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Rally lawsuit defendants push back against attorney's fees request

Various defendants in the Sines v. Kessler case, a civil lawsuit originating in the deadly 2017 Unite the Right rally, claim they should not have to pay attorney’s fees due to a lack of jury verdict on key federal conspiracy claims.

Although a federal jury found the defendants guilty of participating in a civil conspiracy under Virginia law and ordered them to pay approximately $26 million in damages, the jury was unable to come to a decision on two key federal conspiracy claims.

The claims allege that the more than dozen defendants, who are all key organizers and participants in the Unite the Right rally, conspired to come to Charlottesville in August 2017 and commit acts of racially motivated violence.

The years-long lawsuit was an effort by various Charlottesville-area residents to hold accountable the organizers and participants of the rally that turned violent before it could even begin as well the preceding torch march on University of Virginia Grounds the previous night.

The trial wrapped in November after more than a month of testimony, hundreds of pieces of evidence and two days of jury deliberations.

Last month, counsel for the plaintiffs filed a motion seeking $14.5 million in attorney’s fees and compensations, alleging the defendants severely extended the length of the trial and increased the expense of the litigation.

Due in part to a lack of verdict on the conspiracy counts under federal law, several of the defendants have filed motions seeking to reduce or outright dismiss attorney’s fees requested by the plaintiffs. They have also filed separate motions seeking to dismiss the jury’s verdict, have it re-tried or reduce the damages.

Josh Smith, attorney for the neo-Nazi group Traditionalist Worker Party, and two of the organization’s leaders, David Matthew Parrott and Matthew Heimbach, argued in an April 13 motion for a fractional reduction of attorney’s fees based on the counts the plaintiffs prevailed on.

“Plaintiffs’ counsel expended literally tens of millions of dollars in connection with this case, suing a large number of people and entities they knew to have no assets,” Smith wrote. “After the court reduces the unlawful punitive damages awards, plaintiffs will ultimately have won an amount from each of the defendants which is less than the jurisdictional limit for small claims court in most states.”

Comparing the lack of verdict on two of the three conspiracy claims to scoring a 33% on a school examination, Smith posed the question of whether the court would “believe your result on the examination to be a success.”

A lack of jury verdict is different than a jury ruling against a claim. The plaintiffs’ attorneys have previously expressed intentions to re-try the case on the two federal conspiracy claims.

Smith argued in his filing for a two-ninths reduction of fees, saying that the jury decision to decline to award compensatory damages for two of the nine plaintiffs supports lower fees.

Smith said in his motion that he offered a $50,000 settlement to the plaintiffs. It was refused.

Smith argued that if the reductions in the punitive damages are awarded, the plaintiffs would receive 58% of the Offer of Judgment amount.

“Plaintiffs’ far less favorable results against these defendants necessitates a further significant reduction to any award. It bars recovery of any costs after this date, and ought to preclude any attorneys’ fees thereafter as well,” he wrote.

Counsel for defendants James Alex Fields Jr., League of the South, Michael Hill and Michael Tubbs relied on fewer fractions in their motions arguing against the attorney’s fees.

Dave Campbell, Fields’ attorney, argued that to say his client has “no ability to pay fees or costs exceeding $1 million dollars is an understatement.”

Fields has been locked up since Aug. 12, 2017 when he drove his vehicle into a crowd of anti-racist protesters, murdering Heather Heyer and injuring dozens, including six of the plaintiffs. He is currently serving more than two-dozen life sentences based on criminal convictions from courts on both the state and federal level, including first degree murder.

The bulk of the trial damages were directed at Fields, whom the jurors ordered to pay more than $13 million in both compensatory and punitive damages.

In addition to arguing that the incarcerated Fields has no way to pay attorney’s fees, Campbell argued that the plaintiffs’ make no attempt to delineate what costs and fees were incurred pursuant to which claim or claims.

“The thrust of plaintiff’s’ litigation, and thus costs and fees, were the federal hate crime claims on which they did not prevail,” he wrote. “Much of the fees were wholly unnecessary on their face such as rush transcript requests on each and every deponent, even those taken years prior to trial, and daily and streaming transcripts.”

Bryan Jones, counsel for League of the South, Hill and Tubbs, made a very similar argument in his motion, describing the state conspiracy claim as an “afterthought.”

“In the years leading up to trial, plaintiffs’ counsels’ frequent media appearances, interviews, and public statements focused almost exclusively on the unsuccessful federal claims,” Jones wrote. “During closing arguments at trial, plaintiffs’ counsel made almost no mention of any other claims besides the unsuccessful federal claims.”

Several defendants have yet to file challenges to the attorney’s fees but may do so in the future. One defendant, Chris Cantwell, filed a handwritten motion asking for an extension to file a response.

Cantwell is currently incarcerated on unrelated charges. He has previously been denied the lengthy extensions he requested.

It remains to be seen when a federal judge will rule on how much the plaintiffs’ counsel will receive in fees.


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