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Ninth Circuit:
Planned Parenthood Fee Award Proper in Secret Video Case
Opinion Says Order Calling for $12.8 Million to Abortion Provider, Exceeding Amount Recovered in Damages, Is Reasonable Despite Lack of Itemized Timesheets
By Kimber Cooley, associate editor
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DAVID DALEIDEN |
An order awarding Planned Parenthood Federation of America Inc. $12,782,891.25 in attorney fees and $998,119.17 in other litigation costs was proper despite the amount exceeding, by more $10 million, the damages recovered in the case and the fact that the lawyers failed to provide itemized timesheets, the Ninth U.S. Circuit Court of Appeals held Friday.
The decision is the latest in litigation by the abortion provider against journalist David Daleiden and the Center for Medical Progress, the pro-life organization he founded in 2013, relating to the surreptitious recording of conversations between persons pretending to be officers of a tissue procurement company and Planned Parenthood employees.
Edited videos based on the recordings were shared on YouTube in 2015 and purportedly show Planned Parenthood officers discussing the sale of body parts from late-term fetuses, some of which had allegedly been delivered alive and mostly intact. After a jury trial in April 2020, the defendants were found liable for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and other wrongs.
Senior District Court Judge William H. Orrick of the Northern District of California ordered the defendants to pay Planned Parenthood $2,425,084 in damages and issued a permanent injunction enjoining them from future recordings of the abortion provider’s employees.
In a 2022 opinion authored by Circuit Judge Ronald M. Gould, the Ninth Circuit reduced the award to $2,335,084 due to the court determining that certain damages awarded under the Federal Wiretap Act were duplicative.
On Jan. 12, 2021, Orrick ordered the defendants to pay Planned Parenthood attorney fees. The plaintiff provided detailed declarations outlining the basis of the fees but no time sheets.
Circuit Judges Lucy H. Koh, Anthony S. Johnstone, and District Court Judge Michael H. Simon of the District of Oregon, sitting by designation, signed Friday’s memorandum decision affirming the award. Addressing the significant gap between the damages award and the attorney fees, the judges said “[w]e have never addressed strict proportionality requirements in the context of civil Racketeer Influenced and Corrupt Organizations…,” but found that it is not per se unreasonable for lawyers to receive an award that exceeds the amount recovered by their clients.
Noting that this principle is “most frequently recognized” in civil rights contexts, they explained that proportionality between the two figures is “a legitimate consideration” but not a “dispositive” one according to U.S. Supreme Court jurisprudence. The judges explained:
“[A]lthough a district court must ‘relate the extent of success to the amount of the fee award,’…here the district court made clear that it ‘considered the relationship between the amount of the fee awarded and the results obtained.’….Importantly (and ignored by the Center), such results are not ‘limited to the damages award’ but include ‘nonmonetary benefits,’ both to the plaintiff and ‘other members of society.’ ”
They continued:
“The district court determined that the permanent injunction entered in favor of Planned Parenthood also weighed in favor of the requested fee award. Finally, the district court observed that Planned Parenthood’s counsel voluntarily reduced their fee request by 25% ‘to account for potential duplication of effort and inefficiencies,’ and that this ‘significant reduction’ supported the fee request. The district court’s conclusion was not an abuse of discretion.”
The defendants cite the 1993 Ninth Circuit decision of Intel Corp. v. Terabyte International Inc., written by then-Circuit Judge Ferdinand F. Fernandez (now on senior status), in which the court found “summaries” of hours worked insufficient to support an award of attorney fees, saying “those summaries alone made it very difficult to ascertain whether the time devoted to particular tasks was reasonable and whether there was improper overlapping of hours.”
Unpersuaded that Intel undermined the award in the present case, the judges wrote:
“Intel is inapposite. There, the district court ‘made no findings that the hours expended were reasonable and that the hourly rates were customary’ and ‘merely awarded the fees without elaboration.’….Under such circumstances, ‘mere summaries of hours worked’ were inadequate to allow the district court to determine whether any of the hours claimed were duplicative or unnecessary….Here, by contrast, the district court made specific findings—which the Center has not challenged, either below or on appeal—that Planned Parenthood’s counsel provided sufficiently detailed declarations for both the court and the Center to evaluate the fee request. Under these circumstances, Planned Parenthood submitted sufficient ‘evidence supporting the hours worked and rates claimed.’ ”
They added:
“Lastly, to the extent that the Center renews its argument below that production of timesheets is required as a matter of due process, this case does not present any such concerns.”
The case is Planned Parenthood Federation of America Inc. v. Center for Medical Progress, 21-15124.
In 2016, then-California Attorney General Kamala Harris initiated a criminal investigation into Daleiden relating to the undercover videos, citing state laws prohibiting the recording of individuals without permission. Her predecessor, Xavier Becerra, filed felony charges against the activist.
The criminal case is ongoing.
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