||||| From: hkhenson@cogeco.ca (Keith Henson) Newsgroups: alt.religion.scientology Subject: The cult appeals again Date: Tue, 18 Dec 2001 18:38:24 GMT Organization: Temple of At'L'An Lines: 460 Message-ID: <3c1f899a.30984883@news2.lightlink.com> NNTP-Posting-Host: 205.232.34.12 Mime-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit X-Newsreader: Forte Agent 1.5/32.451 X-Original-NNTP-Posting-Host: 24.141.40.229 X-Original-Trace: 18 Dec 2001 13:40:03 -0500, 24.141.40.229 Path: corp.newsgroups.com!propagator-maxim!feed.newsfeeds.com!newshub2.rdc1.sfba.home.com!news.home.com!news2.best.com!news.maxwell.syr.edu!nntp.abs.net!newspeer.monmouth.com!news.lightlink.com!news2.lightlink.com Xref: newsfeeds alt.religion.scientology:1273496 A-11 (rev. 5/00) Page 1of 2 Form 6. Civil Appeals Docketing Statement USCA DOCKET # (IF KNOWN) 01-17235 I don't know if it is required for me to reply to this or not, or if they will try to invoke disentitlement if I do. Keith Henson UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CIVIL APPEALS DOCKETING STATEMENT PLEASE ATTACH ADDITIONAL PAGES IF NECESSARY. TITLE IN FULL: Religious Technology Center v. H. Keith Henson DISTRICT: N. D. Cal. JUDGE: Ronald M. Whyte DISTRICT COURT NUMBER: CV-96-20271 DATE NOTICE OF APPEAL FILED: Oct. 18, 2001 IS THIS A CROSS-APPEAl? YES IF THIS MATTER HAS BEEN BEFORE THIS COURT PREVIOUSLY, PLEASE PROVIDE THE DOCKET NUMBER AND CITATION (IF ANY): See attached list. BRIEF DESCRIPTION OF NATURE OF ACTION AND RESULT BELOW: Award of attorneys’ fees to plaintiff after remand in copyright infringement case for litigation of case and as penalty for contempt, as well as additional fees for briefing on remand, and fees for opposition to defendant’s certiorari petition to U. S. Supreme Court. PRINCIPAL ISSUES PROPOSED TO BE RAISED ON APPEAL: 1) Whether the district court erred in its computatino of the lodestar amount. 2) Whether the district court abused its discretion in awarding only approximately 10% of the fees claimed. PLEASE IDENTIFY ANY OTHER LEGAL PROCEEDING THAT MAY HAVE A BEARING ON THIS CASE (INCLUDE PENDING DISTRICT COURT POST-JUDGMENT MOTIONS): Case Nos. 99-16660, 99-16756, 98-17120 (9th Cir. June 23, 2000) DOES THIS APPEAL INVOLVE ANY OF THE FOLLOWING: [no box checked] Possibility of settlement Likelihood that intervening precedent will control outcome of appeal Likelihood of a motion to expedite or to stay the appeal, or other procedural matters (Specify) Any other information relevant to the inclusion of this case int he Mediation Program Possibility parties would stipulate to binding award by Appellate Commissioner in lieu of submission to judges Effective 7/1/2000 LOWER COURT INFORMATION Page 2 of 2 JURISDICTION DISTRICT COURT DISPOSITION FEDERAL QUESTION [box checked] DIVERSITY OTHER APPELLATE [X] FINAL DECISION OF DISTRICT COURT INTERLOCUTORY DECISION APPEALABLE AS OF RIGHT INTERLOCUTORY ORDER CERTIFIED BY DISTRICT JUDGE (SPECIFY): OTHER (SPECIFY): TYPE OF JUDGMENT/ORDER APPEALED DEFAULT JUDGMENT DISMISSAL/JURISDICTION DISMISSAL/MERITS SUMMARY JUDGMENT [X] JUDGMENT/COURT DECISION JUDGMENT/JURY VERDICT DECLARATORY JUDGMENT JUDGMENT AS A MATTER OF LAW OTHER (SPECIFY): RELIEF DAMAGES: SOUGHT $ AWARDED $ INJUNCTIONS: PRELIMINARY PERMANENT GRANTED DENIED [X] ATTORNEY FEES: SOUGHT $ 989,094.68 AWARDED $ 108,900 PENDING COSTS: $ CERTIFICATION OF COUNSEL I CERTIFY THAT: 1. COPIES OF ORDER/JUDGMENT APPEALED FROM ARE ATTACHED. 2. A CURRENT SERVICE LIST OR REPRESENTATION STATEMENT WITH TELEPHONE AND FAX NUMBERS IS ATTACHED (SEE 9TH CIR. RULE 3-2). 3. A COPY OF THIS CIVIL APPEALS DOCKETING STATEMENT WAS SERVED IN COMPLIANCE WITH FRAP 25. 4. I UNDERSTAND THAT FAILURE TO COMPLY WITH THESE FILING REQUIREMENTS MAY RESULT IN SANCTIONS, [signed] Helena K. Kobrin Signature November 28, 2001 Date COUNSEL WHO COMPLETED THIS FORM NAME: Helena K. Kobrin, Esq. FIRM: Moxon & Kobrin ADDRESS: 5055 Wilshire Boulevard, Suite 900, Los Angeles CA. 90010 E-MAIL: hkkobrin@aol.com TELEPHONE: (213) 487-4468 FAX: (213) 487-5385 *THIS DOCUMENT SHOULD BE FILED IN THE DISTRICT COURT WITH THE NOTICE OF APPEAL **IF FILED LATE, IT SHOULD BE FILED DIRECTLY WITH THE U.S. COURT OF APPEALS * .9. Effective 7/l/2000 [page 3] PRIOR APPEALS IN THIS CASE RTC v. Henson, 116 F.3d 1486, 1997 WL 354822 (9th Cir. 1997) Case No. 97-15109 RTC v. Henson, 182 F.3d 927, 1999 WL 362837 (9th Cir. 1999) Case Nos. 97-16160 and 97-16146 RTC v. Henson, 229 F.3d 1158, 2000 WL 825515 (9th Cir. 2000) Case Nos. 99-16660, 99-16756, 98-17120 RTC v. Henson, Case No. 97-15672 (9th Cir. June 6, 1997) RTC v. Henson, Case No. 00-16517 [page 4] SERVICE LIST H. Keith Henson, In Pro Per P.O. Box 60012 Palo Alto, California 94306 Telephone: (650) 325-7533 Facsimile: (650) 325-5246 [page 5] FILED SEP 18 2001 RICHARD W. WIEKING CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation, Plaintiff, v. H. KEITH HENSON, an individual, Defendant. NO. C 96-20271 RMW ORDER ON REQUEST FOR ATTORNEY'S FEES [Re Docket Nos. 561, 568, 572] 1. Procedural History The issue pending before the court is the amount of attorney's fees to award to plaintiff Religious Technology Center ("RTC") for various phases of this case. The matter is before the court on remand from the Ninth Circuit to address the attorney's fees issue. Specifically, in its memorandum decision dated June 23,2000 the Ninth Circuit affirmed this court'sjudgment finding defendant Keith Henson ("Henson") in civil contempt for violation of a court order but remanded the issue of the amount of attorney's fees to which RTC is entitled because the court "failed to make specific findings regarding the rate and number of hours it determined to be reasonably spent on the ORDER ON REQUEST FOR ATTORNEY'S FEES NO. C 96-20271 RMW [page 6] motion for contempt, as well as the larger scope of proceedings.1 *Religious Technology Center v. Henson*, 229 F.3d 1158, 2000 WL 825515 (9th Cir. 2000). The court of appeals remanded to the district so that it may make such findings following *Frank Music* and to adjust its figure if needed in considering, among other things, "the degree of success obtained; frivolousness; motivation; objective unreasonableness (both in the factual and legal arguments in the case); and the need in particular circumstances to advance consideration of compensation and deterrence." *Id.* (citations omitted). After the remand, RTC also moved for supplemental attorney's fees incurred in opposing Henson's unsuccessful petition for certiorari of the copyright infringement judgment and for those fees incurred and to be incurred for further proceedings following remand. II. Issues Pending Based upon the above procedural history, the court has three questions before it: (1) the amount of attorney's fees to which RTC is entitled for its successful prosecution of the infringement action; (2) the amount of attorney's fees to which RTC is entitled for Henson's contempt; and (3) the amount of attorney's fees, if any, to which RTC is entitled for opposing the petition for certiorari and for briefing following the Ninth Circuit's remand of the attorney's fee issue. III. Findings and Conclusions A. Attorney's Fees for Copyright Infringement Action 1. Rate and Hours The court has previously determined that an award of attorney's fees is appropriate and this decision has been upheld. *Religious Technology Center* 2000 WL 825515 at *.2. Therefore, the question is what amount the court in its discretion finds appropriate. "In setting a reasonable attorney's fee, the district court should make specific findings of the rate and hours it has determined to be reasonable." *Frank Music Corp. v. Metro-Goldwyn-Mayer Inc.*, 886 F. 2d 1545, 1557 (9th Cir. 1989). "District courts should consider, among other things, 'the degree of success obtained; ------------- 1. The "larger scope of proceedings" refers to the underlying copyright infringement proceedings and trial in which Henson was found to have wilfully infringed RTC's copyright. The judgment entered in RTC's .favor in the copyright infringement proceeding was affirmed on appeal. Religious Technology Center v. Henson. 182 F.3d 927, 1999 WL 362837 (9th Cir. 1999). In addition, RTC had appealed the court's post-trial order setting the amount of attorney's fees to which RTC was entitled which was consolidated with the appeal of the contempt judgment. ORDER ON REQUEST FOR ATTORNEY'S FEES NO. C 96-20271 RMW [page 7] frivolousness; motivation; objective unreasonableness (both in the factual and legal arguments in the case); and the need in particular circumstances to advance considerations of compensation and deterrence.'" *Historical Research v. Cabral*, 80 F.3d 377, 378 n. I (9th Cir. 1996), quoting *Jackson v. Axton*, 25 F.3d 884, 890 (9th Cir. 1994). The court will first look at the hours spent by RTC's counsel and the hourly rates charged. RTC maintains that its hours expended, multiplied by its hourly rates, produces a reasonable fee of $865,916.18. The court disagrees. A review of RTC's billings show that the services of approximately nineteen lawyers billing at rates between $110 per hour and $475 per hour were utilized. The lead trial attorney billed at $460 per hour. Although the work done was high quality, the court does not accept the assertion that so many experienced copyright and trial specialists were necessary to litigate this relatively straight-forward, albeit emotional, case. Henson represented himself most of the time and brought in one lawyer shortly before trial to provide representation at trial. Unfortunately, both Henson and his lawyer appeared to be more intent on pursuing their cause of exposing and ridiculing Scientology than they were in resolving the case. On the other hand, RTC's approach throughout the case was as aggressive as the court ever sees in litigation and its trial tactics in part appeared designed to make Henson look like a crackpot rather than to establish RTC's claims' RTC also unduly compounded the case by including a misappropriation of trade secret claim in its original filing. Although RTC eventually dismissed this very problematic claim and has not claimed fees for services rendered in connection with it, the claim's inclusion appeared to exacerbate the hostility between the parties. Thus, RTC is itself somewhat to blame for the overall expense of the proceedings. Although the court does not question the experience, billing rates or expertise of the counsel RTC used, the court concludes b'ased upon the issues involved and the fact that Henson represented himself throughout most of-the litigation and had a single counsel for trial that RTC unnecessarily staffed the case and with counsel that were higher priced than necessary. Thus, the number of hours expended and the overall rates charged were excessive. The court finds that an average billing rate ------------------------- 2. The court on its own excluded some evidence RTC wished to offer and to which Henson and his counsel offered no objection. [page number of included document] 3 ORDER ON REQUEST FOR ATTORNEY'S.FEES NO. C 96-20271 RMW . [page 8] of $225 per hour was reasonable for the case. That is a rate consistent, in the court's experience, with that charged by counsel with the experience and ability to handle the case. RTC cannot be expected to be reimbursed for the services of highly experienced and expensive specialists from across the United States when such experience and expertise was not required.[3] The determination of the reasonable hours required for the case is more difficult to fix. Common sense suggests that nineteen lawyers—no matter how separate their tasks and assignments—were many more than necessary for the efficient handling of the case. Henson certainly contributed to the hours spent by his attempts to turn the case into a crusade to embarrass and ridicule Scientology. On the other hand, RTC was extremely aggressive throughout the litigation and did far more than necessary to prosecute the case. Thus, RTC's counsel's hours were unnecessarily inflated because of the number of attorneys involved, the unnecessary issues which RTC chose to litigate, and the tactics RTC employed in litigating those issues. The basic copyright question in the case was whether the essentially verbatim posting of copyright protected document amounted to a wilful infringement, when the poster knew exactly what he was doing and for what purpose. Litigating that question should not have been particularly demanding from a legal or factual standpoint. The court finds that 1750 hours is a reasonable estimate of the hours necessarily expended. Therefore, without adjustment for other factors, the court sets reasonable attorney's fees of $393,750. However, further adjustments are appropriate. 2. Factors Justifying Adjustment The award of attorney's fees is discretionary. See *Frank Music*, 886 F.2d at 1556. Therefore, the court can determine that a successful party should not recover all of the fees it actually incurred, ------------- 3. In this regard, the court notes that the court of appeals awarded RTC only $10,000 in attorney's fees for the appeal despite its request for $135,000. Order dated September 14, 1999. The court of appeals made no findings concerning the billing rate or the number of hours that were reasonably spent on the appeal but justified the lower award by observing that RTC hired numerous copyright specialists, who spent a considerable amount of time litigating this relatively simple case, and who were more than familiar with the law on appeal. . . . By contrast, for most of the appellate proceedings, Henson acted *pro se*. Under the circumstances RTC's attorney's fees request is excessive. *Id.* (citations omitted). ORDER ON REQUEST FOR ATTORNEY'S FEES NO. C 96-20271 RMW [page 9] or even all of the fees that were reasonably incurred. Here, there are several factors that justify a reduction in the amount of fees awarded. First, Henson had to spend considerable time and energy responding to RTC's problematic trade secret misappropriation claim which was ultimately dismissed. Although he did not use counsel with respect to that claim, he should receive some consideration for the time and energy he spent on it. A credit by way of a reduction in RTC's fees is appropriate consideration even though RTC has not included its own trade secret fees in its fee request. Second, RTC's apparent motivation in pursuing the lawsuit went beyond merely seeking compensation for Henson's infringement and to ensure that Henson did not post RTC's materials again. Instead, RTC's zealous pursuit appeared motivated to punish Henson and to send a message to all critics of Scientology that posting of its confidential documents will result in substantial expense and severe consequences. The court does not believe that Henson should bear all the financial costs of that message. And third, the amount of the jury award against Henson was substantial considering the fact that his infringement was limited to the verbatim publication of just one protected work. The jury's damage award was undoubtedly influenced by its consideration of deterrence. See Jury Instruction 11. Therefore, RTC received an award designed to deter and in an amount in excess of its actual damages. The verdict alone adequately suffices as a deterrent; it would be inequitable and unjust to require Henson to bear the cost of hundreds of thousands of dollars in attorneys fees, merely as an additional deterrent. For the above reasons, the court awards RTC only $75,000 as and for attorney's fees in connection with the copyright infringement case. B. Attorney's Fees for Contempt Proceedings 1. Rates and Hours . RTC seeks $96,778.50 as its reasonable fees for the contempt proceedings. The court's findings on the fees incurred with respect to the contempt proceedings are similar to those made with respect to the copyright infringement proceedings, although the number of attorneys used was not as extensive. The quality of the briefing was good but the time spent on the contempt proceeding was ORDER ON REQUEST FOR ATTORNEY'S FEES NO. C 96-20271 RMW [last page] PROOF OF SERVICE STATE OF CALIFORNIA ) )ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years. On November 28, 2001, I served the foregoing document described as CIVIL APPEALS DOCKETING STATEMENT on the interested party in this action by placing a true copy thereof in an envelope and, addressed as follows, mailing it by U.S. Postal Service to: H. Keith Henson P.O. Box 60012 Palo Alto, California 94306 Telephone: (650) 325-7533 Facsimile: (650) 325-5246 [signature of Helena K. Kobrin]