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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

March 18, 2019

LARRY KLAYMAN, Plaintiff,
v.
JUDICIAL WATCH, INC., et al., Defendants.

          MEMORANDUM OPINION [1]

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         After a 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 Counter-Defendant Klayman.

         Klayman 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.

         Klayman 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.

         Upon consideration of the briefing, [2] 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.

         I. BACKGROUND

         The 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.[3]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.[4]The Court shall focus on those proceedings specifically pertinent to the pending motions.

         Relatively 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.

         A few 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, at 8-10.[5] 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.

         On the 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.

         On 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.[6] 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 instructions.

         On 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. 14, 2018.

         On 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)).

         On July 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.

         Now that briefing of all pending motions has concluded, these motions are ripe for resolution.

         II. LEGAL STANDARD

         A. Renewed Motion for Judgment as a Matter of Law

         Federal 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.” Fed.R.Civ.P. 50(b)(1).

         In this 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).

         However, 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).

         B. Motion for a New Trial

         Rule 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).

         “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)).

         But “[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).

         “The 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.)).

         C. Motion for Remittitur of the Jury Verdict

         The 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 omitted).

         “A 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 omitted)).

         This 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)).

         “Courts 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)).

         III. DISCUSSION

         There 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.

         A. Klayman's Post-Trial Motions

         It is 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. Cir. 1993).

         Although 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.

         Before 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.

         Klayman 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.

         The 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.

         1. Counterclaim for Trademark Infringement

         The 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.

         i. Alleged Misattribution of Trademark Infringement

         Klayman 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.

         But 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 himself.

         Most 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.

         ii. Likelihood of Confusion

         Relatedly, 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 address. Id.

         The 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. 3770:24-3772:21.

         Klayman 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, 1984)).

         While 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).[7] 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 trial.

         iii. Nominative Fair Use

         Klayman 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. at 12.

         Again, 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 “[1] the product or service in question must be one not readily identifiable without use of the trademark; [2] only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and [3] 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 reason.

         iv. Jury Consideration of “Improper, Outside Actions”

         Klayman 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.

         Klayman 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. 403.

         Judicial 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).

         In yet 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 15.

         v. Authentication of Reply Letters

         Klayman 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.

         Prior 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 [511] 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.

         Klayman 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.

         Importantly, 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.

         2. Counterclaims for Unfair Competition

         As for 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 19.

         Just as 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.

         3. Counterclaims for Disparagement of Judicial Watch and Fitton

         The 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 counterclaims.

         i. Fair Comment

         Twice 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.

         Pause 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.

         Accordingly, 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.

         ii. Truth as a Defense

         The 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 ...


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