DIRECTV, LLC v. Ertem et al

Filing 29

ORDER AND REASONS - Before the Court is the issue of damages 27 for defendants' violation of 47 U.S.C. § 605. The Court previously granted plaintiff DirecTV's motion for partial summary judgment on the issue of defendants' liability 21 leaving only the question of damages remaining. For the following reasons, the Court awards DirecTV $23,463.58 in total damages, fees, and costs.. Signed by Chief Judge Sarah S. Vance on 2/3/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIRECTV, LLC

CIVIL ACTION

VERSUS

NO: 13-487

HABIP ERTEM, ET AL.

SECTION: R
ORDER AND REASONS

Before the Court is the issue of damages for defendants’
violation of 47 U.S.C. § 605.

The Court previously granted

plaintiff DirecTV’s motion for partial summary judgment on the
issue of defendants’ liability,1 leaving only the question of
damages remaining.

For the following reasons, the Court awards

DirecTV $23,463.58 in total damages, fees, and costs.

I.

BACKGROUND
DirecTV filed this lawsuit on March 15, 2013, alleging that on

June 16, 2012, defendants Habip Ertem and Ulusan, LLC d/b/a St.
Charles Tavern received and displayed DirecTV satellite programming
at St. Charles Tavern without DirecTV's authorization.2

On May 9,

2014, DirecTV moved for summary judgment on defendants' liability
under 47 U.S.C. § 605, part of the Cable Communications Policy Act
of 1984.3

The Court granted DirecTV’s motion for partial summary

1

R. Doc. 21.

2

R. Doc. 1.

3

See R. Doc. 18-11 at 11.

judgment.4

DirecTV then timely submitted a Memorandum of Law in

Support of Damages, Costs, and Fees.5

St. Charles Tavern did not

file an opposition. Because DirecTV’s memorandum lacked sufficient
supporting documentation, however, the Court declined to enter an
award

for

damages,

costs,

supplemental briefing.6

or

attorney’s

fees

and

ordered

DirecTV filed a supplemental memorandum

with new supporting documentation on November 21, 2014.7

II. LAW AND DISCUSSION
Section 605(e)(3)(C)(i)(II) of the Cable Communications Policy
Act states that “the party aggrieved may recover an award of
statutory damages for each violation of subsection (a) of this
section involved in the action in a sum of not less than $1,000 or
more than $10,000.”

47 U.S.C. § 605(e)(3)(C)(i)(II).

Further, if

the Court “finds that the violation was committed willfully and for
purposes of direct or indirect commercial advantage or private
financial gain, the court in its discretion may increase the award
of damages . . . by an amount of not more than $100,000 for each
violation of subsection (a).”

47 U.S.C. § 605(e)(3)(C)(ii).

Lastly, section 605(e)(3)(B)(iii) provides that the Court “shall

4

R. Doc. 21.

5

R. Doc. 24.

6

R. Doc. 25.

7

R. Doc. 26. Two weeks later, DirecTV refiled the same
memorandum, attached to a renewed Motion for Damages,
Costs, and Fees. R. Doc. 27. This Order addresses
both documents.
2

direct the recovery of full costs, including awarding reasonable
attorney’s fees to an aggrieved party who prevails.”
605(e)(3)(B)(iii).
damages,8

47 U.S.C. §

Here, DirecTV asks for $6,395.58 in statutory

$19,186.74

in

damages,9

enhanced

and

$7,018.30

in

attorney’s fees and costs,10 for a total of $32,600.62.
A. Statutory Damages
Courts have employed several different methods for calculating
statutory damages for violations of section 605.

See Joe Hand

Promotions, Inc. v. Bonvillain, No. 13-4912, 2013 WL 5935208, at *2
(E.D. La. Nov. 5, 2013).

Some courts have held defendants liable

for a “flat sum of damages”; others have calculated damages “based
on the number of patrons in the establishment at the time of the
violation”;

and

still

others

have

imposed

“the

cost

of

the

appropriate licensing fee proportional to the size of the business
had the business legally aired the program.”
omitted).

Each

method

“provides

determining a ‘just’ amount.”

Id.

a

Id. (citations

different

approach

to

In the final analysis, courts

are to award an amount of damages that “balance[s] the financial
harm suffered by the plaintiff with the financial burden on the
defendants of a hefty damages award” and also takes into account
the deterrent purposes of the statute.

Joe Hand Promotions, Inc.

v. Trenchard, No. 3:12cv1099, 2014 WL 854537, at *3 (D. Conn. March

8

R. Doc. 26 at 4.

9

Id. at 9.

10

Id. at 16.
3

3, 2014); see Joe Hand Promotions, Inc. v. Guillory, No. 14-00970,
2014 WL 4678962, at *2 (W.D. La. Sept. 18, 2014) (considering the
need to deter similar conduct in the future as a factor relevant to
setting statutory damages).
While there is no bright line rule dictating a single method
for calculating damages under section 605(e)(3)(C)(i)(II), courts
within this and other jurisdictions most often use the plaintiff’s
cable licensing fee as a benchmark for determining an appropriate
damages award.

See, e.g., Joe Hand Promotions, Inc. v. Ashby,

No.13-4747, 2014 WL 1330027, at *5 (E.D. La. April 2, 2014)
(awarding three times the licensing fee as statutory damages),
vacated on other grounds by Joe Hand Promotions, Inc. v. Ashby, No.
13-4747, 2014 WL 1652511 (E.D. La. April 24, 2014); Bonvillain,
2013 WL 5935208, at *2 (awarding approximately two times the
licensing fee as statutory damages); J&J Sports Prods. Inc., v.
Wing Bistro LLC, No. 4:13cv31, 2013 WL 6834645, at *7 (E.D. Va.
Dec. 19, 2013) (awarding four times the licensing fee as statutory
damages).
DirecTV contends that defendants’ unlawful exhibition of
DirecTV’s programming in St. Charles Tavern caused DirecTV to
suffer actual losses of $6,395.58, which DirecTV seeks as statutory
damages.11

DirecTV reaches this sum by calculating the cost

defendants would have paid for a commercial account beginning on
December 12, 2010, the date defendants’ residential account began,

11

R. Doc. 26 at 4.
4

through September 10, 2012, the date DirecTV cancelled defendants’
service.12

DirecTV’s

supporting

documentation

includes

a

spreadsheet that shows the price difference between a residential
and a commercial account for each month between December 2010 to
September 2012.13
On summary judgment, DirecTV proved only one violation of
section

605:

defendants

displayed

DirecTV

programming

in

St.

Charles Tavern on June 16, 2012.14 Thus, an award representing what
defendants would have paid for nearly 22 months of commercial
service is inappropriate. To accomplish the deterrent goals of the
statute, DirecTV’s losses for the most recent year are a more
appropriate benchmark.

According to DirecTV’s spreadsheet, the

total amount of loss suffered by DirecTV between September 2011 and
August 2012 is $2,740.88.

Applying a 2.0 multiplier to this

amount, the Court awards DirecTV $5,481.76 in statutory damages.
B. Enhanced Damages
Courts

often

calculate

enhanced

damages

under

section

605(e)(3)(C)(ii) by applying a multiplier to the amount awarded for
statutory damages.

See, e.g., Ashby, 2014 WL 1330027, at *6

(awarding double the amount of statutory damages as enhanced
damages); Bonvillain, 2013 WL 5935208, at *3 (same). Here, DirecTV
asks the court to apply a 3.0 multiplier.

Balancing the deterrent

12

R. Doc. 26 at 4-5; R. Doc. 26-1 at 2-3.

13

R. Doc. 26-1 at 2-3.

14

R. Doc. 21 at 8.
5

goals of the statute and “the financial harm suffered by [DirecTV]”
against “the financial burden on the defendants of a hefty damages
award,”

the

Court

appropriate.
multiplier,

determines

that

a

2.0

multiplier

Trenchard, 2014 WL 854537, at *3.
the

Court

awards

DirecTV

is

more

Applying that

$10,963.52

in

enhanced

damages.
C. Attorney’s Fees and Costs
Section 605 requires the Court to “direct the recovery of full
costs, including . . . reasonable attorney’s fees to an aggrieved
party who prevails.”

47 U.S.C. § 605(e)(3)(B)(iii).

In assessing the reasonableness of attorney’s fees, the Court
must first determine the "lodestar" by multiplying the reasonable
hourly rate for each participating attorney and the reasonable
number of hours expended by each participating attorney.

See

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Migis v. Pearle
Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998).
applicant bears the burden of proof on this issue.

The fee

See Riley v.

City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996).
1. Reasonable Hourly Rates
DirecTV submits the affidavit of its counsel, Julie Cohen
Lonstein, a partner at Lonstein Law Office, as well as an itemized
billing statement, as evidence of the attorney's fees and costs it
has incurred.15

These documents indicate that three experienced

attorneys worked on this case: Julie Lonstein with 20 years

15

R. Doc. 24-1.
6

experience, partner Wayne D. Lonstein with 25 years experience, and
associate Dawn Conklin with 17 years experience.
$6,563.30 in attorney’s fees.

DirecTV seeks

This request includes 1.2 hours of

partner time at $350/hour, 22.43 hours of associate time at
$250/hour, and 5.64 hours of paralegal or legal assistant time at
$95.00/hour.
Having reviewed the most recent case law in this district, the
Court finds that the requested hourly rates are reasonable.

This

Court recently sanctioned similar hourly rates for attorneys with
similar years of experience. See Offshore Marine Contractors, Inc.
v. Palm Energy Offshore, LLC, No. CIV.A. 10-4151, 2014 WL 5039670,
at *8 (E.D. La. Sept. 25, 2014) (approving

hourly rates of

$325/hour for an attorney with 19 years experience, $275/hour for
an attorney with 7 years experience, and $225/hour for an attorney
with 4 years experience).

DirecTV's requested rates are also in

line with rates approved by other courts in this district in recent
years.
2001

WL

See, e.g., Constr. South, Inc. v. Jenkins, No. 11-1201,
3882271,

at

*2

(E.D.

La.

July

29,

2011)

(approving

$350/hour for partners with 30 and 36 years experience); Gulf Coast
Facilities Mgmt, L.L.C. v. BG LNG Servs., L.L.C., Civ. A. No. 093822, 2010 WL 2773208, at *4-5 (E.D. La. July 13, 2010) (awarding
$300.00/hour to attorneys with 17 years experience and $180.00/hour
and $135.00/hour to attorneys with seven years and two years
experience); Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696,
701-02 (E.D. La. 2009) (awarding $300/hour for partners, $225/hour

7

for

associates,

and

$75/hour

for

paralegals).

Given

this

precedent, the Court finds that hourly rates of $350/hour for
partners, $250/hour for associates, and $95/hour for paralegals or
legal assistants are reasonable.
2. Reasonable Number of Hours
The Court must next determine whether the number of hours that
counsel expended on the litigation was reasonable.

Generally, the

Court “should exclude all time that is excessive, duplicative, or
inadequately documented.”

Jimenez v. Wood Cnty., 621 F.3d 372,

379–80 (5th Cir. 2010) (internal citations omitted).

Attorneys

must exercise "billing judgment" by "writing off unproductive,
excessive, or redundant hours" when seeking fee awards.

Walker v.

U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996).
When billing judgment is lacking, the court must exclude from the
lodestar calculation the hours that were not reasonably expended.
See id.
The Court has reviewed line by line the billing statement
submitted on behalf of DirecTV’s counsel and finds the hours
expended to be reasonable.

The billing statement reflects that

DirecTV’s counsel, inter alia, drafted the initial complaint,
prepared

discovery

requests,

and

drafted

various

motions

and

supporting documentation. Therefore, the Court approves the number
of hours billed and will award attorney’s fees for 1.2 hours of
partner time, 22.43 hours of associate time, and 5.64 hours of
paralegal or legal assistant time.

8

Multiplying the approved hours

by the reduced rates listed above, the Court thus awards DirecTV
$6,563.30 in attorney’s fees.
3. Costs
The Cable Communications Policy Act directs the Court to
award

full

costs

605(e)(3)(B)(iii).

to

the

prevailing

party.

47

U.S.C.

§

Section 1920 of Title 28 of the United States

Code provides that a prevailing party may recover the following
costs:
(1)
(2)
(3)
(4)
(5)
(6)

Fees of the clerk and marshal;
Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and the costs of making copies
of any materials where the copies are necessarily
obtained for use in the case;
Docket fees under section 1923 of this title;
Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of
this title.

28 U.S.C. § 1920(1)-(6).

A court may award only those costs

specified in Section 1920 unless there is explicit statutory or
contractual authority to the contrary. Mota v. Univ. of Tex. Hous.
Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001).
DirecTV seeks costs in the amount of $455.00, reflecting its
counsel’s payment of this court’s filing fees, as well as a pro hac
vice fee.

These costs are clearly recoverable.

1920; Mota, 261 F. 3d at 529.

9

See 28 U.S.C. §

III. CONCLUSION
For the foregoing reasons, the Court awards DirecTV a total of
$23,463.58 in statutory damages, attorney’s fees, and costs.

New Orleans, Louisiana, this 3rd day of February, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

10