Capitol Records, LLC v. Redigi Inc.

Filing 329

DECLARATION of Richard S. Mandel in Support re: 319 MOTION for Attorney Fees .. Document filed by Capitol Christian Music Group, Inc., Capitol Records, LLC, Virgin Records IR Holdings, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B).(Mandel, Richard)

FUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------- X
:
CAPITOL RECORDS, LLC, CAPITOL
CHRISTIAN MUSIC GROUP, INC. and
:
VIRGIN RECORDS IR HOLDINGS, INC.,
Plaintiffs,

:

12 Civ. 0095 (RJS)

DECLARATION OF
RICHARD S. MANDEL, ESQ.

:

-againstREDIGI INC., JOHN OSSENMACHER and
LARRY RUDOLPH a/k/a LAWRENCE S.
ROGEL,

:
:
:

Defendants.
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RICHARD S. MANDEL, pursuant to 28 U.S.C. § 1746, declares as follows:
1.

I am a shareholder in the firm of Cowan, Liebowitz & Latman, P.C., which

represents Plaintiffs in this action. Pursuant to this Court’s order of April 7, 2022 (ECF No. 328)
granting in part Plaintiffs’ motion for attorneys’ fees, I submit this declaration to provide a
detailed accounting in support of Plaintiffs’ request for an award of attorneys’ fees in the amount
of $514,421.53. Those fees include $500,000 in connection with the District Court action, the
agreed cap on such a fee award pursuant to paragraph 6 of the final judgment in this case, plus
$14,421.53 reflecting 15% of the fees incurred by Plaintiffs in connection with Defendants’
appeal to the Second Circuit, as allowed by the Court’s April 7, 2022 order. I have personal
knowledge of the facts set forth herein.
The Timekeepers and Billing Rates
2.

Attached hereto as Exhibit A are invoices submitted by my firm and paid by

Plaintiffs in this litigation for all relevant time periods covered by the Court’s fee award. The
invoices include detailed descriptions and time entries for all attorneys and paralegals who
worked on the case. Entries for work not included as part of the fees application have been

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redacted (except where necessary to provide context for the full amount of hours included in a
day’s time entry combining recoverable and non-recoverable fees without specific time
divisions).
3.

The bulk of the work reflected on the invoices was performed by my partner,

Jonathan Z. King, and myself. I am a 1985 graduate of New York University Law School and
had nearly thirty years of experience as a litigator focusing on intellectual property, including
copyright law, as of the commencement of this case. My partner, Mr. King, is a 1991 graduate
of Harvard Law School, with more than twenty years of experience as a litigator in the
intellectual property field, including copyright, as of the time of this case. My billing rate was
$500/hour during the summary judgment stage of the case, varied between $510/hour and
$540/hour during the post-summary judgment stage of the case ($510/hour for 2013, $520/hour
for 2014 and 2015, and $540/hour for 2016) and was $550/hour during the appeal. Mr. King’s
billing rate was $475/hour during the summary judgment stage of the case, varied between
$490/hour and $530/hour during the post-summary judgment stage of the case ($490/hour for
2013, $495/hour for 2014 and 2015, and $530/hour for 2016) and was $545/hour during the
appeal.
4.

We also received substantial assistance during the case from Thomas Kjellberg, a

counsel at our firm; Scott Ceresia, a former associate; and Nart-Anong Chinda, a former
paralegal. Mr. Kjellberg is a 1998 graduate of Fordham Law School with extensive experience
in copyright law. His billing rate was $405/hour during the summary judgment phase of the case
during which he provided most of his assistance, varied between $415/hour and $425/hour
during the post-summary judgment phase in which he billed a little over two hours and was
$435/hour during the appeal for which he billed under an hour of time. Mr. Ceresia is a 2008

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graduate of New York University Law School who is now in-house counsel at Google. His
billing rate was $260/hour during the summary judgment stage of the case and varied between
$270/hour and $310/hour in the post-summary judgment stage of the case ($270/hour for 2013,
$285/hour for 2014 and $310/hour for 2016, the three years in which he assisted). Ms. Chinda
worked as a paralegal at our firm for several years and her billing rate was $215/hour during the
summary judgment phase of the case, varied between $220/hour and $225/hour during the postsummary judgment phase of the case ($220/hour for 2013-2015 and $225/hour for 2016) and
was $230/hour during the appeal.
5.

Several other attorneys and paralegals provided minimal assistance during the

post-summary judgment phase of the case. Those included two corporate lawyers, Simon
Gerson and Robert Giordanella, who billed a combined total of just over 6 hours in advising on
corporate issues implicated by the case and its potential settlement; a patent lawyer, Mark
Montague who billed fewer than 5 hours advising on patent issues implicated by the case and its
potential settlement; two associates, Bridget Crawford and Ryan Ghiselli, who billed under an
hour and a little over 2 hours on the case respectively; and three paralegals, Ignacio Duran, Sarah
Guldan and Sandy Lubin, who billed a little over an hour, a little over eleven hours and two
hours respectively. The total fees from all these individuals combined amounted to a little over
$11,000. As set forth in detail below, even if these amounts were to be discounted entirely from
the current fees’ application, the amount of fees incurred in the District Court for the phases
covered by the Court’s April 7, 2022 order would easily exceed the $500,000 cap contained in
the final judgment for a potential fee award. In addition, another paralegal, George Diaz billed
an hour and a half of time during the appeal at a rate of $230/hour.

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Summary Judgment Motion
6.

The Court’s April 7, 2022 order awards fees in particular percentages for six

different aspects of work performed in connection with the summary judgment phase of the
litigation. Because our bills during the summary judgment stage of the case combined multiple
tasks performed in a particular day as part of the same time entry, it is not possible to derive
precise divisions of time spent on specific documents for all time entries. However, as detailed
below, based on the descriptions provided, we have used conservative estimates for those entries
that combine multiple tasks to derive reasonable summaries for fees incurred on each of the
relevant parts of the summary judgment motion covered by the Court’s order.
Summary Judgment Moving Brief
7.

The Court awarded Plaintiffs 22% of their fees incurred in connection with their

summary judgment moving brief (ECF No. 49). Based on review of the time entries shown in
the attached Exhibit A, we have derived the following totals for myself, Jonathan King, Thomas
Kjellberg and Scott Ceresia for work performed on the summary judgment moving brief:
Timekeeper
Richard Mandel
Jonathan King
Thomas Kjellberg
Scott Ceresia
TOTAL
AWARD

Hours
30.0 1
12.5 2
14.2 3
4.7 4

Rate

Fees

500
475
405
260

$15,000.00
5,937.50
5,751.00
1,222.00
$27,910.50
$6,140.31

1

%

22%

Hours include full time entries listed on 8/6/12 invoice for 7/7 and 7/10, plus: 1.0 on
7/6, 4.2 on 7/9, 5.5 on 7/11, 3.5 on 7/12, 3.0 on 7/13, 4.0 on 7/15, 1.0 on 7/18 and 1.0 on 7/20.
2
Hours include full time entries listed on 8/6/12 invoice for 7/14, 7/15 and 7/16, plus: 2.0
on 7/19.
3
Hours include all time entries listed on 8/6/12 invoice for 7/9, 7/10, 7/16 and 7/18.
4
Hours include full time entries listed on 8/6/12 invoice for 7/14, 7/15 and 7/16, plus 2.0
on 7/19.

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Based on the above, the total amount of fees incurred for the moving summary judgment brief
was $27,910.50, and 22% of that amount is $6,140.31.
Summary Judgment Reply Brief
8.

The Court awarded Plaintiffs 60% of their fees incurred in connection with their

summary judgment reply brief (ECF No. 87). Based on review of the time entries shown in the
attached Exhibit A, we have derived the following totals for myself and Mr. King for work
performed on the summary judgment reply brief:
Timekeeper
Richard Mandel
Jonathan King
Nart-Anong Chinda
TOTAL
AWARD

Hours
6.8 5
17.0 6
5.0 7

Rate

Fees

500
475
215

$3,400.00
8,075.00
1,075.00
$12,550.00
$7,530.00

%

60%

Based on the above, the total amount of fees incurred for the summary judgment reply brief was
$12,550, and 60% of that amount is $7,530.00.
Summary Judgment Opposition Brief
9.

The Court awarded Plaintiffs 33% of their fees incurred in connection with their

summary judgment opposition brief (ECF No. 76). Based on review of the time entries shown in
the attached Exhibit A, we have derived the following totals for myself and Mr. King for work
performed on the summary judgment opposition brief:

5

Hours include full time entries listed on 9/11/12 invoice for 8/16 and 8/24, plus: 4.4 on
8/20 and .5 on 8/23.
6
Hours include full time entries listed on 9/11/12 invoice for 8/16, 8/17 and 8/20.
7
Hours include full time entries listed on 9/11/12 invoice for 8/22 and 8/23, plus 2.5 on
8/24.

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Timekeeper
Richard Mandel
Jonathan King
Nart-Anong Chinda
TOTAL
AWARD

Hours
17.8 8
35.3 9
7.6 10

Rate

Fees

500
475
215

$8,900.00
16,767.50
1,634.00
$27,301.50
$9,009.50

%

33%

Based on the above, the total amount of fees incurred for the summary judgment opposition brief
was $27,301.50, and 33% of that amount is $9,009.50.
Rule 56.1 Counterstatement of Facts
10.

The Court awarded Plaintiffs 13% of their fees incurred in connection with their

Rule 56.1 counterstatement of facts (ECF No. 78). Based on review of the time entries shown in
the attached Exhibit A, we have derived the following totals for myself and Mr. King for work
performed on the counterstatement of facts:
Timekeeper
Richard Mandel
Jonathan King
Nart-Anong Chinda
TOTAL
AWARD

Hours
12.0 11
5.0 12
3.0 13

Rate

Fees

500
475
215

$6,000.00
2,375.00
645.00
$9,020.00
$1,172.60

%

13%

Based on the above, the total amount of fees incurred for the counterstatement of facts was
$9,020, and 13% of that amount is $1,172.60.

8

Hours include 1.5 on 7/31, 3.0 on 8/2, 3.0 on 8/3, .3 on 8/6, 3.5 on 8/7, 3.0 on 8/8, 1.5
on 8/9 and 2.0 on 8/10.
9
Hours include 8.0 on 7/26 (second entry), 3.0 on 7/27, 6.5 on 7/30, 6.0 on 8/1, 3.0 on
8/6, 3.5 on 8/7, 2.5 on 8/8, .8 on 8/9, 1.0 on 8/10, .5 on 8/13 and .5 on 8/14.
10
Hours include full time entries listed on 9/11/12 bill for 8/8, 8/9 (both entries) and
8/13.
11
Hours include 2.5 on 7/27, 5.5 on 7/30, .5 on 7/31, 1.0 on 8/8, 1.5 on 8/9 and 1.0 on
8/10.
12
Hours include .8 on 8/7, 1.7 on 8/8, 1.0 on 8/9, 1.0 on 8/10 and .5 on 8/14.
13
Hours include 3.0 on 8/14.

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Engagement of Doug Jacobson
11.

The Court awarded Plaintiffs the entirety of costs associated with engaging Doug

Jacobson as an expert to refute ReDigi’s data migration theory. Attached hereto as Exhibit B is a
copy of the invoice issued by Mr. Jacobson and paid by Plaintiffs for his work in this matter. In
addition, based on review of the time entries shown in the attached Exhibit A, we have derived
the following totals for myself and Mr. King for work performed in connection with the Doug
Jacobson declaration:
Timekeeper
Richard Mandel
Jonathan King
Doug Jacobson
TOTAL
AWARD

Hours
12.5 14
4.0 15

Rate

Fees

500
475

$6,250.00
1,900.00
3,631.79
$11,781.79
$11,781.79

%

100%

Based on the above, the total amount of incurred costs associated with engaging Doug Jacobson
to refute ReDigi’s data migration theory was $11,781.79.
Oral Argument
12.

The Court awarded Plaintiffs 25% of their fees incurred in preparing for and

conducting oral argument on the summary judgment motions. Based on review of the time
entries shown in the attached Exhibit A, we have derived the following totals for myself and Mr.
King for work performed in preparing for and conducting oral argument:

14

Hours include the full time entry listed on the 9/11/12 invoice for 8/19, plus: 3.0 on
7/30, 3.5 on 7/31, 4.0 on 8/1, 1.3 on 8/2, .5 on 8/9, .5 on 8/17 and .5 on 8/20.
15
Hours include the full time entries listed on the 9/11/12 invoice for 8/19 and 8/27, plus:
.5 on 7/26, .8 on 7/30, 1.0 on 8/1, .3 on 8/6, .8 on 8/19 and .2 on 8/20

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Timekeeper

Hours
30.9 16
5.1 17

Richard Mandel
Jonathan King
TOTAL
AWARD

Rate

Fees

%

500
475

$15,450.00
2,422.50
$17,872.50
$4,468.13

25%

Based on the above, the total amount of fees incurred for preparing for and conducting oral
argument on the summary judgment motions was $17,872.50, and 25% of that amount is
$4,468.13.
Summary of Above Fees For Summary Judgment Stage
13.

Adding up the above amounts permitted by the Court’s order results in a total fees

award for the summary judgment stage of $40,102.33, as summarized below:
STAGE

FEES AWARD

Summary Judgment Moving Brief
Summary Judgment Reply Brief
Summary Judgment Opposition Brief
Rule 56.1 Counterstatement of Facts
Engagement of Doug Jacobson
Oral Argument
TOTAL

$6,140.31
7,530.00
9,009.50
1,172.60
11,781.79
4,468.13
$40,102.33

Post-Summary Judgment Stage
14.

The Court awarded Plaintiffs all fees incurred for litigating the case in the District

Court after the Court’s March 30, 2013 summary judgment opinion. Between the time of the
Court’s summary judgment ruling and the June 2016 entry of final judgment in the District
Court, Plaintiffs incurred total fees of $553,008. Details of those fees are contained in the
invoices between May 2013 and June 2016 included within Exhibit A hereto, and the monthly
16

Hours include the full time entries listed on the 10/8/12 invoice between 9/13 and 9/28,
the full time entries listed on the 11/6/12 invoice for 10/1, 10/2 and 10/5, plus: 3.3 on 10/3 and
3.0 on 10/4.
17
Hours include the full time entries listed on the 10/8/12 invoice for 9/25 and 9/28, and
full time entries listed on the 11/6/12 invoice.

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amounts of fees incurred are summarized below:
Month
May 2013
June 2013
July 2013
Aug 2013
Sept 2013
Oct 2013
Nov 2013
Dec 2013
Jan 2014
Feb 2014
Mar 2014
Apr 2014
July 2014
Oct 2014
Nov 2014
Dec 2014
Jan 2015
Feb 2015
Mar 2015
Apr 2015
May 2015
June 2015
July 2015
Aug 2015
Sept 2015
Oct 2015
Nov 2015
Dec 2015
Jan 2016
Feb 2016
Mar 2016
Apr 2016
May 2016
June 2016
TOTAL
AWARD

Fees
$12,933.00
22,223.50
21,253.95
36,256.00
19,235.00
29,003.00
26,882.50
43,550.50
20,338.00
5,352.50
5,172.50
762.50
572.00
18,350.50
16,768.00
8,264.00
23,800.50
599.00
1,349.00
148.50
299.50
208.00
2993.50
416.00
460.50
5,103.00
9,748.00
1,954.44
1,508.00
5,076.00
55,853.20
139,024.00
17,387.50
162.00
$553,008.00
$553,008.00

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%

100%

Summary of Permitted District Court Fees
15.

Combining the $40,102.33 in fees permitted by the Court’s order for the summary

judgment stage of the case with the $553,008 in fees permitted by the Court’s order for postsummary judgment proceedings in the District Court yields a total permitted recovery of
$593,110.33 for litigation before the District Court. Because the final judgment in this case caps
the total potential attorneys’ fees recovery at $500,000, Plaintiffs seek an award for $500,000 in
fees incurred in litigating before the District Court, the maximum amount permitted by the
stipulated final judgment in the case.
Fees on Appeal
16.

The Court awarded Plaintiffs 15% of their fees incurred on appeal. Plaintiffs

incurred total fees attributable to the appeal of $96,143.50, as reflected on the non-redacted
entries contained on the invoices included within Exhibit A hereto that were issued between
February 2017 and September 2017. Fifteen percent of those fees amounts to $14,421.53.
Details of the hours billed by the various timekeepers in connection with the appeal are
summarized below:
Timekeeper
Richard Mandel
Jonathan King
George Diaz
Nart-Anong Chinda
Thomas Kjellberg
TOTAL
AWARD

Hours
114.3
56.7
1.5
7.7
.6

Rate
550
545
230
230
435

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Fees
$62,865.00
30,901.50
345.00
1,771.00
261.00
$96,143.50
$14,421.53

%

15%

Conclusion
17.

In sum, Plaintiffs request an award of $514,421.53 reflecting the maximum

permitted $500,000 fee award for fees incurred in litigating the case before the District Court and
an additional $14,421.53 representing 15% of the fees incurred on appeal.
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE
AND CORRECT. EXECUTED ON MAY 6, 2022 AT NEW YORK, NEW YORK.

___________________________________
RICHARD S. MANDEL

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CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2022, I caused a true and correct copy of the foregoing
Declaration of Richard S. Mandel, Esq. to be served on Defendants John Ossenmacher and
Lawrence Rogel by first class mail, postage prepaid, addressed as follows:
John Ossenmacher
102 NE 2nd Street, No. 261
Boca Raton, FL 33432
Lawrence Rogel
115 Stedman St.
Brookline, MA 02446
__________________
Richard S. Mandel