Mango v. BuzzFeed, Inc.

• Decision Date: 20 August 2019
• Docket Number: 17 Civ. 6784 (VM)
• Citation: 397 F.Supp.3d 368
• Parties: Gregory MANGO, Plaintiff, v. BUZZFEED, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

397 F.Supp.3d 368

Gregory MANGO, Plaintiff,

v.BUZZFEED, INC., Defendant.

17 Civ. 6784 (VM)

United States District Court, S.D. New York.

Signed August 20, 2019

Joseph Anthony Dunne, Sriplaw, PLLC, New York, NY, Richard Liebowitz, James H. Freeman, Liebowitz Law Firm, PLLC, Valleystream, NY, for Plaintiff.

Eleanor Martine Lackman, Mitchell Silberberg & Knupp LLP, Michelle Mancino Marsh, Lindsay Gael Korotkin, Arent Fox LLP (NYC), Brittany Laine Kaplan, Cowan, DeBaets, Abrahams & Sheppard LLP, New York, NY, for Defendant.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Gregory Mango ("Mango") is a photographer who sued BuzzFeed, Inc. ("BuzzFeed") for copyright infringement ("Count I") and removal of copyright management information ("Count II"). BuzzFeed conceded its liability on Count I, and on January 17, 2019, the Court found BuzzFeed liable on Count II and awarded damages for both Counts. See Mango v. BuzzFeed, Inc., 356 F. Supp. 3d 368, 379 (S.D.N.Y. 2019). Specifically, the Court awarded $3,750 in damages for Count I, calculated by taking the photo's $750 licensing fee and multiplying it by five. For Count II, the Court awarded $5,000 in statutory damages. The Court also found that "though the award of statutory damages adequately compensates Mango ... the more significant award of costs and attorneys fees stemming from litigation through trial is necessary for deterrence purposes[,]" citing Section 505 of the Copyright Act. Id. (citing 17 U.S.C. § 505 ). The Court ordered Mango to submit an application for reasonable attorneys fees and costs, for BuzzFeed to respond to that application, and for Mango to provide a reply, if any, shortly thereafter. Id. at 375-79.

Mango submitted his application on February 1, 2019, seeking $65,132.50 in fees and $1,810.03 in costs. (See "Fees Application," Dkt. No. 60, at 1-2.) For the reasons discussed below, the Court GRANTS in part and DENIES in part the Fees Application and awards Mango $44,560.88 in attorneys fees and costs.

I. BACKGROUND

Mango seeks attorneys fees for the work of two attorneys, James Freeman ("Freeman") and Joseph Dunne ("Dunne"). Mango calculates that Freeman worked for 174.95 hours at a rate of $350 per hour and Dunne worked for 12 hours at a rate of $325 per hour, totaling $65,132.50. (See id. at 4.) Mango's costs figure includes the $400 filing fee, $75 for service of the summons and complaint, $75 for service of a third-party subpoena, $112 for a "certified deposit copy" request, $854.70 for Mango's deposition, and $293.33 for trial materials, such as papers and binders. (See "Freeman Decl.," Dkt. No. 61, ¶ 13.)

Mango argues that the proposed hourly rates are reasonable for three reasons. First, Mango notes that at the time of trial, both attorneys were experienced. Freeman was a senior associate with eighteen years of legal experience, particularly in copyright litigation, and Dunne was an associate with eight years of legal experience. Second, Mango explains that courts in this district have awarded parties employing similarly-skilled counsel fees between $180 and $461 per hour. Third, because Freeman received a rate of $350 per hour in a recent default judgment, Mango reasons that $350 is a presumptively reasonable rate. (See Fees Application at 4-5.)

Mango also defends the total number of hours worked by the two attorneys. Freeman's 174.95 hours span from preliminary research in September 2017 to post-trial correspondence in October 2018. (See Freeman Decl., Ex. A.) Mango reconstructs the total number of hours from contemporaneous handwritten notes, and provides additional context of the tasks performed with the use of notes, calendars, and other later documentation. (See Freeman Decl. ¶ 5.) The hours do not include any time used to write the Fees Application. (See Freeman Decl. Ex., A.)

Because Dunne did not maintain contemporaneous records, Mango reconstructs Dunne's time using calendars, emails, and the court docket. Dunne appeared before the Court for trial (see Dkt. Minute Entry for 8/13/2019), and Mango argues that this appearance accounted for 5.5 hours of billable work (see Freeman Decl. ¶ 12).

Finally, Mango defends the Fees Application on the grounds that (1) the litigation was successful; (2) the case clarified the legal elements for the removal of copyright management information claims; and (3) the statutory award was high compared to the base $750 licensing fee. (See Fees Application at 9-11.)

BuzzFeed filed its response on February 15, 2019, arguing that the costs, rates, and hours worked by Mango's counsel are unjustified and unsubstantiated. (See "Response," Dkt. No. 62, at 3-4.)

First, BuzzFeed seeks to limit Mango's recovery to fees incurred before December 15, 2017, arguing that Mango needlessly prolonged the litigation beyond that date. (See id. at 3-5.) On that date, the Court suggested during a conference that it was not inclined to depart from the three-to-five times multiple for determining damages with respect to Count I (i.e., $2,250 to $3,750). In later mediation, BuzzFeed offered a $5,000 settlement to Mango, which he rejected. (See id. Ex. B at 202:2-10.)¹ Because Mango rejected a settlement above the three-to-five times multiple range for statutory damages, BuzzFeed argues that Mango should not recover for fees incurred beyond December 15, 2017.

Second, BuzzFeed asks the Court to apply a percentage discount to Freeman's hours for four reasons. To start, BuzzFeed highlights that the awarded amount represents only five percent of the amount sought in the amended complaint ($175,000), suggesting that the litigation was not successful. Second, because the contingency fee arrangement between Mango and his counsel promised only 50 percent of the awarded amount ($4,375), BuzzFeed argues that any larger amount would be a windfall. Third, BuzzFeed contests the accuracy of Freeman's hours, which were calculated using contemporaneous notes but given context with later materials. Fourth, BuzzFeed asserts that many of Freeman's recorded tasks were too simple to bill for, such as taking screenshots of websites, or were inconsistent with the record, such as 4.35 hours to draft a complaint that largely uses recycled language from prior litigation. (See id. at 5-11.)

Third, BuzzFeed seeks to exclude Dunne's hours entirely. BuzzFeed notes that Dunne did not record his hours contemporaneously and that the record includes inaccuracies. For example, Dunne and Freeman billed a separate amount of hours for the same conference. BuzzFeed also asserts that many of Dunne's tasks should not be billable, such as getting a new lawyer up-to-speed on the case or setting up exhibits at trial. (See id. at 11-13.)

BuzzFeed argues that the rates should be lowered to match prevailing rates in the Eastern District of New York because Dunne and Freeman work out of that district. (See id. at 13.)

Finally, BuzzFeed contends that, because the declared costs are not substantiated by receipts or other documentation, every cost besides the filing fee should be removed from the application. (See id. at 15.)

Because BuzzFeed's Response references a confidential contingency fee arrangement, BuzzFeed separately requests to file the agreement under seal. (See Dkt. No. 65.) The Court directed Mango to respond to BuzzFeed's sealing request "showing cause why the relief requested should not be granted." (See id. )

Mango responded by letter dated February 21, 2019. (See "February 21 Letter," Dkt. No. 66.) At the outset, regarding BuzzFeed's request to file under seal, Mango immediately concedes he had "no opposition to the relief requested." (Id. at 1.) However, Mango then took the opportunity to address arguments in BuzzFeed's Response regarding the contingency fee arrangement, arguing that (1) the contingency fee arrangement should not result in an automatic reduction; (2) the litigation was not needlessly prolonged; and (3) a full fee award would not be a windfall. (See id. at 1-3.)

Mango then filed his reply to BuzzFeed's Response on February 28, 2019. (See "Reply," Dkt. No. 67.) Mango counters BuzzFeed's argument that he needlessly prolonged litigation in two ways. First, Mango notes that BuzzFeed's multiplier argument, to the extent it applies at all, can apply only to Count I, not Count II. Second, Mango argues that litigation through trial and an award of fees is necessary in order to fulfill the Copyright Act's purpose of deterring copyright infringement, because the small statutory award is insufficient by itself. (See Reply at 2.)

Mango contests BuzzFeed's windfall argument by noting that courts in this district have awarded fees in other contingency fee cases. (Id. at 6.) In further support, Mango explains that the requested fee award is 7.65 times the statutory award, which is in line with similar cases. (Id. at 7.)

Mango opposes any discounting of the Fee Application's total hours. Mango defends the billing of even relatively simple tasks by arguing that the full synthesis of information was vital to the litigation's success, which was partly based on hard-to-prove scienter issues. Mango also benchmarks the number of hours billed in this case to other copyright cases involving modest damages. Finally, Mango attempts to clarify that Freeman's calculation of hours were based solely on contemporaneous notes and only the descriptions of those hours were elucidated with later records. (Id. at 8-10.) As for the hourly rate, Mango supports Freeman billing at rates that predominate in the Southern District of New York because 78 percent of Freeman's work has occurred in this district since July 2017. (Id. )

In order to substantiate certain of these arguments, Mango includes with his Reply over 100 pages of new exhibits, including invoices for attorneys fees from other cases in this district with similar damages awards. (See Dkt. No. 68.)

By letter dated March 1, 2019, BuzzFeed requests that the Court either not consider portions of Mango's February 21 Letter...