Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IN RE AIMSTER COPYRIGHT LITIGATION

April 14, 2003

IN RE: AIMSTER COPYRIGHT LITIGATION, MULTI DISTRICT LITIGATION #1425


The opinion of the court was delivered by: Marvin Aspen, United States District Judge

MEMORANDUM OPINION AND ORDER

In an order dated December 20, 2002, this Court found Defendants John A. Deep, AbovePeer, Inc., and BuddyUSA, Inc. ("Defendants") in contempt of the Preliminary Injunction Order we issued on October 30, 2002. Pending before us is the determination of attorneys' fees and costs owed to Plaintiffs' counsel as well as the calculation of the fine Defendants should pay to the Court. For the reasons set forth below, we order Defendants to pay attorneys' fees and costs in the amount of $103,850.54 to Plaintiffs' counsel and a fine in the amount of $5,000.00 to the Court.

I. BACKGROUND

On October 30, 2002, this Court issued a Preliminary Injunction Order enjoining Defendants and those acting in concert with them or at their direction or control (collectively "Aimster") from infringing Plaintiffs' copyrights. Defendants continued to infringe Plaintiffs' copyrights despite our issuance of the Order. Plaintiffs subsequently filed a Motion for Order to Show Cause re: Contempt. In support of their Motion, Plaintiffs filed a series of declarations documenting Defendants' infringing activity. On November 26, 2002, all parties to the case appeared before this Court on Plaintiffs' Motion. At the hearing, we set a briefing schedule that provided Defendants with an opportunity to respond to Plaintiffs' Motion. In the interim, we issued a Temporary Restraining Order on December 2, 2002 restraining Defendants from continuing to infringe on Plaintiffs' copyrights.

On December 19, 2002, counsel for the Plaintiffs appeared before this Court regarding the Motion for Order to Show Cause re: Contempt. Local counsel for Defendants appeared but did not speak to the merits of Plaintiffs' Motion. Plaintiffs' counsel averred that Defendants stopped infringing on Plaintiffs' copyrights shortly after the entry of the Temporary Restraining Order, thirty-four days after the issuance of the Preliminary Injunction Order. On December 20, 2002, this Court entered an order finding Defendants in contempt of the Preliminary Injunction Order.

In accordance with our finding Defendants in contempt, we ordered Defendants to pay Plaintiffs all attorneys' fees and costs incurred in bringing the contempt action. Plaintiffs' counsel subsequently submitted statements of fees and costs, and the parties have filed memoranda concerning the amount which Plaintiffs' counsel should be awarded.*fn1 Furthermore, we ordered Defendants to appear before this Court regarding Plaintiffs' further request that Aimster pay to the Court the sum of $51,000.00, representing $1,500.00 for each day that Defendants were in contempt. Defendant Deep appeared before this Court pro se on January 28, 2003 at which time he and counsel for the Plaintiffs presented argument on the matter.

II. ANALYSIS

A. Attorneys' Fees

This Court has the broad discretion to award attorneys' fees and costs for the preparation and prosecution of a contempt action. See South Suburban Hous. Ctr. v. Berry, 186 F.3d 851, 854 (7th Cir. 1999); see also Matter of Establishment Inspection of Microcosm, 951 F.2d 121, 126 (7th Cir. 1991). As the Seventh Circuit has explained, "[t]he distict court is in the best position to determine the worth of the attorneys practicing before him." Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 406 (7th Cir. 1999). The calculation of attorneys' fees involves the multiplication of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).*fn2 Plaintiffs' counsel bears the burden of substantiating, to this Court's satisfaction, the reasonable rate and the hours expended. See id.; see also McNabola v. Chicago Transit Auth., 10 F.3d 501, 518 (7th Cir. 1993). We may increase or decrease the fee request in light of the following twelve factors the Supreme Court set forth in Hensley:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
461 U.S. at 429-30 n. 3, 103 S.Ct. at 1938 n. 3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).*fn3

Plaintiffs' counsel request a total of $118,710.03 in attorneys' fees and costs. Of this total, $110,373.45 is for attorneys' fees and $8,336.58 is for costs. The work was performed by three attorneys and two paralegals from the Los Angeles firm of Mitchell Silberberg & Knupp ("MSK"), and two attorneys from the Chicago firm of Katten Muchin Zavis Rosenman ("KMZ Roseninan"). MSK is known for its work representing record companies in matters thorughout the United States involving the piracy of recordings. Recently, MSK has been lead counsel in on-line copyright infringement cases including the Napster litigation. MSK has been lead counsel to record companies in various actions involving the Aimster system since their commencement. When the eleven separate actions by or against Defendants were consolidated by the Judicial Panel on Multi-District Litigation ("MDL Panel") on November 17, 2001 in this Court, Plaintiffs retained KMZ Rosenman to assist with the litigation.

Plaintiffs' counsel provided detailed biographical data regarding each attorney and paralegal that assisted in the preparation and prosecution of the contempt action. MSK partner Russell Frackman has an extensive intellectual property law practice that spans thirty-two years. He bills at a rate of $500 per hour. MSK partner Patricia Benson has practiced for twenty-nine years. She specializes in complex commercial litigation, including copyright litigation, and bills at a rate of $360 per hour. MSK associate Karin Pagnanelli has been practicing for nine years during which time she has focused on copyright litigation. Her hourly rate was $256.50 for 2002, and is $279 for the year 2003. MSK paralegals Linda Bodenstein and Nancy Schafer have been involved in gathering evidence and performing paralegal tasks since the inception of this litigation and, before that, during the Napster litigation. Both Bodenstein's and Schafer's hourly rate is $126.

KMZ Rosenman partner Floyd Mandell has been practicing for thirty years. He specializes in intellectual property law and bills at a rate of $450. KMZ Ronseman associate Bradley Rochlen has practiced for five years during which time he has practiced extensively in the area of intellectual property law. His hourly rate is $230. The declarations of Frackman and Mandell as well as the information Plaintiffs' counsel provided regarding the market rates in the relevant legal community support each attorney's hourly rate. Defendant Deep does not dispute the hourly rates of the attorneys or paralegals.

Plaintiffs' fee request is based on 460.6 hours of work — 277.7 hours by the five attorneys and 182.9 hours by the two paralegals. Each attorney performed several of the following tasks: researching, reviewing, and writing the Motion for Order to Show Cause re: Contempt; researching, reviewing, and writing the reply brief in support of the Motion for Order to Show Cause re: Contempt; preparing for, traveling to, and/or attending the court hearing on the Motion for Order to Show Cause re: Contempt; preparing for, traveling to, and/or attending the court hearing on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.