UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE ATLANTA CHANNEL, INC., : : Plaintiff, : Civil Action No.: 15-1823 (RC) : v. : Re Document Nos.: 257, 261 : HENRY A. SOLOMON, : : Defendant. : MEMORANDUM OPINION
G RANTING IN P ART AND D ENYING IN P ART P LAINTIFF ’ S M OTION IN LIMINE AND G RANTING P LAINTIFF ’ S M OTION FOR P ARTIAL S UMMARY J UDGMENT I. INTRODUCTION The parties in this long-running legal malpractice case have filed a se ries of motions in anticipation of trial. Two are before the Court today. In one, Plaintiff Atlanta Channel, Inc. (“ACI”) seeks to introduce lay opinion from a television industry businessperson. Defendant Henry Solomon asserts that the opinion is inadmissible expert testimony. In the other motion, ACI argues that it is entitled to partial summary judgment regarding the fees it paid an attorney to appeal the unfavorable agency decision thatresulted from Solomon’s malpractice. Solomon opposes that motion too. Ultimately, the Court grants in part and de nies in part ACI’s motion to introduce the lay opinion and grants ACI’s motion for partial summary judgment.
II. BACKGROUND ACI brought this malpractice lawsuit after it s attorney, Solomon, filed an incomplete license application on its beha lf with the Federal Communi cations Commission (“FCC”). See Second Am. Compl. ¶¶ 26–29, 73–79, ECF No. 69. Solomon’s mistake led to the FCC dismissing ACI’s application, cos ting the company a Class A license for its low-power television2 (“LPTV”) station. Settlement Agreement, ECF No. 263-2. A Class A license protects an LPTV station against displacement from its assigned broadcast frequ ency by full-power television stations. See Second Am. Compl. ¶¶ 19–20. Solomon helped ACI administrativ ely appeal the dismissal. See 1st Mac Naughton Decl., Exs. A–B, ECF No. 261-3. But after waiting ove r a decade to decide the appeal, the FCC eventually denied it. Id. Ex. E, at 13–18. In the meantime , ACI had transferred its existing LPTV license to Beach TV Properties. Second Am. Compl. ¶ 40. ACI and Beach TV are both owned and operated by Jud Colley and Toni Davis. See 2d Colley Decl. ¶ 2, ECF No. 261-4. Beach TV, describing itself as ACI’s “successor,” as ked the FCC to reconsider the appeal denial.
See 1st Mac Naughton Decl., Ex. C. The FCC denied that request too. See id. Ex. E, at 21–29. In a last-ditch effort to obtain the Class A license, Beach TV (noting that it was “formerly known as” ACI) filed suit in the D.C. Circuit. See id. Ex. D. ACI’s lawyer in these proceedings, W. James Mac Naughton, prosecuted the appeal. See 1st Mac Naughton Decl. ¶ 4. The D.C. Circuit affirmed the FCC’s decisions in a short opinion. See Beach TV Props., Inc. v. FCC, 617 F. App’x 10 (D.C. Cir. 2015) (per curiam). It explained that it lack ed jurisdiction to hear three of Beach TV’s claims because Beach TV did not ra ise them “at any stage of the administrative adjudication.” Id. at 10. Two other claims were untimely because Beach TV firs t raised them in a motion for reconsideration. Id. And two claims were “not barre d on appeal but la ck[ed] merit” because the FCC did not abuse its discretion by rejecting ACI’s license application based on a “material deficiency” or by refusing to exte nd the deadline to submit the application. Id. at 11. It is unnecessary to review the long and compli cated procedural history of this case from there. As things currently stand, the parties agree that Solomon is liab le for malp ractice. See Settlement Agreement. The question remaining fo r trial is what damages Solomon owes ACI,3 see Settlement Agreement—which once agai n holds the existing LPTV license, see 2d Mac Naughton Decl., Ex. C, at 93:22–95:19, ECF No. 267- 2. Before going to trial, however, ACI makes two requests. First, it asks the Court to admit deposition testimony from Vince Castelli, a businessperson in the television industry who approached ACI a bout buying an interest in a permit for an LPTV station in Atlanta. See Pl.’s Mem. Law Supp. Mot. in Lim. for Admission of Dep. Testimony of Vince Castelli (“Pl.’s Mot. in Lim.”), ECF No. 257-2. Second, ACI seeks partial summary judgment to recoup attorneys’ fees that it paid Mac Naughton to press its appeal at the D.C. Circuit. See Pl.’s Mem. Law Supp. Mot. for Partial Summ. J. in Amount of $28,703 (“Pl.’s Mot. Partial Summ. J. ”), ECF No. 261-2. The Court a ddresses each request in turn.
III. ANALYSIS
A. Motion in Limineto Admit Castelli’s Deposition Testimony ACI wants to introduce Castel li’s deposition testimony to help show what a Class A license in Atlanta would have been worth. See Pl.’s Mot. in Lim. at 2. As mentioned, Castelli is a businessman in the television industry. See Castelli Dep. at 4:20–21, ECF No. 258-1. Over more than three decades in the industry, he ha s bought and sold numerous television stations. See id. at 11:3–19. His company now owns forty st ations across the country, including eight in Atlanta. Id. at 4:22–5:10. In April 2019, Castelli emailed Colley proposing that the two of them go into business together. See id. , Ex. 1. He offered Colley a 50% intere st in a construction permit for a new LPTV station at the price of $2.5 million. Id. A construction permit confers the right to build transmission facilities, and it is the first step to obtaining a li cense to broadcast on a designated frequency. Sloan Decl. ¶¶ 5–6, ECF No. 260-2. Castelli su ggested that his company and ACI would split the remaining costs of building and ma intaining the station. Castelli Dep., Ex. 1. At4 his deposition, he testified that the $2.5 million figure was half of his estimate that “the value of the station would be at least $5 million as the time went on.” Id. at 8:20–21. He valued the station based on a variety of fact ors, including the st ation’s location at th e center of a major market, upcoming changes in broadcasting standards, his view that displacement was unlikely, and the expectation that cable pr oviders would carry the station. Id. at 8:15–21, 26:11–24, 29:15–24. Castelli also estimated that the station would be wo rth two-and-a-half times as much—or $12.5 million—if it had a Class A license. Id. at 9:20–24, 10:23–11:2. ACI says that Castelli’s testim ony about the value of his propos ed station is admissible as a lay opinion. See Pl.’s Mot. in Lim. at 3. A lay witne ss can offer an opinion only if it is “(a) rationally based on the witness’s perception; (b ) helpful to clearly unde rstanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientif ic, technical, or other specialized knowledge” that woul d make it expert testimony. Fed. R. Evid. 701. Solomon argues that Castelli’s testimony flunks the third requirement. See generallyDef.’s Opp’n Pl.’s
Mot. in Lim. for Admission of Dep. Testimony of Vince Ca stelli (“Def.’s Opp’n Mot. in Lim.”), ECF No. 258. Unlike lay opinion te stimony, expert testimony must satisfy certain reliability and disclosure requirements. See United States v. Williams , 827 F.3d 1134, 1156 (D.C. Cir. 2016). The line between the two kinds of testimony is a fine one. To discern one from the other, “a court must focus on the reason ing process by which a witness re ached his proffered opinion.” Id. at 1160 (quoting United States v. Garcia , 413 F.3d 201, 215 (2d Cir. 2005)). In general terms, “lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be master ed only by specialists in the field.’” Fed. R. Evid. 701 advisory co mmittee’s note to 2000 amendment (quoting State v.
Brown , 836 S.W.2d 530, 549 (Tenn. 1992)); see also Williams , 827 F.3d at 1155. Each kind of5 reasoning involves comparing a generalization or base line to the specific facts of a case to draw some conclusion. See Edward J. Imwinkelried, Distinguishing Lay from Expert Opinion: The Need to Focus on the Epistemological Differen ces Between the Reasoning Processes Used by Lay and Expert Witnesses , 68 SMU L. Rev. 73, 85–86 (2015). For example, both lay and expert testimony identifying handwriting as belongi ng to someone would involve comparing a generalization about the normal appearance of anauthor’s handwriting to the appearance of the disputed handwriting. See id. But a lay opinion’s defining charac teristic is that it “arise[s] from the personal knowledge or firsthand perception of the witness.” Lord & Taylor, LLC v. White Flint, L.P. , 849 F.3d 567, 575 (4th Cir. 2017). A witn ess offering a lay op inion grounds his baseline in personal experiences, then uses that baseline to evaluate an event that he personally observed. See 1 McCormick on Evidence§ 11 (8th ed. 2020). To continue the handwriting example, a widow might rely on observations of her deceased husband’ s handwriting to opine that her husband was the author of a will she found in the days after his death. By contrast, an expert can derive his baseline from specialized te chniques or the researchof others and then assess an event at issue in a case even if he did not witness it. See id. An expert testifying in the will dispute could draw on form al handwriting analysis techni ques known only to professionals in that field to opine about the author of th e will regardless of whether he had any personal connection to the case. The two forms of reasoni ng thus differ in two ways: (1) how the witness establishes his baseline and (2 ) how the witness can learn about the facts of a case. See id. A witness’s “[p]erceptions ba sed on industry experience [are ] a sufficient foundation for lay opinion testimony.” United States v. Oldrock, 867 F.3d 934, 940 (8th Cir. 2017) (second alteration in original) (e mphasis omitted) (quoting US Salt, Inc. v. Broken Arrow, Inc. , 563 F.3d 687, 690 (8th Cir. 2009)). Accordingly, one court in this district permitted pharmacists to testify6 that they did not fulfill a docto r’s prescriptions because they we re concerned that many of his patients “presented the exact same prescriptions and travelled a far di stance to get those prescriptions.” United States v. Robinson , No. 16-cr-98, 2017 WL 11496737, at *1 (D.D.C. July 13, 2017). The court reasoned that the testimony was “not an expert opinion” because the pharmacists’ concerns were “based on their day-to-day business experience as pharmacists.” Id. at *2. That said, the court would not allow the ph armacists to offer “expert -type testimony” as to whether the doctor “was acting outside the usua l course of professional practice” or “what constitutes standard medical practice.” Id. (internal quotation marks omitted). Likewise, “most courts have pe rmitted the owner or officer of a business to testify to the value or projected profits of the business, withoutthe necessity of qualifying the witness as an accountant, appraiser, or similar expert.” Fe d. R. Evid. 701 advisory committee’s note to 2000 amendment. “Such opinion testimony is admitted not because of experience, training or specialized knowledge within th e realm of an expert, but be cause of the particularized knowledge that the witness has by virtue of his or her position in the business.” Id. The Fourth Circuit, for instance, held that a company bookkeeper could provide lay opinion testimony about projected lease-related profit s “on the basis of records ke pt by her personally.” See MCI Telecomm. Corp. v. Wanzer , 897 F.2d 703, 706 (4th Cir. 1990). Similarly, the Fifth Circuit allowed a company’s president to estimate the pr ofits it lost as a result of the breach of a noncompetition agreement. See Merritt Hawkins & Assocs., L.L.C. v. Gresham , 861 F.3d 143, 153 (5th Cir. 2017). Courts have also permitted businesspeople to offer lay opinions estimating the value of their businesses’ assets, costs, and outputs. In one case, the Eleventh Circuit admitted lay opinions from officers at a ship repair company regarding the reasonabl eness of the company’s7 charges for repairing a ship because they “testi fied based upon their particularized knowledge garnered from years of expe rience within the field.” See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co. , 320 F.3d 1213, 1223 (11th Cir. 2003). In another case, the Fourth Circuit permitted a department st ore executive to offer a lay opinion a bout what it would cost the store to accommodate a mall’s redevelopment plan because he drew “on personal knowledge from . . . on-the-job experience[,] including ‘relevant historical . . . fact s’ regarding the more than 50 redesign projects he ha[d] overseen.” See Lord & Taylor, LLC, 849 F.3d at 575–76 (citation omitted). And in another case, the Fifth Circuit let a company’s president testify as to the value of missing computer files because he had pers onal knowledge about what it would cost to pay employees to replace them. See Merritt Hawkins & Assocs., L.L.C. , 861 F.3d at 153; see also id. at 153–54 (permitting the presid ent to testify about employe e training expenses because “[t]raining expenses for employees [we]re the so rt of routine matters” within his personal knowledge as the company’s president). Castelli’s testimony estimating the value of his construction permit is equally admissible. Lay reasoning underpinned his va luation. He relied on personal observations from more than thirty years in the television industry to come up with baselines aboutwhat certain station features were worth. Castelli then compared those baselines to his own station’s characteristics to estimate the station’s value. It does not appear from his testimony that he used a methodology or pricing model known only to television industry specialists. Because Castelli drew on his personal experiences to price his station, he is like the ship repair company officers who appraised the value of their company’s services based on their “years of experience,” the executive who estimated the cost of a store rede sign based on the projects he had overseen, or the8 company president who testified about the worth of his company’s missing computer files based on how much he knew he would have to pay employees to replace them. Solomon offers four arguments to exclude Castelli’s testimony. The first three are unpersuasive. The last one warrants excluding Castelli’ s opinion that a stat ion with a Class A license is worth two-and-a-half times the value of a st ation without one. First, Solomon asserts that, even if a businessperson can provide lay te stimony about the value of his business, Castelli cannot testify as to the value of a permit that allowed him me rely to build a business. See Def.’s Opp’n Mot. in Lim. at 9. But a construction per mit is one of a television station’s core assets—it is necessary to build transmissi on facilities and to obtai n a license to broadcast from a designated frequency. See Sloan Decl. ¶¶ 5–6. And as the ca ses described above illustrate, a businessperson can supply lay testimony about the value of his business’s assets for the same reason he can testify about the value of his business as a whol e: he has personal knowledge of the business’s workings. There is no logical difference between the two. Second, Solomon argues that Castelli relied on specialized knowledge in valuing his station. See Def.’s Opp’n Mot. in Lim. at 9–11. As ev idence, Solomon cites Castelli attaching to his email to Colley a map of the proposed station’s projected c overage and Castelli referring to advances in broadcasting standards as one basis for his valuation. See id. Neither Castelli’s use of the coverage map nor his knowledge of broadcasting standards signified that his testimony depended on specialized expertis e. Coverage maps are common in the television industry, and their meaning is largely appare nt to even a lay viewer. See 1st Colley Decl. ¶¶ 6–9, ECF No. 260-1; see also Castelli Dep., Ex. 1. Perhaps expert te stimony would be necessary to explain how to generate a coverage map, but Castel li only commissioned the map’s creation and interpreted it to help value his station. How to interpret an al ready-generated coverage map is9 the sort of skill that comes with experience in the industry; it does not require specialized training or expertise. The same goes for changes in broadcasting standards. One would expect a businessperson who operates forty television stations to be familiar with developments in industry standards. Castelli did not need to draw on specialized knowledge to account for those changes. Third, Solomon attacks Castel li’s valuation for being a poor estimate of the proposed station’s value. See Def.’s Opp’n Mot. in Lim. at 11–13. Solomon points out that Castelli’s $2.5 million figure was not an actual purch ase price but rather an opening offer that Castelli admitted was negotiable. See id. at 11–12; see also Castelli Dep. at 24:14–16. He also questions Castelli’s assumption that cable providers would carry his proposed channel. See Def.’s Opp’n Mot. in Lim. at 12–13; see also Castelli Dep. at 29:15–24. These qualms are relevant to the weight of Castelli’s testimony, not its admissibility. They pertain to the substance of Castelli’s analysis rather than his reasoning process. See Def.’s Opp’n Mot. in Lim. at 11 (“The Castelli so-called offer to sell a half-int erest in the unbuilt Channel 24 C onstruction Permit was merely an opening bid or invitation to negotiate[] and is not probative of market value.” (underlining omitted)). The latter is what distinguishes expert testimony from lay testimony. A jury can decide the extent to which any logical shortcomings detract from Castelli’s testimony. Cf. Lord & Taylor, LLC, 849 F.3d at 576 (rejecting ar guments that a departmentstore executive could not offer a lay opinion about the cost s of a store renovati on because he visited the store only once and had never estimated the cost s of a renovation in Maryland, e xplaining that “those arguments [went] to the weight to be given [the executive’s] testimony, not to its lay character or admissibility”).10 Lastly, Solomon asserts that Ca stelli cannot testify as to wh at his proposed channel would have been worth if it had a Class A license. See Def.’s Opp’n Mot. in Lim. at 13–14. Solomon says that answers to hypothetical questions or speculation about what a witness would have done had a situation been different cannot satisfy th e requirement that a lay opinion be rationally based on the witness’s perception. Id. at 13 (citing Fed. R. Evid. 701(a)). That is an oversimplification. To be sure, some courts have decried “speculative opinion testimony by lay witnesses[,] i.e., testimony not ba sed upon the witness’s perception.” Washington v. Dep’t of Transp. , 8 F.3d 296, 300 (5th Cir. 1993); see also United States v. Gibson , 636 F.2d 761, 764 (D.C. Cir. 1980) (“[W]e know of no case holding th at a trial judge must permit a lay witness to use one set of observations as th e foundation for an opinion about wh at he might have seen under different circumstances.”); Athridge v. Iglesias , No. 89-cv-1222, 2004 WL 7345458, at *2 (D.D.C. Dec. 21, 2004) (“Speculative testimony, ba sed on what a witness would have done had the situation been otherwise, cannot possibly be based on a witness’ percep tion.”). Those courts excluded testimony about what a pr oducts liability plaintiff “woul d have done had he seen the warning label” at the heart of his case, Washington , 8 F.3d at 300 (emphasis omitted), what a witness who did not use binoc ulars “might have seen if he had used binoculars,” Gibson , 636 F.2d at 764, and whether a couple would have refuse d to let their nephew borrow their car “had they been home on the day of the accident rather than on an extended vacation,” Athridge , 2004 WL 7345458, at *2. But other courts have routinel y permitted experienced profes sionals to offer lay opinion testimony about what would have happened had some disputed fact been different. For instance, several courts have allowed bank employees to offer lay opinions about what a bank would have done had it known about misrepresentations in loan applications. See, e.g. , Kerley , 784 F.3d at11 339–40; United States v. Hill , 643 F.3d 807, 841–42 (11th Cir. 2011). Similarly, the Second Circuit permitted accountants to provide lay opinions on how they would have accounted for certain transactions had they known that the transactions were fraudulent. See United States v.
Cuti , 720 F.3d 453, 459–60 (2d Cir. 2013). And in another case, the Fourth Circuit approved a lay opinion from a police officer who opined on th e techniques and the degree of force he would have used had he been the one to subdue an arrestee. See United States v. Perkins , 470 F.3d 150, 153, 156 (4th Cir. 2006). So it cannot be that wi tnesses are categorically barred from offering lay opinion testimony about a counte rfactual scenario. After all, hypothesizing about what could have been is “a process of reason ing familiar in everyday life.” See Cuti , 720 F.3d at 460 (quoting Fed. R. Evid. 701 advisory co mmittee’s note to 2000 amendment). The distinction between the two strains of caselaw appears to be a difference in the degree to which testimony is “rationally based on the witness’s perception.” See Fed. R. Evid. 701(a). Unadorned testimony about a hypothetical set of facts the w itness did not observe is in no way “based on the witness’s perception.” In deed, such speculative te stimony is often selfserving and thus arguably unhelpful in “determining a fact in issue” too. See Fed. R. Evid. 701(b); see also Fed. R. Evid. 701 advisory committee’ s note to 1972 proposed rules (“If . . . attempts are made to introduce m eaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfu lness is called for by the rule.”); Washington , 8 F.3d at 300 & n.10. By contrast, a witness whose testimony is grounded in extensiv e experience with a business or industry can “rationa lly base[]” his prediction about a hypothetical scenario on that personal experience. See Hill , 643 F.3d at 841–42 (rejecting an argument to exclude bank employees’ lay testimony about wh at the banks would have done on the ground that “the ability to answer hypothetical questions is the essential difference betw een expert and lay witnesses”12 because the witnesses “based their testimony on their personal experien ces as officers of financial institutions with knowledge of their compan ies’ policies and of the specific transactions at issue” (citation omitted)); see also United States v. Powers , 578 F. App’x 763, 772 (10th Cir. 2014) (rejecting, on plain-error re view, defendant’s argument that lender witnesses who lacked personal involvement in transactions could notanswer hypothetical quest ions relating to the transactions because their lay “testimony was based on their personal knowledge and experience with their respective firms’ . . . policies and procedures”). Castelli’s deposition testimony di d not adequately establish that he had enough personal experience with Class A licenses to opine on th eir value. No doubt, Castelli has extensive industry experience. But with respect to Class A licenses specifically, he does not seem to have the “particularized knowledge” that comes only from working with some thing day in and day

out. See Fed. R. Evid. 701 advisory comm ittee’s note to 2000 amendment; cf. Lord & Taylor,
LLC, 849 F.3d at 575–76 (reasoning that a departme nt store executive had “particularized knowledge” of renovation costs base d on his “day-to-day work” that included overseeing “more than 50 redesign projects”); Kerley , 784 F.3d at 339–40 (permitting bank employees to opine on the hypothetical application of banks’ “underwriting guidelines and policies” because they had “particularized knowledge . . . acquired through th eir employment”). Just one of the forty stations Castelli currently owns has a Class A license. Castelli Dep. at 5:18–6:2. And nothing in his testimony indicates that any of the stations he has previous ly sold were Class A stations either. In addition, ACI wants to admit Castelli ’s deposition testimony; they do not seek to preclear his live testimony. See Pl.’s Mot. in Lim. at 1. That re stricts the Court’s ability to take a generous view of admissibility on the ground that cross-examination could demonstrate the weakness of the foundation s upporting Castelli’s opinion. Cf. United States v. Williams , 21213 F.3d 1305, 1309 n.6 (D.C. Cir. 2000) (explaining that a district court enjoys “broad discretion in admitting opinion testimony of lay witnesses . . . due in large part to th e opportunity the trial judge ordinarily affords opposing counsel to expose a weak foundation through crossexamination of the witness”). Given Castelli’s lack of experience with Class A licenses, his opinion regarding their value is not rationally based on his perception and is therefore inadmissible. Because Castelli’s opinion about the value of his proposed station is based on his experience as a businessperson in the television industry rather than t echnical or specialized expertise, it is admissible as lay opinion. Nevertheless, Castelli has no particularized knowledge of Class A licenses, so his opinion on the value of a Class A license will be excluded. ACI’s motion in limineis thus granted in partand denied in part. B. Motion for Partial Summary Judgme nt on Attorneys’ Fees for Appeal ACI also requests summary judgment with respect to fees it paid its attorney to appeal the FCC’s dismissal of its application to the D.C. Circuit. See Pl.’s Mot. Partial Summ. J. A party deserves summary judgmentonly if it “shows that there is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matte r of law.” Fed. R. Civ. P. 56(a). Material facts are those that could affect the outcome of the litigation, and genuine disputes about material facts exist when the evidence would allow a reasonable jury to return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A court assessing a summary judgment motion must avoid credibility determinations and dr aw all inferences in the nonmovant’s favor. Id. at 255. But conclusory assertions without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999).14 Damages in a malpractice suit include “attorney’s fees and costs expended as a result of an attorney’s . . . malpractice.” See Knight v. Furlow , 553 A.2d 1232, 1235 (D.C. 1989); see also Restatement (Third) of th e Law Governing Lawyers § 53 cmt. f (Am. L. Inst. 2021) (“The rule barring recovery of fees does not prevent a successful le gal-malpractice plaintiff from recovering as damages additional legal expenses reasonably incurred outside the malpractice action itself as a result of a lawyer’s misconduct.”). For ACI to recover the fees it paid to appeal the FCC’s dismissal to the D.C. Circuit, it must show that Solomon’s malpractice was a proximate cause of the appeal. See Dalo v. Kivitz , 596 A.2d 35, 41 (D.C. 1991); see also Beach TV Props., Inc. v. Solomon , 306 F. Supp. 3d 70, 96 (D.D.C. 2018) (“ Triers of fact determine not only whether a defendant’s negligence proximately caused damage to the plaintiff, but also the extent of the plaintiff’s damage that the defendant proximately cau sed.”). That means that there must be a “substantial and dire ct causal link” between Solomon’s malpractice and the appeal. See Dalo , 596 A.2d at 42 (quoting District of Columbia v. Freeman , 477 A.2d 713, 716 (D.C. 1984)). If there is such a link, an intervening act would supersede So lomon’s malpractice and relieve him of liability only if that act was not reasonably foreseeable. See id. According to ACI, there is no genuine dis pute that Solomon’s malpractice proximately caused it to pay its attorney to appeal the FCC decision. See Pl.’s Mot. Partial Summ. J. at 2–3. Solomon responds with three counte rarguments. As an initial matt er, he asserts that ACI cannot recover attorneys’ fees for an appeal that Beach TV—not ACI—commissioned. Def.’s Opp’n Pl.’s Mot. Partial Summ. J. on Damages (“Def.’s Opp’n Mot. Partial Summ. J.”) at 6, ECF No. 263. Solomon then argues that his misconduct was not a proximate cause of the appeal. He says that Beach TV chose to appeal only after th e Spectrum Act’s passage in 2012 raised the15 possibility of receiving “ahuge financial windfall.” Id. at 5. Finally, Solo mon concludes by offhandedly questioning whether the appeal to th e D.C. Circuit was “worth the candle.” Id. at 6. No reasonable jury could side with Solom on. For starters, ACI can properly seek attorneys’ fees for the failed appeal to the D.C. Circuit. ACI submitted two different tax forms from 2015 showing that it was th e one that paid Mac Naughton to appeal the case. See 1st Mac Naughton Decl., Ex. H (miscellaneous income form fo r the appellate attorney listing the payer as ACI); 3d Colley Decl., Ex. B, ECF No. 267-1 (red acted excerpt from ACI’s tax return listing a figure for legal and professional expenses that Colley states includes th e amount paid to the appellate attorney, 3d Colley Decl. ¶ 9). In re sponse, Solomon makes much of the fact that Beach TV pays some of ACI’s expenses—inc luding legal fees—and th en accounts for those transactions with mere “journa l entries” on both companies’ b ooks rather than writing checks between the companies. See Def.’s Opp’n Mot. Partial Summ. J. at 6; see also, e.g. , Colley Dep. at 105:1–8, 116:2–22, 161:11–162:16, ECF No. 263-3. He also points out that Mac Naughton addressed his invoice to Beach TV. See Def.’s Opp’n Mot. Partial Summ. J. at 6; see also 1st Mac Naughton Decl., Ex. G. But Solomon’s argument is t oo clever by half. Earlier inthis litigation, Solomon had Beach TV dismissed from the suit because ACI c ould not assign Beach TV the right to pursue the malpractice claim. See Beach TV Props., Inc. v. Solomon , No. 15-cv-1823, 2016 WL 6068806, at *15–17 (D.D.C. Oct. 14, 2016). He now wants to avoid paying appellate fees because ACI—not Beach TV—is asking for them. To make matters worse, he grounds his trap in an accounting technicality with little pract ical significance. Colle y and Davis own both ACI and Beach TV. See 2d Colley Decl. ¶ 2. And even Solomon testified that, when Beach TV transferred the existing LPTV license back to ACI, there was essentially “no change in16 ownership . . . and no change in control” becau se Colley and Davis owne d and controlled both companies. 2d Mac Naughton Decl., Ex. C, at 93:22–95:19. It is thus unclear how a payment from Beach TV that is reimbursed with a transf er recorded in both AC I’s and Beach TV’s books is meaningfully different than ACI making that payment directl y. Most importantly, even if Beach TV covers ACI’s expenses from time to time, the evidence indicates that ACI paid Mac Naughton in this instance. Solomon does not gr apple with that eviden ce by offering contrary evidence of his own. See Fed. R. Civ. P. 56(c)(1) (requiring a party asserting th at a fact is genuinely disputed to “cit[e] to particular parts of materials in the record”). Indeed, given Colley’s oftentimes uncertain testimony regarding the relationship between ACI and Beach TV’s finances, see, e.g. , Colley Dep. at 108:3–22, 116:16–18, it is striking that Solomon did not depose the bookkeeper whom Colley described as “the only person” who knew the details of transactions between the companies, e.g. , id. at 162:17–19. A jury could not reasonably determine that ACI did not fund the D.C. Circuit appeal. Next, Solomon’s misconduct was undisputedly a proximate cause of the appeal to the D.C. Circuit. His misfiling of ACI’s license application certainly“play[ed] a central role” and was a “substantial factor” in ACI in curring the expense of the appeal. See Dalo , 596 A.2d at 41– 42 (quoting Freeman , 477 A.2d at 715–16). Solomon neverthe less asserts that the Spectrum Act’s passage in 2012 cut off the causal connecti on his malpractice had with the decision to appeal. See Def.’s Opp’n Mot. Partial Summ. J. at 5. As explained in a previous opinion, the Spectrum Act allows the federal government to re license Class A televisi on stations’ broadcast frequencies to wireless communication companies by acquiring the Class A licenses in a reverse auction. See Atlanta Channel, Inc. v. Solomon , No. 15-cv-1823, 2020 WL 7013346, at *2 (D.D.C. Nov. 24, 2020). LPTV stations without a Class A license “cannot participate in the17 reverse auction . . . and risk going off the air if the availabl e spectrum is taken by wireless carriers or broadcast stations with priority.” Id. Solomon suggests that Beach TV decided to appeal the application dismissal because it wanted the “huge financ ial windfall” that could result from the reverse auction. See Def.’s Opp’n Mot. Partial Summ. J. at 5. He adds that this Court has already ruled that the foreseeability of the Spectrum Act’s passage for purposes of damages calculations is a genuinely disput ed issue of material fact. See id. ; see also Beach TV Props.,
Inc. , 306 F. Supp. 3d at 96–97. But the relevant question for the superseding cause analysis here is whether the D.C. Circuit appeal was foreseeable at the time of Solomon’s malpractice, not whether the Spectrum Act’s passage was. That is because the dama ges ACI requests in its pending summary judgment motion consist only of the fees it paid to appeal the case rather than the economic damages potentially attributable to AC I’s lack of a Class A license under the Spectrum Act’s reverse auction scheme. See Dalo , 596 A.2d at 42 (“A defendant ‘wil l be held responsible for the damages which result despite the entry of another act in the chain of causation’ if that subsequent act reasonably could have ‘been anticipated and protected against.’” (citation omitted)). And ACI’s decision to take on the costs of an appe al to the D.C. Circuit was foreseeable when Solomon submitted the incomplete license app lication. In the immediate aftermath of the application’s dismissal, Solom on emailed Colley about how the appeals process would work.
See Def.’s Opp’n Mot. Partial Summ. J., Ex. 4, ECF No. 263-5. Solomon explained that the FCC would hear a first-round appeal and any unfavorable decision w ould be appealable to a U.S. Court of Appeals. Id. Colley responded that he wanted “to pursue all avenues of relief ” because “protected frequency in Atlant a could be worth a substantia l amount of money.” 3d Colley Decl., Ex. A (emphasis added). So notwithst anding the Spectrum Act later heightening the18 stakes, it was always foreseeable that ACI would incur the cost of appealing the FCC decision to the D.C. Circuit. The Spectrum Act’s passage was not a superseding cause of the appeal. Solomon lastly asserts that there is a genuine dispute about whether the decision to appeal to the D.C. Circuit was “worth the candle.” Def. ’s Opp’n Mot. Partial Summ. J. at 1, 6. The “worth the candle” phrase refers to Solomon’s assessment following the application’s dismissal that the low chances of a successful appeal did not justify the costs. See id. Ex. 4. But he cites no authority for the proposition that a legal malpr actice plaintiff cannot r ecover attorneys’ fees incurred to pursue appeals that the defendant attorney judged to be financially unwise. On the contrary, a malpractice plaintiff can “recover the expenses of a pr oper effort to mitigate damages even though it proves unsuccessful.” See Baker v. Dorfman , 239 F.3d 415, 427 (2d Cir. 2000) (brackets omitted) (quoting Den Norske Ameriekalinje Acti esselskabet v. Sun Printing & Publishing Ass’n , 122 N.E. 463, 465 (N.Y. 1919)). Nowher e does Solomon argue that the D.C. Circuit appeal was somehow improper or frivolous. In fact, he told Colle y after the application’s dismissal that he would be “glad” to appeal if Colley thought it was worth the cost. See Def.’s Opp’n Mot. Partial Summ. J., Ex. 4. The D.C. Ci rcuit did not describe th e appeal as frivolous either. See generally Beach TV Props., Inc. , 617 F. App’x 10. Solomon appears to argue that ACI had a duty to mitigate damages by not appealing the

case. See Def.’s Opp’n Mot. Partial Summ. J. at 3. “The avoidable cons equences doctrine is that ‘one injured by the tort of anothe r is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort . . . .’” See Flowers v. District of Columbia , 478 A.2d 1073, 1077 (D.C. 1984) (omission in original ) (quoting Restatement (Second) of Torts § 918 (Am. L. Inst. 1979)); see also Restatement (Third) of the Law Governing Lawyers § 54 cmt. e (“To the extent that applicable law recogn izes them in other negligence actions, the partial19defense of failure to mitigate damages and the defense of assumption of the risk apply to legalmalpractice claims.”). Solomon seemingly thinks that the low likelihood of the appeal’s success would have made it reasonable fo r ACI to abstain from appealing to minimize the costs he would have to repay it. Even if that is true, howev er, the decision to appeal was also reasonable. Colley believed that a Class A license “could be worth a substantial am ount of money.” 3d Colley Decl., Ex. A. Exhausting the right of appellate review wa s a reasonable way to mitigate the significant damages that could flow from failing to obtain that license. And because Solomon created the predicament, he does not get to second-guess the decision to appeal: Where a choice has been required betweentwo reasonable co urses, the person whose wrong forced the choice can not comp lain that one rather than the other was chosen. The rule of mitigation of damages may not be invoked by a contract breaker as a basis for hype rcritical examination of th e conduct of the injured party, or merely fo r the purpose of showing that the injured person might have taken steps which seemed wiser or would have been more advantageous to the defaulter. Dist. Concrete Co. v. Bernstein Concrete Corp. , 418 A.2d 1030, 1037 (D.C. 1980) (quoting In re Kellett Aircraft Corp. , 186 F.2d 197, 198 (3d Cir. 1950)). Accordingly, ACI can recover the fees it paid to appeal to the D.C. Circuit.
IV. CONCLUSION For the foregoing reasons, ACI’s motion in limineto admit Castelli’s deposition testimony (ECF No. 257) is GRANTED IN PART A ND DENIED IN PART and ACI’s motion for partial summary judgment on the issue of the fees it paid to prosecute its D.C. Circuit appeal (ECF No. 261) is GRANTED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 17, 2021 RUDOLPH CONTRERAS United States District Judge