You are on page 1of 113

FILED

DALLAS COUNTY
9/26/2016 6:23:11 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-16-03561


KALLE MCWHORTER and
Prestigious Pets, LLC,
PLAINTIFFS,
V.
ROBERT DUCHOUQUETTE and
MICHELLE DUCHOUQUETTE
DEFENDANTS.

IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

160th JUDICIAL DISTRICT

DEFENDANTS APPLICATION FOR FEES, COSTS, EXPENSES, AND SANCTIONS


IN CONNECTION WITH TCPA MOTION TO DISMISS
Pursuant to the direction in the final paragraphs of the Courts August 26, 2016 Order
granting their motion to dismiss under the Texas Citizens Participation Act (TCPA),
Defendants Robert Duchouquette and Michelle Duchouquette (the Duchouquettes) move for
an award of attorneys fees, court costs, other expenses, and sanctions in connection with their
motion to dismiss pursuant to the TCPA and respectfully show the Court as follows:

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 1

TABLE OF CONTENTS
I.

Introduction and Background ............................................................................................. 1

II. Attorneys Fees, Costs, Expenses, and Sanctions Sought .................................................. 2


III. Evidence in Support.............................................................................................................. 3
IV. Arguments and Authorities .................................................................................................. 3
A.
The Duchouquettes are entitled to recover all attorneys fees attributable to their
defense against the Plaintiffs entire campaign of litigation. ................................................ 4
1.
The Duchouquettes are entitled to recover $166,302.15 in attorneys fees attributable
to their representation by Public Citizen Litigation Group and Thompson & Knight in this
Court. 4
2.
The Duchouquettes are entitled to recover $10,415.47 in attorneys fees charged by
CCSB in the Justice Court Lawsuit because it and this lawsuit constitute the same legal
action. .................................................................................................................................. 10
B.
The Duchouquettes are entitled to recover $1,738.63 in court costs and other
expenses attributable to their defense of this litigation. ...................................................... 12
C.
The Duchouquettes are entitled to an award of significant sanctions because such
sanctions are necessary to deter Plaintiffs from bringing similar suits in the future. ...... 13
1.
An award of sanctions equal to the minimum amount of damages sought in Plaintiffs
Original Petition is appropriate. ............................................................................................ 14
2.
In the alternative, a sanction equal to the amount of attorneys fees attributable to the
Duchouquettes defense, or equal to the value of legal work expended on their behalf, is an
appropriate award.................................................................................................................. 16
V.

CONCLUSION AND PRAYER ........................................................................................ 16

INDEX OF AUTHORITIES
CASES
Am. Flood Research, Inc. v. Jones,
192 S.W.3d 581 (Tex. 2006).................................................................................................... 13
Am. Heritage Capital, LP v. Gonzalez,
436 S.W.3d 865 (Tex. App.Dallas 2014, no pet.).............................................. 10, 13, 14, 16
Arthur Andersen & Co. v. Perry Equipment Corp.,
945 S.W.2d 812 (Tex. 1997)................................................................................................ 9, 12
Brown v. Commn for Lawyer Discipline,
980 S.W.2d 675 (Tex. App.San Antonio 1998, no pet.) ........................................................ 5
Cruz in Sullivan v. Abraham,
488 S.W.3d 294 (Tex. 2016)...................................................................................................... 5
Dallas Court of Appeals in Cruz v. Van Sickle,
452 S.W.3d 503 (Tex. App. Dallas 2014, pet denied) .................................................... 5, 6, 7
Garza v. Allied Fin. Co.,
566 S.W.2d 57 (Tex. Civ. App.Corpus Christi 1978, writ refd n.r.e.) ................................. 5
Jaster v. Comet II Const., Inc.,
438 S.W.3d 556 (Tex. 2014).................................................................................................... 11
Kinney v. BCG Attorney Search, Inc.,
No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.Austin Apr. 11, 2014, pet.
denied)........................................................................................................................... 13, 14, 15
Mart Stores v. Davis,
979 S.W.2d 30 (Tex. App.Austin 1998, pet. denied)........................................................... 15
OCarolan v. Hopper,
414 S.W.3d 288 (Tex. App.Austin 2013, no pet.) ................................................................. 5
Prestigious Pets v. Tatiana Narvaez,
No. 15-00600-H, Justice Court, Precinct 1, Place 1, Dallas County (filed Dec. 14,
2015) ......................................................................................................................................... 15
Sloan v. Owners Assn Of Westfield, Inc.,
167 S.W.3d 401 (Tex. App.San Antonio 2005, no pet.) ........................................................ 4
Sullivan v. Abraham,
488 S.W.3d 294 (Tex. 2016)................................................................................ 4, 5, 6, 7, 8, 12
STATUTORY AUTHORITIES
Tex. Civ. Prac. & Rem. Code 27.001(6) .................................................................................... 10
Tex. Civ. Prac. & Rem. Code 27.009(a)(1) ............................................................................. 2, 4
Tex. Civ. Prac. & Rem. Code 27.009(a)(2) ..................................................................... 4, 13, 14

ii

I.

INTRODUCTION AND BACKGROUND


On August 26, 2016, the Court dismissed with prejudice all of Plaintiffs claims against

the Duchouquettes, ending the Plaintiffs campaign of litigation against the Duchouquettes
relating to a Yelp! review about the Plaintiffs pet-sitting services. Plaintiffs campaign included
not one, but two lawsuits, with this suit filed the first business day after the first suit was
dismissed. Plaintiff Prestigious Pets, LLC filed its first lawsuit against the Duchouquettes
relating to the Yelp! review in the justice court (the Justice Court Lawsuit). Prestigious Pets
non-suited its claims in the Justice Court Lawsuit after the Duchouquettes, represented by
lawyers at Carrington, Coleman, Sloman & Blumenthal, LLP (CCSB), filed a motion to
dismiss under the TCPA.

CCSB charged the Duchouquettes nearly $10,000 in legal fees

attributable to CCSBs representation of them in the Justice Court Lawsuit. Despite prevailing
(through Prestigious Pets dismissal of its claims) in the Justice Court Lawsuit, the
Duchouquettes have not recovered those fees to date.
Undeterred, Plaintiffs filed the above-captioned case one business day later, increasing
their damages allegations to between $200,000 and $1 million, and seeking an award of
attorneys fees on top of those damages. The Duchouquettes retained Paul Alan Levy of Public
Citizen, a litigator with nearly 40 years of experience and expertise in First Amendment law, and
Nicole Williams, a partner at Thompson & Knight LLP, to defend them against the Plaintiffs
second lawsuit.

Public Citizen and Thompson & Knight, which have represented the

Duchouquettes in this Court, expended time worth more than $166,302.15 in reasonable
attorneys fees in the successful defense of the Duchouquettes.
As authorized by the Courts August 26, 2016 Order and the TCPA, the Duchouquettes
seek a mandatory award of attorneys fees, costs, expenses, and sanctions sufficient to deter
DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 1

Plaintiffs conduct in the future. See TEX. CIV. PRAC. & REM. CODE 27.009(a)(1). As
explained below, the Court should: (a) award the Duchouquettes their attorneys fees and
litigation costs attributable to the defense of both the Justice Court Lawsuit and this case; and (b)
award sanctions equal to $200,000 (the minimum amount sought by Plaintiffs in their Original
Petition) to discourage and deter Plaintiffs from continuing in their quest to infringe upon the
Duchouquettes constitutional right of free speech.
II.

ATTORNEYS FEES, COSTS, EXPENSES, AND SANCTIONS SOUGHT


As provided by Section 27.009(a)(1), the Duchouquettes ask the Court to award the

$178,456.25 attributable to their defense of this legal action to date, which consists of:
1)

$166,302.15 in attorneys fees attributable to the defense of the above-captioned


lawsuit; and

2)

$10,415.47 in attorneys fees attributable to the defense of the Justice Court


Lawsuit, which was substantially based upon the same underlying events and
factual allegations; and

3)

$1,738.63 in costs and expenses.

Additionally, the Duchouquettes seek an award of:


1)

$50,000 in the event that Plaintiffs unsuccessfully appeal to the Court of Appeals;
plus

2)

$100,000 in the event that Plaintiffs unsuccessfully appeal to the Supreme Court
of Texas, consisting of $25,000 if a petition for review is sought but denied, and
an additional $75,000 in the event that the Supreme Court requests full briefing on
the merits.

Additionally, the Duchouquettes seek mandatory sanctions pursuant to Section


DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 2

27.009(a)(2) in the amount of $200,000, which is a sum equal to the minimum amount of
damages Plaintiffs sought to recover from the Duchouquettes and sufficient to deter Plaintiffs
from bringing similar actions in the future.
III.

EVIDENCE IN SUPPORT
The Duchouquettes offer the following evidence in support of this motion:
Exhibit 1:

Declaration of Paul Alan Levy

Exhibit 1-A: Paul Alan Levy Bio


Exhibit 1-B: Web Bullys Worst Enemy
Exhibit 1-C: Scott Michelman CV
Exhibit 1-D: Laffey Matrix from U.S. Attorneys Office
Exhibit 1-E: Adjusted Laffey Matrix
Exhibit 1-F: Redacted Public Citizen Litigation Group Time Records
Exhibit 1-G: Public Citizen Litigation Group Retainer
Exhibit 2:

Declaration of Nicole L. Williams

Exhibit 2-A: Curriculum Vitae of Nicole L. Williams


Exhibit 2-B: Curriculum Vitae of Christopher O. Dachniwsky
Exhibit 2-C: Redacted Thompson & Knight time records
Exhibit 2-D: Thompson & Knight Engagement Letter

IV.

Exhibit 3:

Carrington, Coleman, Sloman & Blumenthal, LLP Redacted Time


Records

Exhibit 4:

Affidavit of Matthew Chan

Exhibit 5:

Narvaez Petition

ARGUMENTS AND AUTHORITIES

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 3

As the Court held in its August 26, 2016 Order, the Duchouquettes, as prevailing parties
on their motion to dismiss under the TCPA, are entitled to recover court costs, reasonable
attorneys fees, and other expenses incurred in defending against the legal action as justice and
equity may require. See Tex. Civ. Prac. & Rem. Code 27.009(a)(1); August 26, 2016 Order;
Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (holding that an award of reasonable
attorneys fees under the TCPA is mandatory and not limited by considerations of justice and
equity). The Duchouquettes are also entitled to recover sanctions against [the Plaintiffs] as the
court determines sufficient to deter the party who brought the legal action from bringing similar
actions described in this chapter. See Tex. Civ. Prac. & Rem. Code 27.009(a)(2); August 26,
2016 Order.
A.

The Duchouquettes are entitled to recover all attorneys fees attributable to


their defense against the Plaintiffs entire campaign of litigation.
1.

The Duchouquettes are entitled to recover $166,302.15 in attorneys


fees attributable to their representation by Public Citizen Litigation
Group and Thompson & Knight in this Court.

Public Citizen Litigation Group and Mr. Levy have represented the Duchouquettes on a
pro bono basis since the Justice Court Lawsuit relating to the Yelp! Review and have
spearheaded their successful defense.

Thompson & Knight agreed to represent the

Duchouquettes pro bono shortly after this lawsuit was filed. 1 Plaintiffs have previously argued
that the Duchouquettes are not entitled to any award of attorneys fees attributable to their
1

Thompson & Knights engagement agreement provides that it is entitled to be reimbursed for its
attorneys fees from any monetary award rendered in the Duchouquettes favor. Thus, even if pro bono
counsel is not entitled to recover attorneys fees because they are not incurred (as explained below, that
argument is based on a case that is no longer good law), the Duchouquettes are entitled to recover for
Thompson & Knights fees attributable to their defense. Cf. Sloan v. Owners Ass'n Of Westfield, Inc., 167
S.W.3d 401, 404 (Tex. App.San Antonio 2005, no pet.) (Because the Association is liable to its
counsel for services provided, even if provided on a contingent fee basis, and because the Association
would be required to pay its counsel out of any proceeds received as a result of this litigation, we
conclude the Association has incurred the legal fees that are secured by the lien in this case.).

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 4

defense in this case because counsel represent them pro bono. 2

Plaintiffs argument is

misguided, contravenes the core purposes of the TCPA, and should be rejected.
Following the lead of federal courts interpreting fee shifting statutes, Texas courts have
long held that statutory provisions for the award of attorneys fees support an award of fees even
when the lawyer appears on a pro bono basis. Brown v. Comm'n for Lawyer Discipline, 980
S.W.2d 675, 684 (Tex. App.San Antonio 1998, no pet.); Garza v. Allied Fin. Co., 566 S.W.2d
57, 65 (Tex. Civ. App.Corpus Christi 1978, writ refd n.r.e.); see also O'Carolan v. Hopper,
414 S.W.3d 288, 314 (Tex. App.Austin 2013, no pet.).

Plaintiffs contend that those

precedents do not apply here because of a 2014 ruling by the Dallas Court of Appeals in Cruz v.
Van Sickle, 452 S.W.3d 503 (Tex. App. Dallas 2014, pet denied). But the Texas Supreme
Court effectively overruled Cruz in Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016).
In Cruz, the plaintiff sued three defendantstwo associated with a website that hosted an
allegedly defamatory story about the plaintiff as well as the actual author of the article. The
website defendants were represented pro bono, while the author had paid counsel. The court
held that the paid counsel could receive fees under the TCPA, but the pro bono counsel could
not, based on the structure of the section 27.009(a)(1) of the Texas Civil Practice and Remedies
Code, which reads as follows:
If the court orders dismissal of a legal action under this chapter, the court shall
award to the moving party:
(1) court costs, reasonable attorneys fees, and other expenses incurred in
defending against the legal action as justice and equity may require . . . .

See Plaintiffs Response to Defendants Motion to Dismiss Under the TCPA (filed July 19, 2016)
at 31-32. Plaintiffs counsel reiterated this argument at the hearing on the Duchouquettes Motion.

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 5

The losing plaintiff argued that the phrase incurred in defending against the legal action
as justice and equity may require modifies the entire series court costs, reasonable attorneys
fees, and other expenses, but the prevailing defendants who had been represented by pro bono
counsel argued for the court to apply the last antecedent rule canon of statutory construction.
Under that rule, a qualifying phrase in a statute must be confined to the words and phrases
immediately preceding it. Cruz, 452 S.W.3d at 523. The court of appeals rejected the last
antecedent rule, explaining it was neither controlling nor inflexible. Id. at 523. The court further
explained that the use of the term other before expenses suggested that court costs and
attorneys fees are also expenses, and hence controlled by the same incurred phrase as other
expenses. Id. at 523. To the court of appeals, this meant that defendants being represented pro
bono had not incurred [any fees] in defending against the legal action obligations. Id. at 526.
In Sullivan v. Abraham, the Texas Supreme Court construed the same statutory language
in the TCPA and reached the opposite conclusion, expressly considering and rejecting the court
of appeals analysis in Cruz.

The issue in Sullivan was not whether attorneys fees were

incurred, but whether the phrase attorneys fees was modified by the words as justice and
equity may require. Sullivan, 488 S.W.3d at 295-96. That is, whether a trial judge has
discretion to award fees that are less reasonable as measured against the normal marker for legal
services when the judge thinks that a lower award would be more equitable. The Supreme Court
held that no such discretion applied to the fee award required by the TCPA. Id. at 299.
The Supreme Courts reasoning is key: it treated the issue as a choice between the last
antecedent rule canon of construction and the series qualifier canon, under which a
prepositive or postpositive modifier normally applies to the entire series. Id. at 297. The Court,
in contrast to the Cruz court, held that the last antecedent canon governed construction of section
DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 6

27.009(a)(1). Id. at 298-99. One reason for this was the absence of a comma before as justice
and equity may require. Id. at 298-99. Specifically, the Supreme Court reasoned that had the
Legislature wanted the modifying phrase to govern the entire series, it would have placed a
comma before the phrase. Id. at 298.
In addition, the Court was influenced by the presence of an Oxford comma in the phrase
costs, attorneys fees, and other expenses. Id. at 298-99. The Oxford comma is placed before
the coordinating conjunction in a series of three or more terms, and if the Legislature had
intended the equity and justice part of the statute to govern attorneys fees as well as other
expenses, it would have omitted the Oxford comma. Id. at 299. The court found the Oxford
comma argument not definitive, but deemed it controlling when combined with the absence of
the other comma and the presence of the word other before expenses. Id. at 299.
Thus, as authoritatively construed by the Texas Supreme Court, in the clause court costs,
reasonable attorneys fees, and other expenses incurred in defending against the legal action as
justice and equity may require, only other expenses is governed by the qualifying phrase
incurred in defending against the legal action as justice and equity may require. And most
notably, the main Texas precedent that plaintiff Abraham cited for the proposition that justice
and equity could be used to award less than full reasonable attorneys fees, was Cruz v. Van
Sickle, which reasoning the Supreme Court expressly rejected. Although Sullivan addressed the
as justice and equity may require part of the qualifying phrase, the same logic applies to the
incurred in defending part.
First, the Supreme Court held that the last antecedent canon governs construction of
this provision. Sullivan, 488 S.W.3d at 297-99. Cruz was predicated on the Court of Appeals
rejection of that canon. Second, the absence of a comma before incurred shows that the
DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 7

Legislature did not intend that language to govern all three parts of the court costs, reasonable
attorneys fees, and other expenses series. Third, the presence of the Oxford comma before
and other further signals the Legislatures intent not to apply the words after and other
expenses to the first two terms in the series. And finally, it would be nonsensical to apply
different parts of the same qualifying phrase differently; in other words, incurred cannot
qualify court costs [and] reasonable attorneys fees if as justice and equity may require do
not qualify it.
Moreover, Sullivans construction of the statutory text best advances the underlying
purposes of the TCPA and its attorney fee provisionsenabling those who are sued without a
substantial basis based upon their exercise of their rights of free speech, of association, or to
petition to stand up for their rights in court. Although media companies, or people who carry
libel insurance because they are in the business of criticizing others, can routinely afford to hire
lawyers and pay them hourly rates for the defense of libel cases, individuals like the
Duchouquettes generally cannot. And unlike plaintiffs who are suing for an award of damages,
defendants who successfully fend off libel suits do not accrue, by settlement or by judgment, a
pot of money that can be divided with counsel under a traditional contingent-fee arrangement.
Levy Affidavit 22-23. Consequently, mandatory fee-shifting statutes like the TCPA provide
a vital incentive for lawyers in private practice to defend these cases even when their clients
cannot pay by the hour, making them effectively contingent-fee cases.
In states with a long-standing anti-SLAPP statute, where the judges have a history
of awarding attorney fees to winning anti-SLAPP movants, a First Amendment defense bar
emerges who are willing to take on SLAPP defense work on a contingent fee basis, and the
consistent application of the fees provision is a vital part of funding mechanism that enables
DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 8

ordinary people who face unjustified suits to find lawyers to defend them. Levy Affidavit 2732.

Implementing the text of the TCPA, as authoritatively construed by the Texas Supreme

Court, and rejecting plaintiffs attempt to evade the laws mandatory attorney fees provision, will
best enable the TCPA to accomplish the legislative purpose. Levy Affidavit 33.
Therefore, contrary to Plaintiffs contention, the Duchouquettes are entitled to recover the
reasonable attorneys fees attributable to the work of every attorney that participated in the
defense against the Plaintiffs campaign of litigation, including Public Citizens and Thompson
& Knights representation of the Duchouquettes on a pro bono basis. As explained in Mr.
Levys affidavit, three attorneys at Public Citizen Litigation Group represented the
Duchouquettes in the defense of this suit, and fees are sought for the work of two of those
lawyers based on reasonable hourly rates. Ms. Williams provides further support in her affidavit
for the reasonableness of the hourly rates charged by Mr. Levy and his co-counsel under the
factors set forth in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.
1997).

Ms. Williams further attests to the reasonableness of Thompson & Knights fees

attributable to their defense of the Duchouquettes under the factors in Arthur Andersen.
Public Citizens reasonable attorneys fees attributable to its defense of the
Duchouquettes totaled $126,892.50, and Thompson & Knights reasonable attorneys fees
attributable to its defense of the Duchouquettes totaled $39,409.65. The Court should therefore
award the Duchouquettes $166,302.15 for the reasonable attorneys fees attributable to their
defense by Public Citizen Litigation Group and Thompson & Knight in this Court.
The total time sought for the work of the attorneys on this case is as follows:

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 9

Attorney

Hours

Hourly Rate

Total Fee

Levy

160.3

$750

$120,225

Michelman

12.7

$525

$6,667.50

Williams

22.0

$531

$11,682.00

Dachniwsky

89.3

$310.50

$27,727.65

Total

289.8
2.

$166,302.15

The Duchouquettes are entitled to recover $10,415.47 in attorneys


fees charged by CCSB in the Justice Court Lawsuit because it and
this lawsuit constitute the same legal action.

In addition to awarding fees for the work of the two law firms that defended the lawsuit
in this Court, the Court should also award the Duchouquettes the court costs and attorneys fees
attributable to their defense against the Justice Court Lawsuit. As explained above, one of the
Plaintiffs in this lawsuit, Prestigious Pets, LLC, filed the Justice Court Lawsuit against the
Duchouquettes. The Justice Court Lawsuit alleged largely the same causes of action related to
the same underlying events: the Duchouquettes Yelp! review. The Duchouquettes have paid the
fees relating to that suit out of pocket. Thus, those fees should, in fairness, be considered
together with this lawsuit.
The TCPA supports awarding the attorneys fees incurred in defense of the Justice Court
Lawsuit as well as this lawsuit. The statute contains a broad definition of the term legal action:
a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial
pleading or filing that requests legal or equitable relief. Tex. Civ. Prac. & Rem. Code
27.001(6). In fact, the Dallas Court of Appeals has held that the TCPA allows prevailing
defendants to recover fees for time spent by their counsel before a lawsuit is formally filed,

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 10

where counsel is retained as a result of an earlier demand or claim. See Am. Heritage Capital,
LP v. Gonzalez, 436 S.W.3d 865, 880 (Tex. App.Dallas 2014, no pet.).
Here, the Justice Court Lawsuit and this lawsuit are part of the same legal action
because they are based upon many of the same events, factual allegations, and theories, as
admitted by the Plaintiffs in the appeal of the Justice Court Suit. The Duchouquettes have
appealed the justice courts dismissal of their motion to dismiss under the TCPA and are also
attempting to collect the attorneys fees they incurred in relation to it through that appeal, but
have been unsuccessful in those attempts to date. 3

Plaintiff Prestigious Pets pointed to the

proceedings in this Court as a basis for arguing that the appeal was moot because the
Duchouquettes were seeking the same relief in their TCPA motion to dismiss in this court. See
Pls. Notice of Non-Suit and, in the Alternative, Plea to the Jurisdiction, at 3. Defendants motion
for reconsideration of the County Courts dismissal for lack of jurisdiction was denied on
September 9. 4
According to the Texas Supreme Court, the generally accepted meaning of the term
cause of action is a fact or facts entitling one to institute and maintain an action which must
be alleged and proved in order to obtain relief. Jaster v. Comet II Const., Inc., 438 S.W.3d 556,
564 (Tex. 2014). Here, substantially the same facts underlay the Plaintiffs claims in both the
Justice Court Lawsuit and this case, and allegedly entitled Plaintiffs to institute and maintain
their action. Indeed, Plaintiffs course of conduct shows that they consider this case to be a
3

Further, the Duchouquettes are not here seeking recovery of the legal fees attributable to that appealmerely those
fees attributable to their defense in the Justice Court.
4
The Justice Court Lawsuit alleged claims for defamation and breach of the non-disparagement clause, and was
even more frivolous than this action, in that the company sued Robert Duchouquette even though he had not posted
the Yelp review. Plaintiffs also sued Michelle Duchouquette for breach of the non-disparagement clause even
though she had not signed the contract. This action has one additional plaintiff (Kalle McWhorter) and one
additional claim (for business disparagement). Unlike the Justice Court Lawsuit, this action does not seek relief
against Robert Duchouquette for statements made before the Justice Court Lawsuit was filed, and it pursues the
breach of contract claim only against Robert Duchouquette.

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 11

continuation of the Justice Court Lawsuit: Prestigious Pets, LLC nonsuited its claims in the
Justice Court Lawsuit on March 25, 2016; Plaintiffs then re-filed their legal action in this Court
the very next working day. The re-filed lawsuit contains the same or substantially the same
factual allegations, legal claims, and parties; the most important difference is that Plaintiffs
sought damages of between $200,000 and $1 million in this lawsuit, whereas in the Justice Court
Lawsuit, their recovery was capped at $10,000.
Given these facts, the Justice Court Lawsuit is the same legal action for purposes of the
TCPA.

As shown in the CCSB invoices attached as Exhibit 3, CCSB charged, and the

Duchouquettes paid, $10,415.47 attributable to its defense of them in the Justice Court Lawsuit.
CCSBs representation of the Duchouquettes, and the fees it charged for doing so, are reasonable
under the factors set forth in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812,
818 (Tex. 1997). The Court should therefore award the Duchouquettes $10,415.47 for attorneys
fees attributable to CCSBs defense of them in this litigation.
B.

The Duchouquettes are entitled to recover $1,738.63 in court costs and other
expenses attributable to their defense of this litigation.

Section 27.009(a)(1) also entitles the Duchouquettes to recover their court costs
attributable to the defense of this litigation. As explained above, under Sullivan, the qualifying
phrase incurred in defending against the legal action as justice and equity may require does not
modify court costs; thus, the Duchouquettes are entitled to recover all court costs attributable to
this litigation. As set forth in Ms. Williams affidavit, further, the Duchouquettes were always
responsible for paying court costs under their engagement agreement with Thompson & Knight.
As Ms. Williams and Mr. Levy attest in their affidavits, there were $1,738.63 in court costs and

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 12

other expenses attributable to the defense of this lawsuit. This Court should therefore award the
Duchouquettes $1,738.63 in court costs and other expenses.
C.

The Duchouquettes are entitled to an award of significant sanctions because


such sanctions are necessary to deter Plaintiffs from bringing similar suits in
the future.

In addition to attorneys fees, court costs, and litigation expenses, a court that dismisses
any cause of action under the TCPA shall award . . . sanctions against the party who brought the
legal action as the court determines sufficient to deter the party who brought the legal action
from bringing similar actions described in [the TCPA], as this Court recognized in its August
26, 2016 Order. Tex. Civ. Prac. & Rem Code 27.009(a)(2); August 26, 2016 Order. In other
words, [s]ection 27.009(a)(2) requires the trial court to award sanctions if it dismisses a claim
pursuant to section 27.003 and gives the trial court broad discretion to determine what amount is
sufficient to deter the party from bringing similar actions in the future. Kinney v. BCG Attorney
Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *11 (Tex. App.Austin Apr. 11,
2014, pet. denied)) (emphasis added); see also Am. Heritage Capital, 436 S.W.3d at 881. The
court may issue any sanction that is not arbitrary or unreasonable, see Am. Flood Research, Inc.
v. Jones, 192 S.W.3d 581, 583 (Tex. 2006), but unlike other statutes authorizing a court to grant
sanctions, the TCPA does not require the trial court to state the reasons for the sanction
amount. Kinney, 2014 WL 1432012, at *12.
In previous cases involving dismissal under the TCPA, courts have determined sanctions
by consulting (a) the plaintiffs annual profits, 6 (b) the amount of attorneys fees attributable to

The only evidence in the record of Prestigious Pets annual profits or revenue comes from Kalle
McWhorters affidavit, filed in support of the Plaintiffs response to the Duchouquettes motion to
dismiss. In her affidavit, Ms. McWhorter attests that the business suffered a 22% drop in revenue as an
alleged result of the Duchouquettes truthful statements online and to the media. Given that Plaintiffs

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 13

the legal work performed, (c) the plaintiffs history of filing similar suits, and (d) any
aggravating misconduct, among other factors. See Am. Heritage Capital, 436 S.W.3d at 881;
Kinney, 2014 WL 1432012, at *12. The overriding question is what sanction is sufficiently large
enough to successfully deter the plaintiff from initiating similar baseless litigation in the future.
See Tex. Civ. Prac. & Rem. Code 27.009(a)(2).
1.

An award of sanctions equal to the minimum amount of damages


sought in Plaintiffs Original Petition is appropriate.

As is evidenced in detail in the motion to dismiss filed in this case, Plaintiffs have a
history of filing abusive and baseless litigation against the Duchouquettes. Plaintiff Prestigious
Pets first filed its lawsuit against the Duchouquettes in the justice court on November 19, 2015.
That suit was based on claims identical to those recently dismissed by this Court. After the local
and national media picked up the story, and in response to the Duchouquettes motion to dismiss
under the TCPA, Prestigious Pets quickly non-suited the Justice Court Lawsuit. Plaintiffs then
refiled suit against the Duchouquettes in this Court the very next business day, and sought up to
$1 million in monetary relief based entirely on the Duchouquettes allegedly defamatory online
review and statements made in media interviews after the Justice Court Lawsuit was filed. As is
evidenced by Plaintiffs pleadings, the lawsuits were filed to intimidate and discourage the
Duchouquettes from expressing their views about Plaintiffs business, in contravention of their
First Amendment rights. As Michelle Duchouquette testified support of the Motion to Dismiss,
the outrageous damages demand had the desired effect of distressing her, and the public
statements of Plaintiffs counsel to several media outlets about an appeal have compounded that
distress. See Aff. of M. Duchouquette 23.
asked for a minimum of $200,000 in damages based on lost profits and reputational damage, Plaintiffs
value their companys annual revenue at approximately $900,000/year based on that 22% figure.

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 14

This deliberate effort to suppress criticism is confirmed by the Plaintiffs other conduct in
relation to this litigation, and their threats and actions taken in relation to other pending or
proposed litigation. As the Court may be aware, there has been significant media attention paid
to this case. CITE The Duchouquettes are aware of at least one instance in which Prestigious
Pets implicitly threatened to sue a blogger who posted about the case. Even more outrageously,
Prestigious Pets cited the non-disparagement provision in its contracts with customers, which the
blogger had never signed (because he had never been a Prestigious Pets customer), as a basis for
demanding removal of the criticisms.

Aff. of Matthew Chan 6.

Additionally, the

Duchouquettes are not the only consumers targeted by Prestigious Pets abusive litigation
strategy; it also sued at least one other dissatisfied customer who posted a negative review of the
services she received. 7
The TCPA requires the Court to award sufficient sanctions to discourage Plaintiffs from
filing future groundless litigation.

Those sanctions should be in an amount equal to the

minimum amount Plaintiffs sought in their Original Petition after they non-suited the Justice
Court Lawsuit to file in this Court. Although this may seem to be a substantial sum, the amount
[of the sanction] alone does not render the order unjust. WalMart Stores v. Davis, 979 S.W.2d
30, 47 (Tex. App.Austin 1998, pet. denied); Kinney, 2014 WL 1432012, at *12 (large
sanction was appropriate in light of two separate frivolous lawsuits and attempted arbitration
concerning claims for the same harm). Moreover, this amount is entirely appropriate given the
psychological effect on the Duchouquettes resulting from Plaintiffs repeated and prolonged
campaign of litigation. Not awarding this amount would have the perverse effect of encouraging
7

See Pet., Prestigious Pets v. Tatiana Narvaez, No. 15-00600-H, Justice Court, Precinct 1, Place 1, Dallas
County (filed Dec. 14, 2015) (attached as Exhibit 6).

DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES


IN CONNECTION WITH TCPA MOTION TO DISMISS Page 15

Plaintiffs course of conductfiling groundless litigation and then dismissing it after substantial
fees have been incurred to avoid the award of attorneys fees compelled by the TCPA. Given the
present circumstances, the minimum amount Plaintiffs represented their baseless lawsuit to be
valued$200,000is an appropriate sanction.
2.

In the alternative, a sanction equal to the amount of attorneys fees


attributable to the Duchouquettes defense, or equal to the value of
legal work expended on their behalf, is an appropriate award.

In the event that the Court does not view the minimum amount of damages requested by
Plaintiffs as a just and sufficient measure of the sanction required to deter Plaintiffs from
bringing abusive litigation in the future, a sanction in the amount of the value of legal services
required to overcome the Plaintiffs sustained legal campaign would be appropriate. The Dallas
Court of Appeals has approved a sanction roughly equal to the amount of legal fees incurred by
the successful movant under the TCPA. Am. Heritage Capital, 436 S.W.3d at 881. This
measure of sanctions is just and properly compensates the Duchouquettes and their counsel for
the time, effort, and money expended to repel the Plaintiffs groundless and abusive campaign of
litigation. In this case, that sum would include all attorneys fees and expenses attributable to the
defense of the Duchouquettes by Public Citizen, Thompson & Knight, and CCSB.

This

alternative measure of sanctions amounts to $166,302.15.


V.

CONCLUSION AND PRAYER


The Duchouquettes therefore respectfully request that the Court grant their application

for fees, costs and expenses in connection with their TCPA motion to dismiss and award them
$166,302.15 in attorneys fees attributable to their defense of this litigation, $1,738.63 in court
costs, and at least $200,000 in sanctions under the TCPA. The Duchouquettes further request all
relief to which they have shown themselves justly entitled.
DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 16

DATED:

September 26, 2016


Respectfully submitted,
/s/ Nicole L. Williams
Nicole Williams
Texas Bar 24041784
Andrew Cookingham
Texas Bar 24065077
Christopher Dachniwsky
Texas Bar 24097561
Thompson & Knight LLP
Suite 1500
One Arts Plaza, 1722 Routh Street
Dallas, Texas 75201
214-969-1538
Nicole.Williams@tklaw.com
Andrew.Cookingham@tklaw.com
Chris.Dachniwsky@tklaw.com
/s/ Paul Alan Levy
Paul Alan Levy
Admitted pro hac vice
Public Citizen Litigation Group
1600 20th Street NW
Washington, D.C. 20009
(202) 588-7725
plevy@citizen.org
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served
on all counsel of record via electronic service on this the 26th day of September, 2016.
/s/ Christopher O. Dachniwsky
Christopher O. Dachniwsky
DEFENDANTS APPLICATION FOR FEES, COSTS AND EXPENSES
IN CONNECTION WITH TCPA MOTION TO DISMISS Page 17

EXHIBIT 1

CAUSE NO. DC-16-03561

IN THE DISTRICT COURT OF

v.

DALLAS COUNTY, TEXAS

ROBERT DUCHOUQUETTE and


MICHELLE DUCHOUQUETTE

KALLE MCWHORTER and


PRESTIGIOUS PETS, LLC,
PLAINTIFFS,

DEFENDANTS.

160th JUDICIAL DISTRICT

AFFIDAVIT OF PAUL ALAN LEVY


IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES

1. My name is Paul Alan Levy. I have been principal counsel for Duchouquettes since the
outset.
Hourly Rate

2. I was graduated in 1976 from the University of Chicago Law School and in 1973 from
Reed College.
3. I am an active member of the Bars of the District of Columbia and New York. I am
admitted to practice in the United States District Courts for the Districts of Colorado and Columbia,
the Eastern District of Michigan, and the Southern District of New York; in the United States Courts
of Appeals for every circuit except the Federal Circuit, and in the Supreme Court of the United
States. I have been admitted pro hac vice in many different federal and state trial and appellate
courts.
4. After law school, I served as a law clerk to the Honorable Wade H. McCree, Jr., of the
United States Court of Appeals for the Sixth Circuit. When Judge McCree was appointed Solicitor

General of the United States, I served as his Special Assistant.


5. Since December 1977, I have been employed as an attorney at Public Citizen Litigation
Group. I have represented parties and argued scores of cases in the United States Courts of Appeals,
including three arguments en bane, as well as many cases in state supreme and intermediate appellate
court. I have argued four cases in the Supreme Court of the United States, and was the lead author
of the merits briefs in

s~veral

other Supreme Court cases. I have filed many amicus briefs in both

the Supreme Court and state and federal courts of appeals, and have often been permitted to argue
as amicus curiae in state appellate courts as well. In the academic year 1983-84, I took a leave of
absence from Public Citizen to serve as a visiting professor at Cardozo Law School in New York.
Over the years, I have litigated, either through full admission to bars or by admission to practice pro
hac vice, in state and federal courts in more than half of the states. My biographical sketch in outline
form, including my publications and the cases that I have handled in the Supreme Court (including
cases where I wrote the briefs but counsel who handled the case below did the oral argument), and
a prose version of my resume, are attached as Exhibit lA.
6. For my first twenty-odd years at Public Citizen, I specialized in representing individual
workers in cases involving union democracy, union corruption, and employees' rights of access to
judicial and administrative tribunals. However, for the past seventeen years my specialty has shifted
to Internet free speech cases, with a particular concentration in three areas: the right to speak
anonymously online; the right of web hosts and Internet service providers to host comments by
others without being subject to suit; and the right of people who want to comment on companies to
use the trademarks of those companies to denote the subject of that commentary. For the past few
-2-

years, we have begun working on a new line of cases, defending consumers against contracts of
adhesion that forbid them from freely expressing their views about companies and professionals with
which they do business. For several years I actively participated in the Intellectual Property Section
of the American Bar Association, such as by chairing subcommittees on trademark issues relating
to Internet domain names, meta tags, and keyword advertising. In 2005 and 2006, I was the leader
of a coalition of consumer, civil liberties, and arts organizations lobbying to preserve protections for
expressive uses of trademarks as Congress was considering the 2006 Trademark Dilution Revision
Act. I have lobbied on the issues of libel tourism and the need to protect U.S.-based web hosts
against foreign judgments entered without consideration of our federal law immunity against suit for
content provided by others. For several years, I worked on a proposed federal statute protecting
members of the public against SLAPP suits (strategic litigation against public participation). For
several years beginning in 2009, I represented Public Citizen on the Intellectual Property Policy
Committee of the Transatlantic Consumer Dialogue ("TACD"); in 2010 I became Public Citizen's
alternate representative on the TACD Steering Committee. My colleague Scott Michelman was
deeply engaged in lobbying for the adoption of the Consumer Review Freedom Act, barring nondisparagement clauses in form consumer contracts, which passed the Senate late last year and just
this week was adopted by the House of Representatives.
7. I have also spoken at law school, bar, and other meetings in the United States and abroad
on the statutory and constitutional protections for the use of trademarks for purposes of criticism,
about the immunity for the hosts oflnternet discussion facilities, and about other Internet free speech
issues. Over the past two years, I have taught several times a CLE course about the practical issues
-3-

that arise in litigating online free speech cases; in 2015, I appeared on a panel at SXSW in Austin
about defending online free speech. This year, I spoke at the United States Copyright Office's
symposium on "moral rights." I also moderated a panel on the role of the First Amendment in
trademark litigation at the annual meeting of the American Intellectual Property Lawyers Association
("AIPLA"), and I am the only litigator who has been repeatedly participating (by invitation) in the
semiannual Internet Law Works in Progress gathering oflegal scholars that is held alternately at New
York and Santa Clara Law Schools. I am a regular participant in the monthly meetings of the Arts,
Entertainment, Media and Sports Law Section, where libel litigation is one of the prime topics of
discussion.
8. I am a nationally known expert in litigation defending free speech on the Internet. An
article about my work, entitled Paul Levy, The Web Bully's Worst Enemy, is attached as Exhibit lB.
Another such article, recently published in the ABA Journal, is Hill, Stars and Gripes: Legal
challenges over online reviews seek to separate fact from fiction, ABA Journal (July 2016), available

at http://www.abajournal.com/magazine/article/legal_challenges_over_online_reviews _seek_to_
separate_fact_from_fiction. For example, in Mick Haig Productions v. Doe, the Honorable David
Godbey appointed me as one of the attorneys ad litem to represent several hundred defendants who
were sued in the United States District Court for the Northern District of Texas.
9. I have litigated the validity of non-disparagement agreements in form consumer contracts
in three previous cases in which we sought declaratory judgments declaring the contracts
unenforceable: Lee v. Makhnevich, filed in the United States District Court for the Southern District
of New York; Palmer v. Kleargear, in the United States District Court for the District of Utah; and
-4-

Cox v. Outlet Accessories, in the Supreme Court of New York for New York County. Each of these
cases ended in default judgments after the defendants fled overseas. Our work on these cases
allowed me to handle the litigation of the non-disparagement clause issue more efficiently.
10. Although Public Citizen attorneys will generally not represent clients on the merits in
cases at the trial court level where libel is the principal or main issue, the majority of the several
dozen cases that I have handled about subpoenas to identify anonymous Internet speakers are cases
in which the enforceability of the subpoena depends on the validity of the plaintiffs libel claim.
Consequently, I have handled several libel-related cases in state or federal courts in Texas alone.
My work on these cases allowed me to handle the litigation of the libel and business disparagement
issues more efficiently.
11. Our policy at Public Citizen Litigation Group is to staff cases with two lawyers; one is
usually lead and the other second. In addition, other lawyers read briefs and participate in moot
courts, although we generally do not seek to have fees awarded for the time spent by such additional
lawyers. In this case, I was the original lawyer on the case, but my colleague Scott Michelman,
whose statement of qualifications accompanies this affidavit as Exhibit 1C, was my initial cocounsel. After he left Public Citizen to join the legal staff of American Civil Liberties Union for
the Nation's Capital, Rachel Clattenburg became my co-counsel on the case.
12. Because Public Citizen is a public interest group, we generally do not bill clients for our
services. Indeed, our non-profit tax status limits fees we can be paid by clients. We are able to seek
court-awarded attorney fees at the full hourly rates set by the market for the relevant community (as
the Supreme Court has allowed non-profits to do, in cases such as Blum v. Stenson, 465 U.S. 8'86
-5-

( 1984)). Courts in Washington, D. C. have encouraged the use of the so-called Laffey matrix, named
after the case in which it was first devised, Laffey v. Northwest Airlines, 572 F. Supp. 354, 371
(D.D.C. 1983), aff'd in part, rev 'din part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). Courts
in the District of Columbia use Laffey matrices to determine the reasonable rates of counsel seeking
awards of attorney fees. See Smith v. District ofColumbia, 466 F. Supp.2d 151, 156 (D.D.C. 2006);
Brown v. Pro Football, 846 F. Supp. 106, 120 (D.D.C. 1994). In fact, our local federal judges urged

the federal government to create and maintain the Laffey matrix to reduce the amount of litigation
over the hourly rates to be awarded for attorney fees.
13. There are two different versions of the Laffey matrix. One version is maintained by the
United States Attorney's Office for the District of Columbia, showing the hourly rates that the
United States Attorney's Office will accept without litigation for fee applications against the United
States in cases not arising under the Equal Access to Justice Act. This version of the Laffey matrix
has been updated each year by applying the inflation rate, as determined by the local Consumer Price
Index for All Urban Consumers (CPI-U), to the rates for previous years, going back to the hourly
rates that were originally determined to be reasonable in the Laffey case. It can be found on the web
site for our local United States Attorney. https://www.justice.gov/usao-dc/file/889176/download,
and is attached as Exhibit lD. This matrix shows that for attorneys with at least 31 years' practice
experience, the reasonable hourly rate for time spent from June 1, 2016 to the present is $5 81; for
the previous June until May 31, 2016, $568. For lawyers with at least 11 years experience (like
Scott Michelman), those hourly rates were $465 and $455.
14. An "Adjusted Laffey Matrix" has been created that calculates current hourly rates by
-6-

using the inflation rate for legal services instead of inflation in consumer prices generally.
http://www.laffeymatrix.com/see.html. Many federal decisions have specifically approved of the
Adjusted Laffey Matrix, including the Smith case cited in~ 10. According to the Adjusted Laffey
Matrix, which is attached as Exhibit IE, for attorneys with at least 20 years' practice experience, the
current reasonable hourly rate is $826; for the previous year, $796.

For lawyers of Scott

Michelman's level of experience, the hourly rates are $685 and $661.
15. The most recent officially reported decision awarding fees for my work is Recouvreur

v. Carreon, 940 F. Supp.2d 1063 (N.D. Cal. 2013), which held that the market rate for my services
from 2012 to 2013 was $700 per hour. In Jenzabar v. Long Bow Group, No. 07-2075-H (Mass.
Super. Suffolk Cy. Oct. 16, 2013 ), the Massachusetts Superior Court awarded fees atthe rate of $57 5
per hour for time I spent from 2009 to 2013. In Mick Haig Productions v. Does, 2012 WL 213701
(N.D. Tex. Jan. 24, 2012), aff'd, 687 F.3d 649 (5th Cir. 2012), Judge Godbey, who had appointed
me as well as two lawyers from California as counsel ad litem for several hundred anonymous
defendants, specifically found that the $650 hourly rate at which fees were sought for my time spent
in 2011 was reasonable.
16. Considering the evidence cited above, as well as the opinions about reasonable hourly
rates set forth in the affidavit of Nicole Williams, the Duchouquettes are seeking to be awarded fees
for my work at the hourly rate of $750 per hour, and for Scott Michelman, at $525 per hour.
Hours Expended
17. The application for fees for my services, and for the services provided by my former
colleague Scott Michelman, is based on our time records, as well as upon the case file. We all keep
-7-

our time records using a program created by one of my former colleagues for this purpose, and
maintained on Public Citizen's servers. I exercised billing judgment by, for example, not recording
time spent on short telephone calls. Moreover, pursuant to our normal practice at Public Citizen, my
briefs and correspondence were reviewed by one or more ofmy colleagues who do not appear on
the briefs, but no fees are sought for their time, or for the time of Rachel Clattenburg, who was my
second within the Litigation Group after Scott Michelman left. Our elimination of these time
expenditures supports our request for an otherwise fully compensatory fee. Only time spent on legal
work is recorded - although as I have indicated in a previous affidavit we consider public education
to be part of our work, and as a result I have spoken to many reporters and other lawyers about this
case, that time was not recorded in my time records. I attach as Exhibit lF a listing of the 175 hours
that I had recorded on this case through today and the 18.2 hours spent by Scott Michelman before
he left Public Citizen, printed from the time record computer program we use.
18. The fee application excludes recorded time that was dedicated to litigation of the appeal
to the County Court at Law. I have marked several time entries with an X where they were devoted
entirely to the County Court at Law proceeding (total of 6.3 hours or my time); I have marked several
other entries with "Yz" where they were devoted partly to the County Court at Law appeal and partly
to ths proceeding in this court; some of the entries marked with "W' (total of 16.7 hours). As a
result, of the 175 hours recorded for my time, the fee application seeks an award for only 160.3 hours
of my time. None of Scott Michelman' s time was spent on the County Court at Law appeal, but he
spent 5.5 hours working on DTPA counterclaims that did not get filed given the TCPA dismissal;
thus only 12.7 of his 18.2 hours are part of the application.
19. In drafting the TCP A dismissal papers, I was able to incorporate some of the legal work
-8-

that Alex More and Monica Latin had performed while representing the Duchouquettes in the
Justice Court action brought by Prestigious Pets. The affidavits that they had prepared for Robert
and Michelle Duchouquette formed the basis for the affidavits filed with the TCP A motion, and their
original arguments about plaintiffs' theory that the nondisparagement clause waived defendants First
Amendment rights helped me construct the more detailed arguments offered in our motion to
dismiss.
20. In addition to the time cited above, our expense records are kept through the same
program. Of the $1784.87 in expenses shown, all were reimbursed by the Duchouquettes, but $250
were devoted to the County Court at Law proceeding; thus, of the expenses that my office incurred,
$1534.87 are included in the fee application

The Need for Fee Awards in Cases of this Sort Even When Defense Counsel Did Not Charge
by the Hour
21. When I first heard about this case as a result of the news reports, my immediate reaction
was that the Duchouquettes needed a lawyer. I was pleased to learn, on speaking to them, that they
already had the service of Alex More and Monica Latin of the Carrington, Coleman firm.

My

initial work on the case involved reading their brief and helping those lawyers think about the
upcoming oral argument. But once the Original Petition was filed in this Court, a different

consideration came into play. The Carrington Coleman firm was not willing to represent the
Duchouquettes pro bono, and for a middle class family like them, the cost of litigating this case
through a TCP A motion in this Court, and possibly on appeal, and possibly in discovery or even at
trial, would have been prohibitive. But our conclusion was that the Duchouquettes were in the right

-9-

here- however trivial the issues. raised by the original review might have been- and consumers
who want to stand up for their free speech rights should not have to yield just because the market for
legal services puts representation beyond their means.
23. Moreover, for a couple like the defendants, who were being sued for hundreds of
thousands of dollars in damages, I saw little prospect that they could find lawyers to represent them
on a contingent fee basis, at least in the normal way that lawyers think of contingent fees. Had they
suffered a personal injury, or been subjected to employment discrimination, they could sue for
damages, and they might find a lawyer who might represent them on a contingent basis, that is, the
lawyer would be paid an agreed percentage of the damages awarded in the litigation or obtained by
a settlement. But to middle-class individuals who not not, simply by avoiding being held liable, not
thereby gets their hands on a pot of mopey that can be split with their lawyer. So the only way this
case could be defended was for the Duchouquettes to have lawyers who would take the case without
guarantee of payment.
24. Apart from the importance of the issues presented by the case, the likely very high costs
to the Duchouquettes of protecting their right to speak in the case that was a major reason why Public
Citizen was willing to take this case on a probono basis - that is, without charging our clients upfront
by the hour.
25. I recognized that the Duchouquettes had a significant possibility of getting the suit
against them dismissed under the TCP A, and I knew that the TCP A is a fee-shifting statute. Thus,
although we took the case pro bona, at the same time it was a contingent fee case, in the sense that
if a TCP A motion was successful, we would be able to move for an award of attorney fees. This
-10-

perspective is reflected in our retainer, which is attached as Exhibit 1-G


26. Carrington Coleman was also not willing to continue in the case, even as local cocounsel, unless it was paid by the hour. I respected that decision; they are a firm in private practice
and like any such firm that have to limit their pro bono hours so that they have enough hourly income
to maintain their firms. But I concluded that, for the Duchouquettes to be able to stand up for their
rights, and to protect their ability to express their honest opinions about the plaintiff company, I
needed to locate pro bono co-counsel in Texas who would be willing to take their chances on an
attorney fee award under the TCP A. Luckily, my Texas co-counsel from Thompson and Knight
were willing to take that chance.
27. Throughout my years at Public Citizen, I have had a national law practice. Both while
I was a labor lawyer and since my specialty has switched to cyberlaw, I have received many requests
for legal representation from individuals who could not afford to pay for legal help, especially not
at market rates. Potential clients have often been referred to me by organizations and companies.
For example, during my labor law days, members of Teamsters for a Democratic Union and various
other rank-and-file groups referred their members to me; I still get referrals from the Association for
Union Democracy. Since I became a cyberlawyer, a number of companies whose web sites or other
services host comments about businesses have offered my name, among others, to users who receive
cease and desist letters or who are sued for criticisms that they post on their web sites; some of the
companies have done so under court orders that required them to refer parties to Public Citizen as
a possible source of legal assistance.
28. As a consequence, I have received many m_ore requests for legal representation than I
-11-

could possibly handle; and many of the requests for representation do not involve cases that have the
potential for setting important legal precedents in one of the areas in which Public Citizen is trying
to advance the law. Other potential

~lients

have cases that do not, for one reason or another, meet

Public Citizen's standards for cases that we are willing to handle. I must also refuse excellent cases
when I am already too busy to take on another case. But when I get a request for help in a case that
I myself cannot handle, if in my opinion the person requesting my assistance has a potentially
meritorious case, I generally try to help the person find legal representation, either from a lawyer at
a different organization or from a lawyer in private practice whose work I respect.
29. In looking for lawyers to represent individuals in litigation against unions, or political
officials, or businesses, I have consistently found that a provision under which a successful lawyer
can secure a fully compensatory award of attorney fees is a key component in being able to help
individuals find counsel. For example, when I was a specialist in labor law, it was much easier to
find lawyers to represent unhappy employees in union democracy suits under the Labor-Management
Reporting and Disclosure Act, in which entitlement to fees was presumed under the common benefit
doctrine pursuant to the Supreme Court's decision in Hall v. Cole, 412 U.S. 1 (1973), or in cases
presenting a viable wage claim or a discrimination claim under statutes that expressly provide for
awards of attorney fees, than it was to find lawyers to do lawsuits under the duty of fair
representation, where fees were not readily available. Based on my experience in referring cases
during those years, I believe that the difference in attorney fees rules was a significant factor.
30. I have found that factor to be even more important in helping individuals who are sued,
or threatened with suit, over their speech, for the simple reason that defending someone who has
-12-

been sued cannot produce a pot of money through damages from which a lawyer can be compensated
by a contingent fee agreement. When the threatened or sued speaker cannot afford to pay market
rates to hire a lawyer, speakers who are sued are much more likely to be able to obtain counsel when
there is a provision for awards of attorney fees, such as a strong anti-SLAPP statute, and when
lawyers can be confident that judges in the jurisdiction do not hesitate to award reasonable attorney
fees.
31. The above fact is true as a matter of logic, but it is also true as a matter of my practical
experience trying to help sued speakers obtain counsel. I have found it much easier to help sued
speakers find counsel who are willing to represent them without large retainers and hourly billing
in states with anti-SLAPP statutes and a history of judges making fair awards of attorney fees.
32. In California, for example, which has had a strong anti-SLAPP statute for twenty years,
some lawyers and even entire law firms have established themselves in anti-SLAPP defense
litigation, just as, after the attorney fees provisions were added to federal civil rights, whistleblower,
and environmental law statutes, firms were established specializing in those areas of the law. A
number oflawyers in California decide whether or not to take cases based on their evaluation of the
likelihood that they will be able to succeed in an anti-SLAPP motion; for them, predictable success
on an anti-SLAPP motion makes those cases like contingent fee cases would be for lawyers
representing plaintiffs.
33. In Texas, if the anti-SLAPP statute is to serve its purpose of enabling people whose
speech is truthful or simply a matter of opinion to stand up against threats of litigation, or.actual
lawsuits, both the speakers, and the lawyers who might consider representing them, need to have
-13-

confidence that even if the defendant cannot afford to pay hourly rates, the lawyers can count on
being awarded attorney fees if they take cases on the contingency of such an award, so long as they
can file a successful anti-SLAPP motion.
34. In this case, along with our Texas co-counsel, we achieved an excellent result for our
client, securing dismissal not only of the libel and business disparagement claims but also the nondisparagement clause claim, which was an issue of first impression. We request a full award of
attorney fees at the full market rate for attorneys of comparable qualifications .

..

....

.
.. """"" ... ,,,

DISTRICT OF COlUMBIM

S$

. , . . . ~~7i~. :

..

~-

'

: SUBSCRIBED ANO SWORN TO BEFORE ME


. THIS

J.~t!;bAV OF

:.> ,

.J .. ~~/. l..e .

. J8dARVa_~ci-- }~ ~~ &~.
PUBLIC

My Commission Expires

~~{ (t.!}_

:.

..

-14-

BIOGRAPHICAL SKETCH -- P AULALAN LEVY


Education
B.A., Reed College, 1973 (Phi Beta Kappa)
J.D., University of Chicago, 1976 (cum laude, Order of the Coit)

Legal Employment
Law Clerk, Honorable Wade H. McCree, Jr., United States Court of Appeals for the Sixth Circuit
(1976-1977)
Special Assistant, Solicitor General of the United States (1977)
Attorney, Public Citizen Litigation Group, specializing in rank-and-file labor law and free speech
on the internet. Argued scores of cases in United States Court of Appeals (three en bane). Argued
four cases in Supreme Court of the United States, wrote briefs for parties in several other cases
( 1977 to present)
Visiting Professor, Cardozo Law School (1983-1984)
Other Activities
Board of Directors, Association for Union Democracy (1983 to present)
Chair, ABA Intellectual Property Section, Special Committee on Online Issues, Domain Name
Subcommittee (2004 to 2007)
Chair, ABA Intellectual Property Section, Special Committee on Online Issues, Contextual
Advertising Subcommittee (2007 to 2008)
Lecturer on labor, IP, and internet topics at legal, scholarly, bloggers and workers' conferences
Publications
Co-author, Eguality on the Job: A Worldng Person's Guide to Affirmative Action (1978, 1979)
Legal Responses to Rank-and-Fi le Dissent: Restrictions on Union Officer Autonomy, 30 Buff. L.
Rev. 663 (1982)
Electing Union Officers Under the LMRDA, 5 Cardozo L. Rev. 737 (1985)
The Unidimensional Perspective of the Reagan Labor Board, 16 Rutgers L.J. 269 (1986)
Union Members' Rights in Contract Ratification Referenda, 4 Hofstra Lab. L.J. 225 (1987)
State Regulation of Drug-Testing: Are Organized Workplaces Exempt?, 1988 U. Chi. Legal Forum
141
Defe1Tal and the Dissident, 24 U. Mich. J. L. Reform 479 (1991)
Defenal to the Intra-union Appellate Process: A Response, 25 U. Mich. J. L. Ref. 907 (1992)

Levy Affidavit
Exhibit lA

Editor, Employee and Union Member Guide to Labor Law (two-volume looseleaf, Clark-Boardman)
(1984-1994)
The Trademark Dilution Revision Act - A Consumer Perpective, 16 Fordham Intellectual Property,
Media and Entertainment Law Journal 1189 (2006)
Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring
2011)
Developments in Dendrite, 14 Fla. Coastal L. Rev. 1 (2012)
Supreme Court Cases:
Wrote briefs and argued:
Sims v. CIA (Freedom oflnformation Act)
West v. Conrail (statute of limitations in DFR case)
Lingle v. Norge (preemption ofretaliatory discharge claims)
Masters. Mates & Pilots v. Brown (right to mailing lists in union election)
Lead or sole author of party's briefs, argued by counsel handling case below:
Del Costello v. Teamsters (reply brief only: statute of limitations in DFR case)
Sheet Metal Workers v. Lynn (removal of elected union officer)
Wooddell v. IBEW (right to jury trial in LMRDA case; right to sue under union constitution)
North Star Steel v. Thomas (statute of limitations in WARN case) (lost coin flip for oral argument
with counsel in companion case)
Caterpillar v. Lewis (procedures for appealing removal decisions)
O'Connor v. Consolidated Coin Caterers Corp. (ADEA suit where rival hire is over 40)
Rivet v. Regions Bank (reply brief only: removability based on defense of res judicata)

Paul Alan Levy is an attorney with the Public Citizen Litigation Group, a public
interest law firm that is a division of the consumer advocacy organization Public
Citizen. Among the issues on which the group litigates are federal health and safety
regulation, consumer litigation, open government, union democracy, separation of
powers, and the First Amendment. PCLG litigates cases at all levels of the federal
and state judiciaries and has a substantial practice before federal regulatory
agencies.
After working as a law clerk to Honorable Wade H. Mccree, Jr. (United States Court
of Appeals, Sixth Circuit) and Special Assistant to Solicitor General Mccree, Paul
joined the Litigation Group in December 1977 to represent workers in rank-and-file
labor law cases, largely representing dissident union members in cases involving
union governance. He has been there ever since, with the exception of a one-year
sabbatical when he taught at Cardozo Law School.
Over the years, he also
developed subspecialties in some arcane issues of federal procedure such as
removal jurisdiction, and the representation of "lawyers in trouble" from sanctions,
contempt findings and the like (these days, though, as a defense lawyer, he files
sanctions motions). He also pioneered Public Citizen's work on federal preemption
of state law claims and objecting to collusive class action settlements.
He has argued scores of cases in United States Court of Appeals (three en bane).
Moreover, he has argued four cases in Supreme Court of the United States, as well
as writing briefs for parties in seven other cases. One odd aspect of his Supreme
Court practice is that each of these eleven cases was decided 9-0 - win or lose.
Paul has specialized more recently in free speech issues arising on the Internet. He
has litigated cases in state and federal courts throughout the country about the
identification of anonymous Internet speakers. His amicus curiae brief in Dendrite
v. Doe, whose approach was adopted by New Jersey's Superior Court Appellate
Division, has become the model for other cases. His Internet practice also includes
the defense of trademark and copyright claims brought as a means of suppressing
critical web sites. His cases in this area, such as Bosley Medical v. Kremer and
Lampare//o v. Falwell, have established the right to create internet "gripe" sites that
include the trademark names of companies in their domain names and meta tags.
In Smith v. Wal-Mart Stores and McCall v. National Security Agency, he defended
the rights of parodists to make fun of Wal-Mart's trademarks and the seals of the
NSA and Department of Homeland Security. In arguing against the issuance of prior
restraints in Bank Julius Baer v. Wiki/eaks, he had the key insight that the case had
been filed without subject matter jurisdiction. For several years, Paul chaired
subcommittees (on domain name litigation or on keyword advertising) of the
American Bar Association's Intellectual Property Section.
A description of his work in this area was published in the Washingtonian Magazine
as "Paul Levy, the Web Bully's Worst Enemy."
It is accessible at
http://www.washingtonian.com/articles/people/paul-levy-the-web-bullys-worst-e
nemy/.

........ ,
.........
! . . . ..

..-
................ , .... ,............................. ,......................................................... ,, ..................... ,, ......................... .
...................................., ..................................................... 1 ...................................................................... .

A 19-year-old
phenom brings
Washington
boxing full
circle.

1.Q.

-+
PAGE

SMART PEOPLE. FASCINATING MINDS. BIG IDEAS.

3q

TH[ wrn BUllY'S


WORSTfN[MY
WHEN COMPANIES TRY TO PUSH
THEIR ONLINE CRITICS AROUND,
PAUL LEVY PUSHES BACK
BY LUKE MULLINS

n 2010, Paul Alan Levy, a lawyer who


works for the consumer-advocacy
group Public Citizen, was concerned
about an emerging threat to free
speech. Businesses, he believed,
were taking advantage of contracts that
amounted to gag orders to shut down
online complaints. To battle the threat, he
needed to find the right victim. As it turned
out, he was looking for Robert Lee.
Earlier that summer, Lee had arrived at
the Talladega Superspeedway in Alabama
for a weekend-long NASCAReventwhen
his tooth began to throb. The next morning, the pain had become so searing that
he went directly to an emergency room.
A doctor injected him with painkillers and
told him to see a dentist as soon as he got
home to New York.
The following week, Lee went to the
Manhattan office of dentist Stacy Makhnevich, where he was handed a stack
of forms, including a "Mutual Agreement to Maintain Privacy," a document
that barred patients from criticizing
Dr. Makhnevich online. If a patient did
post something, the
contract assigned
An Rttorney with
Public Citizen, Levy
the post's copyright
l1as successfully
to the dentist. Desdefe11ded clients
perate for treatment,
against the letre
Lee signed.
Reverend Jerry
The dentist drained
FRlwe/I and the
Koch brothers.
an infection in his

plrotogmph by STEPHEN VOSS

Levy Affidavit
Exhibit 1B

FEBRUARY 201q

WASHINGTONIAN

29

::: ::::::::::::::::::: I.Q.

'"''"H'tl ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :::::::::::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::~::::::::::::::::::::::::::::::::::::::::::::.

gum and, a week later, replaced a filling.


Lee paid $4,766, but Makhnevich sent the
claim to the wrong insurer. Lee pointed
out the mistake and, for months, pressed
the dental office for reimbursement. He
sent certified letters-nothing. "They just
started ignoring me," he says.
Months later, during a routine teethcleaning, Lee discussed his predicament
with another dentist, who told him the
filling should have cost less than $200.
Outraged, Lee vented on Yelp, th~ popular
consumer-review website.
"Avoid at all cost! Scamming their customers I" he wrote in August 2011.
The next day, Makhnevich's office
sent Lee a cease-and-desist letter with
a draft filing for a lawsuit for breach of
contract, defamation, and copyright infringement. Makhm:vich also asked Yelp
to remove the post, and she invoiced Lee
for "copyright infringement" penalties,
accruing at $100 for each day his review
remained online.
Lee was rattled but not deterred. "I
wanted that information to remain public
so that others will think twice before going
to her for help," he says.
Searching online for information about
the agreement he had signed, he found an
article mentioning Paul Levy's work for
others in Lee's situation. Levy had found
his case.
THE INTERNET HAS PROVEN TO BE A

powerful megaphone in the hands of dissatisfied customers. Businesses and political interests have learned to silence these
critics by unleashing an aggressive legal
campaign, blasting away at web-borne
statements they don't like.
Defense attorneys say the number of
these lawsuits-formally filed or merely
threalened in cease-and-desist letters- is
on the rise. Precise figures are hard to get,
because many have their intended effect of
frightening consumers into erasing their
criticism before a suit can go forward.
Lacking the resources to fight back, subjects often simply give up.
"The greatest threat to free expression in America is no longer the government," says Marc Randazza, an
online-frec-speech defense lawyer. "It's
corporations and wealthy plaintiffs using the courts to intimidate ordinary
people who just want to speak honestly
on the internet."

30

WASHINGTONIAN

FEBRUARY 20lll

I__Je\ry lool<s
Il1()fe lil<.e
a11

abse11

111i11(l
QrO S

tl1a11 a br sl<11u

kl

litigc1tor.

With enormous eyeglasses and frazzled hair, Paul Levy looks more like an
absent-minded professor than a brassknuckled litigator. He's known to arrive
at work in shorts, dark socks, and sandals.
But Levy, 63, has successfully fought
attempts by deep-pocketed opponentsin cl uding billionaire industrialists
Charles and David Koch and the late Reverend Jerry Falwell-to squelch online
speech. Along the way, he has established
legal precedents that judges now use to
apply existing free-speech law to chatter
on the internet.
Robert Lee's case is typical of how Levy
responds to a bullying lawsuit. Instead
of simply defending Lee, Levy filed a
class-action lawsuit on behalf of all of
Makhnevich's patients who had signed
the gag order. After the suit drew media
attention, the company that had pro vided the agreements to Makhnevich
announced it would stop recommending
their use.
Nor did Makhnevich file against Lee.
She has since closed her business in New
York; in June, her lawyer said he couldn't
even locate her. As the class-action suit
works its way through court, Lee's Yelp
review remains on line.
LEVY'S OFFICE IN DC'S DUPONT

Circle is a mess, with chest-high piles


of documents, cardboard boxes, and
books. When a colleague cleaned up a
former office back in the mid-1980s, he
discovered a functioning sink buried
beneath the debris.
Levy joined Public Citizen in 1977, six
years after it was founded by consumer
crusader Ralph Nader. For 20 years, Levy
specialized in labor litigation. Then in
1999, n 50-year-old secretary from California named Carla Virga asked for help
with a problem Public Citizen had never
before encountered.
When deciding to buy her home, Virga
had relied on an all-clear home inspection
from the pest-control company Terminix.
After the closing, however, she discovered
severe damage and launched a website
critical ofTerminix.
The company sued to shut down
the site by using a novel legal theory:
Rather than allege that Virga had published anything false, Terminix argued
that she had violated its trademark
by putting the company's name in the

:::::: :::::::::::::::::::::::::::::::::::::::-::::.: :::::::~::::: :::::::.::::::.::::::::::::::::::::::::


"meta tags" -on line coding that helps
search engines find a site. Terminix demanded millions in damages.
Trademark law is designed to prevent
one company from using another's name
in a misleading way in order to profit from
the confusion. But as consumer-review
sites first appeared online, businesses saw
trademark law as a way to silence critics.
Levy took Virga's case, arguing that
her website was noncommercial and
therefore not subject to trademark law.
He moved to have Terminix lab~led a
"nuisance litigant." The company soon
dropped its suit.
After that victory, defendants in
similar cases asked Levy for help. Jerry Falwell used trademark law to try to shut
down the parody website Fall well.com,
which satirized the evangelist's views on
homosexuality. Levy convinced a federal
appeals court in 2005 that the site was constitutionallyprotected free speech designed
"to criticize ideas, not to steal customers."
"Until Paul Levy came on the scene,
the trend was almost uniformly against
defendants," says Sonia Katya!, a Fordham University law professor who specializes in trademark law and the internet. "It was mainly because Paul stepped
in that we were able to change the tide."
At the same time, Levy has pioneered
important legal protections for anonymous online commenters.
Patrick Cahill, a town councilman in
Smyrna, Delaware, sued in 2005 to identify
four people who had criticized him on a
community blog. One, known as J olm Doe 1,
had referred to Cahill as "Gahill" (to be
pronounced "gay-hill"). Cahill claimed
this implied he was having "extramarital,
homosexual affairs."
Levy wrote an amicus briefthat helped
persuade the Delaware Supreme Court
not to reveal John Doe I's identity, arguing that doing so would stifle free speech.
In 2011, the petrochemical giant Koch
Industries filed a suit seeking the names
of environmentalists who had issued
a satirical press release in Koch's name. The
release claimed-falsely-that Koch had
adopted a progressive position on climate
change. Levy assigned the case to two junior
colleagues, who argued that Koch's demand
violated the activists' First Amendment
rights. The case was dismissed.
Levy's work in both cases helped set a
precedent that anonymous online critics

'WASHLNGTONIAN
PLASTIC SURGF.RY

i'>-1 AV J N K. SI ~JC i H , f\1\ D /


I/Ve provicle each client witll tl1e 'atest and
safesL personalizerJ plastic surge1y care ir.
orcler to meet our patients' goals and c;K1te
beautiful natural results witl1 concierge
attention. Dr-. Singh is a dual board certifrecl
plastic surgeon and a wasl1ingtonian Top
Doctor, as voted by tt1e cloctor's in tt1e
Washington, DC Metropolitan Region. He
wss educmecl at Bmwn a11d Harvarcl <Incl tt1e
former Director o'f Cosmetic Surgery at Joi ms
Hopkins.

Laser Liposuction I Breast


Enl1ancernent I Body

Countourlng I Mommy

Mal<eovers I Facial
Rejuvenation I Laser
Treatments I Rhinoplnsty

www.washfngtonlanPlastlesurgery.com I SBS-903-2362
5454 Wisconsin Ave, Suite 1710
Chevy Chase, MD 301-244-0277

8200 Greensboro Dr, suite 120


McLeCJn, VA 703-345-4377

l"h c Malpractice I.aw Firm

.Jack ll. Olcndcr & Associates, l'.C.

Jack Olender
Again Named A

care in a private
residential setting.

Washingtonian
Top Lawyer

BALTIMQRE, MD
RetreatAtSP.org I 410-938-3891
PART OF THE SHEPPARD PRATT HEALTH SYSTEM
FEBRUARY 20lq

WASHINGTONIAN

31

..:...
... 1 {) Ii i\lll, !1J1 ::::::::::::: ..............................
................................: ...
1
...
, , ,

Weddirig Gemnonies & Receptions


Rehearsal Dinntl!S Gottp0rate Events Soeial :SVients

0 ~ ,

~ uu ., nu uuun o nn u.o q

should be outed onlywhen the plaintiff has


a winnable case that can't be pursued unless the defendant's identity is known. This
"ended the practice of rubber-stamping
requests to unmask anonymous people
online," says Eric Goldman, a professor at
Santa Clara University School of Law.
Levy doesn't deny that legitimate examples of libel and slander exist online.
'The cases he takes on, he explains, tend
to revolve around bullying.
It's a distinction Levy knows from personal experience. "I learned to stand up
for myself," he says. "I'm glad to help other
people stand up for themselves."
Levy's father headed the local Democratic Party in the deeply Republican precincts
of Long ls land. As a high-schooler in the
late 1960s, Levy organized a peace group
that held vigils protesting the Vietnam War.
With the briefcase he carried to class,
Levy already stood out. But his criticism
of the war made him a target. "We don't
let socialists walk down this street," a
classmate once threatened. Football players got in his face, and after a flag-burning
incident at school-in which Levy says
he had no part-someone threw a brick
through a window of his home.
When Levy won an essay con test, school
administrators refused to let him read it
at an assembly. They prohibited him from
wearing a black armband to express opposition to the war; he wore a black necktie
instead. "What were they going to do?" he
says. "Tell a kid he can't wear a tie?"
After college, Levy enrolled at the
University of Chicago Law School, bound
for a career in politics. But during a summer at a public-interest law firm, he saw
how litigators could help underrepresented Americans.
BACK IN HIS OFFICE, J,EVY TRIPS OVER

A magazine for
smart,
sophisticated,
witty,
real
women

Pick up the all-new

~101'ii
on sale January 28
32

WASH INGTONIAN

FEBRUARY 20.llJ

an empty trash can. "I'll clean up this


week," he says.
His docket is jusl as clullered as his
workspace. II e's going to bat for a Minnesota merch andiser whose parody
T-shirts, reading THE NSA: THE ONLY PART
OF GOVERNMENT THAT ACTUALLY LISTENS,

triggered legal threats from t he agency.


He's still trying to track down Makhnevich-he thinks she fled to Franceto have Lee's $4,766 dental bill reimbursed.
Since filing his lawsuil, Levy hasn't seen
any more contracts like the one Lee signed.
Meanwhile, Levy has turned his atten-

L,,,,:;,,,,,,,,,,,,,,,,,,,;:,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,;:::::::::::::::
r.......................................................,..........................,............. .

--

...

tion to the latest front in his war against


online censorship.
This past December, Levy filed a federal
lawsuit on behalf of a Utah couple whose
online criticism harmed their credit rating.
Jennifer Kulas's review of KlcarGear.com
on a conswnerwebsite noted that the retailer failed to deliver the desk toy and keychain her husband had purchased. More
than three years later, a KlearGear lawyer claimed that Kulas had violated the
nondisparagement clause in the retailer's
terms-of-service agreement. The lawyer
demanded that the couple remove the post
or pay a $3,500 penalty. When they refused,
KlearGear reported this unpaid "debt" to
credit-monitoring agencies.
Levy has seen other online retailers
using similar nondisparagcment clauses,
and he thinks it's essential to stamp out the
practice before it gains traction.
For the former "98-pound weakling"
who got pushed around by football players,
it's a fight worth picking.
l!ZJ
--~

..-.

Levy, center, with fellow Public Citizen attorneys in 1987, the year he argued and
won his first case before the Supreme Court.

Senior writer Luke Mullins can be reached at


lmullins@washingtonian.com.

Michael Olding, MD, FACS 0


Ranked in the nation's top 1% of plastic surgeons

by

US News & World Report

SCOTT MICHELMAN
1931 Belmont Road NW, Apt. 88

I Washington, DC 20009 I

(617) 899-9076

I smichelman@gmail.com

LITIGATION
May 2016-present

ACLU OF THE NATION'S CAPITAL, Washington, DC. Senior StaffAttorney.


PUBLIC CITIZEN LITIGATION GROUP, Washington, DC

2011-16

Staff Attorney. Litigated access-to-justice, civil rights/civil liberties, workers' rights, and consumers' rights
cases, including issues of freedom of speech, open judicial records, protestors' rights, qualified and sovereign
immunity, privacy, class action standards, wage-and-hour law, habeas corpus, and federal jurisdiction.
Docket highlights:
Supreme Court habeas corpus case raising question whether a schizophrenic petitioner could have proceedings
stayed so he could recover mental competence; ruling preserved authority of district courts to issues stays
Supreme Court overtime-pay case raising question whether class action can be certified where workers show
unpaid time using inferential proof and where not all workers were injured; ruling upheld class certification
Successful appeal, on First Amendment grounds, from district court order permitting product manufacturer to
litigate a product-safety information case pseudonymously and under seal
Successful en bane petition in First Amendment retaliation case on behalf of police officer who reported abuse
of suspects by fellow officers; en bane court ruled for complaining officer
Successful appeal from dismissal of fair credit reporting case on sovereign immunity grounds
Successful defense of Occupy Chattanooga demonstrators against harassing litigation by county government
Successful statutory and common-law action on behalf of consumers whose credit was damaged after a
retailer attempted to charge them $3500 for writing critical online review
First Amendment and due process challenge to overbroad injunction against environmental activist;
successfully moved state court to narrow the injunction
Successful appeal of denial of class certification to Applebee's workers suing for unpaid wages
Appeal from dismissal of Fourth Amendment challenge to law enforcement search of individuals' prescription
drug records without warrant or individualized suspicion (pending)
Tasks and skills:
Briefed and argued case before the U.S . Supreme Court, and cases before federal appellate and district courts
Wrote briefs in opposition to certiorari to preserve appellate victories for civil rights and class action plaintiffs
Investigated cases, and wrote and filed complaints and motions
Prepared and examined witnesses in court
Spoke on behalf of Public Citizen to national print, on line, radio, and television media; at policy conferences;
to an ABA panel; and at law schools
Helped draft legislation and lobbied state and federal legislators to prohibit contract clauses restricting
consumer speech; legislation enacted in California and passed U.S. Senate (House action pending)
Authored client's and Public Citizen's testimony delivered to Senate Commerce Committee
Mooted oral advocates in dozens of Supreme Court cases
AMERICAN CIVIL LIBERTIES UNION, Santa Cruz, California

2008-11

Staff Attorney, Criminal law Reform Project. Litigated civil and criminal cases involving civil rights and
criminal justice, including issues of equal protection, search and seizure, federal sentencing, medical marijuana
patients' rights and marijuana decriminalization, federal preemption, and freedom of speech.
Docket highlights:
Successful search-and-seizure case before Massachusetts Supreme Judicial Court establishing that smell of
marijuana does not justify search or seizure under Massachusetts Constitution
Series of cases aimed at extending judicial sentencing discretion; obtained one of the nation's first evidentiary
hearings putting a U.S. Sentencing Guideline on trial and won first trial court ruling in the nation varying
from Guideline for the drug MDMA (ecstasy)
Equal protection claim alleging racially discriminatory street-level drug law enforcement by the Seattle Police
Department; obtained clients ' release
Wrongful discharge claim on behalf ofWalmart employee fired for using medical marijuana as permitted
under Michigan law to treat symptoms of cancer
Successful defense of several state medical marijuana laws against federal preemption challenges
MlCl!ELMAN Rt',survu'o - l'AGL: I OF 6

Levy Affidavit
Exhibit 1C

LITIGATION (continued)
Tasks and skills:
Briefed and argued cases before federal appellate and district courts and state's highest court
Prepared experts to testify at evidentiary hearing, and examined and cross-examined witnesses in court
Designed motion papers to serve as models for criminal defense attorneys
Investigated potential cases, and wrote and filed complaints and motions
Authored ACLU testimony delivered to U .S. Sentencing Commission
Spoke on behalf of the ACLU to national media outlets and at national and local policy conferences
Hired and managed contract attorneys, volunteer attorneys, and legal interns
Managed legal fellows
Participated in strategic planning, expansion of Drug Law Reform Project into Criminal Law Reform Project,
and hiring of new staff attorneys
AMERICAN CIVIL LIBERTIES UNION, New York, New York

2008

Consulting Attorney, National Security Project. At the invitation of the project director, developed litigation
strategy for challenge to Foreign Intelligence Surveillance Act Amendments of 2008; case ultimately heard by
the Supreme Court in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).
CENTER FOR SOCIAL JUSTICE, Seton Hall University School of Law, Newark, New Jersey

2006-08

Clinical Teaching Fellow, Civil Rights and Constitutional litigation Clinic. Both independently and as
supervisor of student-attorneys, litigated civil rights cases involving post-September 11 abuse of executive
power, immigrants' rights, employment discrimination, freedom of expression, and freedom of the press.
Docket highlights:
Employment discrimination suit on behalf of Arab-American government security engineer suspended from
his job on the day the United States invaded Iraq
Fourth Amendment suit on behalf of immigrants subjected to warrantless pre-dawn home raids by federal and
local agents
Supervised voter protection project arguing motions in state court on behalf of voters denied ballot access on
Election Day 2006
First and Fou1th Amendment suit on behalf of newspaper editor arrested for refusing to relinquish news
photographs to police
Tasks and skills:
Briefed and argued cases before federal appellate and district courts, and state court
Supervised student-attorneys in conducting client intake and case investigation, and drafting complaints
Supervised student-attorneys in conducting written discovery, depositions, and discovery motion practice
Supervised student-attorneys in briefing and oral argument
Supervised student-attorneys in settlement negotiations
Co-taught litigation skills seminar and guest-taught in Constitutional Law and Civil Procedure classes
Wrote press releases and spoke to local media
AMERICAN CIVIL LIBERTIES UNION, New York, New York

William J. Brennan Fellow. Litigated government surveillance, political protest, and religious liberty cases.
Docket highlights:
Constitutional and statutory challenge to National Security Agency's warrantless wiretapping program
First Amendment and separation-of-powers challenge to gag orders associated with National Security Letters
under USA Patriot Act
First Amendment suit by peaceful protestors arrested for wearing anti-administration t-shirts at presidential
speech open to the public
Tasks and skills:
Briefed cases before federal appellate and district courts
Conducted discovery, including written discovery and depositions
Negotiated case settlement
Supervised summer intern program
Spoke on behalf of the ACLU to radio and print journalists
MlCl!ELMAN Rl''SUM(O- PM.ilo 2 OF 6

2005-06

TEACHING
HARVARD LA w SCHOOL, Cambridge, Massachusetts

2015-present

Shikes Fellow in Civil Liberties and Civil Rights and Lecturer on Law. Designed and taught upper-level J.D.
course, Civil Rights Litigation, covering enforcement of constitutional and statutory rights, immunities,
municipal liability, remedies, and institutional reform (Spring 2015 & 2016; planned Spring 2017).

ASHINGTON COLLEGE OF LAW, Washington, DC


2013-14
Adjunct Professor. Developed syllabus for and taught LL.M. course, U.S. Constitutional Law, covering
interpretive methods, congressional power, separation of powers, speech and religion, equal protection, and due
process {Fall 2013 & 2014). Designed and taught upper-level J.D. writing seminar, Legal Drafting: Litigation,
covering civil litigation documents from demand letter through summary judgment (Summer 2013).

AMERICAN UNIVERSITY

UNIVERSITY OF CALIFORNIA AT SANTA CRUZ, Santa Cruz, California

Winter 20 I 0

Acijunct Professor, Politics Department. Designed and taught undergraduate course, Constitutional Law,
covering congressional power, separation of powers, speech and religion, equal protection, due process, and the
rise of state constitutional law.
SANTA CLARA UNIVERSITY SCHOOL OF LAW, Santa Clara, California

Fall 2009

Adjunct Professor. Designed and taught upper-level J.D. seminar, National Security Law, covering habeas
corpus, separation of powers, wiretapping, due process, state secrets, and torture. Supervised student papers for
third-year writing requirement.
PINCUS PROFESSIONAL EDUCATION, Paradise, California

2005-09

Instructor. Designed and taught half-day Continuing Legal Education programs on civil rights litigation and
Ninth Circuit appellate practice.
ETON COLLEGE, Windsor, United Kingdom

2000-01

Annenberg Fellow (teaching fellowship awarded annually to one graduating U.S. college senior). Designed and
taught courses on U.S. politics and law. Lectured on politics and current events to groups of 250 students. Gave
political commentary on BBC radio. Directed student play. Coached basketball team to undefeated season.

CLERKSHIP
JUDGE BETTY B. FLETCHER, U.S. Court of Appeals for the Ninth Circuit, Seattle, Washington

2004-05

EDUCATION
HARVARD LAW SCHOOL, J.D. magna cum laude, 2004

Harvard Law Review, Notes Editor; Ames Moot Court Competition, Boykin C. Wright Memorial Prize (winning team)
DUKE UNIVERSITY, B.A. (Political Science) magna cum laude, 2000

BAR ADMISSIONS
States/Territories: District of Columbia; California (inactive status)
Supreme Court of the United States
U.S. Courts of Appeals: Second, Third, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits
U.S. District Courts: Northern District of California (inactive status); Eastern & Western Districts of Michigan
COMMUNITY INVOLVEMENT
ACLU of the Nation's Capital, board member
Wasserstein Fellow (selective program of public interest advising to Harvard Law School students)
ACLU of Virginia, board member
Harvard Law School Bernard Koteen Office of Public Interest Advising, alumni advisor
Obama for America, volunteer in-person canvasser
No On 8 (campaign against California's anti-marriage equality proposition), volunteer telephone canvasser

MlClll:LMAN R('.SUMJ':- f't\liE 3 OF

2014-16
2014-15
2012-15
2009-present
2008 & 2012
2008

SELECTED ACADEMIC PUBLICATIONS

Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines, 45 SUFFOLK
U. L. REV. 1083 (2012) (lead author, with Jay Rorty)
Who Can Sue Over Government Surveillance? 57 UCLA L. REV. 71 (2009), reprinted in 26 SALTZMAN &
W OLVOVITZ, CIVIL RIGHTS LITIGATION & ATTORNEY FEES ANNUAL HANDBOOK 79 (2010)
Note, "They Drew a Circle That Shut Me In": The Free Exercise Implications of Zelman v. Simmons-Harris, 117
HARV. L. REV. 919 (2004)
Recent Case, United States v. Smalley, 294 F3d 1030 (8th Cir. 2002), 116 HARV. L. REV. 705 (2002)
SELECTED LEGAL COMMENTARY
Taylor v. Barkes: Summary reversal is part of a qualified immunity trend, SCOTUSblog, June 2, 2015
Why the Nine couldn't count to four, SCOTUSblog, Oct. 7, 2014 (on denials of certiorari in same-sex marriage cases)
Fourth Circuit Vindicates First Amendment Right to Access Court Proceedings, Rejects Secret Litigation, ACLU of
Virginia blog, Apr. 19, 2014
Tase Thy Neighbor? Slate, Sept. 18, 2013 (on a Ninth Circuit decision in an excessive force case)
Appeals Court Takes up Case With Significant Implications for Class Action Suits, ACSblog, Aug. 27, 2013
Profile from the War on Drugs: Joseph Casias, Speak Freely (ACLU blog), June 7, 2011
ACLU's Wrongful Termination Suit Against Wal-Mart Highlights Medical Marijuana Patient Discrimination,
Buffington Post (Blog), July 2, 2010 (with Mike Meno)

SELECTED PRESENTATIONS
Guest Speaker, Civil Procedure (class), Yale Law School, Nov. 18, 2015 (on class actions and the Supreme Court)
Panelist, "Harvard Law Review and Public Interest Law," Harvard Law School, Apr. 23, 2015
"Non-Disparagement Clauses," Consumer Law Society, Georgetown Univ. Law Center, Mar. 30, 2015
Panelist, "What Should/Shouldn't Be in the Fine Print?" Making the Fine Print Fair, Georgetown Univ. Law Center,
Apr. 4, 2014 (discussing restrictions on consumer speech)
Panelist, ABA Section of Litigation, Products Liability Committee, Consumer Products Subcommittee Roundtable,
Apr. 11, 2013 (discussing judicial secrecy and the First Amendment)
Guest Speaker, American Univ., Transforming Communities Seminar, Nov. 29, 2012 (on impact litigation)
Panelist, "Legal Practice Settings: Non-profit/Advocacy," Harvard Law School, Oct. 18, 2012
Guest Speaker, Public Interest Advocacy (class), Georgetown Univ. Law Center, Sept. 19, 2011 (on public interest
careers)
Keynote Speaker, "Trying Our Patients: Politics vs. Health in the War on Drugs," Conference: 40 Years of Collateral
Damage from the War on Drugs, Honolulu, HI, June 18, 2011
Guest Speaker, Civil Liberties Seminar, John Marshall Law School, Oct. 4, 2010 (on civil liberties and criminal law)
"The Fair Sentencing Act of2010," Am. Const. Society, Golden Gate Univ. School of Law, Sept. 14, 2010
Panelist, "How to Put a Federal Sentencing Guideline on Trial," National Sentencing Workshop for Federal Defenders,
Chicago, IL, Aug. 5, 20 I 0
Panelist, "Race and the Drug War," Students for Sensible Drug Policy, Univ. ofCal.-Berkeley, Apr. 25, 2009
Guest Speaker, Constitutional Litigation (class), Brooklyn Law School, Feb. 13, 2006 (on warrantless surveillance)

SELECTED MEDIA APPEARANCES


TELEVISION

Nightly Business Report, CNBC, Nov. 10, 2015 ("Tyson Foods Class-Action Fight")
Your World This Morning, Al Jazeera America, Nov. 10, 2015 ("Workers' Rights Suit: Supreme Court Hearing
Class Action Case")
Nightly Business Report, CNBC, June 1, 2015 (discussing Supreme Court decision in EEOC v. Abercrombie & Fitch)
ABCJ 5 News at 6pm, KNXV ABC-15 Arizona, Sept. 4, 2014 ("Read the fine print: Companies trying to bar
customers from writing bad reviews, expert says")
Real Money with Ali Velshi, Al Jazeera America, Aug. 7, 2014 ("How helpful are business review sites?")
Get Gephardt, KUTY Salt Lake City, June 25, 2014 ("Kleargear ordered to pay $300k to Utah couple")
Your World with Neil Cavuto, Fox News, Feb. 13, 2014 (discussing appeal ofFacebook privacy settlement)
New Day, CNN, Dec. 26, 2013 ("Couple Sues Company After They're Fined $3,500 for Review")
Fox 5 News Edge, WTTG Washington, DC, Sept. 25, 2013 ("Enforcing rearview cameras for all new vehicles")
Campbell Brown, CNN, July 5, 2010 (discussing medical marijuana cancer patient's case)
MICHELMAN Rl''. SUM(o- PAGE 4 OF 6

SELECTED MEDIA APPEARANCES (continued)


RADIO & PODCAST

The Money, Australian Broadcasting Corp., May 31, 2016 ("How Facebook uses you to sell stuff to your friends")
Consumer Talk, KOO San Francisco, Nov. 7, 2015 ("Will Congress make it harder for consumers to complain?")
Bloomberg Law Brief, Bloomberg Business, Oct. 29, 2015 ("Student Loan Companies Can Be Sued")
Community Watch & Comment, WPFW Washington, DC, Aug. 31, 2015 (on victory in consumer speech case)
The Consumer Man Show, KOMO Seattle, Sept. 28, 2014 (on consumer speech)
Legal Broadcast Network, Sept. 25, 2014 ("California's 'Yelp' Law Will Let Consumer Make Honest Ratings")
Marketplace Morning Report, American Public Media, Sept. 17, 2014 ("New law cracks down on businesses that ban
bad reviews")
Gil Gross, KKSF San Francisco, Aug. 5, 2014 (on non-disparagement clauses)
On The Media, Nat' 1Public Radio, Apr. 25, 2014 ("E-Commerce and Free Speech")
Legal Broadcast Network, Apr. 24, 2014 ("Court Says Secret Litigation by Companies Not Allowed, With Scott
Michelman, Attorney with Public Citizen Litigation Group")
Community Watch & Comment, WPFW Washington, DC, Apr. 17, 2014 (on court secrecy)
The Rod Arquette Show, KNRS Salt Lake City, Dec. 5, 2013 (on free speech online)
Richmond's Morning News with Jimmy Barrett, WRVA Richmond, Sept. 26, 2013 (on auto safety lawsuit)
What's At Stake, WPFW Washington, DC, Aug. 21, 2013 (on class action law)
Justice for All: The Wyatt Wright Show, KTSA South Texas, June 16, 2013 (on court secrecy)
All Things Considered, Nat'! Public Radio, May 13, 2013 ("Facebook Users Question $20 Million Settlement Over Ads")
America's Radio News Network, May 6, 2013 (on online privacy)
Background Briefing with Ian Masters, KPFK Los Angeles, Jan. 30, 2012 (on Occupy Chattanooga litigation)
The Conversation, KUOW Seattle, June 10, 2011 (on medical marijuana and the Washington Supreme Court)
Culture Shocks With Barry Lynn (syndicated), July l, 2010 (discussing medical marijuana cancer patient's case)
& ONLINE
Assoc. Press, Firefighters Appeal Lawsuit Over Prescription Drug Database, N.Y. Times, Mar 28, 2016
Jess Bravin, Supreme Court Upholds Employee Class Action Against Tyson Foods, Wall St. J., Mar. 22, 2016
Cristian Farias & Dave Jamieson, Supreme Court Hands A Major Victory To Workers Who Were Stiffed On Overtime
Pay, Huffington Post, Mar. 22, 2016
Stephanie Mencimer, Tyson Foods Wants the Supreme Court to Block Its Employees From Suing/or Wage Theft, Mother
Jones, Nov. 10, 2015
Marianne Le Vine, Supreme Court to hear Tyson wage and hour case, Politico.com, Nov. 9, 2015
Alexis Kramer, Senate Weighs Measure on Contracts That Ban Online Reviews, Bloomberg BNA Electronic Law and
Commerce Report, Nov. 2, 2015 (quoting Senate testimony)
Scot J. Paltrow, How a small White House agency stalls life-saving regulations, Reuters, Oct. 29, 2015
Natalie Kitroeff, Court Rules That Student Loan Company Isn't Above the Law, Bloomberg.com, Oct. 23, 2015
Brent Kendall, Supreme Court to Hear Case Offering Opportunity to Limit Class-Action Suits, Wall St. J ., June 8, 2015
Cindy Gierhart, Individualized Damages Do Not Bar Class Certification, Second Circuit Holds, Trial Magazine,
Mar. 2015
Alison Griswold, Is It Legal to Fine Customers for Negative Online Reviews? Slate, Aug. 5, 2014
Jacob Gershman, Federal Appeals Court Orders Unmasking of 'Company Doe,' Wall St. J. (Law Blog), Apr. 16, 2014
Jonathan Stempel, U.S. court: Companies can't litigate secretly to protect image , Chicago Trib., Apr. 16, 2014
David Undercoffler, Backup cameras to be required in all new vehicles, starting in 2018, L.A. Times, Mar.
31,2014
David DeKok, Anti-fracking activist in court, fights ban from Pennsylvania land, Reuters, Mar. 24, 2014
Marie Cusick, Court bars anti-fracking activist from more than 300 square miles of Pa., Stateimpact
(reporting project ofNPR member stations), Mar. 10, 2014
Vindu Goel, Facebook Deal on Privacy Is Under Attack, N.Y. Times, Feb. 13, 2014, at Bl
Cecilia Kang; Parents resume privacy fight vs. Facebook over use of children's images in ads, Wash. Post,
Feb. 13,2014,atA12
Steven Nelson, Retailer That Fined Couple $3, 500 for Negative Review Hit With Lawsuit, U.S. News &
World Report, Dec. 18, 2013
Mike Scarcella, Consumer Groups Press Court to Open Sealed Case Records, Nat'] Law J., Nov. 11, 2013
Fred Meier & Chris Woodyard, Administration sued over backup camera delay, USA Today, Sept. 26, 2013
Maura Dolan, Court ruling favors police officers who report on-the-job misconduct, L.A. Times, Aug. 21, 2013
Alex Seitz-Wald, Corporations accused of wrongdoing win battle to keep identities secret, Salon.com, May 22,.2013

PRINT

MIC/I ELMAN RtSUM[> PAGE 5 OF

Assoc. Press, Supreme Court hears arguments on death-row appeal delays, Oct. 9, 2012 (quoting Supreme Court
argument)
Eric W. Dolan, Court rejects harsh federal sentencing guideline for Ecstasy, Raw Story, July 16, 2011
Denise Lavoie, Mass. court limits police in small marijuana cases, A:ssoc. Press, Apr. 19, 2011
Jennifer Mascia, Medical Use of Marijuana Costs Some a Paycheck, N.Y. Times, Aug. 29, 2010
Jacob Sullum, Drug Control Becomes Speech Control, Reason.com, Sept. 9, 2009

MlCHELMAN Rr:~sUMJ~ - PAGE 6 OF 6

USAO ATTORNEY'S FEES MATRIX-2015-2017


Revised Methodology starting with 2015-2016 Year
Years (Hourly Rate for June 1-May31, based on change in PPI-OL since January 2011)
Experience

2015-16

2016-17

31 +years

568

581

21-30 years

530

543

16-20 years

504

516

11-15 years

455

465

8-10 years

386

395

6-7 years

332

339

4-5 years

325

332

2-3 years

315

322

Less than 2
years

284

291

Paralegals &
Law Clerks

154

157

Explanatory Notes
1.

This matrix of hourly rates for attorneys of varying experience levels and paralegals/law clerks has been prepared by
the Civil Division of the United States Attorney's Office for the District of Columbia (USAO) to evaluate requests for
attorney's fees in civil cases in District of Columbia courts. The matrix is intended for use in cases in which a feeshifting statute permits the prevailing party to recover "reasonable" attorney's fees. See, e.g., 42 U.S.C. 2000e-5(k)
(Title VII ofthe 1964 Civil Rights Act); 5 U.S.C. 552(a)(4)(E) (Freedom oflnformation Act); 28 U.S.C. 2412(b)
(Equal Access to Justice Act). The matrix has not been adopted by the Department ofJustice generally for use
outside the District of Columbia, or by other Department of Justice components, or in other kinds of cases. The
matrix does not apply to cases in which the hourly rate is limited by statute. See 28 U.S.C. 2412(d).

2.

A "reasonable fee" is a fee that is sufficient to attract an adequate supply of capable counsel for meritorious cases.
See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). Consistent with that definition, the hourly rates
in the above matrix were calculated from average hourly rates reported in 2011 survey data for the D.C. metropolitan
area, which rates were adjusted for inflation with the Producer Price Index-Office of Lawyers (PPI-OL) index. The
survey data comes from ALM Lega l Intelligence's 2010 & 2011 Survey of Law F irn"i\l!conomics. The PPI-OL index
is avai lable at htt p://www.bls. gov!ppi. On that page, under "PPI Databases," and " lnd'Ustry Data (Producer Price
Index - PPI)," select either "one screen" or "multi-screen" and in the resulting window use "industry code" 541110
for "Offices of Lawyers" and "product code" 541110541110 for "Offices of Lawyers." The average hourly rates
from the 2011 survey data are multiplied by the PPI-OL index for May in the year of the update, divided by 176.6,
which is the PPI-OL index for January 2011, the month of the survey data, and then rounding to the nearest whole
dollar (up ifremainder is 50 or more).

3.

The PPI-OL index has been adopted as the inflator for hourly rates because it better reflects the mix oflegal services
that law firms collectively offer, as opposed to the legal services that typical consumers use, which is what the CPI-

Levy Affidavit
Exhibit 10

Legal Services index measures. Although it is a national index, and not a local one, cf Eley v. District of Columbia,
793 F.3d 97, 102 (D.C. Cir. 2015) (noting criticism of national inflation index), the PPI-OL index has historically
been generous relative to other possibly applicable inflation indexes, and so its use should minimize disputes about
whether the inflater is sufficient.
4.

The methodology used to compute the rates in this matrix replaces that used prior to 2015, which started with the
matrix of hourly rates developed in Laffey v. Northwest Airlines, Inc. 572 F. Supp. 354 (D.D.C. 1983), aff'd in part,
rev 'din part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985), and then adjusted
those rates based on the Consumer Price Index for All Urban Consumers (CPI-U) for the Washington-Baltimore
(DC-MD-VA-WV) area. Because the USAO rates for the years 2014-15 and earlier have been generally accepted as
reasonable by courts in the District of Columbia, see note 9 below, the USAO rates for those years will remain the
same as previously published on the USAO's public website. That is, the USAO rates for years prior to and
including 2014-15 remain based on the prior methodology, i.e., the original Laffey Matrix updated by the CPI-U for
the Washington-Baltimore area. See Citizens for Responsibility & Ethics in Washington v. Dep 't of Justice, --- F.
Supp. 3d ---, 2015 WL 6529371 (D.D.C. 2015) and Declaration of Dr. Laura A. Malowane filed therein on Sept. 22,
2015 (Civ. Action No. 12-1491, ECF No. 46-1) (confirming that the USAO rates for 2014-15 computed using
prior methodology are reasonable).

5.

Although the USAO will not issue recalculated Laffey Matrices for past years using the new methodology, it will not
oppose the use of that methodology (if properly applied) to calculate reasonable attorney's fees under applicable feeshifting statutes for periods prior to June 2015, provided that methodology is used consistently to calculate the entire
fee amount. Similarly, although the USAO will no longer issue an updated Laffey Matrix computed using the prior
methodology, it will not oppose the use of the prior methodology (if properly applied) to calculate reasonable
attorney's fees under applicable fee-shifting statutes for periods after May 2015, provided that methodology is used
consistently to calculate the entire fee amount.

6.

The various "brackets" in the column headed "Experience" refer to the attorney's years of experience practicing law.
Normally, an attorney's experience will be calculated sta11ing from the attorney's graduation from law school. Thus,
the "Less than 2 years" bracket is generally applicable to attorneys in their first and second years after graduation
from law school, and the "2-3 years" bracket generally becomes applicable on the second anniversary of the
attorney's graduation (i.e., at the beginning of the third year following law school). See Laffey, 572 F. Supp. at 371.
An adjustment may be necessary, however, ifthe attorney's admission to the bar was significantly delayed or the
attorney did not otherwise follow a typical career progression. See, e.g., EPIC v. Dep 't of Homeland Sec., 999
F. Supp. 2d 61, 70-71 (D.D.C. 2013) (attorney not admitted to bar compensated at "Paralegals & Law Clerks" rate);
EPIC v. Dep't of Homeland Sec., 982 F. Supp. 2d 56, 60-61(D.D.C.2013) (same). The various experience levels
were selected by relying on the levels in the ALM Legal Intelligence 2011 survey data. Although finer gradations in
experience level might yield different estimates of market rates, it is important to have statistically sufficient
sample sizes for each experience level. The experience categories in the current USAO Matrix are based on
statistically significant sample sizes for each experience level.

7.

ALM Legal Intelligence's 2011 survey data does not include rates for paralegals and law clerks. Unless and until
reliable survey data about actual paralegal/law clerk rates in the D.C. metropolitan area become available, the USAO
will compute the hourly rate for Paralegals & Law Clerks using the most recent historical rate from the USAO's
former Laffey Matrix (i.e., $150 for 2014-15) updated with the PPI-OL index. The formula is $150 multiplied by the
PPI-OL index for May in the year of the update, divided by 194.3 (the PPI-OL index for May 2014), and then
rounding to the nearest whole dollar (up ifremainder is 50 or more).

8.

The USAO anticipates periodically revising the above matrix if more recent reliable survey data becomes available,
especially data specific to the D.C. market, and in the interim years updating the most recent survey data with the
PPI-OL index, or a comparable index for the District of Columbia if such a locality-specific index becomes available.

9.

Use of an updated Laffey Matrix was implicitly endorsed by the Court of Appeals in Save Our Cumberland
Mountains v. Hodel, 857 F.2d 1516, 1525 (D.C. Cir. 1988) (en bane). The Court of Appeals subsequently stated that
parties may rely on the updated Laffey Matrix prepared by the USAO as evidence of prevailing market rates for
litigation counsel in: the Washington, D.C. area. See Covington v. District of Columbia, 57 F.3d 1101, 1105 & n.14,
1109 (D.C. Cir. 1995), cert. denied, 516 U.S. 1115 (1996). Most lower federal courts in the District of Columbia

have relied on the USAO Matrix, rather than the so-called "Salazar Matrix" (also known as the "LSI Matrix" or the
"Enhanced Laffey Matrix"), as the "benchmark for reasonable fees" in this jurisdiction. Miller v. Holzmann, 575 F.
Supp. 2d 2, 18 n.29 (D.D.C. 2008) (quoting Pleasants v. Ridge, 424 F. Supp. 2d 67, 71 n.2 (D.D.C. 2006)); see, e.g.,
Joaquin v. Friendship Pub. Charter Sch., --- F. Supp. 3d ---, 2016 WL 3034151 (D.D.C. 2016); Prunty v. Vivendi, --F. Supp. 3d ---, 2016 WL 3659889 (D.D.C. 2016); CREWv. U.S. Dep't ofJustice, --- F. Supp. 3d ---, 2015 WL
6529371 (D.D.C. 2015); McAllister v. District of Columbia, 21 F. Supp. 3d 94 (D.D.C. 2014); Embassy of Fed.
Republic ofNigeria v. Ugwuonye, 297 F.R.D. 4, 15 (D.D.C. 2013); Berke v. Bureau of Prisons, 942 F. Supp. 2d 71,
77 (D.D.C. 2013); Fisher v. Friendship Pub. Charter Sch., 880 F. Supp. 2d 149, 154-55 (D.D.C. 2012); Sykes v.
District ofColumbia, 870 F. Supp. 2d 86, 93-96 (D.D.C. 2012); Heller v. District of Columbia, 832 F. Supp. 2d 32,
40-49 (D.D.C. 2011); Hayes v. D.C. Public Schools, 815 F. Supp. 2d 134, 142-43 (D .D.C. 2011); Queen Anne's
Conservation Ass 'n v. Dep 't of State, 800 F. Supp. 2d 195, 200-01 (D.D.C. 2011); Woodland v. Viacom, Inc., 255
F.R.D. 278, 279-80 (D.D.C. 2008); American Lands Alliance v. Norton, 525 F. Supp. 2d 135, 148-50 (D.D.C. 2007).
But see, e.g., Salazar v. District of Columbia, 123 F. Supp. 2d 8, 13-15 (D.D.C. 2000). The USAO contends that the
Salazar Matrix is fundamentally flawed, does not use the Salazar Matrix to determine whether fee awards under feeshifting statutes are reasonable, and will not consent to pay hourly rates calculated with the methodology on which
that matrix is based.

matrix

http://www.laffeymatrix.com/see.html

- .. 1.---- 1: '

1: ll 1'. \(: ,.

t-~<f1

' \1 1' 1 t (l p111111!\

I~+
20

11$421

11$608

16/01115- 5/31/16 11 1.0089

$180

[$331

11$406

11$586

1$661

1$796

16/01/14- 5/31/15 1

1.0235

$179

1$328

11$402

11$581

J 1$655

11$789

16/01/13- 5/31114 1

1.0244

$175

1$320

1$393

I$567

11$640

t 1$771

[6/01/12- 5/31/13 I

1.0258

I
I
I

$170

[$312

1$383

I[$554

11$625

1$753

1.0352

$166

1$305

1$374

1$540 11$609

11$734

6/01/10- 5/31/11 ]

1.0337

$161

' 1$294

11$361

11$522 11$589

1$709

11$349

I1$505

11$569

1$342

1$494

1$557

J.

, II n1111

1.0220 I

$155

1$285

6101 /08- 5/31 /09 j

1.0399

$152

11$279

6101/07-5/31/08 1

1.0516

6101/06-5/3 1101 \

..
I

11-19

1$343

6101109- 513111 o

,,

8-10

$187

, L 11 11 1.11 1 11.

~. '"'

4_7 1

1-3 1

1.0369

16/01/11- 5/31112

' to" ~ I~

~~;k

Factor**

P~alegal/ ~

Adjustmt

I16/01/16- 5/31117 [l

! "Tl,; ,

IJ IJ

JYears Out of Law School*

"4.

C.i.1 I .11:!

6/1 /05-5/31/06

1111. .

16/1/04-5/31/05
16/ I /03-6/ 1/04

j
11

11

61I/01-5/31/02

16/1/00-5/31/01

Il

16/1/99-5/31/00 I

I
I

11$686

$671

$146

1.0401 1
1.0529

1.0491

t110
$106
$101

$203

$195

$185

$227 ' [ $3281 1 $369 11 $444 J

$176

$216 11$3121

$352 !

$169

$207 11

$337 11 $406

16/ 1/98-5/31/99

1.0439 11

16/1/97-5/31/98

1.0419 11

I
$92 I

16/1 /96-5/31 /97

1.0396 ; 1

$88 1

$162

$155

$151 1

16/1/95-5/31/96
16/ 1/94-5/31 /95

I $268 11 $329 I $475 11$536: $645


1.0256
I $139 I $255 I $313 11 $4.52 11 $509 ! $614
$305 1$44llI $497 1 $598 j
1.0421]
$136 I
$249 f I
$239 1
1.0455 1l
$130 I
$293
$423 11 $476 1 $574 1
1.0507 11
$124 I
$228 1
$280 11 $405 1l $4561 $549
$267 I $385 . I $434 J $522
$217
1.0121 I
$118 I
I

16/ 1/02-5/31/03 1l
J

1[$6851 $826

$85

$82 _

1.032 1
1.0231

$96 :

$249

$404 , J

$487

$239

I $345 JI $388 11

$468

$359

I
$299 ] I

$424 1

$} 98 r [ $281 1J $323 11 $389


$19 11 1 $276
$18s !

~I

I $267 ' l

$3o il

$375

$363

Levy Affidavit
Exhibit 1E
1 of2

9/13/2016 5:46 PM

matrix

http://www.laffeymatrix.com/see.html

The methodology of calculation and benchmarking for this Updated Laffey Matrix has been
approved in a number of cases. See, e.g., McDowell v. District of Columbia, Civ. A. No. 00-594
(RCL), LEXSEE 2001 U.S. Dist. LEXIS 8114 (D.D.C. June 4, 200 I); Salazar v. Dist. of Col.,
123 F.Supp.2d 8 (D.D.C. 2000).
*"Years Out of Law School" is calculated from June 1 of each year, when most law students
graduate. "l-3" includes an attorney in his 1st, 2nd and 3rd years of practice, measured from
date of graduation (June I). "4-7" applies to attorneys in their 4th, 5th, 6th and 7th years' of
practice. An attorney who graduated in May 1996 would be in tier "1-3" from June 1, 1996 until
May 31, 1999, would move into tier "4-7" on June l, 1999, and tier "8-1 O" on June I, 2003.
** The Adjustment Factor refers to the nation-wide Legal Services Component of the Consumer
Price Index produced by the Bureau of Labor Statistics of the United States Department of
Labor.

2 of2

9/13/2016 5:46 PM

PUBLIC CITIZEN LITIGATION GROUP


1600 20th Street NW Washington DC 20009

202/588 -1000 www.c1tize11.01g

Time Records Report


Staff

Date

Time

Description

Prestigious Pets v Duchouquette


Levy, Paul

'f

3/17/2016

0.8

Talk SM, AZ., ML

3/23/2016

0.3

Resch, talk AM I SM

3/28/2016

2.2

Rvw D Ct filing, resch Tex law; discuss SM; resch facts

3/29/2016

1.4

Resch facts, contact W, discuss RD and SM

3/31/2016

1.6

Prepare argument outline, do TC w/SM and AM

4/1/2016

1.3

Prepare for RD/MD call; discuss w/clients; discuss w/SM afterward

4/4/2016

2.2

Reschm draft letter to BR re PP claims

4/5/2016

2.8

Resch, draft anti-SLAPP ltr; edit SM portion

4/7/2016

1.5

Resch, edit draft letter

4/1112016

0.4

Resch, edit draft letter

5/2/2016

0.5

Rvw, edit SM draft

5/3/2016

4 .7

Resch libel issues, draft statement for TCPA motion

5/4/2016

5.5

Draft TCPA Brief: TCPA model, defamation; research

5/5/2016

4 .8

Resch disparagement; edit/draft TCPA motion re defamation, disparagement;


talk BR

5/5/2016

2.7

Edit brief; rvw/edit ktt claim & fee section

5/6/2016

5.5

Edit TCPA mem; draft affidavits

5/7/2016

1.3

Consult clients, edit affidavits

5/8/2016

1.2

Edit affidavit, memo

5/9/2016

2.5

Resch for memo, edit affidavits; draft Levy Affidavit; communicate W

5/9/2016

0.8

Edit answer; prepare PHV

5/10/2016

2.1

edit aff's, edit br in light of aff's. Resch of and concern and opin issues

5/11 /2016

3.7

Draft summary of arg; develop evidence for RD, PL affs; resch disparagement
args

5/16/2016

0.1

County Court at Law Pro Hae Fee form

5/25/2016

0.9

Rvw AC brief revisions, edit, resch

5/26/2016

2.2

Rvw A"ZJNW comments, discuss w/AZ, resch/edit brief; edit clin aff's, rvw cli

aff comments, revise; finalize Levy aff and exh


5/27/2016

0.2

Edit affidavits

6/1/2016

1.7

Final edit of briefs, talk RD, fixing exhibits

Page 1 of 4

Levy Affidavit
Exhibit lF

6/15/2016

0.5

Prepare, do telecon w/co-counsel about impending hearings and strategy

6/20/2016

0.6

Rvw P filings, discuss co-coun

6/22/2016

0.9

Edit Opp to discovry motion

612212016

2.3

Resch, draft pro hac reply affidavit

IfiY23i2016
J( fj3312016

1.4

PHV law research

2.6

Review evidence, edit discovery and jurisdictional oppositions, resch on jurisd

l{1P2-312016

7.5

Resch, draft reply brief on PHV; edit PHV reply affidavit

1- 6/23/2016

0.6

Edit jurisdictional opposition

6/24/2016

0.3

Last read of Juris and Discovery Opps, edits

'/~24/2016

1.8

Edit PHV Aff and Reply

)[~24/2016

1.2

Final reads of all papers

(<612612016

0.8

Rvw CD argument outlines, make suggestions

6/27/2016

1.2

Discuss hearing outcomes w/cocoun, discuss clients, resch jurisd issue

16/28/2016

1.8

Jurisd_ research

6/29/2016

3.5

Resch fee jurisdiction argument

)'6/30/2016

1.3

Draft, edit Cy Ct jurisdiction reconsid motion

"'f-7/1/2016

0.2

Edit reconsid mot

7/6/2016

1.2

Discuss sched w/coun;

7/12/2016

0.8

Strategy discussion re hearings and motions; draft possible new affidavit; F/U
with Yelp

7/17/2016

1.2

Prep for oral arg: reread cited cases

7/18/2016

4.3

Prepare for oral argument; reread cases, outline argument

7/19/2016

3.3

Prepare for oral argument -- reread cases, outline argument

7/20/2016

10

7/21/2016

8.5

Resch, draft reply brief

7/22/2016

2.4

Draft reply brief, resch

7/23/2016

2.7

Prepare oral argument, draft reply brief

7/25/2016

4.3

Edit reply brief, prepare argument

7/26/2016

8.5

Final reply edits, oral argument prep

7/27/2016

2.4

Revise argument plan in light of moot court, resch

7/27/2016

8.4

Prepare oral argument, including moot court; resch

7/28/2016

3.6

Moot court, discuss case w/co-counsel; prepare arg

7/28/2016

7/28/2016

4.8

Travel to DCA, wait, plane to DAL, travel to TKLaw

7/29/2016

2.5

Prepare arg, walk to and wait in ct, argue case

I/i-.

(<

rvw evid, draft supp aff for RD

Prepare for oral argument: finish reading cases and record, outline argument;
review P filing, read their cases; discuss strategy with co-counsel; outline,
draft reply brief, finalize new affidavit

Revise argument plan, resch

Page 2 of 4

7/29/2016

8.4

Travel to DAL, wait for delayed plane, fly to DCA, cab home

8/30/2016

0.6

Discuss ruling, strategy w/ cli/coun

9/7/2016

0.1

Discuss status/plans w/CD

9/8/2016

1.4

Rvw ktt, discuss AZ/Cli;

9/9/2016

4.3

Chan and Levy affidavits draft fee legal argument

9/10/2016

1.4

Edit fee legal arg, levy aff

9/11/2016

0.6

Edit fee mem

9/12/2016

2.1

Edit fee mem, resch ; discuss co-coun

9/13/2016

0.6

Talk RD about ktt, edit that and affidavit

9/14/2016

1.2

Edi! fee mem, finalize affidavit

Staff total:

175

3/29/2016

0.2

Discuss strategy with P. Levy.

3/30/2016

0.1

Discuss strategy with P. Levy.

3/31/2016

0.9

Conf call with co-counsel P. Levy and A. More to discuss strategy.

3/31/2016

0.5

Read case documents.

4/1/2016

1.2

Call with P. Levy and clients.

4/1 /2016

0.1

Strategy discussion with P. Levy.

4/1/2016

0.8

Research Texas consumer and unconscionability law.

4/4/2016

0.1

Discuss strategy with P. Levy.

4/4/2016

1:4

Research Texas law.

4/4/2016

0.7

Draft portion of letter to opposing counsel.

4/5/2016

0.8

Edit P. Levy's letter to opposing counsel (0.6), research fee provisions (0.2) .

4/5/2016

0.2

Discuss strategy with P. Levy.

4/5/2016

1.5

Write up non-disparagement argument for letter to opposing counsel.

4/6/2016

0.6

Edit P Levy draft letter.

4/18/2016

0.9

Research DTPA counterclaims.

4/19/2016

0.2

Discuss strategy with P. Levy.

4/19/2016

0.5

Research DTPA.

4/20/2016

1.1

Research DTPA.

4/22/2016

2.2

Research and write memo on DTPA claims.

4/25/2016

0.2

Finish DTPA memo.

4/25/2016

2.2

Draft portion of anti-SLAPP motion covering non-disparagement clause.

4/25/2016

0.6

Research DTPA.

5/6/2016

0.1

Discuss strategy with P. Levy,

5/6/2016

1.1

Edit and add

rvw draft fee

application and comment; resch

Michelman, Scott

to anti-SLAPP motion .

Page 3 of 4

Staff total:
Clattenburg, Rachel

18.2

5/25/2016

1.1

Review motion to dismiss.

6/15/2016

0.4

Telecon with co-counsel re upcoming county court

6/22/2016

0.2

Review PL's affidavit.

6/23/2016

0.2

Reviewing Opposition to mtn for discovery.

7/20/2016

0.8

Reviewing memorandums in preparation for moot court.

Staff total:
Case total :

2.7
195.9

Grand total

195.9

Page 4 of 4

h~aring.

PUBLIC CITIZEN LITIGATIONGROUP


1600 20th Street NW Washington DC 20009

202/588-1000. Vo/WWCifizeri.Org

Expense Report
Staff

Date

Expense

Description

Prestigious Pets v Duchouquette


Levy, Paul
5/9/2016

&255.88

PHV fee

5/16/2016

&255.88

Pro hac fee: County Court at Law

6/27/2016

&305.20

Value of tickets for cancelled flights

7/29/2016

&967.91

Travel expense

Staff total:
Case total:

,784.87
,784.87

Grand total

,784.87

Page 1 of 1

PUBLIC CITIZEN LITIGATION GROUP

1600 ZOTH STREET, N.W.


WASHINGTON, D.C. 200091001

(202) 588 1000

BY EMAIL

rduchouquette@gmail.com and
mduchouquette@gmail.com

April 13, 2016


Robert and Michelle Duchouquette
6428 Brandon Court

Plano, Texas 75093


Dear Mr. and Ms. Duchouquette:
[ am writing to set forth the terms on which Scott Michelman and I, and possibly other
Litigation Group attorneys, are prepared to represent you in Texas District Court in responding to
the claims by Prestigious Pets and its owner, Kalle Mc Whorter, that you have defamed them and
breached the non-disparagement clause ofthe contract that Robert signed with Prestigious Pets. The
primary objective in the representation is to defeat these legal claims and to protect your right to tell
the truth and express your opinions about the plaintiffs; we also hope to invoke the Texas Citizen
Participation Act and the Deceptive Trade Practices Act to recover the legal fees that you had to
spend in response to the action that Prestigious Pets filed in the Texas Justice Court.
Further representation in the Justice Court will remain the responsibility of the lawyers you
previously hired for that case. However, asswning th.at we appeal from the Justice Court to the

County Court at Law, we will also handle that appeal on your behalf.
We will need your help with the case. You may need to provide truthful and complete
infonnation to comply with discovery obligations in the case, sometimes in the fom1 of documents,
sometimes written answers wider oath. Similarly, you will need to give us other truthful and
complete information from time to time to help us represent you. There will be strict deadlines for
supplying this information, and you will need to meet them. You will need to pay any fees for our
pro hac vice admission in the Texas oourts, as well as travel expenses to get to future depositions as
well as for court appearances, and the cost oftra:oscripts of such depositions, We will likely need
to take depositions as well, incurring similar expenses. Ifthe case goes to trial, there will be further
expenses, such as for transcripts. In additio~ you will need to make decisions about the strategy for
the litigation, in light of our advice, including whether to make or withdraw various claims or
defenses. But you understand that we cannot present (or withhold) arguments simply because you
wish to do so. because we have an independent obligation as lawyers to use our best judgment about
whether claims or arguments are justified.
We will be supplying our representation without charging you for our time. From time to

evy Affidavit
~xhibit lG

Robert and Michelle Duchouquette

April 13,2016
page2

time we will need you to pay our out of pocket expenses in the case, such as the cost of filing fees,
deposition transcripts and travel. We will do our best to minimize travel expenses.

Because we do not generally practice in Texas, we will need to associate local counsel in the
case; you will need to make separate arrangements with local counsel, and indeed, if local counsel
cannot be found, we will be Wlable to continue in the case. Your existing counsel, Alex More and
Monica Latin, are willing to continue in the part of the case for which we are talcing lead
responsibility, but only if they are paid on an hourly basis. We will endeavor to help you find pro
bono local counsel; however, I cannot be sure that those efforts will succeed.
Cases like this one generally do not provide any guarantee of attorney fees when an
individual prevails against a business. However, we may be able to seek an award of fees from the
plaintiffs under the Texas Citizens Participation Act or the Deceptive Trade Practices Act. If we
believe that a fee award is justified, we may seek to have such fees awarded to us, and you agree to
support our request in that regard. However, you must understand that any such fees awarded for
time that we spent on the case would belong to Public Citizen (and tu local counsel to the extent they
were working pro bono or for less than the awarded hourly l"dte).
Ifthese terms are satisfactory, please sign your name below and renll'n the signed letter to me.

Robert Duchouquette

Michelle Duchouquene

EXHIBIT 2

CAUSE NO. DC-16-03561


KALLE MCWHORTER and
Prestigious Pets, LLC,

PLAINTIFFS,

V.

ROBERT DUCHOUQUETTE and


MICHELLE DUCHOUQUETTE

DEFENDANTS.

IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

160th JUDICIAL DISTRICT

AFFIDAVIT OF NICOLE L. WILLIAMS


IN SUPPORT OF ATTORNEYS' FEES
1.

I am a partner with the law firm of Thompson & Knight LLP, 1722 Routh Street,

Suite 1500, Dallas, Texas 75201.


2.

I have practiced litigation in Dallas, Texas, since 2003. I live in Dallas, Texas. I

am a member in good standing of the State Bar of Texas, and am admitted to practice before the
Arkansas Court of Appeals, the United States District Courts for the Northern, Southern, Eastern,
and Western Districts of Texas, the United States Courts of Appeals for the Fifth and Ninth
Circuits, and the United States Supreme Court. I received a J.D. from Duke University and was
admitted to the State Bar of Texas in November of 2003. My CV is attached as Exhibit A, and
the CV of my associate, Christopher Dachniwsky, is attached as Exhibit B.
3.

I have been retained as counsel ofrecord in this case. In that role, I anticipate

opining on the reasonableness and necessity of the fees incurred by Plaintiff in this matter.
Redacted fee statements for Thompson & Knight on this matter are attached as Exhibit C. I have
reviewed the non-privileged portions of the file of Thompson & Knight LLP ("T&K"), the
redacted fee statements, and the engagement letter that governs the relationship between T &K
and the Duchouquettes (the "Engagement Letter"), which is attached as Exhibit D.

AFFIDAVIT OF NICOLE L. WILLIAMS IN SUPPORT OF APPLICATION FOR ATTORNEYS' FEESPage 1

4.

The Engagement Letter accurately reflects the agreement that has existed between

T&K and the Duchouquettes since we were retained in April 2016. Under the terms of this
agreement, T&K's representation has been on a contingency-fee basis with T&K recovering its
attorney fees out of any Court-awarded attorney's fees or sanctions. Additionally, the
Duchouquettes have been responsible for paying court costs and T&K's expenses regardless of
whether the Court awards attorney's fees or sanctions.
5.

I believe the fees charged by T &K are both reasonable and necessary to the

Duchouquettes' defense against the claims asserted in this legal action. In forming my opinions
herein, I have considered the type of litigation involved, along with the parties and counsel
involved, and have evaluated the following factors, among others: the time and labor required;
the novelty and difficulty of the questions involved; the skill requisite to perform the legal
services properly; the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the attorneys involved; the fee customarily
charged in the locality for similar legal services; the amount involved and the results obtained;
the time limitations imposed by the client or by the circumstances; the nature and length of the
professional relationship with the client; the experience, reputation, and ability of the attorneys
involved; and, whether the fee is fixed or contingent on results obtained or unce1iainty of
collection before the legal services have been rendered. I also considered:

6.

(1)

The 2015 Texas Lawyer survey of billing rates;

(2)

The redacted fee statements of the Defendants; and

(3)

The customary rates charged by the lawyers involved in this case.

I base my opinions on my education, training, and experience as a trial attorney

practicing law in the Dallas/Fort Worth area, the Texas Rules of Professional Conduct, and a

AFFIDA VJT OF NICOLE L. WILLIAMS IN SUPPORT OF APPLICATION FOR ATTORNEYS' FEES Page 2

review of billing and time records in this case. In forming my opinions, I have also reviewed (or
been involved in the filing and responses to) the pleadings, motions, and other documents filed,
and other activities occurring in this case.
7.

In view of the factors identified above, and as shown in Exhibit C, to date a

reasonable number of hours were expended in connection with the pursuit of this lawsuit and the
rates charged by counsel for the Defendants are reasonable and comparable to those of other
attorneys practicing in the Dallas/Fort Wmih area, including Dallas County, Texas. Moreover,
given the nature of the claims asserted and the time frame in which the services were provided,
T &K properly staffed this case, and the time expended was reasonable. The time expended a
senior associate member of the T&K litigation team was written down as shown in Exhibit C,
and T&K is not charging the Duchouquettes for those legal fees.
8.

Additionally, I have reviewed the billing records produced by Paul Alan Levy and

other attorneys with the Public Citizen Litigation Group, the rates charged by Public Citizen
attorneys, and CV s for the Public Citizen attorneys. The time spent on this matter by the Public
Citizen attorneys was reasonable and necessary, and their billing rates are reasonable as well.
8.

Fmiher, if Plaintiffs file a motion for new trial which is unsuccessful, $10,000.00

to $15, 000. 00 would be reasonable attorneys' fees for responding to such motion. If Plaintiffs
make an unsuccessful appeal from the judgment, $50,000.00 would be a reasonable fee for
services performed on this cause on appeal to the Court of Appeals. Such fees would also be
necessary.
9.

If judgment is upheld by the Comi of Appeals and Plaintiffs make an

unsuccessful appeal to the Texas Supreme Court, I am of the opinion that $20,000.00 would be a
reasonable fee for services performed at the petition for review stage. If a petition for review is

AFFIDAVIT OF NICOLE L. WILLIAMS IN SUPPORT OF APPLICATION FOR ATTORNEYS' FEESPage3

granted by the Texas Supreme Court, an additional $75,000.00 would be a reasonable fee for
responding to briefing on the merits. If oral argument is granted, an additional $35,000.00 would
be reasonable. All such fees would also be necessary.
Dated: September 26, 2016.

ACKNOWLEDGEMENT
THE STATE OF TEXAS
COUNTY OFTARRANT

This instrument was acknowledged before me on September 26, 2016, by Nicole L.


Williams.

AFFIDAVIT OF NICOLE L. WILLIAMS IN SUPPORT OF APPLICATION FOR ATTORNEYS' FEES Page 4

EXHIBIT 2A

NICOLE WILLIAMS
Partner, Thompson & Knight LLP
One Arts Plaza, 1722 Routh Street, Suite 1500, Dallas, TX 75201
214.969.1149, Fax: 214.999.1508
Nicole.Williams@tklaw.com

RELATED PRACTICES
Trial; Antitrust, Trade Regulation, and Advisory Work; Class Action Litigation; Government and Regulatory;
Corporate Governance and Internal Investigations; White Collar Criminal Litigation; Government Litigation;
Administrative and Regulatory Compliance; Commercial Litigation; Advertising and Social Media; Healthcare
Litigation
RELATED INDUSTRIES
Retail; Manufacturing; Healthcare; Real Estate and Real Estate Finance; Consumer Products; Financial Institutions
PROFILE
Nicole Williams is a trial lawyer who represents clients before federal and state trial and appellate courts as well as
in arbitration and regulatory investigations and proceedings. She has tried numerous jury cases, in both civil and
criminal court. She focuses her practice on litigation and counseling on matters involving antitrust, advertising,
RICO, and other complex business litigation and complex commercial disputes, including class actions.
Nicole has provided legal opinions and advice regarding antitrust implications of product distribution agreements,
joint ventures, other contractual arrangements, and membership requirements for organizations. She has provided
legal opinions and advice regarding existing or proposed advertising materials, including product packaging and
labeling, distribution materials, and social media and website content. Nicole has dealt with First Amendment, Texas
Citizens Participation Act (anti-SLAPP), and Defamation Mitigation Act issues related to advertising, social media,
and business and consumer disputes.
Nicole has represented clients in investigative proceedings by the Federal Trade Commission, Department of Justice,
Texas Attorney General, and National Advertising Division of the Better Business Bureau, including successfully
defending clients from motions to enforce subpoenas.
Nicole serves as Co-Chair of Thompson & Knights cross-practice Advertising and Social Media initiative. For
years, she has been recognized by Texas Super Lawyers and Texas Rising Stars for her outstanding legal work.
She frequently speaks and authors chapters and articles on various topics, including antitrust, advertising, complex
arbitration, e-discovery, responding to government subpoenas, and other complex litigation topics.
EXPERIENCE
Currently representing an airline in a putative class action relating to airlines reward program
Currently representing an airline in a putative class action relating to airline's cancellation policy

Currently representing a manufacturer in direct and indirect purchaser putative class actions regarding an
alleged conspiracy to fix prices
Currently representing a student in a First Amendment challenge to educational institution policies
Currently representing a company in defending defamation claims involving the First Amendment and the
Texas Citizens' Participation Act (anti-SLAPP)
Represented pet food manufacturers in threatened putative consumer class actions challenging labeling and
advertisements
Represented an airline in a putative class action relating to service, resulting in voluntary dismissal
following a motion to dismiss
Represented food product manufacturer in multiple alleged nationwide and statewide class actions related to
false and misleading advertising for various products
Represented consumer product manufacturer in agency proceeding regarding allegations of false and
misleading advertising
Represented international restaurant chain in threatened putative statewide consumer class action
challenging representations on restaurant menu
Represented retail food provider in threatened putative nationwide consumer class action challenging food
product labels; motion to dismiss granted in related Lanham Act case
Represented food product manufacturer in alleged class action regarding treatment of independent
distributors, resulting in dismissal of case
Represented food product manufacturer in arbitration proceeding regarding status of independent
distributors and other labor claims, resulting in complete victory for client
Represented food product manufacturer in action by independent distributor for various Arkansas state law
claims, resulting in Arkansas Supreme Court opinion that arbitration agreement required dismissal of case
Represented offshore drilling company in putative class action alleging antitrust and RICO violations,
resulting in summary judgment in favor of client
Represented a group of physicians in an adjudicatory proceeding before the Federal Trade Commission
involving price-fixing allegations
Represented real estate developer as plaintiff in arbitration proceeding regarding contractual dispute,
resulting in complete victory for client, including award of attorneys' fees
Represented title insurance company and insureds to resolve issues relating to missing and incorrect
documentation in more than 500 residential property closings across the country
Represented banking institution in defending claims of breach of contract and fraud, resulting in takenothing judgment in favor of client
Represented both plaintiffs and defendants in wrongful foreclosure actions of both commercial and
residential property
Represented both plaintiffs and defendants in actions relating to non-competition and confidentiality
agreements, including obtaining temporary restraining orders

DISTINCTIONS/HONORS
The Best Lawyers in America by Woodward/White Inc. (Litigation-Antitrust); 2016-2017
Texas Super Lawyers by Thomson Reuters (Antitrust Litigation); 2014-2016
"Under 40 Hot List," Benchmark: Litigation, The Definitive Guide to America's Leading Litigation Firms
& Attorneys; 2016
2015 Rainbow Days Promise Award Recipient

Texas Rising Stars by Thomson Reuters (Antitrust Litigation); 2012-2014


Best Lawyers Under 40 in Dallas, D Magazine; 2006

ACTIVITIES (MEMBERSHIPS/AFFILIATIONS)
Federal Bar Association Antitrust & Trade Regulation Section; Deputy Chair, 2016-2017
Antitrust & Business Litigation Council, State Bar of Texas, 2010-present
Dallas Bar Association; Antitrust and Trade Regulation Section; Chair, 2012-2013, 2015; Treasurer, 2011;
Leadership Committee, 2010, 2014; Co-Vice-Chair, Summer Law Intern Committee, 2015
Federal Bar Association, Antitrust and Trade Regulation Section; Secretary, 2014-present
Member, Dallas Judicial Nomination Commission, 2016-2017
American Bar Association Section of Antitrust Trial Practice Committee, Young Lawyer Representative,
2011-2012
ABA Section of Antitrust Trial Practice Committee, 2011-2012
Board of Directors, Dallas Association of Young Lawyers, 2006; Co-Chair, Poker for Playgrounds, 2005;
Co-Chair, Law Student Assistance Committee, 2005-2012; Leadership Class Member, 2004
Fellow, DAYL Foundation
Faculty, Women in Law Institute, 2014
Member, Leadership DISD, 2011-2012
Affiliate Professor, UNT Dallas College of Law, present
Adjunct Faculty, Texas Wesleyan School of Law; Moot Court Coach, 2004-2009
Mock Trial Coach, James Madison High School, 2010-present
Associate, Higginbotham Inn of Court, 2008
Lawyer on Loan program with Dallas County District Attorney's Office
Executive Board of Directors, Rainbow Days; 2014-present; Secretary, 2015-present
PUBS/PRESENTATIONS
"The Impact of Campbell-Ewald, Tyson Foods, and Spokeo on Class Actions," Federal Bar Association,
July 2016
Client Alert: CFPB Announces Proposed Rule Restricting Arbitration Agreements, May 5, 2016
"Whats on your Mind? #SocialMedia from a Companys Perspective," Panel Moderator, Thompson &
Knight Advertising and Social Media Roundtable, February 25, 2016
"CFPB Regulations and Activities: 2015 Developments and 2016 Predictions," Thompson & Knight
Compliance Roundtable, February 17, 2016
Client Alert: Campbell-Ewald Co. v. Gomez A Temporary Victory for Plaintiffs in the Class Action War?,
January 21, 2016
"Managing Risk in 140 Characters or Less: #BrandsOnTwitter," ACC Association of Corporate Counsel,
November 2015
"Social Media at Work: #TrendingTopics," Association of Corporate Counsel, September 29, 2015
"CFPB & UDAAP: Recent Developments & Hot Topics," Association of Corporate Counsel, Houston,
Texas, June 23, 2015
"Social Media for Brand Owners: #TrendingTopics," Thompson & Knight Roundtable, June 3, 2015
"Protecting Brand Integrity: Product Theft, Diversion, and Counterfeiting and Product Reputation and
Promotion," Co-presenter with Daniel Torpey, Ernst & Young, RIMS (The Risk Management Society)
Conference, April 29, 2015

"The Arbitration Tool Box: Arbitrating Complex Cases," Federal Bar Association and MyLawCLE, March
24, 2015
"Hot Topics in Advertising and Branding: What In-House Attorneys and Marketing Professionals Need to
Know about Compliance, Protection, and Enforcement," Thompson & Knight Roundtable, Houston, Texas,
March 6, 2015
"Class Actions and Arbitration: Developments After Concepcion," Thompson & Knight Presentation,
November 13, 2014
"Hot Topics in Advertising and Branding: What In-House Attorneys and Marketing Professionals Need To
Know About Compliance, Protection, and Enforcement," Thompson & Knight Roundtable, November 13,
2014
"More than Mentoring Stories of Successful Sponsorship," Panelist, Thompson & Knight Diversity &
Inclusion Committee and Womens Initiative Presentation, June 13, 2014
"Getting Jury Instructions Right In Civil Antitrust Cases," ABA Section of Antitrust Spring Meeting, March
26, 2014
"Antitrust Aspects of M&A Transactions," co-author, Corporate Counsel Institute, Spring 2014
Chapter Contributor, ABA Joint Venture Antitrust Handbook, 2014
Revision Committee, ABA Model Jury Instructions in Civil Antitrust Cases, Publication Pending
Chapter Contributor, Inside the Minds: Recent Developments in Advertising Law, Aspatore, 2013
"FTC v. North Carolina Dental: Implications for State Regulation," Panelist, ABA Antitrust Exemptions &
Immunities Committee and Joint Conduct Committee Panel Presentation, July 19, 2013
"Strategies and Tips on Multidistrict Practice and Litigation," Panel Moderator, State Bar of Texas
Antitrust and Business Litigation CLE, June 20, 2013
"The Increasing Reach and Risk of Advertising Law," Flower Mound Bar Association, May 31, 2013
Current Issues in E-Discovery," Dallas Bar Association Antitrust & Trade Regulation Section, March 19,
2013
"Responding to Large Document Subpoenas: Best Practices and Technologies to Avoid Wasting Money
and Time," Thompson & Knight Webinar, Dallas, Texas, February 6, 2013
Chapter Contributor, ABA Handbook of Market Definition, 2012
"State Consumer Protection Laws: Enforcement and Litigation Trends in Texas," Moderator, ABA Section
of Antitrust Law, Private Advertising Litigation, Consumer Protection, and State Enforcement Committees,
September 20, 2011
"The Increasing Reach and Risk of Advertising Litigation," Thompson & Knight CLE Webinar, May 2011
"ABA Antitrust Update for In-House Counsel," December 3, 2010
Introduction to Trial Advocacy and Evidence, Guest Lecturer at SMU Plano, 2010-2013
Chapter Contributor, Insurance Antitrust Handbook, 2nd Edition, 2006
"Liberty Mutual Moves to Dismiss Spitzer Lawsuit Challenging Contingent Commission and Bid-Rigging,"
The Insurance Policy, Fall 2006
Brief Writing Workshop Instructor, Texas Wesleyan School of Law, August 2006 and August 2008
"The FTC Rules of Practice for Adjudicative Proceedings: A Comparison to the Federal Rules," with Greg
Huffman, ABA Antitrust Spring Meeting, March 2005
"The Art of Oral Advocacy," Duke University School of Law, 2005-2008

NEWS
89 T&K Attorneys Listed in Texas Super Lawyers 2016, September 06, 2016

Chris Dachniwsky Mentioned in TechDirt on Yelp Review Case, September 02, 2016
Chris Dachniwsky Mentioned in Consumer Law & Policy Blog on Yelp Review Lawsuit, August 30, 2016
Nicole Williams Quoted in CBS 11 on Yelp Review Lawsuit, August 30, 2016
T&K Mentioned in AmLaw Litigation Daily on Yelp Review Lawsuit, August 30, 2016
T&K Mentioned in The Dallas Morning News on Yelp Review Lawsuit, August 30, 2016
T&K Obtains Dismissal in $1M Suit Against Plano Pet-Owners Over One-Star Yelp Review, August 30,
2016
122 T&K Attorneys Honored in The Best Lawyers in America 2017, August 25, 2016
T&K Partners Named to Benchmark Litigation Under 40 Hot List - 2016, August 09, 2016
Nicole Williams Quoted in The Hub on DISD Mock Trial, June 22, 2016
Nicole Williams Quoted in Texas Lawyer on Yelp Free Speech Case, June 14, 2016
Nicole Williams, Andrew Cookingham in The Dallas Morning News on Yelp Case, June 03, 2016
Nicole Williams Quoted in Texas Lawyer on Yelp Lawsuit, June 02, 2016
Nicole Williams, Andrew Cookingham, Chris Dachniwsky Mentioned in Public Citizen Consumer Law &
Policy Blog on Yelp Case, June 02, 2016
Nicole Williams, Andrew Cookingham, Chris Dachniwsky Mentioned in Public Citizen on Yelp Case, June
02, 2016
Nicole Williams, Andrew Cookingham, Chris Dachniwsky Mentioned in SE Texas Record on Yelp Case,
June 02, 2016
Nicole Williams Mentioned on CBS on Yelp Review Lawsuit, May 04, 2016
Nicole Williams Mentioned on Fire.Org on Free Speech Lawsuit, May 04, 2016
Catherine Clemons, Nicole Williams in The Dallas Morning News on Rainbow Days Luncheon, April 04,
2016
Nicole Williams Quoted in Time on Yelp Review Suit, February 20, 2016
Nicole Williams Interviewed on CBS on Yelp Reviews, February 18, 2016
T&K and Nicole Williams Honored by Rainbow Days with Promise Awards, February 17, 2016
Nicole Williams Mentioned in Texas Lawyer as Newsmaker of the Week, February 12, 2016
Nicole Williams Mentioned in Dallas Business Journal on Dallas Judicial Nomination Commission,
February 08, 2016
T&K Partner Appointed Member of Dallas Judicial Nomination Commission, January 26, 2016
84 T&K Attorneys Listed in Texas Super Lawyers 2015, September 08, 2015
124 T&K Attorneys Honored in The Best Lawyers in America 2016, August 18, 2015
Nicole Williams Interviewed on A.M. Best TV on Advertising Liability, May 19, 2015
T&K Partner Appointed Chair of the Dallas Bar Association Antitrust and Trade Regulation Section,
January 08, 2015
T&K Partner Appointed Co-Vice Chair of the Summer Law Intern Committee for the Dallas Bar
Association, December 02, 2014
93 T&K Attorneys Listed in Texas Super Lawyers 2014, September 05, 2014
T&K Partner Elected to Executive Board of Directors for Rainbow Days, August 29, 2014
T&K Featured in Texas Lawbook on Trial Academy, June 06, 2014
Twenty-Nine T&K Attorneys Listed in Texas Rising Stars 2014, March 07, 2014
T&K Partner Publishes Chapter on Advertising Law, September 24, 2013
T&K Establishes Legal Internship Pipeline Program for Dallas ISD Students, July 15, 2013
Thirty-Three T&K Attorneys Listed in Texas Rising Stars 2013, March 11, 2013

Patrick Bredehoft, Bryan Garner, Jessica Hammons, Geoff Long, Travis McNellie, and Nicole Williams
Mentioned in Texas Lawyer on New Positions, March 19, 2012
Twenty-Nine T&K Attorneys Listed in Texas Rising Stars 2012, March 09, 2012
T&K Names New Partners, February 16, 2012
Nine T&K Attorneys Included in D Magazine's "Best Lawyers Under 40" List, April 20, 2006
T&K Attorney Elected to Board of Directors, January 12, 2006
T&K Attorney Coaches Law School Moot Court Team to National Victory, June 09, 2005
T&K's 2003 New Associates, October 13, 2003

EDUCATION
J.D., 2003, with honors, Duke University School of Law; Law School Advocacy Award; Best Oralist, Best
Respondents Brief, and Finalist, Rendigs National Products Liability Competition; Journal of Law and
Contemporary Problems; Moot Court Board, Chair, Deans Cup Coordinator; Duke Bar Association
Community Service Board; President and Founder, Duke Law Drama Society
B.S., Chemical Engineering, 2000, cum laude, Auburn University; Golden Key National Honor Society;
Tau Beta Pi Engineering Honor Society; Tau Beta Pi Sophomore Engineer of the Year Award; Society of
Distinguished Collegians; Circle K International, Club Service Initiative Chair, District Service Initiative
Chair, District Lieutenant Governor, and District Secretary
ADMISSIONS
Texas, 2003
Arkansas Ct. of App., 2009
U.S. Ct. of App., Fifth Circuit, 2005
U.S. Ct. of App., Ninth Circuit, 2009
U.S. Dist. Ct., E. Dist. Texas, 2004
U.S. Dist. Ct., N. Dist. Texas, 2003
U.S. Dist. Ct., S. Dist. Texas, 2004
U.S. Dist. Ct., W. Dist. Texas, 2007
U.S. Supreme Ct., 2008

EXHIBIT 2B

CHRISTOPHER O. DACHNIWSKY
Associate, Thompson & Knight LLP
One Arts Plaza, 1722 Routh Street, Suite 1500, Dallas, TX 75201
214.969.1631, 214.999.1670
Chris.Dachniwsky@tklaw.com

RELATED PRACTICES
Trial; Oil, Gas, and Energy
RELATED INDUSTRIES
Oil, Gas, and Energy
PROFILE
Christopher Dachniwsky focuses his practice on litigation and dispute resolution.
PRIOR EXPERIENCE
Law Clerk, United States Attorneys Office, Eastern District of Brooklyn, 2015
Law Clerk, Queens County District Attorneys Office, 2014
ACTIVITIES (MEMBERSHIPS/AFFILIATIONS)
Member, State Bar of Texas
PUBS/PRESENTATIONS
"Lessons Learned from In re American Express Anti-Steering Rules Litigation," The Antitrust Lawyer,
Federal Bar Association, Winter 2015
"Recent Developments in Exposure Actions, and the Uncertain Future of Stigma Damages," Co-author,
State Bar of Texas 8th Annual Damages in Civil Litigation Conference, February 4, 2015
"Grade Crossing Safety: An Overview of the Statutory and Regulatory Framework in the United States,"
2014 Global Level Crossing Safety and Trespass Prevention Symposium, August 7-8, 2014
"Eyes in the Sky: FAA Regulation of Commercial Drone Usage," The Columbia Science and Technology
Law Review Blog, October 23, 2013
NEWS
Chris Dachniwsky Mentioned in TechDirt on Yelp Review Case, September 02, 2016
Chris Dachniwsky Mentioned in Consumer Law & Policy Blog on Yelp Review Lawsuit, August 30, 2016
Nicole Williams Quoted in CBS 11 on Yelp Review Lawsuit, August 30, 2016
T&K Mentioned in AmLaw Litigation Daily on Yelp Review Lawsuit, August 30, 2016
T&K Mentioned in The Dallas Morning News on Yelp Review Lawsuit, August 30, 2016
T&K Obtains Dismissal in $1M Suit Against Plano Pet-Owners Over One-Star Yelp Review, August 30,
2016

Nicole Williams, Andrew Cookingham in The Dallas Morning News on Yelp Case, June 03, 2016
Nicole Williams, Andrew Cookingham, Chris Dachniwsky Mentioned in Public Citizen Consumer Law &
Policy Blog on Yelp Case, June 02, 2016
Nicole Williams, Andrew Cookingham, Chris Dachniwsky Mentioned in Public Citizen on Yelp Case, June
02, 2016
Nicole Williams, Andrew Cookingham, Chris Dachniwsky Mentioned in SE Texas Record on Yelp Case,
June 02, 2016
Nicole Williams Mentioned on Fire.Org on Free Speech Lawsuit, May 04, 2016
New Associates, Greg Curry Mentioned in Texas Lawyer as Newsmakers of the Week, October 16, 2015
Dallas Associates Mentioned in Dallas Business Journal on Joining T&K, October 12, 2015
T&K Welcomes New Associates, October 05, 2015

EDUCATION
J.D., 2015, Columbia Law School; James Kent Scholar for Outstanding Academic Achievement; Science
and Technology Law Review, Articles Editor; Texas Society, President; CLS Soccer Club, President
B.A., 2012, magna cum laude, Texas A&M University; Deans List; Phi Alpha Theta
ADMISSIONS
Texas, 2015

EXHIBIT 2C

THOMPSON & KNIGHT

LLP

ATTORNEYS AND COUNSELORS


ONE ARTS PLAZA
1722 ROUTH STREET SUITE 1500
DALLAS, TEXAS 75201-2533
(214) 969-1700
FAX (214) 969-1751
tklaw.com

Robert Duchouquette
6428 Brandon Court
Plano, TX 75093

INVOICE SUMMARY
For Services Rendered Through September 15, 2016
Our Matter#

523891.000002
District Court - Kalle Mc Whorter and Prestigious Pets v.

Fees for Professional Services ......................................................................................................... $


39,409.65
Reimbursable Costs .......................................................................................................................... $
203.76
Net Current Billing For This Invoice ............................................................................................... $ _ _ _ _ _3_9~,_6_13_._4_1

AUSTIN J DALLAS I FORT WORTH J HOUSTON J LOS ANGELES J NEW YORK J ALGIERS J LONDON J MONTERREY J MEXICO CITY JPARIS

THOMPSON & KNIGHT

LLP

A TTOR NEYS AND COUNSELORS


ONE ARTS PLAZA
1722 ROUTH STREET SUITE 1500
DALLAS. TEXAS 7520 1- 2533
(21 4) 969-1700
FAX (2 14) 969- 1751
tklaw.com

Robert Duchouquette
6428 Brandon Court
Plano, TX 75093

Date

Name

Narrative

Hours

0510512016 Williams, N

05/09/2016 Cookingham, A

Review and revise -

1.00

05/20/2016 Cookingham, A

Revise

1.30

05/20/2016 Williams, N

Conference with A. Cookingham regarding

05/23/2016 Cookingham, A

Revise motion to dismiss

2.80

05/24/2016 Dachniwsky, C

Prepare anti-SLAPP motion

5.70

05/24/2016 Cookingham, A

Revise motion to dismiss

3.20

05/24/2016 Williams, N

Review and comment

05/25/2016 Dachniwsky, C

Prepare anti-SLAPP motion

05/25/2016 Cookingham, A

Additional revisions to

05/25/2016 Williams, N

Review and comment on

1.00

05/26/2016 Dachniwsky, C

Prepare anti-SLAPP motion

2.90

05/26/2016 Cookingham, A

Revise motion to dismiss

05/27/2016 Cookingham, A

Revise affidavits and

1.70

05/27/2016 Dachniwsky, C

Meet with the Duchouquettes to

1.80

0512712016 Williams, N

Meeting with client regarding-

.20

05/31/2016 Cookingham, A

Meeting to discuss -

.50

Strategize with N. Williams and A. Cookingham regarding

.50

R eview and revise

.50

Meeting to discuss

.10

05/31/2016 Dachniwsky, C
05/31/2016 Williams, N
0610l/2016 Cookingham, A

.50

Conferences regarding

.70

.40
2.40
.70

.50

06/01/2016 Dachniwsky, C

; prepare table of authorities

06/01/2016 Wllliams, N

3 .00

06/02/2016 Cookingham, A

.50

06/02/2016 Dachniwsky, C

AUSTIN

I DALLAS I FORT

3.20

Prepare and file


opposing counsel
WORTH

I HOUSTON I LOS ANGELES I NEW YORK I ALGIERS I LONDON I MONTERREY I M EXICO CITY

2 .20

!PARIS

THOMPSON & KNIGHT LLP

Our Matter#

Date

523 891.000002
District Court - Kalle Mc Whorter and Prestigious Pets v.

Name

Narrative

Hours

06/06/2016 Dachniwsky, C

Strategize with P. Levy regarding

06/07/2016 Dachniwsky, C

Strategize with A. Cookingham


(.6);

06/08/2016 Dachniwsky, C

Prepare

.40

0610912016 Dachniwsky, C

Set hearing and strategize with co-counsel

.70

06/10/2016 Dachniwsky, C

Prepare

.40

06/14/2016 Dachniwsky, C

Strategize regarding

06/15/2016 Williams, N

Strategy call with P. Levy

.60

06117/2016 Dachniwsky, C

Strategize with N. Williams about

.60

.30
1. 10

(.9)

.90

2.20

06/20/2016 Dachniwsky, C
06/22/2016 Williams, N

Review and revise


Dachniwsky

06/22/2016 Dachniwsky, C

Research (3 .5)

06/23/2016 Dachniwsky, C

Review and revise

strategy meeting with C.

.80
3.50

and

l.30
.50

06/23/2016 Williams, N
0612412016 Cookingham, A

2.50

06/24/2016 Williams, N

3.30

06/26/2016 Dachniwsky, C

2.20

06/26/2016 Cookingham, A

3.80

06/26/2016 Williams, N

Prepare for hearings on limited discovery motion

1.50

06/27/2016 Dachniwsky, C

Hearing on Plaintiffs motion for TCPA discovery (2.1 ); prepare (.7)

2.80

06/27/2016 Williams, N

Attend hearing in district court on limited discovery motion (2.3); review and
revise
(0.8)

3.10

06/27/2016 Cookingham, A

Meeting regarding-

.50

07/06/2016 Dachniwsky, C

Strategize regarding

.60

07/07/2016 Cookingham, A

Meet with C. Dachni~sky, N. Williams regarding-

.50

07/07/2016 Dachniwsky, C
07/08/2016 Dachniwsky, C
07/11/2016 Dachniwsky, C

AUSTIN

Prepare

1.30

Strategize about

1. 10

Negotiate wi~el regarding


documents to- -

; transmit

I DALLAS I FORT WORTH I HOUSTON f LOS ANGELES I NEW YORK I ALGIERS I LONDON I MONTERREY I MEXICO

CITY JPARIS

1.40

THOMPSON & KNIGHT LLP

Our Matter#

Date

523891.000002
District Court - Kalle McWhorter and Prestigious Pets v.

Name

07/12/2016 Cookingham, A
07112/2016 Dachniwsky, C

Narrative

Hours

call with l

Strategize

(.5); strategize with P.

07/13/2016 Cookingham, A

1.30
1.40
.40

5.10

-(2.4); prepare for-

07/13/2016 Dachniwsky, C
07/14/2016 Cookingham, A

Attend hearing on motion for admission pro hac vice

1.00

07/14/2016 Dachniwsky, C

~ (1.9); strategize with P. Levy regarding


- - - - (1.0)

2.90

07/18/2016 Dachniwsky, C

1.80

07/19/2016 Williams, N

1.00

07/19/2016 Dachnlwsky, C .

.80

07/20/2016 Cookingham, A

.90
1.50

07/20/2016 Williams, N

(.4); prepare
s, A. Cookingham,
( 1. 1); negotiate
(.4); prepare -

07120/2016 Dachniwsky, C

07/25/2016 Dachniwsky, C

6.20

(4.6); prepare -

07/26/2016 Cookingham, A
07/26/2016 Dachniwsky, C

5.40

1.10
Prepare
Levy about

(2.2); strategize with P.


(.8); strategize with A. Cookingham about

4.40

(.4)

07/27/2016 Dachniwsky, C

2.00

07/28/2016 Dachniwsky, C

4.40

07/29/2016 Cookingham, A

Hearing on

1.90

07/29/2016 Williams, N

Attend hearing on TCPA motion to dismiss

1.80

07/2912016 Dachniwsky, C

Prepare for and attend motion to dismiss hearing

2.90

08/30/2016 Dachniwsky, C

Communication with
with A. Cookingham and P. Leyy abou
0.8)

1.20

AUSTIN

I DALLAS I FORT WORTH I HOUSTON I LOS ANGELES I NEW YORK I ALGIERS I LONDON I MONTERREY I MEXICO

CITY !PARIS

THOMPSON & KNIGHT LLP

Our Matter#

Date

S23891.000002
District Court - Kalle McWhorter and Prestigious Pets v.

Name

08/30/2016 Cookingham, A

Narrative

Hours

Review and analyze


with -

; telephone conference

09/07/2016 Dachniwsky, C

.80

(O.S); Review

1.30

.so

09/07/2016 Williams, N

Communications regarding

09/08/2016 Dachniwsky, C

Confor with R . and M. Duchouquette


strategize with A. Cookingham regarding
(1.4)

1.90

09/09/2016 Dachniwsky, C

2.70

.0910912016 Cookingham, A

3.90

09/10/2016 Dachniwsky, C

2.80

; review and revise.

09/12/2016 Cookingham, A

Telephone conference with-

09/12/2016 Dachniwsky, C

Prepare
Cookin

09/13/2016 Cookingham, A

Revise fee application

09/ 14/2016 Williams, N

Review and revise

.60
2.60

(0.6); Strategize with A.


(O.S); Review and revise .
call with A. Cookingham (O.S); Prepare
(O.S)

.80
1.10

.so

09/14/201 6 Cookingham, A

Fees for Profess~onal Services ........................................ :................................................................$

39,409.65

Summarx of Pees
Name

Title

Hours

Nicole Williams

Partner

22.00

S3 l.OO

11,682.00

Andrew Cookingham

Associate

32.80

.00

.00

Chris Dachniwsky

Associate

89.30

310.50

27,727.6S

39,409.6S

144.10

Total

Rate/Hr

Amount

Reimbursable Costs
Desciiption

Amount

Electronic Research

$140.54

Local Courier Charg'es' - - - - - - - - - - - - - - - - - - - - - - - - - - - - =


$3=--6"-'.2=2= ----07/ 14/2016 Travel Parking for Chris Dachniwsky- Parking at the George Allen Courthouse for a hearing
$7.00
on the Pro Bono Case 888888.001423 .
AUSTIN

I DALLAS I FORT WORTH I HOUSTON I LOS ANGELES I NEW YORK I ALGIERS I LONDON I MONTERREY I MEXICO

CITY !PARI S

THOMPSON & KNIGHT LLP

Our Matter#

I " I ...

523891.000002
District Court - Kalle McWhorter and Prestigious Pets v.
Reimbursable Costs

Date

Description

Amount

07/29/2016

Travel Parking for Nicole Williams - Parking regarding attendance at Motion to Dismiss
hearing in Dallas, TX

$10.00

0712912016

Travel Parking for Chris Dachniwsky - Parking at George Allen Courthouse for Pro Bono
Case [P .Pets] Hearing

$10.00

Total Reimbursable Costs ................................................................................................................ $

Total Current Fees and Costs for this Invoice .................................................................................. $

203.76

~~~~~~~~-

39,613.41

~~~~~~~~-

AUSTIN I DALLAS I FORT WORTH I HOUSTON I LOS ANGELES I NEW YORK I ALGIERS I LONDON I MONTERREY I MEXICO CITY IPARIS

THOMPSON & KNIGHT

LLP

ATTORNEYS AND COUNSELORS


ONE ARTS PLAZA
1722 ROUTH STREET SUITE 1500
DALLAS, TEXAS 75201-2533
(214) 969-1700
FAX (214) 969-1751
tklaw.com

Robert Duchouquette
6428 Brandon Court
Plano, TX 75093

REMITTANCE COPY
For Services Rendered Through September 15, 2016
Our Matter#

523891.000002
District Court - Kalle McWhorter and Prestigious Pets v.

39,409.65
Fees for Professional Services ................................................... :..................................................... $
Reimbursable Costs .......................................................................................................................... $
203.76
Net Current Billing For This Invoice ............................................................................................... $ _ _ _ _ _3~9,~6_13_._4_1

Please remit payment within fifteen (15) days to

Wiring Instructions for Thompson & Knight LLP

Receiving Bank:

Amegy Bank of Texas


4400 Post Oak Parkway
Houston, TX 77027

Beneficiary Account Name:


Beneficiary Address:

Thompson & Knight LLP


One Arts Plaza
1722 Routh St Ste 1500
Dallas, Texas 75201

ABA Routing No.


Account No.:
SWIFT:
Please reference client/matter name and number, attorney name, invoice number, etc.
Thank you for informing us of the date of transaction by/axle-mail

Mailing Instructions for Thompson & Knight LLP


P.O. Box 660684, Dallas, TX 75266-0684
To ensure proper credit please return this copy with your remittance.

AUSTIN I DALLAS I FORT WORTH I HOUSTON I LOS ANGELES I NEW YORK I ALGIERS I LONDON I MONTERREY I MEXICO CITY IPARIS

EXHIBIT 2D

T HOMPSON & K NIGHT

LLP

ATTORNEYS AND COUNSELORS

NICOLE WILLIAMS
DIRECT DIAL: (214) 969-1149
EMAIL: Nicole.Williams@tklaw.com

ONE ARTS PLAZA


1722 ROUTH STREET SUITE 1500
DALLAS, TEXAS 75201
214.969.1700
FAX 214.969.1751
www.tkla w.co m

AUSTIN
DALLAS
FORT W ORTH
HOUSTON
LOS ANG ELES
NEW YORK

-----------------------------

ALGIERS
LONDON
MONTERREY
PARI S

September 9, 2016
Robert Duchouquette
Michelle Duchouquette
6428 Brandon Court
Plano, Texas 75093
RE:

Thompson & Knight LLP Engagement Letter For Lawsuit Brought by Prestigious
Pets, LLC and Kallie McWhorter

Dear Mr. and Mrs. Duchouquette:


Thank you for giving Thompson & Knight LLP (Thompson & Knight or the Firm)
an opportunity to represent you. We believe that a successful professional relationship begins
with a mutual understanding of expectations about the services we will provide, legal fees, and
other important aspects of our representation.
This letter will confirm our mutual understandings and agreements regarding the Firms
ongoing provision of legal services (which began in May 2016) to Robert Duchouquette and
Michelle Duchouquette (collectively, the Client) in connection with the matters described in
this letter. Our Firm encourages open and candid communications with clients. Please let me
know as soon as possible if you have questions about this letter or if you are concerned about any
aspect of the representation.
Description and Scope of Services; Identification of Client
In May 2016, Thompson & Knight was retained to represent Client in the lawsuits
captioned Prestigious Pets, LLC et al. v. Robert Duchouquette et al., No. DC-16-03561 (Dallas
County District Court), Prestigious Pets LLC v. Robert Duchouquette et al., No. CC-16-02381-C
(Dallas County Court at Law No. 3), and related litigation regarding allegedly defamatory
reviews posted on internet websites (the Legal Representation). Client is our only client in this
matter, and we want to clarify that Thompson & Knight does not represent any other person or
entity.
The Firm shall not be obligated, as part of the Legal Representation under this
Agreement, to prosecute any appeal from a favorable judgment or an adverse judgment of a trial
court. If Client wishes to retain the Firm to provide any legal services in regard to an appeal, a
separate written agreement between Client and the Firm will be required.
Except as covered by a separate engagement letter or subsequent written modification to
this letter, our representation is limited to this Legal Representation, and the Firm has not been
retained to represent you generally or in connection with any other matter.

September 9, 2016
Page 2
The Firm understands that we are to perform all reasonable services and take all such
action as may be appropriate and necessary in our professional discretion to further your
interests.
It is understood that the Firm is being retained to provide legal services and that we are
not responsible for providing business or financial advice to you.
Public Citizen Litigation Group
The Firm and Client understand that Client is also being represented in the Legal
Representation by Mr. Paul Alan Levy of Public Citizen Litigation Group. The Firm further
understands that Public Citizen Litigation Groups representation of Client is subject to a
separate written agreement. The parties agree that no provision of this Agreement shall be
construed to alter the scope of the agreement between Client and Public Citizen Litigation
Group, nor shall the Firms representation be subject to any provision of the agreement between
Client and Public Citizen Litigation Group.
Information and Documents
To enable the Firm to provide effective legal services in this matter, it is essential that
you agree to disclose to us fully and accurately all material facts pertaining to this matter, and to
keep us informed of all developments related to this matter.
The Firm will send copies of correspondence, pleadings, and other significant documents
or materials related to this matter to the attention of Mr. Paul Alan Levy, Mr. Robert
Duchouquette, and Mrs. Michelle Duchouquette, unless you request that these communications
be sent to another Client representative.
Attorneys Handling Your Representation
Myself, Andrew Cookingham, and Christopher Dachniwsky will be the primary attorneys
handling this matter. Other attorneys in the Firm may also work on this matter as we deem
advisable. The Firm also uses paralegals in providing professional services when we believe that
their use will reduce legal costs and improve efficiency.
Legal Fees and Costs
Thompson & Knights charges for services are based on the Firms regular hourly rates.
My current hourly rate for work is $590/hour but I will discount it to $531/hour. Andrew
Cookinghams hourly rate for this matter is $500/hour. Christopher Dachniwskys hourly rate
for this matter is $310.50/hour.
For purposes of this Agreement, Attorneys Fee Award shall refer to any attorneys
fees or mandatory sanctions awarded to the Client by any court relating to the Legal
Page 2 of 7

September 9, 2016
Page 3
Representation, including but not limited to attorneys fees or sanctions awarded under Chapter
27 of the Texas Civil Practice and Remedies Code.
In consideration for the legal fees incurred by the Firm pursuant to the Legal
Representation, the Duchouquettes agree that any Attorneys Fee Award shall be distributed in
the following order of priority:
1.
The first $10,200 shall be distributed to the Duchouquettes in satisfaction of
attorneys fees previously paid to the law firm of Carrington Coleman Sloman & Blumenthal;
2.
To Thompson & Knight and Public Citizen Litigation Group on a pro rata basis
until their respective attorneys fees attributable to the Legal Representation at the hourly rates
set forth above and in Public Citizen Litigation Groups engagement letter have been paid; and
3.

To the Duchouquettes.

Thompson & Knight is expressly authorized to seek attorneys fees and costs as may be
allowed by law. Alternatively, in the event that no Attorneys Fee Award is allowed, but a
sanction or any other penalty or amount is recovered by the Client, Thompson & Knight shall be
entitled to payment of its attorneys fees and costs from the sanction or penalty on the same basis
as set forth above.
Costs and Expenses
The Firm charges for out-of-pocket costs and expenses incurred in representing you.
These costs and expenses include, but are not limited to, filing fees, travel expenses,
reprographics including photocopies, facsimile charges, CDs, DVDs, postage, overnight, special
delivery or special courier charges, long distance telephone calls, court reporter costs, deposition
fees and expert witness fees, and charges for the Firms access to and use of any electronic
research services on your behalf. The Firm will not retain any expert witness without prior
consultation with you.
Most of these costs and expenses will be included in statements to you. However, the
Firm may forward certain invoices to you for direct payment. Invoices typically forwarded to
the client for direct payment include charges of third-party vendors, such as outside reprographic
services, court reporter charges, deposition fees, expert witness fees, and filing service fees. If
out-of-pocket expenses are significant, the Firm may require an expense deposit from you to be
held in a designated account for payment of expenses.
Any costs or expenses (not including attorneys fees) awarded by any court relating to the
Legal Representation (the Cost Award) shall be used to reimburse the Firm for any
unreimbursed expenses incurred in the Legal Representation. Any remaining Cost Award after
the Firm has been reimbursed for all unreimbursed expenses shall be paid to the Client.
Payment of Expenses
Page 3 of 7

September 9, 2016
Page 4

Thompson & Knights statements for expenses are due upon receipt, and we expect that
our statements will be paid no later than net 30 days. By entering into this representation
agreement, you agree to timely payment of the Firms invoices for expenses related to the
representation.
Conflicts
You should be aware that the Firm represents many other companies and individuals. It
is possible that during the time the Firm is representing you, some of our present or future clients
will have disputes or transactions with you. By entering into this engagement letter, you agree
that Thompson & Knight may continue to represent, or may undertake in the future to represent,
existing or new clients in any matter that is not substantially related to our work for you even if
the interests of such clients in those other matters are directly adverse.
Withdrawal or Termination
Since Thompson & Knight will be providing professional services, our relationship may
be terminated by either of us at any time for any reason, by written notice to the other party.
For example, Thompson & Knight may withdraw from our representation if you should
fail to honor the terms of this engagement letter, fail to cooperate or follow our advice on a
material matter, or if any fact or circumstance would, in our view, render our continuing
representation unlawful, unethical, or ineffective. By way of further example, the Firm may
withdraw in the event a motion or similar pleading seeking dismissal under Chapter 27 of the
Texas Civil Practice and Remedies Code is denied and that denial is upheld on interlocutory
appeal. If the Firm withdraws from further representation, or you terminate the relationship, you
and the Firm jointly agree to take necessary steps, including signing of documents such as
pleadings consenting to substitution of counsel.
Expenses and other charges accrued on your behalf up to the date of termination by either
the Firm or the client will be payable under the payment terms of this agreement.
Conclusion of Representation; Disposition of Files and Documents
Unless previously terminated, Thompson & Knights representation of you in this matter
will terminate when we send the final statement for services rendered in connection with this
matter. Thompson & Knight will retain documents you furnish to us in our client files for this
matter. Please maintain your own copies of documents you furnish to us.
At the conclusion of this matter (or earlier if appropriate), please advise the Firm as to
which, if any, documents you wish us to return to you. Thompson & Knight may also keep
copies for our records. The Firm will retain or dispose of any remaining documents or other
materials in accordance with the Firms record retention policy then in effect.
Page 4 of 7

September 9, 2016
Page 5
Post-Engagement Matters
You are engaging the Firm to provide legal services in connection with the specific legal
dispute identified on page 1 of this letter. After completion of the matter, changes may occur in
the applicable laws or regulations that could have an impact upon your future rights and
liabilities. Unless you engage us to provide additional advice on issues arising from the matter,
the Firm will have no continuing obligation to advise you with respect to future legal
developments. Further, unless you and the Firm agree in writing to the contrary, Thompson &
Knight will not monitor renewal or notice dates or other deadlines for this matter following the
termination or completion of this engagement.
Guarantee Disclaimer
It is important that you understand and accept that the Firm cannot make and has not
made any guarantee regarding the outcome of this representation. Since there are inherent risks
in the litigation process and lawsuits are subject to unforeseen circumstances, the Firm does not
guarantee the outcome or results of any litigation. Nothing in this agreement and no statements
by Thompson & Knight staff or attorneys constitutes a promise as to results, or a guarantee. Any
statements by the Firm about the outcome of litigation or other legal proceeding are expressions
of opinion only.
Grievances
The State Bar of Texas investigates and prosecutes professional misconduct by Texas
attorneys. Although not every complaint against or dispute with an attorney involves
professional misconduct, the Office of General Counsel of the State Bar of Texas will provide
you with information about how to file a complaint. For more information, please call 1-800932-1900.
Miscellaneous Provisions
This agreement supersedes all prior oral or written agreements regarding Thompson &
Knights representation of you. This agreement can be amended or modified only by a writing
signed by you and the Firm.
This agreement shall be binding upon you and the Firm, and our respective heirs,
executors, legal representatives, successors and assigns.
Nothing in this agreement is intended or shall be construed as impermissibly waiving or
limiting the Firms or its attorneys professional obligations to you or to the profession under the
Disciplinary Rules of Professional Conduct adopted by the State Bar of Texas or other law,
including the Sarbanes-Oxley Act of 2002.
Because of our ethical obligations to our clients, it would not be appropriate for the Firm
to advise you on whether to agree to the terms of this agreement. You should make that decision
Page 5 of 7

September 9, 2016
Page 6
independently. If you have legal questions about this agreement or the role of Thompson &
Knight in representing you, you may review those questions with another attorney. Your
acceptance of the terms of this agreement will confirm that you have made that decision
independently and that you understand your option to review its terms with other counsel of your
choosing.
Conclusion
Once again, Thompson & Knight is pleased to have this opportunity to work with you.
Please contact me as soon as possible if this agreement does not accurately reflect your
understanding of the terms of our engagement. Corrections or changes must be in writing and
initialed by you and by the Firm. Otherwise, please sign and return a copy of this agreement to
me at your earliest convenience. In the event you do not sign and return a copy of this agreement
and you have not objected to the terms of this agreement within 30 days of the date on page one,
we shall assume that you do not object to any of the terms of this agreement.
Sincerely,
THOMPSON & KNIGHT LLP
By:

/s/ Nicole L. Williams


Nicole L. Williams
Partner

The undersigned has read and understood this agreement. The agreement accurately sets
forth all of the terms of the engagement, and is approved and accepted as of the date on page
one.

Page 6 of 7

September 9, 2016

Page7

ROBERT DUCHOUQUETIE

MICHELLE DUCHOUQUETTE

By:

~{ b..cJ\ctitj I iLt(

Date:

9rl?Jo/I I(.o

Page7 of7

EXHIBIT 3

~ARRINGTON

COLEMAN

Monica W

Latin
Partnrr

214 855 3075


mlatin@ccsb . com

March 14, 2016

Via Email and U.S. Mail


Robert and Michelle Duchouquctte
6428 Brandon Ct.
Plano, TX 75093

Re:

Cause No. JSl 5-00559, in the Justice of the Peace, Precinct l, Place 1,
Prestigious Pets v. Michelle Duchouquette

Dear Robert and Michelle:


Enclosed is our invoice through February 29, 2016. Please let me know if you
have any questions.

Yours truly,

v(f/!lN~
Monica W. Latin
MWUm1k
1ndosu~

www.ccsb.com

Carrington Coleman. Sloman & Htumcn1nat, L.l.P


fax. 2111.855. 1333

901 Main Sl rt> e l. Suite 5!>00 Dallas. Texas /!3?02

~ARRINGTON

COLEMAN

Carrington, Coleman, S1ombn & Bl urne'-thal, L.L.P. 901 M e in Street . Suite SSOO Dall ~.$. Texas 7 5202 214.SSS.3 000 ( bx: 214 .855 . 1 333

Attorneys at law
rax ID 75-1 315313
Emai l: ccsb@ccsb.com

March 14, 2016

Bill#: Page 1

TO:

Robert and Michelle Duchouquette


6428 Brandon Ct.
Plano, TX 75093
029139 Duchouquette, Robert and Michelle
0001

Prestigious Pets

Professional services rendered through 02/29/16:


Fees
LESS Fee Discount

$
$

5,325.00
-530.00

Total Fees
Total Disbursements

$
$

4,795.00
13.47

TOTAL FEES AND DISBURSEMENTS

4,808.47

TOTAL AMOUNT DUE

4,808.47

Total Amount Due By April 4, 2016

((:,ARRINQTON COLEMAN
Carri ngton,

Co l em~n.

S lo ma n &

Bl um~nthal,

L.L. P. 9-01 M.,in Street . Suite 5500 Cllo>. Tca 75202 2 J 4 .855. 3000 '"" 214 8 5 5. 1333

Attorneys .at Law


Tax 10 #75-1315313
mail: ccsb&ccs b _c-om

03/14/16

Bill Number: Page 2


DETAIL OF PROFESSIONAL SERVICES RENDERED

DATE

DESCRIPTION OF SERVICES

TKPR

02/05/16

Calls with Monica Latin and Robert Duchouquette regarding

AM

1.00

02/06/16

Research regarding
; drafted

AM

2.00

02/07/16

Research regarding
; drafted

AM

3.00

02/08/16

Drafted
Robert and Michelle Duchouquette;

AM

7.00

02/18/16

Calls with Robert and Michelle Duchouquette regarding


.(No Charge .50)

AM

0.00

AM

0.70

02122116

TOTAL

; meeting with
iled .

HOURS

13.70

((:,ARRINQTON COLEMAN
C3rring1on. Colemn. Slomn & B l umenth ol . L. L.P. 901 M oin Stree1. Suite

~500

O.llas, Ted> 7 5::!02 2 l 4 .8 5S..3000 fa>: 214 .855 1333

Att<>1n e)'S at ._..,


Tax ID '7 5-1315 313
E~il: ccs~ub.com

03/14/16

Bill Number: Page 3


DESCRIPTION OF EXPENSES

DISBURSEMENT SUMMARY
DESCRIPTION
Special postage:

AMOUNT
TOTAL DISBURSEMENTS

13.47
$13.47

DISBURSEMENT DETACL
DATE

DESCRIPTION

02/19/16

Special postage:

AMOUNT

TOTAl DISBURSEMENTS

13.47
$13.47

~ARRINGTON

COLEMA N

Monica W . Latin
Par tner

214 . 855 . 30 7 5

mlatin@ccsb.com

April 8, 2016

Via Email and U.S. Mail


Robert and Michelle Duchouquette
6428 Brandon Ct.
Plano, TX 75093

Re:

Cause No. JS15-00559, in the Justice of the Peace, Precinct 1, Place I ;


Prestigious Pets v. Michelle Duchouquette

Dear Robert and Michelle:


Enclosed is our invoice through March 31, 2016. Please let me know if you have
any questions.
Yours truly,

wz~
Monica W. Latin

MWl./mtk
Enclosure

www.ccsb . com

901 Ma i n Stree t , Su i t e !>!:J OO

Carrington , Coleman, Sloman & Btu men tt1 al, L. L. P.


Da l l as , Texas 7520? f<lx: 2 14 . 8 5~>. 1333

((?,ARRINGITON COLEMAN
Carrington. Coleman, Sloman & Blumenthal, L.L.P. 901 Main Street. Suite 5500 Dallas, Texas 75202 214.855.3000 fax: 214.855,1333

Attorneys <1t Law


Tax ID #75-1315313
EmiSil: c;c;$b4ih:c:sb.c;om

April 7, 2016
TO:
Robert and Michelle Duchouquette
6428 Brandon Ct.
Plano, TX 75093

Bill#: Page 1

029139 Duchouquette, Robert and Michelle


0001 Prestigious Pets

Professional services rendered through 03/31 /16:


Fees
LESS Fee Discount

$
$

3,912.50
-832.50

3,080.00
0.00

3,080.00

TOTAL PREVIOUS UNPAID BALANCE

4,808.47

TOTAL AMOUNT DUE

7,888.47

Total Fees
Total Disbursements
TOTAL FEES AND DISBURSEMENTS
Previous Unpaid Balance:
Bill#: 325349
03/14/16

4,808.47

Total Amount Due By April 28, 2016

~ARRINGITON

COLEMAN

Carrin&l"n Coleman. Slom3n & B lumenthal, l . L. P. 901 M ain Sttcet. Suite 5500 Da llas. Tens 75202 21 4 855. 3000 fax: 214 .855 .1333

Attc<ncys at

Law

Tax ID 75-1315313
Email:

~<; .$b@-c;c:5b.~om

04/07/16

Bill Number: Page 2


DETAIL OF PROFESSIONAL SERVICES RENDERED

DATE

DESCRIPTION OF SERVICES

TKPR

03/10/16

Call with counsel for Prestigious Pets, correspondence with


clients.

AM

0.30

03/16/16

Correspondence with opposing counsel regarding -

AM

0.30

03/22/16

Call with opposing counsel regarding


correspondence with Monica Latin and the Ouchouquettes
regarding .

AM

0.30

03/23/16

Call with Paul Levy regarding -

AM

0.40

AM

1.40

03/23/16

HOURS

03/24/16

Telephone conference with client.

MWL

1.00

03/28/16

Call with Bill Richmond regarding


; call with Robert Duchouquette regarding
; discussed with Monica Latin;
correspondence with Paul Levy regardin

AM

2.00

03/28/16

Correspondence from opposing counsel. Analysis and planning.

MWL

0.50

03/29/16

Correspondence with Robert Duchouquette and Paul Levy


regarding
: discussed with Monica Latin .

AM

0.50

03/30/16

Calls and correspondence with Paul Levy and JP court regarding

AM

0.60

03131/16

Call with Paul Levy regardin


JP court clerk regarding

AM

3.00

TOTAL

10.30

( / c ARR IN QTO N

COLE M A N

M onica W . Latin
Partne r
214 655 . 3075

m l at i n@ccs b. c om

May 5, 2016

Via Email. and U.S. Mail


Robert and Michelle Duchouquette
6428 B randon Ct.
Plano, TX 75093

Re:

Cause No. JSlS-00559, in the Justice of the Peace, Precinct 1, Place l ;


Prestigious Pets v. Mich elle Duchouquette

Dear Robert and Michelle:

Enclosed is our invoice through April 30, 2016. Please let me know if you have
any questions.
Yours truly,

1Jl11WA_'
Moruca W. Latin

MWL/mtk
Enclosure

www.ccsb.com

9 0 1 Mai n Stree t. Suite 55 0 0

Carrir)gton, Coleman, Sloma n .~ Blu me ntha l. L.L. P.


Da ll<Js , Tex as 75 20 2 fa x : 2 14 .8 55. Ll33

~ARRINGTON

COLEMAN

Carringt11n. Coleman. Sloman & Bl ur.i~nthal. LLP. 901 Main Strtel. Suite 5500 Dallas, Tera.s 75202 2 14.855. 3000 fax: 21 4.8551333

Attorn~ys 3 t

Law

Tax ID '75- 1315313


Email: c;c5bOc.;.-$b.com

May 4, 2016
TO:

Bill#: Page 1

Robert and Michelle Ouchouquette


6428 Brandon Ct.
Plano. TX 75093

029139 Ouchouquette, Robert and Michelle


0001 Prestigious Pets

Professional services rendered through 04/30/16:


$
$

1,71 5.00
530.00

2,245.00

TOTAL PREVIOUS UNPAID BALANCE

3,888.47

TOTAL AMOUNT DUE

6,133.47

Total Fees
Total Disbursements
TOTAL FEES AND DISBURSEMENTS
Previous Unpaid Balance:
Bill#: 325349
03/14/16
Bill#: 325920
04/07/16

$
$

808.47
3,080.00

Total Amount Due By May 25, 2016

((;,ARRINGTON COLEMAN
C:atrington.

A 1101n~ys

Cole~n .

Slom3n & Bl u....,ntha l, LLP. 901 i1ain

Stte~t.

Suite 5500 Dallas. Te-as 75202 214 8 55.3000 fax: 214.855 1333

at Law

Tax 10 75-1315313
Em11il: c.csb@ecsb.C11m

05/04/16

Bill Number: Page 2


DESCRIPTION OF PROFESSIONAL SERVICES

DATE

DESCRIPTION OF SERVICES

TKPR

04/01/16

Call with clients regarding

AM

0.30

04/04/16

Correspondence with Robert Duchouquette regarding


correspondence with Paul Levy regarding

AM

0.30

04/11/16

Reviewed and provided comments on

AM

1.40

AM

0.50

Correspondence with Paul Levy and Robert and Michelle


regarding . drafted letter to

AM

0.50

Conference with JP Court Clerks regarding ~

AM

1.80

AM

0 .10

04/12/16

04/13/16

04/14/16

, correspondence with Paul Levy and

HOURS

(1 .5); correspondence with Paul Levy regar~


. .(0.3)
04/25/16

Reviewed correspondence from County Clerk: correspondence


with client regarding TOTAL

4.90

~ARRINGTON

CO LEM AN

Carrington, Cot.,man, S tom;) n & Bl umenthal, L L.P. 901 Main Street. Sui te 5500 Dallas, Teta$ 7S202 21 4 ,855.3000 fax: 214 ll55 .l333

Attorneys at La11rt

Tax 10 f'75-l31 5313


Erneil: cc;:,b0c;G.sb.c:om

05/04/16

Bill Number: Page 3


DESCRIPTION OF EXPENSES

DISBURSEMENT SUMMARY
DESCRIPTION
Court costs/filing/service/record fees:

TOTAL DISBURSEMENTS

AMOUNT
530.00
$530.00

DISBURSEMENT DETA1L
DATE

DESCRIPTION

04/14/16

Court costs/filing/service/record fees: VENDOR: Alex More;


INVOICE#: 4-14-16; DATE: 4/14/2016
Cost for appeal bond

AMOUNT

TOTAL DISBURSEMENTS

530.00

$530.00

~ARRINGTON

COLEMAN

Monica

w.

Latin

214 855 . 3075

m1a t in@ccsb.com

June 9, 2016

Via Email and U.S. Mail


Robert and Michelle Duchouquette
6428 Brandon Ct.
Plano, TX 75093
Re:

Cause No. JS 15-00559, in the Justice of the Peace, Precinct 1, Place l;


Prestigious Pets v. Michelle Duchouquette

Dear Robert and Michelle:


Enclosed is our invoice through May 31, 2016, for the County Court filing fee we
advanced. Please let me know if you have any questions.
Yours truly,

{11.~t::n
MWUmtk
Enclosure

www.ccsb.com

fl(ll M;;i11 Sl r <?et . Sui t e 5500

Carri ng ton . Colema n , Siu rnD 11 & Blumenthal, l.L.P.


Dallas Tex<J s 7520 2 rax : ?14.855 . 1333

~ARRINCTON
C~rring1qn,

COLEMAN

CQlem.,n, S loma & Blumenthal , l .l.P. 901 Min $treet , Suile !i500 Da llas. Te>a$ 75202 214 .655.3000 fax: 214.855.1333

Attorneys at Law
Tai 10 175-1 315313
Email: cesbfkc.sb.com

June 8, 2016
TO:
Robert and Michelle Duchouquette
6428 Brandon Ct.
Plano, TX 75093

Bill#: Page 1

029139 Duchouquette, Robert and Michelle


0001 Prestigious Pets

Professional services rendered through 05/31/16:


Total Fees
Total Disbursements

$
$

282.00

282.00

TOTAL PREVIOUS UNPAID BALANCE

3,000.00

TOTAL AMOUNT DUE

3,282.00

TOTAL FEES AND DISBURSEMENTS

0.00

Previous Unpaid Balance:


Bill#: 325920
Bill#'. 326424

04/07/16
05/04116

755.00
2,245.00

Total Amount Due By June 29, 2016

(/j,ARRINGTON COLEMAN
Calfiogton . Coleman , S loma o & Blumenthal . L.L .P. 901 Main Stree t. Suite 5500 Dallas.

Attorneys

~t

Tea~

7 5202 214. 8 55. 3000 fax: 214.855 . 1333

Uw

Tax ID #75-131 5313


Email: sbOccsb.com

06/08/16

Bill Number: Page2

DESCRIPTION OF EXPENSES

DISBURSEMENT SUMMARY
AMOUNT

DESCRIPTION

Court costs/filing/service/record fees:


TOTAL DISBURSEMENTS

282.00
$282.00

DISBURSEMENT DETAIL

AMOUNT

DATE

DESCRIPTION

05/04/16

Court costs/filing/service/record fees: VENDOR: Alex More;


INVOICE#: 5-4-16; DATE: 5/4/2016
County clerk filing fee
TOTAL DISBURSEMENTS

282.00

$282.00

EXHIBIT 4

CAUSE NO. DC-16-03561


KALLE MCWHORTER and
PRESTIGIOUS PETS, LLC,
PLAINTIFFS,

v.
ROBERT DUCHOUQUETTE and
MICHELLEDUCHOUQUETTE
DEFENDANTS.

IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

160th JUDICIAL DISTRICT

AFFIDAVIT OF MATTHEW CHAN

STATE OF GEORGIA
COUNTY OF MUSCOGEE
I declare the following is true and correct under penalty of perjury.
1. My name is Matthew Chan. I am over the age of twenty-one (21) years old, suffer from
no legal or mental disabilities, and am fully competent to make this Affidavit.
2. I primarily reside in Columbus, Georgia in Muscogee County. I work as a property
manager and landlord in the area Additionally, I operate and manage my own websites
and online discussion forums . I occasionally report news and write commentaries. I am
also an author and publisher of business books and audio programs.
3. On March 25, 2016, I received an email from someone claiming to be a "representative of
Prestigious Pets LLC" using the email address prestigiouspetsdallas@yahoo.com.The
email claimed that I had written "defamatory and negative statements that violate(d) a

contract between a party and Prestigious Pets LLC" with a stem order to "Please remove
the story promptly." (Attached)
4. I took that message as a reference to the one article I wrote on February 20, 2016 about
the Prestigious Pets lawsuit on my news commentary website, Defiantly.net, titled
"Prestigious Pets Stupidly Sues Customer for Negative Yelp Feedback".
5. My article included my negative opinion of Prestigious Pets decision to file a lawsuit
against a customer who wrote an unfavorable review about them. My article also
included an embedded CBS Dallas video news story of the Prestigious Pets lawsuit and
named the lawyer that issued the initial cease-and-desist letter on behalf of Prestigious
Pets.
6. I interpreted the terse and precise language used in this email as a threat to file a lawsuit
against me for libel and for violating the contract clause that was cited in the email. It was
written in a manner meant to intimidate me into removing the article I wrote about the
Prestigious Pets lawsuit, to avoid being sued myself.

This 12th day of September, 2016.

Matthew Chan

http://de iantly.net

1 of 1

Subject:h p://deantly.net
From:Pres giousPets<pres giouspetsdallas@yahoo.com>
Date:3/25/20165:15PM
To:"ma 30060@gmail.com"<ma 30060@gmail.com>
I am a representative of Prestigious Pets LLC. Your company has published a story regarding Prestigious
Pets, LLC that contains defamatory statements and negative statements that violate a contract between a
party and Prestigious Pets LLC. Please remove the story promptly.

Intrepid Defiantly
P.O. Box 6391
Columbus, GA 31917
Thank you!
Prestigious Pets, LLC
214-912-7799
Reg Office Hours:
M-F 9am-4pm
Sat 11am-3pm
Sun Closed
The contents of this e-mail message and any attachments are confidential and are intended solely for
addressee. They may not be copied, distributed, forwarded or reproduced. The information may also be
legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient.
If you have received this transmission in error, any use, reproduction or dissemination of this transmission is
strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail
or phone and delete this message and its attachments, if any.

9/8/2016 2:16 PM

EXHIBIT 5

Justice of the Peace Pr.ecinct 1-1

'7201 S. POLK
Dalles, TX 75232

FOR COURT ll~F

oJ.LS _::=7' !=

CASE NO.

,, J

~ ~Ov

PRECINCT /COUNTY~

972.228.0280

PETITION: SMALL CLAIMS CASE


In the Justice Court, Precinct 1 Place 1, Dallas County, TeJ<as
PLAINTIFF:_

~_r_t._>_t-:=it)+-' " "'o-"-v. .: . .s___.:..P_r


t . ;s_....:L~l__,C
._
=-----------------

vs.

_;_tvt.
-. .:. .5'---i.L.-tA.-~_;__::~~V\-!.-t:\..J....-.. . V::.__11..V'
\_ --=--~t/~Ct:.:. . i. f._"l=---------------

OEFENDANT!S):,,__.

( o~t

:t

RELIEF: Plaintiff seeks damages in the amount of$--~--


specffic) :._ _ _ _ _ _ _ _ _ __ _ fl----,r---__.
Additionally, platm;iff seeks the<iollowing:
0
Lu

C...}

~ ~~-?-.

::=
tH#
SERV1Cf PE CIT-5i10N : Servi~e~ requested on defendants by personal service at home or work or by alternative se
~~.!~w.'f~,: ~
by the iex~s Justice Court Rule~f Court. Other addresses where the defendant(s) may be served are:
~-" ., -..~.-:.:.:1:%
......
...:;r
' ::.
'ai ,..
' ' ef.{ ' ,.:;, '(;\
-

~-

::::.

~ ,.. . . .

~ ~: ~

; ~ ..

i:: .
~ -\ -'-" ':"' ' }.;:~ :' ~ ~ Jfyouwrsh~ glve y~ur c~-~ent !or the.answer and any other motions or pleadings tobe sent to your ema ' ~~-~, 1lf~kslt. ../ :,.'"'I. f
check this box2l"d prnv1de Yf!!l' r vahd email address:
~ it..'.);:,;---... ..............,)...._..,
~
~~~ .
. ~~

~ ;

'

l ....i

~,J. \/vl(~k~ ~_...~.

rre~\ :~JS

@~~

Pl-f:; (...!..(_

Sigl?ii'tu~ttorney

Petitioner's Printed Name

Address of Plaintiff's Attor ey, if any, or Plaintiff if none

DEFENDANT(S} INFORMATION (if known): .

DATE OF BIRTH:

V\.(k

*LAST 4 NUMBERS OF DRIVER LICENSE :


*LAST 4 NUMBERS OF SOCIAL SECURITY:

#'A~

-KZ2-><1--"-'----

DEFENDANT'S PHONE NUMBER:__


V\.
-'-'
( fxt-;...._ _ __
Small Claim Petition 6/2014

:~i;;j::-

City

Tx

State

Zip