National Abortion Federation v. Center for Medical Progress

Background

The court had entered a temporary restraining order and then a preliminary injunction barring the defendants from disclosing recordings, confidential information, meeting details, and member names or addresses obtained at National Abortion Federation meetings. The Ninth Circuit affirmed the preliminary injunction.

The court later found defendants and other contemnors in civil contempt for violating the injunction by publicly posting portions of recordings. The court imposed sanctions for which the defendants and contemnors were jointly and severally liable. A $200,000 bond, later increased by a $10,000 rider, secured the contempt award and accrued interest.

In April 2021, the court granted NAF summary judgment based on issue preclusion on its breach-of-contract claim involving Exhibitor Agreements and Confidentiality Agreements. The court entered a permanent injunction, later awarded NAF attorney fees and costs, and entered an amended judgment. The Ninth Circuit affirmed the final judgment and the civil-contempt ruling in August 2022. The Supreme Court denied review in October 2023.

Motion to Enforce the Bond and Motion for Relief from Judgment

NAF sought to collect $195,359.04 in civil-contempt sanctions and $14,640.96 in post-judgment interest from the $210,000 bond. Defendants did not dispute the amount or NAF’s ability to seek an order directing the surety to release the bond. They instead argued that enforcement should be denied for the reasons stated in their motion under Federal Rule of Civil Procedure 60(b)(5).

Rule 60(b)(5) permits relief from a final judgment when applying it prospectively is no longer equitable. A party seeking that relief must show a significant change in factual conditions or law warranting modification and must show that the requested modification is properly tailored to the changed conditions.

Defendants argued that the permanent injunction was an improper prior restraint on speech and that the Ninth Circuit’s decision in Project Veritas v. Schmidt undermined its legal basis. They acknowledged that the Ninth Circuit had granted rehearing en banc and vacated that decision.

The court denied relief for three independent reasons. First, the Project Veritas decision had been vacated and was no longer binding or persuasive authority. Second, the decision did not create a significant change in the law. Third, even if the decision had changed the law, it did not affect this injunction because the injunction rested on defendants’ knowing breach of contracts and knowing waiver of First Amendment rights they otherwise might have had to publish the recordings. The court also concluded that there was no reason to wait for the Ninth Circuit’s en banc decision.

The court therefore denied defendants’ motion for relief from the judgment and granted NAF’s motion to enforce the surety liability. It ordered SureTec Insurancy Company to pay $210,000 toward the contempt sanctions and statutory post-judgment interest within 10 days by sending a check payable to Morrison Foerster LLP.

Attorney Fees from Defendants

NAF sought $308,205 for work defending the judgment during the Ninth Circuit proceedings and $170,932.50 for responding to the petition for Supreme Court review. The court considered the contemporaneous billing records, the attorneys’ rates and experience, and evidence concerning the reasonableness of the rates.

The defendants argued that the declaration supporting the fee request was insufficient because the declarant had not personally participated in the work performed by the nine billers and could not establish the reliability of their records. The court rejected that argument, explaining that the declarant had personal knowledge that the records were the firm’s contemporaneous time records and knew how the firm’s attorneys recorded their time. The court also found the requested rates and hours reasonable.

The court granted NAF’s motion for attorney fees against the defendants in full. It awarded NAF $479,137.50 for the merits appellate phase, for which the defendants were liable.

Attorney Fees from Contemnors

NAF also sought $239,174 for defending the contempt sanctions order in the Ninth Circuit. The contemnors argued that the hours were excessive and insufficiently documented and asked the court either to deny the request or reduce it by 50%.

The court found the hours mostly reasonable in light of the complex issues involved. It nevertheless found likely duplication between work on the first appeal of the sanctions order and work on the later merits appeal. The court reduced the time billed for the merits appeal by 10%.

The court granted NAF’s motion for attorney fees against the contemnors, with the reduction. It awarded NAF $215,256.60, for which the contemnors were liable.

Disposition

The court granted NAF’s motion to enforce surety liability, denied defendants’ motion for relief from the judgment, granted NAF’s attorney-fee motion against defendants in full, and granted NAF’s attorney-fee motion against the contemnors with a 10% reduction.