bond in
16 an amount less than the full amount required by the Judgment. (Id.)
17 A. Legal Standard—Waive & Stay
18 A final judgment is generally enforceable thirty days after it is entered even
19 while an appeal of that judgment is pending. Fed R. Civ. P. 62(a). However, a party
20 may stay enforcement of a judgment if it posts a supersedeas bond. See Fed R. Civ.
21 P. 62(b). “The purpose of a supersedeas bond is to secure the appellees from a loss
22 resulting from the stay of execution.” Rachel v. Banana Republic, Inc., 831 F.2d
23 1503, 1505 n.1 (9th Cir. 1987).
24 “District courts have inherent discretionary authority in setting supersedeas
25 bonds.” Id. This includes “broad discretionary power to waive the bond requirement
26 if it sees fit.” Cotton ex rel. McClure v. City of Eureka, 860 F. Supp. 2d 999, 1027
27 (N.D. Cal. 2012). The party requesting waiver, here Casden, “has the burden to
28 ‘objectively demonstrate’ the reasons for departing from the usual requirement of a
1 full supersedeas bond.” Ketab Corp. v. Mesriani L. Grp., No. 2:14-cv-07241-RSWL
2 (MRWx), 2016 WL 5921932, at *2 (C.D. Cal. Feb. 1, 2016) (quoting McClure,
3 860 F. Supp. 2d at 1028).
4 In determining whether to waive or modify the bond requirement, courts in the
5 Ninth Circuit consider the factors set forth in Dillon v. City of Chicago, 866 F.2d 902
6 (7th Cir. 1988). See, e.g., ConsumerDirect, Inc. v. Pentius, LLC, No. 8:21-cv-01968-
7 JVS (ADSx), 2024 WL 4329077, at *2 (C.D. Cal. Sept. 20, 2024); Hoffman v.
8 Markowitz, No 2:16-cv-01972-SJO (FFMx), 2017 WL 8292769, at *3 (C.D. Cal.
9 Oct. 4, 2017). These factors are:
10 (1) the complexity of the collection process; (2) the amount of time
required to obtain a judgment after it is affirmed on appeal; (3) the degree
11
of confidence that the district court has in the availability of funds to pay
12 the judgment; (4) whether the defendant’s ability to pay the judgment is
13 so plain that the cost of a bond would be a waste of money; and
(5) whether the defendant is in such a precarious financial situation that
14 the requirement to post a bond would place other creditors of the
15 defendant in an insecure position.
16 Dillon, 866 F.2d at 904–05 (internal quotation marks and citations omitted).
17 B. Discussion—Waive & Stay
18 Casden devotes less than one page of his motion to the merits. (Mot. Waive &
19 Stay 11.) He briefly addresses only two of the five Dillon factors: complexity of the
20 collection process and time required to obtain judgment. (See id.; Reply ISO Mot.
21 Waive & Stay (“Reply Waive & Stay”) 6–7, ECF No. 239.) Thus, the Court “need
22 not consider” the three unaddressed factors. Hardesty v. Sacramento Metro. Air
23 Quality Mgmt. Dist., No. 2:10-cv-02414-KJM-KJN, 2019 WL 2715616, at *4
24 (E.D. Cal. June 28, 2019) (quoting McClure, 860 F. Supp. 2d at 1028–29).
25 In any event, the Court is not convinced the unaddressed factors could weigh in
26 Caden’s favor. As to factors three and four—confidence in and plainness of ability to
27 pay—Casden is in bankruptcy, which indicates he does not have funds available to
28 pay the judgment or the bond. As to factor five—effect on other creditors—Casden is
1 already in bankruptcy and the automatic stay applies. (See 11 U.S.C. § 362.) Without
2 more, the Court cannot conclude that the requirement to post a bond would place
3 Casden’s other creditors in an insecure position; Casden’s bankruptcy has presumably
4 already done this. And even if the factors Casden does address—complexity and
5 timeliness—weigh in his favor, he offers no case law showing that these two factors
6 alone would warrant waiving or decreasing a supersedeas bond. (See generally Mot.
7 Waive & Stay; Reply Waive & Stay.) Regardless, these two factors do not weigh in
8 his favor.
9 First, the collection process here is complex. Casden conclusorily asserts that
10 “[t]he collection process will not be complex because [he] is an individual (not a
11 corporate entity) and is domiciled in California and is currently in bankruptcy.” (Mot.
12 Waive & Stay 11.) He does not offer any explanation or case law to support this
13 conclusion. In fact, Casden’s bankruptcy makes the collection process more complex,
14 not less, and will require MET to navigate that process to obtain payment. Also,
15 Casden’s testimony in connection with that bankruptcy reveals that he owns property
16 in trust and has at least one trust that he claims is protected from creditors. (Decl.
17 Nicole A. Sullivan ISO Opp’n Mot. Waive & Stay, Ex. C (“Rule 2004 Examination
18 Tr.”) at 228:8–13, 233:10–17, ECF No. 233-4.) This supports a finding that the
19 collection process will be complex.
20 Second, Casden has not met his burden to show that the amount of time
21 required to obtain a judgment after it is affirmed on appeal weighs in his favor. Once
22 again, Casden’s argument is conclusory and devoid of supporting case law. (See Mot.
23 Waive & Stay 11 (“The amount of time required to obtain a judgment after it is
24 affirmed on appeal is short.”).) Courts in this district have found that this factor may
25 weigh against waiver even when a party has already filed a notice of appeal. See, e.g.,
26 MAG Aerospace Indus., LLC v. Precise Aerospace Mfg., Inc., No. 5:18-cv-01096-
27 RGK (JCx), 2019 WL 13020831, at *2 (C.D. Cal. Aug. 26, 2019). Delay may even
28
1 be longer in this case where MET may not be able to collect until after Casden’s
2 bankruptcy concludes.
3 As Casden has not met his burden to show that any of the Dillon factors weigh
4 in his favor, the Court finds they do not support waiver or modification of the bond
5 requirement or a stay of execution.
6 Casden also invokes the factors in Nken v. Holder, 556 U.S. 418 (2009), to
7 support waiver and a stay. (Mot. Waive & Stay 11.) To the extent these factors may
8 be applicable, the Court finds that they do not support a stay. Under Nken, courts
9 consider four factors in determining whether to grant a stay of enforcement:
10 (1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably
11
injured absent a stay; (3) whether issuance of the stay will substantially
12 injure the other parties interested in the proceeding; and (4) where the
13 public interest lies.
14 Nken, 556 U.S. at 426. “The first two factors . . . are the most critical.” Id. at 434.
15 And courts only “consider the last two factors if the first two factors are satisfied.”
16 Doe #1 v. Trump, 957 F.3d 1050, 1058 (9th Cir. 2020). In fact, a court’s analysis can
17 conclude if the applicant does not make a strong showing that he is likely to succeed
18 on the merits, “given that if a stay applicant cannot show irreparable harm, a stay may
19 not issue, regardless of the petitioner’s proof regarding the other stay factors.” Id.
20 at 1061 (internal quotation marks omitted).
21 Applying Nken, Casden asserts that “there is an opportunity” to succeed on the
22 merits and “[m]aintaining the status quo and staying enforcement until resolution of
23 the matters will avoid irreparable harm to [him] and will not substantially injure
24 MET.” (Mot. Waive & Stay 11.) However, the question under Nken is not whether
25 Casden has “an opportunity” to succeed on the merits, (id.), but whether he “has made
26 a strong showing that he is likely to succeed on the merits,” Nken, 556 U.S. at 426.
27 He has not met this “high burden.” Doe #1, 957 F.3d at 1070. For the reasons stated
28 elsewhere in this Order, the Court finds Casden could make no such showing.
1 Additionally, Casden has not provided any evidence or argument to support his
2 conclusory assertion that he would be irreparably harmed absent a stay. After all, he
3 has already filed for bankruptcy. Finally, Casden only conclusorily addresses the third
4 factor and does not address the fourth. (See generally Mot. Waive & Stay 11; Reply
5 Waive & Stay.)
6 As Casden has not demonstrated that any of these factors support a stay, the
7 Court concludes that Nken also does not favor waiver or a stay of execution. See
8 Doe #1, 957 F.3d at 1070 (rejecting request for stay when none of the Nken factors
9 weighed in favor).
10 C. Conclusion—Waive & Stay
11 For the reasons discussed above, Casden has not met his burden to support a
12 stay of the monetary component of the Judgment, a stay pending resolution of a
13 motion to stay to be filed with the Ninth Circuit, or waiver or reduction of the
14 supersedeas bond. Accordingly, the Court DENIES Casden’s Motion for Waiver and
15 Stay. (ECF No. 220.)
16 VII. MOTION FOR ATTORNEY’S FEES
17 The Court turns to the last of the motions addressed in this Order, MET’s
18 Motion for Attorneys’ Fees. (Mot. Fees.) MET seeks an award of $725,124 for
19 attorneys’ fees under the Lanham Act. (Id. at 2.) Casden opposes on the basis that
20 MET’s motion is untimely. (Opp’n Mot. Fees 5, 7, ECF No. 229.) In the alternative,
21 Casden seeks an across-the-board 53% reduction in the requested attorneys’ fees for
22 various alleged deficiencies in MET’s motion. (Id. at 5, 9–20.)
23 A. Legal Standard—Attorneys’ Fees
24 The Lanham Act provides that “[t]he court in exceptional cases may award
25 reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). Whether a
26 case is “exceptional” is left to the discretion of the district court “considering the
27 totality of the circumstances.” Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
28 572 U.S. 545, 554 (2014); SunEarth, 839 F.3d at 1180–81.
1 When determining the amount of a fee award under the Lanham Act, “court[s]
2 must first determine the presumptive lodestar figure by multiplying the number of
3 hours reasonably expended on the litigation by the reasonable hourly rate.” Gracie v.
4 Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000) (quoting Intel Corp. v. Terabyte Int’l,
5 Inc., 6 F.3d 614, 622 (9th Cir.1993)). Once the lodestar figure is determined, the court
6 then decides whether to adjust the figured based on the factors articulated in Kerr v.
7 Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). Id.3
8 B. Discussion—Attorneys’ Fees
9 The Court found, “[i]n light of the jury’s verdict and the evidence presented at
10 trial,” that “Casden’s conduct was deliberate and willful, rendering this an exceptional
11 case for which MET is entitled to attorneys’ fees.” (PTO 13.) As discussed above,
12 the Court rejects Casden’s challenges to this finding. See above Sections IV.B.2,
13 V.B.1. As such, the issue becomes the amount of a reasonable fee award. In
14 considering MET’s motion for attorneys’ fees, the Court first addresses Casden’s
15 argument that the motion was untimely before turning to the reasonableness of MET’s
16 requested fees and Casden’s challenges to the requested amount.
17 1. Timeliness
18 Casden first asks the Court to deny MET’s Motion for Attorneys’ Fees on the
19 grounds that it is untimely. (Opp’n Mot. Fees 5, 7.) Rule 54(d)(2)(B) requires a
20 motion for attorneys’ fees to “be filed no later than 14 days after the entry of
21 judgment.”
22
23 3 These factors are
(1) the time and labor required, (2) the novelty and difficulty of the questions
24 involved, (3) the skill requisite to perform the legal service properly, (4) the
25 preclusion of other employment by the attorney due to acceptance of the case, (5) the
customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed
26 by the client or the circumstances, (8) the amount involved and the results obtained,
(9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of
27
the case, (11) the nature and length of the professional relationship with the client,
28 and (12) awards in similar cases.
Kerr, 526 F.2d at 70.
1 On September 26, 2023, the Court entered Judgment. (J.) On October 10,
2 2023, fourteen days later, MET filed its initial motion for attorneys’ fees. (First Mot.
3 Att’ys’ Fees.) On October 17, 2023, Casden filed for bankruptcy. (Notice
4 Bankruptcy.) In light of the automatic bankruptcy stay, (see 11 U.S.C. § 362), the
5 Court stayed the case and denied MET’s initial motion for attorneys’ fees as moot.
6 (Stay Order.) The Court ordered that MET could renew its motion upon the stay
7 being lifted. (Id.) On July 31, 2024, after the bankruptcy court ordered the stay could
8 be lifted for the limited purpose of resolving the parties’ post-trial motions, the Court
9 lifted the stay in this case. (Lift Order.) Twelve days later, on August 12, 2024, MET
10 renewed its Motion for Attorneys’ Fees. (See Mot. Fees.)
11 Casden argues that MET’s Motion for Attorneys’ Fees is untimely because
12 MET filed the motion a “combined total” of twenty-six days after entry of judgment—
13 fourteen days before the stay and twelve days after the stay.4 (Opp’n Mot. Fees 7.)
14 But Casden offers no case law to support his position. MET filed its initial motion for
15 attorneys’ fees within fourteen days of the Judgment. In its order staying the case, the
16 Court permitted MET to “renew” its motion. (Stay Order.) Thus, the Court deems
17 MET as having filed its fee motion on October 10, 2023, fourteen days after
18 judgment. Accordingly, MET’s fee motion is timely filed.5
19
4 Casden actually asserts that MET filed its fee motion twenty-five days after entry of judgment. But
20 he miscalculates the number of days between entry of judgment and MET’s initial motion for
attorneys’ fees. (See Opp’n Mot. Fees (calculating thirteen days between these days); J. (entered
21
September 26, 2023); First Mot. Att’ys’ Fees (filed October 10, 2023).) This discrepancy does not
22 alter its analysis, but the Court notes it for the sake of accuracy.
23 5 Under Casden’s position, MET must have filed its renewed fee motion on the same day the Court
lifted the stay. This would permit litigants like Casden to strategically and improperly use
24
bankruptcy to make fee motions untimely. This is not in line with the bankruptcy system’s goal “to
25 address the collective-action problem that a bankruptcy poses” and “to preserve the debtor’s estate
so as to ensure fair and equitable recovery for creditors.” Harrington v. Purdue Pharma L.P.,
26 603 U.S. 204, 231 (2024) (Kavanaugh, J., dissenting).
27
On the topic of timeliness and procedural defects, the Court notes that, while it is not striking his
28 motions on this basis, Casden improperly renewed his motion for judgment as a matter of law and
motion to alter or amend judgment, and filed his motion to waive requirement of bond, after the
1 2. Reasonable Fees
2 The Court next analyzes the reasonableness of MET’s requested attorneys’ fees.
3 MET requests $725,134 in attorneys’ fees for 2,383.4 hours worked. (See Mot.
4 Fees 2, 7.) Casden filed this action on February 8, 2021. (Compl., ECF No. 1.) The
5 four-day jury trial concluded on June 23, 2023. (PTO 3.) The requested fee amount
6 includes time associated with, among other things, extensive discovery, motion
7 practice, and trial, as follows:
8 Attorney/Biller Title Hourly Rate Total Hours Lodestar
9
Thomas Butler Partner $550 144.3 $77,922
10
Nicole Sullivan Partner $400 525.9 $210,360
11
Bethany Stevens Partner $440 221.1 $97,284
12
Carol Shahmoon Counsel $400 65.0 $26,000
13
Shruti Panchavati Associate $275 147.5 $36,875
14
Mark Nakahara Associate $225 753.3 $169,492.50
15
Matthew Prutting Associate $250 277.3 $69,325
16
Jake Etienne Associate $225 15.7 $4,330.50
17
Nicole Virella Associate $210 5.7 $1,197
18
Marion Millnamow Paralegal $150 17.8 $2,670
19
Hector Durant Paralegal $150 50.2 $7,530
20
Gabrielle Mavroidis Paralegal $150 1.4 $210
21
April Zappaterrini Paralegal $150 8.3 $1,245
22
Ryan Penny Tech Support $85–$180 104.8 $16,859.50
23
Reth Sorn Tech Support $85 45.1 $3,833.50
24
TOTAL 2,383.4 $725,134
25
26
bankruptcy court lifted the automatic stay but before this Court lifted the stay in this case. (See, e.g.,
27
Mot. Waive & Stay (filed July 29, 2024); Lift Order (lifting stay on July 31, 2024).) What is good
28 for the goose is good for the gander; Casden would be wise to ensure his filings are compliant before
attacking MET’s filings on grounds he fails to meet.
1 (Mot. Fees 7.)
2 “[T]he burden is on the fee applicant to produce satisfactory evidence . . . that
3 the requested rates are in line with those prevailing in the community for similar
4 services by lawyers of reasonably comparable skill, experience, and reputation.”
5 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008). MET meets its
6 burden to produce evidence that the billing rates and hours billed are reasonable.
7 (Decl. Nicole A. Sullivan ISO Mot. Fees (“Sullivan Fees Decl.”) ¶¶ 16–17, ECF
8 No. 228-1 (stating that the discounted rates for attorneys, paralegals, and support staff
9 in this case are “modest and well below the market rates in Los Angeles” for
10 “attorneys with similar experience” and “comparable paralegals and staff”); Decl.
11 Bethany Stevens ISO Mot. Fees (“Stevens Fees Decl.”) ¶ 9, ECF No. 228-3 (declaring
12 that rates charged are “reasonable” and “at or below market in Los Angeles for
13 attorneys with similar qualifications and experience”).)
14 Casden does not challenge the reasonableness of the hourly rates. (See
15 generally Opp’n Mot. Fees.) Instead, Casden points to specific billing entries as being
16 unreasonable and seeks a 53% reduction of hours. (Id. at 5, 12-13.) To the extent
17 Casden argues that a particular attorney’s rate is unreasonable for a specific billing
18 entry, (see id. at 12–13), the Court addresses those arguments below. The Court also
19 rules on each of Casden’s objections to MET’s requested fees—i.e., that they are
20 duplicative, inadequately documented, and excessive. (Id. at 5.)
21 (a) Block Billing
22 Casden seeks a reduction for block billing. (Id. at 9–12.) He argues that
23 “almost all of MET’s recorded hours are billed in block format, thereby making it
24 difficult, if not impossible, to determine how much time was spent on particular
25 activities,” and cites four examples of this practice. (Id. at 10–12.) MET counters that
26 these are not examples of block billing but “detailed descriptions of the work
27 performed on time consuming tasks.” (Reply ISO Mot. Fees (“Reply Fees”) 2–3,
28
1 ECF No. 242.) MET also argues, that even if time entries are block billed, the
2 descriptions demonstrate that the time spent was reasonable. (Id. at 3.)
3 Block billing is “the time-keeping method by which each lawyer and legal
4 assistant enters the total daily time spent working on a case, rather than itemizing the
5 time expended on specific tasks.” Welch v. Metro. Life Ins. Co., 480 F.3d 942,
6 945 n.2 (9th Cir. 2007). This billing practice “makes it difficult for the court to
7 determine how much time was actually spent on particular work.” SAS v. Sawabeh
8 Info. Servs. Co., No. 2:11-cv-04147-MMM (MANx), 2015 WL 12763541, at *33
9 (C.D. Cal. June 22, 2015). Thus, the Ninth Circuit has recognized district courts’
10 authority to reduce hours that are block billed if the party seeking fees fails to provide
11 enough information to reveal whether the amount of time spent performing tasks was
12 reasonable. Welch, 480 F.3d at 948.
13 MET is incorrect that only a “small number of entries describ[e] more than one
14 task.” (Reply Fees 3.) MET’s billing records reflect extensive block billing. All
15 billing activities are combined in one description per attorney per day whether the
16 attorney did one, two, or ten tasks that day. (See, e.g., Sullivan Fees Decl., Ex. A
17 (“W&W Entries”), ECF No. 282-2; Stevens Fees Decl., Ex. A (“WSC Entries”), ECF
18 No. 282-4.) Out of the hundreds of billing entries describing multiple tasks, the Court
19 counts only approximately eight in which the description is itemized per task. (See,
20 e.g., W&W Entries 45, 52–53.6) Some of MET’s entries include lengthy descriptions
21 for one type of task, for example preparing dispositive motions. (Opp’n Mot. Fees 11
22 (citing W&W Entries 6–7).) But others include different types of tasks in one entry.
23 (Id. at 10 (citing W&W Entries 34) (combined entries related to preparation for
24 multiple depositions).) This billing practice makes it difficult for the Court to evaluate
25 the reasonableness of some entries.
26 Accordingly, a reduction is appropriate. Given the volume of entries, the Court
27 declines to make entry-by-entry reductions. Therefore, the Court finds a 5% reduction
28
6 The Court cites the exhibits’ internal pagination.
1 appropriate. See, e.g., Russell v. Walmart Inc., No. 2:19-cv-05495-MWF (JCx),
2 2024 WL 305388, at *7 (C.D. Cal. Jan. 2, 2024) (imposing a 5% reduction for block
3 billing), appeal filed, No. 24-592 (9th Cir. Feb. 19, 2025); Pierce v. County of
4 Orange, 905 F. Supp. 2d 1017, 1030 (C.D. Cal. 2012) (“[C]ourts generally impose
5 only a 5% to 20% reduction for those hours block-billed”); cf. Moreno v. City of
6 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (holding that courts “can impose a
7 small reduction, no greater than 10 percent—a ‘haircut’—based on its exercise of
8 discretion and without a more specific explanation”).
9 (b) June 2023 Hours
10 As an example of excessive and duplicative billing, Casden offers MET’s
11 “inordinate amount of time billed by 8 different timekeepers for a total of
12 793.5 hours” in June 2023. (Opp’n Mot. Fees 12.) Casden complains of one attorney
13 billing 73.9 hours, or 18.4 hours a day, during the four-day trial. (Id.)
14 This is not overbilling. It is no secret that trials cost a lot of money. It is also
15 not uncommon for attorneys to work nearly the entirety of waking hours pre-, during,
16 and post-trial. The Court rejects this challenge.
17 (c) Motion for Attorneys’ Fees
18 Casden asks for a reduction on MET’s time spent on the Motion for Attorneys’
19 Fees, which, he contends, “[g]iven the experience of the attorneys involved . . . should
20 not have required so much time of so many timekeepers doing largely the same
21 thing.” (Id. at 14.) First, three of MET’s attorneys billed 22.5 hours, totaling
22 $5,194.50 for this motion. (Reply Fees 6 (citing W&W Entries 69; WSC Entries 10).)
23 This is not excessive. Second, it is not lost on the Court that Casden challenges
24 MET’s motion for attorneys’ fees for not “meet[ing] its burden of proof,” while in the
25 same breath arguing that they spent too much time preparing their fee motion. (See
26 Opp’n Mot. Fees 20.) The Court rejects this challenge.
27
28
1 (d) Clerical Work
2 Casden argues that certain work billed is “the type of clerical work that is
3 considered part of normal overhead and is not recoverable.” (Id. at 13.)
4 Purely clerical or secretarial tasks are not compensable. See Nadarajah v.
5 Holder, 569 F.3d 906, 921 (9th Cir. 2009) (“When clerical tasks are billed at hourly
6 rates, the court should reduce the hours requested to account for the billing errors.”).
7 However, it is appropriate to distinguish between non-legal, “purely clerical” work,
8 which is not compensable, and substantive legal work, which may be. Donastorg v.
9 City of Ontario, No. 5:18-cv-00992-JGB (SPx), 2021 WL 6103545, at *11 (C.D. Cal.
10 Sept. 23, 2021). For instance, courts consider tasks like copying, scanning,
11 calendaring, filing, and document organization to be clerical in nature and thus not
12 compensable, because they are subsumed within firm overhead. See Nadarajah,
13 569 F.3d at 921; French v. City of Los Angeles, No. 5:20-cv-00416-JGB (SPx),
14 2022 WL 2189649, at *20 (C.D. Cal. May 10, 2022). In contrast, tasks like drafting
15 discovery correspondence, preparing deposition notices, and reviewing and organizing
16 case files are not necessarily purely clerical tasks and may be compensable. French,
17 2022 WL 2189649, at *20.
18 Casden identifies only five entries as clerical work. Three are from Bethany
19 Stevens, a partner at one of MET’s law firms, for “coordinat[ing]” and
20 “oversee[ing]. . . delivery of chambers copies,” and “coordinat[ing] with co-counsel,
21 printing vendor.” (Opp’n Mot. Fees 12.) This is not clerical work. Even if delivery
22 of chambers copies is clerical work, overseeing or coordinating delivery of copies to
23 chambers is not. Also, the Court disagrees that Stevens’s rate is excessive for this
24 type of work.
25 The two other entries Casden challenges are for work to “[p]rint, tab and ship
26 FedEx hard copy binder” and “[c]onvert several emails to PDF exhibits.” (Id. at 13.)
27
28
1 MET does not address these items, (see Reply Fees), so the Court deducts these from
2 the lodestar, a $113.25 reduction.7
3 (e) Inadequate Information
4 Next, Casden seeks a reduction because there is “no information about the
5 identities, background, experience, and positions of seven” timekeepers who
6 performed “mostly . . . unrecoverable overhead type work.” (Opp’n Mot. Fees 13.)
7 Casden cites no authority requiring this information or the “resumes” of such
8 individuals. (Id.) MET provided these persons’ names, titles, hourly rates, hours
9 worked, lodestar amount, and billing entries. (See Mot Fees 7; W&W Entries; WSC
10 Entries; see also Decl. Nicole A. Sullivan ISO Reply Fees¶¶ 5–7, ECF No. 242-2.)
11 That information is sufficient for MET to meet its burden to show that the requested
12 attorneys’ fees are reasonable. Casden does not challenge these individuals’ hourly
13 rates and does not describe or explain the work he considers to be “overhead type
14 work.” (Opp’n Mot. Fees 13.) The Court rejects this challenge.
15 (f) Vagueness
16 Casden argues that “a number of time entries” are “quite vague, inadequately
17 documented, and duplicative.” (Id.) He highlights only five such billing entries. (Id.)
18 Even if some of these entries are vague in isolation, when viewed in the context of
19 other entries, they are clearly sufficiently descriptive. For example, Casden complains
20 that one attorney, Thomas Butler, billed 1.5 hours for “[m]ultiple calls re submission”
21 on June 27, 2023. (Id.) Two other MET attorneys billed time for “[d]rafting of a joint
22 report” on or around the same date Butler billed this time. (W&W Entries 63.) The
23 Court can reasonably conclude that Butler billed for work on the joint report. The
24 Court also disagrees with Casden that Butler’s “time is duplicative of other attorneys.”
25
26 7 Ryan Penny, at $85 an hour, block billed 0.9 hours for “[c]onverting several emails to PDF exhibits
in Breeze,” along with one other unchallenged task. (W&W Entries 25.) The Court apportions
27
0.45 hours to that task, resulting in a $38.25 reduction. Hector Durant, at $150 an hour, block billed
28 2.9 hours for a host of tasks, including to “[p]rint, tab and ship via FexEx hard copy binder.” (Id.
at 51.) The Court apportions 0.5 hours to this task, resulting in a reduction of $75.
1 (Opp’n Mot. Fees 13.) Multiple lawyers often work on the same tasks, especially
2 submissions to the Court. It is unsurprising that if Butler had phone calls regarding a
3 submission, there was another MET lawyer on the other end of the call. The Court, in
4 its discretion, does not find that the identified entries were vague or duplicative. The
5 Court rejects this challenge.
6 (g) Pre-Filing Billing
7 Casden objects to the 29.4 hours billed for fees charged six to eight months
8 before MET filed the instant case. (Id. at 14.) This time was billed for preparing and
9 drafting the complaint, (W&W Entries 2), or “pre-litigation work that [was]
10 reasonably and necessarily incurred at that time by the prevailing party, Owaidah v.
11 Mazzei, No. 5:18-cv-00246-KK, 2020 WL 2405277, at *4 (C.D. Cal. Apr. 9, 2020)
12 (cleaned up). These fees are permissible. See, e.g., Mattel, Inc. v. MGA Ent., Inc.,
13 801 F. Supp. 2d 950, 956–57 (C.D. Cal. 2011) (citing Webb v. Bd. of Educ., 471 U.S.
14 234, 250–51 (1985)) (holding that attorneys’ fees are recoverable for time spent
15 preparing “the initial pleadings and the work associated with the development of the
16 theory of the case”). The Court rejects this challenge.
17 (h) Travel Time
18 Casden seeks a deduction for travel time billed by MET’s lawyers to and from
19 Court. (Opp’n Mot. Fees 17.) “Courts in this district have allowed recovery of
20 attorneys’ fees related to travel time for hearings and trial . . . .” Rios v. City of Los
21 Angeles, No. 2:21-cv-05341-RGK (MAAx), 2023 WL 3432164, at *4 (C.D. Cal.
22 Mar. 2, 2023); accord Bea-Mone v. Silverstein, No. 8:17-cv-00550-JLS (DFMx),
23 2019 WL 762676, at *3 (C.D. Cal. Feb. 20, 2019). The Court finds MET’s travel time
24 reasonable. MET deducted thirty-nine hours of travel time from its bill for travel to
25 attend pre-trial hearings. (W&W Entries 51–52.) MET requests billing for travel for
26 only six one-way trips, to and from the Court for the hearing on motions in limine and
27 trial. (Id. at 60, 62, 64.) These hearings were necessary for counsel to attend in
28 person, and the Court finds this reasonable. The Court rejects this challenge.
1 (i) Non-Lanham Act Claims
2 Casden also seeks a reduction so that he is charged only for work performed in
3 connection with MET’s Lanham Act claims, but not for work done on MET’s claims
4 for tortious interference and violation of California’s unfair competition and false
5 advertising laws. (Opp’n Mot. Fees 18–19.)
6 Generally, “[i]n an award of ‘reasonable attorney fees’ pursuant to the Lanham
7 Act, a party cannot recover legal fees incurred in litigating non-Lanham Act claims.”
8 Gracie, 217 F.3d at 1069. However, this is not the case where “the Lanham Act
9 claims and non-Lanham Act claims are so intertwined that it is impossible to
10 differentiate between work done on claims.” Id. Notably, “the impossibility of
11 making an exact apportionment does not relieve the district court of its duty to make
12 some attempt to adjust the fee award in an effort to reflect an apportionment.” Id.
13 at 1070. “In other words, apportionment or an attempt at apportionment is required
14 unless the court finds the claims are so inextricably intertwined that even an estimated
15 adjustment would be meaningless.” Id.
16 MET’s unfair competition and false advertising claims are unquestionably
17 intertwined with its Lanham Act claim. As the Court found in its PTO, “these claims
18 are ‘substantially congruent’ to claims made under the Lanham Act.” (PTO 13
19 (quoting Cleary v. News Corp., 30 F.3d 1255, 1262–63 (9th Cir. 1994)).) Both claims
20 hinge on Casden violating the Lanham Act. (Id.) The Court explicitly based its ruling
21 that Casden violated California’s unfair competition and false advertising laws on the
22 jury’s finding that Casden is liable under the Lanham Act. (Id. at 14 (“[B]ecause
23 MET’s state law claims for false advertising and unfair competition are substantially
24 congruent to and rest upon the same factual basis as MET’s claim for false advertising
25 under the Lanham Act, the Court finds Casden liable for false advertising and unfair
26 competition” under California law).) Accordingly, MET’s Lanham Act and California
27 unfair competition and false advertising claims “have sufficiently identical factual and
28 legal bas[e]s that apportionment is impossible.” Jackson v. Gaspar, No. 2:19-cv-
1 10450-DOC (Ex), 2022 WL 2155975, at *7 (C.D. Cal. Feb. 24, 2022) (unfair
2 competition); see POM Wonderful, LLC v. Purely Juice, Inc., No. 2:07-cv-02633-CAS
3 (JWJx), 2008 WL 4351842, at *3 (C.D. Cal. Sept. 22, 2008), aff’d, 362 F. App’x 577
4 (9th Cir. 2009) (false advertising).
5 Casden argues that MET’s tortious interference claim is not sufficiently
6 intertwined with its Lanham Act claim. (Opp’n Mot. Fees 18–19.) At trial, MET
7 presented evidence that Casden intended to and did interfere with the Settlement
8 Agreement in two ways: by voting in favor of Hologenix filing for bankruptcy in bad
9 faith and by making false statements. (PTO 5–7.) Both the Court and the jury found
10 the evidence at trial showed Casden intended to and did induce Hologenix’s breach of
11 the Settlement Agreement in both ways. (Id.; Verdict 3.)
12 Casden’s false statement in violation of the Lanham Act is the same conduct
13 that caused Hologenix to breach the Settlement Agreement through violating the
14 permanent injunction. Thus, these claims are inextricably intertwined.
15 However, Casden’s voting in favor of Hologenix’s bankruptcy petition is not the
16 same conduct as the Lanham Act violation, a proposition which MET does not appear
17 to challenge. (See Reply Fees 8–9 (arguing that Casden “ignores that MET’s tortious
18 interference claim is predicated on not just Hologenix’s bankruptcy filing but also
19 Hologenix’s violation of the Permanent Injunction through Casden’s false
20 advertising”).) Even without a finding of false advertising in violation of the Lanham
21 Act, Casden would have been liable for tortious interference through his voting for
22 Hologenix to file for bankruptcy. Thus, the first set of facts on which the claim
23 rests—false advertising—is “indistinguishable from the Lanham Act claims.”
24 Jackson, 2022 WL 2155975, at *7. But the second set of facts—Casden’s vote for
25 bankruptcy—is “distinguishable because they involve different facts and legal
26 questions.” Id.
27 The parties offer no case law for how to address this issue. The Court has
28 identified one case dealing with this specific issue. In that case, the court noted that it
1 was “unaware of any precedent” on the issue, so “turn[ed] to equitable principles to
2 make its decision.” Id. Because “[f]ee awards are an equitable power” courts
3 exercise, id., the Court does the same here.
4 The most equitable result would be to award attorneys’ fees for work done on
5 the tortious interference related to the Lanham Act claim but withhold attorneys’ fees
6 for work related to the bankruptcy vote. As Casden correctly points out, work
7 concerning the Noerr-Pennington doctrine related solely to the bankruptcy basis. (See
8 Opp’n Mot. Fees 19.) But this apportionment exercise is not always so easy. For
9 example, the Court cannot breakdown work related to “tortious interference claims.”
10 (E.g., W&W Entries 6, 62.) Given this, and considering the lengthy billing records
11 submitted, the Court will not reduce the fees line-by-line. However, that does not
12 mean that these claims are so “inextricably intertwined that even an estimated
13 adjustment would be meaningless.” Gracie, 217 F.3d at 1070.
14 The Court finds it most equitable to apportion attorneys’ fees as follows: the
15 Court divides the requested attorneys’ fees by four on account of each of MET’s
16 asserted claims. The Court then divides the tortious interference by two to account for
17 the two theories of liability. This results in a 12.5% apportionment of the fees to
18 account for the tortious interference based on the bankruptcy. Id. (“[T]he
19 impossibility of making an exact apportionment does not relieve the district court of
20 its duty to make some attempt to adjust the fee award in an effort to reflect an
21 apportionment.”); Monster Energy Co. v. Vital Pharms., Inc., No. 5:18-cv-01882-JGB
22 (SHKx), 2023 WL 9419597, at *9 (C.D. Cal. Dec. 14, 2023) (“[T]he Court must make
23 some attempt to adjust the fee award to reflect, even if imprecisely, work performed
24 on these non-Lanham Act claims.” (cleaned up).) Accordingly, the Court reduces
25 MET’s attorneys’ fees by another 12.5%.
26 (j) Remaining Challenges
27 Casden asks for additional deductions based on redacted time entries. (Opp’n
28 Mot. Fees 17–18.) MET does not seek attorneys’ fees for work described in the
1 redacted entries. (Sullivan Fees Decl. ¶ 20; see also Reply Fees 8.) No reductions are
2 warranted on this basis.
3 Casden also claims that MET should not be permitted to recover for work done
4 on four ex parte applications and three motions that the Court rejected. (Opp’n Mot.
5 Fees 14–16.) He also challenges MET’s requested fees because “a substantial portion
6 of work in this lawsuit” was a duplication of work MET had done in other lawsuits.
7 (Id. at 16.) Casden cites no case law to support these reductions, and the Court finds
8 that MET has met its burden to show these fees were reasonably expended in this
9 case. The Court rejects Casden’s request for a reduction on these bases.
10 To the extent any of Casden’s challenges are not explicitly addressed in this
11 Order, the Court has thoroughly considered and rejected them.
12 C. Conclusion—Attorneys’ Fees
13 In conclusion, the Court finds MET is entitled to attorneys’ fees and that its
14 rates billed are reasonable. Based on the Kerr factors and applicable law, the Court
15 first reduces the $725,134 lodestar by $113.25 for billed clerical work, and then by
16 17.5%, for block billing and the bankruptcy-voting basis of the tortious interference
17 claim (5% and 12.5%, respectively). Accordingly, Casden is obligated to pay MET
18 attorneys’ fees in the amount of $598,142.12.
19
20
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22
23
24
25
26
27
28
1 VIII. CONCLUSION
2 For the reasons discussed above, the Court DENIES Casden’s Motion for
3 || JMOL or alternatively a New Trial, and DENIES Casden’s Motion to Alter or Amend
4|| the Judgment. (ECF Nos. 218, 219.) The Court DENIES Casden’s Motion to Waive
5 || Bond and Stay Enforcement. (ECF No. 220.) Finally, the Court GRANTS IN PART
6 || MET’s Motion for Attorneys’ Fees and awards $598,142.12. (ECF No. 228.)
7
8 IT IS SO ORDERED.
9
10 February 21, 2025 a .
1] Ae a od
B OTIS DZ WRIGHT, I
4 UNITED STATES DISTRICT JUDGE
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