Durante mucho tiempo no había principios uniformes para la Atribución de nombres a los antibióticos https://antibioticos-wiki.es . Más a menudo se les llama por el nombre genérico o especie del producto, con menos frecuencia-de acuerdo con la estructura química. Algunos antibióticos se nombran de acuerdo con el lugar donde se asignó el producto.
Microsoft word - westlaw_document_06_11_07.doc
Slip Copy, 2007 WL 1655647 (E.D.N.Y.) (Citeas:2007WL1655647(E.D.N.Y.)) Only the Westlaw citation is currently available.
GARDEN CITY BOXING CLUB, INC., Plaintiff,
FOCUSED ENTERPRISES, LTD. d/b/a Brown Sugar Club, and Gregory Jordan, Sr., and
No.06-CV-4874(FB)(RER).
Paul J. Hooten, Esq. Paul J. Hooten & Associates Mt. Sinai, NY, for the Plaintiff.
MEMORANDUMANDORDER
BLOCK, Senior District Judge. *1 On May 9, 2007, Magistrate Judge Reyes issued a Report and Recommendation ("R & R") recommending that a default judgment of $2,825 be entered in favor of plaintiff, Garden City Boxing Club, Inc. ("Garden City"), and against defendant Focused Enterprises, Ltd. d/b/a Brown Sugar Club. The R & R recited that "[a]ny objections to the recommendations made in this report must be filed with the Clerk of the Court and the Honorable Frederic Block within ten business days of receipt," R & R at 8, and that "[f]ailure to file timely objections may waive the right to appeal the District Court's Order." Id. Garden City's counsel served a copy of the R & R on May 11, 2007, see Docket Entry # 16 (Certificate of Service), making objections due by May 31, 2007. See Fed.R.Civ.P. 6. To date, no objections have been filed. Where, as here, clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R & R without denovo review. SeeThomasv.Arn, 474 U.S. 140, 149-50 (1985); Mariov.P&CFoodMkts., Inc., 313 F.3d 758, 766 (2d Cir.2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court will excuse the failure to object and conduct denovo review if it appears that the magistrate judge may have committed plain error, seeSpencev. Superintendent,GreatMeadowCorr.Facility, 219 F .3d 162, 174 (2d Cir.2000). As no error appears on the face of the R & R, the Court adopts it without denovo review; however, the Court declines to direct entry of judgment because Garden City's claims against defendants Gregory Jordan, Sr., and Judy Jordan-- who have not been served with the complaint--remain pending. Accordingly, Garden City shall, within twenty (20) days of the date of this Memorandum and Order, either voluntarily dismiss its claims against the Jordans pursuant to Federal Rule of Civil Procedure 41(a)(1), or show cause why those claims should not be dismissed for failure to perfect service within 120 days of filing the complaint, as required by Federal Rule of Civil Procedure 4(m). SOORDERED.
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655647 (E.D.N.Y.) (Citeas:2007WL1655647(E.D.N.Y.)) REPORT&RECOMMENDATION
RAMON E. REYES, JR., U.S.M.J. Plaintiff Garden City Boxing Club, Inc. ("plaintiff" or "Garden City") seeks an award of damages against defendant Focused Enterprises doing business as Brown Sugar Club ("defendant" or "Brown Sugar Club") for alleged violations of the Federal Communications Act of 1934, as amended, 47 U.S.C. §§ 553(a)(1) and 605(a) ("FCA"). See Complaint at ¶ 1. As a result of defendant's failure to answer the complaint, Garden City moved for default judgment and the Honorable Frederic Block referred the matter to me for a report and recommendation on the issue of damages. For the reasons that follow, I respectfully recommend that plaintiff be granted judgment in the amount of $2,825 against defendant. I. Background A. ProceduralHistory *2 Garden City filed its complaint on September 6, 2006, and claims to have served Brown Sugar Club on October 20, 2006. [FN1] Docket Entry 2. Almost twelve weeks later, Brown Sugar Club had not yet responded to the complaint, and Garden City filed a motion for default judgment. Docket Entry 4. The Clerk noted Brown Sugar Club's default on February 2, 2007. Docket Entry 6. Judge Block granted the default judgment against Brown Sugar Club and referred the matter to me for a report and recommendation on damages and costs. Docket Entry 7. A hearing was held on March 27, 2007, and on that day Garden City submitted a memorandum of law is support of its request for damages.
FN1. Plaintiff did not submit proof of service on individual defendants Gregory Jordan, Sr. And Judy Jordan. Judge Block granted the default judgment with respect to Brown Sugar Club only. Docket Entry 6.
B. Facts Garden City is a California-based corporation that obtains licenses to distribute pay-perview events to commercial establishments. Complaint ¶¶ 4, 8- 9. As part of its business, Garden City enters into sublicensing agreements with various commercial establishments to allow them to exhibit certain broadcast events to their patrons via closed circuit television and encrypted satellite signal. Complaint ¶¶ 10-11. The particular pay-per-view broadcast at issue in this suit included the "De La Hoya/Hopkins" boxing match of September 18, 2004, and other fights on the undercard that night (the "Event"). Complaint ¶ 8. On September 18, 2004, Willie Murray, Jr. ("Murray") observed the Event being telecast in the Brown Sugar Club. Plaintiff's Memorandum of Law in Support of Request for Judgment by Default ("Pl's Br.") at 3. According to Murray, there were approximately 20 patrons on the premises of Brown Sugar Club. Id. There is no mention of any advertising in or near the establishment. II. Discussion A. Liability Upon the entry of default, a party concedes all well pleaded factual allegations, except those relating to damages. GreyhoundExhibitgroup,Inc.v.E.L.U.L.Realty
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655647 (E.D.N.Y.) (Citeas:2007WL1655647(E.D.N.Y.)) Corp., 973 F.2d 2155, 158 (2d Cir.1992) (citing Flaksv.Koegel, 504 F.2d 702, 707 (2d Cir .1974); Fed.R.Civ.P. 8(d)). Garden City's complaint establishes defendant's liability under only one of the statutory provisions cited in the complaint, 47 U.S.C. § 605. [FN2] Section 605 prohibits the unauthorized interception and publication or divulgence of "any radio communication." See 47 U.S.C. § 605(a). Because Garden City alleges that the Event was conveyed via satellite transmission, it has properly pleaded a claim under § 605(a). SeeInt'lCablevisionv.Sykes, 75 F.3d 123, 131 & n. 5 (section 605(a) applicable to cable theft where intercepted broadcast originated as a radio transmission); MamaZee, at *2.
FN2. Plaintiff failed to state a claim under 47 U.S.C. § 553. Section 553 provides that "No person shall intercept or receive . any communications service offered over a cable system, unless specifically authorized." 47 U.S.C. § 553(a)(1). The complaint, however, fails to allege that there was an unauthorized interception of cable signals.
B. Damages Notwithstanding the default, Garden City must still prove its damages if they are neither "susceptible of mathematical computation" nor liquidated as a consequence of the default. GreyhoundExhibitgroup,Inc., 973 F.2d at 158 (citations omitted); see Fed.R.Civ.P. 55(b)(2). To determine the appropriate amount of damages, courts have "the discretion to rely on detailed affidavits or documentary evidence in lieu of an evidentiary hearing." DirecTV,Inc.v.Perrier, 2004 WL 941641, *2 (W.D.N.Y. March 15, 2004) (citations omitted). *3 A claimant who has established liability under § 605(a) may elect to recover either actual damages plus the defendant's profits, if any, or an amount in a statutorily-defined range. Id. § 605(e)(3)(C)(I). Garden City has elected the latter. The statutory range for such damages is $1,000 to $10,000 per violation. Seeid. The statute commits to the court's discretion the determination of the specific amount within that range to be awarded. Seeid.;MamaZee, 2002 WL 2022522, at *3. In addition, where a violation was "willful" and "for purposes of direct or indirect commercial advantage or private financial gain," the court can award up to an additional $100,000 in enhanced damages for each violation of § 605(a). 1. StatutoryDamages In determining the proper amount of statutory damages, a court may consider such factors as "the pecuniary loss sustained by the victim as a result of the offense, the financial resources of the defendant, . the financial needs and earning ability of the defendant . as well as the burden that a damage award would impose on the defendant relative to the burden alternative relief would impose." CablevisionSys.Corp.v.DePalma, No. 87-CV-3528, 1989 WL 8165, at *6 (E.D.N.Y. Jan. 17, 1989) (quoting CablevisionSys.Dev.Co.v.Cohen, No. 84-CV-1155, slip. op. at 4-5 (E.D.N.Y. May 20, 1988)). Some courts have awarded flat amounts when calculating damages. SeeHomeBox Officev.ChampsofNewHaven, 837 F.Supp. 480, 484 (D.Conn.1993) (awarding $10,000 in statutory damages); KingvisionPay-Per-ViewLtd.v.Brito, No. 05 Civ. 1042, 2006 WL 728408, at *2 (S.D.N.Y. Mar. 20, 2006) (awarding $5,000 in statutory damages); KingvisionPay-Per-View,Ltd.v.Ruiz, No. 04 Civ. 6566, 2005 WL589403, at *2-3 (S.D.N.Y. Mar. 9, 2005) (awarding $5,000 in statutory damages). Other
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655647 (E.D.N.Y.) (Citeas:2007WL1655647(E.D.N.Y.)) courts have assessed damages by multiplying the number of patrons who viewed the event by the amount an individual would pay to view the program at home on a pay- per-view channel. SeeTimeWarnerCableofNewYorkCityv.TacoRapidoRest., 988 F.Supp. 107, 111 (E.D.N.Y.1997) (awarding statutory damages of $50 per patron); CablevisionSystemsCorp.v.45MidlandEnterprises, 858 F.Supp. 42, 45 (S.D.N.Y.1994) (same). Plaintiff seeks the maximum statutory damage award of $10,000. Pl's Br. at 14. I find that such an award is disproportionate to the violation of the statute at issue here. Plaintiff has failed to submit any evidence regarding the amount it would have cost defendant to legally exhibit the Event. However, in a case involving similar facts plaintiff alleged it would have cost the defendant $600 to exhibit the Event in a commercial establishment with approximately 60 patrons. See GardenCityBoxingClub,Inc.v.704NostrandCorp., No. 06 CV 4875(CBA)(RER) (February 5, 2007). I find that an award of $2,000 in statutory damages is appropriate. This amount takes into account the pecuniary loss of plaintiff--$600-- and the financial resources, needs, and earning ability of the defendant, as well as the burden that a greater damage award would impose on the defendant. Given the default, while there is little information in the record to assess defendant's financial circumstances, I am sure that the defendant does not have the financial ability to afford a higher statutory damage award. This amount, while slightly less, is in line with other statutory damage awards I have recommended and other courts have awarded. 2. EnhancedDamages *4 Garden City also seeks enhanced damages of $20,000 on the ground that the violation was committed "willfully and for purposes of direct or indirect commercial advantage or private financial gain." 47 U.S.C. § 605(e)(3)(C)(ii); Pl's Br. at 17. It appears to base this assertion not on any evidence, but rather on the theory that the Brown Sugar Club could not have managed to display the Event without some affirmative act, and that it exhibited the Event with the "purpose and intent . to secure a private financial gain." Pl's Br. at 16. As a threshold matter, Garden City's assertion that the violation was willful is not established by virtue of the default, because willfulness is an issue of damages only, not liability. SeeJ&JSportsProductions,Inc.v.Louisias, No. 06-CV-339 (ERK)(RER), 2006 WL 1662608, at *4 & n. 6 (E.D.N.Y. May 16, 2006). Moreover, as I have pointed out in another case involving a similarly situated plaintiff:
[w]hile plaintiff alleges that defendants could only receive the Event through illegal means, this Court is not so convinced. In other cases involving this plaintiff and others, counsel has admitted that, not infrequently, cable and satellite television providers knowingly connect commercial establishments to cable service and then bill them at residential rates without any affirmatively misleading conduct from the establishments themselves. Thus,itisquitepossiblethatthesedefendantssignedupforcabletelevisionlegitimately,andthroughnofaultoftheirown,werechargedaresidential,asopposedtocommercial,rate.Id. at * 4 (emphasis added). Further, while in some cases involving restaurants or lounges courts have awarded enhanced damages based on the suspected increase in patrons and sales of food and beverages because of the unauthorized exhibition of a boxing event, the same logic does not follow in this case. Plaintiff has not submitted an affidavit by Murray
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655647 (E.D.N.Y.) (Citeas:2007WL1655647(E.D.N.Y.)) and thus the Court has no basis to conclude that defendant secured any financial gain from the unlawful exhibition of the Event by charging a cover fee, or selling food or beverages. Thus, there is no evidence that defendant made any money as a result of exhibiting the Event, much less enough money to justify an enhanced damages award of $20,000. In any event, I believe an award of enhanced damages is unnecessary as the statutory damage award of $2,000 will sufficiently punish defendant and deter it, and others, from engaging in such conduct in the future. C. Attorneys'FeesandCosts The FCA mandates the award of reasonable attorneys' fees and costs to a prevailing party. See 47 U.S.C. § 605(e)(3)(B)(iii). A request for attorneys' fees must be supported by "contemporaneous time records that show 'for each attorney, the date, the hours expended, and the nature of the work done.' " DirectTVv.Meinecke, No. 03 Civ. 3731(JGK)(GWG), 2004 WL 1535578, at *4. (S.D.N.Y. July 9, 2004) (citing New YorkAss'nforRetardedChildren,Inc.v.Carey, 711 F.2d 1136, 1147 (2d Cir.1983)). In support of its request for attorneys' fees, Garden City has submitted an affidavit from counsel setting forth the hours expended and rates charged by counsel. *5 Plaintiff's counsel asserts he spent 6.25 hours on this case (4.25 attorney hours and 2 paralegal hours) during the pendency of this action. Attorney's Affidavit of Costs and Fees ("Atty's Aff.") ¶ 4. The amount of time counsel claims to have spent, while not large, is too great for work that consists of submissions of boilerplate forms. Therefore, I respectfully recommend that counsel's fees be reduced by half. The hourly rates charged by counsel--$200 per hour for counsel and $75 per hour for a paralegal--seem reasonable and in line with the rates charged for comparable work in this area. See,e.g.,GardenCityBoxingClub,Inc.v. Rosado, No. 05 CV 1037, 2005 WL 3018704, at *6 (E.D.N.Y. October 6, 2005). Accordingly, I respectfully recommend that counsel be awarded $500 in attorney's fees. I also recommend that Garden City be awarded $350 in costs for bringing this action. See,e.g.,Louisas, 2006 WL 1662608, at *6. [FN3]
FN3. Without explanation plaintiff also seeks an award of $4,500 in interest (at 9%) from September 18, 2004. See Atty's Aff. ¶ 5. Putting aside that there is no discussion of why plaintiff is entitled to interest of this amount, I note that pre-judgment interest is not recoverable under § 605(a). SeeKingvisionPay-Per-View,Ltd.v.Autar, 426 F.Supp.2d 59, 65 (E.D.N.Y.2006). Accordingly, I recommend that plaintiff's request for interest be denied.
III. Recommendation For the reasons set forth above, I respectfully recommend that the Court grant Garden City damages in the amount of $2,850. Any objections to the recommendations made in this Report must be filed with the Clerk of the Court and the Honorable Frederic Block within ten business days of receipt hereof. Failure to file timely objections may waive the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72; Smallv.SecretaryofHealth&Human Servs., 892 F.2d 15, 16 (2d Cir.1989). Plaintiff is hereby directed to serve copies
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655647 (E.D.N.Y.) (Citeas:2007WL1655647(E.D.N.Y.)) of this Report and Recommendation upon defendant by May 15, 2007 at its last known address, and to file proof of service with the Clerk of the Court. Slip Copy, 2007 WL 1655647 (E.D.N.Y.) END OF DOCUMENT
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) Only the Westlaw citation is currently available.
In re INSURANCE BROKERAGE ANTITRUST LITIGATION.
MDLDocketNo.1663. Civ.No.04-5184GEB. MEMORANDUMOPINION
BROWN, Chief Judge. *1 This matter comes before the Court upon the motion of Class Counsel for an award of attorneys fees, reimbursement of expenses and incentive award payments in connection with a settlement reached with defendant Zurich Financial Services, Zurich American Insurance Company, Steadfast Insurance Company, Fidelity and Deposit Company of Maryland, Empire Fire and Marine Insurance Company, American Guarantee and Liability Insurance Company, Empire Indemnity Insurance Company, and Assurance Company of America (collectively, the "Zurich Defendants"). The Court has reviewed and fully considered the parties' submissions and has decided the motion without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, Class Counsel's motion for an award of attorneys fees, reimbursement of expenses and incentive award payments is granted. I.BACKGROUND This MDL docket involves various class actions filed against various insurance brokers and insurers. In August 2005, the Zurich Defendants were added to the class actions as defendants. The class actions allege violations of federal and state antitrust laws, the Racketeer Influenced and Corrupt Organizations Act ("RICO") and common law. These class actions have been consolidated into the present action. On October 14, 2005, the Zurich Defendants and Plaintiffs entered into a Memorandum of Understanding (the "MOU") setting forth the principal terms of a settlement of the action. The MOU provided for a resolution of all claims for the class period of August 26, 1994 through September 1, 2005, as well as for the creation of a settlement fund of $100,000,000 payable to Settlement Class Members. The MOU was contingent upon several events, including successful resolution of the Governmental Investigations and successful negotiation and execution of a stipulation of settlement by the Zurich Defendants and Plaintiffs. Through the Settlement Agreement and the Multi-State Agreement, Zurich Defendants created a $121,800,000 settlement fund. The Settlement Agreement requires the Zurich Defendants to pay $100,000,000 to policyholders who fall within the definition of the Settlement Class. However, some of the potential Settlement Class Members (those identified in the Three-State Agreement) might receive settlement relief under the Three-State Agreement rather than under the Settlement Agreement.
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) Therefore, the Settlement Agreement provides that the Zurich Defendants would initially fund the class action settlement in the amount of $70,100,000 and would be required to fund the balance of the $100,000,000 settlement amount (i.e.$29,900,000) only if the Zurich Defendants failed to distribute at least that amount to policyholders (all of whom fall within the definition of the Settlement Class) pursuant to the Three-State Agreement. The Zurich Defendants have committed to pay $29,900,000 to policyholders (all of whom would otherwise be Settlement Class Members) under the Three-State Agreement. The Multi-State Agreement requires the Zurich Defendants to create a $51,700,000 settlement fund that will be distributed in conjunction with the fund created under the Settlement Agreement. Thus, the Zurich Defendants will create a settlement fund pursuant to the Settlement Agreement and Multi-State Agreement in the amount of $121,800,000 and have committed to pay $29,900,000 to policyholders who fall within the definition of Settlement Class, but who have elected to receive relief pursuant to the Three- State Agreement rather than under the Settlement Agreement. *2 On November 8, 2006, the Court entered an Order preliminarily approving the Zurich Settlement. The Zurich Defendants filed a motion for final approval of the class action settlement on January 22, 2007. On January 23, 2007, Plaintiffs filed a motion for final approval of the Settlement and Class Counsel filed the current motion for fees in connection with the Settlement reached with the Zurich Defendants (hereinafter, "Settlement"). A fairness hearing was held on January 26, 2007. On February 16, 2007, this Court approved the class action settlement between Class Counsel and the Zurich Defendants. The Court did not address Class Counsel's motion for fees, but will do so at this time. In addition to and separate from the Settlement Fund, the Zurich Defendants have agreed to pay $29,950,000 for attorneys' fees, expense reimbursement and incentive awards for the named plaintiffs. If approved by the Court, these payments will not diminish the Settlement Fund. The total common fund recovery to the Settlement Class is no less than $129,950,000. [FN1] Through July 31, 2006 (the month the Settlement Agreement was reached), Class Counsel contends that they expended nearly 200,000 hours litigating the action with a lodestar amount in excess of $73 million. [FN2] Class Counsel claims that these hours were comprised of professional services rendered by over fifty law firms, including the services of over six hundred attorneys and paralegals. Class Counsel also claims that over seventy attorneys and paralegals expended more than one thousand hours each by July 31, 2006. Class Counsel explains that there are twenty-six defendant groups in the commercial action (each group comprised of as many as seventeen individually named subsidiaries or member companies), which are represented by over forty defense firms. Class Counsel also submits that one hundred-fifty attorneys performed services for the Defendants. Class Counsel notes that they engaged in litigation with a number of law firms representing third parties.
FN1. According to Class Counsel, this amount excludes the millions of dollars paid and to be paid by the Zurich Defendants for the costs of Notice and Settlement Administration and interest of over $750,000, which has already been earned on the Settlement Fund.
FN2. Since July 31, 2006, Class Counsel contends that they have expended nearly an additional 100,000 hours of time litigating this matter as part of their ongoing litigation against the Non-Settling Defendants as well as certain confirmatory discovery and settlement related work as to Zurich. This resulted in an additional lodestar of $28,551,415. However, the Court notes
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.))
that "[a]ttorney time spent on the case post-settlement . is not included in the lodestar calculation and is not subject to adjustments for risk or quality." Dekrov.SternBros.&Co., 571 F.Supp. 97, 106 (W.D .Mo.1983). Thus, the Court will utilize July 31, 2006 as the cut-off date for performing the lodestar cross-check. See,infra Section D.
Class Counsel claims that they have not received any compensation for the work they have done for over two years while litigating the Settlement Class' claims. Through July 31, 2006, Class Counsel advanced just under $4 million in out-of-pocket expenses. Class Counsel claims that the "requested fee award amounts to a negative risk multiplier." Pl.'s Br. at 3 (citing Nicholsv.SmithKlineBeechamCorp., No. 00-6222, U.S. Dist. LEXIS 7061 (E.D.Pa. Apr. 22, 2005) (multiplier of over 3.15 awarded to class counsel)). Class Counsel submits that while millions of settlement notices were mailed out in connection with the Zurich Settlement and the notice was also published in over fifty newspapers and industry magazines, only eight objections were filed opposing the fee petition. [FN3] According to Class Counsel, the fee petition seeks an award which is at most 23% of the minimum recovery attributable to their efforts. Class Counsel asks this Court to apply the awards as follows: $3,957,000 for reimbursement of litigation expenses; $150,000 for payment of incentive awards to fifteen Plaintiffs; and $25,803,000 for attorneys fees incurred in the prosecution of this litigation. Class Counsel contend that upon subtraction of the reimbursement of expenses and incentive awards, Class Counsel's fee would amount to 19.9% of the minimum recovery attributable to the efforts of Class Counsel.
*3 In response to this motion for fees, several objections were filed by various parties. [FN4] The crux of the Objectors' arguments can be summarized into a few points, namely, that: (1) the value of benefits to class members is lower than stated by Class Counsel based on the participation of several attorneys general; (2) Class Counsel's fee request is based on time spent on non-Zurich Settlement related matters; (3) Class Counsel has violated its gatekeeper function; (4) the fees are exorbitant; and (5) the $10,000 class representative fee is too high.
FN4. In response to the motion for final approval of the Zurich Settlement, the following Objectors submitted objections regarding attorneys fees: Romero General Construction Corp.; Scott Schmelter and Freedom Rent-A-Car; Iaad O. Trustee of 8 Pacific Street Trust and Zorkess, LLC; Anderson Excavating Company; William J. Ackers, Esq., Harold B. Wolfe, The Chaba Law Group, LLC; Dan C.D. Sturdevant; Shapiro & Lodwick Co. LPA, Sports & Spine Physical Therapy Inc., Irene Pekoe, Hoffman Legal Group, LLC, Lacy Redd and Sir and Cross; and Harold Folsom Jensen, Palomar Grading and Paving, Inc., and Emerald Financial Group, Inc. ("Kennedy Objectors"). In response to the present motion for attorneys fees, four new objections were submitted by: Van Enterprises, Inc.; Dan C.D. Sturdevant; Iaad O. Inc., Trustee of 8 Pacific Trust and Zorkess LLC; and Shapiro & Lodwick Co. LPA, et al.
II.DISCUSSION A.StandardforJudicialApprovalofFees Class Counsel seeks approval of its application for attorneys' fees and expenses
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) in the amount of $29,950,000, which represents 23% of the combination of the $100,000,000 created by the MOU and the Settlement Agreement and the $29,950,000 for fees and expenses (that the Zurich Defendants must pay separately). The awarding of fees is within the discretion of the court, so long as the court employs the proper legal standards, follows the proper procedures, and makes findings of facts that are not clearly erroneous. InreCendantCorp.PRIDES Litig., 243 F.3d 722, 727 (3d Cir.2001). District courts are given great deference in determining whether a request for attorneys' fees should be granted. Notwithstanding this deferential standard, a district court is required to clearly articulate the reasons which support its conclusion. InreRiteAidCorp.Sec.Litig., 396 F.3d 294, 301 (3d Cir.2005). The Third Circuit identified several factors that a district court should consider. These factors include:
(1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiff's counsel; and (7) the awards in similar cases.
RiteAid, 396 F.3d at 301 (citing Gunterv.RidgewoodEnergyCorp., 223 F.3d 190, 195 n. 1 (3d Cir.2000)). The district court need not apply these fee award factors in a formulaic way. Certain factors may be afforded more weight than others. Rite Aid, 396 F.3d at 301. The Third Circuit emphasized in Rite Aid, however, that the district court must engage in a robust assessment of these factors. Rite Aid, 396 F.3d at 302; see also Gunter, 223 F.3d at 196 (vacating district court's ruling because the fee-award issue was resolved in a "cursory and conclusory" fashion). Although this Settlement is not strictly a common fund, Class Counsel contends that where defendants have agreed to pay an amount certain for fees and costs in addition to the amount designated to go to the class members directly, the analysis is analogous to that performed to the common fund doctrine. SeeVaracallov. MassachusettsMutualLifeIns.Co., 226 F.R.D. 207, 249 (D.N.J.2005). "Relevant law evidences two basic methods for evaluating the reasonableness of a particular attorneys' fee request--the lodestar approach and the percentage-of-recovery approach. Each has distinct attributes suiting it to particular types of cases." Id. (citing In re Prudential Ins. Co. of America Sales Practices Litig. (Prudential I), 962 F.Supp. 450, 478 (D.N.J.1997). The percentage-of-recovery method is used in common fund cases as Courts have determined that "class members would be unjustly enriched if they did not adequately compensate counsel responsible for generating the fund." Varacallo, 226 F.R.D. at 249 (quoting In re AremisSoft Corp. Sec. Litig., 210 F.R.D. 109, 128 (D.N.J.2002)). "While either the lodestar or percentage-of-recovery method should ordinarily serve as the primary basis for determining the fee, the Third Circuit has instructed that it is sensible to use the alternative method to double check the reasonableness of the fee." Varacallo, 226 F.R.D. at 249 (Prudential I, 962 F.Supp. at 478). B.Zurich'sAgreementtoPayAttorneysFees,ExpensesandIncentiveAwards *4 At the outset, Class Counsel notes that the Zurich Defendants have agreed to pay the requested attorneys' fees in addition to the Settlement Fund. Class Counsel submits that Plaintiffs had claims against the Zurich Defendants for statutory attorneys' fees and costs under the antitrust laws (15 U.S.C. § 15) [FN5] and RICO. Class Counsel claims that this means without the Settlement, if they were
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) successful on the merits, they would have had a significant claim to attorneys' fees against the Zurich Defendants. Class Counsel contends that they commenced negotiations with the Zurich Defendants for payment of attorneys fees after the consideration to the Settlement Class was agreed upon.
FN5. "[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore . shall recover threefold the damages by him sustained, and the cost of suit, including reasonable attorney's fee ."
C.RelevantFactors The Court finds that the totality of the Gunter factors weighs strongly in favor of approval of the fee award for the same reasons provided in this Court's previous analysis of the Girsch factors. [FN6] Given the similarity and overlap of the Girsch factors with the factors the Court must consider here, the Court incorporates by reference the reasons given for approval of the Settlement. The Court will now discuss additional reasons that support approval of attorneys' fees in this matter.
FN6. See Court's Memorandum Opinion, filed February 16, 2007 [Docket No. 1004], at 8-21. In Girsh, the Third Circuit identified nine factors that a district court should consider when determining whether a proposed class action settlement warrants approval. Girshv.Jepson, 521 F.2d 153, 157 (3d Cir.1975). These factors include: (1) "the complexity, expense and likely duration of the litigation"; (2) "the reaction of the class to the settlement"; (3) "the stage of the proceedings and the amount of discovery completed"; (4) "the risks of establishing liability"; (5) "the risks of establishing damages"; (6) "the risks of maintaining the class action through the trial"; (7) "the ability of the defendants to withstand a greater judgment"; (8) "the range of reasonableness of the settlement fund in light of the best possible recovery"; (9) "the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation." Id. at 157.
1.SizeoftheFundCreatedandNumberofPersonsBenefitted With regard to the size and nature of the common fund and the number of persons benefitted by the Settlement, Class Counsel were able to obtain a sizeable result, $121,800,000, on behalf of the Class despite the risks they faced in establishing liability. Further, the number of persons benefitting from this award is expected to be large considering the Notices of Settlement were sent to millions of Settlement Class Members. This award will not be reduced by attorneys' fees and expenses. This factor weighs in favor of approval. 2.PresenceorAbsenceofSubstantialObjectionsbyMembersoftheClassto SettlementTermsand/orFeesRequestedbyCounsel First, the absence of substantial objections by class members to the fees requested by Class Counsel strongly supports approval. The Objectors contend that: (1) the value of benefits to class members is lower than stated by Class Counsel based on the participation of several attorneys general; (2) that Class Counsel's fee request is based on time spent on non-Zurich Settlement related matters; (3) Class Counsel has violated its gatekeeper function; (4) the fees are exorbitant;
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) and (5) the $10,000 class representative fee is too high. The majority of the objectors oppose the attorneys' fees because they claim that the requested fee is based on an exaggeration of the benefits secured by Class Counsel. For example, one Objector claims that Class Counsel achieved the first $100 million of the Settlement which will total approximately $210 million ($121,800,000 under the Multi-State and Zurich settlements plus $88 million under the Three-State Agreement). Iaad O Inc. Obj. [Docket No. 1035], at 2. The Objectors contend that the attorneys general achieved an additional $110 million above the $100 million contained in the MOU, and Class Counsel were forced to cede $29,900,000 to the Three-State Settlement to make the overall agreement work. The Objectors submit that Class Counsel is only entitled to take credit for $70 million of the overall settlement, as they claim the Notice states that Zurich agreed to pay $51.7 million as part of the settlement with the attorneys general and that amount was added to the $70 million Class Counsel obtained. [FN7] Id. The Objectors also claim that it is "reversible error" to base an attorney's fee award to class counsel on settlement benefits created by governmental agencies. Iaad O Inc. Obj. [Docket No. 1035], at 3; InrePrudentialIns.Co.AmericaSalesPracticeLitig., 148 F.3d 283, 338 (3d Cir.1998).
FN7. Other objectors make similar arguments regarding the percentage of the Settlement that Class Counsel may receive credit for negotiating-ranging from $30 to 70 million. See,e.g. Shapiro Objection [Docket No. 1039]; Dan C.D. Sturdevant Objection [Docket No. 1033]; Iaad O Inc. Objection [Docket No. 1035].
*5 In response to this objection, Class Counsel explains that the Objectors misunderstand the Settlement's economics and misrepresent the negotiation history. According to Class Counsel, the Zurich Defendants executed the MOU with the Class Plaintiffs on October 14, 2005, which was seven months before Zurich settled with the attorneys general and other regulators in March 2006. Pl.'s Reply Br ., at 3-4. Class Counsel also points out that the MOU with Zurich was "contingent upon several events, including successful resolution of the Governmental Investigations." Id. Class Counsel maintains that it was a requirement under the MOU negotiated and entered into by Class Counsel that Zurich settle with the attorneys general. Class Counsel contends that it based its fee request on the $100,000,000 guaranteed to Class Members plus the $29,950,000 in separate fees and expenses payable directly by Zurich under the settlement, or 23% of the entire settlement amount. Class Counsel claims that it is not taking credit for the additional $58,100,000 that Zurich will pay under the Three-State Agreement or the $51,700,000 Zurich will pay under the Multi-State Agreement. Because no portion of their fee is based upon benefits created by governmental agencies, Class Counsel contends that it does not violate InrePrudentialIns.Co.Am.SalesPracticeLitig. as alleged by the Objectors. Based on details of the Settlement Agreements, it does not appear that Class Counsel has run afoul of this Circuit's prohibition of collecting fees based on the work of governmental agencies. Accordingly, this objection does not persuade this Court to make a downward adjustment of the attorneys' fees or reject the negotiated amount requested by Class Counsel. The next objection set forth is that Class Counsel should not recover fees for its work on non-Zurich-related issues. Objectors cite to case law involving a 42 U.S.C. § 1988 claim, under which plaintiff had to be the prevailing party to recover
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) attorney's fees. See Iaad O Inc.Obj., at 5-6 (citing Hensleyv.Eckerhart, 461 U.S. 424, 439 (1983)). In Hensley, the Court stated that "the hours spent on the unsuccessful claims should be excluded in considering the amount of a reasonable fee." Id. at 439. However, Hensley also stood for the proposition that "[t]he congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Id. at 435. The Court in Hensley found that there are situations where "the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories" and that "[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim- by-claim basis." Id. Accordingly, the Court is not persuaded that Class Counsel must segregate the time spent on the Zurich Settlement from the time spent on litigating other related claims. SeealsoInreWorldcom,Inc.Sec.Litig., No. 02- 3288, 2004 U.S. Dist. LEXIS 22992, *78-79 (S.D.N.Y. Nov. 16, 2004). *6 Objectors also contend that Class Counsel has failed to perform its gatekeeper function by including the claimed lodestars of forty-four law firms without any evidence that most of that time contributed anything to the Zurich Settlement. The Objectors generally suggest that the fees are excessive, and that documentation should be provided to substantiate the award. The Objectors question the work performed by these law firms and whether the work actually benefitted the class. Objectors ask this Court to closely scrutinize Class Counsel's time records. Class Counsel responds to this objection by stating that fee requests should not be converted into full-blown trials, and that it is within the Court's discretion to review time records where fees are based on a percentage of the recovery rather than a lodestar calculation. Class Counsel contends that it has reviewed every Class Counsel firm's detailed billing record and specifically established controls in this action to minimize the amount of time billed to the case and effectively coordinate all Class Counsel so as to prevent unnecessary work and duplication of efforts. Class Counsel also claims that since the requested fee amount is no more than a fraction of the total lodestar and the fee is being paid separately from the settlement fund, the Class will not be harmed by approval of this fee. The Objectors also contend that the requested fees are exorbitant based on the anticipated benefit provided to the class and the amount of work performed by Class Counsel. The Objectors attempt to re-calculate and reduce the amount actually recovered for Plaintiffs by Class Counsel. As stated above, this Court concluded that there is no basis to reduce the recovery amount as attributable to a governmental agency. The Objector's arguments that the fee percentages are too high based on a reduced amount and that Class Counsel violated it gatekeeping function are not persuasive. With respect to the class representative fee, the Objectors claim that the $10,000 fee is too high. The Objectors contend that because of the variable nature of the benefits to the class and the amount of work performed by various levels of state governments, this fee is exorbitant. However, the Objectors fail to put forth any authority to support this argument, and this Court is not persuaded. Accordingly, the Court concludes that based on the small number of objections to the attorneys' fees and the above analysis of the merits of those objections, this factor does not weigh against approving this fee application. 3.SkillandEfficiencyofAttorneys
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) The factor concerning the skill and efficiency of the attorneys prosecuting the action also favors approval of the fee award. Class Counsel are highly skilled attorneys with experience in antitrust, class actions and RICO litigation. The substantial Settlement amount negotiated by Class Counsel further evidences their competence. InreWarfarinSodiumAntitrustLitig, 212 F.R.D. 231, 261 (D.Del.2002)(class counsel "showed their effectiveness . through the favorable cash settlement they were able to obtain"). Moreover, the Zurich Defendants were represented by highly skilled attorneys from a prominent firm with experience in these matters. InreWarnerCommunicationsSec.Litig., 618 F.Supp. 735, 749 (S.D.N.Y.1985)("The quality of opposing counsel is also important in evaluating the quality of plaintiffs' counsel's work."). 4.TheComplexityandDurationoftheLitigation *7 As noted in the Court's previous Opinion approving the Settlement, this factor weighs strongly in favor of approval. This action involves federal and state antitrust laws, RICO and common law. An antitrust action is clearly a complex action to prosecute. InreLinerboardLitig., MDL 1261, 2004 U.S. Dist. LEXIS 10532, *34 (E.D. Pa. June 2, 2004). The claims involve alleged conspiracy violations by dozens of large brokerage and insurance companies with highly complex legal and factual issues. Class Counsel have engaged in extensive discovery and motion practice, and while negotiating with the Zurich Defendants also coordinated their efforts with the Settling Attorneys General and Settling Insurance Regulators. To proceed with litigation of this matter would have undoubtedly become a costly and lengthy process for all parties. SeeInreWarfarinSodiumAntitrust Litig., 391F.3d 516, 535-36 (3d Cir.2004). 5.TheRiskofNon-Payment Class Counsel submits that they undertook this action on a contingent fee basis, assuming a substantial risk that they might not be compensated for their efforts. Class Counsel contends that courts recognize the risk of non-payment is a major factor in considering an award of attorneys' fees. InrePrudential-BacheEnergy IncomeP'shipsSec.Litig., No. 888, 1994 U.S. Dist. LEXIS 6621, *16 (E.D.La. May 18, 1994) (stating that "[c]ounsel's contingent fee risk is an important factor in determining the fee award. Success is never guaranteed and counsel faced serious risks since both trial and judicial review are unpredictable."). Class Counsel invested a substantial amount of time and effort to reach this point and obtain the favorable Settlement. Class Counsel accepted the responsibility of prosecuting this class action on a contingent fee basis and without any guarantee of success or award. Accordingly, this factor weighs in favor of approval. 6.TheAmountofTimeDevotedtotheLitigation Class Counsel claims that they have devoted a tremendous amount of time to litigate this action. Specifically, Class Counsel submits that through July 31, 2006, they spent nearly 200,000 hours in prosecuting this case on behalf of the Settlement Class for an aggregate lodestar of nearly $74,000,000 and have incurred nearly $4,000,000 in expenses. Over fifty law firms were involved on behalf of Plaintiffs, with the work allocated to specific firms to avoid duplication and deal with specific areas of the litigation. Class Counsel maintains that this Settlement is with one of twenty-six Defendant groups in this action, and litigation continues against the Non-Settling Defendant groups. Based on the amount of time expended on this matter and the number of attorneys involved in the negotiation and ongoing
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) litigation, this factor weighs in favor of approval. 7.AwardsinSimilarCases The Court must also take into consideration amounts awarded in similar actions when approving attorneys' fees. Specifically, the Court must: (1) compare the actual award requested to other awards in comparable settlements; and (2) ensure that the award is consistent with what an attorney would have received if the fee were negotiated on the open market. In re Remeron Direct Purchaser Antitrust Litig., No. 03-0085, 2005 U.S. Dist. LEXIS 27013, *42-46 (D.N.J. Nov. 9, 2005). "Courts within the Third Circuit often award fees of 25% to 33 1/3% of the recovery." Id. at 44 (citing InreLinerboardAntitrustLitig., 2004 U.S. Dist. LEXIS 10532 (E.D. Pa. June 2, 2004) (approving 30% fee of a $202 million settlement in an antitrust class action); RiteAid, 396 F.3d at 306-307 (review of 289 settlements demonstrates "average attorney's fees percentage [of] 31.71% with a median value that "turns out to be one-third"); InreGeneralMotorsCorp.Pick-Up TruckFuelTankProds.Liab.Litig., 55 F.3d 768, 822 (3d Cir.1995) (in common fund cases "fee awards have ranged from nineteen percent to forty-five percent of the settlement fund"); Cullenv.WhitmanMedicalCorp., 197 F.R.D. 136, 150 (E.D.Pa.2000) ("the award of one-third of the fund for attorneys' fees is consistent with fee awards in a number of recent decisions within this district"); InreLinerboardAntitrustLitig., 2004 U.S. Dist. LEXIS 10532, *43 (citing with approval "a recent Federal Judicial Center study that found that in federal class actions generally median attorney fee awards were in the range of 27 to 30 percent."). *8 According to Class Counsel, the requested award in this matter is 19.9% (after deducting expenses and awards to plaintiffs). [FN8] This percentage is within the range found acceptable in this district.
FN8. Class Counsel also provides that based on the $100,000,000 award to class members plus the $29,950,000 in separate fees and expenses payable directly by Zurich under the Settlement, the percentage of the attorneys' fees is 23%.
The second part of this analysis involves whether the requested fee is consistent with a privately negotiated contingent fee in the marketplace. The percentage-of-the-fund method of awarding attorneys' fees in class actions should approximate the fee which would be negotiated if the lawyer were offering the services in the private marketplace. InreRemeronDirectPurchaserAntitrustLitig., 2005 U.S. Dist. LEXIS 27013, * 46. "The object . is to give the lawyer what he would have gotten in the way of a fee in an arm's length negotiation, had one been feasible." InreContinentalIllinoisSec.Litig., 962 F.2d 566, 572 (7th Cir.1992); InreSynthroidMarketingLitig., 264 F.3d 712, 718 (7th Cir.2001) ("When deciding on appropriate fee levels in common-fund cases, courts must do their best to award counsel the market price for legal services, in light of the risk of nonpayment and the normal rate of compensation in the market at the time."). To determine the market price for an attorney's services, the Court should look to evidence of negotiated fee arrangements in comparable litigation. ContinentalIllinoisSec.Litig., 962 F.2d at 573 (stating that the judge must try to simulate the market "by obtaining evidence about the terms of retention in similar suits, which differ only because, as they are not class actions, the market fixes the terms"). "Attorneys regularly contract for contingent fees between 30% and 40% with their clients in non-class, commercial litigation." InreRemeronDirectPurchaserAntitrustLitig.,
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) 2005 U.S. Dist. LEXIS 27013, * 46. See,e.g.InreIkonOfficeSolutions,Inc. 194 F.R.D. 166, 194 (E.D.Pa.2000); InreOrthopedicBoneScrewsProductsLiability Litig., No. 97-381, 2000 U.S. Dist. LEXIS 15980, *7 (E.D.Pa. Oct. 23, 2000); Durant v.TraditionalInvest.,Ltd., No. 88-9048, 1992 U.S. Dist. LEXIS 12273, *4 n. 7 (S.D.N.Y. Aug. 12, 1992). Accordingly, Class Counsel's requested fee amount is within the range of privately negotiated contingent fees. 8.Conclusion In sum, for all the reasons stated above, the Court concludes that the requested fee by Class Counsel is fair and reasonable according to the Gunter factors. D.LodestarCross-Check The Third Circuit has articulated that when an award is based on percentage of recovery, it is sensible to confirm the reasonableness of the award using the lodestar method. RiteAid, 396 F.3d at 305-06. The lodestar analysis is performed by "multiplying the number of hours reasonably worked on a client's case by a reasonable hourly billing rate for such services based on the given geographical area, the nature of the services provided, and the experience of the attorneys." Id. at 305. When performing this analysis, the court "should apply blended billing rates that approximate the fee structure of all the attorneys who worked on the matter." Id. at 306. Thus, the lodestar multiplier is equal to the proposed fee award divided by the product of the total hours and the blended billing rate. If the lodestar multiplier is large, the award calculated under the percentage-of- recovery method may be deemed unreasonable, and a trial judge may consider a reducing the award appropriately. Id. at 306. *9 The multiplier, however, "need not fall within any pre-defined range, provided that the [d]istrict [c]ourt's analysis justifies the award." Id. at 307. Further, the court is not required to engage in this analysis with mathematical precision or "bean-counting." Id. at 306. Instead, the court may rely on summaries submitted by the attorneys, and is not required to scrutinize every billing record. Id. at 306- 07. In the present case, the proposed fee award presented by Lead Counsel is 23% of the proposed settlement, or $29,950,000. [FN9] Class Counsel submits that the total number of hours expended by the attorneys and paraprofessionals in this case is 279,843 hours. See Exhibit A to Class Counsel's Br., [Docket No. 942]. The Court further notes that this lodestar value is based on the blended billing rates of all attorneys and paraprofessionals who were involved with this case. Accordingly, the Court accepts these calculations as the basis for performing the lodestar cross- check.
FN9. Or 19.9% after deducting expenses and awards to plaintiffs.
Class Counsel claims that its lodestar through July 31, 2006 (the month in which the Zurich Settlement was reached) was $73,884,807 and $102,396,258 through November 20, 2006. [FN10] Class Counsel submits that this results in a multiplier of .4 or .3, respectively. This multiplier is within an accepted range. See,e.g.InreCendantCorp.PRIDESLitig., 243 F.3d at 734, 742 (approving a suggested multiplier of 3 and stating that multipliers "ranging from one to four are frequently awarded in common fund cases when the lodestar method is applied"); Nichols, 2005 U.S. Dist. LEXIS 7061 (approving a multiplier of 3.15); Inre
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) LinerboardAntitrustLitig., 2004 U.S. Dist. LEXIS 10532 (approving a 2.66 multiplier).
FN10. The Court will rely upon the July 31, 2006 settlement date in performing the lodestar cross-check. SeeVaracallov.Mass.Mut.LifeIns.Co., 226 F.R.D. 207, 252 (D.N.J.2005) (fee award will be sole compensation for counsel "despite the continuing responsibilities [counsel] will have in responding to Class Member inquiries, assisting the Claim Evaluator, consulting on individual cases, and any post-judgment proceedings and appeals."); InreRemeronDirectPurchaserAntitrustLitig., 2005 U.S. Dist. LEXIS 27013 (D.N.J.2005) ("Class Counsel will likely incur hundreds of additional hours in connection with administering the settlement, without prospect for further fees.").
The reasonable attorney rate is determined by reference to the marketplace. Missouriv.Jenkins, 491 U.S. 274, 285 (1989) ("we have consistently looked to the marketplace as our guide to what is 'reasonable' "). The Third Circuit, as well as other courts, have held that an attorney's customary billing rate is the proper starting point for calculating fees. Cunninghamv.CityofMcKeesport, 753 F.2d 262, 268 (3d Cir.1985). However, the Third Circuit has determined that once a party meets its prima facie burden of establishing the "community market rate," and the opposing party does not produce contradictory evidence, the trial court does not have discretion to adjust the requested rate downward. Washingtonv.Philadelphia CountyCourtofCommonPleas, 89 F.3d 1031, 1035 (3d Cir.1996). To establish a market rate, the prevailing party must offer evidence that the attorney's usual rate is in line with the market rate in the community. Blumv. Stenson, 465 U.S. 886, 896 n. 11 (1984). This evidence takes the form of affidavits from other counsel attesting to their rates or the prevailing market rate, Glover v.Johnson, 934 F.2d 703, 716 (6th Cir.1991), and a court may not vary the rates competently set forth in uncontested affidavits. BlackGrievanceComm.v. PhiladelphiaElec.Co., 802 F.2d 648, 657 (3d Cir.1986) (vacatedonothergrounds, 483 U .S. 1015 (1987). The market rate to be used is the current prevailing market rate at the time the request for fees is made. Lanniv.NewJersey, 259 F.3d 146, 149-50 (3d Cir.2001). *10 While Class Counsel submitted a summary detailing the hours, costs and lodestar through both July 31, 2006 and November 30, 2006, Class Counsel did not provide declarations in support of any particular hourly rate. It appears that the hourly rate being used by Class Counsel is approximately $365. [FN11] The Objections submitted in the matter take issue with the amount of the Settlement that Class Counsel negotiated and took credit for, not the reasonableness of the hourly rate. Therefore, based on the lack of objections and the experience of Class Counsel, this Court will consider the approximate hourly rate of $365 reasonable.
FN11. The Court arrived at this rate by dividing the total lodestar amounts by the total hours worked. Through November 30, 2006, the total hours worked were 279,843 and the lodestar provided was 102,396,258.15. The result is a rate of $365.90 per hour.
E.ReimbursementofExpenditures Class Counsel also requests reimbursement for expenses incurred during this litigation in the amount of $3,956,830 through July 31, 2006 and a total of
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652303 (D.N.J.) (Citeas:2007WL1652303(D.N.J.)) $6,143,560 through November 30, 2006. Class Counsel's Br., at 26 and Exh. A. "Counsel for a class action is entitled to reimbursement of expenses that were adequately documented and reasonably and appropriately incurred in the prosecution of the class action." InreSafetyComponents,Inc.Sec.Litig., 166 F.Supp.2d 72, 108 (D.N.J.2001) (citing Abramsv.Lightolier,Inc., 50 F.3d 1204, 1225 (3d Cir.1995)). Class Counsel contends that these expenses reflect costs expended for the purposes of litigating this action, including fees for experts, costs associated with creating and maintaining electronic document databases, travel and lodging expenses, copying, mail, telephone and the costs of deposition transcripts. Class Counsel's Br., at 26-27. The Court concludes that while Class Counsel did not submit declarations detailing the exact expenditures, based on the summary provided, these expenses were reasonably and appropriately incurred during the prosecution of this case. Consequently, the Court approves Class Counsel's request for reimbursement. F.IncentiveAwardsforNamedPlaintiffs Class Counsel also requests that the Court approve the payment of incentive awards for named plaintiffs in the amount of $10,000 each, totaling $150,000. Class Counsel contends that the Plaintiffs spent a significant amount of their own time and expense litigating these cases for the benefit of the absent members of the Settlement Class, and should be compensated for their efforts. See,e.g. In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 400 (D.D.C .2002) ("Incentive awards are 'not uncommon in class action litigation and particularly where . a common fund has been created for the benefit of the entire class.' "). Class Counsel claims that the amount requested for the class representatives is similar to awards in analogous settlements. See,e.g.Nichols, 2005 U.S. Dist. LEXIS 7061 (approving $5,000 to each third-party payor named plaintiff, $2,500 to each consumer named plaintiff); InreLinerboardAntitrustLitig., 2004 U.S. Dist. LEXIS 10532, *58 (approving $25,000 to each representative of the classes). *11 Only one objection was made to the requested fee, and as discussed above, lacked any supporting case law or a thorough explanation why this fee should be considered excessive. Accordingly, this Court will approve the $10,000 payment of incentive awards for each named Plaintiff, totaling $150,000. III.CONCLUSION For the foregoing reasons, the Court grants the application of Class Counsel for an award of attorneys' fees, reimbursement of expenses and incentive award payments. The appropriate form of Order accompanies this Memorandum Opinion. Slip Copy, 2007 WL 1652303 (D.N.J.) END OF DOCUMENT
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652015 (W.D.Ky.) (Citeas:2007WL1652015(W.D.Ky.)) Only the Westlaw citation is currently available.
United States District Court, W.D. Kentucky,
Donald Ray LUCAS, All Residents of Vision of Hope, Plaintiffs
Robert GLENN, Director Vision of Hope, Defendants.
CivilActionNo.3:06CV-530-S.
Donald Ray Lucas, Louisville, KY, pro se.
MEMORANDUMOPINION
CHARLES R. SIMPSON, III, Judge. *1 Plaintiff Donald Ray Lucas filed the instant prose civil action on his own behalf and on behalf of all residents of Vision of Hope. As Defendants, he names Vision of Hope (presumably, a halfway house or some similar facility) and Robert Glenn, its Director. Plaintiff alleges money fraud, a violation of the First Amendment, and violations of "constitu[t]ional rights" and "any federal statu[t]es that go under this." Plaintiff claims that on June 19, 2006, he was placed in Vision of Hope, and Robert Glenn gave him a urine test, which was positive. Plaintiff contends that he tried to explain to Glenn that he does not use drugs, but Glenn cursed him "up and down" and said Plaintiff was lying. On July 6, 2006, Plaintiff gave Glenn $1,200.00, and on the next day the lights were turned off. Plaintiff further claims that upstairs the residents did not have a place to keep food fresh. According to Plaintiff, Glenn said that he was working on it, but he never did. Plaintiff also alleges that thieving was going on at the facility, but Glenn never did anything about that either. Plaintiff additionally reports that on August 28, 2006, Glenn advised the residents that Vision of Hope was being shut down and that "the board wasnt letting him work there no more." Glenn gave Plaintiff a check for $375.00 knowing that he still owed Plaintiff $225.00. When Plaintiff complained to Glenn about the money deficit, Glenn told Plaintiff to take it up with the board. On October 15, 2006, Glenn called Plaintiff about Plaintiff's suing him and cursed Plaintiff. According to Plaintiff,
[Glenn] always cussed me he also was very rasic with me because I was only white person in the program! they did everything they could to get me to go off! All he ever did was shot game! ever body got hud but me for rent payments and I was on S.S.I. All the staff was black. and I feel they never liked me from the being. but I made it through that hell they put on me! Robert never wanted to talk about nothing when I told him about the prombles going on at Vision of Hope! He crussed me a lot and said all I do is shot game when he was the one shotting game on us! also He dont like white people I'm white! Glenn should be put in jail for all this Fraud lie's and cheating people. since then he talks to everybody but me what's that tell you! but I think [Glenn's] got Hud on me if he did he owe's me $1200.00.
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652015 (W.D.Ky.) (Citeas:2007WL1652015(W.D.Ky.)) In addition to seeking Glenn's incarceration, Plaintiff also seeks damages for mental pain and asks that Glenn "give up the right to be (Dir) in any program!" InitialReview Because Plaintiff is proceeding without the prepayment of fees, or informa pauperis, this Court must review the complaint pursuant to 28 U.S.C. § 1915(e) and McGorev.Wrigglesworth, 114 F.3d 601 (6th Cir.1997). Upon review, the Court must dismiss a case if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, the Court concludes that the instant action must be dismissed. AllresidentsofVisionofHope *2 Title 28, United States Code, section 1654 provides, "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage." That statute, however, "does not permit plaintiffs to appear prose where interests other than their own are at stake." Shepherdv.Wellman, 313 F .3d 963, 970 (6th Cir.2002); Gonzalesv.Wyatt, 157 F.3d 1016, 1021 (5th Cir.1998) ("[I]n federal court a party can represent himself or be represented by an attorney, but cannot be represented by a nonlawyer."); EagleAssocs.v.BankofMontreal, 926 F.2d 1305, 1308 (2d Cir.1991) (advising that § 1654 " 'does not allow for unlicensed laymen to represent anyone else other than themselves' ") (citation omitted). " 'That a non- lawyer may not represent another person in court is a venerable common law rule based on the strong state interest in regulating the practice of law .' " Cavanaugh v.CardinalLocalSch.Dist., 409 F.3d 753, 756 (6th Cir.2005) (citation omitted). For these reasons, Plaintiff, a non-attorney, cannot bring this action on behalf of all residents of Vision of Hope. Therefore, the claims asserted on behalf of the other residents will be dismissed without prejudice. PlaintiffLucas Plaintiff alleges money fraud and seeks Glenn's imprisonment. The authority to initiate a criminal complaint, however, "rests exclusively with state and federal prosecutors." Sahagianv.Dickey, 646 F.Supp. 1502, 1506 (W.D.Wis.1986); United Statesv.Nixon, 418 U.S. 683, 693 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case."); Williamsv.Luttrell, No. 03-5950, 2004 WL 1193955, at *2 (6th Cir. May 27, 2004) ("[A]s a private citizen, Williams has no authority to initiate a federal criminal prosecution of the defendants for their alleged unlawful acts."); Sarov.Brown, No. 00-5384, 2001 WL 278284, at *1 (6th Cir. Mar. 15, 2001) ("A private citizen has no authority to initiate a federal criminal prosecution; that power is vested exclusively in the executive branch."). Accordingly, Plaintiff's money fraud/imprisonment claims must be dismissed. Plaintiff further alleges a violation of the First Amendment, yet he has failed to allege, much less demonstrate, any free speech or free exercise violation actionable under the First Amendment. Additionally, he asserts a broad violation of his constitutional rights and federal statutes, but allegations such as these, which are premised upon mere conclusions and opinions, fail to state an adequate claim. Morganv.Church'sFriedChicken, 829 F.2d 10, 12 (6th Cir.1987). Bare and
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1652015 (W.D.Ky.) (Citeas:2007WL1652015(W.D.Ky.)) conclusory allegations that Defendants personally deprived Plaintiff of constitutional or statutory rights are simply insufficient to state a cognizable claim. Hallv.UnitedStates, 704 F.2d 246, 251 (6th Cir.1983). *3 Even if the Court were to construe Plaintiff's allegations as asserting an equal protection claim, such a claim would fail. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." Cityof Cleburnev.CleburneLivingCtr., 473 U.S. 432, 439 (1985). Plaintiff claims that he is white, that all of the staff are black, and that Glenn is a racist. These facts alone are insufficient to state a cognizable equal protection claim. And the only allegation made by Plaintiff that he was treated differently than any other resident is when he claims that "ever body got hud but me for rent payments and I was on S.S.I." This allegation, however, is simply too conclusory to show any discriminatory intent or purpose, and there is no causal connection to Glenn or Vision of Hope. Deatonv.MontgomeryCounty, 989 F.2d 885, 889 (6th Cir.1993) ("Congress did not intend § 1983 liability to attach where causation is absent."). Moreover, in failing to specify the capacity in which he is suing Defendants, Plaintiff's claims for damages are barred by the Eleventh Amendment. Finally, Plaintiff's request for Glenn to give up the right to be director in any program in the future must also be dismissed. " 'In order to obtain either a preliminary or permanent injunction, [a party] must demonstrate that failure to issue the injunction is likely to result in irreparable harm.' " UnitedStatesv. MiamiUniv., 294 F.3d 797, 816 (6th Cir.2002) (quoting Kallstromv.Cityof Columbus, 136 F.3d 1055, 1068 (6th Cir.1998)) (alteration in MiamiUniv.). Because Plaintiff is no longer housed at Vision of Hope or under the direction of Glenn, the Court's failure to issue the requested injunctive relief will not result in irreparable harm. This Court recognizes that prose pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Hainesv.Kerner, 404 U.S. 519, 520-21 (1972); Jourdanv.Jabe, 951 F.2d 108, 110 (6th Cir.1991), but "the duty to be 'less stringent' with prose complaints does not require us to conjure up unpled allegations." McDonaldv.Hall, 610 F.2d 16, 19 (1st Cir.1979) (citation omitted); seegenerallyWellsv.Brown, 891 F.2d 591, 594 (6th Cir.1989). And this Court is not required to create a claim for Plaintiff. Clarkv.Nat'lTravelersLifeIns. Co., 518 F.2d 1167, 1169 (6th Cir.1975). To command otherwise would require this Court "to explore exhaustively all potential claims of a prose plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudettv.CityofHampton, 775 F.2d 1274, 1278 (4th Cir.1985). *4 Because Plaintiff Lucas has failed to state a claim upon which relief may be granted, the claims brought on his behalf must be dismissed. The Court will enter an Order consistent with this Memorandum Opinion. Slip Copy, 2007 WL 1652015 (W.D.Ky.) END OF DOCUMENT
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655666 (E.D.N.Y.) (Citeas:2007WL1655666(E.D.N.Y.)) Only the Westlaw citation is currently available.
WARNER BROS. ENTERTAINMENT INC., Plaintiff,
No.06CV2676(NG)(RLM).
Alexandra N. Deneve, Loeb & Loeb, LLP, New York, NY, for Plaintiff.
ORDER
GERSHON, United States District Judge. *1 By order dated October 26, 2006, the court granted default judgment in favor of plaintiff and referred the matter to the Honorable Roanne L. Mann, United States Magistrate Judge, for a report and recommendation concerning the relief, if any, that should be granted to the plaintiff. On May 9, 2007, Judge Mann issued a report and recommendation recommending that the defendant be permanently enjoined from infringing plaintiff's copyrights and that the plaintiff be awarded $6,000 in statutory damages, $735 in attorney's fees, and $575.81 in costs. Defendant has not filed any objections. The unopposed Report and Recommendation of Magistrate Judge Mann is hereby adopted by the court. For the reasons stated by Judge Mann, an injunction will be entered enjoining defendant from infringing plaintiff's copyrights, and defendant is directed to pay the plaintiff damages in the amount of $6,000, attorney's fees in the amount of $735, and costs in the amount of $575.81, for a total award of $7,310.81. The Clerk of Court is directed to enter judgment against the defendant in the sum of $7,310.81 and to enter a permanent injunction as follows: Defendant shall be and is hereby enjoined from directly or indirectly infringing plaintiff's rights under federal or state law in the copyrighted motion picture MillionDollarBaby, and any other motion picture, whether now in existence or later created, that is owned or controlled by plaintiff (or any parent, subsidiary, or affiliate of parent) ("Plaintiff's Motion Pictures"), including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiff's Motion Pictures, to distribute (i.e., upload) any of Plaintiff's Motion Pictures, or to make any of Plaintiff's Motion Pictures available for distribution to the public, except pursuant to a lawful license or with express authority of plaintiff. Defendant also shall destroy all copies of Plaintiff's Motion Pictures that defendant has downloaded onto any computer hard drive or server without plaintiff's authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in defendant's possession, custody, or control. SOORDERED.
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Slip Copy, 2007 WL 1655666 (E.D.N.Y.) (Citeas:2007WL1655666(E.D.N.Y.)) REPORTANDRECOMMENDATION
ROANNE L. MANN, United States Magistrate Judge. Plaintiff Warner Bros. Entertainment Inc. ("plaintiff") commenced this copyright infringement action on May 30, 2006, against defendant Ralph Carsagno ("Carsagno" or "defendant"). On October 26, 2006, the Honorable Nina Gershon ordered that a default judgment be entered against defendant (who had not appeared in the action) and referred the matter to the undersigned magistrate judge for an inquest on damages. For the reasons explained below, this Court recommends that judgment be entered against defendant in the total amount of $7,310.81, and that defendant be permanently enjoined from infringing plaintiff's copyrights.
BACKGROUND *2 Plaintiff produces, acquires and distributes motion pictures, to which it holds the United States copyright and exclusive rights under copyright. See Complaint ("Compl.") ¶¶ 4-5. Specifically, plaintiff owns the copyright and exclusive rights under copyright to the film "Million Dollar Baby" ("MDB"), which film is the subject of a valid Certificate of Copyright Registration, No. PA-1-250-671, dated January 27, 2005, issued by the Register of Copyrights. Id. ¶ 8; Declaration of Alexandra N. DeNeve in Support of Application for Entry of Default Judgment by the Court ("DeNeve Decl.") Ex. 3. In addition, MDB contains a copyright notice advising the viewer that the film is protected by copyright law. Compl. ¶ 9. Plaintiff retained MediaSentry, a company that provides online anti-piracy and copyright protection services, to identify direct infringers of plaintiff's copyrights on peer-to-peer ("P2P") networks. See DeNeve Decl. ¶ 3; seealso Declaration of Thomas Carpenter in Support of Application for Entry of Default Judgment by the Court ("Carpenter Decl.") ¶ 1. Plaintiff provided MediaSentry with a list of copyrighted motion pictures--including MDB--that it believed were being offered for distribution on P2P networks. Carpenter Decl. ¶ 4. On June 27, 2005, MediaSentry identified files on a P2P network [FN1] that lexically matched those on plaintiff's list, and downloaded MDB from the internet protocol ("IP") address 24.199.66.115. [FN2] DeNeve Decl. ¶ 4; Carpenter Decl. ¶ 5. Based on the IP address, MediaSentry was able to identify Earthlink, Inc. ("Earthlink") as defendant's Internet Service Provider. Carpenter Decl. ¶ 8.
FN1. Plaintiff's submissions do not identify the specific P2P network.
FN2. An IP address is "a unique numerical identifier that is automatically assigned to a user by his or her [Internet Service Provider] each time he or she logs on to the network." Carpenter Decl. ¶ 8.
Plaintiff then filed a John Doe action against defendant in the Northern District of Georgia, the jurisdiction in which Earthlink is located. DeNeve Decl. ¶ 5. The court granted plaintiff's motion for leave to serve a subpoena on Earthlink seeking defendant's identity, which subpoena plaintiff served on Earthlink on August 26, 2005. Id. ¶ 6. Earthlink subsequently identified Carsagno as the individual using the IP address at the time of infringement. Id. ¶ 7. Because Carsagno did not reside within the jurisdiction of the Northern District of Georgia, plaintiff dismissed that suit without prejudice. Id. ¶ 8. Plaintiff's attempts to negotiate an out-of-court settlement with defendant were unsuccessful. Id. Plaintiff commenced the instant action on May 30, 2006. See Compl. As evidenced by
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655666 (E.D.N.Y.) (Citeas:2007WL1655666(E.D.N.Y.)) an Affidavit of Service, plaintiff served defendant personally with a copy of the Summons and Complaint on June 12, 2006. See 6/12/06 Affidavit of Service; seealso DeNeve Decl. ¶ 10. Defendant failed to answer or otherwise respond to the complaint, and did not reply to correspondence from plaintiff. DeNeve Decl. ¶ 11. On August 3, 2006, plaintiff filed a request for entry of default with the Clerk of the Court, and the Clerk noted the default on August 11, 2006. See 8/3/06 Request to Enter Default; 8/11/06 Clerk's Notation of Default. Thereafter, Judge Gershon granted plaintiff's motion for default and referred the matter to the undersigned magistrate judge for a Report and Recommendation to determine the scope of relief to be awarded, including damages, costs, and attorney's fees, if any. See 10/26/06 Order. DISCUSSION I.StatutoryDamages *3 Pursuant to § 504 of the Copyright Act, a plaintiff who prevails on a claim of copyright infringement may elect to recover, in lieu of actual damages and defendant's profits, statutory damages in a sum of not less than $750 or more than $30,000 per work infringed. 17 U.S.C. §§ 504(a), (c)(1); [FN3] seeIslandSoftware &ComputerServ.Inc.v.MicrosoftCorp., 413 F.3d 257, 262-63 (2d Cir.2005) [hereinafter IslandSoftwareI ]. Within these parameters, courts have broad discretion in setting an amount of statutory damages that effectuates the "dual purposes of the Copyright Act--compensation of copyright owners and deterrence of potential infringers." VideoAidedInstruction,Inc.v.Y&SExpress,Inc., No. 96-CV-518 (CBA/RML), 1996 WL 711513, at *3 (E.D.N.Y. Oct. 29, 1996); seealsoF.W. WoolworthCo.v.ContemporaryArts,Inc., 344 U.S. 228, 233 (1952) ("Even for uninjurious and unprofitable invasions of copyright the court may, if it deems it just, impose a liability within statutory limits to sanction and vindicate the statutory policy [of discouraging infringement]."); IslandSoftwareI, 413 F.3d at 265 ("[W]ithin the statutory framework, a district judge has wide discretion in setting the statutory damage award .") (citing FitzgeraldPubl'gCo.v.Baylor Publ'gCo., 807 F.2d 1110, 1116-17 (2d Cir.1986)). Where a plaintiff proves that the infringement was willful, the court has further discretion to award enhanced statutory damages of up to $150,000. 17 U.S.C. § 504(c)(2); [FN4] seeIsland SoftwareI, 413 F.3d at 263.
FN3. Section 504(c)(1) provides, in pertinent part: Except as provided by clause (2) of this subsection [dealing with enhanced damages for willfulness and defenses not relevant here], the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. 17 U.S.C. § 504(c)(1).
FN4. Section 504(c)(2) provides, in pertinent part: In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. 17 U.S.C. § 504(c)(2).
Plaintiff requests damages in the amount of $6,000 for willful infringement of its
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Slip Copy, 2007 WL 1655666 (E.D.N.Y.) (Citeas:2007WL1655666(E.D.N.Y.)) exclusive rights under copyright. See Memorandum of Law in Support of Application for Entry of Default Judgment by the Court ("Pl.Mem.") at 2-4. Plaintiff posits that this amount is "reasonable and justified under the circumstances of this case." Id. at 4. Factors relevant to determining an appropriate award of statutory damages include "the expenses saved and profits reaped by the defendants, the revenues lost by the plaintiffs, the value of the copyright, the deterrent effect of the award on other potential infringers, and factors relating to individual culpability." U2Home Entm't,Inc.v.Doe, No. 04-CV-4402 (RJD/JMA), 2005 WL 3018702, at *3 (E.D.N.Y. Sept. 13, 2005) [hereinafter U2HomeEntm'tI ] (quoting Stevensv.AeonianPress, Inc., No. 00-CV-6330 (JSM), 2002 WL 31387224, at *1 (S.D.N.Y. Oct. 23, 2002)); see alsoN.A.S.Imp.,Corp.v.ChensonEnters.,Inc., 968 F.2d 250, 252 (2d Cir.1992). Considerations of individual culpability include the willfulness of the defendant's conduct, the defendant's cooperation in providing discovery, and the deterrent potential of the award. SeeVanDerZeev.Greenidge, 03-CV-8659 (RLE), 2006 WL 44020, at *2 (S.D.N.Y. Jan. 6, 2006); Stevens, 2002 WL 31387224, at *1. In connection with the determination of enhanced damages under § 504, the Second Circuit has defined "willfulness" as the defendant's actual or constructive knowledge that his or her actions constitute an infringement; thus, "reckless disregard of the copyright holder's rights . suffices to warrant award of the enhanced damages." N.A.SImp., 968 F.2d at 252 (internal quotation marks and citation omitted); seeYurmanDesign,Inc.v.PAJ,Inc., 262 F.3d 101, 112 (2d Cir.2001) ("Willfulness in this context means that the defendant recklessly disregarded the possibility that its conduct represented infringement. A plaintiff is not required to show that the defendant had knowledge that its actions constituted an infringement.") (internal quotation marks and citations omitted). "[W]illful infringement may . be inferred from [defendant's] failure to appear and defend the action." VanDerZee, 2006 WL 44020, at *3; accordEntralGroup Int'lv.HoneyCaféon5th,Inc., No. 05-CV-2290 (NGG/MDG), 2006 WL 3694584, at *6 (E.D.N.Y. Dec. 14, 2006). *4 Plaintiff asserts that at the time of the infringement in this case, MDB was either still in theatrical release or had not yet been released in home video format. See Declaration of Lauren Nguyen in Support of Application for Entry of Default Judgment by the Court ("Nguyen Decl.") ¶ 5; Pl. Mem. at 5. [FN5] Accordingly, defendant knew or should have known that he was distributing a pirated copy of the motion picture. Pl. Mem. at 5. Further, given the presence of the copyright notice on MDB, defendant had at least constructive knowledge, if not actual knowledge, that the film was copyrighted and that its distribution over the P2P network violated the Copyright Act. Cf.CastleRockEntm'tv.CarolPubl'g Group,Inc., 955 F.Supp. 260, 267 (S.D.N.Y.1997). Based on these facts, coupled with defendant's default, plaintiff has sustained its burden of proving that defendant willfully infringed plaintiff's copyright, thereby warranting an enhanced statutory award.
FN5. Although the record does not so reflect, MDB appears to have received its initial DVD release on July 12, 2005. See Million Dollar Baby (2004)--DVD details for, http://www.imdb.com/title/tt0405159/dvd (last visited May 7, 2007).
The Court must next determine a just amount of enhanced statutory damages for the infringement at issue. Plaintiff's lost revenues and defendant's profits, if any,
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Slip Copy, 2007 WL 1655666 (E.D.N.Y.) (Citeas:2007WL1655666(E.D.N.Y.)) remain unascertainable as a result of defendant's default and the lack of pretrial discovery. [FN6] SeeVideoAidedInstruction, 1996 WL 711513, at *4 (awarding enhanced statutory damages where defendants' profits and plaintiffs' lost revenue "remain unknown" due to defendants' default). Plaintiff also contends that it incurs considerable costs in the protection of its property rights against defendant and other infringers (aside from its legal fees). Pl. Mem. at 8-9. Plaintiff alleges that its costs "just to get in position to bring a lawsuit such as this one," which requires retaining an anti-piracy consultant and filing a John Doe lawsuit to identify the alleged infringers, range from $3,000 to $5,000. Id. at 9; Nguyen Decl. ¶ 11. Accordingly, under these circumstances, plaintiff's request for $6,000 in statutory damages--well below the enhanced statutory limit of $150,000--is eminently reasonable. [FN7]
FN6. Plaintiff does allege that evidence suggests that approximately 2.4 million files are exchanged per day on P2P networks (without reference to the approximate number of said files protected by copyrights held by plaintiff). See Pl. Mem. at 7; Nguyen Decl. ¶ 10. Plaintiff further posits that illegal downloading of its copyrighted works "potentially impacts ticket, home video and/or DVD sales as well as motion picture rental revenues, and, as a consequence, results in lost profits." Pl. Mem. at 8. Further, where the infringed motion picture is still in theatrical release, each download "may result in the loss of at least two sales--a ticket at the movie theater and a subsequent purchase of the DVD/home video." Pl. Mem. at 8 n. 3; Nguyen Decl. ¶ 8.
FN7. See Report and Recommendation dated October 31, 2006, in WarnerBros.Entm't,Inc.v.Ferrandino, No. 06-CV-586 (DRH/ETB) (E.D.N.Y.) ($6,000 statutory damages award). Furthermore, other courts have found this amount reasonable in similar circumstances. Pl. Mem. at 4 n. 1 (listing cases in other jurisdictions).
II.PermanentInjunction Section 502(a) of the Copyright Act provides that a court may grant "final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U.S.C. § 502(a). The Supreme Court has recently reiterated that a plaintiff seeking an injunction in a copyright action must demonstrate:
UNIT 8: IDEAS IN CONTEXT This unit aims to develop learners’ personal creative potential for generating ideas in a relevant specialist discipline within the visual arts. This unit extends and develops the generation of ideas. Learners are required to generate ideas to fulfil complex visual arts objectives involving social, cultural and commercial considerations. Learners will evolve and ad