Burberry Ltd. v. Yarbrough

• Decision Date: 17 November 2021
• Docket Number: 20-cv-6909
• Parties: BURBERRY LIMITED, a United Kingdom Corporation, and BURBERRY LIMITED, a New York Corporation, Plaintiffs, v. MARVEL YARBROUGH a/k/a BURBERRY JESUS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

BURBERRY LIMITED, a United Kingdom Corporation, and BURBERRY LIMITED, a New York Corporation, Plaintiffs, v. MARVEL YARBROUGH a/k/a BURBERRY JESUS, Defendant.

No. 20-cv-6909

United States District Court, N.D. Illinois, Eastern Division

November 17, 2021

MEMORANDUM OPINION AND ORDER

Honorable Marvin E. Aspen United States District Judge

Having obtained a default judgment against Defendant Marvel Yarbrough a/k/a Burberry Jesus (“Yarbrough”) Plaintiffs Burberry Limited (UK) and Burberry Limited (US) (collectively, “Burberry”) now move for an award of $139, 169.20 in attorneys' fees and $872.85 in costs. (Plaintiffs' Motion for an Award of Attorneys' Fees and Costs Pursuant to Court's Default Judgment Order (“Mot.”) (Dkt. No. 39).) For the following reasons, we grant Burberry's motion in part. Burberry is awarded $137, 356.52 in attorneys' fees and $645.00 in costs, subject to Burberry's decision on whether to address the fees and costs that we have declined to award.

BACKGROUND

On November 20, 2020, Burberry sued Yarbrough, bringing claims for trademark infringement, false designation of origin, and trademark dilution under the Lanham Act; trademark infringement and trademark dilution under Illinois common law and statutory law; willful cybersquatting under the Anticybersquatting Consumer Protection Act; copyright infringement; and a judgment declaring Yarbrough's name change to “Burberry Jesus” invalid.

(Complaint (“Compl.”) (Dkt. No. 1) ¶¶ 91-170; Default Judgment and Order Granting Permanent Injunction, Declaratory Judgment and Attorneys' Fees (“Default J. Order”) (Dkt. No. 36) at 1-2.) After multiple unsuccessful attempts to serve Yarbrough at his home, Burberry filed an ex parte motion for alternative service, which we granted. (Dkt. Nos. 13, 14.) Burberry served Yarbrough via email and Federal Express, and when Yarbrough did not timely file an answer by January 8 2021, Burberry sought an entry of default. (Dkt. Nos. 17 18.) On January 20, 2021, we entered default against Yarbrough and permitted Burberry to file a motion for default judgment with prove-up damages. (Dkt. No. 19.)

Shortly after entering default, however, we received a letter from Yarbrough regarding the case. (Dkt. No. 20.) In light of this letter, we vacated the default and ordered Yarbrough to respond to Burberry's Complaint by February 12, 2021. (Dkt. No. 21.) He did not do so, and we entered default against him again. (Dkt. Nos. 22, 25.) Burberry subsequently filed a motion for default judgment, which we granted; however, we stayed execution of the order for 60 days to give Yarbrough another chance to respond to the Complaint. (Dkt. Nos. 27, 28, 34.) After Yarbrough failed to respond, we entered default judgment against him. (See Dkt. Nos. 35-37.)

Burberry thereafter moved for an award of attorneys' fees and costs. (See Mot.; Memorandum in Support of Plaintiffs' Attorneys' Fees and Costs Incurred by Winston & Strawn LLP Pursuant to Court's Default Judgment Order (“Mem.”) (Dkt. No. 40); Bill of Costs (Dkt. No. 43).) We gave Yarbrough an opportunity to respond (see Dkt. No. 44), but he did not do so.

ANALYSIS

We have already concluded that this case “warrants the award of reasonable attorneys' fees and costs” to Burberry. (Default J. Order at 5, 7.) We must now determine “the appropriate amount of attorneys' fees and costs”-a determination that affords us “wide discretion.” Spegon v. Cath. Bishop of Chi. 175 F.3d 544, 550 (7th Cir. 1999) (emphasis added).

I. Burberry's Request for Attorneys' Fees

We start with Burberry's request for attorneys' fees. The law firm of Winston & Strawn, LLP (“Winston”) represented Burberry in this litigation. (Declaration of Natalie L. Arbaugh (“Arbaugh Decl.”) (Dkt. No. 46) ¶ 1.) Burberry seeks an award of $139, 169.20 for work performed by three attorneys and two non-attorneys at Winston from October 2020 through June 2021. (Id. ¶¶ 2, 3, 13.) Burberry's request, broken up by individual, is as follows:

Attorneys

Name

Position

2020 Hourly Rate

2020 Hours

2021 Hourly Rate

2021 Hours

Total

Marjon Momand

Associate

$522

122.4

$519

61.0

$95, 551.80

Natalie Arbaugh

Partner

$785

18.6

$875

29.8

$40, 676.00

Michael Mayer

Partner

$819

0.5

$889

2.1

$2, 276.40

Non-Attorneys

Martha Calvo

Paralegal

--

--

$310

1.1

$341.00

David Pennel

Trial support manager

$162

2.0

--

--

$324.00

Total for All Individuals

$139, 169.20

(Id. ¶¶ 7, 13; Fee Invoices^[1] at 9, 11, 42, 43.)

To determine what constitutes a “reasonable” attorneys' fee award, we “start[] by determining the ‘lodestar,' which is the attorney's reasonable hourly rate multiplied by the hours the attorney reasonably expended on the litigation.” Nichols v Ill. Dep't of Transp., 4 F.4th 437, 441 (7th Cir. 2021). This calculation also accounts for work reasonably expended by paralegals. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 285, 109 S.Ct. 2463, 2470 (1989); Spegon, 175 F.3d at 553.

Once we have determined the lodestar, we may then increase or decrease this figure “based on factors not included in the computation.” Sommerfield v. City of Chicago, 863 F.3d 645, 650 (7th Cir. 2017); Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). “If a plaintiff requests fees for the fee award litigation, [we] also determine that after calculating the lodestar.” Nichols, 4 F.4th at 441.

A. Lodestar Calculation

Burberry “bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed.” Spegon, 175 F.3d at 550. Thus, although Yarbrough does not challenge Burberry's requested hours or rates we independently examine them to determine whether Burberry has met its burden. See Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 646 (7th Cir. 1995) (“We have no doubt that the district court has an independent obligation to scrutinize the legitimacy of [a fee petition].”).

1.Hourly Rates

We first consider whether Burberry's requested hourly rates are reasonable. “A reasonable hourly rate is based on the local market rate for the attorney's services.” Montanez, 755 F.3d at 553. “We presume that an attorney's actual billing rate for similar litigation is appropriate to use as the market rate.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011). The party moving for fees bears the burden of establishing the market rate, Montanez, 755 F.3d at 553, but once it provides evidence of its attorney's billing rate, the burden shifts to the non-movant “to present evidence establishing a good reason why a lower rate is essential, ” People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996) (quotation marks omitted). A non-movant's failure to challenge a party's evidence regarding its attorney's billing rate essentially concedes “that the attorney's billing rate is reasonable and should be awarded.” Id.; Pickett, 664 F.3d at 637, 647 (“Had defendant submitted no evidence, the district court would have had to award fees at [the plaintiff's attorney's] proposed rate.”).

Burberry requests an attorneys' fee award based upon the following rates:^[2]

• Ms. Momand - $522 per hour for 2020 and $519 per hour for 2021;

• Ms. Arbaugh - $785 per hour for 2020 and $875 per hour for 2021;

• Mr. Mayer - $819 per hour for 2020 and $889 per hour for 2021;

• Ms. Calvo - $310 per hour; and

• Mr. Pennel - $162 per hour.

(Arbaugh Decl. ¶¶ 9, 10, 12, 13.) Burberry has provided invoices that show that Winston billed Burberry for these individuals' work at these rates. (Id. ¶ 3; Fee Invoices at 2-5, 11-14, 21-24, 28, 30-32, 37-40, 43, 45-47, 49-52.) Ms. Arbaugh also states that these rates are what Winston “customarily charges.” (Arbaugh Decl. ¶ 3.) This evidence is sufficient to establish the rates at which Winston billed Burberry for its legal services in this case, which presumptively constitute the market rates. See City of Chicago v. Garland, No. 18 C 6859, 2021 WL 1676387, at *6 (N.D. Ill. Apr. 28, 2021) (explaining that the plaintiff's “attorneys established their market rates based on the actual billable rates charged to and paid by firm clients”); Worldpay US, Inc. v. Haydon, No. 17 C 4179, 2020 WL 3050344, at *17 (N.D. Ill. June 8, 2020) (using the plaintiff's counsel's billing rates to calculate an attorney fee award where counsel had “provided evidence of their actual billing rates and the defendants” had not provided any information regarding rates for attorneys trying trade secret cases in the Chicago area); Platinum Supplemental Ins., Inc. v. Guarantee Tr. Life Ins. Co., No. 17-cv-8872, 2020 WL 2098059, at *3 (N.D. Ill. May 1, 2020) (finding that the plaintiff's detailed time sheets “cleared the threshold issue of specifying who did what and at what cost” and noting that the plaintiff “also submitted affidavits that all of the attorneys' rates are what they customarily charge”), aff'd, 989 F.3d 556 (7th Cir. 2021). This presumption is unrebutted because Yarbrough failed to respond to Burberry's motion. We therefore find Burberry's requested hourly rates to be reasonable, and we will calculate the lodestar based on these rates.

2.Hours Billed

Next we consider the reasonableness of the number of hours billed by Winston. Because Yarbrough only needs to pay for hours reasonably expended by Winston's personnel on this case, we must exclude “hours that are excessive redundant, or otherwise unnecessary.” Johnson v. GDF, Inc., 668 F.3d 927, 931 (7th Cir. 2012) (quotation marks omitted). Excluding time billed in connection with preparing Burberry's motion for fees and costs, which we discuss later, three attorneys and two non-attorneys from Winston billed a total of 225.2 hours on this case: Ms. Momand, an associate, billed 173.0 hours; Ms. Arbaugh, a partner, billed 46.5...