When I write about prolonged bad behavior in the legal system, I often get angry comments from people who say "when will the system impose consequences on people who act this way?" Take heart, I respond. The wheels grind slowly, but they grind. "Bullshit," comes the response. "Prove it."
Very well. How about an order requiring Charles Carreon to pay $46,100.25 in attorney fees?
Charles Carreon became infamous when he rashly threatened Matthew Inman of The Oatmeal, leading to infamy and spectacle. Later he made very foolish and extravagant threats against a satirical blogger, leading to a declaratory relief action against him. He evaded service for a while, then capitulated in that case, but has been fighting over whether he should have to pay attorney fees.
Today a federal judge in the Northern District of California granted the motion for fees by the satirical blogger, granting $46,100.25 in fees to the blogger's attorneys, Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis. They had been seeking a total of $77,765.25.
Judge United States District Judge Richard Seeborg's order awarding fees is devastating to Carreon. Judge Seeborg rejects Carreon's arguments one by one, and finds Carreon's litigation conduct rendered the case exceptional, justifying a partial award of fees under the Lanham Act:
While defendant’s threatened claims were not “exceptional” at the outset of this case, defendant’s actions throughout the litigation certainly transformed this case into an “exceptional” matter, deserving of an award of attorney fees. The Ninth Circuit has stated that “bad faith or other malicious conduct satisfies the exceptional circumstances requirement.” Boney, 127 F.3d at 827. Evidence supports a finding of malicious conduct during the course of this case. Defendant first went to great lengths, imposing unnecessary costs on plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. The Ninth Circuit discourages major litigation with respect to attorney fees. See, e.g., Camacho, 523 F.3d at 981; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“A request for attorney’s fees should not result in a second major litigation.”). Defendant’s serving of interrogatories and taking of plaintiff’s deposition amounted to a mini-trial on plaintiff’s motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff’s attorney is on a mission to “turn Internet gripe sites into profit centers for him and
Public Citizen Law Group.” Doc. #45, at 4. Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff’s efforts to respond to defendant’s litigation tactics merit the imposition of a fees award.
Judge Seeborg rejects Carreon's argument that the settlement precluded an award of attorneys fees. Carreon drafted his own offer of judgment. He could have made it clear that the offer precluded fees. He didn't.
Defendant cannot now escape the consequences of his inartful drafting.
Charles Carreon could have escaped with a much lower award, or no award at all. The court declined to award fees for the filing of the declaratory relief suit itself, or for the brief litigation of its substance, finding that Carreon's initial threats did not render the case exceptional under the Lanham Act. The bulk of this order — $37,650.25 — results from Carreon's bizarre discovery demands in response to the motion for fees itself, which the court described as "unnecessary, vexatious, and costly." Most of the rest of the order — $8,450 — results from Carreon's evasion of service. So, instead of facing a costs bill for a few thousand dollars at most, Charles Carreon is facing a bill for $46,100.25. Character is destiny.
There are consequences for bad behavior. They come slowly. But they do come.
Edited to add: Paul Alan Levy offers his thoughts, plus some very kind words for which I am grateful.
Last 5 posts by Ken White
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