The Fashion Exchange LLC v. Hybrid Promotions, LLC

Background

On September 26, 2019, the court granted Defendants’ motion for sanctions concerning Plaintiff’s counsel’s conduct during the October 30, 2018 deposition of Jack Saadia. The earlier sanctions order made Plaintiff and its counsel jointly and severally liable for half of Defendants’ attorney’s fees and costs for taking that deposition and bringing the sanctions motion. Defendants then submitted attorney declarations, billing records, and invoices to support their requested fees and costs.

Fee calculation

The court used the lodestar method, which calculates a reasonable fee by multiplying a reasonable hourly rate by a reasonable number of hours. It found the requested rates for partners Mark J. Rosenberg and Alan Tenenbaum reasonable. It found the rates for counsel Debra Bernstein and Joel H. Rosner relatively high but concluded that the firm’s 10 percent discount addressed the concern. The court reduced paralegal Toni Serrant’s rate from $250 per hour to $75 per hour because Defendants had not supported the higher rate.

Defendants billed 49.5 hours for the sanctions motion and the deposition. Plaintiff argued that it should be responsible only for time tied to the specific speaking objections and only for the portion of the sanctions motion addressing the deposition-sanctions rule. Plaintiff also argued that using five attorneys was excessive. The court rejected those arguments, explaining that the earlier sanctions order covered fees for taking the deposition and bringing the sanctions motion, not only particular portions of those activities.

The court approved 27.7 hours for preparing and bringing the sanctions motion, resulting in $11,697.30 after the paralegal-rate reduction and 10 percent discount. For the deposition itself, the court excluded preparation time and other block-billed work, and allowed 6.3 hours of attendance at the October 30 deposition, producing $3,288.60 after the discount. Adding $3,271.30 in undisputed deposition costs, the court calculated total fees and costs of $18,257.20. Because the earlier order required Plaintiff and its counsel to pay half, the court awarded Defendants $9,128.60.

Motion to seal

Defendants’ counsel asked to file billing records under seal, citing privacy interests. The court held that the request did not overcome the public-access presumption for judicial documents. It found that the remaining billing entries were nonprivileged and relevant to deciding whether the fees were reasonable, and that Defendants had not shown how public filing would harm their privacy interests. The court therefore denied the motion to seal and ordered Exhibits B and C to the Rosenberg Declaration filed on the docket.

Disposition

The court awarded Defendants $9,128.60 in fees and costs. Plaintiff and its counsel were ordered to pay that amount within 30 days of the order. Defendants were ordered to file Exhibits B and C within seven days. The motion to seal was denied.