One Last Memo of Law

[00:00:00]Good morning, everybody.

[00:00:05]Felt like an old school day today.

[00:00:09]Getting ready in the closet.

[00:00:12]Hope everybody is >> [sighs and gasps] >> limping their way across the finish line to the end of this week. I know that I am.

[00:00:19]Good lord.

[00:00:21]It's like just when you think you're going to have like a down moment at work, like okay, all these things are ending and I feel like and then like boom, stuff [clears throat] just comes out of the woodwork.

[00:00:33]Good lord. That is what has happened to me this week, but we shall survive. Do you know why? Because we contain multitudes. That's why.

[00:00:42]So, let's talk about this um because I know everybody's trying to understand it.

[00:00:49]>> [clears throat] >> Yes, it's typical. So, when there is an award of attorney's fees, right? Remember, it's a two-step process. First, the court has to find that someone is entitled to recover reasonable attorney's fees for certain things. Then, there's a second phase where they decide what is reasonable attorney's fees for that thing.

[00:01:07]Um and just like any other motion in the case, there's arguments to be made all the way around. There's case law all the way around, right? So, the Lively team is probably going to try to throw as much in there as they possibly can and they're going to write some memorandum of law that says that because they got an award of attorney's fees for defamation, that like every single time anyone had a meeting about the motion to dismiss, that counts.

[00:01:40]Right? And then Wayfair is going to file a response that says, "No, it doesn't.

[00:01:45]Here's case law that says you have to parse it out and be specific." So, it's just another motion like any other motion where there is precedent and interpretation on both sides. Now, the only difference in this case versus all the other motions that you've seen here or in any other matter is that Lively has to actually produce the records when she produces this memorandum, right? So she has to say here are the legal arguments that support what we're asking for and here are the actual invoices that were sent and presumably paid for.

[00:02:20]Um This is a much easier process, of course, when it's the entire case.

[00:02:29]When it's like, "Hey, there were two claims. You won them both. They both have attorneys fees attached to them.

[00:02:35]Congratulations, you get attorneys fees." Then all you're arguing over is whether those attorneys fees are reasonable, right? Is it reasonable for >> [clears throat] >> six people to be in a meeting? Is it reasonable for the research on this particular issue to have taken six hours? Is it reasonable that five different lawyers had to edit the same document, right? You're just getting into the reasonableness. In this case, because we're talking about a very small part of a very large case, an even more complicated one basis of a motion to dismiss that had multiple basis in it, Lively's going to have to argue because it's her burden to show exactly which hours of time are reasonable attorneys fees that she deserves to be paid back for.

[00:03:25]Now, >> [laughter] >> even though this is to some degree normal in terms of, you know, parties making their arguments to the court, I feel very comfortable saying that when a judge tells you how many pages and what the spacing has to be like, he is telling you, "Wrap it up."

[00:03:44]"Wrap it up. We're not going to have a whole other trial on this.

[00:03:48]Let's go. I want the law. I want the invoices. Give them a week to look at it because Wayfair can't respond until they know what she's asking for. Let them respond, and we're going from there. So, he is telling them um let let's get this done.

[00:04:04]I know a lot of people have speculated on the fact that they've asked for the extension. Are they trying to put together something in California? I I think it's just cuz it's summer. I mean, I can tell you from my experience that, you know, these people, you know the kind of money these people are making. They're going to Sun Valley and Hawaii and Bahamas houses and stuff and the Hamptons. Like, they're just like everybody else.

[00:04:28]Everyone asks for extensions in the summer, and everyone asks for extensions in December. I wouldn't be surprised if it's just that people are busy. So, I'm not ready to cry conspiracy yet.

[00:04:38]Um I think he's giving them a short amount of time to say, "It really shouldn't be that hard to figure out which uh entries go with what?"

[00:04:51]Now, I do think there's going to be some calls he's going to have to make about like if there's an an entry that just says, you know, uh work on edit, research for motion to dismiss Wayfair's complaint, how do we parse that out? Wayfair is going to say, "I'm not paying for the whole thing."

[00:05:11]But Lively's going to say, "But I can't separate it out cuz that's not how the entries were written." So, that's the kind of stuff these memoranda of law are going to cover.

[00:05:18]Based on what's happened in the case so far, I think it's a pretty good bet that they're going to try to get way more than they're entitled to, right?

[00:05:27]Because that's what they've done all along. So, I think that we will expect them to ask for the moon.

[00:05:34]And then Wayfair will be like, "How about one star?"

[00:05:38]How about one?

[00:05:39]Um and then the judge will make the decision.

[00:05:42]And remember that just like the first phase of this, the do they get fees under 47.1 at all phase, the amount of attorney's fees given based on the terms of their settlement agreement also cannot be appealed.

[00:05:55]So, the judge is going to be conscious of probably like I want to kind of put this one down the middle of the fairway because nobody has the right to challenge it. So, that's what's going on there.

[00:06:06]My outfit is not very exciting, but it is cute. Um this I have this from Mango.

[00:06:12]It has become my new favorite. It's like a cotton, but it also has like a silky feeling to it. It's just it breathes and I love the shape of it. I like the way it lays. These are old J. Crew chambray shorts. I don't know what shoes I'm going to wear. I haven't gotten that far yet.

[00:06:28]But this is it.

[00:06:30]Hope everybody has a good day. Talk to you later.