PAULA M. YOST (SBN 156843) IAN R. BARKER (SBN 240223 ... · DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA PAULA M. YOST (SBN 156843) IAN

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DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA

PAULA M. YOST (SBN 156843) IAN R. BARKER (SBN 240223) DENTONS US LLP One Market Plaza Spear Tower, 24th Floor San Francisco, CA 94105 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Defendant CEIBA LEGAL, LLP MICHAEL V. BRADY (SBN 146370) MICHAEL E. VINDING (SBN 178359) BRADY & VINDING 400 Capitol Mall, Suite 2640 Sacramento, CA 95814 Telephone: (916) 446-3400 Facsimile: (916) 446-7159 LITTLE FAWN BOLAND (SBN 240181) CEIBA LEGAL, LLP 35 Madrone Park Circle Mill Valley, CA 94941 Telephone: (415) 684-7670 x101 Facsimile: (415) 684-7273 Attorneys for Individual Defendants Michael Hunter, Anthony Steele, David Brown, Adrian John, Natalie Sedano Garcia, Kiuya Brown

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA ELEM INDIAN COLONY OF POMO INDIANS OF THE SULPHUR BANK RANCHERIA, A FEDERALLY RECOGNIZED INDIAN TRIBE, Plaintiff, v. CEIBA LEGAL, LLP, MICHAEL HUNTER, ANTHONY STEELE, DAVID BROWN, ADRIAN JOHN, PAUL STEWARD, NATALIE SEDANO GARCIA, KIUYA BROWN, AND DOES 1-100, INCLUSIVE, Defendants.

CASE NO. 3:16-cv-03081-WHA DEFENDANTS’ MOTION FOR ATTORNEYS’ FEE AWARD AND SUPPORTING MEMORANDUM Date: January 12, 2017 Time: 8:00 a.m. Place: Courtroom 8, 19th Floor Before: Hon. William H. Alsup

Case 3:16-cv-03081-WHA Document 70 Filed 11/30/16 Page 1 of 23

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-i- DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii NOTICE OF MOTION AND MOTION.........................................................................................1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

INTRODUCTION....................................................................................................................... 1

FACTS ........................................................................................................................................ 2

ARGUMENT .............................................................................................................................. 6

1. Defendants are Entitled to Their Attorneys’ Fees under the Lanham Act. ...................... 6

A. Plaintiff’s Suit Is Both Exceptionally Meritless and Brought in Bad Faith. ........... 6 B. Defendants Are Entitled to Attorneys’ Fees Incurred Defending Plaintiff’s

Lanham Act Claims And Other Intertwined Claims. .............................................. 8

2. Defendants are Entitled to Their Fees Under the Anti-SLAPP Statute............................ 9

A. The Court’s Order Supports an Attorneys’ Fees Award Under the Anti-SLAPP Statute......................................................................................................... 9

B. The Anti-SLAPP Statute Entitles Defendants to All Reasonable Attorneys’

Fees........................................................................................................................ 10

3. Defendants’ Attorneys’ Fees Are Reasonable................................................................ 11

A. Defendants’ Attorneys Spent a Reasonable Number of Hours on this Case......... 11 B. Defendants’ Attorneys’ Hourly Rates Are Reasonable......................................... 13 C. Defendants Are Entitled To Recover Fees Incurred Bringing this Motion........... 14 D. Defendants Are Entitled To Recover Nontaxable Costs. ...................................... 14 E. Defendants Request a Fee Multiplier of 1.5 In Recognition of their

Financial Risk and Discounts From Customary Rates.......................................... 15

CONCLUSION .........................................................................................................................16


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-ii- DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA

TABLE OF AUTHORITIES

Page FEDERAL CASES Albrecht v. Tkachenko No. 14-CV-05442-VC, 2015 WL 2227607, at *1 (N.D. Cal. May 11, 2015).....................7, 8 Bosley Med. Inst., Inc. v. Kremer 403 F.3d 672 (9th Cir. 2005)...................................................................................................7 Camacho v. Bridgeport Fin., Inc. 523 F.3d 973 (9th Cir. 2008) ................................................................................................14 Empress LLC v. City & County of S.F. 419 F.3d 1052 (9th Cir. 2005)...............................................................................................10 Gracie v. Gracie 217 F.3d 1060 (9th Cir. 2000)...........................................................................................8, 13 Graham-Sult v. Clainos 756 F.3d 724 (9th Cir. 2014).................................................................................................14 Henry v. Bank of Am. Corp. 2010 U.S. Dist. LEXIS 94028 (N.D. Cal. 2010).....................................................................9 Kearney v. Foley & Lardner 553 F. Supp.2d 1178 (S.D. Cal. 2008) ..................................................................................10 Ketab Corp. v. Mesriani Law Grp., No. CV 14-7241-RSWL-MRWX 2016 WL 4425714, at *7 (C.D. Cal. Aug. 17, 2016) ............................................................13 Lahoti v. Vericheck, Inc. 636 F.3d 501 (9th Cir. 2011)...................................................................................................6 Metabolife Inter. v. Wornick 213 F.Supp.2d 1220 (S.D. Cal. 2002) ...................................................................................11 Metabolife, Int’l Inc. v. Wornick 264 F.32 832 (9th Cir. 2001)...................................................................................................2 Morales v. City of San Rafael 96 F.3d 359 (9th Cir. 1996)...................................................................................................11 Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd. 711 F.3d 1136 (9th Cir. 2013 ..................................................................................................7 Oberfelder v. Bertoli 67 F. App’x 408 (9th Cir. 2003)............................................................................................15 Oberfelder v. City of Petaluma No. C-98-1470 MHP, 2002 WL 472308, at *11 (N.D. Cal. Jan. 29, 2002)..........................15 Octane Fitness, LLC v. ICON Health & Fitness, Inc. 134 S. Ct. 1749 (2014) ..............................................................................................................6


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-iii- DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA

TABLE OF AUTHORITIES (Continued)

Page FEDERAL CASES Palermo v. Underground Solutions, Inc. 2013 U.S. Dist. LEXIS 10439 (S.D. Cal. 2013) .......................................................................9 Pandora Jewelry, LLC v. Bello Paradiso, LLC 2009 U.S. Dist. LEXIS 56265 (E.D. Cal. 2009) .......................................................................9 People for the Ethical Treatment of Animals v. Doughney 263 F.3d 359 (4th Cir. 2001).....................................................................................................7 Powell v. U.S. Dep’t of Justice 569 F. Supp. 1192 (N.D. Cal. 1983) .......................................................................................15 Sosa v. DIRECTV, Inc 437 F.3d 923 (9th Cir. 2006)................................................................................................2, 7 SunEarth, Inc. v. Sun Earth Solar Power Co., No. 13-17622, 2016 WL 6156039, at *2 (9th Cir. Oct. 24, 2016) ....................................................................6 Trustees of Const. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co. 460 F.3d 1253 (9th Cir. 2006).................................................................................................14 United Steelworkers of Am. v. Ret. Income Plan For Hourly-Rated Employees of

ASARCO, Inc. 512 F.3d 555 (9th Cir. 2008)...................................................................................................15 Wynn v. Chanos, No. 14-CV-04329-WHO, 2015 WL 3832561, at *6 (N.D. Cal. June 19, 2015).........................................................13, 14 STATE CASES Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.................................................................................................................9 Navellier v. Sletten (2002) 29 Cal.4th 82................................................................................................................10 Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211......................................................................................................9 Robertson v. Rodriguez (1995) 36 Cal.App.4th 347......................................................................................................11 STATUTES15 U.S.C. § 1051 et seq............................................................................................................................1 § 1114(1)(a).............................................................................................................................7 § 1117(a)..................................................................................................................................6 § 1125(a)(1).............................................................................................................................7


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-iv- DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA

TABLE OF AUTHORITIES (Continued)

Page STATUTES California Code of Civil Procedure § 425.16 ...................................................................................................................................2 § 425.16(b)(1)........................................................................................................................10


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-1- DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA

NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE THAT on January 12, 2017, at 8:00 a.m., in Courtroom 8 of the

above-entitled Court, Defendants will move this Court to award $383,051.25 in attorneys’ fees and

$7,668.21 in costs and expenses.

This motion is made on the grounds that the requested award is fair, reasonable, and

appropriate under applicable law. The requested fee award is warranted here in light of the results

obtained given the significant risks of continued litigation, and the many attorney hours worked to

obtain a favorable result thereby ending this litigation.

This motion is based on this Notice, the attached Memorandum of Points and Authorities,

the accompanying declarations of Ian R. Barker, Michael V. Brady, Little Fawn Boland, and

Howard P. Janis, the Court’s file in this action, and any oral and documentary evidence presented

at the hearing on the motion.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

On November 3, 2016 the Court issued its “Order Granting Motion to Dismiss” (hereinafter

“Order”) the First Amended Complaint without leave to amend. The First Amended Complaint

asserted against seven defendants seven separate claims: (1) tortious interference with contract;

(2) fraud and deceit; (3) a civil RICO claim; (4) trademark infringement under the Lanham Act1;

(5) trademark infringement under California law; (6) common law injury to business reputation;

and (7) vicarious trademark infringement.

All seven claims were based upon Defendants’ correspondence with government officials

and banks after a disputed tribal election that was ultimately appealed to the Interior Board of

Indian Appeals (“IBIA”). In their motions to dismiss, Defendants asserted these communications

did not infringe upon any trademark because, among other reasons, they were absolutely protected

free speech under federal and state law. The Court found that the Noerr-Pennington doctrine

barred all seven claims and did not rule on whether the other defenses also barred Plaintiff’s

1 Codified at 15 U.S.C. section 1051 et seq.


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claims.2

Defendants now move this Court for an award of attorneys’ fees pursuant to the Lanham

Act and California’s anti-SLAPP statute.3 The Lanham Act provides for fees where the underlying

claim is exceptionally meritless. The anti-SLAPP statute requires a fee award even when the case

is dismissed on other grounds. Case law under both statutes authorizes recovery of attorneys’ fees

for those claims that are inextricably intertwined and based upon the same facts as covered claims.

Awarding Defendants their attorneys’ fees advances the public policy underlying the

Lanham Act’s fee shifting provision and the anti-SLAPP statute, which was enacted “to allow

early dismissal of meritless first amendment cases aimed at chilling expression through costly,

time-consuming litigation.” (Metabolife, Int’l Inc. v. Wornick, 264 F.32 832, 839 (9th Cir. 2001).)

FACTS

The petitioning activity at issue here arose out of a tribal election on November 8, 2014.

Two groups of Tribal members (the Brown and Garcia Factions) claimed to have been lawfully

elected to serve as the Executive Committee to the Elem Indian Colony of Pomo Indians (“Tribe”).

In connection with the dispute, correspondence was sent to banks and government officials in

January and February 2015, notifying them the disputed election and asking for freeze the Tribe’s

assets and a hold on distribution of funds to either faction during the pendency of the dispute.4 The

Brown Faction appealed the election dispute to the IBIA on December 31, 2015. (Declaration of

Little Fawn Boland (“Boland Dec.”) at ¶ 18.) The IBIA has taken the appeal under submission and

has yet to rule. (Id.)

On March 30, 2016 the Garcia Faction purported to disenroll and banish forty-eight Tribal

members. (Boland Dec. at ¶ 19.) On May 16, 2016, the Brown Faction served a Petition for Writ

of Habeas Corpus. (Boland Dec. at ¶ 21.) The Petition is currently before this court under Adrian

John, Sr., et al. v. Stephanie Brown, et al., Case No. 3:16-cv-02368-WHA (“Habeas Action”).

2 The Noerr-Pennington doctrine ensures that laws giving rise to liability are construed to exclude acts of

petitioning the government for redress from liability. (Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006).) 3 California Code of Civil Procedure section 425.16. SLAPP is an acronym for strategic lawsuit against public

participation. 4 The letter is attached as pages 5-6 of Exhibit A to the First Amended Complaint herein.


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(Id.) In retaliation, on June 6, 2016, the Garcia Faction filed the instant action against the

Individual Defendants and their legal counsel, Ceiba Legal, LLP, alleging liability for the

correspondence sent fifteen months prior.

This suit was not the first time Plaintiff had filed meritless claims against legal counsel

representing Plaintiff’s political opposition. The year before, on May 13, 2015, the Garcia Faction

filed a complaint against Little Fawn Boland of Ceiba Legal, LLP with the State Bar of California,

based on the firm’s assertions that the Brown Faction also claimed that it had been duly elected.

(Boland Declaration at ¶ 17.) The State Bar dismissed the complaint on September 2, 2015,

finding that the Garcia Faction’s claims did not warrant further investigation given the pending

appeal before the Bureau of Indian Affairs. (Id.) (This was the second time that the State Bar

dismissed a complaint that the Garcia Faction filed against Ms. Boland, as a claim filed in

September 2014 was also dismissed. (Id.) The State Bar’s September 2015 decision thus put

Plaintiff on notice that the communications at issue in this lawsuit were protected speech in

connection with a leadership dispute that was still under administrative review. (Id.)

Plaintiff’s original Complaint in this action recited that the correspondence giving rise to

this action was “sent on or around March 28, 2016,” and referenced, but did not attach, “The

Fraudulent Correspondences [sic]” as “Ex A.” (Complaint (Doc. 1), ¶¶ 11-12.) It is not clear

whether Plaintiff’s counsel possessed or had reviewed the correspondence at the time of filing the

Complaint, because the correspondence referenced in the Complaint was actually sent in January

and February 2015, not March 2016. (First Amended Complaint (Doc. 28), Ex. A.) However,

when Defendants informed Plaintiff of the discrepancy and stipulated to Plaintiff amending its

complaint to fix it, Plaintiff’s counsel added the missing exhibit, but apparently still failed to

review it, as the amended complaint was still inconsistent with the newly uncovered documents.

(First Amended Complaint, ¶ 12 (identifying correspondence “sent on or around March 28,

2016”).)

Sued alongside its clients, Ceiba Legal obtained its own counsel. Legal counsel for

Individual Defendants and Ceiba Legal filed motions to dismiss all seven claims in Plaintiff’s First

Amended Complaint. In support, Defendants submitted testimonial and documentary evidence to


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correct the record in light of Plaintiff’s factual misstatements. Defendants advanced a number of

independent bases to dismiss Plaintiff’s suit. (Docs. 32, 35.) Plaintiff sought leave to file an

overlong opposition brief (Doc. 40), and ultimately filed a 36 page opposition, along with a

voluminous declaration and request for judicial notice (Doc. 45). In all, given the numerous

factual and legal errors in Plaintiff’s First Amended Complaint and opposition brief, Defendants’

successful moving and reply papers necessarily included 64 pages of legal argument and nearly

one-hundred pages of evidence. (Docs. 32, 33, 35, 51, 52.)

Among other grounds, Defendants moved to dismiss on the basis that the allegedly

“Fraudulent Correspondences [sic]” were protected petitioning activity in connection with the

disputed 2014 election. In response, Plaintiff tried to change the subject, arguing that certain

proceedings related to the tribal disenrollment in March 2016, well after the events described in the

First Amended Complaint, were a “sham.” Despite the First Amended Complaint having never

mentioned disenrollment, Plaintiff later contended that the reason the petitioning activity was a

“sham” was due to the March 2016 disenrollments, events that occurred well after the events

described in the First Amended Complaint.

At oral argument in the related Habeas Action before this Court on September 14, 2016, the

Court questioned the Garcia Faction’s litigation posture, and specifically its claim that certain

tribal filings of the Brown Faction resisting their disenrollment and banishment were untimely: THE COURT: Yeah. And it looks like it was timely. And Ms. Boland is correct that your—your own guy [Garcia Faction Chairman Agustin Garcia] didn’t mention anything about being untimely. And you just have blown it off. You’ve blown off the answer. You didn’t— I don’t know which side is correct in this, this dispute, but to me, this stinks. You know that? I’m just going to tell you: It stinks.

(Transcript of Proceedings, Oral Argument of John v. Garcia (Sept. 14, 2016) (“Habeas

Transcript”) at 29.)

The Court further addressed Garcia Faction’s counsel Jack Duran on the issue: THE COURT: But, you’ve got to tell me something. She answered on time. And that piece-of-crap declaration that you submitted doesn’t come to grips with that. She answered on time.


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The notice said “Answer.” She answers on time. All of them do. And they get disenrolled anyway. And then you tell me the—still in progress. But it’s been—an order that says they're disenrolled. You know, you know, I’d say your people—your side’s in a lot of trouble.

(Habeas Transcript at 36.)

The Court went on to say the following to Plaintiff’s counsel: THE COURT: . . . I have seen a number of these cases, and it kind of has this pattern. One group gets in control of the Council. And then in order to stay in control, they disenroll as many of their opponents as they can, for political reasons. And they fire them from the jobs and the—to cut off the money from the casino. And it—it—that kind of looks like what’s going on here. Your people (Indicating) got in charge, step number one, just like—I won't say that, but—but step number one, they get rid of the opponents. So they can’t vote in the next election. Then they're in for good, and the money, they’ve got control of the money.

(Habeas Transcript at 48.)5

In turn, at oral argument in this case, the Court told Mr. Duran, counsel for Plaintiff, “[l]ast

time [ . . . ] you had to talk fast because she caught you in a number of misstatements, so be careful

this time.” (Transcript of Proceedings, Oral Argument of Elem Indian Colony v. Ceiba Legal, LLP

(Oct. 6, 2016) at 4.) The Court went on to say, “I don’t like it when someone sues a good lawyer

over RICO like you have done. It’s not right. Lawyers in this district don’t do things like that.

And your client shouldn’t have done a thing like this. You’re in some hot water with me.”

(Transcript of Proceedings, Oral Argument of Elem Indian Colony v. Ceiba Legal, LLP (Oct. 6,

5 Notably, during the Habeas Action oral argument Garcia Faction counsel Jack Duran repeatedly equivocated on

facts that were not favorable to the Garcia Faction and made claims that he later admitted were false. (Habeas Transcript at 12, 30, 32, alleging that he had never seen the ordinance at issue in the case, and later admitting to this Court that he had “seen the ordinance” and had submitted multiple filings to the BIA specifically referencing the amended ordinance; Id. at 13, 19-20 stating that Defendants had never been disenrolled, but later revealing that they had received orders of disenrollment and were no longer entitled to enrollment; Id. at 12, 16, 21-23, 28, asserting repeatedly that Defendants did not file timely appeals to orders of disenrollment and dodging this Court’s questions as to why filing was not timely based on the filing dates.) At one point, this Court stated to Mr. Duran that, “you are just dodging. You are bobbing and weaving and being as evasive as I have ever seen a lawyer to be . . . Mr. Duran, you don’t seem to know the facts of this case,” and, “normally I would refer you for this conduct to the committee that determines whether or not you can even be a member of the bar of this Court . . .” (Id. at 23, 32.)


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2016) at 12.)

On three separate occasions, the parties participated in Court-ordered mediation

proceedings directed toward settling this dispute, including one meeting that took place in Ukiah,

California, on a Saturday. (Brady Dec. at ¶ 9: Boland Dec. at ¶ 9(a).) At the request of the

settlement judge, Defendants prepared a mediation brief and a separate mediation letter setting

forth their core goals for the mediation. (Id.) Defendants also prepared a comprehensive

settlement agreement in hopes that it would facilitate successful mediation and settlement of the

dispute. (Id.)

Shortly after mediation broke down, the Court dismissed with prejudice all claims in

Plaintiff’s First Amended Complaint against all Defendants. (Doc. 63.) The Court rejected

Plaintiff’s contention that Defendants’ conduct was a sham, concluding that “Defendants’ conduct

in connection with the disputed election is exactly the sort of petitioning activity protected by the

Noerr-Pennington doctrine.” (Order at 3:24-4:5.) The Court denied leave to amend on the basis

that it was “futile.” (Id. at 4:21-22.)

As required by Local Rule 54-5(b)(1), counsel for Defendants have met and conferred with

Plaintiff’s counsel for the purpose of attempting to resolve any disputes with respect to the motion,

but have not yet been able to agree on a settlement of Defendants’ claims for attorneys fees.

(Declaration of Ian R. Barker (“Barker Dec.”) at ¶ 16.)

ARGUMENT

1. Defendants are Entitled to Their Attorneys’ Fees under the Lanham Act.

A. Plaintiff’s Suit Is Both Exceptionally Meritless and Brought in Bad Faith.

Title 15, section 1117(a) of the United States Code authorizes an award attorneys’ fees to

the prevailing party in exceptional Lanham Act cases. (Lahoti v. Vericheck, Inc., 636 F.3d 501,

510 (9th Cir. 2011).) The United States Supreme Court recently noted that 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.” (Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

134 S. Ct. 1749, 1757 (2014); accord SunEarth, Inc. v. Sun Earth Solar Power Co., No. 13-17622,

2016 WL 6156039, at *2 (9th Cir. Oct. 24, 2016) (concluding that Octane Fitness also “altered the


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analysis of fee applications under the Lanham Act”).) This Court has found legally and factually

weak Lanham Act claims sufficient for an award of fees under this standard. (E.g., Albrecht v.

Tkachenko, No. 14-CV-05442-VC, 2015 WL 2227607, at *1 (N.D. Cal. May 11, 2015) (“Because

the plaintiff’s Lanham Act claim was groundless, unreasonable, [and] vexatious, this is an

exceptional case and the defendant . . . is entitled to attorneys’ fees and costs”).)

This Court, in its Order, has already found the First Amended Complaint to be groundless

and unsalvageable on the basis that “Defendants’ conduct in connection with the disputed election

is exactly the sort of petitioning activity protected by the Noerr-Pennington doctrine.” (Order at

3:24-4:5.) Thus, Plaintiff’s Lanham Act claims, and each of their other claims, failed on the merits

on the same basis. (Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 711 F.3d 1136, 1139 (9th Cir.

2013) (“Noerr–Pennington is a merits defense to liability, premised on an implied limitation as to

the reach of the applicable law.” (citing Sosa v. DIRECTV, Inc., 437 F.3d 923, 931 (9th Cir.

2006)).)

Plaintiff’s Lanham Act claims were also subject to dismissal on bases that the Court’s

Noerr-Pennington ruling left undecided. (See Individual Defendants’ Motion to Dismiss, §§ 4, 5.)

Most significantly, Plaintiff never identified—in its original Complaint, Amended Complaint,

briefing in opposition to the motions to dismiss, or at oral argument—any usage by any Defendant

of any mark in connection with any sale of goods or services, as required for a prima facie case

under the Lanham Act. (15 U.S.C. §§ 1114(1)(a), 1125(a)(1); Bosley Med. Inst., Inc. v. Kremer,

403 F.3d 672, 677 (9th Cir. 2005).) When confronted with this blunder, Plaintiff’s only response

was to pretend this requirement did not exist, relying on out-of-circuit authority repudiated by the

binding Ninth Circuit case law Defendants had cited in their motion to dismiss. (Opposition to

Motions to Dismiss at 31:3-8 (citing People for the Ethical Treatment of Animals v. Doughney,

263 F.3d 359, 365 (4th Cir. 2001). See Bosley Med. Inst., Inc., 403 F.3d at 679 (“To the extent that

the PETA court held that the Lanham Act’s commercial use requirement is satisfied because the

defendant’s use of the plaintiff’s mark as the domain name may deter customers from reaching the

plaintiff’s site itself, we respectfully disagree with that rationale.”).) Plaintiff’s failure to even

attempt to plead a prima facie case under the Lanham Act further confirms that its lawsuit to


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challenge Defendants’ protected petitioning activity was exceptionally meritless and filed in bad

faith to chill its political opposition.

Apart from Plaintiff’s claims’ abject lack of merit, its conduct in pursuing its claims in

retaliation against its opponents in another suit was unreasonable, vexatious, and evidences

Plaintiff’s subjective bad faith. Plaintiff filed this litigation against its political opponents

immediately in response to Defendants’ legal challenge to Plaintiff’s mass disenrollment and

banishment, even though the conduct at issue in Plaintiff’s retaliatory suit had occurred well over a

year before. And both Plaintiff’s original and Amended Complaint—which repeatedly misidentify

even the documents Plaintiff itself submitted to the Court—demonstrate that Plaintiff filed and

prosecuted this litigation without regard to whether its claims had any legal or factual support

whatsoever. Simply put, Plaintiff filed this meritless lawsuit to bully Individual Defendants and

their counsel into dropping their legal challenges to Plaintiff’s unlawful conduct and drive up

Defendants’ cost of defending themselves. Given Plaintiff’s bad faith motivation, an award of

attorneys’ fees is especially fitting. B. Defendants Are Entitled to Attorneys’ Fees Incurred Defending Plaintiff’s

Lanham Act Claims And Other Intertwined Claims.

An award of attorneys’ fees under the Lanham Act may include fees for both Lanham Act

and non-Lanham Act claims when they are, as here, inextricably intertwined and based on the

same facts. (Gracie v. Gracie, 217 F.3d 1060, 1068 (9th Cir. 2000) (“In an award of reasonable

attorney fees pursuant to the Lanham Act, a party [may] recover legal fees incurred in litigating

non-Lanham Act claims [if] the Lanham Act claims and non-Lanham Act claims are so intertwined

that it is impossible to differentiate between work done on claims.”); Albrecht, 2015 WL 2227607,

at *1 (“[T]he [non-Lanham Act] claims relied on the same factual allegations as the [Lanham Act]

claim. It is therefore impossible to differentiate between the work done on these [non-Lanham

Act] claims and the [Lanham Act] claim.”).)

In the instant case, all seven claims for relief were based on the same factual predicate,

correspondence informing banks and government officials of the election dispute and asking them

to freeze funds until such time as the dispute had been resolved. (Amended Complaint, ¶¶ 11, 12,


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17, 25, 27, 36, 43, 58, 63, 68, 72, Ex. A.)6 Accordingly, Defendants may recover under the

Lanham Act attorneys fees for all work defending Plaintiff’s Lanham Act claims and all work

intertwined with the defense of the Lanham Act claims.

2. Defendants are Entitled to Their Fees Under the Anti-SLAPP Statute. A. The Court’s Order Supports an Attorneys’ Fees Award Under the Anti-

SLAPP Statute.

While the Court dismissed all claims for failure to state a claim under the Noerr-

Pennington doctrine, Defendants had also moved to dismiss the state claims under California’s

anti-SLAPP statute found at Code of Civil Procedure section 425.16 on the basis of Noerr-

Pennington and other grounds. In such a situation the Court must award attorneys’ fees on all

claims. (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218 (“[B]ecause a

defendant who has been sued in violation of his or her free speech rights is entitled to an award of

attorney fees, the trial court must, upon defendant’s motion for a fee award, rule on the merits of

the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion.”) See

also Pandora Jewelry, LLC v. Bello Paradiso, LLC 2009 U.S. Dist. LEXIS 56265 (E.D. Cal.

2009); Palermo v. Underground Solutions, Inc., 2013 U.S. Dist. LEXIS 10439 (S.D. Cal. 2013);

Henry v. Bank of Am. Corp., 2010 U.S. Dist. LEXIS 94028 (N.D. Cal. 2010).)

To succeed on the merits of their anti-SLAPP motion Defendants are obliged to make a

threshold showing that the acts complained of were taken in furtherance of Defendants’ rights of

petition or free speech under the United States or California Constitutions in connection with a

public issue. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The Court

made such a determination when it stated “Defendants’ conduct in connection with the disputed

election dispute is exactly the sort of petitioning activity protected by the Noerr-Pennington

doctrine.” (Order at p. 4.) As another court noted: The Noerr-Pennington doctrine derives from the First Amendment’s guarantee of ‘the right of the people . . . to petition the Government for a redress of grievances.’ U.S. Const, amend’

6 Plaintiff’s Amended Complaint has two paragraphs numbered 27 and two numbered 43. These references are to

the second paragraph numbered 27 and the first paragraph numbered 43.


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I. Under the Noerr-Pennington doctrine, those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct. Empress LLC v. City & County of S.F., 419 F.3d 1052, 1056 (9th Cir. 2005) (citing Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1092).

The anti-SLAPP statute provides in relevant part: A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

(Cal. Code Civ. Proc., § 425.16(b)(1).)

Thus, the Noerr-Pennington doctrine is analogous to California’s anti-SLAPP statute.

(Kearney v. Foley and Lardner, 553 F.Supp.2d 1178, 1181, at n. 3, rev’d on other grounds, 590

F.3d 638 (9th Cir. 2009).)

Upon a showing of activity protected by the anti-SLAPP statute, the burden shifts to

Plaintiff to show at least a minimal probability of success on its complaint, including a “prima

facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is

credited.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) The Court already determined that

the conduct attacked by the complaint is protected free speech under Noerr-Pennington and that

amendment would be “futile.” (Order, at p. 4.) In other words, Plaintiff cannot meet its burden

and Defendants are entitled to their attorneys’ fees. B. The Anti-SLAPP Statute Entitles Defendants to All Reasonable Attorneys’

Fees.

Where the anti-SLAPP motion and motion to dismiss for failure to state a claim are legally

and factually intertwined, as is the case here where both are based on Noerr-Pennington, fees are

not apportioned between the motions. (Kearney v. Foley & Lardner, 553 F. Supp.2d 1178, 1184

(S.D. Cal. 2008).) The Kearney case is instructive in that it involved anti-SLAPP and non-anti-

SLAPP defenses:

///


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[A] central focus of defendants’ motions and the Court’s Order was the applicability of the Noerr-Pennington doctrine and/or litigation privilege to plaintiffs claims; therefore, some of defendants’ fees were inextricably intertwined, i.e., were incurred for addressing common legal issues. All expenses incurred on common issues of fact and law qualify for an award of attorneys’ fees under the anti-SLAPP statute and those fees need not be apportioned.

(Id. at 1184.)

Where, as here, defendants succeed in having the entire case against them dismissed, they

are entitled to all of their attorneys’ fees related to the defense of the right to petition. (Id.) The

anti-SLAPP statute is to be applied in federal court the same as it is in state court, where the statute

must be construed broadly. (Metabolife Inter. v. Wornick, 213 F.Supp.2d 1220, 1223-24 (S.D. Cal.

2002).) Defendants are entitled to recover their reasonable attorneys’ fees “to compensate them

for the expense of responding to a baseless lawsuit.” (Robertson v. Rodriguez (1995) 36

Cal.App.4th 347, 362.)

3. Defendants’ Attorneys’ Fees Are Reasonable.

Reasonable attorneys’ fees must be calculated using the “lodestar” method. “The ‘lodestar’

is calculated by multiplying the number of hours the prevailing party reasonably expended on the

litigation by a reasonable hourly rate.” (Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.

1996).) Defendants’ attorneys’ fees, incurred as a direct, foreseeable result of the scorched-earth

and bad-faith litigation strategy Plaintiff pursued, are objectively reasonable.

A. Defendants’ Attorneys Spent a Reasonable Number of Hours on this Case.

As documented in the declarations of Defendants’ attorneys,7 five months of high-stakes

litigation over the fate of the Defendants and their legal counsel in this case included among other

things, preparation and litigation of Defendants successful motions to dismiss and participation in

time-consuming efforts at settlement, including three Court-ordered mediation sessions, one of

which took place in Ukiah, California. Plaintiff’s hastily prepared original Complaint and First

Amended Complaint, overlong opposition brief, and voluminous supporting evidence, although

7 See attached Declarations of Ian R. Barker, Michael V. Brady and Little Fawn Boland.


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plainly lacking in merit, contained misstatements of law and facts that required substantial legal

work in response.

Defendants’ attorneys recorded their daily time in one-tenth-of-an-hour time increments,

together with a description of daily work performed. (Barker Dec. at ¶ 5; Brady Dec. at ¶ 4;

Boland Dec. at ¶ 5.) In total, as set forth in the declarations, Defendants’ attorneys accounted for

705.6 hours on this case through the hearing on this motion, for a total fee of $255,367.50. (Barker

Dec. at ¶¶ 7, 15; Brady Dec. at ¶¶ 9, 10; Boland Dec. at ¶¶ 7, 15.) To facilitate the Court’s review,

the tasks performed by Defendants’ counsel are summarized in the declarations of Defendants’

attorneys filed in support of this motion.

The specific tasks Defendants’ counsel performed included: (1) developing strategy for

response to the complaint, preparing and revising motions to dismiss and supporting pleadings, and

researching, supervising research, and reviewing authority supporting the motions to dismiss;

(2) negotiating and preparing case management documents, procedural motions, stipulations, and

other filings and related communications; (3) preparing for, traveling for, and participating in

settlement proceedings, including Court-ordered mediation proceedings; (4) developing strategy

for reply briefs, preparing and revising reply briefs supporting motions to dismiss, and researching,

supervising research, and reviewing authority supporting replies to opposition brief; (5) preparing

for and attending hearing on motions to dismiss; and (6) developing strategy for this attorneys’

fees motion, preparing this motion for attorneys fees and supporting documentation, and

researching, supervising research, reviewing authority supporting motions to dismiss, and meeting

and conferring with opposing counsel regarding resolution of attorneys’ fees issue. (Barker Dec. at

¶¶ 9-12; Brady Dec. at ¶ 9; Boland Dec. at ¶¶ 9-10.)

Because Defendants have not identified authority permitting recovery of attorneys’ fees

under the RICO statute, Defendants have excluded from their computations, and do not seek

recovery of, attorneys fees dedicated solely to working on issues specific to Plaintiff’s RICO

claims, such as RICO-specific research and drafting of sections of briefs dedicated to the merits of

Plaintiff’s RICO claims. The existence of Plaintiff’s meritless RICO claims does not, however,

affect Defendants’ recovery of attorneys fees for general case activities or other tasks that are


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intertwined with defense of the claims for which attorneys’ fees are available. (See Gracie, 217

F.3d at 1068; Kearney, 553 F. Supp.2d at 1184.)

Defendants’ counsel did not expend unnecessary hours on this case, and the time spent on

the above litigation tasks comports with the importance of this litigation, by which Plaintiff sought

not only damages and attorneys fees from Defendants, but also sought to enjoin them from

petitioning the government to recognize the Brown Faction as the rightful government of a

federally recognized Indian tribe. (First Amended Complaint, p. 14.) The fees Defendants

incurred in this case are well within the range of recovery by similarly situated recipients of

attorneys’ fees awards. (Wynn v. Chanos, No. 14-CV-04329-WHO, 2015 WL 3832561, at *6

(N.D. Cal. June 19, 2015) (awarding $390,149.63 in attorneys’ fees on successful anti-SLAPP

motion by single defendant who retained two law firms); Ketab Corp. v. Mesriani Law Grp., No.

CV 14-7241-RSWL-MRWX, 2016 WL 4425714, at *7 (C.D. Cal. Aug. 17, 2016) (awarding

$292,202.00 in attorneys’ fees to defendants who successfully moved to dismiss trademark suit).)

Indeed, Defendants’ legal fees in this action are less than the $250,000 Plaintiff allegedly incurred

litigating an interpleader action underlying this case, which was voluntarily dismissed less than

five months after it was filed. (First Amended Complaint, ¶ 33; Boland Decl., ¶ 20 (Wells Fargo

interpleader action filed April 15, 2015, and voluntarily dismissed September 11, 2015).)

B. Defendants’ Attorneys’ Hourly Rates Are Reasonable.

The rates of Defendants’ attorneys are also reasonable, ranging from $550 per hour for

Ian R. Barker8 to $325 per hour for Michael Brady and Michael Vinding9 and $150 for Little Fawn

Boland.10 As set forth in the accompanying attorney declarations, each of Defendants’ attorneys is

operating at a substantial discount from its normal market rates, ranging from 19% to 40%, which

are reasonable in light of their deep experience in litigating issues of federal Indian law, anti-

SLAPP and First Amendment issues, and trademark law raised by Plaintiff’s seven causes of

action. In addition to hiring their separate counsel, Individual Defendants required continued

8 See Declaration of Ian R. Barker, ¶ 7. 9 See Declaration of Michael V. Brady, ¶ 7. 10 See Declaration of Little Fawn Boland, ¶ _.


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counsel from Ceiba Legal, LLP, in defending against this action, given Little Fawn Boland’s

profound knowledge of the history of the case, and its relationship to the related habeas action and

IBIA appeal, on which Ceiba Legal serves as attorney of record. (See Wynn, 2015 WL 3832561, at

*3 (finding in context of an anti-SLAPP attorneys’ fees award that it is “reasonable to retain both a

longtime law firm that is familiar with a client and a specialist in the litigation at hand” (citing

Graham–Sult, 756 F.3d at 753).)

C. Defendants Are Entitled To Recover Fees Incurred Bringing this Motion.

Because they are entitled to their attorneys fees, Defendants are also entitled to the

reasonable attorneys fees incurred obtaining an attorneys’ fees award, their so called “fees on

fees.” (Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir. 2008) (“In statutory fee

cases, federal courts, including our own, have uniformly held that time spent in establishing the

entitlement to and amount of the fee is compensable.”); Graham-Sult v. Clainos, 756 F.3d 724,

751-52 (9th Cir. 2014) (upholding fees on fees award to party prevailing on anti-SLAPP motion).)

In addition to the fees and costs incurred in bringing this motion, Defendants also seek the

attorneys’ fees they will incur replying to Plaintiff’s opposition to this motion and preparing for

and attending a hearing on the motion. Based on the fees incurred preparing the motion to dismiss

reply briefing and preparing for and attending the motion to dismiss hearing in this case,

Defendants estimate they will incur additional fees of $26,155.00. (Barker Dec. at ¶ 15; Brady

Dec. at ¶ 9; Boland Dec. at ¶ 15.)11

D. Defendants Are Entitled To Recover Nontaxable Costs.

Defendants are also entitled to recovery for nontaxable costs that were reasonably incurred

defending this case and which Defendants’ counsel normally charge to clients, including Westlaw

search fees and delivery charges. (Trustees of Const. Indus. & Laborers Health & Welfare Trust v.

Redland Ins. Co., 460 F.3d 1253, 1258-59 (9th Cir. 2006).) In total, Defendants are entitled to

recover nontaxable costs in the amount of $7,668.21. (Barker Dec. at ¶ 14.)

11 Alternatively, if this Court would prefer documentation in place of an estimate, Defendants are amendable to

submitting, within fourteen days after the Court grants this motion, documentation of actual fees incurred for the reply and in preparation for hearing. (Graham-Sult v. Clainos, No. CV 10-4877 CW, 2012 WL 994754, at *5 (N.D. Cal. Mar. 23, 2012), rev’d on other grounds, 756 F.3d 724 (9th Cir. 2014).)


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E. Defendants Request a Fee Multiplier of 1.5 In Recognition of their Financial Risk and Discounts From Customary Rates.

A district court has discretion to base an attorney fee award on the attorney’s typical

“customary fees.” (United Steelworkers of Am. v. Ret. Income Plan For Hourly-Rated Employees

of ASARCO, Inc., 512 F.3d 555, 565 (9th Cir. 2008) (holding district court did not abuse discretion

in basing attorneys’ fee award on declaration establishing the rate “the firm typically charged” for

the work at issue).) Additionally, the court may apply a multiplier to reward counsel for taking on

time-consuming representation for litigants in need. (Oberfelder v. City of Petaluma, No. C-98-

1470 MHP, 2002 WL 472308, at *11 (N.D. Cal. Jan. 29, 2002) (awarding a 1.5 multiplier where

counsel took on “a time-consuming and expensive” matter with “no guarantee of reimbursement

for those services” and “[t]he length and difficulty of the case, together with the absence of any

fee-paying client, would have virtually precluded most private attorneys from undertaking the

time-consuming prosecution of this matter”) aff’d sub nom. Oberfelder v. Bertoli, 67 F. App’x 408

(9th Cir. 2003); Powell v. U.S. Dep’t of Justice, 569 F. Supp. 1192, 1204 (N.D. Cal. 1983)

(applying a 1.5 multiplier where attorney’s “potential for receiving fees is contingent” on a fee

award and where “it is difficult to obtain counsel” under the circumstances of the case).)

Defendants’ counsel agreed to defend Defendants in this case even though, at the time the

suit was filed, Defendants had no access to the funds of the Tribe. (Brady Dec. at ¶ 7.) For that

reason, each of Defendants’ attorneys offered substantial discounts from their standard rates and

wrote off over $13,000 in attorneys’ fees to ease the financial burden on their embattled clients.

(Barker Dec. at ¶ 7; Brady Dec. at ¶ 7; Boland Dec. at ¶ 8.) Moreover, because the Brown Faction,

consisting of working class Native American persons who had been politically and economically

disenfranchised by their Tribe, Defendants’ counsel faced the risk that fees incurred would not be

recoverable from the Tribe’s treasury, should the Garcia Faction prevail. (Boland Dec. at ¶ 22.)

Paying market rates for counsel with the expertise to represent them would also pose a hardship for

Ceiba Legal, a boutique law firm founded nearly four years ago by two Native American attorneys.

(Boland Dec. at ¶ 23.) Additionally, in handling this time-consuming litigation, Defendants’

counsel forewent opportunities to perform other legal work, including work yielding higher fees


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than work for Defendants. (Barker Dec. at ¶ 13; Brady Dec. at ¶ 7; Boland Dec. at ¶ 23.)

Nevertheless, sympathetic to the injustice Defendants continued to suffer at the hands of the Garcia

Faction, counsel represented Defendants through their successful judgment to help defeat the

Garcia Faction’s retaliatory efforts to use this action to silence its political opposition and to

dissuade their legal counsel from representing them. The litigation, were it to be successful, would

also be economically and reputationally damaging to Ceiba Legal and its State Bar licensed

partners Little Fawn Boland and Keith Anderson. (Boland Dec. at ¶ 23.) In recognition of

Defendants’ counsels’ financial sacrifices in securing an unequivocal vindication of Defendants’

petitioning rights, Defendants request that the Court apply a 1.5 multiplier to the standard lodestar

figure.

Because the hourly rates Defendants’ counsel charged are reasonable and the number of

hours billed are also reasonable, the Court should award Defendants all of their requested

attorneys’ fees, including $255,367.50 incurred through the hearing on this motion and $7,668.21

in expenses. Defendants also request a 1.5 multiplier of the attorneys’ fees, for a total of

$383,051.25, in recognition of the discounts its attorneys offered and financial risk they took on to

defeat Plaintiff’s meritless and vexatious claims against its politically and economically

disenfranchised rivals.

CONCLUSION

For the foregoing reasons Defendants respectfully request an award of attorneys’ fees in the

amount of $383,051.25 and $7,668.21 in expenses and costs. Respectfully submitted,

Dated: November 30, 2016 DENTONS US LLP

/s/ Ian R. Barker Ian R. Barker Attorneys for Defendant Ceiba Legal, LLP


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Dated: November 30, 2016 BRADY & VINDING

/s/ Michael V. Brady Michael V. Brady Attorneys for Defendants Michael Hunter, Anthony Steele, David Brown, Adrian John, Natalie Sedano Garcia, and Kiuya Brown

Dated: November 30, 2016 CEIBA LEGAL, LLP

/s/ Little Fawn Boland Little Fawn Boland Attorneys for Defendants Michael Hunter, Anthony Steele, David Brown, Adrian John, Natalie Sedano Garcia, and Kiuya Brown


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ATTESTATION OF E-FILED SIGNATURES

I, Michael V. Brady, am the ECF user whose ID and password are being used to file the

Defendants’ Motion for Attorneys’ Fee Award and Supporting Memorandum. In compliance with

Local Rule 5-1, I hereby attest that all signatories have concurred in this filing. Dated: November 30, 2016 BRADY & VINDING

/s/ Michael V. Brady Michael V. Brady


Documents

PAULA M. YOST (SBN 156843) IAN R. BARKER (SBN 240223 ... · DEFENDANTS’ MOTION FOR ATTYS’ FEE AWARD AND SUPPORTING MEMORANDUM 3:16-CV-03081-WHA PAULA M. YOST (SBN 156843) IAN