RAUHAUSER S REPLY IN SUPPORT OF TCPA ATTORNEY S FEES AND SANCTIONS (For Written Submission at 8:30 AM on December 4, 2015)

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1 FILED TARRANT COUNTY 12/3/2015 4:11:58 PM THOMAS A. WILDER DISTRICT CLERK NO JAMES MCGIBNEY and VIAVIEW, INC., Plaintiffs, v. THOMAS RETZLAFF, LORA LUSHER, JENNIFER D ALLESANDRO, NEAL RAUHAUSER, MISSANNONEWS, and JANE DOES 1-5, Defendants IN THE DISTRICT COURT OF TARRANT COUNTY, TEXAS 67 th JUDICIAL DISTRICT RAUHAUSER S REPLY IN SUPPORT OF TCPA ATTORNEY S FEES AND SANCTIONS (For Written Submission at 8:30 AM on December 4, 2015) I. ARGUMENT & AUTHORITIES A. Attorney s Fees 1. Unless a controverting affidavit is served as provided by TEX. CIV. PRAC. & REM. CODE (e) [A]n affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding by a judge or jury that the amount charged was reasonable or that the service was necessary. TEX. CIV. PRAC. & REM. CODE (b). Rauhauser filed an original and a supplemental affidavit of attorney Jeffrey L. Dorrell, to which were appended contemporaneously-generated attorney s fee statements and time logs. The Dorrell affidavit was served upon each other party to the case at least 30 days before the day on which the evidence was presented to the Court. Id (d). The Dorrell affidavit shows that the amount of reasonable attorney s fees Rauhauser

2 incurred in obtaining dismissal of plaintiffs groundless defamation claims in the case at bar was $300, The Dorrell affidavit supports a finding by this Court that $300, in TCPA attorney s fees stated was reasonable. Id (b). 2. Had plaintiffs wished to controvert Rauhauser s claim for $300, attorney s fees as evidenced by the Dorrell affidavit, plaintiffs were required to serve a counteraffidavit upon Rauhauser not later than: (i) 30 days after the day the plaintiffs received a copy of the Dorrell affidavit; and (ii) 14 days before the day on which the evidence is presented to the Court. Id (e). Rauhauser served his affidavit upon plaintiffs on November 2, 2015, and gave notice of the written submission of his evidence for December 4, Therefore, the last day on which plaintiffs could have served their counteraffidavit was November 20, As of the filing of this reply (less than 24 hours before the scheduled submission), plaintiffs had filed no counteraffidavit at all much less one meeting the deadlines in the statute. Plaintiffs had neither sought nor obtained leave of court to controvert Rauhauser s attorney fee evidence after the statutory deadlines had expired. Rauhauser objects to any attempt by plaintiffs to offer controverting testimony now, which should be excluded. Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App. Eastland 1995, no writ). The Dorrell affidavit establishes that the amount of reasonable TCPA attorney s fees that justice and equity require the Court to award is 300, The Court should so order. 2

3 B. Monetary Sanctions 4. As of the filing of this reply (less than 24 hours before the scheduled submission), plaintiffs had filed no response to Rauhauser s request for mandatory, monetary TCPA sanctions of $1,000, To the extent that Rauhauser s request for this monetary sanction amount was based on plaintiffs own judicial admissions regarding their income and assets, plaintiffs would not be permitted to offer evidence controverting their admissions in any event. Rauhauser objects to any such improper offer that might be filed after the filing of this reply. C. Nonmonetary Sanctions 5. On November 21, 2015, plaintiffs filed their response to Rauhauser s request for nonmonetary sanctions, which were requested in Rauhauser s Notice of Plaintiffs New Criminal Aggravating Misconduct and Supplemental Request for Nonmonetary TCPA Sanctions filed on November 9, In his supplemental request, Rauhauser presented evidence of the following: (i) (ii) (iii) Plaintiff James McGibney s online threats to Rauhauser that there is no light at the end of this tunnel and I m not going anywhere; Plaintiff James McGibney s claim to have hacked into the system of the Hanszen Laporte, LLP, law firm for the stated purpose of inserting exogenous pedophilic pornography into it thus manufacturing evidence to support plaintiff s attempts to destroy counsel s law practice by claiming that Rauhauser s attorney is a pedophile; and Plaintiff James McGibney s admission to creating the website without permission. 3

4 In response, plaintiffs actually admit to making Twitter-based statements at issue. Inexplicably, plaintiffs then argue that what they did does not support a bona fide claim of criminal harassment by electronic communication under TEX. PENAL CODE See Response, 1-2. The relevance of plaintiffs argument is unclear, given that Rauhauser neither cites nor relies upon TEX. PENAL CODE and does not contend that plaintiffs violated such statute. Nor is it relevant that the Fort Worth court of appeals declared TEX. PENAL CODE 42.07(a)(7) unconstitutionally vague seven years ago in Karenev v. State, 258 S.W.3d 210 (Tex. App. Fort Worth 2008) especially since the Karenev court erred on this point and was reversed. Scott v. State, 322 S.W.3d 662, 667 (Tex. Crim. App. 2010). (Plaintiffs neglect to point this out.) 7. As to McGibney s bald admission to hacking counsel s system which McGibney does not deny plaintiffs lightly dismiss Rauhauser s hacking allegation as based on a hearsay statement by McGibney that, according to plaintiffs, requires at least some corroboration in accordance with TEX. R. EVID. 804(24) (sic). Response, 7, 12. Plaintiffs mock what they characterize as Rauhauser s woefully deficient understanding of criminal law. Response, Since there is no TEX. R. EVID. 804(24), plaintiffs likely intend to rely on TEX. R. EVID. 803(24), which creates an exception to the hearsay rule for statements against interest. However, plaintiffs forget that the statement of a party-opponent such as McGibney is non-hearsay by definition. TEX. R. EVID. 4

5 (e)(2). Any statement of a party opponent is admissible against that party. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 Tex. 2007). 9. Plaintiffs also lightly dismiss McGibney s Twitter statements presumably including those in which Dorrell is called a dangerous pedophile with an insatiable appetite for young hairless boys as harmless joking and taunting. Response, 5-8. This is not what McGibney claimed when it was McGibney who was being called a pedophile on Twitter. In Cause No. A C; McGibney v. Moore; in the District Court of Clark County, Nevada; McGibney sued a defendant for calling him a pedophile. McGibney filed the affidavit of a public relations expert who testified on McGibney s behalf: People involved in a scandal can redeem themselves in the public s eyes. No such option exists for Mr. McGibney, who has falsely been accused of pedophilia and possession of child pornography. Because of the very real child exploitation that has occurred at the hands of the Catholic Church and, previously, the Boy Scouts of America, the public takes accusations of child exploitation very seriously. As two well-respected and trusted institutions have previously been involved with horrendous and even systematic child abuse, every allegation of child exploitation now seems within the realm of possibility. Hunter Moore s false claims have put McGibney into a situation he cannot possibly win from a public relations standpoint. Mr. McGibney s options are either to suffer in silence and allow Moore s statements to ricochet around the Internet, where they are permanently archived and stored, unabated; or to attempt to clear his name and in the process of doing so, give more credence to Moore s statements by acknowledging their existence. Even though Moore s statements are false, his mere allegation is enough to cause real and lasting harm to Mr. McGibney s reputation and lifetime career earnings. Even provably false allegations such as Moore s can persist for decades and significantly damage the professional and persona reputations of well-known individuals. 5

6 Exhibit A, Thus, when McGibney accuses someone else of pedophilia, it is harmless joking and taunting. When someone else makes the accusation about McGibney, it causes real and lasting harm that affects the victim s reputation and lifetime career earnings for decades. The Court should not brook such hypocrisy. II. CONCLUSION 10. Plaintiffs have failed to controvert Rauhauser s request for TCPA attorney s fees and sanctions other than to attack Rauhauser s request for nonmonetary sanctions with citations to reversed cases, citations to statutes Rauhauser does not rely upon, and with an incorrect analysis of the hearsay rule. III. PRAYER 11. For these reasons, Rauhauser asks the Court to order plaintiffs, jointly and severally, to pay Rauhauser in accordance with the TCPA the following amounts: (i) (ii) (iii) (iv) Total reasonable attorney s fees, litigation expenses, and court costs for the trial and appeal of $300,383.84, as justice and equity require; Sanctions sufficient to deter the filing of similar actions by plaintiffs in the future of $1,000,000.00; conditional appellate attorney s fees of $50, for an appeal to the court of appeals, which such appeal does not result in a complete reversal of all amounts awarded; and conditional appellate attorney s fees of $25, in the event that a petition for review is filed in the Texas Supreme Court, which such petition does not result in a complete reversal of all amounts awarded. 6

7 Rauhauser requests such other and further relief, at law or in equity, as to which he shall show himself justly entitled. Respectfully submitted, By: /s/ Jeffrey L. Dorrell. Jeffrey L. Dorrell State Bar No Philip A. Meyer State Bar No Katy Freeway, Suite 850 Houston, Texas Telephone: FAX: ATTORNEYS FOR DEFENDANT NEAL RAUHAUSER 7

8 CERTIFICATE OF SERVICE I hereby certify that on 12-3, 2015, a true and correct copy of the foregoing was sent by: X Hand delivery Certified mail Telephonic document transfer E-service in accordance with TEX. R. CIV. P. 21a to the following counsel of record: Mr. Evan Stone evan@stonevaughanlaw.com Stone & Vaughan, PLLC 624 W. University Drive, Suite 386 Denton, Texas Telephone: FAX: COUNSEL FOR PLAINTIFFS /s/ Jeffrey L. Dorrell JEFFREY L. DORRELL 8

9 1 AFFT Marc J. Randazza, NV Bar# Ronald D. Green, NV Bar# 7360 J. Malcolm DeVoy, NV Bar # Randazza Legal Group W. Warm Springs Rd., Ste. 100 Las Vegas, NV (fax) 6 rlgall@randazza.com 7 Attorneys for Plaintiff, 8 James McGibney Electronically Filed 02/26/ :09:01 PM.. ~j.~~ CLERK OF THE COURT 9 10 DISTRICT COURT CLARK COUNTY, NEVADA 11 JAMES McGIBNEY, ) Case No.: A C 12 ) ) Dept. No.: XXIV 13 Plaintiff, ) ) AFFIDAVIT OF STEVEN ROHR 14 vs. ) ) 15 HUNTER MOORE, ) ) 16 ) Defendant. ) ) I, STEVEN ROHR, do hereby swear under penalty of perjury that the following assertions are true to the best of my knowledge and belief I am the founder and president of Lexicon Public Relations in Los Angeles, 23 California. In addition to more than a decade of experience in public relations, I have three prior years of broadcast television experience at KCBS-TV in Los Angeles and later at CBS News. Additionally, I hold a Bachelor of Arts magna cum laude from Concordia College and a Master's of Arts from the Arizona State University. A copy of my professional biography is attached as 28 Exhibit A.

10 1 2. My agency, Lexicon Public Relations, represents award-winning actors, recording 2 artists, authors, experts, films, and corporations - including ViaView, Incorporated, which is 3 operated by the Plaintiff in this action, James McGibney Other clients whom I have represented personally and through my firm include 5 Martin Sheen and Hal Halbrook, who have both won numerous awards over their careers, including 6 7 Emmy Awards, an Academy Award, and a Tony Award. Other clients of my firm appear on 8 shows including Glee, Blue Bloods, Community, Justified, True Blood, and The Office, among 9 others In addition to actors, I have represented films as well, including The Door and Wish , which were both nominated for Academy Awards for Best Short, Live Action Films in and 2011, respectively. I have also served on the Host Committees for the Academy Awards 14 from 2008 through the present and the Daytime Emmy Awards in 2010 and Beyond the screen, I have represented Grammy Award -winning recording artistsincluding 16 those with albums that the Recording Industry Association of America has certified as Platinum (requiring shipment of more than 1,000,000 units of the record receiving the designation 19 - a considerable feat within a music industry that has been so negatively affected by Internet 20 piracy). I also represented Jose Canseco in the promotion of his New York Times #1 Best-Seller 21 book Juiced, which exposed the use of steroids within major league baseball My opinions in this matter are based upon my professional relationship with the 24 Plaintiff and knowledge of his businesses, my review of the Complaint in this action, and my 25 professional experience as described in the preceding paragraphs Contrary to popular belief, the old adage that there is "no such thing as bad publicity" is false. In my experience, there are plenty of examples of bad publicity from which someone cannot fully recover- and this case is one such object lesson. 2 Affidavit of Steven Robr

11 1 8. Hunter Moore claimed that James McGibney was a pedophile and in possession of 2 child pornography. Within the Internet businesses where Mr. McGibney works and is best known, 3 and which is especially sensitive to issues of child exploitation, this kind of allegation is especially 4 damaging Some "negative" press- such as a high-profile break-up or accusation of infidelity- 7 can be beneficial to those involved by keeping them relevant and the subjects of news articles and 8 television pieces. This is not the case with Hunter Moore's statements. As Moore's false 9 statements involve under-age children, Mr. McGibney would stand absolutely nothing to gain from 10 them. The public's position on child protection is so universally in favor of shielding minors from any harm that there is no possible way Mr. McGibney could have portrayed Moore's comments 13 favorably In certain instances, celebrity scandals can be used to rehabilitate or even improve 15 their images. People involved in a scandal can seek counseling, rehabilitation, therapy, or 16 treatment, and redeem themselves in the public's eyes No such option exists for Mr. McGibney, who has falsely been accused of 19 pedophilia and possession of child pornography. Because of the ve~y real child exploitation that 20 has occurred at the hands of the Catholic Church and, previously, Boy Scouts of America, the 21 public takes accusations of child exploitation very seriously. As two well-respected and trusted 22 institutions have previously been involved with horrendous and even systematic child abuse, every allegation of child exploitation now seems within the realm of possibility Hunter Moore's false claims have put McGibney into a situation he cannot possibly 26 win from a public relations standpoint. Mr. McGibney's options are either to suffer in silence and 27 allow Moore's statements to ricochet around the Internet, where they are permanently archived and 28 stored, unabated; or to attempt to clear his name - and in the process of doing so, give more 3 Affidavit of Steven Rohr

12 credence to Moore's statements by acknowledging their existence, and that they had the power to 1 2 make Mr. McGibney take remedial action (such as this lawsuit) Even though Moore's statements are false and are adjudged to be false by this 4 Court, his mere allegation is enough to cause real and lasting harm to Mr. McGibney's reputation 5 and lifetime career earnings. Even provably false allegations such as Moore's can persist for 6 7 decades and significantly damage the professional and personal reputations of well-known 8 individuals Mr. McGibney' s reputational harms in this case are umque because of Hunter Moore's celebrity profile and the medium in which he made his untrue claims about him. 15. First, Hunter Moore enjoys some degree of celebrity. Moore is known for running 13 the involuntary pornography website Is Anyone Up before it went offline upon the sale of its 14 domain name, <isanyoneup.com>, to one of Mr. McGibney's companies. Both before and since 15 the sale of the domain name, Moore has received considerable media treatment from national and 16 local television sources (including the Anderson Cooper Show), print media (including Rolling Stone magazine), and radio stations. As a result of this exposure from respected traditional media 19 outlets, Moore is accorded a level of credibility that an average person does not receive Second, Moore made his false statements accusing Mr. McGibney of being a 21 pedophile and possessing child pornography on the social media service Twitter. Moore has well over 100,000 followers on Twitter, to whom the service delivers his latest messages. These 24 followers can then re-distribute Moore's statements to their own followers, essentially keeping 25 Moore's statements alive forever In addition to Moore making his false claims about Mr. McGibney on Twitter where they could be easily shared, Moore's statements were more broadly made on the Internet, where they can be preserved forever. Moore himself could have preserved his false statements about 4 Affidavit of Steven Rohr

13 1 McGibney, and may have been further preserved by individuals re-broadcasting ("re-tweeting") or 2 quoting Moore's false claims Additionally, entities including Google and the Internet Archive (archive.org) routinely cache and preserve Internet content in order to preserve it for business, historical, and academic reasons. Moore's false statements about Mr. McGibney may have been further preserved in time by such a service Just as Moore's statements about Mr. McGibney are permanent, so too is the harm 9 he has done, and will continue to do, to Mr. McGibney' s reputation Even in attempting to clear his name with this lawsuit, Mr. McGibney has been forced to acknowledge Moore's false statements. In doing so, Mr. McGibney has essentially 13 breathed new life into Moore's baseless claims - while they remain meritless, the fact that they 14 have required Mr. McGibney to file this suit to clear his name gives power to Moore's false 15 statements Thus, any action Mr. McGibney takes to clear his name acknowledges Moore's false claims and draws further attention to them- and the damage they have caused to Mr. McGibney's 19 reputation. Even if this litigation succeeds, the attention it brings to Moore's statements may 20 ultimately cause more harm to McGibney's reputation Even with a judgment in his favor, the cloud of Moore's allegations will hang over 22 Mr. McGibney and his professional reputation for many years to come. While many will know Moore's allegations are false, the fact that Moore made such a claim and associated Mr. McGibney 25 with child exploitation and pedophilia is damaging to his reputation and professional prospects The fact that Moore defaulted in this case by failing to answer the Complaint makes the reputational harm even worse. Rather than a decision on the merits, in which Moore would have answered for his false statements against Mr. McGibney, Moore may forever be able to claim 5 Affidavit of Steven Robr

14 ~ prei/~u ie(t on a "technicality" l! t l ~ (~r1 H11S basis~ 1\-{LH)re- :h~~s C<}USed I't.~~lJ ::tnd t:.lng.fb.fe. :ha~t11j to ~\fo<>re~~ perso:na1 :~~~(,l~ ropullltion.!n my expcrien<:e, thi> harm wih hsti<" the rest of James' career. " '] 2.5~ I5~~sed. Ott lvlt~(}ibn~~-y~s (~0n1r~h~-~5~lt against }\:1:{)()1~ and. the ~.n.~l1:ysis contal.n.e:d. vx~l~~.u.d-~ ~:_.< l )..\-:>. "'!<.!>. ~ s:tat~rnent, a _tu~:1gn1(:lh: (lf $.250~~{){)0 i.s a c:~.>ns~~rv<:rth..-e In:ea.-sute r.rf dti.~ Iif~1:tin:~c teptuatic~nid : J ~1,.,_l, is $ ~-, '\., /... L.Z2:;~i~:t:.{,~~~-----J{d:i,, ::~~;~~~-Ll t<-

15 EXHIBIT A

16 STEVE ROHR BIOGRAPHY Steve Rohr is founder and president of Lexicon Public Relations in Los Angeles. The agency represents award-winning actors, recording artists, authors, experts, films, and corporations. For over a decade, Rohr has successfully managed the careers of veteran actors and emerging talent alike. Notable long-time clients include multiple Emmy Awardwinning actor MARTIN SHEEN (The Amazing Spider-Man, The West Wing) as well as Academy Award, Tony Award, and 5-time Emmy Award-winner HAL HOLBROOK (Lincoln, Into the Wild). Agency clients appear on: Glee, Blue Bloods, Community, Justified, True Blood, and The Office, to name a few. Rohr has also represented several Grammy Award -winning and Platinum Certified recording artists and bands for album releases and domestic tour press. As a book publicist, he has strategically launched over a dozen titles including JOSE CANSECO's tell-all baseball steroid book "Juiced," which reached #1 on the New York Times Bestseller List. For several years, Rohr has represented films, including the Academy Award nominated Best Short, Live Action films The Door (201 0) and Wish 143 (2011 ). Rohr's professional activities include serving on the Host Committees for the Academy Awards ( present) and the Daytime Em my Awards (201 0, 2011 ). He began his career as an intern for KCBS-TV News in Los Angeles. In less than two years, he was producing entertainment stories for Manuel Gallegus, a national correspondent for CBS News. Rohr earned his M.A. in Communication from Arizona State University (Tempe, AZ.) and graduated magna cum laude from Concordia College (Moorhead, MN). Currently, he is an associate professor of Communication at MiraCosta College. ### 8430 Santa Monica Blvd. Suite #203 West Hollywood, CA

17 NO JAMES MCGIBNEY and IN THE DISTRICT COURT OF VIA VIEW, INC., Plaintiffs, ~ THOMAS RETZLAFF, LORA TARRANT COUNTY, TEXAS LUSHER, JENNIFER D' ALLESANDRO, NEAL RAUHAUSER, MISSANNONEWS, and JANE DOES 1-5, Defendants 67th JUDICIAL DISTRICT SECOND SUPPLEMENTAL AFFIDAVIT OF JEFFREY L. DORRELL (For TCPA Attorney's Fees) On this day, Jeffrey L. Dorrell appeared before me, a Notary Public, and after I administered an oath to him, upon his oath, he said: 1. "My name is Jeffrey L. Dorrell. I am more than 18 years of age and capable of making this affidavit. I have personal knowledge of the facts and matters set forth herein, which are true and correct. 2. This Supplemental Affidavit incorporates-and augments-the testimony of my Original Affidavit filed as!exhibit Bl supporting Neal Rauhauser's motion for an award of TCPA attorney's fees and sanctions filed on November 2, 2015, and my Supplemental Affidavit filed on November 6, My testimony regarding my qualifications to render the expert opinions stated both in!exhibit Bl is thus not repeated here. 3. My original testimony regarding the amounts of attorney's fees Rauhauser incurred and the number of hours spent by attorneys and staff members of the firm of Hanszen Laporte performing needed tasks has not been changed. This second supplemental affidavit merely predicates the attorney's fee time logs appended to my November 2, 2015, affidavit as admissible into evidence over a hearsay objection. 4. Attached to my November 2, 2015, affidavit are records that provide an itemized statement of the services that Hanszen Laporte, LLP, and I provided to defendant Neal Rauhauser, who received the services on the dates shown in those records. The attached records are now part of this affidavit. The attached records are kept by this law firm in the regular course of business. The information contained in the records was created by me or transmitted to me in the regular course of business by persons who had personal knowledge of the information. The records were made at or near the time that the services were provided. The charges for the services reflected in the records were reasonable.

18 5. Exhibit A appended to the Reply in Support oftcpa attorney's fees and sanctions is a true and correct copy of the original. Further affiant sayeth naught. RIB ED before me by Jeffrey L. Dorrell on..;;;._ ----=--=--=--==:...:= ' Supplemental Affidavit for Rauhauser' s Attorney' s Fees 2

19 NO JAMES MCGIBNEY and VIAVIEW, INC., Plaintiffs, v. THOMAS RETZLAFF, LORA LUSHER, JENNIFER D ALLESANDRO, NEAL RAUHAUSER, MISSANNONEWS, JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, and JANE DOE 5, Defendants IN THE DISTRICT COURT OF TARRANT COUNTY, TEXAS 67 th JUDICIAL DISTRICT ORDER After considering the decision in Rauhauser v. McGibney, 2014 Tex. App. LEXIS (Tex. App. Fort Worth 2014, no pet.) (remanding this case for award of attorney s fees and sanctions), defendant Neal Rauhauser s motion to award attorney s fees and sanctions pursuant to TEX. CIV. PRAC. & REM. CODE , et seq., Rauhauser s Notice of Plaintiffs New Criminal Aggravating Misconduct and Request for Nonmonetary Sanctions, the original and supplemental affidavits for attorney s fees of Rauhauser attorney Jeffrey L. Dorrell and fee statements appended thereto, the liberal construction directive to Texas courts in TEX. CIV. PRAC. & REM. CODE (b), plaintiffs response to Rauhauser s motion, the pleadings, and other affidavits and evidence on file, the Court finds: (i) (ii) Plaintiffs brought this suit against Rauhauser willfully and maliciously to injure Rauhauser by deterring Rauhauser from exercising his constitutional rights specifically, to truthfully criticize plaintiffs; Plaintiffs brought this suit against Rauhauser with objective substantial certainty that the suit would inflict litigation costs on Rauhauser; 9

20 (iii) (iv) (v) (vi) (vii) Plaintiffs filed multiple lawsuits in two states at substantially the same time making substantially the same allegations; Plaintiffs brought their suits against Rauhauser in conscious disregard of plaintiffs duties or of Rauhauser s rights and without just cause or excuse; Plaintiffs filing of multiple SLAPP suits in two states at substantially the same time making substantially the same allegations manifests plaintiffs intent to continue using baseless suits to retaliate against, punish, and deter plaintiffs enemies, and necessitates a significant deterrent sanction; Plaintiffs engaged in aggravating misconduct by willfully and intentionally harassing and using confederates to willfully and intentionally harass both Rauhauser and Rauhauser s attorney, the objective of which was to punish the exercise of Rauhauser s constitutional rights in the past, deter the exercise of Rauhausr s constitutional rights in the future, and impair Rauhauser s ability to retain legal counsel in defense of plaintiffs baseless claims; and Plaintiffs aggressive filing of multiple lawsuits and aggravating misconduct caused Rauhauser to incur $300, in attorney s fees to defend through trial and appeal. As to Rauhauser s requested attorney s fees, the Court finds that affidavit evidence of Rauhauser s attorney s fees submitted complies with TEX. CIV. PRAC. & REM. CODE (c) and was not controverted pursuant to (e). Accordingly, the Court admits into evidence for purposes of this order the original and supplemental affidavits of attorney Jeffrey L. Dorrell and finds the amounts of attorney s fees stated therein to be reasonable in accordance with TEX. CIV. PRAC. & REM. CODE (b). The Court has considered the factors set forth in TEX. DISCIPLINARY R. PROF. CONDUCT 1.04, STATE BAR RULES, Art. 10 9, Rule 1.04; see Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). As a result, the Court makes the following specific findings as to each: 10

21 (i) The time and labor required. The time spent by each attorney or staff member rendering services to Rauhauser on each specific task was contemporaneously logged and quantified to the nearest one-tenth of an hour, and totaled over 600 hours as of September 6, 2015, for trial, appeal, and remand. (ii) The novelty and difficulty of the questions involved. The TCPA is a relatively new statute enacted on June 17, Many issues have arisen in Texas appellate courts regarding interpretation and application of its provisions. These include the constitutionality of the TCPA itself, whether a plaintiff s nonsuit can defeat application of the TCPA, whether the TCPA s provision for awarding attorney s fees is mandatory, whether the TCPA s provision for awarding sanctions sufficient to deter the filing of similar actions is mandatory, whether review of a trial court s failure to rule on the motion is by interlocutory appeal or petition for writ of mandamus, whether the TCPA applies to non-public speech, and what constitutes a matter of public concern, and whether an appellate court can reverse and render judgment on attorney s fees and sanctions or must remand to the trial court for further proceedings. Several of these were presented in the case at bar, including, without limitation: (A) (B) (C) Plaintiffs argued both in this Court and on appeal that they were immunized from the TCPA s remedies because Rauhauser chose to appear and defend their defamation SLAPP suit without ever having been served. This was an issue on which no appellate court had spoken in the context of the TCPA at the time plaintiffs raised it. The issue required extensive research and briefing in order for Rauhauser to prevail over plaintiffs argument in the court of appeals. Rauhauser v. McGibney is now extensively cited in law review articles and practice manuals on this point. Plaintiffs argued both in this Court and on appeal that they were immunized from the TCPA s remedies because plaintiffs nonsuited their claims approximately 5 hours after Rauhauser filed his TCPA motion to dismiss. This was also an issue on which no appellate court had spoken in the context of the TCPA at the time plaintiffs raised it. The issue required extensive research and briefing in order for Rauhauser to prevail over plaintiffs argument in the court of appeals. Rauhauser v. McGibney is now extensively cited in law review articles and practice manuals on this point, too. It was necessary for Rauhauser to show that plaintiff McGibney was a public figure in order for the TCPA to apply to the defamation claims made in the case at bar. This issue required 11

22 extensive research into James McGibney s personal background, prior statements, and litigation. This research ultimately resulted in discovery of extensive evidence of McGibney s many media appearances, and even the affidavit of a McGibney expert filed in a Nevada lawsuit admitting that McGibney was a public figure. As a result, the novelty and difficult of the questions presented in the case at bar justifies both the more-than-600 hours expended in trial, appeal, and on remand, and the hourly rates charged. (iii) The skill requisite to perform the service properly. The area of free speech, defamation claims, and the TCPA is highly specialized and complex. After the U.S. Supreme Court began to constitutionalize the tort of defamation with New York Times v. Sullivan in 1964, the elements to be proved and which party has the burden of proof took on a complexity not seen in any other tort practice. The enactment of the TCPA in 2011 added a new layer of complexity, magnified by the fact that new appellate opinions changing or clarifying the interpretation of the statute are released on an almost weekly basis. These are not topics or issues on which canned briefing is available or on which the law is well-settled. Each issue requires independent research and meticulous briefing. This practice area requires an extremely high degree of skill to perform services properly. The attorneys performing services for Rauhauser possessed the high degree of skill required. (iv) The likelihood, if apparent to the client, that acceptance of the representation will preclude other employment by the lawyer. The over-600 hours of time expended by attorneys and staff of Hanszen Laporte over the 20 months in which that firm represented Rauhauser through trial, then through an appeal (including oral argument), and on remand for attorney s fees and sanctions precluded employment on other cases. Most of this time was been expended by attorney Jeffrey L. Dorrell, and represents approximately 25% of all time expended by that attorney on all legal matters during the relevant time period. Hanszen Laporte has 11 attorneys and a steady supply of paying clients on whose cases or matters Dorrell could have worked if he had not chosen to render services to Rauhauser. This is proven by the fact that Hanszen Laporte s revenues have grown by 178% during the three years immediately preceding the date of this affidavit, ranking it 50 th out of all companies in Houston in revenue growth (the Houston Fast 100 ) and 28 th out of all Houston companies owned or managed by graduates of the University of Houston (the Cougar 100 ). 12

23 (v) The fee customarily charged in the locality for similar legal services. In cases of defamation, First Amendment, and TCPA motions, there is no locality in the sense that attorneys in one locality might charge a higher price or hourly rate to draft a will for a client than attorneys in another locality. The practice is so complex and specialized that only a small number of Texas attorneys are qualified to perform services for clients. Those highly-qualified attorneys travel to where a case is pending. Here, the locality is more accurately seen as the entire state of Texas. The hourly rate of $ is comparable to that of the small number of similarly-qualified attorneys in this field practicing in Texas. (vi) The amount involved and the results obtained. Plaintiffs sued Rauhauser for $1,000, in federal and state courts of two different states, including the case at bar. The Court takes judicial notice that, as a direct result of the efforts and highly competent representation of Hanszen Laporte, all claims against Rauhauser in all suits were ultimately disposed in his favor. Considerations of the amount in controversy and results obtained weigh heavily in favor of the Court s finding that the fee charged to Rauhauser in the case at bar was reasonable and that justice and equity require it to be awarded to Rauhauser. (vii) Time limitations imposed by the client or by the circumstances. The circumstances of the TCPA impose several accelerated deadlines, both in the trial and appellate phases of litigation practice. These inflexible deadlines must be recognized and complied with, and take priority over more common deadlines in normal litigation. These deadlines thus require special efforts that necessarily increase the amount of attorney s fees that can be said to be reasonable. Other circumstances include plaintiffs aggressive abuse and harassment of Rauhauser s defense attorney designed to deprive Rauhauser of the benefit of legal representation. (viii) The nature and length of the professional relationship with the client. Neither attorney Jeffrey L. Dorrell nor any member of Hanszen Laporte, LLP, or its staff has any prior professional relationship with defendant Neal Rauhauser. After 19 months of representation, attorney Dorrell has never met Rauhauser, who does not reside in Texas. After plaintiffs sued Rauhauser, Rauhauser s online research of Dorrell s past SLAPP-suit appellate victories led him to request Dorrell s representation. The representation was an arm s-length transaction, with no attendant considerations to call into question the reasonableness of the hourly rates charged or the number of hours expended. This was not pro bono representation of a past or existing client as a courtesy for past business. 13

24 (ix) The experience, reputation, and ability of the lawyer or lawyers performing the services. The experience, reputations, and abilities of the lawyers performing the services for Rauhauser were of the highest caliber and were readily apparent to the Court at all phases of the litigation. (x) Whether the fee is fixed or contingent on results obtained or uncertainty of collection before legal services have been rendered. The fee negotiated in the engagement letter signed by Neal Rauhauser called for payment of an initial retainer of $1,500.00, which Rauhauser paid, and for future billings at a rate of $ per hour for Dorrell s services. Hanszen Laporte, LLP, sent Rauhauser regular monthly bills showing services provided and amounts incurrerd. Rauhauser is contractually liable to pay these amounts. The firm of Hanszen Laporte advanced expenses on Rauhauser s behalf and carried a receivable of over $300, with a significant risk that no payment would ever be collected. This was anticipated at the time the representation was commenced (although not to the extent it ultimately reached), and the firm s usual hourly rates for noncontingent fee cases were adjusted upward by approximately 50% to reflect this risk. These facts, too, weigh heavily in favor of the Court s finding that the fee charged in the case at bar was reasonable, and that the interests of justice and equity require that it be awarded to Rauhauser from plaintiffs in full measure. Therefore, the Court GRANTS Rauhauser s motion and orders that plaintiffs James McGibney and ViaView, Inc., shall, jointly and severally, pay to defendant Neal Rauhauser the following amounts: (i) (ii) (iii) Total reasonable attorney s fees, litigation expenses, and court costs for the trial and first appeal of $300,383.84, as justice and equity require; Sanctions sufficient to deter the filing of similar actions by plaintiffs in the future of $1,000,000.00; Conditional appellate attorney s fees of $50, for a second appeal to the court of appeals, which such appeal does not result in a complete reversal of all amounts awarded; and 14

25 (iv) Conditional appellate attorney s fees of $25, if a petition for review is filed in the Texas Supreme Court, which such petition does not result in a complete reversal of all amounts awarded. Plaintiffs shall pay the foregoing amounts, except for the conditional awards of appellate attorney s fees, to Neal Rauhauser not later than 30 days after the date this order is signed. Furthermore, in view of plaintiffs history of filing numerous lawsuits with the willful, malicious intent to injure those who have spoken critically of plaintiffs, the Court finds that monetary sanctions alone will not be sufficient to deter plaintiffs from filing similar such suits in the future. Therefore, in addition to the monetary sanctions awarded above, the Court orders the following nonmonetary sanctions: (i) Plaintiffs shall disclose and transfer to Rauhauser the following domain names registered and used by plaintiffs and all other such domain names owned by plaintiffs or their agents no later than 5 days after the date on which the Court signs its order: nealrauhauser.com nealrauhauser.exposed rauhauserunmasked.com nealrauhauser.org nealrauhauser.net nealrauhauser.info (ii) Plaintiffs shall disclose all domain names that plaintiffs or their agents have registered using any form of the name of attorney Jeffrey L. Dorrell no later than 5 days after the date on which the Court signs its order: 15

26 (iii) (iv) (v) Plaintiffs shall publish for 365 consecutive days a written apology on the first page of all websites owned by either plaintiff for calling Rauhauser a woman beater and pedophile supporter and admitting that plaintiffs had no evidence to support such accusations when they made them. Plaintiffs shall publish for 365 consecutive days a written apology on the first page of all websites owned by either plaintiff for calling Dorrell a pedophile and admitting that plaintiffs had no evidence to support such an accusation when they made it. The Court orders that plaintiff James McGibney shall stand at the entrance to the civil courthouse in Fort Worth, Texas, from 8:30 AM to 11:30 AM each day, for 20 consecutive business days beginning 5 days after the date the Court signs its order, wearing a sandwich sign at least 3 feet in height and reading in letters at least 3 inches in height on both sides, I AM BEING PUNISHED FOR TELLING LIES ABOUT MY ENEMIES ON THE INTERNET AND FILING BASELESS LAWSUITS AGAINST VICTIMS WHO COMPLAIN ABOUT IT. this suit. This is a final, appealable order that disposes of all parties and claims in SIGNED the day of, of PRESIDING JUDGE 16

27 APPROVED AND ENTRY REQUESTED: By: /s/ Jeffrey L. Dorrell. Jeffrey L. Dorrell State Bar No Philip A. Meyer State Bar No Katy Freeway, Suite 850 Houston, Texas Telephone: FAX: ATTORNEYS FOR DEFENDANT NEAL RAUHAUSER 17

28 CERTIFICATE OF SERVICE I hereby certify that on 12-3, 2015, a true and correct copy of the foregoing was sent by: X Hand delivery Certified mail Telephonic document transfer E-service in accordance with TEX. R. CIV. P. 21a to the following counsel of record: Mr. Evan Stone evan@stonevaughanlaw.com Stone & Vaughan, PLLC 624 W. University Drive, Suite 386 Denton, Texas Telephone: FAX: COUNSEL FOR PLAINTIFFS /s/ Jeffrey L. Dorrell JEFFREY L. DORRELL 18