1 troutman sanders llp justin nahama, bar …...counsel with cantor fitzgerald in november 2016. she...
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TROUTMAN SANDERS LLPJustin Nahama, Bar No. 281087 [email protected] Wynter L. Deagle, Bar No. 296501 [email protected] Matthew J. Hrutkay, Bar No. 297485 [email protected] Christina Ding, Bar No. 286009 [email protected] 11682 El Camino Real, Suite 400 San Diego, CA 92130-2092 Telephone: 858-509-6000 Facsimile: 858-509-6040
LATHAM & WATKINS LLPBlair Connelly, Bar No. 174460 [email protected] William O. Reckler, admitted pro hac [email protected] 885 Third Avenue New York, New York 10022-4834 Telephone: (212) 906-1239 Facsimile: (212) 751-4864
Attorneys for Plaintiff CROSSFIT, INC.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CROSSFIT, INC., a Delaware corporation,
Plaintiff,
v.
NATIONAL STRENGTH AND CONDITIONING ASSOCIATION, a Colorado corporation,
Defendant.
Case No. 3:14-cv-01191-JLS-KSC
DECLARATION OF WILLIAM O. RECKLER IN SUPPORT OF CROSSFIT, INC.’S RENEWED MOTION FOR TERMINATING SANCTIONS
Date: September 5, 2019 Time: 1:30 p.m. Dept: 4D Judge: Hon. Janis L. Sammartino
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I, William O. Reckler, am an attorney at LATHAM & WATKINS LLP
(“Latham”), and co-counsel for Plaintiff CrossFit, Inc. (“CrossFit”) in the above-
captioned matter. I am admitted to the Bar of the State of New York. I am
submitting this declaration in support of CrossFit’s Renewed Motion for
Terminating Sanctions (the “Sanctions Motion”). I have personal and firsthand
knowledge of the facts set forth herein either from personal knowledge or on the
basis of information that has been provided to me. If called to testify to any fact
contained within this declaration, I would and could be competent to do so.
1. I am a Partner in Latham’s New York office. I graduated from
Harvard Law School in 2002, and am currently a member of the bar of the State of
New York. I have extensive experience in complex commercial litigation, and
white collar defense and investigations. I represent both companies and individuals
in commercial disputes and investigations and enforcement proceedings bought by
state and federal authorities. I also conduct internal investigations and advise
companies’ boards of directors in connection with criminal, civil, and regulatory
matters. The hourly rate charged to CrossFit for my time on this matter was
per hour in 2014, per hour in 2015, and per hour in 2016. Based on my
knowledge of the relevant community of litigation professionals and my experience
in complex litigation matters, these hourly rates are reasonable and within market
rate for attorneys at my experience level.
2. Latham uses a computerized system of time billing, in which each
attorney or other timekeeper enters his or her own time into the system on a regular
basis. Each time entry includes the name of the client and matter, the number of
hours spent, and a description of work performed. In order to keep accurate
records, Latham timekeepers are instructed to enter their time into the computerized
billing system while their recollections of the work performed is still fresh in their
minds, and no later than the Tuesday of the week after the work is performed. The
partner responsible for billing the matter – in this case, me – then reviews the
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billing entries before the relevant client invoice is prepared. Timekeepers input
their time in 1/10th of an hour increments.
3. Attached hereto as Exhibit 1 is a true and correct copy of a spreadsheet
representing the relevant billing entries for all Latham attorneys and paralegals
from September 2014 through the present. This is a compilation of relevant entries
based upon the complete accounting that is maintained by Latham in the ordinary
course of business.
Attorneys Performing Work During Latham’s Representation of CrossFit
4. I was at all times responsible for supervising the work done on behalf
of CrossFit. Six other attorneys and one paralegal at Latham also worked on the
case on a consistent basis:
5. Blair G. Connelly—Mr. Connelly is a partner in Latham’s New York
office. He graduated from Georgetown University Law Center in 1994, and is
currently a member of the bar of the State of California and the bar of the State of
New York. Mr. Connelly has extensive complex commercial litigation experience
in a broad array of industries, with a particular focus on financial institutions and
corporate governance issues. Mr. Connelly has extensive oversight and supervision
of all work performed by Latham on behalf of CrossFit in connection with this
litigation. The hourly rate charged to CrossFit for his time on this matter was
in 2014, in 2015, and in 2016. Based on my knowledge of the
relevant community of litigation professionals and my experience in complex
litigation matters, his hourly rates in this case are reasonable and within market rate
for attorneys at his experience level.
6. Blake T. Denton—Mr. Denton is currently a Partner in Latham’s New
York office, and was an Associate attorney with Latham prior to his elevation to
Partner. Mr. Denton graduated from Brooklyn Law School in 2008, and is
currently a member of the bar of the State of New York. Mr. Denton has extensive
experience in complex commercial litigation. The hourly rate charged to CrossFit
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for his time on this matter was in 2014 and in 2015. Based on my
knowledge of the relevant community of litigation professionals and his experience
in complex litigation matters, his hourly rates in this case are reasonable and within
market rate for attorneys at his experience level.
7. Melissa A. Sherry—Ms. Sherry is currently the Deputy Managing
Partner in Latham’s Washington, DC office. She graduated from the University of
Virginia School of Law in 2003, and is currently a member of the bar of the District
of Columbia. She has extensive experience in appellate litigation, with a particular
focus on first amendment issues. The hourly rate charged to CrossFit for her time
on this matter was . Based on my knowledge of the relevant community of
litigation professionals and her experience in complex litigation matters, her hourly
rate in this case is reasonable and within market rate for attorneys at her experience
level.
8. Paul A. Serritella—Mr. Serritella was previously a counsel in
Latham’s New York office, and transitioned to his current role as Director/Senior
Counsel for Royal Bank of Scotland in August 2016. Mr. Serritella graduated from
Harvard Law School in 2005, and is currently a member of the bar of the State of
New York. Mr. Serritella has extensive litigation experience in a broad array of
industries, with a particular focus on financial institutions. The hourly rate charged
to CrossFit for Mr. Serritella’s time on this matter was in 2014 and in
2015. Based on my knowledge of the relevant community of litigation
professionals and my experience in complex litigation matters, his hourly rates in
this case are reasonable and within market rate for attorneys at his experience level.
9. Katelyn M. Beaudette—Ms. Beaudette was previously an Associate
attorney in Latham’s New York office, and transitioned to her current role as
Counsel with Cantor Fitzgerald in November 2016. She graduated from Harvard
Law School in 2011, and is currently a member of the bar of the State of New York.
The hourly rate charged to CrossFit for her time on this matter was in 2014
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and in 2015. Based on my knowledge of the relevant community of litigation
professionals and her experience in complex litigation matters, her hourly rates in
this case are reasonable and within market rate for attorneys at her experience level.
10. Jessica L. Bengels—Ms. Bengels is currently Latham’s Senior
Manager of Litigation Services for the United States. She graduated from Fordham
University School of Law in 2005, and is currently a member of the bar of the State
of New York. Ms. Bengels has extensive experience in complex commercial
litigation in a broad array of industries, and focuses on providing advice relating to
procedural issues affecting litigations. The hourly rate charged to CrossFit for her
time on this matter was up through September 2014, beginning in
November 2014 through the end of 2014, and in 2015. Based on my
knowledge of the relevant community of litigation professionals and her experience
in complex litigation matters, her hourly rates in this case are reasonable and within
market rate for attorneys at her experience level.
11. Sharon J. Cole—Ms. Cole is a Senior Paralegal in Latham’s New York
office. The hourly rate charged to CrossFit for her time on this matter was in
2014 and in 2015. Based on my knowledge of the relevant community of
litigation professionals and her experience in complex litigation matters, her hourly
rates in this case are reasonable and within market rate for attorneys at her
experience level.
12. The work performed by Latham on behalf of CrossFit, and which was
necessitated by the NSCA’s concealment of relevant documents and other evidence
can be generally described in four categories: (i) various motions to compel (also
known as joint motions for determination of discovery dispute); (ii) CrossFit’s
motions for summary judgment; (iii) NSCA motions for summary judgment; and
(iv) pre-Sanctions depositions of NSCA and third party witnesses.
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Motions to Compel
13. Prior to the Sanctions Order, Latham performed work related to four
different motions to compel. These motions involved: (i) the NSCA’s claim of a
peer-review privilege to prevent the identification of the peer reviewers of the
Devor Article and compensation information for JSCR editorial staff (ECF Nos. 25,
28, and 29); (ii) the production format for the NSCA’s production of electronically
stored information (ECF No. 30); (iii) the scope of the NSCA’s search and retrieval
efforts for relevant documents (ECF No. 32); and (iv) the NSCA’s overly broad and
improper confidentiality designation of its production documents (ECF No. 51).
14. Not only did many of these disputes relate directly to the NSCA’s
concealment of relevant documents, each motion was briefed based on an
incomplete record and without CrossFit having the benefit of the more than
279,000 documents that I understand that the Court’s neutral forensic examiner has
determined were relevant, but withheld by the NSCA prior to the issuance of the
Sanctions Order.
15. Accordingly, CrossFit was unable to provide relevant evidence in
support of its arguments in each of these motions to compel at the time these
motions were briefed and presented to the Court, rendering it significantly more
difficult, time-consuming, and costly for CrossFit to meet its burden of proof and
satisfy the Court’s inquiries. For example, with respect to the motion to compel
peer-reviewer information, the Court noted that CrossFit could renew its request
should it be able to prove any actual misconduct by the NSCA or the JSCR’s
editorial staff during the peer-review process. Had the NSCA produced all relevant
documents in the first instance, CrossFit would have been able to affirmatively
prove such misconduct to satisfy the Court’s inquiry.
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16. The following Latham attorneys performed work related to these
motions to compel:
Katelyn M. Beaudette—19.4 hours in 2014 x per
hour= ; and 15.4 hours in 2015 x per hour= .
Total hours=34.8; Total fees= : Among other things, Ms.
Beaudette helped draft briefs, motions, and supporting documents; and
worked on matters related to their filing.
Jessica L. Bengels—3.7 hours in 2014 x per hour= ; 1.2
hours in 2014 x per hour= ; and 0.6 hours in 2015 x
per hour= . Total hours=5.5; Total fees= : Among other
things, Ms. Bengels helped draft briefs, motions, and supporting
papers; and worked on matters related to their filing.
Sharon J. Cole —2.0 hours in 2014 x per hour= : Among
other things, Ms. Cole helped finalize supporting papers.
Blair G. Connelly—11.5 hours in 2014 x per hour= ;
10.4 hours in 2015 x per hour= ; and 1.8 hours in
2016 x per hour= . Total hours=23.7; Total
fees= : Among other things, Mr. Connelly helped draft
briefs, motions, and supporting documents.
Blake T. Denton—12.2 hours in 2015 x per hour=
Among other things, Mr. Denton conducted legal research; helped
draft briefs, motions, and supporting documents; and worked on
matters related to their filing.
William Oliver Reckler—41.4 hours in 2014 x per
hour= and 14 hours in 2015 x per hour= .
Total hours=55.1 hours; Total fees= : Among other things,
Mr. Reckler helped draft briefs, motions, and supporting documents.
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Paul A. Serritella— 103.5 hours in 2014 x per hour=
and 13.2 hours in 2015 x per hour= . Total hours=117;
Total Fees= : Among other things, Mr. Serritella conducted
legal research; helped draft briefs, motions, and supporting documents;
and worked on matters related to their filing.
The total amount charged to CrossFit for work related to the motions to compel was
; Latham performed a total of 250 hours of work related to the motions
to compel.
CrossFit’s Motions for Summary Judgment
17. Prior to the Sanctions Order, CrossFit filed two separate motions for
summary judgment on the issue of falsity. (ECF Nos. 38 and 73). Since that time,
I understand that many of the more than 279,000 documents concealed by the
NSCA prior to the Sanctions Order show that the NSCA and JSCR not only knew
that the injury information was a post-hoc addition to the Devor Study and could
not be a true and accurate representation of any genuine injury rate from CrossFit
training, but also that the Dr. Kraemer demanded that the authors of the Devor
Article include such post-hoc information. These documents would have materially
supported CrossFit’s arguments that the Devor injury data was false, but CrossFit
was without their benefit at the time these motions were briefed. The NSCA’s
concealment of these documents made it significantly more difficult, time-
consuming, and costly for CrossFit to meet its burden of proof and satisfy the
Court’s inquiries.
18. The following Latham attorneys performed work related to CrossFit’s
motions for summary judgment:
Katelyn M. Beaudette—26.3 hours in 2014 x per
hour= and 62.6 hours in 2015 x per hour= .
Total hours=88.9; Total fees= : Among other things, Ms.
Beaudette conducted legal research; helped draft briefs, motions, and
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supporting documents; and worked on matters related to their filing.
Jessica L. Bengels—1.6 hours in 2015 x per hour= .
Among other things, Ms. Bengels helped draft briefs, motions, and
supporting papers; and worked on matters related to their filing.
Sharon J. Cole—4.4 hours in 2014 x per hour= and
17.0 hours in 2015 x per hour= . Total hours=21.4;
Total fees= : Among other things, Ms Cole helped draft
briefs, motions, and supporting documents; and worked on matters
related to their filing.
Blair G. Connelly—9.0 hours in 2014 x per hour= ; 70.1
hours in 2015 x per hour= ; and 4.3 hours x
per hour= . Total hours=83.4; Total fees= :
Among other things, Mr. Connelly helped draft briefs, motions, and
supporting documents.
Blake T. Denton—24 hours in 2014 x per hour= and
74.3 hours in 2015 x = . Total hours=98.3; Total
fees= : Among other things, Mr. Denton conducted legal
research; helped draft briefs, motions, and supporting documents; and
worked on matters related to their filing.
William Oliver Reckler—23 hours in 2014 x per
hour= and 91.8 hours in 2015 x per hour= .
Total hours=114.8; Total fees= : Among other things, Mr.
Reckler helped draft briefs, motions, and supporting documents; and
worked on matters related to their filing.
Paul A. Serritella—55.8 hours in 2015 x per hour= :
Among other things, Mr. Serritella conducted legal research; helped
draft briefs, motions, and supporting documents; and worked on
matters related to their filing.
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The total amount charged to CrossFit for work related to its motions for summary
judgment was ; Latham performed a total of 464.2 hours of work
related to CrossFit’s motion for summary judgment.
The NSCA’s Motion for Summary Judgment
19. Prior to the Sanctions Order, the NSCA also filed a motion for
summary judgment arguing that application of the first amendment privilege bars
this litigation. (See ECF No. 102). Specifically, the NSCA argued that its
publication of the Devor Article was not commercial speech, but rather was
academic speech against which CrossFit’s claims were barred. They argued this
while concealing all evidence of and denying all claims that the NSCA viewed
CrossFit as its competition and knowing that the false injury data had been
artificially inserted into the Devor Article at the JSCR’s request in the midst of the
editorial process. These documents would have materially supported CrossFit’s
opposition by showing a commercial motive for publication of the Devor Article as
well as irrefutably establishing that the NSCA did consider itself in competition to
CrossFit and viewed CrossFit as a threat to its revenue, but CrossFit was without
their benefit at the time these motions were briefed. The NSCA’s concealment of
these documents made it significantly more difficult, time-consuming, and costly
for CrossFit to meet its burden of proof and satisfy the Court’s inquiries.
20. The following Latham attorneys performed work related to opposing
the NSCA’s motion for summary judgment:
Blair G. Connelly—7.5 hours in 2016 x per hour= :
Among other things, Mr. Connelly helped develop the strategy for
CrossFit’s opposition, and reviewed and provided comments on its
brief.
William Oliver Reckler—3.7 hours in 2016 x per
hour= : Among other things, Mr. Reckler helped develop the
strategy for CrossFit’s opposition, and reviewed and provided
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comments on its brief.
Melissa A. Sherry—9.7 hours in 2016 x per hour= :
Among other things, Ms. Sherry helped develop the strategy for
CrossFit’s opposition, conducted legal research, and prepared an
analysis of the First Amendment-related issues.
The total amount charged to CrossFit for this work was ; Latham
performed a total of 20.9 hours of work related to the NSCA’s motion for summary
judgment.
Pre-Sanctions Depositions
21. Prior to the Sanctions Order, Latham prepared for and took the
depositions of multiple witnesses on CrossFit’s behalf, including depositions of Mr.
Devor and Mr. Smith (authors of the Devor Article), and Mr. Hoffman, among
others. These depositions were each materially inaccurate and incomplete because
CrossFit was unable to fully examine each witness with respect to the volumes of
relevant documents that were concealed by the NSCA. Further, third party
depositions were necessary to identify material evidence and information that the
NSCA concealed and withheld from its document production.
22. The following Latham attorneys performed work related to these
depositions:
Katelyn M. Beaudette—0.6 hours in 2014 x per hour=
and 76.5 hours in 2015 x = . Total hours=77.1; Total
fees= : Among other things, Ms. Beaudette helped prepare
for and participated in certain of the third-party depositions.
Sharon J. Cole—39.3 hours in 2015 x per hour= :
Among other things, Ms. Cole helped prepare for certain of the third-
party depositions.
Blair G. Connelly—52.4 hours in 2015 x per hour= :
Among other things, Mr. Connelly prepared for and took certain of the
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third-party depositions.
Blake T. Denton—18.4 hours in 2015 x per hour= :
Among other things, Mr. Denton helped prepare for and participated in
certain of the third-party depositions.
William Oliver Reckler—29 hours in 2015 x per
hour= : Among other things, Mr. Reckler prepared for and
took certain of the third-party depositions.
Paul A. Serritella—36.8 hours in 2015 x per hour= :
Among other things, Mr. Serritella helped prepare for and participated
in certain of the third-party depositions.
The total amount charged to CrossFit for this work was ; Latham
performed a total of 253 hours of work related to pre-Sanctions depositions.
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39136234 - 13 - 3:14-CV-01191-JLS-KSC
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Legal Fees and Costs Incurred Which CrossFit is Not Seeking in this Motion
23. The categories described above represent the scope of work performed
by Latham related to and/or rendered entirely wasteful due to the NSCA’s
concealment of material documents. CrossFit does not seek here any legal fees or
costs associated with the other work performed that was necessary and performed
in the course of any litigation and was not directly impacted by the NSCA’s
misconduct. Thus, this request does not include legal fees related to: general
review of discovery documents and responses from the NSCA and third parties;
meet and confer discussions with opposing counsel or third party counsel related to
various discovery and other disputes; internal communications relating to any
general litigation work performed by Latham; stipulated joint motions where the
parties are in full agreement; general litigation strategy discussions and meetings;
summaries of litigation status and strategic issues sent to the client; or any other
general work in this litigation.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the
foregoing is true and correct.
Executed on June 19, 2019 in New York, New York.
William O. Reckler
Case 3:14-cv-01191-JLS-KSC Document 333 Filed 06/20/19 PageID.21298 Page 13 of 13