Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

REPLY by Plaintiff Viamedia, Inc. in Support of Its Motion to Defer Proceedings on Attorneys' Fees and Costs Pending Appeal

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Case: 1:16-cv-05486 Document #: 377 Filed: 10/04/18 Page 1 of 6 PageID #:17830 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DISTRICT VIAMEDIA, INC., No. 16 C 5486 Plaintiff, v. Honorable Charles R. Norgle Sr. COMCAST CORPORATION and COMCAST SPOTLIGHT, LP, Defendants. PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION TO DEFER PROCEEDINGS ON ATTORNEYS' FEES AND COSTS PENDING APPEAL Plaintiff Viamedia, by and through its attorneys, hereby submits its reply in support of its Motion To Defer Proceedings on Attorneys' Fees and Costs Pending Appeal ("Combined Opposition").1 Comcast argues that this Court routinely addresses cost and fee motions while appeals are pending. See Dkt. 362 at 1-2. This, however, is not a routine case involving fee and cost petitions that can be handled expeditiously. Comcast is one of the wealthiest companies in the world. It brings in $5 billion in revenue every month.2 Comcast overlawyered this case, because 1 At the September 14, 2018 hearing, the Court asked counsel for Viamedia to style its Combined Opposition and Motion as either an opposition or a motion. Viamedia chose to style it as an opposition. Because Defendants nevertheless filed an "Opposition to Plaintiff's Motion to Defer Proceedings on Attorneys' Fees and Costs Pending Appeal," Dkt. 372, Viamedia files this reply brief. 2 See, e.g., Austen Hufford, MarketWatch, Comcast Profit Beats, Broadband Offsets TV Losses, https://www.marketwatch.com/story/comcast-profit-beats-broadband-offsets-tv-losses-2018-01- 24. Case: 1:16-cv-05486 Document #: 377 Filed: 10/04/18 Page 2 of 6 PageID #:17830 it can afford to, by hiring not one, but two, of the most expensive law firms in the country. As a result, Comcast seeks over $431,000 in costs alone, and it will likely seek over $10 million in fees for its two armies of lawyers. See Dkt. 369. Indeed, the Bill of Costs Comcast submitted consists of over 150 pages of expenses spanning over two years. See Dkt. 369, Exhs. A-G. The support for the attorneys' fees request will likely comprise another several hundred pages of invoices from dozens of lawyers. Moreover, that fee request hinges on a contractual claim that is not nearly as simple and unambiguous as Comcast suggests. First, under Illinois law, contractual provisions providing for attorneys' fees are strictly construed because they are in derogation of the common law. See, e.g., Negro Nest, LLC v. Mid-Northern Mgmt., Inc., 839 N.E.2d 1083, 1085 (Ill. App. 2005). Second, Comcast's claim, at best, rests on the interpretation of an ambiguous contractual term: whether this lawsuit is "relating to" the 2003 Agreement between Comcast and Viamedia.3 See Dkt. 362 at 3; see also, e.g., Schwann v. FedEx Ground Package Sys., Inc. 813 F.3d 429, 436 (1st Cir. 2016) ("After all, in a broad sense, everything 'relates to' everything else in some manner."). Assuming that an ambiguous contract provision can be a proper basis for an award of attorneys' fees at all, the meaning of such a provision, even in an integrated contract such as the 2003 Agreement, is a question of fact that permits discovery of the parties' intent regarding the degree of relatedness the parties intended to trigger the right to attorneys' fees.4 See, e.g., Osuji 3 Viamedia does not concede that the relevant contract language is ambiguous or that a reasonable fact-finder could read "legal action or proceeding. . . relating to this Agreement" to mean any proceeding to which the contract may be relevant, as opposed to a proceeding arising out of the contract. Dkt. 362 at 3. 4 Any determination of the applicability of the 2003 Agreement will likely require additional discovery, which Rule 54 and Local Rule 54.3 specifically allow. See Fed. R. Civ. P. 54 advisory committee notes to 1993 amendment ("[T]he court may determine that discovery under Rules 26-37 would be useful to the parties."); Angelopoulos v. Keystone Orthopedic Specialists, S.C., 2018 WL 461227, at *3 (N.D. Ill. Jan. 18, 2018) (holding that the particular facts of the 1 Case: 1:16-cv-05486 Document #: 377 Filed: 10/04/18 Page 3 of 6 PageID #:17830 v. Countrywide Home Loans, Inc., 2006 WL 2425333, at *2 (N.D. Ill. Aug. 17, 2006) ("[W]hen an integrated contract is ambiguous as to its terms, then extrinsic evidence is permitted to explain the terms of the contract."); Rakowski v. Lucente, 104 Ill. 2d 317, 322 (Ill. 1984) (holding that when an integrated contract is ambiguous as to its terms, then extrinsic evidence is permitted to explain the terms of the contract). Third, Judge St. Eve's prior rulings provide no support for Comcast's argument that the 2003 Agreement was related to any of the claims in this case. Indeed, Judge St. Eve ruled that the 2003 Agreement is so ancillary to Viamedia's claims that it could not be considered on a motion to dismiss. See Mem. Op. & Order at 14-17, Dkt. 36 (holding that the 2003 Agreement "is not central to Viamedia's allegations," and expressly "disagree[ing]" with Comcast's argument that "Viamedia essentially asks the Court to extend [the 2003 Agreement]'s terms."). This Court has the discretion to set any schedule it desires for the briefing of Comcast's fee and cost petitions, including deferring all briefing until after the resolution of Viamedia's pending appeal. See Fed. R. Civ. P. 54(d). In cases like this one that involve substantial and time-consuming claims for fees and costs, this Court has exercised its discretion to defer briefing and proceedings on both costs and attorneys' fees pending appeal. See GS CleanTech Corp. v. Adkins Energy LLC, 2018 WL 1469001, at *7 (N.D. Ill. Mar. 26, 2018) (agreeing that "deferring briefing and ruling on. . . attorneys' fees, and costs is more efficient than resolving these issues now because 'any appellate ruling other than a complete affirmance. . . will impact the case "ma[de] this situation different than a typical fee petition presented under Local Rule 54.3 and justifie[d] some discovery."). Comcast's sole response is that Viamedia cannot "identify any facts that must be discovered" yet. Dkt. 372 at 4. That is true, but only because neither the parties nor the Court have engaged in any consideration of the 2003 Agreement, nor the scope of any particular provision, because the Agreement has never been at issue in this case. Having said that, it seems that, at a minimum, there would be discovery on what the parties to the 2003 Agreement intended by the fee shifting provision and its use of the word "related." 2 Case: 1:16-cv-05486 Document #: 377 Filed: 10/04/18 Page 4 of 6 PageID #:17830 attorneys' fees issues, requiring the Court and the parties to revisit the issues anew post- appeal'") (emphasis added; quoting Pl. Mot.). Even Comcast agrees the Court should exercise its discretion to postpone briefing on its attorneys' fees petition, despite the fact that the logic behind Comcast's request makes no sense. Comcast requests that any briefing on fees be postponed until after Viamedia files its opening appellate brief and then the briefing should be limited to only the "threshold" issue of Comcast's entitlement to attorney fees, with potentially irrelevant and wasteful briefing on the proper amount of fees deferred still further until the issue of entitlement is resolved. Dkt. 362 at 4-5. But the real threshold issue here is the appeal. Any briefing on fees and costs would be rendered moot by a successful appeal. Anyone truly interested in avoiding waste before threshold issues are resolved would advocate waiting for the Court of Appeals to rule before addressing such extraordinary requests for fees and costs as those at issue in this case.5 Comcast's position, in contrast, is that of a company so wealthy that it wants to use the ruse of addressing "threshold" issues to hide from the Court how much it has overspent on attorneys' fees until the Court addresses the entitlement to those fees. As for costs, Comcast submits briefing on costs should proceed promptly for no reason other than "to avoid any prejudice to Comcast." Dkt. 372 at 5. Yet Comcast fails to offer any explanation of a risk of prejudice. To the contrary, Comcast spends much of its Opposition disputing that Viamedia "is somehow 'constrained' to pay the attorneys' fees and costs" in this case. Id. at 3. 5 Comcast's Opposition fails to dispute that its "threshold" philosophy favors deferral of the fees and costs issues pending appeal. See, e.g., George v. Junior Achievement of Cent. Indiana, Inc., 2011 WL 5402418, at *2 (S.D. Ind. Nov. 4, 2011) ("it [would be] inefficient for the parties to engage in discovery and the Court to rule on issues that may ultimately be moot after the Seventh Circuit decides [Viamedia]'s pending appeal"). 3 Case: 1:16-cv-05486 Document #: 377 Filed: 10/04/18 Page 5 of 6 PageID #:17830 For the reasons discussed above (and in greater detail in Viamedia's Combined Opposition), Viamedia respectfully requests that the Court defer all proceedings on both costs and attorneys' fees during the pendency of Viamedia's appeal. In the alternative, Viamedia requests that the Court defer all briefing and proceedings on costs and attorneys' fees until appellate briefing is complete. If the Court denies Viamedia's request, Viamedia agrees to follow Comcast's proposed schedule for objecting to Comcast's bill of costs "within ten days from this Court's order." Dkt. 372 at 5. Dated: October 4, 2018 /s/ Richard J. Prendergast Richard J. Prendergast Michael T. Layden Collin M. Bruck RICHARD J. PRENDERGAST, LTD. 111 W. Washington Street, Suite 1100 Chicago, Illinois 60602 (312) 641-0881 rprendergast@rjpltd.com mlayden@rjpltd.com cbruck@rjpltd.com James M. Webster, III (pro hac vice) Aaron M. Panner (pro hac vice) Derek T. Ho (pro hac vice) Kenneth M. Fetterman (pro hac vice) KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 jwebster@kellogghansen.com apanner@kellogghansen.com kfetterman@kellogghansen.com dho@kellogghansen.com Counsel for Plaintiff Viamedia, Inc. 4 Case: 1:16-cv-05486 Document #: 377 Filed: 10/04/18 Page 6 of 6 PageID #:17830 CERTIFICATE OF SERVICE I, Richard J. Prendergast, an attorney of record in the above-captioned case, hereby certify that on October 4, 2018, I caused to be served a true and correct copy of Viamedia, Inc.'s Reply in Support of its Motion To Defer Proceedings on Attorneys' Fees and Costs Pending Appeal upon the following counsel via ECF: Ross Benjamin Bricker Sally Kristen Sears Coder Thomas Edward Quinn Jenner & Block LLP 353 N. Clark Street Chicago, IL 60654 (312) 222-9350 rbricker@jenner.com ssearscoder@jenner.com tquinn@jenner.com Arthur Burke David B. Toscano Davis, Polk & Wardwell 450 Lexington Street New York, NY 10017 (212) 450-4000 arthur.burke@dpw.com david.toscano@davispolk.com /s/ Richard J. Prendergast 5