Steve Quest (p/k/a Montagraph) vs. Nicholas Robert Rekieta & Rekieta Law, LLC (2023)

[John Andrews Stan]

That’s actually my bad. He said 40 grand, I just rewatched the video to make sure. Though, IIRC the estimated figures by the Farmers are higher.

There’s no way he’s only spent $40k on this. Even Randazza’s junior lawyers would cost him more than that during one active month.

 

[Dixieland Buckaroo]

That’s actually my bad. He said 40 grand, I just rewatched the video to make sure. Though, IIRC the estimated figures by the Farmers are higher.

There’s no way he’s only spent $40k on this. Even Randazza’s junior lawyers would cost him more than that during one active month.

The speculation on here was he was nearing six figures prior to the appeal being accepted. Only just under or over it at that point. I think the 40k came up fairly early on, and we know there had to be some billable hours given the filings that have occurred since. He's also made loose talk around how much it has cost, but Rackets is an unreliable narrator.

I don't know what Randazza charges, but assuming it's north of $1k/hr for his direct work, and maybe half that for others or paralegals, a $100k bill would only be somewhere between 80-200 billable hours.

edit: math

 

[UncleTusky]

There’s no way he’s only spent $40k on this. Even Randazza’s junior lawyers would cost him more than that during one active month.

The $40k was the initial retainer, and considering Nick admitted the total cost was approaching six figures (unclear if this includes the retainer) back in July the total has to be in the neighborhood of $200k by now.

Edit to add:

I don't know what Randazza charges, but assuming it's north of $1k/hr for his direct work, and maybe half that for others or paralegals, a $100k bill would only be somewhere between 80-200 billable hours.

$1k/hour is in the right ballpark, possibly a bit on the high side: In 2018 Randazza was defense counsel in another, unrelated defamation + IIED lolsuit, Carrier v. FreeThoughtBlogs Network (CourtListener, stillborn Kiwi thread). During a deposition of the plaintiff the topic of income/cost-of-living differentials came up and Randazza remarked off-hand that $700-800 / hour is typical for him even if he is appearing in a state where local billing rates are much lower (link to transcript, Randazza's comments on his billing come up on pages 20-21).

Edit x2 to avoid double-post: Sometimes I can't help but think there is a God and He loves Kiwis, because Randazza is under investigation by the Nevada State Bar again. Based on Pages 4-5 and 90-103 of this affidavit he filed as part of a pro hac vice application in New York his firm represented a plaintiff in a successful copyright suit in Nevada, he moved for attorneys' fees, the billing records submitted with the motion showed that much of the work was done by Florida-based attorneys who were not admitted to the bar in Nevada, the magistrate judge viewed this as Randazza + his associates assisting the unauthorized practice of law and referred them to the Nevada State Bar. It'll be hard for him to milk Rekieta dry if he's too busy with disciplinary hearings.

Edit x3: Remember how Nick claimed he was considering getting new counsel because Randazza was going to represent Project Veritas in its suit against James O'Keefe? Well thanks to the alleged misconduct in the Nevada suit Randazza's pro hac vice application to represent Veritas in New York was denied (docket; scroll down to entry #19). Great news Nick! All your ethical qualms about hiring an overpriced celebrity lolyer instead of some competent lower-profile one from Minnesota are solved!

 

[AnOminous]

That’s actually my bad. He said 40 grand, I just rewatched the video to make sure. Though, IIRC the estimated figures by the Farmers are higher.

Honestly he's ass-fucked hard just if it even gets to the point they're in the damages phase. Or gets in front of a jury at all and "wins."

Based on Pages 4-5 and 90-103 of this affidavit he filed as part of a pro hac vice application in New York his firm represented a plaintiff in a successful copyright suit in Nevada, he moved for attorneys' fees, the billing records submitted with the motion showed that much of the work was done by Florida-based attorneys who were not admitted to the bar in Nevada, the magistrate judge viewed this as Randazza + his associates assisting the unauthorized practice of law and referred them to the Nevada State Bar. It'll be hard for him to milk Rekieta dry if he's too busy with disciplinary hearings.

I'm not getting the logic here. ABA rules allow even foreign or out of state lawyers to be consulted, so long as an actual practicing attorney authorized to practice supervises it. This is often taken advantage of by having things drafted or consulting lawyers in India who aren't even licensed anywhere in the United States.

If that's allowed, I don't see how what he did in Nevada is any different. Maybe they just don't like him in Nevada very much.

 

[Balldo's Gate]

I'm not getting the logic here. ABA rules allow even foreign or out of state lawyers to be consulted, so long as an actual practicing attorney authorized to practice supervises it. This is often taken advantage of by having things drafted or consulting lawyers in India who aren't even licensed anywhere in the United States.

If that's allowed, I don't see how what he did in Nevada is any different. Maybe they just don't like him in Nevada very much.

The referral from the judge is contained in the last 9 pages of the document posted.

The concern of the judge appears to be that the work was being done by Florida attorneys and they slapped their name on it to get around the Florida people having to be admitted pro hac vice. She also seems to at least suspect that this is part of a pattern (see footnote 3 below).

I haven't looked any of this up to see how well grounded this is, but it looks like the judge took the time to look through quite a few other cases, which suggests they indeed don't like him very much.

 

[AnOminous]

The concern of the judge appears to be that the work was being done by Florida attorneys and they slapped their name on it to get around the Florida people having to be admitted pro hac vice. She also seems to at least suspect that this is part of a pattern (see footnote 3 below).

I still don't get it. Where's the evidence they just "slapped their name" on it without any kind of deliberation? Generally lawyers can consult other lawyers and then review their submissions and modify them or approve them. Lawyers can generally pay other lawyers to give advice, even when they aren't licensed to practice in the jurisdiction the lawyer asking for their advice is in, because the lawyer isn't asking them to practice law, he's asking for information and an advice. As a lawyer himself, he knows that he isn't being represented by that lawyer.

Now, the one thing that does seem sketchy is Randazza Legal Group is claiming to be the "local" counsel while itself being pro hac vice (PHV) with its OWN local counsel. The judge also claims the out-of-state lawyers were characterized as "lead counsel," which I have no opinion about, but is almost marginally relevant compared to the claim that (imo) could actually get Randazza in trouble, specifically:

Oh what's that footnote? If you wonder why law attracts nerds and autists, it's because the really fun stuff is always in the footnotes.

Why you gotta bury the lede dude?

I'm still not convinced this is incredibly damning and in general think that while an expansive approach to unlicensed practice of law, when a lawyer with authorization to practice in the jurisdiction is doing the actual representation, is misguided and archaic, actually just letting out-of-state lawyers practice in a state where they aren't licensed (or PHV) by rubber-stamping whatever they write would still raise an issue.

I think the "evidence" Randazza did any of this is pretty flimsy and inferential, but if the claims are actually true (I remain skeptical), it could cause him some more trouble in Nevada (and all the other states with reciprocal discipline).

I think the behavior is moderately sketchy. I think making it a matter for disciplinary action would set a bad precedent.

 

[TurboNAS]

I think the behavior is moderately sketchy. I think making it a matter for disciplinary action would set a bad precedent.

I think everyone in this case getting some kind of reprimand would be the funniest precedent.

 

[Lubby Smith]

Very curious to see if Monty submits a response before the deadline tomorrow. I assume he will because he has an uphill battle to get the trial court ruling upheld.

The old rule in conflict of laws for defamation was that the law of the plaintiff's domicile would apply because it was the site of the injury (where the plaintiff suffers the reputational harm). Minnesota abandoned the old rule and replaced it with a multi-factor test to give more flexibility, but the old rule still carries weight as something of a default.

Of the five factors, Judge Fischer relied almost entirely on the 4th: advancement of the forum's governmental interests. She said that because the Minnesota Supreme Court struck down its anti-SLAPP, applying Colorado anti-SLAPP in a Minnesota court would contravene Minnesota policy. But Randazza is correct that her overly simplistic analysis ignored critical distinctions between the two statutes.

Minnesota's anti-SLAPP required the plaintiff to prove by clear and convincing evidence that the suit was not a SLAPP, which meant the judge would weigh evidence and decide facts. This denied the right to a jury trial because those are the jury's roles not the judge's. Colorado's anti-SLAPP has a much lower burden similar to summary judgment, which judges decide all the time without violating the right to a jury trial.

Randazza makes a good comparison to what happened in Washington state. Washington has an identical constitutional right to a jury trial as Minnesota. They enacted an anti-SLAPP nearly identical to Minnesota's. Their supreme court declared it unconstitutional for the same reason as Minnesota's court. Washington then enacted a new anti-SLAPP nearly identical to Colorado's. The Washington court said it was fine, for exactly the reasons Randazza is arguing, namely that the judge isn't weighing evidence.

None of the other factors weigh heavily one way or another, which can be seen in Judge Fischer's decision.

If I'm Monty's lawyer, I'm arguing as follows:
1. Nick knew he could be governed by Minnesota law, and he had no idea that Colorado law would be implicated because (as far as I know) he didn't know where Monty lived. Now he's trying to take advantage of Colorado law and escape Minnesota law.
2. While Colorado's anti-SLAPP is similar to summary judgement, it's really a higher standard that requires the judge to weigh evidence. Summary judgment asks if there's a genuine dispute of fact. If so, the jury decides. If not, the judge grants summary judgement. Colorado's anti-SLAPP asks whether the party can show "a probability of success." Can you win vs are you more than likely going to win. Asking a judge to lay odds on the jury verdict is asking the judge to weigh evidence.
3. Colorado's interest is in protecting its residents from getting dragged through an expensive trial for protected speech, but the defendant here isn't a Colorado resident. Colorado has no interest in protecting a Minnesota guy broadcasting from a Minnesota studio. Colorado doesn't have a policy of shitting on defamation plaintiffs; it has a policy of protecting Colorado resident speakers. None of those interests are implicated here, so it wouldn't be disrespectful to Colorado to apply Minnesota law.

I think the court decides in favor of Colorado law because that would be consistent with the old domicile rule, because of the similarity to Washington, and because Judge Fischer's analysis was shit. But because it's a multi factor test the appellate court can do whatever it wants, so who knows.

If Nick wins and Colorado law applies, Nick should win anti-SLAPP immunity on the negligent and intentional infliction of emotional distress claims. The judge already said they were shit but that summary judgement was premature before discovery. I don't know if Monty can voluntarily dismiss those claims and avoid the anti-SLAPP, but he should if possible because they're doomed.

The defamation claim, though, would almost certainly survive. The judge already called it defamation per se. She referred to Nick and Monty as public figures, and I think she'll find enough evidence of actual malice to make it a jury question. Plus she doesn't like Nick and now his hotshot lawyer got her reversed. She's not doing them any favors.

What's great about that scenario is that denial of anti-SLAPP immunity on the defamation claim would be immediately appealable, which I would wholeheartedly support Nick bankrolling. Lolsuit enjoyers and Nick detractors would then hope for Nick to lose the second appeal, proceed through discovery, and go to a jury verdict, costing Nick 7 figures in legal fees for what would surely be small monetary damages in defeat or the ultimate pyrrhic victory.

 

[Useful_Mistake]

What's great about that scenario is that denial of anti-SLAPP immunity on the defamation claim would be immediately appealable

I mean, yeah, but the only Judge in the entire United States of America who’d reverse that ruling would be, ironically, Judge Chupp. It’s pretty well established that defamatory statements do not qualify for anti-slapp protection.

If Nick actually appeals that, then he’d be the biggest fucking retard ever, imo

 

[John Andrews Stan]

If Nick actually appeals that, then he’d be the biggest fucking retard ever, imo

Then it’s as good as done.

 

[AnOminous]

If Nick wins and Colorado law applies, Nick should win anti-SLAPP immunity on the negligent and intentional infliction of emotional distress claims. The judge already said they were shit but that summary judgement was premature before discovery. I don't know if Monty can voluntarily dismiss those claims and avoid the anti-SLAPP, but he should if possible because they're doomed.

You make a good argument on the conflict of laws issue that Monty actually should respond to it, although I would still consider it a rational strategic decision not to respond to it (unless he has already paid a retainer for the guy to make a response on his behalf), especially if his funds are limited.

I definitely agree on the IIED and NIED torts. These aren't going anywhere no matter what happens on the appeal, and if it does come back with SLAPP in play, he should amend to get rid of them. They're going to be dismissed anyway, and even if they weren't, it's almost a no-brainer that if he loses defamation, those aren't going to bail him out, and if he manages to win on defamation AND the IIED/NIED torts, the damages are almost certainly coterminous with the damages for defamation, that is, he isn't getting any more money out of it from those.

What's great about that scenario is that denial of anti-SLAPP immunity on the defamation claim would be immediately appealable, which I would wholeheartedly support Nick bankrolling.

I think that depends on to what extent and if the appeals panel adopts the procedural as well as the substantive aspects of the anti-SLAPP law. I think they'd probably adopt it in full, if they did, but they might insist Minnesota rules about interlocutory appeals are a core interest enough to refuse to adopt the immediate appeal aspect of the law as it relates to Minnesota's ability to manage the internal relationship in its judiciary between trial and appellate courts. The closest thing I can think of to it is an Erie doctrine case called Gasperini which I think kind of sowed chaos, but is so far as I know still good law. I'm not going to Shepardize it though.

That itself may be a compelling reason for the conflict analysis to favor the (lack of) Minnesota law, and is why the majority of federal courts that have addressed whether to use a state's anti-SLAPP law under an Erie analysis have declined to do so.

I know Erie and conflict of law are two different beasts, but they both exist to resolve disputes over which sets of laws courts use.

In any event, if Monty does respond he should very definitely argue along the lines you did, highlighting the difference between the Colorado and the Minnesota law and how Washington addressed the deficiencies of its original anti-SLAPP law by essentially cloning Colorado's.

It's at best persuasive authority, but even so, has the potential to be very persuasive.

 

[Useful_Mistake]

New entry on appeal

Monty's lawyer shows the dates he would be unable to do oral arguments


Edit: Considering (as far as I can see) he has not filed his response, he may not even be entitled to participate in an oral argument:

Montagraph doesn’t actually have to reply (Rule 128.02 subdivision 2, rule 141.02 subdivision 2), but he loses his right to oral arguments (unless he gets permission from the court)

Edit 2:


Monty's lawyer has responded but it does not appear on the electronic system

 

[MunsterCheeseJr]

If Montegraph's lawyer is doing this pro-bono or at a reduced rate, is it possible that Nick is trying to increase that lawyer's real out of pocket expenses such as travel and days away from town?

 

[Balldo's Gate]

Monty's lawyer has responded but it does not appear on the electronic system

This happened the last time with Randazza's brief. The briefs aren't available online according to their weird policies.

Randazza makes a good comparison to what happened in Washington state. Washington has an identical constitutional right to a jury trial as Minnesota. They enacted an anti-SLAPP nearly identical to Minnesota's. Their supreme court declared it unconstitutional for the same reason as Minnesota's court. Washington then enacted a new anti-SLAPP nearly identical to Colorado's. The Washington court said it was fine, for exactly the reasons Randazza is arguing, namely that the judge isn't weighing evidence.

Comparing these three standards it seems like the CO law has more in common with the old WA law, not the new one.

The standard for the OLD Washington anti-SLAPP which was ruled unconstitutional as it violated the right to a jury trial:
Plaintiff must "establish by clear and convincing evidence a probability of prevailing on the claim"

The standard for CO anti-SLAPP which Rekieta's side argues is totally different:
"plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim"

The way WA fixed their anti-SLAPP not by merely deleting the words "clear and convincing" from the statute but from entirely rewriting it such that it's clear that the bar to clear is exactly the same to summary judgment, and the only way the courts could get rid of the anti-SLAPP was by getting rid of summary judgement. Not at all identical to Colorado.
(i) The responding party fails to establish a prima facie case as to each essential element of the cause of action; or
(ii) The moving party establishes that:

(A) The responding party failed to state a cause of action upon which relief can be granted; or​

(B) There is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.​

In terms of similarity, the CO and the old WA anti-SLAPPs are more similar. They differ in the standard of "clear and convincing evidence a probability" versus "reasonable likelihood". Is the former a higher bar than the latter? Sure, maybe. But ultimately they're the same in that they rely on courts hand-waving and saying "that's basically like summary judgement". The new anti-SLAPP from Washington is clear. It's the same threshold as summary judgement.

If Montegraph's lawyer is doing this pro-bono or at a reduced rate, is it possible that Nick is trying to increase that lawyer's real out of pocket expenses such as travel and days away from town?

My understanding is that Monty hired a second lawyer to handle the appeal and raised money through crowdfunding to pay him.

I don't think there's any coherent strategy here. I think Nick is in an ODD spiral against the legal community in Kandiyohi County and is willing to spend ALL the money he needs to show them up.

 

[Useful_Mistake]

This happened the last time with Randazza's brief.

That is incorrect. The Randazza brief appeared, it was simply not available for download.

In other news, now it (Monty's brief) does appear, but like the Randazza brief, is unavailable to download

 

[JCDenthog]

That is incorrect. The Randazza brief appeared, it was simply not available for download.

In other news, now it (Monty's brief) does appear, but like the Randazza brief, is unavailable to download
View attachment 5515004
View attachment 5515006

Can I get those documents from a courthouse like the Randazza documents?

 

[Useful_Mistake]

Can I get those documents from a courthouse like the Randazza documents?

Yes, I believe so.

 

[JCDenthog]

Yes, I believe so.

I'll go and get those documents Friday and upload them here for the threads amusement.

 

[JCDenthog]

Disappointing news Kiwis. I made the assumption that the courthouse would be reopened today. It turns out I was wrong and they will not open today. So I will have to go Monday morning.

 

[Zbk3VmLfujjzjxBd43tL]

Disappointing news Kiwis. I made the assumption that the courthouse would be reopened today. It turns out I was wrong and they will not open today. So I will have to go Monday morning.

Gay 90s is open today and all weekend, so maybe Nick will hand it to you for free.