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    Mark Jaffe
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    This order denies Defendants' motion for fees and sanctions against Plaintiff Roca Labs and its counsel. The court case involved 11 claims brought by Roca against the Defendants related to statements made on websites. The court had previously granted summary judgment for Defendants, finding they were immune under Section 230 of the Communications Decency Act. In this order, the court finds that the standards for sanctions under various laws and the court's inherent powers require bad faith, which requires more than just lack of merit. The court does not find bad faith in Plaintiff pursuing the case or maintaining it in the face of the Section 230 defense. The court also denies, in its discretion, awarding attorneys' fees to Defendants under the Florida Deceptive and Unfair Trade

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    This order denies Defendants' motion for fees and sanctions against Plaintiff Roca Labs and its counsel. The court case involved 11 claims brought by Roca against the Defendants related to statements made on websites. The court had previously granted summary judgment for Defendants, finding they were immune under Section 230 of the Communications Decency Act. In this order, the court finds that the standards for sanctions under various laws and the court's inherent powers require bad faith, which requires more than just lack of merit. The court does not find bad faith in Plaintiff pursuing the case or maintaining it in the face of the Section 230 defense. The court also denies, in its discretion, awarding attorneys' fees to Defendants under the Florida Deceptive and Unfair Trade

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    © All Rights Reserved
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    86 views9 pages

    Roca Labs v. Consumer Opinion - Pissedoffconsumer Attorneys Fees PDF

    Uploaded by

    Mark Jaffe
    This order denies Defendants' motion for fees and sanctions against Plaintiff Roca Labs and its counsel. The court case involved 11 claims brought by Roca against the Defendants related to statements made on websites. The court had previously granted summary judgment for Defendants, finding they were immune under Section 230 of the Communications Decency Act. In this order, the court finds that the standards for sanctions under various laws and the court's inherent powers require bad faith, which requires more than just lack of merit. The court does not find bad faith in Plaintiff pursuing the case or maintaining it in the face of the Section 230 defense. The court also denies, in its discretion, awarding attorneys' fees to Defendants under the Florida Deceptive and Unfair Trade

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    © All Rights Reserved
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    of 9

    UNITED STATES DISTRICT COURT

    MIDDLE DISTRICT OF FLORIDA


    TAMPA DIVISION
    ROCA LABS, INC.,
    Plaintiff,
    v.

    Case No. 8:14-cv-2096-T-33EAJ

    CONSUMER OPINION CORP. and


    OPINION CORP.,
    Defendants.
    _____________________________/
    ORDER
    This

    matter

    comes

    before

    the

    Court

    upon

    Defendants

    Consumer Opinion Corp. and Opinion Corp.s Motion for Fees


    and Sanctions, filed on November 5, 2015. (Doc. # 222).
    Plaintiff Roca Labs, Inc. filed a response on November 18,
    2015. (Doc. # 223). For the reasons that follow, the Court
    denies the Motion.
    I.

    Background
    This action was brought by Roca and the Amended Complaint

    contained 11 counts, which are listed below.


    Count I: violation of FDUTPA against Consumer
    Opinion;
    Count II: violation of FDUTPA against Opinion
    Corp.;
    Count III: tortious interference with a contractual
    relationship against Consumer Opinion;
    Count IV: tortious interference with a contractual
    relationship against Opinion Corp.;

    Count V: tortious interference with prospective


    economic relationship against Consumer Opinion;
    Count VI: tortious interference with prospective
    economic relationship against Opinion Corp.;
    Count
    VII:
    defamation
    for
    statements
    on
    pissedconsumer.com against Consumer Opinion;
    Count
    VIII:
    defamation
    for
    statements
    on
    pissedconsumer.com against Opinion Corp.;
    Count IX: defamation for statements on Twitter
    against Consumer Opinion;
    Count X: defamation for statements on Twitter
    against Opinion Corp.; and
    Count XII:1 declaratory relief against Consumer
    Opinion and Opinion Corp.
    (Doc. # 114). Discovery occurred, which required the Courts
    intervention on several occasions. See, e.g., (Doc. ## 130,
    141, 144, 162, 163, 169, 176, 182, 184, 219). Each party filed
    its own motion for summary judgment. (Doc. ## 148, 172, 173).
    The Court granted Consumer Opinions and Opinion Corp.s
    respective motions for summary judgment on the ground that
    Consumer Opinion and Opinion Corp. were entitled to immunity
    under Section 230 of the Communications Decency Act, 47 U.S.C.
    230(c). (Doc. # 220).
    II.

    Discussion
    Consumer Opinion and Opinion Corp. now seek an award of

    attorneys fees and costs as sanctions against [Roca] and


    Rocas

    counsel

    lawsuit,

    void

    for
    of

    filing

    any

    and

    legal

    maintaining

    basis,

    and

    for

    a
    an

    frivolous
    improper

    The Amended Complaint skips from Count X to Count XII.

    purpose, pursuant to Federal Rule of Civil Procedure 11, 28


    U.S.C. 1927, Section 57.105, Florida Statues, and the
    Courts inherent powers. (Doc. # 222 at 1). Consumer Opinion
    and Opinion Corp. also seek an award of fees pursuant to the
    Florida Deceptive and Unfair Trade Practices Act (FDUTPA),
    Section 501.2105, Florida Statutes. (Id.).
    Roca filed a response which states, Roca does not wish
    to respond to the Motion and is not filing a response.
    However, Roca has granted permission to the undersigned legal
    counsel to respond to the sanctions portion of Defendants
    Motion

    and

    the

    response

    reflects

    the

    position

    of

    the

    undersigned counsel and not that of Roca. (Doc. # 223 at 1).


    Thereafter, Consumer Opinion and Opinion Corp. filed a
    notice withdrawing their requests under Rule 11 and Section
    57.105. (Doc. # 224 at 1-2). But, Consumer Opinion and Opinion
    Corp. are not withdrawing any other arguments in the motion
    for fees at this time, namely 28 U.S.C. 1927, FDUTPA (which
    provides for fee shifting), and the Courts inherent power.
    (Id. at 2).
    A.

    Section 1927 and Inherent Power of the Court

    Section 1927 provides, [a]ny attorney . . . who so


    multiplies

    the

    proceedings

    in

    any

    case

    unreasonably

    and

    vexatiously may be required by the court to satisfy personally

    the excess costs, expenses, and attorneys fees reasonably


    incurred because of such conduct. 28 U.S.C. 1927. This
    statute allows district courts to assess attorneys fees
    against litigants, counsel, and law firms who willfully abuse
    the judicial process by conduct tantamount to bad faith.
    Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1544 (11th
    Cir. 1993) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th
    Cir. 1991)).
    Bad faith is the touchstone. Schwartz v. Millon Air,
    Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). A determination
    of bad faith is warranted where an attorney knowingly or
    recklessly pursues a frivolous claim or engaged in litigation
    tactics

    that

    needlessly

    obstruct

    the

    litigation

    of

    non-

    frivolous claims. Id. The bad faith analysis is objective.


    Amlong & Amlong, P.A. v. Dennys, Inc., 500 F.3d 1230, 123940 (11th Cir. 2006). In the end, [f]or sanctions under
    [S]ection 1927 to be appropriate, something more than lack of
    merit is required. Schwartz, 341 F.3d at 1225.
    Likewise, this Court may sanction an attorney under its
    inherent powers. See Thomas v. Tenneco Packaging Co., Inc.,
    293 F.3d 1306, 1320 (11th Cir. 2002). Due to the scope of
    the inherent powers vested in federal courts, however, it is
    necessary that such courts exercise caution in invoking

    [their] inherent power. Id. (quoting Chambers v. NASCO,


    Inc., 501 U.S. 32, 50 (1991)). Thus, as with the imposition
    of sanctions under Section 1927, a court must find that the
    lawyers

    conduct

    constituted

    or

    was

    tantamount

    to

    bad

    faith. Id. (quoting Durrett v. Jenkins Brickyard, Inc., 678


    F.2d 911, 918 (11th Cir. 1982)).
    A finding of bad faith is warranted where an attorney
    knowingly

    or

    recklessly

    raises

    frivolous

    argument,

    or

    argues a meritorious claim for the purpose of harassing an


    opponent. A party also demonstrates bad faith by delaying or
    disrupting the litigation or hampering enforcement of a court
    order. Id. (quoting Barnes v. Dalton, 158 F.3d 1212, 1214
    (11th Cir. 1998)). This inquiry focuses on conduct rather
    than the validity of the case. Kreager v. Solomon & Flanagan,
    P.A., 775 F.2d 1541, 1543 (11th Cir. 1985) (quoting Rothenberg
    v. Sec. Mgmt. Co., Inc., 736 F.2d 1470, 1472 (11th Cir. 1984))
    (internal quotation marks omitted).
    Upon review of the record, the Court determines that the
    requisite showing of bad faith has not been made. Consumer
    Opinion

    and

    Opinion

    Corp.

    argue

    Rocas

    claims

    were

    objectively meritless and, therefore, the Court should impose


    sanctions. (Doc. # 222 at 12-18). However, the Court granted
    summary judgment on the ground that Consumer Opinion and

    Opinion Corp. were entitled to immunity under Section 230 of


    the Communications Decency Act. (Doc. # 220). The Court did
    not reach the merits of the underlying claims. (Id.). In
    addition,

    bad

    faith,

    which

    is

    the

    touchstone

    for

    the

    imposition of sanctions under Section 1927 and the Courts


    inherent

    powers,

    requires

    something

    more

    than

    lack

    of

    merit. Schwartz, 341 F.3d at 1225.


    Likewise, the Court cannot say Rocas maintenance of
    this action in the face of Consumer Opinion and Opinion
    Corp.s Section 230 defense constituted bad faith. Although
    the Court ultimately found that Section 230 immunity applied
    in this case, that conclusion does not justify a post hoc
    rationalization

    that

    Rocas

    action

    must

    have

    been

    unreasonable or without foundation. See Christianburg Garment


    Co. v. EEOC, 434 U.S. 412-421-22 (1978). This case was
    extensively briefed by all parties (Doc. ## 148, 172, 173,
    186, 187, 189, 192, 193, 194), and required careful analysis
    and review by the Court in ruling on the three motions for
    summary judgment.
    Consumer Opinion and Opinion Corp. seek sanctions for
    behavior

    that

    was

    previously

    addressed

    by

    this

    Court.

    Although the behavior of both sides was less than collegial,


    the Court dealt with such conduct in an appropriately measured

    manner each time. (Doc. ## 162 at 3, 163 at 3, 184 at 5 n.2,


    220 at 10 n.3). In addition, the Court determines that the
    requisite showing of bad faith has not been made. In sum, the
    Court will not impose sanctions under Section 1927 or its
    inherent power.
    B.

    Fees under FDUTPA

    Consumer
    entitlement

    to

    Opinion

    and

    attorneys

    Opinion
    fees

    and

    Corp.
    costs

    also
    under

    argue
    FDUTPA.

    Section 501.2105(1) provides that a prevailing party may


    receive [its] reasonable attorneys fees and costs from the
    nonprevailing party after exhaustion of appeals, if any.
    It is within the discretion of the Court to award fees
    and costs under FDUTPA. PODS Enter., LLC v. U-Haul Intern.,
    Inc., No. 8:12-cv-1479-T-27MAP, 2015 WL 5021726, at *22 (M.D.
    Fla. Aug. 24, 2015). A trial courts considerations might
    include, but are not limited to:
    (1) the scope and history of the litigation;
    (2) the ability of the opposing party to satisfy an
    award of fees;
    (3) whether an award of fees against the opposing
    party would deter others from acting in similar
    circumstances;
    (4) the merits of the respective positionsincluding the degree of the opposing party's
    culpability or bad faith;
    (5) whether the claim brought was not in subjective
    bad faith but frivolous, unreasonable, groundless;
    (6) whether the defense raised a defense mainly to
    frustrate or stall;

    (7) whether the claim brought was to resolve a


    significant legal question under FDUTPA law.
    Chow v. Chak Yam Chau, No. 14-14654, 2015 WL 7258668, at *4
    (11th Cir. Nov. 17, 2015) (quoting Humane Socy of Broward
    Cty., Inc. v. Fla. Humane Socy, 951 So. 2d 966, 971-72 (Fla.
    4th DCA 2007)).
    After

    weighing

    the

    factors

    listed

    above,

    the

    Court

    exercises its discretion and denies an award of attorneys


    fees and costs under FDUTPA. The scope and history of the
    litigation weighs against awarding fees and costs, or at most
    is a neutral factor. As to the second factor, the Court finds
    Consumer

    Opinion

    and

    Opinion

    Corp.s

    citation

    to

    Rocas

    alleged losses as inferential evidence suggestive of its


    ability to pay (Doc. # 222 at 18), unpersuasive. Factors four
    and five are also neutral. In addition, the seventh factor
    weighs against awarding fees and costs. Although the third
    and sixth factors weigh slightly in favor of awarding fees
    and costs under FDUTPA, the Court nevertheless finds that
    those two factors do not tip the scales enough to warrant an
    award of fees and costs under FDUTPA in this case.
    Accordingly, it is
    ORDERED, ADJUDGED, and DECREED:

    Consumer Opinion Corp. and Opinion Corp.s Motion for


    Fees and Sanctions (Doc. # 222) is DENIED.
    DONE and ORDERED in Chambers in Tampa, Florida, this
    10th day of December, 2015.

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