Report and Recommendation This action having been referred to me to hear and report upon defendant Damian Garde’s Civil Rights Law §70-a(1)(a) demand for attorney’s fees and costs by order dated March 18, 2024 and published as 2024 N.Y. Misc. LEXIS 1218, and based upon the credible evidence and testimony presented at that hearing, I respectfully recommend that the Court direct the clerk to enter judgment in favor of defendant Garde and against plaintiff in the manner and for the reasons set forth below. Background As the Court noted in its decision giving rise to this proceeding before me: This action, which has already been the subject of multiple reported decisions, arises from defendant Garde’s December 2017 article in STAT reporting the accounts of five women that plaintiff had “for years perpetuated a toxic culture of sexual harassment…routinely subjecting young female assistants to pornography in the workplace, lewd jokes, and pervasive sexist comments…kept a set of breast implants on his desk, palpating them like stress balls during idle conversation…and wantonly demeaned and verbally abused female employees,” while managing a prominent hedge fund firm. (Amended Complaint, Ex. A., at 1). Plaintiff and his colleagues conceded during defendant’s Garde’s interview of them that “the firm had investigated claims against plaintiff,” (but had “concluded none rose to the level of ‘a sexually egregious behavior,’” without defining that standard) while plaintiff acknowledged having had breast implants in his office. (Amended Complaint, Ex. A., at 2; and Interview Transcript filed NYSCEF Doc. No. 16, at 19). In a final comment to defendant Garde prior to publication, one of plaintiff’s colleagues stated that “if this article proceeds I hope that you will be fair and focus on the person responsible, not the entire firm.” (Amended Complaint, Ex. A., at 2). On December 5, 2017, the article published under the headline “biotech hedge fund titan Sam Isaly harassed, demeaned women for years, former employees say.” (Amended Complaint, Ex. A, at 1). (March 18th Decision, at *1-3). That decision itself was the result of the Court’s prior decisions finding that plaintiff did not state a claim against Garde in this action, which were then followed by plaintiff’s prodigious subsequent litigation concerning that determination. Isaly v. Garde, 2022 NY Slip Op 32203(U) (Sup. Ct., New York Co.), adhered to in relevant part upon reargument, 2022 NY Slip Op 34108(U) (Sup. Ct., New York Co. 2022), affd. and app. dismissed, 216 A.D.3d 594 (1st Dept.), rearg and lv. denied, 2023 NY Slip Op 72896(U) (1st Dept. 2023), lv. dismissed, 40 N.Y.3d 1088 (Jan. 16, 2024), rearg. denied, 41 N.Y.3d 998 (May 23, 2024). The scheduling of this fee hearing was also the subject of extensive litigation before me, the Court, and the Appellate Division. See, Isaly v. Garde, 2024 N.Y. Misc. LEXIS 1621, *1 (Sup. Ct., New York Co. Apr. 8, 2024) (denying oral application to special master); Isaly v. Garde, 2024 N.Y. Misc. LEXIS 1644, *1 (Sup. Ct., New York Co. Apr. 10, 2024) (denying motion to Court to stay pending appeal); and Isaly v. Garde, Case No. 2024-02593, slip op., at 2 (1st Dept. Jun. 5, 2024) (Kern, J., in chambers) (denying interim stay pending action by full bench), stay denied, 2024 NY Slip Op 71498(U) (1st Dept. Jul. 25, 2024). Given the depth and detail of those prior decisions, I will not restate them here. The Parties’ Submissions and the Hearing Following the Court’s reference, I directed the parties to serve and file written submissions regarding defendants’ fee demands, and whether I could or should proceed on those papers alone or schedule an evidentiary hearing. (Apr. 8, 2024 Scheduling Order). Garde consented to proceeding on submissions only and sought $404,538.98 in fees and costs for legal work before the Court. (Mem. of Law in Supp., at 8; 19-20; and Transcript, at 54-55). Plaintiff objected to proceeding on submissions alone, and argued that the terms of the Court’s reference to me required a hearing and, in any event, a hearing was “necessary [to] adjudicate factual questions around…what percentage of the fees Garde has sought were incurred in the adjudication of Garde’s failed retroactivity and res judicata arguments, as well as on other related lawsuits, and the reasonableness of Garde’s counsel’s billing rates and staffing decisions.” (Mem. of Law in Opp., at 16). I subsequently scheduled a hearing. See, Deutsche Bank Trust Co. Ams. v. Parra, 83 Misc. 3d 1250(A), *1 (Sup. Ct., Westchester Co. Jul. 23, 2024) (collecting authorities and noting that it would be “error…to confirm the referee’s report absent a hearing where it was requested by a party”). I also directed the parties to submit a stipulated proposed order delineating the parties’ intended evidence and witnesses, and anticipated objections. (Sept. 11, 2024 Stipulated Order). Approximately 40 hours before being scheduled to appear though, plaintiff subsequently sought to cancel the hearing as unnecessary and proceed on the papers alone, which I denied. (Transcript, at 2-3). See, e.g., I.O. v. N.Y.C. Dept. of Educ., Dkt. No. 20-cv-5067, slip op., at 1 (S.D.N.Y. Jun. 21, 2021) (denying eve-of-trial application to proceed on papers alone in attorney’s fee claim). At the hearing, the parties’ presentations proceeded as anticipated by their stipulated order, including Garde’s exhibits and testimony from one of Garde’s attorneys, Jonathan Albano. Plaintiff neither offered exhibits in cross or direct nor called any witnesses. Both parties submitted written summations, written with the benefit of the transcript of the hearing. Plaintiff’s Constitutional Objections and the Anti-SLAPP Law Plaintiff, within the context of the hearing, asserts an as-applied constitutional challenge to Garde’s fee demand as being confiscatory and violative of plaintiff’s state and federal constitutional rights to petition the government for redress.1 (Transcript, at 13). Plaintiff’s objection is separate from his facial constitutional challenge already denied by the Court and presently pending appeal before the Appellate Division, First Department. (Transcript, at 13). After initially arguing that his constitutional objection was beyond the Court’s reference to me to consider, plaintiff subsequently waived any prior objections to my consideration of his as applied challenge on the record at the hearing. (Mem. of Law in Opp., at 5-6; and Transcript, at 57-58). That waiver alone confers sufficient jurisdiction upon me to report on the issue even if the scope of reference to me had been unclear as to this issue.2 See, Chang v. Chang, 190 A.D.2d 311, 319 (1st Dept. 1993). In considering plaintiff’s as-applied challenge, I find plaintiff’s argument unpersuasive. Plaintiff argues that his First Amendment right to petition limits Garde’s potential recovery in two ways: 1) that the First Amendment requires that Garde’s demand for attorney’s fees charged be cabined to only those fees charges for individual arguments that were successful in achieving Garde’s desired result of dismissal; and 2) that the Court must apply “the sort of…standards that apply,” in awarding punitive damages pursuant to Civil Rights Law §70-a(1)(c) to this demand for attorney’s fees pursuant to Civil Rights Law §70-a(1)(a). (Transcript, at 65; and Plaintiff’s Written Summation, at 1-3). Coupled with plaintiff’s objections of generally excessive billing (which I discuss later in this report), plaintiff asserts that Garde’s demand becomes “constitutionally impermissible because its effect is to punish [plaintiff's] exercise of his right to petition the courts.” (Plaintiff’s Written Summation, at 1). Although much of plaintiff’s as-applied challenge hinges on the arguments raised in plaintiff’s facial challenge (about which I am bound by the Court’s prior denial of that challenge), Garde is incorrect that plaintiff’s argument is wholly precluded by the Court’s determination of the facial challenge.3 (Garde’s Written Summation, at 3-4). That said, the result is the same, and I address the two prongs of plaintiff’s as-applied challenge in turn. As to the first prong, my analysis of plaintiff’s positions is governed by the bedrock principle that the constitutionality of the adversarial system of justice is beyond cavil. “Our adversarial system requires parties to present the court with arguments minimally requiring that they are entitled to relief.” Brockett v. Effingham Co., __ F.4th __, 2024 U.S. App. LEXIS 21992, *1-2 (7th Cir. Aug. 29, 2024). Indeed, as a means of promoting the proper and efficient administration of justice, courts have long cited future preclusion rules to remind counsel that they (tempered of course by their professional obligations) “should play to win” from the outset. Mitchell v. Mills Co., 573 F. Supp. 332, 336 (S.D. Iowa 1987) (noting risks of withholding federal arguments from proceedings in state proceedings with the intent of bringing them in subsequent federal litigation). In doing so, “[c]ounsel can choose to advance a kitchen sink of arguments,” or “carefully choose a more limited set” as the civil justice system “is premised on the idea that interested parties will bring all the issues they wish to have a court consider, thus allowing courts to make the most informed decision in each case.” People v. Weber, 40 N.Y.3d 206, 216 (2023) (Wilson, C.J., dissenting). Inasmuch as Garde may facially seek attorney’s fees for prevailing against plaintiff’s SLAPP claim, Garde cannot be constitutionally precluded from engaging in the very adversarial system of justice contemplated by the Constitution in order to prevail. Although plaintiff relies (at page 2 of his summation) upon a District of Columbia Court of Appeals holding in advancing his position, that same decision rejected an as-applied challenge to anti-SLAPP remedies in noting that “[t]he fee-shifting statute did not discourage appellants from asserting any claim in this case,” and “[w]e therefore do not see how appellants can argue that the statute was unconstitutional in its application to them.” Khan v. Orbis Bus. Intelligence Ltd., 292 A.3d 244, 256-257 (D.C. 2023). Importantly, the Khan court went further, stating that “it is apparent that the circumstances under which attorneys’ fees are to be awarded in litigation…and the range of discretion of the courts in making those awards are matters for Congress to determine” as to federal laws, “and it is for state legislatures to determine those matters in litigation under state law.” Khan, at 258, citing, Alyeska Pipeline Serv. Co. v. Wilderness Socy., 421 U.S. 240, 262 (1975). Close consideration of plaintiff’s proposed plan for relief quickly reveals its problems. The Supreme Court has held, and New York courts have adopted for state law purposes, that “trial courts need not, and indeed should not, become green-eyeshade accountants,” in considering fee demands, as “[t]he essential goal in shifting fees…is to do rough justice, not to achieve auditing perfection.” Shapiro v. Kurtzman, 81 Misc. 3d 819(A), *6 (Sup. Ct., Rockland Co. 2023), quoting, Fox v. Vice, 563 U.S. 826, 838 (2011). Plaintiff’s proposed course of action — which would seem to necessitate parsing individual papers to pro rate their accompanying bills based upon the relative persuasiveness of their individual sections — is the very auditing the Supreme Court rejected as unnecessary in Fox. It would also push SLAPP defendants into the position of risking future recoupment by pursuing a broad strategy to garner their best chance of relief from SLAPP’s or the chance of needlessly protracted litigation by leaving potentially winning arguments (subject to preclusion later for having been waived) on the cutting room floor. The Constitution does not require these choices. Plaintiff’s second prong fares no better. That Garde seeks only attorney’s fees pursuant to Civil Rights Law §70-a(1)(a) and not the full panoply of compensatory and punitive relief available to SLAPP defendants under Civil Rights Law §70-a(1) heavily favors denying plaintiff’s as-applied challenge because the relief in question is not punitive in name or substance. An award of attorney’s fees is a compensatory and restorative remedy intended to return a defendant to their financial status quo ante but for a plaintiff’s initiation of a SLAPP against them, as opposed to punitive damages “allowed…not because of any damages suffered…but as the expression of the condemnation of the community, a kind of hybrid of outrage and imposition of a criminal fine…to punish and to deter others from acting similarly.” Rental & Management Assocs. v. Hartford Ins. Co., 155 Misc. 2d. 547, 550 (Sup. Ct., New York Co. 1992), affd., 206 A.D.2d 288 (1st Dept. 1994). While plaintiff correctly notes the line of criminal precedent finding that restitution orders in criminal cases are considered punitive in nature, that is because those orders are granted as part of a punitive criminal sentence and often expressly in lieu of or as an offset to a term of incarceration. See, Penal Law §60.27; and, e.g., People v. Nowell, 80 Misc. 3d 689, 695-698 (Sup. Ct., New York Co. 2023) (collecting authorities and discussing the punitive nature of criminal conviction and sentencing in New York). See also, People v. Carey, 130 Misc. 2d 228, 228 (Oswego City Ct. 1985); and People v. Spector, 136 Misc. 2d 30, 33 (Oswego City Ct. 1987) (Penal Law §60.27 conflates compensatory and punitive damages for purposes of ordering an award). Indeed, commentators have expressly noted that restitution can be “an invaluable tool in seeking to obtain either a reduced incarceratory sentence or a non-incarceratory sentence.” Spiro Tsimbinos, Practice Insights: Issues Involved with Seeking Restitution and Reparations (Lexis 2024). While any civil judgment likely provides some deterrent effect, that (unlike in criminal actions) is not the primary objective over restorative justice in civil litigation.4 Particularly where, as here, there are express statutory distinctions between types of relief and the standards upon which they can be granted, I find that applying criminal principles to this civil action would be inappropriate.5 Even if I were to apply plaintiff’s proposed criteria to Garde’s fee demand however, Garde’s demand would pass constitutional muster. Plaintiff concedes that his First Amendment right to petition protects only those “good-faith, plausible arguments that are not frivolous, that are not baseless.” (Transcript, at 14). But, the Court found that plaintiff’s claims against Garde were baseless in July 2022, adhered to that determination in December 2022, and the First Department affirmed that adherence in May 2023. See, Isaly v. Garde, 216 A.D.3d at 595-596. The Second Circuit found as much as well in companion litigation against Garde’s publisher, upon which the Court partially relied in the same decision the First Department affirmed. See, Isaly v. Garde, 2022 NY Slip Op 34108(U), at *4, citing, Isaly v. Boston Globe Media Partners LLC, Dkt No. 21-13330-cv, 2022 U.S. App. LEXIS 1006, *3 (2d Cir. Jan. 13, 2022). Even taking plaintiff’s assertions arguendo, that plaintiff’s claims may not be sanctionably frivolous does not make them well-founded as a matter of law. See, e.g., Klein by Klein v. Seenauth, 180 Misc. 2d 213, 222 (Civ. Ct., Queens Co. 1999) (discussing standards of arguments). Moreover, courts have recognized that objectively groundless arguments may be the basis for civil penalties even if made in good faith. Hill v. Norfolk & W.R. Co., 814 F.2d 1192, 1202 (7th Cir. 1987).6 Even under the pre-reform standard plaintiff urges in this action, plaintiffs case against Garde did not clear the bar, and Garde’s demand for fees is constitutional as applied here. Discussion Putting plaintiff’s constitutional objections aside and considering them as statutory concerns, neither party has identified any authority indicating that the Legislature intended to limit fee recoupment in the manner plaintiff suggests, and my own research has not identified any authority either. Rather, what is clear (particularly from Senator Hoylman-Sigal’s sponsoring memorandum as noted previously in this litigation) is the Legislature’s strong endorsement of a public policy ensuring that SLAPP defendants are not left in a worse position than they would have been had they not been sued. For the same reasons the Constitution does not bar ‘play to win’ advocacy, Civil Rights Law §70-a(1) does not either. In considering Garde’s demand for attorney’s fees and costs, the Court directed that I conduct the traditional 12-factor lodestar analysis of the demand.7 (March 18th Decision, at *13 n. 9). In applying those factors, the goal again is neither the ‘green eye-shade accounting’ nor ‘auditing perfection’ criticized in Shapiro and Fox, but an overarchingly fair result that takes the “overall sense of a suit,” into account and “may use estimates in calculating and allocating an attorney’s time.” Fox, supra. A special master or referee also “need not recite and make separate findings as to all twelve [lodestar] factors, provided that it takes each into account in setting the attorneys’ fee award,” which I have done. S.P. v. N.Y.C. Dept. of Educ., Dkt. No. 20-cv-8380, 2022 U.S. Dist. LEXIS 5632, *11 (S.D.N.Y. Jan. 11, 2022) (quotation and citations omitted). In considering the sense of this action and the traditional lodestar factors, the results largely support Garde’s demand. At the outset in considering this fee demand, I note that, contrary to plaintiff’s arguments, Garde’s relevant litigation of this action after the enactment of Chapter 250 was driven entirely by plaintiff’s facially voluntary choice to continue and prolong this action in the face of anti-SLAPP reform. Indeed, the Court dismissed all of plaintiff’s claims against Garde without awarding fees in July 2022 in Motion Seq. No. 004. The ensuing 8 motions that have continued the litigation of this action (to say nothing of plaintiff’s litigation in the Appellate Division and the Court of Appeals, which is not presently before me as noted at pages 54 and 55 of the transcript) are because plaintiff elected to continue in the face of that reform, and pave the path that has led the parties to where they are now. Garde’s papers are replete with examples. (Mem. in Supp., at 6-8). Instead of pausing to consider his chances of success following the Court’s decision — which found that plaintiff failed to state a claim even under pre-reform defamation law in New York — plaintiff chose instead to “buy the ticket [and] take the ride.” Hunter S. Thompson, Fear and Loathing in Las Vegas (1971). When the time came to litigate Garde’s fee demands — in a hearing that plaintiff insisted was necessary until the very last moment — plaintiff offered little in opposition. I find, in taking the overall sense of this action as I am permitted following Fox, that plaintiff’s litigation of this action following the Court’s determination of Motion Seq. No. 004 did not have a reasonable likelihood of success, and augurs against minimizing Garde’s fee demand. Turning to the 12 specific lodestar prongs, the time limitation and undesirability prongs are the weakest for Garde. The record does not indicate any exceptional time pressure to defend against plaintiff’s claims, notwithstanding plaintiff’s opposition to stays in Motion Seq. Nos. 006 through 008. Nor is there any indication that Garde’s defense was somehow undesirable to the bar. If anything, the defense of a reporter on alleged First Amendment grounds revolving a prominent issue may well be attractive to the bar. Neither of those criteria strongly support higher fees. The remaining 10 prongs are another matter. The results Garde’s attorneys obtained are not subject to reasonable question: they won resoundingly. I am keenly aware of the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite of counsel (all of whom on all sides are well-regarded) to perform their tasks in this action, all of which favor a substantial fee award. Although Garde’s attorneys agreed to substantially discounted rates as part of a longstanding business relationship, that logically came at the expense of those attorneys’ availability for more lucrative work at their traditional rates. (Transcript, at 28-32). The core questions left to consider are plaintiff’s allegations of deficient record-keeping, unnecessary staffing, and unnecessary time spent. On the limited factual opposition presented, I address those in turn. Garde’s Attorneys’ Record-Keeping Plaintiff argues that Garde’s attorneys impermissibly “block-billed in a manner that makes it difficult to disaggregate fees that are potentially recoverable from those that are not.” (Plaintiff’s Written Summation, at 3). Plaintiff’s counsel also questioned Mr. Albano in detail about Morgan Lewis’ timekeeping practices and those of the individual professionals who billed on this matter regarding their billing accuracy and contemporality. (Transcript, at 46-49). Plaintiff correctly notes that courts have imposed substantial reductions to fee demands where “block billing makes it impossible to determine the appropriateness of the fees charged,” in keeping the obligation to conduct “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Northern Leasing Sys., Inc. v. Estate of Turner, 2012 NY Slip Op 30156(U), *4 (Sup. Ct., New York Co. 2012); and Haart v. Scaglia, 78 Misc. 3d 1238(A), *15 (Sup. Ct., New York Co. 2023). However, the Second Circuit has also noted that block-billing “is by no means prohibited…because block billing will not always result in inadequate documentation of an attorney’s hours,” and that the court has “found block billing to be permissible as long as the district court is still able to conduct a meaningful review of the hours for which counsel seeks reimbursement. Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). One New York court has held that a referee committed clear error in reducing attorney’s fees due to block-billing “absent a finding that the block billing practice obscured the nature of attorney’s actions and connected fees.” Arbor-Myrtle Beach PE LLC v. Frydman, 79 Misc. 3d 1223(A), *3 (Sup. Ct., New York Co. 2023).8 In considering the pre-hearing affirmations, the invoices themselves, and the testimony at the hearing, I find that Morgan Lewis’ record-keeping and billing was sufficiently clear to determine the appropriateness of Garde’s fee demand. Although much was made of the contemporality of Morgan Lewis’ records, the unrefuted record indicates that timekeeping records were generated in real-time in most circumstances at least and finalized at week’s end in any event. (Transcript, at 46-48). Plaintiff has not identified any case, law, or rule stating that records must be made truly simultaneously as is possible with some electronic time keeping systems (and which Mr. Albano testified he used for his billing in this action) and I find that the potential difference between electronic timekeeping and paper-and-pen records reconciled by the end of the work week was de minimus on the record before me. Cases that have raised concerns about reconstructed billing bear little resemblance to the facts presented here. Cf, M.B. v. N.Y.C. Dept. of Educ., Dkt. No. 21-cv-10085, 2022 U.S. Dist. LEXIS 23716 (discussing billing concerns in IDEA fee litigation). While some of the billing entries were more exacting than others, and Garde’s attorneys acknowledged that some billing ended up comingling work on plaintiffs various and interwoven actions against Garde, I credit Garde’s voluntary reductions as a result of them.9 (Transcript, at 38). Even if “[g]reater specificity of billing entries is, from this Court’s perspective, desirable…the relative lack of it here does not justify eliminating” the hours claimed from consideration, especially in light of Garde’s voluntary reductions. A.D. v. N.Y.C. Dept. of Educ., Dkt. No. 18-cv-3347, 2019 U.S. Dist. LEXIS 42738, *32 (S.D.N.Y. Mar. 21, 2019). That the multiple trial court actions across different courts that raised complications were commenced by plaintiff (rather than one action about one transaction) is also not lost upon me. I am also mindful of the push-pull balance between requiring mathematical exactitude and the public’s desire not to drive further litigation expense to achieve that exactitude. Particularly in a context where so-called ‘fees-on-fees’ can be sought, an overly zealous demand for hyperdetailed billing that is itself time-consuming may quickly become a double-edged sword if the goal is fee optimization. See, e.g., NYP Holdings. Inc. v. N.Y.C. Police Dept., 2024 NY Slip Op 31675(U), *5 (Sup. Ct., New York Co. May 13, 2024) (holding in the context of freedom of information requests that since “the statute contemplates the recovery of reasonable litigation fees incurred in a proceeding…the proceeding necessarily involves the efforts to obtain those fees”); and Young v. South Queens Park Assn., Inc., Dkt. No. 19-cv-1354, 2020 U.S. Dist. LEXIS 267670, *7 (E.D.N.Y. May 28, 2020) (reminding counsel that “[l]etting the perfect be the enemy of the good only disadvantages the parties by forcing litigation and delaying resolution”). In that light, I find that any legitimate objections to Garde’s invoices due to alleged commingling of the parties’ matters or lack of billing detail have been addressed through Garde’s voluntary reductions. Garde’s Litigation Staffing Plaintiff objects to Garde’s utilization of partners over associates, and associates over support staff, in performing various litigation tasks. (Mem. in Opp., at 13-16; and Plaintiff’s Written Summation, at 3). Courts have noted that “[o]n a fee-shifting application, the governing test of reasonableness is objective; it is not dictated by a particular client’s subjective desires or tolerance for spending.” S.H. v. N.Y.C. Dept. of Educ, Dkt. No. 21-cv-4967, 2022 U.S. Dist. LEXIS 14385, *21 (S.D.N.Y. Jan. 26, 2022) (quotation and citation omitted), affd, sub nom. H.C. v. N.Y.C. Dept. of Educ, 71 F.4th 120 (2d Cir. 2023). Staffing (and billing) choices are governed instead by whether “the plaintiff spent the minimum necessary to litigate the case effectively,” and “a reasonably thrifty client made aware of the adequacy of plaintiffs core claims would have opted for less costly representation.” Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d 31, 52 (S.D.N.Y. 2015) (quotations and citations omitted). While fee-shifting cases make much of Beastie Boys’ adage comparing the luxury Cadillac Escalade and the everyman Honda Civic as modes of transportation, both sides in this case appear to have chosen high performers, which informs the reasonableness of Garde’s fees.10 Plaintiff (by his counsel’s own words) chose one of the “relatively few lawyers who specialize in representing the plaintiffs in defamation cases” nationwide to represent him, and Garde was allowed to retain well-regarded litigation counsel to oppose plaintiff. (Transcript, at 59). Simply put and in keeping with Beastie Boys’ analogy: if plaintiff chose a Ford Mustang, Garde was not required to race plaintiff with a Toyota Prius. See, e.g., Horrible Bosses (New Line Cinema 2011) (in responding to incredulity at allegedly drag racing in a Prius, stating “I don’t win a lot”). Garde’s exhibits also indicate an appropriate distribution of work amongst partners, associates, and support staff. As indicated in Garde’s Hearing Exhibit J (NYSCEF Doc. No. 269) and functionally uncontested by plaintiff, “more than 70 percent of time billed in this matter was billed by non-partners,” such as “associates or legal-support personnel.” (Garde’s Written Summation, at 2). Given the import of the task at hand, which plaintiff has noted at various times over the course of this litigation to be of first impression or otherwise novel or complex (including in the scheduling of this fee demand), I do not find the allocation of tasks to be inappropriate in any meaningful scale. (Jun. 7, 2024 Scheduling Order). This has been a hotly litigated action that has been deeply briefed at every stage, frequently been the subject of motions for reconsideration (Motion Seq. Nos. 005 and 010) or vacatur (Motion Seq. Nos. 006 and 007), and the subject of four notices of appeal (NYSCEF Doc. Nos. 133; 146; 202; and 226), all of which brought by plaintiff with the prospect of additional work and scrutiny. This action has not been “beanbag,” and accordingly “we expect advocates in our adversary system of justice to use all of their forensic skills to persuade…of the wisdom or justice of their respective position,” drawing upon the work of experienced professionals on a case such as this. People v. Gilker, 232 N.E.3d 588, 608 (Ill. Ct. App, 4th Dist. 2023) (discussing the handling of serious litigation). I am also particularly persuaded by the resulting mean blended rate of hourly compensation, which Garde notes (and plaintiff does not contest) is well within local market rates. (Transcript, at 30-32). Time Defending Garde Garde seeks recoupment for 564.1 hours of work amongst all billing professionals after deducting time abandoned at the hearing. (Mem. in Supp., at 4). Plaintiff asserts that “the number of hours [Garde's attorneys] spent on many tasks are unreasonably high.” (Mem. in Opp., at 11). However, plaintiff’s stated examples in opposition (especially after factoring time Garde abandoned at the hearing) are few and threadbare. (Mem. in Opp. at 12-13). Haart’s non-binding admonition that I conduct “a conscientious and detailed inquiry” does not require me to “hunt[] for truffles buried in briefs” or papers though, or absolve plaintiff from indicating all that he believes supports his position. Haart, supra.; and United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). What is instead readily apparent from the litigation of this action is the sheer scale of relevant litigation. As discussed supra., this “litigation ain’t beanbag.” In re Forty-Eight Insulations, Inc., 84 B.R. 129, 134 (N.D. Ill. Bankr. 1988). Even with an array of experienced professionals, the sheer volume of work for defendants to respond to plaintiff — itself driven by plaintiff’s litigation choices — was substantial and necessitated a substantial number of hours. I am also utterly unpersuaded that communications between Garde’s counsel and Garde’s employer’s insurance carrier are not billable. At least as presented in the record before me, the scale of communication appears entirely consistent with defending “a reasonably thrifty client” in that the person footing the bill would have periodic updates as to how their money was being spent. Beastie Boys, supra. It is generally accepted thar “insurance companies are not in the business of giving away money to anyone who requests it,” and if anything, the insurance carrier’s verification role in fronting these expenses likely provided an additional layer of oversight to ensure thrift in spending. Fitts v. Fed. Natl. Mortg. Assn., 236 F.3d 1, 5 (D.C. Cir. 2001). While this should not suggest that an insurance carrier have a client-esque level of decision-making authority (and there is nothing in the record suggesting that here) discouraging some initial billing oversight by the first-level payor would be flatly contrary to the reasonably thrifty litigant standard underpinning fee-shifting litigation, and I do not recommend doing so here. Conclusion This action had concluded on July 14, 2022, when the Court issued its initial decision dismissing this action. (NYSCEF Doc. Nos. 128-129). Instead of putting this action behind him, despite having brought a claim that was not viable even under pre-reform defamation law and with ample notice of at least the prospect of potential anti-SLAPP liability, plaintiff instead decided to double down.11 Persisting in the face of that reality “should never be a conditioned reflex,” as “[a]bout half the practice of a decent lawyer consists in telling would-be clients they…should stop.” Hill, supra., quoting, 1 Jessup, Elihu Root 133 (1938). The Court has already described the litigation at issue in this demand for fees and costs as the “veritable archetype of the strategic litigation against public participation that the Legislature intended to curb in reforming the Anti-SLAPP Law.” (March 18th Decision, at *12). To the extent any question remained about that observation, the litigation of this fee demand has illustrated the point. At every stage, this action has been prolonged and deeply litigated long after its natural demise. To order less than full recoupment as sought on this record would be directly contrary to the letter and intent of the defamation reforms that underpin this proceeding. While my recommendation reflects a deduction for the $1,082.80 in fees Garde abandoned at the hearing, I otherwise find that Garde’s reduced demand for $401,501.50 in attorney’s fees and $1,954.68 in associated costs and totaling $403,456.18 is reasonable. As to determining pre-judgment interest, I find that July 14, 2022 is a reasonable intermediate date to select for determining interest pursuant to CPLR 5001(b). In addition to being roughly in the middle between the November 2020 inception of Chapter 250 and the Court’s decision finding that defendants were entitled to fees and costs, that date is a particular inflection point in this litigation where plaintiff could have elected to walk away with the potential of minimal future litigation. His choice to continue in the face of clear law to the contrary has paved the path to today, and supports the substantial fee award sought. Accordingly, I find, and respectfully recommend that the Court direct the clerk to enter judgment in favor of defendant Damian Garde and against plaintiff Samuel D. Isaly in the amount of $403,456.18 together with the costs and disbursements of this action, with interest from July 14, 2022. Dated: October 25, 2024
