Attorneys Fees

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Callprod, Inc. v. GN Netcome, Inc., No. 06 C 4961, Slip Op. (N.D. Ill. Nov. 1, 2010) (Kendall, J.).
Judge Kendall granted in part plaintiff Callprod’s motion to stay determination regarding attorney’s fees pending appeal of the underlying patent issues and the Court’s determination as to whether the case was exceptional. The Court held that the Court’s and the parties’ resources were best preserved if all proceedings regarding attorney’s fees were stayed until the Federal Circuit ruled on Callprod’s appeal of the Court’s grant of summary judgment of noninfringement. The Court, however, ordered Callprod to respond to defendants’ bill of costs.
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Continue Reading Court Stays Attorney’s Fees Determination Pending Appeal

Trading Techs. Int’l, Inc. v. Speed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Sep. 8, 2010) (Schenkier, Mag. J.).
Judge Schenkier recommended denying plaintiff Trading Technologies’ (“TT”) motion to enforce the final judgment and for sanctions. The Court also recommended correcting the final judgment to reflect the jury verdict and the remitted damages award. A jury previously awarded TT $3.5M in damages and found defendant’s infringement willful. The Court later overturned the willfulness finding and ordered a remittitur of damages to $2.5M, which TT accepted. The Court then granted a permanent injunction and entered a final judgment, but that judgment did not reflect the damages award.
Defendant argued that, despite the jury award and remittitur, there was no damages award because it was not reflected in the final judgment and after the Federal Circuit had decided to appeal it was too late to revise the final judgment.
The Court agreed that the first judgment should have included the award, but not that it was too late to fix it. The Court noted that the most likely explanation for the omission was “the fallibility of human beings (judges included).” The Court also noted that TT should have sought to correct the final judgment immediately. But despite the imprecise judgment, the Federal Circuit ruled upon several issues related to the jury verdict, although not the award itself. And neither TT nor defendants disputed the fact or the amount of the damages award. Based upon those facts, the Court recommended that revising the final judgment to reflect the award would merely “correct a clerical mistake or a mistake arising from oversight or omission” pursuant to Fed. R. Civ. P. 60(a). Finally, the Court recognized TT’s frustration over not having received payment 34 months after the jury verdict and 6 months after the Federal Circuit’s decision. But the Court recommended not awarding TT its fees because TT’s failure to promptly get the judgment corrected was the only reason there was a delay in paying the judgment.
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Continue Reading Trading Technologies: Court Reconnect Altering Judgment to Reflect Jury Award

Rosenthal Collins Group, LLC v. Trading Techs. Int’l, Inc., No. 95 C 4088, Slip Op. (N.D. Ill. Jun. 29, 2010) (Kim, Mag. J.).
Judge Kim granted declaratory judgment defendant Trading Technologies (“TT”) approximately $290,000 of $375,000 requested in fees and costs pursuant to Fed. R. Civ. P. 37(b)(2) in this patent case.* On March 14, 2007, the Court held that declaratory judgment plaintiff Rosenthal Collins Group’s (“RCG”) summary judgment motion was “misleading,” “disingenuous” and “prematurely filed” – click here to read more about the opinion in the Blog’s archives. The Court, therefore, found RCG’s conduct sanctionable, struck the motion without prejudice, struck the supporting Buist declaration, and ordered RCG to pay costs for TT’s software consultants, and attorney’s fees and costs related to the sanction motion.
On July 17, 2008, the Court denied RCG’s motion to vacate the sanction order and again ordered RCG to pay: 1) TT’s consultant; 2) TT’s deposition of the Buists; and 3) TT’s prosecution of the sanctions motions. The Court also ordered the parties to comply with Local Rule 54.3 by trying to come to agreement on the issues.
Initially, the Court observed that “contentiousness and obvious material distrust” demonstrated by both sides had “leached” into the parties briefing. The Court awarded TT the full amount of its expert fees and costs because those fees and costs were specifically awarded by Judge Moran and because TT showed that all of the expert’s work was impacted by or resulted from the misconduct. Those fees were approximately $52,000.
The Court also awarded TT’s attorney’s fees and costs of approximately $157,000 related to the depositions of the experts at issue. The only reduction was for a series of identical, cryptic time entries for “preparation of Buist witness kit”. The court could not determine whether the fees were justified. The Court awarded TT its actual costs, instead of limiting the costs to the Fed. R. Civ. P. 54(d) limits because this sanction award was pursuant to Fed. R. Civ. P. 37 and, therefore, was not limited by Rule 54(d). The Court finally awarded $86,000 in fees and costs related to TT’s sanctions motion. The Court generally found TT’s fees and expenses reasonable, with limited exceptions. The Court limited fees for writing a “simple” two-page motion to two hours. The Court also deleted approximately $11,000 in apparently duplicative time entries.
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Continue Reading Trading Technologies: Court Awards Rule 37 Discovery Sanctions

Nova Design Build, Inc. v. Grace Hotels, LLC, No. 08 C 2855, Slip Op. (N.D. Ill. Jun. 8, 2010) (Der-Yeghiayan, J.).
Judge Der-Yeghiayan granted defendant Grace Hotel’s motion for costs and denied without prejudice Grace Hotel’s motion for attorney’s fees. As an initial matter, the Court held that Grace Hotels was a prevailing party pursuant to both Fed. R. Civ. P. 54(d) (costs) and 17 U.S.C. § 505 (attorney’s fees). While the standards were different, Grace Hotels met both standards. Grace Hotels was granted summary judgment on plaintiff’s copyright infringement claim because plaintiffs did not have a valid copyright registration – click here for more on this opinion in the Blog’s archives. While the decision was jurisdictional and not substantive, Grace Hotel was a prevailing party because the Court’s ruling “effectively foreclosed” Plaintiff’s copyright claims. In other words, “Grace [Hotels] obtained more than just a moral victory on a minor jurisdictional point.” Because Grace Hotels was a prevailing party, the Court awarded the reasonable costs Grace Hotels requested for court reporter fees pursuant to Fed. R. Civ. P. 54(d) – $2,534.70.
While Grace Hotels was also a prevailing party for purposes of § 505, the Court denied Grace Hotels attorney’s fees motion without prejudice. The fees did not appear reasonable. They were not limited to fees associated with defending the copyright claim. Grace Hotels was not entitled to fees for defending related state law claims which the Court declined to exercise supplemental jurisdiction over after resolving the federal copyright claim. Grace Hotels also sought fees for a separate case between the parties. The Court allowed Grace Hotels to file a renewal motion for attorney’s fees tailored to the recoverable fees.
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Continue Reading Attorney’s Fees Petition Must be Tailored to Resolved Claims

Gabbanelli Accordions & Imports, L.L.C. v. Italo-Am. Accordion Mfg. Co., No. 02 C 4048, Slip. Op. (N.D. Ill. Sept. 21, 2009) (Zagel, J.).
Judge Zagel entered judgment on behalf of plaintiffs in the amount of $151,200 in lost profits after the Seventh Circuit affirmed the Court’s judgment.* The Court also held defendants jointly and severally liable for $147,576.12 in plaintiff’s attorneys’ fees.
* Click here for more on this case in the Blog’s archives.
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Continue Reading Court Enters Judgment on Trademark Damages and Attorneys Fees in Accordian Case

UTStarcom, Inc. v. Starent Networks, Corp., No. 07 C 2582, Slip Op. (N.D. Ill. Apr. 13, 2009) (Bobrick, Ret. J. & Special Master).
Special Master Bobrick, a retired judge, awarded defendant Starent its attorneys fees related to Starent’s efforts to get complete interrogatory responses from plaintiff UTStarcom. In an earlier opinion (click here for the Blog’s related post), the Court denied Starent’s request to dismiss plaintiff’s trade secret misappropriation claim as a sanction for UTStarcom’s incomplete responses, but awarded attorneys fees. Of particular interest, the Special Master held that block billing was not inappropriate and that block billed entries could be recovered. Additionally, based in part on UTStarcom’s failure to provide its rates as part of a reasonableness analysis, the Special Master held that Starent’s rates were not unreasonable, although they may have been more than standard local rates. The Court also noted that patent cases required special expertise which often commands a premium. The Special Master did, however, reduce the rates of Starent’s law students whom the Special Master noted were neither lawyers nor paralegals. Finally, the Special Master reduced by one-third the bills for certain time that was added to Starent’s Bill of Costs late.
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Continue Reading Court Finds National Rates Reasonable & Awards Attorney’s Fees

UTStarcom, Inc. v. Starent Networks, Corp., No. 07 C 2582, Slip Op. (N.D. Ill. Jan. 22, 2009) (Bobrick, Ret. J. & Special Master).
Special Master Bobrick, a retired judge, denied defendant Starent’s motion to dismiss plaintiff UTSI’s trade secret misappropriation claim for repeatedly deficient interrogatory responses related to the claim. Over the course of a year, UTSI served six responses to the interrogatories at issue based upon various requests by Starent and orders by the Special Master. After the sixth set of responses, Starent agreed that the answers were sufficient. Starent, however, requested dismissal of the claim based upon UTStarcom’s repeated failure to provide a substantive answer. UTStarcom responded that dismissal was a drastic remedy that was not warranted because had provided substantive answers and because Starent had not been prejudiced by the delay. UTStarcom even suggested other remedies like exclusion of late produced evidence. The Special Master held that it was a close case and that either outcome would be defensible. The Court however, denied Starent’s motion to dismiss but did award attorney’s fees for the filing of Starent’s motion.
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Continue Reading Court Barely Denies Motion to Dismiss for Delayed Interrogatory Answers

Rosenthal Collins Group, LLC v. Trading Techs. Int’l, Inc., No. 05 C 4088, Min. Order (N.D. Ill. Feb. 2, 2009) (Moran, Sen. J.).*
In this pair of entries, Judge Moran denied plaintiff Trading Technologies’ motions for fees and costs related to a discovery motion and referred another fees motion to Magistrate Judge Schenkier. In the first entry, the Court noted that it was time to end “unnecessary [discovery] battles” in the case and that it might not be as forgiving with the next fees motion. In the other entry, the Court transferred a fees motion to Judge Schenkier, but questioned how “a single discovery dispute could blossom into a claim for over $300,000.
* Click here to read much more about this case and the related cases in the Blog’s archives.
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Continue Reading Court Warns Parties That Future Fee Motions May be Granted

Welsh v. Big Ten Conf., Inc., No. 08 C 1342, Slip Op. (N.D. Ill. Nov. 21, 2008) (Gottschall, J.).
Judge Gottschall granted defendant the Big Ten Conference’s motion to dismiss plaintiff’s complaint, but denied the Big Ten’s motion for its attorney’s fees. Plaintiff claimed that it presented the Big Ten with a trade secret business plan for a Big Ten television network named the “Big Ten Network.” The Big Ten allegedly told plaintiff it was not interested and then several years later started the Big Ten Network using plaintiff’s trade secrets, including the Big Ten Network name. Plaintiff claimed that the Big Ten violated § 38 of the Lanham Act by filing a false declaration with the PTO stating that the Big Ten had the sole right to use the Big Ten Network mark in commerce. Plaintiff argued that the Big Ten should have disclosed plaintiff’s trade secret rights in the mark. But the Court held that even if plaintiff could establish trade secret rights, the Seventh Circuit had held that it was “far from clear” whether trade secret claims fall within the scope of § 38, which is directed to statements about ownership, as opposed to statements about use in commerce. Additionally, the Court held that plaintiff’s alleged development of the name did not necessarily grant plaintiff any rights in the trademark. Trademark rights are granted based upon use, not discovery or invention. And inclusion in a business plan is not a “use in commerce.” Having dismissed plaintiff’s federal claim and noting that the parties were not diverse, the Court declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed the case.
The Court denied the Big Ten’s request for its fees. First, the case was resolved on a motion to dismiss filed two months after the complaint and while plaintiff’s arguments lost, the theory had not been “squarely rejected by the Seventh Circuit.” As such, plaintiff’s suit could not be deemed “oppressive” as is required for an award of fees.
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Continue Reading Inclusion of Trademark in Business Plan Not a Use in Commerce

Hyundai Construc. Equip. U.S.A., Inc. v. Chris Johnson Equip., Inc., No. 06 C 3238, Slip Op. (N.D. Ill. Oct 21, 2008) (Leinenweber, Sen. J.).
Judge Leinenweber, having previously granted plaintiff summary judgment of Lanham Act unfair competition and deceptive trade practices,* enjoined defendant’s continued sale of gray market goods and use of plaintiffs’ trademarks and awarded plaintiffs damages and costs. The Court awarded plaintiffs defendant’s profits from sales of gray market construction equipment (equipment made abroad for sale abroad that was imported to the United States without authority for resale), but the Court held that awarding plaintiffs a multiple of defendant’s actual damages would be inappropriately punitive. Additionally, the Court gave defendant an opportunity to prove its costs before entering a final damages amount.
The Court also entered a permanent injunction. The Court, however, denied plaintiffs’ request that defendant have to provide plaintiffs and the Court a report proving defendants’ compliance with the injunction. Such a requirement was unduly burdensome.
Finally, the Court awarded plaintiffs their costs, but held attorney’s fees were not appropriate because the case was not exceptional. Among other reasons the case was not exceptional, the Court noted evidence that defendants “apparent pains” to warn customers that defendants’ products lacked a warranty and came from overseas. And the Court held that no actual confusion had yet been proven.
* Click here for the prior decision in the Blog’s archives.
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Continue Reading Court Awards Injunction, Actual Damages and Costs, Not Attorney’s Fees