United States District Court, District of Columbia
MEMORANDUM OPINION 
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
thirteen-day trial, a jury returned a verdict in favor of
Defendant Judicial Watch, Inc. (“Judicial Watch”)
on each of Plaintiff Larry Klayman's remaining claims.
Moreover, the jury found liability and awarded a total of
$2.8 million in damages to Counter-Plaintiffs Judicial Watch
and Thomas J. Fitton on their extant counterclaims against
now renews his motion for judgment as a matter of law, moves
for a new trial, and moves in the alternative for remittitur
of the jury's verdict. ECF No. 571 (“Post-Trial
Motions”). Also pending are Klayman's motion for
sanctions and entry of judgment, as well as his post-trial
“renewal” of that motion and Judicial Watch's
and Fitton's motion to strike the renewed version. ECF
Nos. 489, 572, 573.
asks the Court's indulgence of one or more excess pages
in both the opening and reply briefs of his Post-Trial
Motions. ECF No. 571, at ii; ECF No. 577. In each instance he
attempted to confer with Judicial Watch's and
Fitton's counsel, who either opposed a penultimate
version of his request or did not respond in time. Because
the corresponding briefs were timely filed, and they assist
in the Court's review of Klayman's Post-Trial
Motions, the Court shall GRANT both requests
and consider the briefs in their entirety.
consideration of the briefing,  the relevant legal
authorities, and the record as a whole, the Court
DENIES Klayman's Post-Trial Motions,
DENIES Klayman's Motion for Sanctions
and Entry of Judgment, DENIES Klayman's
Renewed Motion for Sanctions and Entry of Judgment, and
DENIES Judicial Watch's and Fitton's
Motion to Strike Plaintiff's Renewed Motion for Sanctions
and Entry of Judgment.
Court need not revisit the factual background summarized in
earlier opinions in this nearly thirteen-year litigation.
See, e.g., Mem. Op. (June 25, 2009), Klayman v.
Judicial Watch, Inc., 628 F.Supp.2d 112, 118-19 (D.D.C.
2009) (“Klayman I”), ECF No. 319, at
3-4.Similarly, the many twists and turns in this
case are amply recounted elsewhere. See, e.g.,
Klayman I, 628 F.Supp.2d at 119-23.The Court shall focus on
those proceedings specifically pertinent to the pending
early in this litigation, the Court granted summary judgment
for Judicial Watch as to the breach of contract claim in
Count I of its Amended Counterclaim, awarded damages of $69,
358.48, and reserved Judicial Watch's request for
prejudgment interest “until after liability has been
resolved as to all remaining claims and counterclaims.”
Mem. Op. (Oct. 14, 2009), Klayman v. Judicial Watch,
Inc., 661 F.Supp.2d 2, 4-6 (D.D.C. 2009)
(“Klayman II”), ECF No. 327; see
also Klayman I, 628 F.Supp.2d at 157-60. The Court's
treatment of claims and other counterclaims in prior
proceedings is beyond the scope of this Memorandum Opinion.
days before trial in February 2018, the Court issued an Order
laying out the claims and counterclaims that had survived to
that point. See Order (Feb. 23, 2018), ECF No. 487,
Klayman's remaining claims consisted of five allegations
of breach of contract asserted in Counts Seven and Eight of
his Second Amended Complaint. Id. at 8. Because
those allegations are somewhat specific and are not directly
at issue in the pending motions, the Court shall not repeat
them here. Ten of Judicial Watch's and Fitton's
counterclaims in their Amended Counterclaim remained viable:
Counts I, II, and III for breaches of contract associated
with unpaid expenses; Count IV for trademark infringement
under the Lanham Act, 15 U.S.C. § 1114(1)(a); Counts V
and VI for unfair competition under the Lanham Act, 15 U.S.C.
§ 1125(a)(1); Counts VIII and IX for breaches of
contract regarding disparagement of Judicial Watch and
Fitton, respectively; Count X for breach of contract
regarding certain Judicial Watch information; and Count XI
for breach of contract regarding a non-competition period.
Id. at 9-10; see also Am. Countercl., ECF
No. 86 (clarifying that Count IX was asserted only by
Fitton). The only further pre-trial update to the claims or
counterclaims was Judicial Watch's withdrawal of Count XI
of its Amended Counterclaim. ECF No. 492.
day before trial, Klayman filed his Motion for Sanctions and
Entry of Judgment, which dealt with the parties'
differing characterizations of Klayman's discovery
responses earlier in the case. The parties briefed the motion
during trial, and the Court reserved a decision until the
present Memorandum Opinion.
February 26, 2018, the trial commenced and continued through
March 14, 2018, when the jury returned its verdict. Klayman
introduced evidence as to his claims against Judicial Watch.
Again, the Court need not address proceedings as to
Klayman's claims. After Judicial Watch and Fitton
presented and rested their case as to their counterclaims,
Klayman moved for judgment as a matter of law as to those
counterclaims. See Trial Tr. 3191:6-7, 10-11;
3196:7-11. Rather than rule on the motion, the
Court took the issues raised by Klayman under advisement.
Id. 3191-3198. The Court instructed the jury orally
and provided the jury with a copy of the prepared
March 14, 2018, the jury delivered its verdict against
Klayman on each of his extant claims and in favor of Judicial
Watch and Fitton on each of their extant counterclaims. Jury
Verdict, ECF No. 560. Although damages were allocated by
counterclaim, the total awards were $2, 300, 000 for Judicial
Watch and $500, 000 for Fitton. See Id. at 4-8. The
Court allowed the parties to wait until after the court
reporter's completion of the full trial transcript to
brief Klayman's renewed motion for judgment as a matter
of law and any other post-trial motions. See, e.g.,
Order (Apr. 12, 2018), ECF No. 565, at 3; Min. Order of Mar.
March 15, 2018, the Court entered judgments on the jury
verdict for Judicial Watch and Fitton. J. on the Verdict for
Counterpl. Judicial Watch, Inc., ECF No. 548; J. on the
Verdict for Counterpl. Thomas J. Fitton, ECF No. 549. At
Klayman's request, the Court later vacated its issuance
of these judgments in order to avoid potential issues with a
time bar under the Federal Rules. See Order (Apr.
12, 2018), ECF No. 565; see also 11 Charles Alan
Wright et al., Federal Practice and Procedure Civil
§ 2812 (3d ed.) (“The time for seeking a new trial
runs from the entry of the judgment, not from the reception
of the verdict nor from the date the moving party receives
notice of the entry of judgment.” (footnotes omitted)).
10, 2018, the court-established deadline for his post-trial
motions, Klayman filed a renewed motion for judgment as a
matter of law, a motion for new trial, and, in the
alternative, a motion for remittitur of the jury's
verdict. He followed on July 13, 2018, with a renewed motion
for sanctions and entry of judgment, which Judicial Watch and
Fitton moved to strike.
that briefing of all pending motions has concluded, these
motions are ripe for resolution.
Renewed Motion for Judgment as a Matter of Law
Rule of Civil Procedure 50(b) provides that, once a jury has
rendered its verdict, the verdict loser “may file a
renewed motion for judgment as a matter of law.”
Fed.R.Civ.P. 50(b). Relief under Rule 50(b) is
“‘highly disfavored' because it
‘intrudes upon the rightful province of the
jury.'” Breeden v. Novartis Pharm. Corp.,
646 F.3d 43, 53 (D.C. Cir. 2011) (quoting Boodoo v.
Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994)).
Nevertheless, “if the court finds that the evidence was
legally insufficient to sustain the verdict, ”
Ortiz v. Jordan, 562 U.S. 180, 189 (2011), then the
court may “direct the entry of judgment as a matter of
law” in favor of the verdict loser or “order a
new trial, ” Fed.R.Civ.P. 50(b)(2), (b)(3). If,
however, the district court finds that the evidence was
legally sufficient to sustain the jury's verdict, then it
must “allow judgment on the verdict.”
context, the central question “is whether there was
sufficient evidence upon which the jury could base a verdict
in [the prevailing party's] favor.” Scott v.
District of Columbia, 101 F.3d 748, 752 (D.C. Cir.
1996). The evidence in support of the verdict must “be
more than merely colorable; it must [be] significantly
probative.” Richardson by Richardson v.
Richardson-Merrell, Inc., 857 F.2d 823, 828-29 (D.C.
Cir. 1988). However, because the fundamental role of the jury
is “to select, from among conflicting inferences and
conclusions, that which it finds most reasonable, ”
Primas v. District of Columbia, 719 F.3d 693, 698
(D.C. Cir. 2013) (quoting Metrocare v. Wash. Metro. Area
Transit Auth., 679 F.2d 922, 925 (D.C. Cir. 1982))
(internal quotation marks omitted), “the court cannot
substitute its view for that of the jury, and can assess
neither the credibility nor weight of the evidence, ”
Scott, 101 F.3d at 753. The jury's verdict must
stand unless “the evidence and all reasonable
inferences that can be drawn therefrom are so onesided that
reasonable men and women could not have reached a verdict in
plaintiff['s] favor.” United States ex rel.
Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d
871, 899 (D.C. Cir. 2010) (per curiam) (quoting McGill v.
Muñoz, 203 F.3d 843, 845 (D.C. Cir. 2000))
(internal quotation marks omitted).
a post-trial motion for judgment as a matter of law may be
granted only upon grounds advanced in a pre-verdict motion; a
movant who omits a theory from a pre-verdict Rule 50 motion
waives the theory as a basis of its post-verdict renewal.
See Whelan v. Abell, 48 F.3d 1247, 1251 (D.C. Cir.
1995); U.S. Indus., Inc. v. Blake Constr. Co., Inc.,
671 F.2d 539, 548 (D.C. Cir. 1982).
Motion for a New Trial
50(b) expressly permits a party that renews its motion for
judgment as a matter of law to “include an alternative
or joint request for a new trial under Rule 59.”
Fed.R.Civ.P. 50(b). Rule 59(a) provides that “[t]he
court may, on motion, grant a new trial on all or some of the
issues . . . after a jury trial, for any reason for which a
new trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1)(A).
trial judge should grant a new trial if the verdict is
against the weight of the evidence, damages are excessive,
for other reasons the trial was not fair, or substantial
errors occurred in the admission or rejection of evidence or
the giving or refusal of instructions.” Nyman v.
FDIC, 967 F.Supp. 1562, 1569 (D.D.C. 1997) (citing 11
Charles Alan Wright et al., Federal Practice and
Procedure § 2805 (1973)).
“[t]he decision whether to grant a new trial falls
within the discretion of the trial court.” Rice v.
District of Columbia, 818 F.Supp.2d 47, 60 (D.D.C. 2011)
(citing McNeal v. Hi-Lo Powered Scaffolding, Inc.,
836 F.2d 637, 646 (D.C. Cir. 1988)). When assessing a motion
for a new trial, “the court should be mindful of the
jury's special function in our legal system and hesitate
to disturb its finding.” Nyman, 967 F.Supp. at
1569 (quoting Lewis v. Elliott, 628 F.Supp. 512, 516
(D.D.C. 1986)) (internal quotation marks omitted).
Accordingly, a district court should exercise its discretion
“sparingly and cautiously, ” Miller v. Pa.
R.R. Co., 161 F.Supp. 633, 641 (D.D.C. 1958), and it
should grant a new trial “only where the court is
convinced the jury verdict was a ‘seriously
erroneous result' and where denial of the motion will
result in a ‘clear miscarriage of justice, '”
Nyman, 967 F.Supp. at 1569 (quoting Sedgwick v.
Giant Food, Inc., 110 F.R.D. 175, 176 (D.D.C. 1986))
(emphasis added) (internal quotation marks omitted).
jury verdict stands ‘unless the evidence and all
reasonable inferences that can be drawn therefrom are so
one-sided that reasonable men and women could not disagree on
the verdict.'” Czekalski v. LaHood, 589
F.3d 449, 456 (D.C. Cir. 2009) (quoting Curry v. District
of Columbia, 195 F.3d 654, 658-59 (D.C. Cir. 1999)
(opinion of Henderson, J.)).
Motion for Remittitur of the Jury Verdict
judiciary has developed certain principles to guide a
court's evaluation of a jury's damages verdict.
“In reviewing the amount of the jury's award, [the
court] . . . need not-and indeed cannot-reconstruct the
precise mathematical formula that the jury adopted. Nor need
[the court] explore every possible quantitative analysis or
compute the basis of each penny and dollar in the award. [The
court's] inquiry ends once [it is] satisfied that the
award is within a reasonable range and that the jury did not
engage in speculation or other improper activity.”
Nyman, 967 F.Supp. at 1571 (quoting Carter v.
Duncan-Huggins, Ltd., 727 F.2d 1225, 1238-39 (D.C. Cir.
1984)) (alterations in original) (internal quotation marks
court must be especially hesitant to disturb a jury's
determination of damages in cases involving intangible and
non-economic injuries.” Langevine v. District of
Columbia, 106 F.3d 1018, 1024 (D.C. Cir. 1997) (citing
Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st
Cir. 1991) (“Translating legal damage into money
damages-especially in cases which involve few significant
items of measurable economic loss-is a matter peculiarly
within a jury's ken.” (internal quotation marks
deference to the jury, based on the fact that “the
Seventh Amendment right to a jury trial pervades the realm of
jury verdict decisions, ” id., may only be
disturbed if “(1) the verdict is beyond all reason, so
as to shock the conscience, or (2) the verdict is so
inordinately large as to obviously exceed the maximum limit
of a reasonable range within which the jury may properly
operate.” Peyton v. DiMario, 287 F.3d 1121,
1126-27 (D.C. Cir. 2002) (citing, e.g., Jeffries v.
Potomac Dev. Corp., 822 F.2d 87, 96 (D.C. Cir. 1987)).
may not set aside a jury verdict merely deemed generous;
rather, the verdict must be so unreasonably high as to result
in a miscarriage of justice.” Langevine, 106
F.3d at 1024 (citing Barry v. Edmunds, 116 U.S. 550,
565 (1886)). In this Circuit, a court may remit a jury
verdict “only if the reduction ‘permit[s]
recovery of the highest amount the jury tolerably could have
awarded.'” Id. (quoting Carter v.
District of Columbia, 795 F.2d 116, 135 n.13 (D.C. Cir.
1986)). The moving party has the burden to prove that the
jury award is so excessive as to warrant a remittitur.
Carter v. Duncan-Huggins, Ltd., 727 F.2d at 1239.
“The granting of a motion for remittitur is
‘particularly within the discretion of the trial
court.'” Jeffries, 822 F.2d at 96 (quoting
Doe v. Binker, 492 A.2d 857, 863 (D.C. 1985)).
is no dispute that the Court has diversity jurisdiction over
the remaining breach of contract claims and counterclaims,
and federal-question jurisdiction over the remaining federal
statutory counterclaims. See 28 U.S.C. § 1331;
id. § 1332(a)(1), (c)(1); 2d Am. Compl., ECF
No. 12, ¶¶ 18, 20, 24 (alleging diversity of
citizenship and sufficient amount in controversy); Am.
Countercl., ECF No. 86, ¶¶ 1-3, 5, 6 (alleging
diversity of citizenship, sufficient amount in controversy,
and federal question). The Court need not consider other
grounds for jurisdiction. As to the breach of contract
claims, the parties' Confidential Severance Agreement
expressly dictates its interpretation using District of
Columbia law, “without regard to its choice of law
principles.” Confidential Severance Agreement,
Klayman's Ex. 1 (“CSA”), ¶ 23.
Klayman's Post-Trial Motions
not clear that Klayman raised each aspect of the arguments in
his Post-Trial Motions in either his Rule 50(a) motion for
judgment as a matter of law, or otherwise at trial. For
example, he now objects to a deposition designation to which
he largely did not object either before or during trial.
See infra Part III.A.5.iv.b. (discussing Dep. of
Stephanie De Luca [sic] 33:22-36:9 (“DeLuca
Dep.”)). “Rule 50(b) permits only the
‘renewing' of arguments made in prior Rule 50(a)
motions.” Campbell v. District of Columbia,
894 F.3d 281, 286 (D.C. Cir. 2018) (citing Fed.R.Civ.P.
50(b); Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008); Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394 (2006)). Nor can
“a Rule 59 motion [be used] to raise new issues that
could have been raised previously.” Kattan by
Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C.
such a deficiency could be dispositive of at least parts of
the Post-Trial Motions, Judicial Watch and Fitton do not make
this argument. Nor is it necessarily easy to parse what
Klayman did and did not raise previously for Rule 50 and Rule
59 purposes. Accordingly, in the interest of reaching any
necessary issues and conclusively resolving this case, the
Court shall assume, arguendo, that Klayman either
raised each of the issues sufficiently in his Rule 50(a)
motion, and/or that he raised issues at an appropriate time
so as to support a Rule 59(a) motion now.
reaching the merits of the Post-Trial Motions, the Court
shall dispose of several extraneous issues that Klayman
briefly raises. Submitting an affidavit from Mike Pendleton,
he suggests this is additional evidence supporting his claim
that Judicial Watch disparaged him. See
Klayman's Post-Trial Mots. at 3 n.2 & Ex. 1. But this
notion is problematic for several reasons. First, Klayman
misleadingly implies that this is a new affidavit. See
Id. (“Upon review of the Court
record, Mike Pendleton filed an affidavit that not
only confirms that Fitton testified falsely and indeed
disparaged Plaintiff/Counter-Defendant . . . .”
(emphasis added)). But the affidavit is not new; it bears a
January 2009 date, and the header shows that it was docketed
previously in this case. Second, Klayman was precluded from
introducing documentary evidence at trial, pursuant to the
Discovery Sanction that the Court shall review below. Third,
in any case, Klayman does not pursue the argument that the
jury erred as to his own claims. Rather, he attacks the
jury's verdict as to Judicial Watch's and
Fitton's counterclaims. The sanctions also dispose of
Klayman's other attempted use of this affidavit, namely
to claim now that certain testimony was false. See
Id. He cannot use documentary evidence to do now what he
would have been precluded at trial from doing. No. further
attention to the affidavit is necessary.
also briefly mentions the issue of his being the founder of
Judicial Watch, but only as an aside attempting to suggest
that Judicial Watch witnesses lied. See
Klayman's Post-Trial Mots. at 2-3 & n.2. The jury
heard testimony from both sides on this issue, and it was the
jury's role to weigh credibility and decide whom to
believe. The Court need not revisit this issue.
Post-Trial Motions begin with a series of issues that Klayman
evidently proposes to deal with through judgment as a matter
of law and/or a new trial. The Court shall walk through those
arguments before turning to his separate treatment of the
putative grounds for remittitur.
Counterclaim for Trademark Infringement
Post-Trial Motions raise a number of issues with the
jury's ruling as to Count IV of Judicial Watch's
Amended Counterclaim, which alleges trademark infringement.
Alleged Misattribution of Trademark Infringement
argues that the jury confused the actions of Friends of Larry
Klayman (“FOLK”) and Freedom Watch for actions of
Klayman himself. Klayman's Post-Trial Mots. at 9-10. His
reasons for thinking that the jury misattributed damages are
1) the size of a verdict for allegedly “minimal, if
any, conduct personally conducted” by him, and 2) the
fact that the verdict form did not distinguish any damages
attributable to FOLK and Freedom Watch. Id. at 10.
this rationale is a non-sequitur. Judicial Watch introduced
evidence to show that Klayman himself, acting through Saving
Judicial Watch, mailed solicitations and issued
advertisements that infringed on Judicial Watch's
trademarks. JW's Post-Trial Opp'n at 7-8. While
evidence about FOLK demonstrated how Klayman obtained
Judicial Watch donor information, that is irrelevant to
whether he made use of Judicial Watch trademarks in Saving
Judicial Watch solicitations and advertisements. Id.
Judicial Watch does not discuss specific activities of
Freedom Watch, but neither does Klayman. And neither party
addresses the status of Saving Judicial Watch, which, in any
case, Klayman has not shown is a legal entity distinct from
importantly, Klayman fails to identify any evidence of
alleged trademark infringement by FOLK or Freedom Watch that
the jury might have mistakenly attributed to him. Instead,
the jury heard sufficient evidence to attribute the alleged
infringement to Klayman himself. Accordingly, it was
unnecessary to specifically instruct the jury to distinguish
between FOLK's and Freedom Watch's activities and
Klayman's own. Neither judgment as a matter of law nor a
new trial is warranted on this basis.
Likelihood of Confusion
Klayman tries to show that the jury did not hear sufficient
evidence of alleged trademark infringement by Klayman himself
to satisfy the likelihood of confusion element of that
counterclaim. Klayman's Post-Trial Mots. at 10-11. He
urges that his Saving Judicial Watch campaign adequately
distinguished his efforts as separate from Judicial Watch,
despite the one reply envelope mailed by Saving Judicial
Watch that bore a “Judicial Watch” return
Court issued jury instructions as to the likelihood of
confusion element. The Court cannot recall seeing any model
instructions about this element that are specific to this
Circuit. Rather, Judicial Watch had proposed the
instructions, which it “derived from” general
model instructions, including some specific to the Ninth
Circuit. Order (Feb. 23, 2018), ECF No. 485 (citing 3A Kevin
F. O'Malley, Jay E. Grenig & William C. Lee,
Federal Jury Practice and Instructions § 159:25
(6th ed. 2012)). Although the Court made some edits to
Judicial Watch's proposed instructions during discussions
with the parties, the instructions as delivered closely
resembled the model instructions. See id.; Trial Tr.
does not expressly argue that those instructions were
incorrect. Rather, he attacks a strawman by arguing that the
evidence was insufficient to meet a standard that he proposed
for those instructions, but which the Court rejected. If the
Court had adopted Klayman's standard, the jury would have
needed to find that a “substantial” number of
people were likely to be confused. Klayman's Post-Trial
Mots. at 10-11 (quoting Johnson Publ'g Co., Inc. v.
Etched-in-Ebony, Inc., Civil Action No. 80-2933, 1981 WL
48204, at *4 (D.D.C. July 15, 1981), aff'd, 675
F.2d 1340 (D.C. Cir. 1982) (Table)) (internal quotation marks
omitted). Now Klayman also urges an
“‘appreciable' number” standard.
Id. at 10 (quoting Culliford v. CBS, Inc.,
Civil Action No. 83-1775, 1984 WL 787, at *3 (D.D.C. Jan. 20,
the number of people likely to be confused may be a
consideration, it is not the only one. Without adopting a
definitive test for likelihood of confusion, the United
States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) recently referred approvingly to
other circuits' multi-factor tests, which evaluate such
factors as “the strength of the mark, the similarity of
the marks, the proximity of the goods, the similarity of the
parties' marketing channels, evidence of actual
confusion, the defendant's intent in adopting the mark,
the quality of the defendant's product, and the
sophistication of the buyers.” Am. Soc'y for
Testing & Materials v. Public.Resource.Org, Inc.,
896 F.3d 437, 456 (D.C. Cir. 2018) (citing 4 J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition
§§ 24:31-24:43 (5th ed. 2018)); see also
Appleseed Found. Inc. v. Appleseed Inst., Inc., 981
F.Supp. 672, 675 (D.D.C. 1997) (reciting some of these
factors). That list does not expressly include
the number of people likely to be confused. Whether or not
the jury found that an appreciable or substantial number of
people could be led astray, there was sufficient evidence for
the jury to find that other factors were satisfied. For
example, the jury could have found that the Saving Judicial
Watch campaign involved similar marks deployed through
similar marketing channels, coupled with evidence of actual
confusion. Accordingly, Klayman has not met the high
threshold to disturb the jury finding that his use of the
trademarks was likely to confuse, and consequently this is no
basis for granting judgment as a matter of law or a new
Nominative Fair Use
next invokes the nominative fair use defense to a trademark
infringement claim, arguing that he qualifies because he was
“making commentary on the state of affairs at Judicial
Watch, and that he never even remotely claimed to be
affiliated with Judicial Watch in any way once the Severance
Agreement was executed.” Klayman's Post-Trial Mots.
the Court issued instructions on the nominative fair use
defense. Trial Tr. 3777:2- 3778:22. The prepared instructions
provided in hard-copy to the jury closely track the D.C.
Circuit's recently articulated standard:
In order for a use [of a trademark] to qualify as nominative
fair use, courts require that “ the product or
service in question must be one not readily identifiable
without use of the trademark;  only so much of the mark or
marks may be used as is reasonably necessary to identify the
product or service; and  the user must do nothing that
would, in conjunction with the mark, suggest sponsorship or
endorsement by the trademark holder.”
Am. Soc'y for Testing & Materials, 896 F.3d
at 456 (quoting New Kids on the Block v. News Am.
Publ'g, Inc., 971 F.2d 302, 308 (9th Cir. 1992))
(all but first alteration in original). Klayman does not
raise any issue with the instructions. The jury heard
evidence that could support a finding that Klayman's use
of the trademarks exceeded nominative fair use under the
applicable standard. The Court shall not second-guess the
jury's determination, and accordingly, neither judgment
as a matter of law nor a new trial is justified for this
Jury Consideration of “Improper, Outside
recycles arguments that evidence about FOLK and Freedom Watch
contributed to the large jury verdict. See
Klayman's Post-Trial Mots. at 13-15. The Court disposed
of this argument above and need not revisit it here, except
to deal with several new strands.
erroneously objects to the evidence that the jury was allowed
to consider. See Id. at 13 (citing JW's Exs.
64-66, 75; Trial Tr. 3164:15-3165:4). Exhibits 66 and 75
could not prejudice the jury because they were not admitted
into evidence. JW's Post-Trial Opp'n at 16; JW's
Ex. List, ECF No. 555, at 6-7. Moreover, Exhibits 64 and 65
were relevant because they help show how Klayman obtained
“JW” donor names, to whom he then sent materials
that infringed on Judicial Watch's trademarks. The Court
agrees with Judicial Watch that Maureen Otis' testimony
“merely provided an explanation of sample caging
reports.” JW's Post-Trial Opp'n at 16. The jury
was allowed to weigh all of this evidence in reaching its
determination. The Court does not find any of the admitted
evidence to be unduly prejudicial. See Fed. R. Evid.
Watch demonstrates how the jury could have reached its $750,
000 verdict on the trademark infringement counterclaim:
Maureen Otis and Steve Andersen, respectively, testified that
Saving Judicial Watch raised at least $742, 141.87 through
American Target Advertising's (“ATA”) caging
operations, and donations to Judicial Watch from multi-year
donors fell by more than $1.8 million or $1.9 million during
2006 and 2007. JW's Post-Trial Opp'n at 7-8 (citing
Trial Tr. 3064-3067, 3169:2-8).
another instance of failed recycling, Klayman's reply
does not rebut any of the foregoing points, as to either the
facts or their implications for the jury verdict.
Accordingly, he has not persuaded the Court that he is
entitled to judgment as a matter of law or a new trial due to
jury consideration of allegedly “improper”
actions of third parties. Klayman's Post-Trial Mots. at
Authentication of Reply Letters
argues that the letters contained in Judicial Watch's
Exhibits 33, 36, 40, and 42 were not properly authenticated
and therefore should not have been admitted for the purpose
of showing confusion about the trademarks. Klayman's
Post-Trial Mots. at 15-18; see also JW's Ex.
List, ECF No. 555, at 3-4 (showing that each was admitted).
He specifically takes issue with the handwriting on each of
these exhibits. Klayman's Post-Trial Mots. at 16.
to their use at trial, the Court considered and issued a
contingent ruling on the authenticity of these materials.
Mem. Op. and Order (Mar. 6, 2018), ECF No. 511. At trial, the
Court admitted these exhibits after Judicial Watch introduced
sufficient evidence to satisfy the contingencies in the
Court's  Memorandum Opinion and Order. The Court
issued limiting instructions to ensure that the jury
considered the exhibits for the purpose for which they were
admitted. Klayman now argues that those instructions were in
fact counterproductive, encouraging the jury to consider the
materials for the prohibited purpose, that is, the truth of
the matter asserted. Klayman's Post-Trial Mots. at 15-18.
is wrong. To consider the materials for the truth of the
matter asserted would be to believe that the authors of the
notes meant what they said, for example, that they wanted to
be removed from the Judicial Watch mailing list because
Fitton was “ruining” the organization; that they
feared that this litigation would “siphon off
millions” from Judicial Watch coffers; and that they
would not donate again until Klayman “takes over”
Judicial Watch once more. JW's Exs. 33, 36, 42.
Consistent with the Court's instructions, the jury could
have properly considered the exhibits as simply an indicator
that Klayman's campaign was having an effect. Whether or
not these specific (putatively former) donors believed or did
as they wrote is immaterial.
Klayman does not expressly raise a hearsay objection. He
states that his challenge to the letters is only to their
authenticity as pieces of evidence, which is a low hurdle to
clear. The Court stands by its rulings that these letters are
what Judicial Watch says they are. Moreover, the test for
judgment as a matter of law is one of legal insufficiency of
the verdict. Ortiz, 562 U.S. at 189. Klayman fails
to prove that the jury had inadequate information-even if,
arguendo, these letters were excluded-to conclude
that the likelihood of confusion test was satisfied. There is
no reason to grant a new trial either on these grounds.
Counterclaims for Unfair Competition
Counts V and VI of the Amended Counterclaim, the jury awarded
damages to Judicial Watch for Klayman's unfair
competition through various means. Klayman addresses these
two counterclaims in very summary terms in a single paragraph
of five sentences, explaining that his arguments on this
issue are “interweaved throughout” his brief.
Klayman's Post-Trial Mots. at 18-19. The only specific
errors he raises are the Court's decisions not to give
jury instructions 1) recognizing a fair comment defense to
the disparagement counterclaims, and 2) identifying truth as
a defense to the disparagement counterclaims. Id. at
Klayman does, the Court shall address these arguments when it
considers the disparagement counterclaims to which they
properly correspond. With respect to the unfair competition
counterclaims themselves, Klayman says virtually nothing.
What he does say fails to discharge his heavy burden to prove
that the jury lacked sufficient evidence to reach its
verdict. Nor does the Court find that Klayman's arguments
anywhere else in the briefing undermine the legal sufficiency
of the jury verdict or otherwise warrant a new trial on the
unfair competition claims.
Counterclaims for Disparagement of Judicial Watch and
jury awarded damages to Judicial Watch and Fitton for Counts
VIII and IX, respectively, of the Amended Counterclaim for
breaches of a contractual non-disparagement provision.
Klayman argues that it was error not to give a jury
instruction about truth as a defense. Id. at 19-21.
Tangentially here-and more so in a part of his brief devoted
to the Court's allegedly prejudicial rulings-Klayman also
objects to the omission of a fair comment defense from the
jury instructions. Id. at 21, 25-26. The Court shall
consider both issues now in the context of the disparagement
during trial, Klayman requested a fair comment jury
instruction, and twice the Court refused to issue such an
instruction. Order (Mar. 9, 2018), ECF No. 528; Order (Mar.
12, 2018), ECF No. 541 (denying motion to reconsider). The
Court's denial of the motion to reconsider rejected,
among other things, Klayman's First Amendment argument.
Order (Mar. 12, 2018), ECF No. 541, at 1. The Court refers
the reader to those decisions for its reasoning.
is in order simply to add a further reason why the Court
correctly rejected Klayman's proposed instruction.
Klayman improperly sought to import a defense from tort law
into the specific contractual provision at issue in this
breach of contract claim. That provision includes some
language about fair comment. CSA ¶ 17 (“Nothing in
this paragraph is intended to, nor shall be deemed to, limit
either party from making fair commentary on the positions or
activities of the other following the Separation
Date.”). But the jury, not the Court, was responsible
for applying that contractual provision to the testimony and
other evidence of Klayman's statements.
none of Klayman's arguments alters the Court's
decision to withhold an instruction as to a fair comment
defense to a tort claim when the claim at issue is a breach
of contract claim.
Truth as a Defense
Court previously dealt with the truth-as-a-defense issue in a
February 20, 2018, pretrial hearing, when the parties were
discussing the definition of disparagement in the draft jury
instructions. See Feb. 20, 2018 Hr'g Tr.
21:8-26:25. For his part, Klayman objected to using the
definition in the Confidential Severance Agreement unless
“we put something in it that said it's not
disparagement if what you are saying is true.”
Id. 23:3-4. Ultimately, in the face of disagreement