Lord & Taylor claims $112K in costs from White Flint Mall case

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Lord & Taylor LLC is seeking more than $100,000 in costs from the owner of White Flint Mall nearly two years after a jury awarded the department store $31 million in its breach of contract lawsuit.

The lawsuit stemmed from Lerner Enterprises LLC’s five-year-old plan to redevelop White Flint Mall into an open-air shopping center along Rockville Pike. Lord & Taylor filed suit in July 2013, arguing White Flint breached its contract with the department store by closing the mall without consent.

The 4th U.S. Circuit Court of Appeals affirmed the judgment in February, and Lord & Taylor filed a bill of costs in U.S. District Court in early April claiming $112,000. White Flint filed its opposition Wednesday because the court has discretion to deny costs where the case was close and difficult or the costs are unnecessary and excessive.

Lord & Taylor lists court fees for filings and subpoenas, deposition and hearing transcript production for defending on appeal, expert witness expenses and copies.

“Because White Flint refused to agree to even the most basic of facts, Lord & Taylor needed to employ numerous experts, conduct and defend myriad depositions, file and respond to copious motions, and secure the testimony of dozens of witnesses in order to prove their rights were intentionally violated,” the bill of costs claims.

But White Flint alleges it was Lord & Taylor’s litigation strategy that drove the high costs of the proceedings, from the company initially seeking an injunction and then appealing the trial court’s denial to refusing to work with White Flint to conduct discovery “in a reasonable manner” and instead seeking “every document relating to the White Flint Mall, regardless of its relevance.”

“Lord & Taylor’s strategy throughout this litigation was to drag out the proceedings and expand their scope in order to increase its perceived leverage to extract a large settlement,” the opposition contends.

Lord & Taylor argued at trial White Flint’s breach and fraud cost the company somewhere between $70 and $100 million and sought damages for lost profits during the construction phase of the project. But White Flint countered the jury awarded less than half that amount.

There is no injustice in asking the defendants to pay the costs of litigation, according to Lord & Taylor, because Lerner holds millions of dollars in real property and cannot demonstrate a financial inability to pay. But the defendants argued in their opposition that inability to pay is just one factor for the court to consider in determining whether to award costs.

The case presented novel issues, according to White Flint, including one of first impression stemming from the original injunction claim which reached the 4th Circuit, and many issues were “vigorously contested,” according to White Flint.

The costs also were excessive for “a straightforward breach of contract action seeking lost profit damages,” according to White Flint.

The case is Lord & Taylor, LLC et al v. White Flint, L.P., 8:13-cv-01912-RWT.