July 12, 2013 1:52pm PT by Eriq Gardner
David Hester Ordered to Pay A&E's Legal Fees in 'Storage Wars' Rigging Lawsuit
Storage Wars ex-star David Hester must now pick up some of A&E's legal bill after losing the first round of a lawsuit that contends the highly rated reality TV series is rigged. At a hearing Friday, a Los Angeles judge ordered Hester to pay $122,692 of the defendants' legal costs.
In December, Hester sued A&E and Original Productions with allegations that producers planted items of memorabilia that influenced the outcome of the auction-themed show. Hester says he was let go after complaining, which his attorney says constitutes wrongful termination in violation of public policy. Further, Hester claimed that A&E and Original engaged in unfair business practices insofar as producers allegedly making it appear that he was less skillful than his competition and thus prompting other vendors to stop doing business with his shops.
A&E responded by saying that Hester was attempting to portray himself as a crusading whistleblower when really he was upset at how contract negotiations were going to return to the series. The defendants also brought an anti-SLAPP motion, saying that Storage Wars was protected by the First Amendment and that Hester was unlikely to win.
In March, A&E was successful in getting the judge to reject the unfair business practices claim. The lawsuit proceeds, but because A&E was victorious on its anti-SLAPP motion, it was entitled to attorney fees and costs.
The defendants submitted $181,457 -- or $138,194 for A&E, incurred by its attorneys at Davis Wright Tremaine; and $43,263 for Original, incurred by its attorneys at Mitchell Silberberg & Knupp.
A&E was paying its lawyers hourly rates ranging from $260 to $485 to work on the case while Original was paying $370 to $485. (There were separate expenses for paralegals.)
To beat Hester's claim, the defendants argued that courts have only applied "unfair business practices" to commercial speech, not expressive works like television programs.
The defendant's lawyers including THR Power Lawyer Kelli Sager collectively spent 354 hours on the anti-SLAPP motion, which included having to refute Hester's contention that A&E's press release constituted commercial speech. Plus, they say they spent 79 hours for the fee motion.
"Plaintiff’s objections about services for matters outside the scope of the anti-SLAPP and fee motions are not well-taken," wrote the judge in a tentative order, which we hear has now been adopted. "Defendants’ claims are limited to appropriate services related to those motions, as well as matters that are intertwined with those motions or derived from common issues of fact and law. It is simply not feasible to separate each unit of time into compensable and non-compensable services."
But the judge did question the amount of staffing that went into the work.
He writes, "A&E’s billing records include time for 8 attorneys and 4 paralegals; Original’s records include time for 3 attorneys. This level of staffing is large and the descriptions of services indicate some overlap and duplication among attorneys within each firm and between the two firms – particularly when measured against the overall objective of the anti-SLAPP motion (striking one cause of action) and the limited role of Original (joining in A&E’s motion)."
So the judge decided to reduce A&E's attorney fees by 30 percent and Original's by 40 percent, thus arriving at the overall $122,692 figure that Hester must pay.
The rest of his lawsuit survives.
Hester is basing his wrongful termination claim on an amendment to the Communications Act of 1934, which makes it illegal for broadcasters to rig a contest of intellectual skill with the intent to deceive the viewing public. That came about in the wake of TV quiz-show scandals of the 1950s, but it remains to be seen how it will applied to the alleged faux reality of the reality TV genre.