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Nov. 7, 2022 - Depositions & Trials
01:02:46
Alex Jones Defamation Trial: Sandy Hook 'Hoax' Lawsuit — Punitive Damages Hearing
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Oh, I don't have that level of affection.
For like 30 years now.
That's great.
Yeah, the kids love it.
My mother used to love it.
She was the big fan.
It's how my dad actually got the tickets.
Yeah, well, hopefully they can get things together over these next couple of weeks.
Yeah, they need some online help.
A couple guys are injured and then they'll have to work on...
Getting them back and getting the new guys up to speed.
It's going to be a rough year, but I'm happy if they can sneak into the playoffs again.
Right.
Ron, it's just me on screen today for us.
Sure.
I will know we're two minutes out, so we are live streaming.
I think everybody who's watching now knows we're Patriot fans.
That's either good or bad, but That's no problem.
Judge should be on right at 10 o'clock as always.
10 o'clock, 1130. It's Monday morning.
That it is.
For another 31 minutes.
Yes.
And it's going to be a little depressing walking out of here into the pitch black to drive home today.
Yeah, but it was nice sleeping in this morning.
Oh, and Attorney Matty, I did get the thumb drive delivered this morning with the video from Exhibit C.
Great, thank you.
Sure.
Thank you.
All right.
Good morning, everyone.
This is Judge Bellis, and we are on the record in the Lafferty versus Jones matter, docket number 18604-6436.
You would think I would have that docket number memorized by now, but I have to check every time.
If council could please identify themselves for the record.
Yes.
Good morning, Your Honor.
Chris Maddy on behalf of the plaintiffs.
Good morning, Judge Norm Pattis on behalf of Mr. Jones and Free Speed Systems, LLC. Good morning on this warm day in Connecticut.
Alright, so I've reviewed all the filings.
I thank you for that.
I don't have any questions at the start, but I think I may have questions as we go along.
Can you hear me, Attorney Pattis?
I'm usually pretty loud.
It's intermittent.
The volume is fine.
The connection is not.
It's intermittent.
Every now and then you fade out.
But I've heard everything.
I understand where we're going here.
Okay.
If you have any further problems on hearing, let me know.
Wave your hand or something.
So I'll turn the floor over to Attorney Maddie.
I'm going to mute my device so that we have less feedback.
All right?
So whenever you're ready, please.
Sure.
And thank you, Your Honor.
I thought what I would do is just start with the common law punitives question.
Uh, and maybe we could deal with that first and then move on to, um, the cut punitives issue.
So on the common law punitives, I mean, as the court is well aware, the jury determined that, uh, common law punitive damages were to be awarded in this case.
Uh, and so the court is bound to award them.
And I think we have a lot of agreement, uh, on the law in this area, that being that common law punitives are designed to make the plaintiffs whole.
So that they are fully compensated and receive the full value of the damages that the jury awarded.
And the way that that is done is by awarding the plaintiffs their attorney's fees and their costs.
And so the court is required to look to the contractual obligations between the plaintiffs and their counsel so as to assess what is necessary in order to make them whole.
And in this case, as we presented through the affidavit of attorney Horowitz, the retainer agreement between The plaintiffs in our firm includes a contingency fee of one-third the total awarded, and that included a waiver of the statutory contingency limits set forth by statute.
And so here, I think it's quite an easy calculation because the defense has agreed that the terms of the retainer agreement are reasonable.
So the court does not need to conduct a reasonableness analysis of the retainer agreements, although it could if it wished, given the affidavit of attorney Horwitz.
Here, because there is agreement that the terms of the retainer are reasonable, it's, I think, a simple matter of assessing what is necessary in order to make the plaintiff's whole and awarding that amount in fees.
Secondly, the jury determined that The costs should be awarded.
We've set forth our costs in that affidavit.
Not all of our costs, Judge.
I hope we made it clear in our affidavit that the total costs in this case are right at about $1.6 million when you subtract certain discretionary costs that we removed from the Presentation so as to avoid unnecessary litigation and dispute.
And when you remove the taxable costs set forth in statute, we are at about $1.4 million in costs.
The court has the exact number in the affidavit.
There's no dispute that those costs were incurred.
We provided Attorney Pattis with the itemized breakdown of those costs.
And I don't think that there's any, although I'll leave this to Attorney Pattis, I don't think that there's Any meaningful dispute as to the reasonableness of the costs that we incurred, at least the costs that we are claiming.
Attorney Maddie, so for common law punitive damages, I just want to get back to the attorney's fees, not the cost.
The court looks to whether the terms of the agreement are reasonable and not as to whether the overall amount of the ultimate fee is reasonable.
That is quite right.
And the reason that...
I'm sorry, Your Honor, did you have a follow-up there?
Well, I'm just...
And so I guess my next question is, and when can the court depart from that?
When can the court properly award less than the amount called for under the terms of a reasonable retainer agreement?
Well, really, I mean, there...
Is the only very limited situation that the law seems to contemplate in which the defendant is able to make a persuasive demonstration that to do so, that is to make the plaintiff's whole, would work a substantial unfairness on the defendant himself.
Well, isn't that what their position is?
Aren't they saying award only nominal damages on the common law, punitive damages?
Isn't that what they're reaching?
I don't want to speak for Attorney Pattis, but I think prior to his review of our retainer agreement, I think he was holding open the argument that only nominal punitive damages should be awarded here.
But the first step, I think, as Attorney Pattis acknowledges, is for the court to review the agreement.
And there really is no reason for the court to depart from its review of the agreement here.
To do so would actually result in unfairness to the plaintiffs.
So can I just interrupt you because I just want to make sure I'm following this.
Attorney Pattis, are you taking the position that although you agree that the terms of the retainer are reasonable, the court should nonetheless award only nominal damages on the common law, punitive damages for the attorney's fees?
Okay, so that apparently I got the yes, although he's muted, Attorney Maddie.
So although, as I'm understanding...
I didn't realize I was muted.
That's all right.
I should have brought that button with me to trial.
But yes, yes, Judge.
All right, so Attorney Maddie, so this is what I need to tackle.
So as I'm understanding it, I understand what you've laid out, but the defendants, although they agree that the terms of the retainer agreement are reasonable, are asking the court to nonetheless only award nominal common law damages.
So they're asking the court not to award the attorney's fees that you're seeking under this What they agree is a reasonable retainer agreement.
So that's where I'd like to sort of focus if you can.
Well, the only argument that I've heard from the defense as to why this would work as substantial unfairness on Mr. Jones and free speech systems is just that it's high.
That's the argument that I've heard.
It's high.
It's a lot from a subjective perspective.
But the reason that it's high is because Mr. Jones engaged in Reprehensible conduct that had a catastrophic effect on the plaintiffs.
So in this case, obviously, the attorney's fee is tied to the amount of compensatory damages awarded by the jury.
And what Mr. Jones and Free Speech Systems is essentially asking is give us a discount because our conduct was so bad that the attorney's fees are significantly high.
And so even though our conduct was so bad...
Well, I think what they're saying is that they also think, obviously, that the verdict is too high.
They should have a new trial and a remittator.
So the verdict is too high and therefore the attorney's fees are too high.
But what's the case law?
What is the Connecticut law in a situation where the court finds that the terms of the retainer themselves are reasonable?
In a common law punitive damages situation and then decides to depart nonetheless and not award the entire fee as the punitive damages under the common law.
So, Your Honor, as you pointed out, the burden in Connecticut to show substantial unfairness is on the defendant.
And that's why Spark v.
Harlan we cited in our brief.
Judge DiPantema in 2000, Westlaw 486932. And so if the defendants fail to meet that burden of showing a substantial unfairness, then there should be no departure from a reasonable fee agreement.
And those cases that you're referring to were common law punitive damages where the courts found that the retainer agreement More reasonable and so is the evidence the substantial unfairness finding is that based on evidence that was contained in the record at the trial or was there a subsequent hearing where the defendants then put on evidence to show what their financial situation was and why it would be Unfair to award the entire
amount or how does it work procedurally?
I'm not aware of any cases in which there was a post verdict evidentiary presentation and To show that there would be a substantial unfairness if the court were not to depart from a reasonable case.
And so the cases that you mentioned, the courts found that, and these were trial court cases, you said?
The Weisbach case is the Superior Court case, yes, Judge.
And it cites to Schoonmaker, which is the lead Supreme Court case on this issue.
And so what were the facts in those cases that led to the court Determine that it would be substantially unfair.
Was there evidence in the record from the trial about the defendant's financial resources or lack of financial resources that led to that finding or were there other factors?
No.
You know, the financial, the ability to pay or the impact on one's business operations tends to come up in the context of CUTPA punitive analysis, you're not common law punitive analysis.
Okay.
And so what they really focus on is whether or not departing from a reasonable fee agreement would work in unfairness on the plaintiffs because there has to be some justification for depriving the plaintiffs of what the jury awarded them.
And so I'm not aware of cases in which there was a reasonable fee agreement And a common law punitive award was the result of the departure from a reasonable fee agreement.
I'm just not aware of that.
And so I apologize that I don't have more facts at my fingertips that might support a departure like that.
And I'm sorry to sort of hijack your argument here.
I'll give you as much time as you need.
And I'm happy to do the same thing for attorney Paddis.
So you're telling the attorney, Maddie, that in the common law punitive damages arena, when we're talking about the attorney's fees, you're unaware of any case in Connecticut where the court has found that the fee agreement was reasonable and failed to award the entire amount of the attorney's fee?
Yeah, I'm not aware of any, Judge.
Can I just interrupt you and ask Attorney Pattis Attorney Pattis, I assume you would cite them if you were aware, but are you, sir, aware of any cases in Connecticut or I guess anywhere else where, again, I just want to limit it to the common law punitive damages,
the attorney's fees, where the court found that the terms of the retainer were reasonable and yet did not award the entire fee under the reasonable retainer agreement?
We did not find any, Judge.
But just so I'm clear, that's what you're asking me to do here, correct?
Correct.
Okay.
All right.
Thank you.
Attorney Maddie?
I just wanted to go back to the point I was making earlier, which is that the award by the jury of $965 million in compensatory damages is what is driving the fee in this case.
And so for the Jones defendants to come in here and say, We should pay the jury less than what they're entitled to because our conduct was so bad it resulted in a high attorney's fee, I think would turn the purpose of common law punitives on its head.
The whole purpose is to make the plaintiffs whole for what they would otherwise owe to their attorneys.
And because, you know, Attorney Pattis, to his credit, has conceded that our fee agreement is reasonable, There really is just this, what I understand to be a very amorphous suggestion that Mr. Jones just shouldn't have to pay full freight here.
And I don't think that's convincing, and I don't think that's what the law contemplates.
So that's really all I have, Judge, unless you have specific questions on the costs or any of the details set forth in Attorney Horowitz's affidavit.
I don't.
So you're going to address the common law and then move on to CUPA. Should we do the argument like that as well?
I think that might sort of be helpful, if you don't mind.
Sure.
So do you want me to go on to CUPA or do you want to hear from Attorney Patis?
If you don't mind, I'd like Attorney Patis to address the common law punitive damages and address the issues that I've raised and sort of, you know, if you can, Attorney Patis, tell me on what basis I can do what you're asking me to do.
I don't know.
Fair enough, Judge.
In answer, amplifying the simple yes I gave you before, I looked to find a case that was analogous to this and I couldn't find one.
I suggested in the brief You know, bringing in Mr. Staines, not because I have any reason to cast doubt on the professional integrity of my colleagues, but I thought he may have had some more insight into how reasonable fee situations are resolved in cases, perhaps like this, although I could not find a reported decision.
So I rely on four factors, Judge.
The verdict, and before I do, I want to reaffirm what Attorney Maddie said, notwithstanding the cantankerous nature from time to time of the trial.
Information flowed freely in the week or 10 days prior to the briefing, and I was given complete access to everything that I asked for.
Thus, the plaintiffs are not submitting the retainer agreements.
I've had a chance to inspect them, and I believe that Attorney Horowitz's affidavit accurately reflects their contents and is reliable for purposes of this hearing.
I also know, having looked at them, that the retainer agreements retain the necessary recitals to get out from under the fee cap limitations, and so we are not making that claim.
So the agreements are reasonable as a matter of law in form.
As applied, we think that at least three factors, possibly four, make this an unfair outcome.
First, the plaintiff's Argued to the jury, and the jury was persuaded that Mr. Jones engaged in reprehensible conduct.
And the jury awarded a substantial verdict, but a good part of the argument for the size of that verdict was for purposes of deterrence, deterring him in the future.
And that's a purpose that overlaps with punitive damages.
Thus, in this case, mortality or life expectancy tables were introduced.
The life expectancy...
I'm going to interrupt you for the first time.
So, is your suggestion here that I should find that the jury did not follow their instructions?
Because that's basically what you're suggesting.
Well, that's a basis for our new trial petition, and I did suggest at one point in the run-up to this hearing that we hear them all together for that reason.
For purposes of this argument, I don't know that you have to say that.
I think you can look at the nature of the case that was put on by the plaintiffs and see that a substantial portion of their argument and focus was on deterrence.
And deterrence is an identical function to punishment.
And so, from our perspective, the size of the verdict and its deterrent function satisfies the purpose of punitive damages.
Second, this case, and Mr. Jones, in our view, was punished enough in this case by application of the default and the various sanction rulings That led up to the verdict, and it made it possible to relieve the defendant or the plaintiffs from any real responsibility for proving causation.
Thus, they were able to say that someone told someone else that someone else had urinated on a child's grave, and that was all held to be Mr. Jones's responsibility, absent any meaningful examination of proximate cause or foundation.
Those are sanctions that the court entered for Mr. Jones's Discovery conduct that the jury may or may not have known.
They may have concluded that the court made a finding that he engaged in the acts that he was accused of at trial.
In fact, the court didn't know such thing.
It simply deprived him of the right to defend it.
So our view is that the size of the verdict is in large part a reflection of the sanctions imposed, and as argued in the new trial petition, the jury was misled.
There was a punishment factor in the verdict itself.
As to the hardship on the defendants, there are two defendants in this case, Free Speech Systems, Mr. Jones, a pretrial ruling kept the jury from becoming aware of the fact that Free Speech Systems was in bankruptcy.
I think the court is aware of it.
Obviously a bankrupt party is not going to be in a position to pay anywhere near a significant part of this.
And so we think that there is a hardship on the defendants as well.
So I need to interrupt you here because I understand what you're saying.
I hear what you're saying and I understand your argument, but I need to follow the rule of law.
And I'm just, where are we getting this?
If it's a hardship, first of all, We have what we have in the record, right?
So we have Brittany Paz's testimony of his, I don't know, I thought it was over the last 10 years, that he was worth somewhere between $100 million and $1 billion.
That wasn't her testimony.
The testimony was that it could have been as little, that revenues could have been as little as a hundred million, as much as a billion.
But it wasn't Mr. Jones' net worth.
She was there as the corporate representative.
And we know that that corporation is in bankruptcy.
That's an awfully high upper limit, even of revenue of a billion dollars.
But I guess what I'm trying to say, Where in the record could I find that this would be a hardship, number one, because there's such little information in the record about the defendant's financial resources, so that's number one.
And second, what about the law, the rule of law?
Where is any law, anything that I can hang my hat on, That says, well, if it would be a hardship for the defendant, and I'm not saying that it is, but if it would be a hardship for the defendant to award the entire fee under a reasonable fee agreement, under common law, punitive damages, you can do that.
I mean, I like to follow the rules and follow the law, so what am I hanging my hat on besides, you know, your argument?
In the end, Judge, there's not a case like this in Connecticut history.
And so you're not going to find a case in Connecticut.
You're going to make that case.
And our case and our argument is that with respect to the evidence presented at trial here, the plaintiffs gave what was fundamentally a punitive damages argument in terms of the deterrent value of compensatory damages.
They relied on almost no evidence as to the actual revenue of free speech system.
In fact, no evidence at all.
Attorney Posner really adopted a statement that Mr. Maddy made, and she did adopt it, and the jury was free to rely on it.
But even with respect to the base number that was presented by the plaintiff's argument, 550 million impressions, they were led to suggest that each one of those contained a Sandy Hook impression and that they were unique visits.
There was no effort made to distinguish how many of them were repetitive viewers.
So in terms of due process, we think that there has to be some substantive limitation on what a jury can do in awarding damages of this size and that the plaintiffs failed to meet any burden of proof with respect to numbers this large.
I can't hear you.
That's me.
I'm sorry.
That was me.
I was muted.
What do the Connecticut appellate courts tell me that I should do In awarding common law punitive damages where I find that the terms of the retainer agreement are reasonable, what do they tell me I should do?
I think you're required still never to abandon a due process analysis and there's both a procedural and a substantive aspect.
And given the nature of the evidence as a whole in this case, we'd say substantively they're not anywhere close to sustaining it.
Okay, I think you got up to, I have four factors.
I had the reprehensible conduct and deterrence.
I had the argument that Jones was punished enough by virtue of default and sanctions.
I had the hardship issue.
Did I miss the fourth point or did I interrupt?
No, I mean, it was the nature of the argument, Judge.
In other words, the overlap factor, that a heavy component of the argument was focused on future deterrence, and that is a function of punitive damages.
The problem I had with the brief, and I mean to concede this, Judge, as your officer, you know, I looked in vain for an upper limit test.
That could apply.
So, for example, and there is an upper limit, there are upper limit tests that we can argue in the CUTPA context, but it seems to me that given the case law and the purpose of common law punitive damages being to make the plaintiffs whole, that is to relieve them of their attorney's fees, that analysis is inapplicable in the common law context.
Thank you.
Attorney Manning, do you want to respond before we picked up the CUTPA part of it?
Just briefly, I do think some of these arguments are more appropriately directed to the Kutpa argument, the idea of deterrence and so forth.
I do just want to emphasize that, as the court pointed out, the law is presumed to have followed its instructions, and the instructions were that the jury is to award compensatory damages, not for punitive purposes, but in order to fully compensate the plaintiffs for the harm that they suffered.
And in our closing statement, And in our rebuttal, we emphasized that we did not want the jury to fold any punitive considerations into its deliberations on the compensatory damages.
With respect to the default, I don't think it's correct to say that the sanctions that were imposed in the run-up to the default and the court's evidentiary rulings were punishment of Mr. Jones.
The sanctions imposed throughout most of this case were designed to try and get Mr. Jones to act as a good faith litigant.
Not to punish him, but to compel him to participate.
The default was a recognition that the plaintiffs had been deprived of evidence necessary to present their case, and then the evidentiary rulings were merely in accord with the court's default ruling.
These are not punishments of Mr. Jones.
They're just an appropriate way to manage a recalcitrant litigrant.
On the hardship argument, the idea that it's a hardship And this gets a little bit into the cut side of things, but just as it's the defendant's burden to make a persuasive demonstration that awarding common law punitives would result in substantial unfairness, it's their obligation and burden to present evidence concerning their financial condition, which they've steadfastly refused to do throughout the litigation.
So to speculate that it's a hardship, to me, it wouldn't even meet the threshold of whether it's a substantial unfairness.
It may be hard.
For Mr. Jones and free speech systems to end up paying the damages that are owed, that doesn't mean it's substantially unfair to them.
Oh, and then the other thing I wanted to mention, Your Honor, just on this due process argument, which I also think the defendants make in connection with the CUP punitives.
In Ulbricht v.
Grohlth, which we cite extensively in our briefing, the Supreme Court found that our rule in Connecticut Limiting common law punitives to fees and costs satisfies the due process concerns articulated in the Exxon case.
And so what we're asking the court to do is apply a rule that our Supreme Court has already found meets due process standards.
Okay.
Do you want to address the COPPA? Yes.
Okay, so on Kutba, I think that the principal argument that the defendants make is that the compensatory damages verdict had a punitive component to it that satisfies the purposes of Kutba damages, which include, among other things, deterrence.
So let me just address that directly.
Number one, The jury was instructed, as I've already mentioned, that it was to award compensatory damages for the purpose of compensating the plaintiffs for the harm that they suffered in the past and going forward into the future.
They were instructed that they should not consider any punitive motivation in awarding those damages, both by the court and then by plaintiff's counsel, when we said in rebuttal that we don't want any Money in compensatory damages out of sympathy or out of some desire to punish Mr. Jones.
The way we framed our argument was that in order for Mr. Jones to understand the full scope of the catastrophe he has caused, your verdict needs to fully reflect the pain and suffering he has caused.
And that's what we think the jury did.
And so the jury's verdict here, when you think about it, Judge, And I know you have.
The evidence that we presented included evidence of 10 years of what Miss Parker described as an assault against these families.
Their verdict, if it was just based solely on the 10 years of suffering caused to 15 different plaintiffs, would be reasonable and appropriate and prudent.
It also Reflects, though, all of the harm going forward that they're going to continue to suffer that has been propelled by Mr. Jones's conduct, even including as of the day the verdict was returned.
And so simply because the number $965 million sounds in our own minds like a lot of money, it's actually, we think, a very fair and reasonable assessment Of the deep and devastating harm caused by Mr. Jones over these many years.
And the jury's gradation of those damages per plaintiff reflected their own considered judgment as to precisely how much each plaintiff was harmed by Mr. Jones's conduct.
And that's why we say that, to simply say that because the number is high, the jury must have been trying to deter Mr. Jones.
I understand that.
So I have a question.
So while the defendants took the position in their brief that only nominal common law punitive damages should be awarded, they took the position in the brief that no CUP punitive damages should be awarded.
And I just want you to address under what circumstances under the law where a default has entered on the CUP account, under what circumstances could the court award No CUTPA punitive damages, which is what the defendant's position is.
In this case, I don't think that the court is permitted to do that because I think the default establishes that the standard has been met.
And therefore, although the court does have discretion to award nominal punitive damages in a CUTPA context, I don't believe that the law permits it to award zero damages under CUTPA. Okay, that is what I thought.
I'm sure Attorney Pettis will address that.
I thought the case law in Connecticut was clear that at least nominal cup of punitive damages would be awarded.
But let me just ask you, and I know this is not your position, but under what circumstances in Connecticut where there's a default, under what circumstances could the court properly award nominal cup of punitive damages?
Your Honor, I think That's hard for me to answer.
I'm not sure I know the answer to that.
I know that the defense argument here is essentially that the primary purpose of cup of punitive damages is to both reflect the scope of reprehensibility and to deter conduct like it.
And here, because the compensatory damages were so significant, that purpose is largely accomplished.
And therefore, the court need go no further.
That, I think, is their argument.
To me, that would really, I think, deprive the court or is asking the court to actually kind of relinquish its role under the law, which is to award damages for the very separate and distinct purpose than the jury has already awarded them.
So I suppose that were the court...
To conclude, contrary to the CUTPA standard, that the conduct simply wasn't as bad as we ordinarily would think,
and where the jury's verdict maybe reflected some sort of nominal harm as a result, so let's say the compensatory verdict were low, I'm suggesting that the damage hadn't been all that bad and therefore the conduct hadn't been all that bad.
And if we're operating in some sort of recklessness area, that might be a context in which a court would consider nominal damages.
That's obviously not the context that we're in.
So that may be an unsatisfying answer, but it's very hard to see a situation where the standard of conduct has been met under Kutpa.
And only nominal damages should apply.
But I think that the answer really should be tied to the Albrecht factors to determine if only punitive damages are warranted.
And we do go through those factors at some length in our brief, the most significant one being reprehensibility.
And here, where in our view, the conduct really rises to the level of Reprehensible, evil, really just malicious conduct.
There's no situation in which punitive damages would be sufficient.
I'm sorry, nominal punitive damages would be sufficient under the law.
Okay.
Okay.
So...
Judge, I really don't want to go back over all of the evidence relating to reprehensibility.
I think that, you know, you sat through the trial.
But it's important to note when thinking about Mr. Jones's intentionality here.
I want to point out just a few things in the record that we think conclusively establishes that Mr. Jones knew exactly what he was doing and intended the harm that he was causing.
Number one.
On the day of the shooting, we know he takes to the air within hours.
We know he suggests to his audience that this is a staged event.
There was a point in the trial, though, where I brought up a photo of the children lined up for a drill earlier in the year, a Twitter photo posted to Don Hoxprung's Twitter account, in which Mr. Jones acknowledged having seen it.
The reason I did that is because years later, Mr. Jones told his audience that the smoking gun as to why they should believe that this was a staged hoax was that the school was closed.
When he knew full well on the day of the shooting that it had been open, and he acknowledged it because he described the Twitter photo showing all the children lined up earlier that year.
A month after the shooting, he receives an email.
From Lenny Posner, in which he's informed that his conduct is leading to parents being harassed.
Now, he didn't need Lenny Posner to tell him that.
He knew the size of his audience.
He knew that he was telling his audience that these parents were actors and what would likely result from that because he tells his audience that they need to fight this type of government overreach that would stage a mass shooting in order to strip them of their firearms.
So he knows that his audience is going to be activated to act, but he has it right in front of him in the form of an email from Len Posner at the end of January in 2013. Knowing that his conduct is causing the type of harassment and threatening behavior towards the plaintiffs,
he then continues that conduct even up to the time of trial, even after the state's attorney releases his report in November of 2013, which Free Speech Systems acknowledged they received, which Mr. Jones' top Lieutenant Rob Dew acknowledged he saw.
So what you have, I think, based on the evidence that we presented at trial, is really a clear and obvious campaign by Mr. Jones to do things that he knew was causing these plaintiffs to suffer in the way that they were suffering.
And he did it knowing that they had just lost their loved ones.
There's really no justice I can do, just through my remarks, Judge, to just how bad what Mr. Jones did was.
It's really unspeakable.
And then, having sat through what, in fact, did cause the testimony from the plaintiffs, where the court was presented with and the world was presented with the wreckage that he had caused in their lives.
There's really no way any of us, I think, can wrap our minds around what kind of depravity it took for Mr. Jones to do what he did.
But he did it.
And then, as the trial's going on, totally undeterred, he goes after the court.
He goes after the lawyers.
He calls the jury rigged.
He continues to call the event rigged.
Synthetic as hell.
And why does he do that?
And this is where we really, I think, we really get to the point of cut because he thinks it's more profitable for him to do that than to give it up.
It's more profitable for him to keep his audience on the hook, deceived, believing him than it is for him to give it up.
And so when the court is considering what is necessary to In order to properly reflect the deterrent purpose of cutpa, that's the type of behavior it needs to be considering.
So that's really what I wanted to focus on, Your Honor, in my cutpa argument without rehashing all of the evidence that we presented over the course of a month, is the intentionality Can I just ask you a question?
I understand your CUTPA punitive damages argument.
Is there, just procedurally, what about the CUTPA attorney's fees claim?
Because that, you know, procedurally, how does the court address that?
And I don't know if Attorney Pattis is going to address that as well because, you know, Your Honor, I think I can short-circuit this.
Yeah, different factors.
We tried to be as clear as we could in our briefing on this, but we are foregoing any attorney's fees assessed against any CUTPA award of punitive damages.
Okay.
So the attorney's fees in this case are tied solely to the compensatory damages as awarded by the jury.
All right.
Your Honor, unless you have any other questions for me, Judge, that's what I have on CUTPA. Okay, I don't at this time, but I may following Attorney Pettis.
Attorney Pettis, whenever you're ready.
So, Judge, if I misread the law as to nominal attorney's fees being required under cut pot, then I would suggest they be nominal, just that, a dollar.
I thought the court had a discretion to do it or not.
And in part, that was informed by the operation of the default as it proceeded through trial.
Much was made at various times about things that had been established as a result of the default.
But the default did not transform the complaint into the functional equivalent of admitted requests for admissions.
And so there's no clear ruling in the record about what facts were established and what facts weren't.
As to Mr. Jones's intentionality and the reprehensibleness of his conduct, it was the plaintiff's claim at trial relying on the default that it had been established that he meant to send people out to harass these folks.
And when I commented in closing argument about the best evidence we saw of that being Mr. Halbig at an FOI meeting, an objection that was sustained because It had been established that he apparently intended to send people out to harass these folks.
I still don't know the identity of any but one harasser.
And that was an individual named Mark Mills who appeared some 15 to 18 months after being on Mr. Jones' show at a road race and was arrested, but for what we don't know.
And the conclusion is not clear on the record, although I provided you with an entry on his docket sheet.
What he pled to was interfering with an officer.
So we think the default did the work of proof with respect to specific intent to send people to harass and there simply is no evidence.
That Jones ever sent anyone to harass these people.
He knew the name of but one of the plaintiffs in this case, and that was Robbie Parker.
By operation of law, the court concluded that certain things had been established and the plaintiffs need not do more than say what they had to say in order for Mr. Jones's liability to be proven.
Obviously, we disagree with that evidentiary ruling and we filed our new trial petition motion and the appellate courts await us.
But having said that, As to Mr. Matty's point about what it'll take to deter, is it 2.75 Trillion dollars, as they suggested in their papers.
You know, my view is a billion.
If a billion doesn't do it, a trillion isn't going to do it.
Three trillion isn't going to do it.
And this case is really not about what it's going to take to deter Mr. Jones for his reprehensible behavior as found by this jury.
The case is really about due process.
And it seems to me that the cases following Exxon suggest that if the court were to award Punitive damages at all in the cutback context.
We don't think it should beyond nominal.
Going anywhere beyond something approaching a one-to-one ratio on the compensatories, anything beyond that would impose substantial due process problems.
I think the case law is clear that in lesser...
Can I get back to you?
I probably did misunderstand.
When we were talking about the deterrence, is your position that nothing can deter The conduct, and if nothing can deter the conduct, then that makes the point of the punitive damage award under COPPA. The suggestion is if a billion is not going to do it, is it going to be $2 billion, $3 billion, $5 billion, $2.75 trillion?
At some point, the numbers being thrown around on the fact that this case promotes disrespect for the law rather than respect for it.
I saw quite a few comments on social media about the $2.7 trillion suspicion.
I mean, that dwarfs the gross domestic product of some countries.
Just so I understand the basis for your argument, as I understand your argument, you're basically saying, if I'm boiling it down, well, gee, that compensatory damage award was so big, and that's enough deterrence.
Where is the law that lets me reach that conclusion?
Where is the evidence in the record that that number would actually deter this particular defendant based on his financial resources?
And where is the law that says, you know, if that compensatory damage award is big enough, then even though this is what you're supposed to do under COPPA, you don't have to do it.
I know what you're saying, what you want me to do, and I'm just trying to figure out what allows me to do it.
The lack of evidence in this case allows you to do it because the plaintiffs had a financial expert on tap who they chose not to put on, perhaps to keep from the jury's view the fact that free speech and yours in any robust analysis was in bankruptcy.
But the only evidence of net worth in this case, there is no evidence of net worth.
There's evidence of gross sales over a certain period, whether it was 10, I don't recall the exact number, where Attorney Paz estimated it was as low as 100 million, as high as a billion for a 10-year period, but there was no effort to back out expenses, the cost of goods sold or anything.
And so there's nothing there.
I thought the law was that you don't properly, hey, trial courts, you don't properly reduce the amount of punitive damages if the record is not complete.
But you don't award them unless there's a sufficient record.
So the analysis, you know, the basis problem is different here.
The basis problem in the common law count is difficult for me, and I concede it because I've conceded that the retainer agreements are in order.
And so that sum comes to 318 million or so.
But there is no basis in this record on cutback, period.
So just bear with me because I want to follow what you're asking me to do.
So Ulrich says that trial court, hey, look to the defendant's financial resources to determine the amount of punitive damages that would act as a deterrence.
And you're saying, well, the record's incomplete and that's why you shouldn't award punitive damages.
I think, as I understand it, Attorney Maddy is saying the case law says that that's your burden to show that The lack of financial resources.
Do you agree with Attorney Maddie in that the case law is that the defendant's ability or the defendant's financial resources are his burden and not your burden, the lack of it?
Not in a Cutpa context, no.
You know, they put on evidence that this was an unfair trade practice and that presumably the punitive damages are need to deter the trade practice.
And they've made inquiry into the basis of the trade and how it operates.
You know, to my mind, there still is no Cutpa claim here.
But again, that is an appellate issue that we'll take up at another point.
We don't think the plaintiffs get to come in and say, his products hurt us, give us $2.7 trillion.
I mean, that's ridiculous.
And so it was their burden to put the case on that they thought would prove what it is they're seeking.
They never even asked the jury for a particular dollar amount.
They threw 550 million social media impressions in front of the jury and asked them to multiply it as they will.
The jury came up with an unusual verdict.
You can massage the verdict by plaintiff by type of damages, and you will never come up with an algorithm that explains it.
So we get $90 million in reputational and emotional distress harm from Mr. Aldenberg, who had 12 visits to his employee assistance program, chose not to put on any evidence of an economic basis, and said in his testimony, this was no big deal.
He could handle this.
He worried about the family.
Ninety million dollars?
Seriously?
Mr. Parker had more compelling claims than Mr. Aldenberg's.
He was given 120 million.
These numbers are simply unparalleled in Connecticut history, perhaps in the history of any case in the United States.
And we think they have to do with the misapplication of the default, keeping from the jury the basis of the default, Tying the plaintiff's hands so that he could not talk about the extent of his Sandy Hook coverage while permitting the plaintiffs to argue that he profited from it daily in a wildly speculative manner.
So we don't think that it was our burden at trial to come up and say, oh, no, we didn't make that much.
We chose not to put on financial information.
And I don't think it was our burden to prove the plaintiffs or disprove what it is the plaintiffs are seeking.
We think it's their burden to put it forward.
If the court disagrees, it seems to me that the outer limit in terms of the due process analysis would limit any punitive damages if the court felt compelled to give them undercut, but to a one-to-one ratio on the compensatories.
I mean, I think it's an important issue.
I mean, when you look at the Ulrich case there, the bank had a very high net worth, and I think the Supreme Court The only other thing,
Judge, it's a little bit of an overlap, but I remind you that in our view, the nature of the argument and the future deterrent value of damages going forward, we think overlaps with the function of punitive damages, which are both to punish and to deter.
Attorney Maddie, did you want to respond and can you address the burden of proof issue on the defendant's financial resources and the deterrence issue?
You're muted.
In our opening brief at page 27 and 28, we cite two Second Circuit cases in addition to Albrecht.
That's Smith vs.
Lightning Bolt Products, 861 F2nd, 363, and Zarcon vs.
Perry, 572 F2nd, 52. Both cases stand for the principle, quote, the incompleteness of the record as the defendant's net worth is not a basis for reducing the punitive damages award against him, for it is the defendant's burden to show that his financial circumstances warrant a limitation of the award.
And that's true in every case.
That makes a lot of sense in this case where the defendant consistently hid from the plaintiff's evidence of his financial condition for which he was sanctioned and for which he presented a completely unprepared corporate representative to answer questions about this at trial.
We tried to elicit information about Mr. Jones's and Free Speech System's financial condition at trial.
I asked her directly about it and she said that the best that she could do was put their revenue Over a certain period of time at between 100 million and a billion dollars.
Now, that doesn't provide the court with much of a basis to find that a punitive damages award would or would not have an effect on Mr. Jones's financial circumstances, but that's the fault of the plaintiffs.
So, in the Ulrich case, right, after the verdict was returned, there were further evidentiary hearings on the CUPPA claim, on the attorney's fees and the punitive damages, and it was at that Further evidentiary hearing that the evidence was submitted that the court based its finding and I'm just quoting from it that the bank was a quote very large and profitable bank incorporation end quote.
That's why I asked earlier procedurally about that issue if you remember when we first started talking and I guess one or both of you said you had never heard that so I'm just trying to figure out I mean, nobody asked for it, right?
So Attorney Pat, and I didn't mean to interrupt you, Attorney Mattis, so I'll give you more time, but Attorney Pat is if you wanted to put on evidence, in fact, that your client's financial resources were such that, you know, any amount of a punitive damages award would be whatever language you want to use, you know, a deterrence or whatever.
Wouldn't that have been the time for you to do that, just like the Ulbricht Trial court did?
We don't think it's our burden to prove how deep the well the plaintiffs seek to draw from is.
They want to draw from the well.
It's their burden.
They had a financial net worth expert teed up for trial.
They chose not to call them.
They chose to play fast and lose with numbers with a $550 million impression multiplied in some loosey-goosey way by the $100 million to $1 billion number Attorney Maddie Got the corporate rep to adopt.
That's not our problem.
They seek these monies.
Due process required them to prove that it's there.
I don't think they did.
A couple of corrections there.
Great.
We did not have a net worth expert disclosed in this case.
We had an accountant who was prepared to testify about some of the accounting materials turned over.
But because the defendants had withheld evidence and fabricated financial evidence, Um, we, we weren't in a position to provide a net worth, uh, analysis of free speech systems or Alex Jones.
Um, and, and, and that's again, the defendant's doing, uh, if Mr. Jones was genuinely concerned about how this, uh, any punitive award would impact his business, he could have sought an opportunity to present that evidence.
The problem is that, uh, Mr. Jones doesn't want to present evidence of his true financial condition to this court or to any court.
I guess what I'm asking is if the defendants wanted an opportunity post-verdict before the court assessed the punitive damages to put on evidence, if they wanted to, regarding lack of resources or the financial situation of the defendants, they would be allowed to, correct?
Well, I'd have to take a look at that.
I mean, I think that they could make the request, depending on the type of evidence they wanted to present, if it's evidence that had been previously denied to the plaintiffs.
I mean, we'd have to think about that.
Well, I guess it doesn't matter because it wasn't done.
But say, for example, based on the evidence that went before the jury with, and I don't want to misquote Ms. Paz again, Attorney Pat has got it more accurate, but something along the line that the revenue in the last 10 years was somewhere between $100 million with an upper limit of $1 billion.
If the defendants wanted to present evidence to lower that upper limit or whatever along the lines to suggest the financial resources were in fact not as great as Might have been presented at trial.
They could have requested that opportunity.
I mean, I think the Albridge case, that's what they did.
They had the verdict.
And then the court had evidentiary hearings on the attorney's fees and punitive damages claims.
I'm not saying you have to do that.
You certainly can rely on the record, the evidence in the case.
But I think that if either side wanted to put on evidence to address it, they could have asked for it.
A couple of points, Your Honor.
I agree that they had an opportunity to request it, and they didn't.
I suppose they could have asked to bifurcate the trial.
They didn't.
And I also just want to point out that this issue of whatever Alex Jones or Free Speech System's financial condition may be is only one consideration, and frankly, one of the more minor considerations among the all risk factors.
I understand that.
Okay.
Anything further?
No, thank you, Your Honor.
All right.
Attorney Pattinson?
Briefly, Judge?
Sure.
I think, as I recall it, Smith versus, Zarkone, Smith versus Lightning Bolt and Zarkone v.
Perry were both cases arising under 42 U.S.C. 1983, and I believe they were remitted or cases.
I think that's a slightly different analysis than what the court is being asked to perform here.
That's all.
Okay.
All right.
So I will take this under advisement and I just want to double check.
Mr. Fuhrer, what's our next hearing date on the remittitor motion and new trial motion?
Do you have that off the top of your head?
I think it's December 2nd.
Yes.
No, I have December 2nd.
No, December 2nd is the PJR. And December 8th is the new trial and remittitor.
And then Wednesday, I'm going to go in and rule I gave Attorney Patis, right, I gave you until Wednesday to address the… At 5. Yes.
Did I say 5?
The order did today.
I think it was closed of business at the hearing, but I saw an order today that said 5 p.m.
All right.
And that I'm going to rule on the papers because that really is the temporary relief that the court can either grant or deny before the actual hearing.
So what are we anticipating is going to happen on the second?
Is that going to be our evidentiary hearing?
On the PJR, do you know what you intend to do on the second?
I'm still talking to my clients, Judge.
Okay.
So, Attorney Maddy, what do you intend to do on the second?
Do you know?
Do we plan on putting on evidence that day unless there's some agreement?
Yes.
Okay.
All right.
And we think it's just going to be that day, correct?
I just am trying to plan my life.
Okay.
Judge, it could potentially be more.
In the papers, you will see a series of related entities with agents for service.
Whether or not any of those entities feel a need to appear through counsel is not something I can address at this point.
I don't know.
But that could pose a wrinkle leading to more than one day.
Okay.
All right.
Well, it's a possibility.
I understand.
Okay, sounds good.
Thank you very much.
I'll take it under advisement.
Stay well.
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