Apple Corps. Ltd. v. International Collectors Soc.
| Decision Date | 18 November 1998 |
| Docket Number | Civ. No. 96-1571(JAG). |
| Citation | 25 F.Supp.2d 480 |
| Parties | APPLE CORPS LIMITED, MPL Communications, Inc., Yoko Ono Lennon As Executrix of the Estate of John Lennon, Subafilms, Ltd. and Yoko Ono Lennon, Plaintiffs, v. INTERNATIONAL COLLECTORS SOCIETY, John E. Van Emden, Scott L. Tilson, Jeffrey B. Franz and Howard E. Friedman, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Paul V. LiCalsi, Amy J. Lippman, Gold, Farrell & Marks, New York, NY, David O. Marcus, Shapiro & Croland, Hackensack, NJ, for Plaintiffs.
Bradford J. Badke, Lindal L. Scott, Dewey Ballantine, LLP, New York, NY, Donald A. Robinson, Robinson, Lapidus & Livelli, Newark, NJ, for Defendants.
This matter comes before the Court on the application for costs and attorneys' fees of Gold, Farrell & Marks, counsel for plaintiffs Apple Corps Limited, MPL Communications, Inc., Yoko Ono Lennon, as executrix of the estate of John Lennon, Subafilms, Ltd. and Yoko Ono Lennon (collectively "Plaintiffs"). The application is based on Plaintiffs' successful motion seeking the issuance of an order of civil contempt against the defendants.
Plaintiffs commenced the above-captioned action against defendants International Collectors Society, John E. Van Emden, Scott L. Tilson, Jeffrey B. Franz and Howard E. Friedman (collectively "Defendants") in April 1996. Plaintiffs alleged that Defendants were unlawfully trading off the good will associated with the legendary rock-n-roll band, The Beatles. Specifically, Plaintiffs alleged that Defendants created, marketed and sold, without any authorization from Plaintiffs, postage stamps featuring images of The Beatles, trademarks and copyrighted photographs that Plaintiffs owned and controlled.
In June, 1997, the parties agreed to resolve the case by a Consent Order which the Court entered on June 19, 1997. Paragraph O of the Consent Order provides:
In the event that defendants or any of them breaches any provision of paragraphs A-I or K-L of this Order and as a result of such breach, plaintiffs or any one of them initiates legal proceedings to enforce their rights under this Order, defendants and each of them hereby: ... (3) agree to reimburse plaintiffs for all their costs, including reasonable attorney's fees incurred in connection with any successful action or proceeding brought by plaintiffs (or any one of them) to enforce their rights under this Order.
(Consent Order ¶ O) (emphasis added).
On or about September 24, 1997, Plaintiffs brought a motion for contempt seeking to enforce the Consent Order. The Defendants filed a cross-motion to dissolve the Consent Order pursuant to Fed.R.Civ.P. 60(b) and a separate motion seeking to impose sanctions on Plaintiffs' counsel for alleged ethical violations in connection with their investigation of the contempt.
On June 26, 1998, this Court granted Plaintiffs' motion for contempt and denied Defendants' cross-motion to dissolve the Consent Order and their motion for sanctions.1 In accordance with Paragraph O of the Consent Order, the Court ordered "that Defendants shall reimburse Plaintiffs for all their costs, including reasonable attorneys' fees incurred in bringing their motion for contempt." Apple Corps Ltd. v. International Collectors Soc'y, 15 F.Supp.2d 456, 477 (D.N.J.1998). On July 9, 1998, Plaintiffs filed the instant application for attorneys' fees and costs pursuant to Paragraph O of the Consent Order.
Attorneys' fees and expenses may be awarded to a prevailing party in a federal litigation where authorized by statute, court rule or contract. See Hatco Corp. v. W.R. Grace & Co., 801 F.Supp. 1309, 1333 (D.N.J. 1992), vacated on other grounds, 59 F.3d 400 (3d Cir.1995). The Court may also award fees and expenses "under the courts' inherent power to reimburse a party for outlays incurred in securing an adjudication of contempt." Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 941 (3d Cir.1995) (citing Robin Woods Inc. v. Woods, 28 F.3d 396, 400-01 (3d Cir.1994)); see also Lichtenstein v. Lichtenstein, 425 F.2d 1111, 1113-14 (3d Cir.1970), modified, 454 F.2d 69 (3d Cir. 1972). In the contempt setting, the "innocent party is entitled to be made whole for the losses it incurs as the result of the contemnors' violations, including reasonable attorneys' fees and expenses." Halderman, 49 F.3d at 941 (citing Robin Woods, 28 F.3d at 401). However, "these items are restricted to a reasonable amount incurred in prosecuting the petition" for contempt. Lichtenstein, 425 F.2d at 1113-14; see also Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990).
"A reasonable [attorneys'] fee is one which is adequate to attract competent counsel, but which does not produce a windfall to attorneys." Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.1995) (internal quotations and citations omitted). The Supreme Court has held that "the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The product of this calculation is called the lodestar. Id. at 434, 103 S.Ct. 1933. The lodestar is presumed to yield a reasonable fee. Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir.1996) (citing City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)). However, the lodestar calculation requires that the court "carefully and critically evaluate the hours and the hourly rate set forth by counsel." Blakey v. Continental Airlines, Inc., 2 F.Supp.2d 598, 602 (D.N.J.1998) (citations omitted).
The party seeking attorneys' fees has the burden of establishing the reasonableness of the fees by "submit[ting] evidence supporting the hours worked and the rates claimed." Rode, 892 F.2d at 1183 (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933). Thus, Plaintiffs' counsel "must produce satisfactory evidence — in addition to [their] own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).2
The burden then shifts to the party opposing the fee to contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended "by affidavit or brief with sufficient specificity to give fee applicants notice" of the objections. See Rode, 892 F.2d at 1183 (citing Bell v. United Princeton Properties, Inc., 884 F.2d 713, 715 (3d Cir.1989)).3 If the party opposing the fee petition meets its "burden of proving that an adjustment is necessary," Rode, 892 F.2d at 1183, the court has wide discretion to adjust the attorneys' fee for a variety of reasons such as inadequate documentation of hours spent, reasonableness of hours expended or duplication of efforts. See Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983) (citations omitted). However, the court may not "decrease a fee award based on factors not raised by the adverse party." Rode, 892 F.2d at 1183 (citations omitted).4
After computing the lodestar, the Court can make further adjustments to the fee Rode, 892 F.2d at 1183.
In calculating the lodestar, the Court must determine whether the number of hours expended are reasonable. The party requesting attorneys' fees must provide evidence to support the time claimed. See Windall, 51 F.3d at 1188 (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933). The Court must consider a party's objections to particular time charges and exclude from compensation those hours which are not reasonably expended. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933. "Hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary." Rode, 892 F.2d at 1183 (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933).
Plaintiffs' lead counsel, Gold, Farrell & Marks ("Gold, Farrell") seeks $250,675.54 in attorneys' fees for three partners, Paul V. LiCalsi, Martin R. Gold and Jane G. Stevens, four senior associates, Amy J. Lippman, Jeannie Costello, Howard W. Weller and Michael Manuelian and three paralegals, Sari L. Harris, Mark B. Fallon and Tina Leos Termine. Counsel for Yoko Ono Lennon, Shukat, Arrow, Hafer & Weber, L.L.P. ("Shukat, Arrow"), seeks $15,805 in attorneys' fees for one partner, Dorothy M. Weber, and one associate Jonas E. Herbsman. Local counsel, Shapiro & Croland, seeks $7,128.75 in attorneys' fees for one associate, David O. Marcus.
Plaintiffs' fee application includes fees and expenses associated with defending against Defendants' motion for sanctions based on ethics violations and Defendants' cross-motion to dissolve the Consent Order. Paragraph O of the Consent Order, however, only entitles Plaintiffs to attorneys' fees incurred in connection with a "proceeding brought by plaintiffs ... to enforce their rights under this Order." Thus, neither the Consent Order nor this Court's Order dated June 26, 1998, entitle Plaintiffs to attorneys' fees and expenses incurred in connection with defending against Defendants' motions.
In response to the Court's request, Gold, Farrell, calculated the amount of time devoted to defending against both Defendants' cross-motion to dissolve the Consent Order and Defendants' motion for sanctions. Gold, Farrell has represented to the Court that 8.1 percent of the fees it incurred are related to defending against Defendants' cross-motion to dissolve...
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