Cori et al v. Phyllis Schlafly's American Eagles et al
Filing
249
ORDER GRANTING in part and DENYING in part 233 Phyllis Schlafly's American Eagles's Bill of Costs and 234 Motion for Attorneys' fees and Nontaxable Expenses. Phyllis Schlafly's American Eagles is entitled to a total of $62,632.00 in attorneys' fees. Plaintiff Eagle Forum is ORDERED to pay Phyllis Schlafly's American Eagles's costs in the amount of $6,018.65. Signed by Chief Judge Nancy J. Rosenstengel on 10/30/2020. (drr)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAGLE FORUM, an Illinois Not-forProfit Corporation,
Plaintiff,
v.
Case No. 16-CV-00946-NJR
PHYLLIS SCHLAFLY’S AMERICAN
EAGLES, a Virginia Not-for-Profit
Corporation,
Defendant.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court are the Bill of Costs (Doc. 233) and Motion for Attorneys’
Fees and Nontaxable Expenses (Doc. 234) filed by Defendant Phyllis Schlafly’s American
Eagles (“PSAE”). PSAE seeks $11,073.65 in costs and $610,243.80 in attorneys’ fees and
nontaxable expenses. Plaintiff Eagle Forum (“EF”) has filed an Objection (Doc. 236) to
PSAE’s Bill of Costs and an Opposition (Doc. 240) to PSAE’s Motion for Attorneys’ fees
and Nontaxable Expenses. For the reasons set forth below, PSAE’s Bill of Costs are
granted in part and denied in part, and PSAE’s Motion for Attorneys’ Fees and
Nontaxable Expenses is granted in part and denied in part.
FACTUAL & PROCEDURAL BACKGROUND
After four years in the trenches, six separate legal battles in jurisdictions across the
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country,1 media campaigns,2 and a never-ending army of lawyers, politicians, and
entities, this Court is still working to untangle just one section of the legal web between
these battling powers.
The battle here is between PSAE and EF. PSAE and EF are both nonprofit
organizations formed by Phyllis Schlafly that support causes related to the modern
conservative political ideology. (Doc. 43, p. 6; Doc. 203-2, pp. 2-6). EF was created in 1975
(Id.). PSAE, formally named Citizen Empowerment League, was created in 2015 (Doc. 43,
p. 9). As discussed in Eagle Forum v. Phyllis Schlafly’s Am. Eagles, 451 F. Supp. 3d 910, 914
(S.D. Ill. 2020), Citizen Empowerment League’s name was changed to PSAE, after Phyllis
Schlafly’s own daughter, Anne Schlafly Cori, and other members of EF’s directors held
an illegal April 11, 2016 board meeting,3 voted to change leadership and ultimately took
control of EF’s assets (Doc. 203-12, 50-51; Doc. 43, p. 9).
PSAE was comprised mostly of the minority board members, including Phyllis
Schlafly, and ex-leadership from EF (Id. at 10). According to EF, PSAE solicited support
and funds from EF’s donors without permission and used EF’s assets and resources—
including EF’s money; intellectual, real, and personal property; mailing lists; and P.O.
Box (Doc. 43, p. 11). PSAE denied the allegation, but admitted to using Schlafly’s name
EF, PSAE, Eagle Trust Fund (“ETF”), Eagle Forum Education and Legal Defense Fund (“EFELDF”), the
Schlafly children, and related individuals and entities have legal battles in the Circuit Court for Madison
County, Illinois (“Madison County case”), the Circuit Court for St. Louis County, Missouri, the United
States District Court for the Eastern District of Missouri, the United States Circuit Court of Appeals for the
Eighth Circuit, the United States District Court for the District of New Jersey, and the United States District
Court for the Western District of Pennsylvania.
2 EF planned to pro-actively schedule media appearances to discuss the suit (Doc. 234-3).
3 On July 11, 2019, the court in the Madison County case held that the EF meeting on April 11, 2016 was
conducted in violation of the then-existing Bylaws of EF (Doc. 234-2, p. 9)
1
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and image along with employing phrases like “Our Eagle Leaders,” “my American
Eagles,” and “loyal supporters” who have been fighting “for decades” (Id. at p. 11). EF
also
alleges
that
PSAE
registered
two
unauthorized
websites,
www.psamericaneagles.org and www.psamericaneagles.com, using its e-mail address
on its behalf (Id. at pp. 10-11). PSAE admits registering the websites and states that it
never intended to sell, transfer, or assign the websites to a third party for gain (Doc. 203,
p. 5).
After three years of discovery, ten hearings and conferences (Docs. 25, 44, 53, 63,
67, 73, 97, 109, 139, 193), and a multitude of briefing and orders over the course of this
case, the Court was under the impression that the parties finally produced all documents
responsive to each other’s written discovery requests. In April 2019, Magistrate Judge
Daly ordered PSAE to provide the documents identified in Doc. 161 for inspection by the
Court (Doc. 171). PSAE timely responded and indicated that it had already produced
many of those documents to EF’s directors (Doc. 172). For four months, EF did not contest
PSAE’s production, but when PSAE filed its Motion for Summary Judgment (Doc. 202),
EF woke up and filed its Rule 56(d) Motion to Deny or Defer Consideration of PSAE’s
Motion for Summary Judgment (Doc. 206) noting that “it is essential that [EF] be able to
review all of the documents to which it is entitled, especially those that PSAE has
improperly refused to produce for years” (Id. at p. 4). As a result, Magistrate Judge Daly
ordered that further documents referred to in Doc. 161 be produced to EF in her order of
November 13, 2019 (Doc. 212).
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Indeed, on November 27, 2019, EF represented to the undersigned in its Motion to
Stay or In the Alternative for Continuance of Trial Setting “that PSAE has finally
produced all the documents responsive to [EF]’s written discovery requests, [EF] is in a
position to complete factual depositions” (Doc. 215, p. 6). On January 23, 2020, the Court
denied both EF’s Rule 56(d) Motion and Motion to Stay and ordered Eagle Forum
Foundation (“EFF”) to produce documents disclosing the “amounts and dates of
individual donations and all other information encompassed within Requests 1, 2 and 5”
(Doc. 228). EFF failed to comply with the Court’s January 23, 2020 order. On March 16,
2020, this Court ordered EF to respond to PSAE’s Motion for Contempt (Doc. 229) by
March 23, 2020 and state why the Court should not hold EF in contempt for its failure to
comply with the January Order (Doc. 230). Neither EF nor EFF complied with this Court’s
March 16, 2020 order.
Despite EF and EFF withholding documents from PSAE, this Court granted
PSAE’s Motion for Summary Judgment on April 1, 2020 (Doc. 232). PSAE filed its Bill of
Costs (Doc. 233) and moved for attorneys’ fees and nontaxable expenses (Doc. 234). EF
filed its Objections to PSAE’s Bill of Costs (Doc. 236) and its Opposition to PSAE’s Motion
for Attorneys’ Fees (Doc. 240).
ANALYSIS
I.
PSAE’s Bill of Costs
A. PSAE is the Prevailing Party Under Federal Rule of Civil Procedure 54(d)
Although EF lost on all its claims, EF argues that PSAE is not a prevailing party
because PSAE’s counterclaims were dismissed with prejudice (Doc. 236, p 4). These
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counterclaims, according to EF, were substantial and EF prevailed, thus “it cannot be said
that PSAE is the prevailing party ‘as to the substantial part of the litigation.’” (Id.).
Accordingly, EF argues “[t]his mixed outcome requires the Court to exercise its discretion
that both [EF] and PSAE bear their own costs.” (Id.). This Court disagrees.
“[U]nless a federal statute, these rules, or a court order provides otherwise, costs—
other than attorney’s fees—should be allowed to the prevailing party.” FED. R. CIV. P.
54(d). The prevailing party for purposes of Rule 54(d) is the party that prevails with
regard to a substantial part of the litigation. Testa v. Vill. of Mundelein, 89 F.3d 443, 447
(7th Cir. 1996). “[W]hen one party gets substantial relief it ‘prevails’ even if it doesn’t win
on every claim.” Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999).
The Seventh Circuit and some of its district courts have denied a litigant’s bill of
costs and ordered the parties to bear their own costs when a case is a “mixed outcome.”
Most of these decisions, however, recognize a case as a “mixed outcome” when the
plaintiff prevails on at least one claim. See Testa, 89 F.3d at 447 (mixed outcome and court
denied costs to the plaintiff when plaintiff lost on false arrest claim, but won $1,500 on
malicious prosecution claim); Baker v. Lindgren, 856 F.3d 498, 502 (7th Cir. 2017) (mixed
outcome and court denied costs to the plaintiffs even though plaintiffs recovered $30,000
on two claims); Ello v. Brinton, 2019 WL 6975093, at *2 (N.D. Ind. Dec. 20, 2019) (mixed
outcome and court denied costs to defendant when plaintiff only won on breach of
contract claim); Masud v. Rohr-Grove Motors, Inc., 2016 WL 3418567, at *1 (N.D. Ill. June
22, 2016) (mixed outcome and court denied costs to plaintiff when “[plaintiff] won on one
claim, her hostile work environment claim, but she received only modest relief in
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comparison with what she sought, and she lost on the two retaliation claims”); Thorncreek
Apartments I, LLC v. Vill. of Park Forest, 123 F.Supp.3d 1012, 1014 (N.D. Ill. 2015) (mixed
outcome and court denied costs to both plaintiff and defendants when plaintiff only won
on several claims against two of eleven defendants); Ellis v. Cty. Club Hills, 2012 WL
4009701, at *2 (N.D. Ill. Sept. 12, 2012) (mixed outcome and court denied costs to plaintiff
when plaintiff lost on summary judgment to one defendant, lost on excessive force claim
as to another defendant, but won at least nominal damages on a separate excessive force
claim); Gonzalez v. City of Elgin, 2010 WL 4636638, at *2 (N.D. Ill. Nov. 8, 2010) (mixed
outcome and court denied costs to both plaintiff and defendant when “jury concluded
that three of the seven [d]efendants violated two of the six [p]laintiffs’ constitutional state
law rights”); Biomet Inc. v. TACT Med. Instruments Inc., 2005 WL 1563429, at *8 (N.D. Ind.
June 30, 2005) (mixed outcome and court denied costs to both plaintiff and defendant
when plaintiff ultimately prevailed on the declaratory judgment claims, but lost on its
claim for breach of best efforts clause).
At the same time, other district courts in the Seventh Circuit have granted a
prevailing party’s bill of costs when a case is a “mixed outcome.” See Springer v. Ethicon,
Inc., 2018 WL 1453553, at *12 (N.D. Ill. Mar. 23, 2018) (granting costs to plaintiff though
the “jury returned a verdict in [plaintiff’s] favor on the negligent misrepresentation claim,
[but] it found for defendants on the negligence and strict liability claims and declined to
award punitive damages”); E.E.O.C. v. Wal-Mart Stores, Inc., 2000 WL 1162029, at *1 (S.D.
Ill. June 29, 2000) (granting costs to plaintiff though jury’s verdict found for defendant on
plaintiff’s sexual harassment claim, but in favor of plaintiff on her retaliation claim).
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District courts within the Seventh Circuit also have recognized a case as a potential
“mixed outcome” though summary judgment was granted in favor of defendant. See
Small Bus. Lending, LLC v. Pack, 2020 WL 4059642, at *3 (S.D. Ind. July 20, 2020) (“mixed
outcome” even though defendant prevailed on plaintiff’s motion for preliminary
injunction and its motion for summary judgment, but plaintiff “successfully opposed
[defendant’s] Motion to Dismiss, and [defendant] ultimately destroyed the laptop hard
drive on which [plaintiff] claims he had saved information to which he was not entitled”);
Hugunin v. Land O’Lakes, Inc., 2015 WL 12834301, at *2 (N.D. Ill. Nov. 9, 2015) (“mixed
outcome” even though the court granted summary judgment in favor of defendant on all
of plaintiff’s claims, but plaintiff “successfully raised the defense of laches at trial so he
may now use [defendant’s] mark . . . .”). In Small Bus. Lending, LLC, 2020 WL 4059642, and
Hugunin, 2015 WL 12834301, however, the courts still granted costs to defendant. 4
The dismissal of PSAE’s counterclaims, at most, makes this a “mixed outcome”
case which requires this Court to provide “at least a modicum of explanation when
entering an award of costs.” Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th
Cir.1998). Here, PSAE is still the prevailing party because this Court granted PSAE’s
motion for summary judgment. See Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1242 (7th
Cir. 1985), overruled on other grounds by Provident Bank v. Manor Steel Corp., 882 F.2d 258
(7th Cir. 1989) (finding that “when a district court grants a party’s motion for summary
This Court has found one district court case from the Seventh Circuit, Oglesby v. Coca-Cola Bottling Co. of
Chicago/Wisconsin., 640 F. Supp. 32, 34 (N.D. Ill. 1985), where the court denied defendant’s motion for costs
although defendant won on summary judgment because much of the discovery costs were related to the
issues on which defendant lost.
4
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judgment, that litigant is a ‘prevailing party’ for purposes of the rule”); see e.g., Weeks v.
Samsung Heavy Indus. Co., 126 F.3d 926, 944 (7th Cir. 1997) (noting that the defendant was
the “prevailing party” under FRCP 54(d) because “the district court granted summary
judgment in its favor on all counts”).
Exploring the Seventh Circuit’s other analytical approaches to determine which
litigant is the “prevailing party” under Rule 54(d) does not help EF. One analytical
approach is comparing the amount a litigant is ultimately awarded with the amount it
originally sought. See Perlman v. Zell, 185 F.3d 850, 859 (7th Cir. 1999) (noting that
“[plaintiff’s] modest recovery (modest in relation to his original demand, that is) implies
that the defendants won more of the dispute than they lost”). Here, EF received nothing.
Another approach is the “single significant issue,” which turns on which party
prevailed on the main issue in dispute. Northbrook Excess & Surplus Ins. Co. v. Procter &
Gamble Co., 924 F.2d 633, 641 (7th Cir. 1991); see e.g., Rice v. Sunrise Express, Inc., 237 F.
Supp. 2d 962, 969 (N.D. Ind. 2002) (noting that plaintiff “prevailed on the central issue in
her lawsuit, that is, on her claim that [d]efendant violated the FMLA. This is a substantial
part of the litigation. The fact that her damage award was only $720.00 does not alter this
conclusion”). Here, the significant issues were alleged trademark infringement and
unfair competition. The Court entered final judgment in PSAE’s favor on these claims
(Doc. 231).
The Seventh Circuit and its district courts also designate a litigant as a “prevailing
party” when they attain “substantial relief.” See e.g., Slane, 164 F.3d at 1068 (although both
the plaintiff and defendant had each won two claims, plaintiff was the prevailing party
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because a $225,000 jury award constitutes “substantial relief”); Warfield v. City of Chicago,
733 F. Supp. 2d 950, 954 (N.D. Ill. 2010) (acknowledging that two defendants were granted
summary judgment, but plaintiff was the prevailing party because “the jury ultimately
entered a verdict in [p]laintiffs’ favor and awarded over $240,000 in damages against
[d]efendants”). At the risk of being redundant, EF received nothing.
Not only is PSAE the “prevailing party” under the Seventh Circuit’s analytical
approaches and because it was granted summary judgment, but functionally EF failed at
what it sought out to do. EF brought this case to impact PSAE’s ability to compete with
EF, and PSAE defeated EF’s claims at summary judgment. Accordingly, PSAE is the
“prevailing party” and is entitled to costs.
B. Recoverable Costs Under Federal Rule of Civil Procedure 54(d)(1)
28 U.S.C. § 1920 specifies the costs that may be recovered pursuant to Rule 54(d)(1).
The costs explicitly allowed by § 1920 are: (1) fees of the clerk and marshal; (2) fees for
printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the
costs of making copies of any materials where the copies are necessarily obtained for use
in the case; (5) docket fees under section 1923 of this title; and (6) compensation of court
appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs
of special interpretation services under section 1828 of this title. 28 U.S.C. § 1920.
The Seventh Circuit has noted that the rule provides a “presumption that the
losing party will pay costs but grants the court discretion to direct otherwise.” Rivera v.
City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006). “The presumption in favor of awarding
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costs to the prevailing party is difficult to overcome, and the district court’s discretion is
narrowly confined—the court must award costs unless it states good reasons for denying
them.” Weeks, 126 F.3d at 945 (7th Cir. 1997) (citing Congregation of the Passion, Holy Cross
Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir. 1988)). “Generally, only
misconduct by the prevailing party worthy of a penalty or the losing party’s inability to
pay will suffice to justify denying costs.” Id.
PSAE seeks a total of $11,073.65 in costs (Doc. 233). EF argues that “PSAE makes
no attempt to meet its burden regarding costs . . . [and] nothing was done by PSAE to
show why any of these costs were necessary or reasonable” (Doc. 236, p. 4). However,
“the losing party bears the burden of an affirmative showing that taxed costs are not
appropriate.” Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 2005) (citing
M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991)). The prevailing
party is “not required to submit a bill of costs containing a description so detailed as to
make it impossible economically to recover photocopying cost.” Northbrook Excess &
Surplus Ins. Co., 924 F.2d at 643. Instead, the party must “provide the best breakdown
obtainable from retained records.” Id. (citing Levka v. City of Chicago, 107 F.R.D. 230, 231
(N.D. Ill. 1985)).
EF first contests PSAE’s $200 in pro hac vice fees. EF cites to several district court
cases within the Seventh Circuit in support of the notion that pro hac vice fees are not
taxable costs, but EF ignores the fact that the Seventh Circuit also has affirmed the award
pro hac vice fees as costs. See United States v. Emergency Med. Assocs. of Illinois, Inc., 436 F.3d
726, 730 (7th Cir. 2006) (finding no abuse of discretion in awarding pro hac vice fees to
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defendant who prevailed in a qui tam action). Not only are pro hac vice fees recoverable,
but also PSAE’s pro hac vice fees are reasonable. Unlike the excessive and unreasonable
request to recover pro hac vice fees in Indiana Coal. for Pub. Educ. - Monroe Cty. & S. Cent.
Indiana, Inc. v. McCormick, 2018 WL 6003970, at *3 (S.D. Ind. Nov. 15, 2018), where only
one of the three attorneys admitted pro hac vice signed his name to any substantive filings,
PSAE only had one pro hac vice fee for Mr. Elster (Doc. 233). Mr. Elster also signed his
name to substantive filings and appeared at least at one status conference (Docs. 203, 208,
210, 225, 227, 229, 234). Thus, the Court, in its discretion, allows PSAE’s request for $200
in pro hac vice fees.
Next, EF challenges PSAE’s $35.00 fee for service of summons and subpoena
because PSAE “has provided no evidence of this cost” (Doc. 236). Prevailing parties may
recover service costs that do not exceed the Marshals Service’s fees regardless of who
effected service. Collins v. Gorman, 96 F.3d 1057, 1060 (7th Cir.1996). Not only are PSAE’s
fees less than the Marshals Service, but also it would be preposterous to force PSAE to
explain the $35.00 fee considering the high cost of attorney time. Cf. Nat’l Org. for Women,
Inc. v. Scheidler, 750 F.3d 696, 698 (7th Cir. 2014) (acknowledging that “[n]o sensible legal
system requires parties to waste $60 of lawyers’ time to explain spending $6 on making
a copy of something”).
EF also challenges PSAE’s $10,016.15 fee for transcripts of various depositions and
copies of video-recorded depositions (Doc. 236, p. 6). EF does not object to the number of
depositions taken, or whether particular depositions were unnecessary or unreasonable.
Instead, EF objects generally “that many of these expenses cannot be considered
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necessary or reasonable, despite PSAE’s failure to provide any reasoning as to why the
transcripts were necessary and reasonable” (Doc. 236, p. 7). The Court disagrees. PSAE’s
deposition transcript costs were reasonably necessary as PSAE used deposition
transcripts in its Motion for Summary Judgment. Because EF fails to make specific
objections regarding cost of exhibits, price per page, e-transcripts, handling and delivery,
attendance of reporter, or copies, this Court will not deduct such charges or engage in
further analysis.
As to EF’s objection to PSAE’s $4,232.50 fee for obtaining video recordings, the
Court agrees. While a video deposition is a taxable cost under Rule 54 and § 1920, Little
v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008), PSAE’s cost of obtaining
copies of the videos are generally not permissible. See Deckers Outdoor Corp. v. Australian
Leather Pty. Ltd., 2020 WL 4723980, at *8 (N.D. Ill. July 13, 2020) (“[a]ttorney convenience
is an insufficient justification for obtaining video depositions”).
EF’s objection to PSAE’s $488.90 fee for printing is also sustained. PSAE has failed
to provide bills, invoices, or receipts showing what was printed. As a result, the Court
cannot determine whether the printing was necessary for use in this matter, and the Court
will not award PSAE’s cost.
Further, EF’s objection of PSAE’s $333.60 fee for exemplification and the costs of
making copies is sustained. While PSAE provided more details than the request for its
printing fees, PSAE does not describe what was copied. Because the Court cannot
determine whether the copies were necessary for use in this matter, this Court will not
award PSAE’s cost for making copies.
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C. Costs Incurred But Not Paid
As to any remaining costs, EF argues that PSAE failed to establish that these costs
were actually paid by PSAE (Doc. 236, p. 8). In support of this argument, EF relies on
pages 19 through 21 of PSAE’s Bill of Costs and conclusively argues that it “clearly lists
‘Eagle Forum Education and Legal Defense Fund,’ not PSAE, as the client of Riezman
Berger and payee of the costs billed” (Id.). EF continues noting that “the only logical
conclusion from PSAE’s submission is that an entity that is not a party to this case,
[EFELDF], incurred these costs” (Id.).
The Seventh Circuit has acknowledged:
Awards of costs, no less than damages, are limited to actual outlays or
obligations. If [a party’s] friend were a printer . . . , and donated duplicating
services . . ., [the party] could not recover the ‘reasonable value’ of these
services as part of [its] costs.
Neal v. Honeywell, Inc., 191 F.3d 827, 833 (7th Cir. 1999). At least one district court has held
that “Neal establishes that a prevailing party may recover only costs it actually paid.” See
Indiana Coal. for Pub. Educ. - Monroe Cty. & S. Cent. Indiana, Inc., 2018 WL 6003970, at *2
(noting that “[d]onated or otherwise uncharged costs may not be recovered”).
Declining PSAE the remaining $5,983.65 in costs would be improper. First, EF’s
attorneys misread pages 19 through 21 of PSAE’s Bill of Costs. EFELDF is not listed as
the payee. Instead, pages 19 through 21 of PSAE’s Bill of Costs list the “Client Sort” as
EFELDF. Second, listing EFELDF as the “Client Sort” and not PSAE does not show that
EFELDF incurred PSAE’s costs. Listing EFELDF as the “Client Sort” shows how PSAE’s
counsel organizes its files. The reasons why PSAE’s counsel listed EFELDF as the “Client
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Sort” could have been as simple as counsel representing EFELDF in the Madison County
case and deciding to not have different client numbers for PSAE and EFELDF for this and
other litigation. Third, pages 19 through 21 of PSAE’s Bill of Costs are only related to the
$333.60 fee for exemplification and the costs of making copies (Doc. 233, p. 19-21). Even
if this Court assumed that EFELDF paid for these costs, the Court has already deducted
the $333.60 fee from PSAE’s total request. And finally, $5,783.65 of the remaining
$5,983.65 in costs are directly related to depositions and transcripts of depositions—
which includes PSAE, not EFELDF on the invoices. Accordingly, EF’s argument that
PSAE failed to establish that these costs were actually paid by PSAE is rejected.
D. PSAE’s Conduct is Not Worthy of a Penalty
To deny a bill of costs on the grounds of misconduct, the prevailing party must
engage in misconduct “worthy of a penalty.” Congregation of the Passion, Holy Cross
Province, 854 F.2d at 222. The Seventh Circuit has suggested that misconduct worthy of a
penalty may include “calling unnecessary witnesses, raising unnecessary issues, or
otherwise unnecessarily prolonging the proceedings . . . .” Id. Only “exceptional
circumstances” warrant a complete denial of costs. Overbeek v. Heimbecker, 101 F.3d 1225,
1228 (7th Cir. 1996). The Seventh Circuit has found a prevailing party’s misconduct is
“worthy of a penalty” where counsel:
inexplicably refused over a dozen offers of the policy limit, needlessly
pursued a trial, appealed the jury’s decision not to award punitive damages
even though the defendants were judgment-proof, vanished for large
periods of time, frivolously argued for dual coverage, and even wasted time
and resources hailing [the losing party] into [a state] court for no apparent
reason.
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Id. Additionally, the Northern District of Illinois has found that a reduction of costs was
warranted where “[d]efendants’ attorneys engaged in repeated obstreperous pretrial
conduct,” and sanctioned Defendants “for failure to comply with this Court’s discovery
orders on multiple occasions.” Fairley v. Andrews, 2008 WL 961592, at *2 (N.D. Ill. Apr. 8,
2008). Another court in the Northern District of Illinois found that the defendants’
misconduct was “worthy of penalty” where “defendants had given statements about that
aspect of the incident that contradicted their sworn statements to the Court—upon which
the Court had relied . . . .” Matthews v. Debus, 2020 WL 5353280, at *8 (N.D. Ill. Sept. 6,
2020).
The alleged misconduct is centered around PSAE’s obstruction of discovery.
“[O]bstruction of discovery might, in some context, constitute the type of ‘misconduct’
that could warrant a denial of costs.” Beam v. Petersen, 2011 WL 4431815, at *2 (N.D. Ill.
Sept. 22, 2011), aff’d sub nom, 494 F. App’x 630 (7th Cir. 2012). But even in cases where
defendants have obstructed discovery and are sanctioned, courts have held that “[t]he
alleged misconduct [ ] falls well short of that in Overweek and Fairley and accordingly does
not justify a complete denial of costs.” IWOI, LLC v. Monaco Coach Corp., 2013 WL 870208,
at *1 (N.D. Ill. Mar. 6, 2013) (declining to deny the prevailing party’s bill of costs even
when the party failed to produce a highly relevant email); see also Fairley, 2008 WL 961592,
at *3 (finding that defendants’ conduct warranted only a reduction in costs—not a
complete denial of costs, though the defendants were sanctioned for their failure to
comply with the court’s discovery orders).
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The magnitude of PSAE’s alleged obstruction in this case falls well short of
“exceptional circumstances.” Discovery is often contentious, and this case was no
different, as Magistrate Judge Daly noted:
In the instant case, there has been a distinct lack of cooperation amongst the
attorneys in resolving discovery matters. Multiple discovery dispute
conferences have already been held.
(Doc. 69, p. 3). But a “distinct lack of cooperation” is not an “exceptional circumstance.”
PSAE was never sanctioned. PSAE was never held in contempt (Docs. 153, 169).
Magistrate Judge Daly even noted that PSAE and ETF adequately explained that their
failure to comply with certain orders was due to the appeals process and a myriad of
attorney-client privilege issues (Doc. 153). EF’s objection to any award of costs based on
alleged misconduct by PSAE is overruled.
II.
PSAE’s Motion for Attorneys’ Fees and Nontaxable Expenses
This Court notes that EF’s Opposition to PSAE’s Motion for Attorneys’ Fees
(Doc. 234) was not timely filed. Local Rule 7.1(c) allows an adverse party in a civil case to
respond 30 days after service of a motion to remand, to dismiss, for judgment on the
pleadings, for summary judgment, to suppress, and all post-trial motions. SDIL-LR 7.1
(c). Local Rule 7.1(g) provides, in part:
A party opposing a motion not listed in subsection (c) shall have 14 days
after service of the motion to file a written response. Failure to file a timely
response to a motion may, in the Court’s discretion, be considered an
admission of the merits of the motion.
SDIL-LR 7.1 (g).
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A motion for attorneys’ fees is not listed in Local Rule 7.1(c), thus EF had 14 days
from service of PSAE’s Motion for Attorneys’ Fees to file its response. Here, PSAE filed
its Motion for Attorneys’ Fees on April 8, 2020. Fourteen days from April 8, 2020 was
April 22, 2020. While EF filed its opposition to PSAE’s Bill of Costs on April 22, 2020, EF
filed its opposition to PSAE’s Motion for Attorneys’ Fees on May 8, 2020.
Nonetheless, the Court declines to strike EF’s Opposition to PSAE’s Motion for
Attorneys’ Fees (Doc. 240), because it was submitted prior to the Court’s ruling on fees
and PSAE’s counsel has had adequate opportunity to respond substantively to the
submission. Additionally, striking EF’s Opposition to PSAE’s Motion for Attorneys’ Fees
when PSAE’s own counsel, Riezman Berger, P.C., never provided EF with evidence
supporting the hours worked and rates claimed would be extremely prejudicial.
A. PSAE is the Prevailing Party Under the Lanham Act
Under the Lanham Act, courts “in exceptional cases may award reasonable
attorneys’ fees to the prevailing party.” 15 U.S.C. § 1117(a). A litigant is a “prevailing
party” “for attorney’s fees purposes if they succeed on any significant issue in litigation
which achieves some of the benefit the parties sought in bringing suit.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation omitted). “[T]o be considered a
prevailing party . . . [a party] must be able to point to a resolution of the dispute which
changes the legal relationship between itself and the defendant.” Texas State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (citations omitted).
Evaluating the change of legal relationship to determine whether PSAE is a
“prevailing party” does not assist EF’s argument that PSAE is not the prevailing party.
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This Court recognizes that defeating counterclaims may certainly change the litigants’
legal relationship, but here the dismissal of PSAE’s counterclaims did not change the
parties’ relationship. Unlike Hugunin, 2015 WL 12834301, where the plaintiff was allowed
to use the mark in its business when it defeated the defendant’s counterclaims, here the
dismissal of PSAE’s counterclaims only confirmed that “Ms. Cori and her organizations
hold equal right to use the imagery as does Mr. Schlafly . . . .” (Doc. 99, p. 9).
Rather, PSAE is the “prevailing party” under 15 U.S.C. § 1117(a). EF brought
claims for state law conversion; federal and state law trademark and service mark
infringement, unfair competition, and dilution; and federal cybersquatting (Doc. 40). All
of EF’s claims failed (Doc. 231). The Court’s dismissal with prejudice materially altered
the legal relationship of the parties, to the benefit of PSAE. EF did not bring this case to
attain a ruling that it held equal right to use the imagery of Phyllis Schlafly. EF, as one of
Ms. Cori’s organizations, already had that right because Phyllis Schlafly’s rights of
publicity descend just like traditional property, and “all Ms. Schlafly’s heirs would have
equal interest and equal right to use her image in commerce” (Doc. 99, p. 9). Accordingly,
PSAE is the prevailing party under the Lanham Act.
B. This is an Exceptional Case Under the Lanham Act
To award PSAE attorneys’ fees under 15 U.S.C. § 1117(a), the case must be
“exceptional.” The Supreme Court recognizes an “exceptional” case:
[as] simply one that stands out from others with respect to the substantive
strength of a party’s litigating position (considering both the governing law
and the facts of the case) or the unreasonable manner in which the case was
litigated.
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Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014). “District courts
may determine whether a case is ‘exceptional’ in the case-by-case exercise of their
discretion, considering the totality of the circumstances.” Id. To assist district courts, the
Supreme Court pointed to a nonexclusive set of factors including “frivolousness,
motivation, objective unreasonableness (both in the factual and legal components of the
case) and the need in particular circumstances to advance considerations of
compensation and deterrence.” Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)
(citations omitted)). “[A] case presenting either subjective bad faith or exceptionally
meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee
award.” Id. at 555 (citing Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 526
(D.C. Cir. 1985)).
Considering the totality of the circumstances, PSAE is entitled to attorneys’ fees
because of EF’s exceptionally meritless claims. For instance, without having a federal
registration for “American Eagles,” “Our Eagle Leaders,” “my American Eagle leaders,”
“loyal supporters,” and “Phyllis Schlafly’s Eagle Forum,” EF filed suit alleging
infringement (Doc. 231, p. 13). As for the claims surrounding the “EAGLE FORUM”
trademark, “PSAE brought a cogent argument to the table that EF refused to address,
shirking its burden based on the basic fundamentals of summary judgment caselaw in
seminal cases such as Celotex” (Id. at p. 14). EF’s dilution claims were also easily defeated
as to “EAGLE FORUM,” “American Eagles,” “Our Eagle Leaders,” “my American Eagle
leaders,” “loyal supporters,” and “Phyllis Schlafly’s Eagle Forum” because of their lack
of distinctiveness and their multi-source use amongst Schlafly’s entities (Id. at p. 16).
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Finally, EF’s cybersquatting claim fizzled as PSAE registered a variation of its own name,
which did not offend EF’s mark (Id. at p. 17).5
EF and its directors were also objectively unreasonable throughout this case by
adding to the cost and aggravation of this case by their discovery and litigation tactics.
As early as March 2017, EF’s directors filed a motion for Rule 45 contempt against
America’s Future, Inc. (“AFI”) for AFI’s alleged failure to respond to the subpoena
(Doc. 50). But the subpoena was not even valid as it failed to tender the appropriate
witness fee (Doc. 69). By May 2018, EF’s directors filed another motion for contempt
(Doc. 132). Magistrate Judge Daly recommended this Motion for Civil Contempt be
denied (Doc. 153). Despite EF’s repeated allegations of PSAE’s discovery abuses, EF’s
directors did not even object to Magistrate Judge Daly’s Report and Recommendation,
and this Court adopted it in its entirety (Doc. 168). Besides the motions for contempt, EF’s
directors filed at least three reply briefs (Docs. 91, 138, 143),6 and EF filed one Motion to
Strike PSAE’s Reply Brief (Doc. 211). Local Rule 7.1(c) provides that reply briefs should
only be filed in exceptional circumstances. SDIL-LR 7.1 (c). There were not three separate
exceptional circumstances in this case. Instead, these reply briefs and EF’s Motion to
Strike “merely generate[d] more briefing that the Court must read and address”
(Doc. 228).
EF also brought a theory of conversion outside its theories under the Lanham Act. Despite three years to
obtain evidence supporting its conversion theories, when responding to PSAE’s concerns about EF’s
conversion claims, EF never presented facts about a specific fund or checks that were converted by PSAE
(Id. at p. 7).
6 Magistrate Judge Daly allowed EF’s directors to file an 8-page reply brief to PSAE’s Response in
Opposition to Plaintiff’s Motion for Civil Contempt (Doc. 140). Spencer Fane’s Erik Solverud and Eric Block
filed an 11-page reply brief (Doc. 143).
5
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A deeper review of the record does not help EF. For instance, as early as 2016,
PSAE moved to stay this case because the Madison County case involved the same claims
(Docs. 15, 16). EF’s directors contested this motion and represented that this case is a
straightforward trademark infringement action and the Madison County case is not
relevant because PSAE is not even a party to that litigation (Doc. 33).7 But by November
2019, after PSAE filed its Motion for Summary Judgment, EF conveniently added PSAE
as a party in the Madison County case. Then EF filed a Motion to Stay (Doc. 215) and
represented at the December 12, 2019 status conference that the Court should stay this
case because PSAE was added to the Madison County case, which would address EF’s
conversion claims (Doc. 237, p. 5). But as Judge David Dugan recognized in the Madison
County case, this “[C]ourt is left with the impression that EF did not want the SDIL
litigation regarding conversion to end on summary judgment” (Doc. 247-1, p. 8).
Even if repeated unsuccessful motions for contempt, frivolous reply briefs, and
EF’s “whack-a-mole” approach to litigation8 could be construed as “playing hard,”9 EF’s
refusal to prosecute makes this case exceptional. In April 2019, Magistrate Judge Daly
ordered PSAE to provide the documents identified in Doc. 161 for inspection by the Court
(Doc. 171). PSAE timely responded and indicated that it had already produced many of
The original complaint filed included a conversion claim (Doc. 1, p. 12). EF’s directors omitted this fact in
their Opposition to PSAE’s Motion to Stay.
8 In the Madison County case, Judge David Dugan recognized EF’s tactics as a “sort of ‘whack-a-mole’
approach to litigation, although inventive and some might say, tactically sophisticated, is the very thing
that the public policy behind the doctrine of res judicata seeks to address—that litigation should have an
end and that no person should be unnecessarily harassed with a multiplicity of lawsuits” (Doc. 247-1, p. 8)
(emphasis added) (citations omitted).
9 The Seventh Circuit has acknowledged that “[p]laying hard—by the rules—cannot suffice to make a case
exceptional under § 1117(a).” TE-TA-MA Truth Found.-Family of URI, Inc. v. World Church of the Creator, 392
F.3d 248, 264 (7th Cir. 2004).
7
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those documents to EF’s directors (Doc. 172). As noted above, for four months, EF did not
contest PSAE’s production, but when PSAE filed its Motion for Summary Judgment
(Doc. 202), EF filed its Rule 56(d) Motion to Deny or Defer Consideration of PSAE’s
Motion for Summary Judgment (Doc. 206) noting that “it is essential that [EF] be able to
review all of the documents to which it is entitled, especially those that PSAE has
improperly refused to produce for years” (Id. at p. 4). Magistrate Judge Daly, as a result,
ordered that further documents referred to in Doc. 161 be produced to EF in her order of
November 13, 2019 (Doc. 212). On November 27, 2019, EF represented to this Court in its
Motion to Stay or In the Alternative for Continuance of Trial Setting “that PSAE has
finally produced all the documents responsive to [EF]’s written discovery requests, [EF]
is in a position to complete factual depositions” (Doc. 215, p. 6).
EF’s presentation of alleged discovery abuses by PSAE in EF’s Objections to
PSAE’s Bill of Costs (Doc. 236) and Opposition to PSAE’s Motion for Attorneys’ fees
(Doc. 240) is a further example of its objectively unreasonable behavior. PSAE was neither
sanctioned nor held in contempt in this case (Docs. 153, 169). Yet, EF insists that PSAE is
not entitled to attorneys’ fees because it engaged in significant discovery abuses. At best,
EF points out that in February 2020, six months after PSAE filed its Motion for Summary
Judgment, EF was served with thousands of highly relevant pages of documents relevant
to negotiable instruments made payable to EF, but deposited in bank accounts belonging
to PSAE (Doc. 240, p. 9). These allegations are significant, but EF misleadingly omits its
reasons for the delay in alerting this Court of the February 2020 production. Indeed, EF
could have filed a motion for reconsideration of the denials of its Motion under Rule 56(d)
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(Doc. 206) and EF’s Motion to Stay (Doc. 215). EF also had around two months to file
something to alert this Court of PSAE’s February 2020 production before this Court ruled
on PSAE’s Motion for Summary Judgment on April 1, 2020. 10
By bogging down this Court with its frivolous briefing11 and additional
information from the Madison County case, EF hoped to cover up the fact that EFF was
ordered on January 23, 2020 to produce documents disclosing the “amounts and dates of
individual donations and all other information encompassed within Requests 1, 2 and 5”
(Doc. 228, p. 6). EFF failed to comply with the Court’s January 23, 2020 order. On March
16, 2020, this Court ordered EF to respond to PSAE’s Motion for Contempt (Doc. 229) by
March 23, 2020 and state why the Court should not hold EF in contempt for its failure to
comply with the January order (Doc. 230). Neither EF nor EFF complied with this Court’s
March 16, 2020 order.
From the Court’s perspective, it appears that EF waited to alert the Court of the
February 2020 production because of the risk of EFF being forced to comply with this
Court’s orders. Faced with this possibility, EF chose to sit on its hands and wait to see if
its claims survived summary judgment. After failing, EF now wants to rely on the
February 2020 production, which only produced documents relevant to the very
conversion claims that EF’s attorney, James P. Sanders, a Partner of SmithAmundsen,
EF also does not identify who served it with these documents. If it was PSAE, then this is significant. But
EF notes in its earlier filing, its Objections to PSAE’s Bill of Costs, that “PSAE, EFELDF, and ETF produced
hundreds, if not thousands, of pages of new documents” (Doc. 236, p. 10-11). EFELDF and ETF are not
defendants in this case.
11 EF copied entire sections of its Objections to PSAE’s Bill of Costs (Doc. 236, pp. 9-10) and included it in
its Opposition to PSAE’s Motion for Attorney Fees (Doc. 240, pp. 6-7).
10
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LLC, told the Court that EF would drop once PSAE answered in the Madison County
case, “so it will transform this case into something that truly does need to be dealt with
in federal court . . . .” (Doc. 237, p. 5).
Accordingly, this is an exceptional case, and PSAE is entitled to attorneys’ fees. 12
C. Amount in Attorneys’ Fees to Award PSAE
To calculate the fee, the district court generally begins with the “lodestar”—the
product of the hours reasonably expended on the case multiplied by a reasonable hourly
rate. Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). “Although the lodestar yields a
presumptively reasonable fee . . . the court may nevertheless adjust the fee based on
factors not included in the computation,” such as the time and labor required, the novelty
or difficulty of the case, the degree of the success achieved, the experience and ability of
the attorneys, the adequacy of the documentation of the hours, and whether appropriate
billing judgment was used. Id. at 553.
This Court recognizes that PSAE may have engaged in unreasonable litigation tactics in other cases, but
the Court restricts its analysis to the parties’ litigation tactics in this case. While courts have looked at the
pattern of litigation in patent cases to determine whether a case is exceptional, looking at the parties’
litigation tactics in other cases would be imprecise. See e.g., SFA Sys., LLC v. Newegg Inc., 793 F.3d 1344, 1350
(Fed. Cir. 2015) (“pattern of litigation abuses characterized by the repeated filing of patent infringement
actions for the sole purpose of forcing settlements, with no intention of testing the merits the merits of one’s
claims is relevant to a district court’s exceptional determination under § 285”). If this was a typical
trademark case, where a litigant is genuinely trying to protect intellectual property rights, then this Court
would consider applying this pattern of litigation concept because of the overlap between patent and
trademark law. See e.g., S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 629 (7th Cir. 2001) (acknowledging a
party’s pattern of abusive and improper litigation which “have burdened the courts of this circuit”). Not
only is this not a typical trademark infringement case, but also PSAE is not repeatedly filing infringement
or dilution actions like a repeated filer. Instead, PSAE and its related entities and EF and its related entities
are battling it out against each other in multiple jurisdictions over similar, yet different issues. The litigation
tactics by PSAE in those other cases do not make PSAE’s tactics in this case exceptional. EF can, if
appropriate, seek recourse in those other jurisdictions.
12
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“The party seeking an award of fees” must “submit evidence supporting the
hours worked and rates claimed” in support of the lodestar. Hensley, 461 U.S. at 433. “[I]f
the lawyers fail to carry that burden, the district court can independently determine the
appropriate rate.” Montanez, 755 F.3d at 553. “As to the reasonableness of the hours
expended, when a fee petition is vague or inadequately documented, a district court may
either strike the problematic entries or (in recognition of the impracticalities of requiring
courts to do an item-by-item accounting) reduce the proposed fee by a reasonable
percentage.” Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000). “Whichever
option the district court chooses, it is required to ‘provide a concise but clear explanation
of its reasons for the fee award’ that is sufficient to permit appellate review. Id. (citing
Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646, 658 (7th Cir. 1985), quoting Hensley,
461 U.S. at 437).
i.
Hours Worked
The hours worked component of the lodestar must exclude hours not reasonably
expended, including “excessive, redundant, or otherwise unnecessary” hours. Hensley,
461 U.S. at 434. In determining whether hours are reasonable, the Court must determine
whether the task would normally be billed to a paying client and whether certain tasks
could easily be delegated to non-professional assistants. Spegon v. Catholic Bishop of
Chicago, 175 F.3d 544, 553 (7th Cir. 1999).
PSAE’s documentation for the portion related to Riezman Berger’s fees lack hours
worked and explanations for the amounts billed in this case (Doc. 234-8). PSAE did not
provide this information because Riezman Berger was worried that itemized billing
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entries would disclose information and strategies that relate to the pending Madison
County case (Id. at p. 15). The declaration from Riezman Berger then explained that it is
willing to provide the Court itemized billing for this matter in camera (Id.).
Allowing PSAE to submit its itemized billing now in camera would be against
Seventh Circuit and Supreme Court jurisprudence. “The Seventh Circuit has made it very
clear that a fee applicant must show the time spent on specific tasks rather than simply
the total time spent on a bundle of tasks.” Bretford Mfg., Inc. v. Smith Sys. Mfg. Co., 421 F.
Supp.2d 1117, 1119 (N.D. Ill. 2006). The Supreme Court has also made it very clear that a
fee applicant must show the time spent on specific tasks by acknowledging the following:
The most useful starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate. This calculation provides an objective basis on
which to make an initial estimate of the value of a lawyer’s services. The
party seeking an award of fees should submit evidence supporting the
hours worked and rates claimed. Where the documentation of hours is
inadequate, the district court may reduce the award accordingly.
Hensley, 461 U.S. at 433.
Also, as noted in PSAE’s Motion for Attorneys’ Fees (Doc. 234), a party seeking
attorneys’ fees must file a motion within fourteen days of an entry of judgment. FED. R.
CIV. P. 54(d). Riezman Berger did not provide its itemized billing at the time of filing
within the fourteen-day requirement. “[I]t [is] [ ] not the judge’s responsibility to make
up for the lawyers’ lack of documentation.” Montanez, 755 F.3d at 559. Certainly, Riezman
Berger’s detailed time entries could have divulged strategic information, but this does
not relieve PSAE of its burden. Riezman Berger could have taken several precautions to
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protect its information; the fact that Riezman Berger offered to later provide itemized
billing in camera after the deadline does not relieve Riezman Berger of its burden.
District courts within the Seventh Circuit have found similar proposals to be an
unattractive way of resolving the issue of disclosing strategic information in billing
records. In Cumulus Radio Corp. v. Olson, 2015 WL 3407438, at *4 (C.D. Ill. May 27, 2015),
the plaintiff chose to redact its records and offered the court the opportunity to review its
records in camera. The court agreed that “allowing [the] [court] ex parte access to
[p]laintiff’s invoices would deprive [defendant] of the opportunity to make arguments
regarding the reasonableness of the time entries.” Id. Like Cumulus Radio Corp, allowing
Riezman Berger to submit its itemized billing for this matter in camera would deprive EF
the opportunity to contest the reasonableness of Riezman Berger’s time entries.
Indeed, Riezman Berger has not even provided what courts have noted as
“lumped” entries. Courts reviewing “lumped” entries have reduced entries by 15% to
50% or even stricken the lumped entries as non-compensable. See, e.g., Am. Massage
Therapy Ass’n v. Folkers, 2006 WL 8459840, at *5 (N.D. Ill. Apr. 13, 2006) (reducing all
lumped time entries by 15%); Heriaud v. Ryder Transp. Servs., 2006 WL 681041, at *8 (N.D.
Ill. Mar. 14, 2006) (reducing lumped entries by 50%); In re Wiedau’s, Inc., 78 B.R. 904, 908
(Bankr. S.D. Ill. 1987) (striking the lumped entries as non-compensable). Like lumping,
Riezman Berger’s itemization “prevents the Court from finding out exactly how much
time was spent on a particular task, it also prevents the Court from determining whether
that time was reasonably spent.” In re Subpoenas Issued to Danze, Inc., 2006 WL 211942, at
*3 (N.D. Ill. Jan. 18, 2006) (reducing lumped entries by 50%).
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This Court has found a number of cases where district courts within the Seventh
Circuit have ordered the party seeking attorneys’ fees to file unredacted itemizations in
camera without automatically striking the requested fees. In those cases, however, the
party seeking attorneys’ fees at least provided redacted versions to the opposing party in
its motion for attorneys’ fees. See e.g., Eastby v. Collinsville Cmty. Unit Sch. Dist. No. 10,
2008 WL 746920, at *1 (S.D. Ill. Mar. 18, 2008) (party initially filed redacted legal bills due
to attorney-client privilege, but later ordered to produce unredacted bills for in camera
review); Stragapede v. City of Evanston, 215 F. Supp.3d 708, 724–25 (N.D. Ill. 2016) (party
initially filed redacted legal bills due to privileged attorney-client communications or
confidential attorney work product, but later directed to file an unredacted version of the
billing records ex parte and under seal); Cuff v. Trans States Holdings, Inc., 2013 WL 140607,
at *1 (N.D. Ill. Jan. 11, 2013), aff’d, 768 F.3d 605 (7th Cir. 2014) (ordering the plaintiff to
revise itemizations, “eliminating redactions where possible and, where impossible, to
submit an unredacted copy to chambers for evaluation”).
Riezman Berger submitted thirteen pages of invoices.13 The Court has reviewed
these invoices to determine whether counsel’s time was reasonably expended for this case
and not on other litigation. This review revealed that Riezman Berger’s time must be
excluded because this Court cannot separate compensable and non-compensable time.
See e.g., Moore v. Madigan, 2014 WL 6660387, at *11 (C.D. Ill. Nov. 24, 2014) (applying
“across-the-board reductions where the total number of hours attributable to
See Appendix A (presenting a list of Riezman Berger’s invoices by date and providing the docket activity
that took place during those invoices).
13
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compensable work is uncertain”); Bretford Mfg., Inc., 421 F.Supp.2d at 1119 (“[W]hen the
time records do not describe tasks with particularity, and do not reveal the amount of
time claimed to have been spent on each particular task, the judge is in no position to
make a reasonable estimate of the amount of time that should have been required. This
is the problem with ‘block billing,’ where the attorney simply lists a string of tasks
performed on a particular day and the total time spent on them, without indicating how
much time was spent on each of the tasks. Time records prepared in that manner clearly
do not satisfy the documentation requirements of Hensley.”).
Henry Elster (“Elster”) and John Dale Stobbs (“Stobbs”) submitted twelve time
sheets showing the total time spent on this case to date as 281.9 hours (Doc. 234-8). A
review of their itemized billing allows this Court to separate compensable and noncompensable time. EF contends, however, that Elster’s and Stobbs requests are
unreasonable based on (1) PSAE being represented by three lawyers from Riezman
Berger; (2) multiple entries are for work pertaining to the counterclaims PSAE filed and
had dismissed on October 20, 2017; (3) duplicative work already performed by other
attorneys; and (4) the number of entries where Stobbs “review[ed]” documents and
pleadings that “PSAE’s separate attorneys had already worked on or reviewed
themselves, or for the Stobbs Law Office to attend depositions and court appearances
which were already attended by multiple other attorneys representing PSAE” (Doc. 240,
pp. 17-18).
“A request for attorney’s fees should not result in a second major litigation.”
Hensley, 461 U.S. at 437. However, “duplicative time that could not be reasonably be billed
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to a client also cannot be billed to an adversary through a fee-shifting statute . . . .” Gibson
v. City of Chicago, 873 F. Supp. 2d 975, 989 (N.D. Ill. 2012). The Seventh Circuit has advised
courts to scrutinize fee petitions carefully for duplicative time. Jardien v. Winston Network,
Inc., 888 F.2d 1151, 1160 (7th Cir. 1989). Yet just because two lawyers have billed for the
same task does not mean the hours should be deducted. See Tchemkou v. Mukasey, 517
F.3d 506, 511–12 (7th Cir. 2008). The relevant inquiry remains whether the time was
“reasonably expended.” Id.
The Court has reviewed the entries objected to by EF and finds that many of the
entries between Elster and Stobbs are duplicative.14 Both Elster and Stobbs charged for
reading the same court orders, discovery documents, and deposition transcripts
(Doc. 234-8). Also, both Elster and Stobbs attended the same depositions and status
conferences. Accordingly, the Court will reduce the duplicative time by 50 percent, from
21.6 hours to 10.8 hours for Stobbs and from 28.6 hours to 14.3 hours for Elster.
As for EF’s argument on Elster’s fees related to PSAE’s dismissed counterclaims,
the Court agrees (Doc. 240, p. 17). Nonetheless, the Court understands that some of this
time was spent on Elster reviewing the case and analyzing the history of the litigation.
Accordingly, the Court will reduce this time by 50 percent, from 5.5 to 2.25 hours.
Approximately 30.6 hours of Stobbs’s time was spent “reviewing discovery,”
“reviewing pleadings,” “reviewing PSAE’s file,” and “reviewing filings in PSAE case”
(Doc. 234-8). Given the vague nature of these time entries, it is impossible for the Court
14
See Appendix B (presenting a chart showing the duplicative entries of both Elster and Stobbs).
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to determine whether these hours were truly necessary and not duplicative, or otherwise
non-compensable. Accordingly, the Court will reduce this time by 50 percent, from 30.6
hours to 15.3 hours.15
ii.
Hourly Rates
A reasonable hourly rate is the local market rate for the attorney’s services.
Montanez, 755 F.3d at 553. “The best evidence of an attorney’s market rate is his or her
actual billing rate for similar work.” Id. (citing Pickett v. Sheridan Health Care Ctr., 664 F.3d
632, 639-40 (7th Cir. 2011)). If that figure is not available, a court also may rely on
“evidence of rates charged by similarly experienced attorneys in the community” for
similar work and evidence of fee awards the attorney has received in similar cases. Id.
(citing Johnson v. GDF, Inc., 668 F.3d 927, 933 (7th Cir. 2012)).
Stobbs claims his hourly rate was $350. Elster claims his hourly rate was $240 in
2019 and $250 in 2020.16 Both Stobbs and Elster’s Declaration explain that these rates are
reasonable for this region. Based on the type of case, the complexity of litigation, and the
billing rates in this region, the Court agrees and finds these rates reasonable. See e.g., N.
Am. Van Lines, Inc. v. N. Am. Moving & Storage, Inc., 2020 WL 1130339, at *2 (N.D. Ind.
Mar. 6, 2020) (acknowledging that “$400 is presumptively appropriate as the market rate
for partner work in this trademark infringement action”); Craig v. Popmatters Media, Inc.,
448 F. Supp. 3d 844, 849 (N.D. Ill. 2020) (noting that hourly rates of $425 and $250 in
intellectual-property matters were reasonable where one of the attorneys submitted
15
16
See Appendix C (presenting a chart showing Stobbs’s vague entries).
Notably, Riezman Berger has not even provided its hourly rates.
Page 31 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 32 of 41 Page ID #5181
“evidence that in 2013, one of his clients was awarded fees at the hourly rate of $409.00,
[his] standard rate at the time, in an action in the Southern District of Illinois . . . .”).
iii.
Lodestar Calculation
For the reasons set forth above, the Court has calculated the total lodestar as
follows:
Attorney
John Dale Stobbs
Henry Elster
Riezman Berger
Requested
Hours
80.40
197.3
?
Disallowed
Hours
26.1
16.55
All
Total
Hours
54.3
180.75
0
Rate
$350
$240-$250
?
Total
Award
$19,005.00
$43,627.0017
$0.00
The Supreme Court has recognized that the “‘product of reasonable hours times a
reasonable rate’ normally provides a ‘reasonable’ attorney’s fee . . . .” Blum v. Stenson, 465
U.S. 886, 897 (1984) (quoting Hensley, 461 U.S. at 434). Upon determining the lodestar
amount, however, a court may adjust the award in light of such factors as the degree of
success, awards in similar cases, the novelty of the case, and the relationship between the
fees incurred and the damages awarded. See Hensley, 461 U.S. at 436. “Precision is
impossible in such calculations, and the district court is entitled to considerable discretion
in arriving at an award that it deems reasonable.” Sottoriva v. Claps, 617 F.3d 971, 976 (7th
Cir. 2010). Nevertheless, the district court must provide some explanation justifying its
decision. Id.
Out of Elster’s 197.3 requested hours, 172.6 of the hours were billed in 2019. All of the disallowed hours
from Elster were from hours worked in 2019. Thus, Elster’s 2019 total hours is 156.05 hours, the difference
between 172.6 hours and 16.55 hours. To determine the total award, this Court had to calculate the total
award of Elster’s 2019 attorney’s fees and the total award of his 2020 attorney’s fees. Elster’s 2019 total
award is $37,452.00 (Elster’s 2019 total hours, 156.05, multiplied by his 2019 rate of $240). Elster’s 2020 total
award is $6,175.00 (Elster’s 2020 total hours, 24.7 hours, multiplied by his 2020 rate of $250).
17
Page 32 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 33 of 41 Page ID #5182
This Court has already considered factors like the customary fees and whether the
fee is fixed or contingent in determining the number of hours and hourly rates. The Court
also notes that PSAE may not have obtained “excellent results” because its counterclaims
were dismissed (Doc. 99) and it lost on at least one discovery motion (Doc. 97), but this
Court will not reduce the lodestar amount based on these facts. A review of the record
shows that Elster and Stobbs did not appear in this case until April and May 2019—well
after PSAE’s counterclaims were dismissed and much of the fight over discovery was
over.
Finally, this Court certainly understands discovery was contentious and arguably
impacted every factor noted in Hensley. In fact, if this Court granted the fees requested
from Riezman Berger, then the Court would have evaluated whether a reduction is
warranted based on the manner in which Riezman Berger approached the litigation. See,
e.g., ADT Sec. Servs., Inc. v. Lisle Woodridge Fire Prot. Dist., 86 F. Supp. 3d 857, 870 (N.D. Ill.
2015) (reducing attorneys’ fee award by 10% to reflect “the overly contentious manner in
which some aspects of this case were litigated”). Here, however, neither Elster nor Stobbs
litigated in a manner which this Court believes requires a reduction. Most of the battle
over discovery took place between counsel for EF’s directors, Spencer Fane, and counsel
for PSAE, Riezman Berger.
As such, this Court will not make a reduction to the lodestar amount. Stobbs is
awarded $19,005.00 in fees. Elster is awarded $43,627.00. The Court declines to add
interest to these amounts.
Page 33 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 34 of 41 Page ID #5183
D. PSAE’s Nontaxable Costs
“A claim for attorney’s fees and related nontaxable expenses must be made by
motion unless the substantive law requires those fees to be proved at trial as an element
of damages.” FED. R. CIV. P. 54(d)(2)(A). A party’s motion must “specify the judgment
and the statute, rule, or other grounds entitling the movant to the award.” FED. R. CIV. P.
54(d)(2)(B).
Here, PSAE seeks $32,839.20 in nontaxable costs related to data storage expenses
for documents for this case (Doc. 234, p. 9). PSAE fails to specify the statute, rule, or other
grounds entitling it to nontaxable costs. PSAE does not rely on 15 U.S.C. § 1117(a) because
it does not specify which costs are recoverable or that a defendant can recover nontaxable
costs. Rather, the statute states that “the plaintiff shall be entitled, subject to the provisions
of sections 1111 and 1114 of this title, and subject to the principles of equity, to
recover . . . the costs of the action.” Id. (emphasis added). While PSAE cites Northern
District of Illinois Local Rule 54.3, which allows a party to file a fee motion for nontaxable
expenses, that Local Rule obviously does not apply to this Court.18
Even if there was a statute or rule entitling PSAE to nontaxable costs, PSAE has
not provided adequate documentation. District courts have discretion in determining to
what extent prevailing parties may be awarded costs. See Weeks, 126 F.3d at 945. Without
descriptions or explanations for the data storage, the Court cannot discern whether these
This Court found three cases within the Seventh Circuit where parties bringing claims under the Lanham
Act were awarded nontaxable costs. See Vito & Nick’s, Inc. v. Barraco, 2008 WL 4594347 (N.D. Ill. Oct. 10,
2008); Hickory Farms, Inc. v. Snackmasters, Inc., 2008 WL 4542961 (N.D. Ill. Apr. 2, 2008); Ty, Inc. v. Softbelly’s,
Inc., 2007 WL 734394 (N.D. Ill. Mar. 6, 2007), aff’d, 517 F.3d 494 (7th Cir. 2008). Notably, these cases come
out of the Northern District of Illinois.
18
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Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 35 of 41 Page ID #5184
costs were reasonable, or even necessary. There is also no indication as to the number of
documents stored or the rate at which PSAE was charged for storing the documents. See
Ingram ex rel. Ingram v. Jones, 46 F. Supp. 2d 795, 800 (N.D. Ill. 1999) (denying plaintiff’s
request for expenses based on failure to provide explanation for photocopies, messenger
services, and faxes). Accordingly, PSAE is not entitled to nontaxable costs.
E. Fees and Costs PSAE Did Not Incur or Pay
EF asserts that PSAE “should not be permitted to collect costs and expenses paid
by a third-party—here, EFELDF—because EFELDF would not be liable to pay the costs
and expenses of [EF] if PSAE had been unsuccessful in this suit” (Doc. 240, p. 14). EF
provides cases from state courts outside Illinois for this argument, but they are not
persuasive.
The Court has found one case from the Seventh Circuit which arguably in dicta
pushes the notion that fees “actually paid in the ordinary course of . . . business” is strong
evidence that a fee request is commercially reasonable. Medcom Holding Co. v. Baxter
Travenol Laboratories, Inc., 200 F.3d 518, 520 (7th Cir.1999). But Medcom Holding Co. did not
even deal with a federal fee-shifting statute. Instead, the case applied Illinois law and
addressed whether the prevailing party is entitled to attorneys’ fees on the strength of an
indemnity clause. Id. at 518-20.
More importantly, the very case that cited Medcom Holding Co. for this notion does
not help EF. In Lizak v. Great Masonry, Inc., the plaintiff’s attorneys had not received
payment for their work on the case. 2010 WL 3001906, at *1 (N.D. Ill. July 29, 2010). The
plaintiff also did not pay for out-of-pocket expenses incurred in the case. Id. Rather than
Page 35 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 36 of 41 Page ID #5185
denying the prevailing party attorneys’ fees and costs, the court calculated the
appropriate amount of costs and attorneys’ fees and awarded that amount to the plaintiff
directly. Id. at 7.
It is possible that EF did not find cases more on point because the answer is
obvious. See Christian v. St. Anthony Med. Ctr. Inc., 117 F.3d 1051, 1052 (7th Cir. 1997)
(acknowledging that “[w]e cannot find a case on the question, but the answer seems
obvious—maybe that’s why there are no cases . . . .”). Here, PSAE is permitted to collect
costs and expenses. If not, then prevailing plaintiffs with contingency fee arrangements
would not be awarded attorneys’ fees.
CONCLUSION
For these reasons, Defendant PSAE’s Bill of Costs (Doc. 233) and Motion for
Attorneys’ fees and Nontaxable Expenses (Doc. 234) are GRANTED in part and
DENIED in part. PSAE is entitled to a total of $62,632.00 in attorneys’ fees. Plaintiff EF is
ORDERED to pay PSAE’s costs in the amount of $6,018.65.19
In PSAE’s Motion for Attorneys’ Fees and Nontaxable Costs, PSAE requests that fees and expenses be
assessed jointly and severely against EF and EF’s directors (Doc. 234, p. 10). PSAE cites no authority for this
proposition. On its face, PSAE appears to have an argument as the Seventh Circuit has noted that feeshifting statutes “do not specify with particularity those who may be called upon to shoulder . . . fee
awards.” King v. Illinois State Bd. of Elections, 410 F.3d 404, 421 (7th Cir. 2005) (quoting Charles v. Daley, 846
F.2d 1057, 1063 (7th Cir. 1988)) (citations omitted). Further, several courts recognize that a corporate officer
can be liable for 35 U.S.C. § 285 fees when the officer is personally responsible for the exceptional acts. See
My Health, Inc. v. ALR Techs., Inc., 2020 WL 122933, at *4 (E.D. Tex. Jan. 10, 2020) (collecting cases).
19
Not only is PSAE being awarded fees under a different statute, but also EF’s directors were dismissed from
this case pursuant to Rule 21 because they were not properly joined in this action under Rule 20 (Doc. 187).
“Rule 21 dismissals are retroactive, [ ] and the complaint is read as if the dismissed party had never been
included . . . .” Dexia Credit Local v. Rogan, 629 F.3d 612, 621 (7th Cir. 2010) (citing Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 829 (1989); LeBlanc v. Cleveland, 248 F.3d 95, 99 (2d Cir. 2001)). Due process
requires that the parties be named and given the opportunity to respond. See Applied Materials, Inc. v.
Multimetrixs, LLC, 2009 WL 1457979, at *5 (N.D. Cal. May 26, 2009) (recognizing that due process requires
that principals “be named as parties and given the opportunity to respond and be heard before being
Page 36 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 37 of 41 Page ID #5186
IT IS SO ORDERED.
DATED: October 30, 2020
___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
subjected to a judgment of personal liability”); Ulead Sys., Inc. v. Lex Computer & Mgmt. Corp., 151 F. Supp.
2d 1192, 1208 (C.D. Cal. 2001), vacated and remanded on other grounds, 351 F.3d 1139 (Fed. Cir. 2003)
(recognizing the president “must be named a party to the action in order to be liable under Section 285”);
cf. Nelson v. Adams USA, Inc., 529 U.S. 460, 468 (2000) (holding that due process was violated by amending
judgment to impose liability for fees on an individual simultaneously with amendment of pleadings, and
noting that “[p]rocedure of this style has been questioned even in systems, real and imaginary, less
concerned than ours with the right to due process”). Allowing fees to be assessed against EF’s directors
when they are no longer parties to the action would violate due process.
Page 37 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 38 of 41 Page ID #5187
APPENDIX A
Invoice
Dates
Fees
10/21/2016
$7,408.50
11/14/2016
$2,145.00
Potential Docket Entries & Items from PSAE’s Bill of Costs that Could Illustrate
Riezman Berger’s Work
9/23/2016 - Filed MTD
10/17/2016 - Joint Discovery Report
None
12/19/2016
$2,319.00
12/2/2016 - Worked with Spencer Fane on ESI Protocol.
1/19/2017
$3,284.00
None
2/14/2017
$7,698.50
3/16/2017
$22,889.00
2/6/2017 - Answer Amended Complaint
2/9/2017 - Discovery Dispute Conference
None
3/22/2017 - Discovery Dispute Conference
3/22/2017 - Motion for Protective Order
3/31/2017 - Motion for leave to file counterclaims
4/6/2017 - Discovery Dispute Conference held
4/26/2017 - Hearing held before Magistrate Judge Daly
5/4/2017 - Counterclaims filed
5/12/2017 - Joint Motion for Leave to File Amended Scheduling Order
5/16/2017 - Hearing held before Magistrate Judge Daly
6/19/2017 - Motion for Extension of Time to File Response to EF’s Motion to Dismiss
for Lack of Jurisdiction
7/5/2017 - Memorandum in opposition to EF’s Motion to Dismiss
4/17/2017
$36,849.25
6/14/2017
$45,228.50
7/14/2017
$60,351.95
9/12/2017
$10,012.00
None
10/25/2017
$10,376.50
9/22/2017 - Joint Motion to Amend/Correct Scheduling Order
10/19/2017 - Discovery Dispute Conference
11/9/2017
$18,277.00
12/8/2017
$13,643.50
10/30/2017 - Motion for Discovery Memorandum In Support of the Common
Interest Doctrine
11/15/2017 - Discovery Dispute Conference
None
1/23/2018
$10,516.00
None
2/23/2018
$252.00
2/15/2018 - Appeal of Magistrate Judge Decision
3/27/2018
$11,266.50
3/16/2018 - Response to Status Report
4/24/2018
$17,198.50
None
5/18/2018
$2,550.00
5/9/2018 - Response in Opposition to EF’s Motion for Contempt
5/29/2018 - Motion Hearing held in front of Magistrate Judge Daly
6/13/2018
$31,718.00
6/4/2018 - Memorandum in Opposition to EF’s Motion for Contempt
7/16/2018
$11,625.50
None
10/18/2018
$2,638.00
None
11/15/2018
$3,311.50
None
12/13/2018
$3,185.50
12/12/2018 - Motion and Memorandum in Support for Judgment on the Pleadings
12/13/2018 - Motion and Objection to Magistrate Judge’s Order on November 29,
2018
1/23/2019
$17,411.90
12/28/2018 - Memorandum in Opposition regarding EF’s Motion Seeking in
Camera Review of Certain Documents Remaining on the Privilege Log
Page 38 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 39 of 41 Page ID #5188
2/19/2019
$9,155.00
2/11/2019 - Motion for Protective Order
3/13/2019
$14,757.50
None
4/12/2019
$36,183.50
5/9/2019
$26,973.50
6/6/2019
$35,172.00
3/25/2019 - Deposition of Kathleen Sullivan;
3/27/2019 - Deposition of Rosina Kovar;
3/29/2019 - Deposition of Cathie Adams;
4/23/2019 - Response to Order on Motion for in Camera Review of Certain
Documents
5/9/2019 - Deposition of Eunie Smith
5/10/2019 - Deposition of Carolyn McLarty
7/11/2019
$23,619.00
6/10/2019 - Motion for Protective Order Regarding Continued Deposition of
Kathleen Sullivan;
7/9/2019 - Motion hearing held in front of Magistrate Judge Daly
8/12/2019
$9,713.00
7/26/2019 - Consent Motion for Extension of Time to File Response/Reply;
8/6/2019 - Response to Motion to Quash PSAE’s subpoena duces tecum to EFF
9/17/2019
$3,351.00
10/8/2019
$866.50
9/18/2019 - Reply to Response to Motion for Summary Judgment.
11/7/2019
$1,238.00
None. Perhaps, this bill is for the attorneys reviewing this Court’s orders.
12/5/2019
$4,565.50
12/2/2019 - Rule 26 (a)(3) Disclosures, Designations, and Objections by PSAE
1/7/2020
$3,421.00
12/12/2019 - Motion hearing held in front of this Court.
2/7/2020
$286.00
None. Perhaps, this bill is for the attorneys reviewing this Court’s orders.
3/13/2020
$680.00
3/16/2020 - Helped with Motion for Contempt under Rule 45 against EFF
Total
$522,137.60
9/3/2019 - Memorandum in Opposition re EF’s Motion under Rule 56(d).
Page 39 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 40 of 41 Page ID #5189
APPENDIX B
Date of
Stobbs
Entry
Stobbs
Time
Date of
Elster
Entry
Description of
Stobbs time
Description of Elster’s time
4.2
5/29/2020
4.3
6/14/2020
3.8
9/3/2020
4.1
12/11/2020
3.1
12/12/2020
2.1
Time
Duplicated
21.6
Review Eagle Trust
Fund documents;
research how other
organizations are
set up and
organized in the
country to try to
locate experts who
can give an opinion
of PSAE members
being able to
compete with Eagle
Forum
Review depositions
including Bruce
Schlafly
Review filings in
PSAE case and
discovery to
prepare for status
conference
5/9/2020
3.8
Deposition of Eunie Smith in
PSAE
5/30/2020
5.3
Review Ed martin deposition in
Mad co
8/1/2020
5/9/2020
Deposition of Eunie
Smith in PSAE
Review Ed Martin
& John Schlafly
depositions
Elster
Time
3.4
Review Ed martin deposition
for use of MSJ
6
7/24/2020
5.9
Review of Bruce Schlafly PSAE
deposition
12/11/2020
1.5
Preparation for 12/12 hearing;
preparation for potential oral
argument on one or more
pending motions; review case
file
12/12/2020
2.7
Court hearing re:
pretrial/status conference;
travel to IL; client meeting
Time
Duplicated
Court Appearance
in PSAE; review
filings in PSAE
7/23/2020
Review of Madison Co. Filings,
EF bylaws, solicitation
materials claim of unfair
competition
28.6
Page 40 of 41
Case 3:16-cv-00946-NJR Document 249 Filed 10/30/20 Page 41 of 41 Page ID #5190
APPENDIX C
Date of Stobbs
Entry
6/18/2020
Stobbs
Time
0.7
6/29/2020
2.6
8/14/2020
2.6
10/25/2020
2.6
10/28/2020
0.9
Review PSAE file and motions filed in PSAE
11/23/2020
4
Begin review of PSAE discovery documents
11/24/2020
3.7
Review discovery documents in PSAE case
11/25/2020
2
11/26/2020
6.4
Review pre-trial order in PSAE; review discovery; review docket and
pleadings
11/28/2020
1.2
Review filings in PSAE case; review discovery and begin to assimilate for
pre-trial order
11/30/2020
1.6
File Review of PSAE
12/4/2020
Vague Time Total
2.3
30.6
Review discovery in PSAE
Description of Stobbs’s time
Review discovery related to PSAE emails
Review pleadings & timelines; review depositions of John Schlafly to find
inconsistencies; review PSAE pleadings
File Review of PSAE pleadings
Review PSAE file; telephone conference with John Schlafly, Henry Elster
and Randy
Review discovery in PSAE
Page 41 of 41
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