Beastie Boys et al v. Monster Energy Corporation

Filing 216

OPINION & ORDER: For the foregoing reasons, the Court hereby awards the Beastie Boys attorneys' fees in the amount of $667,849.14. The Clerk of Court is directed to terminate the motion pending at docket number 188, and to close this case. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 6/15/2015) (kl) Modified on 6/15/2015 (kl).

USDC SDNY

DOCUMENT

DLECTRONICALLY FILED

I-INITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC #:

---------x

DATE FILED: Ô / l6

BEASTIE BOYS, et al.,
12 Civ.6065 (PAE)

Plaintiffs,
OPINION & ORDER
V

MONSTER ENERGY COMPANY,
Defendant.

X
PAUL A. ENGELMAYER, District Judge:
This decision resolves a post-trial application for attorneys' fees and costs. Between May

27 and June 5, 2014, the Court presided over a jury trial in which the hip-hop group the Beastie
Boys and affiliated plaintifßl (collectively, the "Beastie Boys") pursued claims against Monster
Energy Company (o'Monster"), the beverage company. The jury found for the Beastie Boys on

all claims-for copyright infringement in violation of the Copyright Act,17 U.S.C. $
and false endorsement in violation of the Lanham

Act,

15 U.S.C. $ 1051 et

l0I

et seq.,

seq.-and awarded

a

total of $1.7 million in damages. On December 4,2014, the Court denied Monster's post-trial
motion for judgment as a matter of law.

Now pending is the Beastie Boys' motion for an award of fees and costs under $ 505 of
the Copyright Act and $ 1117 of the Lanham

Act. For the reasons that follow, the Court finds

that the Beastie Boys are entitled to recover fees in connection with Monster's willful copyright

I The Beastie Boys are a New York partnership. The other plaintiffs are Michael Diamond
("Mike-D"), a Beastie Boys member; Adam Horovitz ("Ad-Rock"), a Beastie Boys member;
Dechen Yauch, executrix of the Estate of Adam Yauch ("MCA"), a late Beastie Boys member;
and Brooklyn Dust Music, a distinct entity through which the Beastie Boys did business.

infringement, although not in connection with Monster's violation of the Lanham Act.
Considering all relevant circumstances, the Court finds that an award of $667,849.14 in

fees-

substantially less than the award of $2,385,175.50 sought by the Beastie Boys-is warranted.
The Court also holds that the Beastie Boys are entitled to costs, but under Local Rule 54.1 leaves

to the Clerk of Court the tabulation, in the first instance, of such costs.
This decision proceeds in four parts. First, the Court recaps the pertinent background

of

this case. Second, the Court addresses the Beastie Boys' claims of entitlement to fees under the
Copyright Act and the Lanham Act. Third, the Court explains the amount of its fee award.
Fourth, the Court addresses the Beastie Boys' application for costs.

I.

Background
The Court assumes familiarity with this case's history, including the Court's December 4,

2014 Opinion denying Monster's post-trial motions. See Dkt. 182, reported at Beastie Boys v.
Monster Energt Co., No. 12 Civ.6065 (PAE),2014 WL 6845860 (S.D.N.Y. Dec. 4,2014)
[hereinafter Beastie Boysl. The history most relevant to the pending fee application follows.

A.

Factual Background

On May 5,2012, Monster hosted a promotional event called the "Ruckus in the Rockies,"

which consisted of a snowboarding competition and an after-party. See Trial Transcript ("Tr.")

t092-93. The performers at the after-party included ZachSciacca,
records and performs under the name

a disc

jockey ("DJ") who

"Z-Trip." Tr. 356,954,964-65, 1096-99. In 201 l, Z-Trip

had entered into an agreement with the Beastie Boys to create a remix of some of their songs to

promote the group's then-upcoming album, "Hot Sauce Committee Part

II." Tr.194-96,278-

79,356-57, 954-58, 969. The remix was entitled "Beastie Boys All-Access Megamix" (the

2

"Megamix").

See

Tr. 429-30. Under the agreement, Z-Trip did not obtain any rights to the

underlying Beastie Boys songs

.

Se

e Tr. 27 8-7 9, 3 06, 358-5 9, 97 3, 97 5-7 6.

Soon after the 2012 Ruckus in the Rockies, Monster's regional marketing director,

Nelson Phillips, oversaw the creation of a recap video with highlights from the event. Tr. 1114-

16. The video promotes Monster's brand and its energy drinks. For the video's soundtrack,
Phillips used excerpts of the Megamix that include portions of five Beastie Boys songs; these
songs are the background music to approximately 80Yo of the four-minute

video. Tr. 11I4-I5.

The video also contains text referring to the band and one of its three members, Adam Yauch,

a/Wa"MCA," who had died days before the Ruckus event. SeePX211. Monster did not obtain,
and never attempted to obtain, permission from the Beastie Boys or their management to use the

Beastie Boys' music or names in the promotional video. See, e.g.,Tr.

l2l-22,256,875-76,

1115-16, ll73,1316-17. Phillips later testified that he believed thatZ-Trip had provided
legally sufficient authorization for him to use the Megamix, including the underlying Beastie

Boys' songs, in the video. Tr. 1115-16, 1170. Phillips testified that Z-Trip had conveyed this
authorization to him orally during the after-party, see Tr. 369-70, 456-57,496, and again
through a short email exchange in which Phillips sent the video to Z-Trip for 'oapprov[al]," and

Z-Trip responded, ooDope!," see Tr. 1119,

1

l2l.

Z-Trip firmly denied giving any such

authorization, or telling anyone at Monster that he had any rights to the Beastie Boys' music.
See

Tr.369-70, 456-57, 496.
On May 9,2012, Monster posted the promotional video on its website, YouTube channel,

and Facebook page. See

Tr.307, 53I, l1l9-21, 1124-26,1266. Monster also sent press

releases to various snowboardingmagazines and websites to promote the

video. Tr.1126-29.

The following month, Monster received a letter from counsel for the Beastie Boys, which stated

-1

that Monster did not have permission to use the Beastie Boys' music in the video.

Tr.ll29,

1269. Phillips then removed the video from Monster's YouTube channel. Tr. 1130. He later
edited the video, to replace the music and remove the references to the Beastie Boys, and then
reposted

it. Tr. 1130-31,

1277. As of August 2012, the video had been viewed I3,34I times.

Tr.1275-76.

B.

Procedural History

On August 8,2012, the Beastie Boys filed suit against Monster in this District. Dkt.

l.

The Complaint brought claims of copyright infringement in violation of the Copyright Act and
false endorsement in violation of the Lanham Act.
On October 4,2012, Monster filed an Answer. Dkt. 5. Monster denied almost every

factual allegation in the Complaint or stated that it lacked knowledge sufficient to enable it to
form a belief as to its truth. Monster also raised 12 affirmative defenses. Several sought to
deflect responsibility for any infringement onto Z-Trip. In this vein, the Answer asserted that

(1) Monster had received permission from Z-Trip to use the Beastie Boys' music; (2) in using the
band's music in its video, Monster had reasonably relied on Z-Trip's apparent authority as an
agent for the Beastie Boys; and (3) any injury to the Beastie Boys was due not to Monster but
instead to a breach of contract or fraud by

Z-Trip. Id. at 13.

The following day, October 5,2012, Monster brought a third-party Complaint againstZ-

Trip. Dkt. 9. Monster alleged thatZ-Trip had caused any damage to the Beastie Boys for which
Monster might be found liable by

(l)

contracting with Monster to allow it to make unrestricted

use of the Megamix, and (2) fraudulently leading Monster to believe that Z-Trip had authority to

license the Beastie Boys' recordings contained in the Megamix. Id.nn 12-23,28-33.

4

On August 1,2013, after discovery,Z-Trip moved for summary judgment on Monster's

claims against him. Dkt. 36-38. The Beastie Boys filed a memorandum supporting Z-Trip's

motion. Dkt.39.
On November 4,2013, the Court granted summary judgment in favor

of Monster's third-party claims.

,Seø

of Z-Trip on both

Dkt. 5I, reported at Beastie Boys v. Monster Energy Co.,

983 F. Supp. 2d 338 (S.D.N.Y. 2013) [hereinafter Z-Trip]. As to the breach of contract claim,
oosparse,"
and "fleeting" communications between
the Court held that, based on the informal,

Phillips and Z-Trip,

ooa

reasonable

juror could not find an offer, sufficiently clear acceptance, or

consideration . . . let alone all three," and thus no contract between Monster and Z-Trip could be

found. Id. at348,350. And even assuming that Phillips andZ-Trip had entered into some form
of contract, it would have taken

ooan

heroic effort of explication" and "flout[ed] common sense"

to interpret the contract to include a license to use the Beastie Boys' music in the video. Id. at

351. As to Monster's fraud claim, the Court found the record devoid of evidence thatZ-Triphad
acted

with fraudulent intent or that Monster had reasonably relied on Z-Trip's representations.

Id. at351-53. The Court stated that it had been reckless for Monster "to delegate to Phillips
alone the responsibility by which Monster was to acquire, for commercial exploitation, various

intellectual [property] rights presumptively belonging to an iconic band." Id. at 352. "Monster's
reliance on Phillips to protect its interest in these matters was perforce unreasonable." Id. at 353.

Trial on the Beastie Boys' claims against Monster commenced on May 27,2014. At the
final pretrial conference on }i4ay 22,2014, Monster, for the first time, conceded liability
copyright infringement claims.

as to the

SeeDkll4l, at48. Accordingly, the issues litigated attrial

were liability for the Lanham Act claim, and damages as to both the Copyright and Lanham Act

5

claims. During the eight-day trial, the parties called a dozen witnesses, including four experts.
See

Dkt. 149-63.
On June 5,2014, the jury retumed its verdict. See Dkt.

claims, the jury found that each of Monster's
awarded a total of

$ 1.2

actual damages. Id.

l0

I47. Onthe Copyright Act

acts of infringement had been

million in statutory damages and, alternatively,

at2.

a

The

and

total of $ I million in

On the Lanham Act claim, the jury found Monster liable, found that

had engaged in intentional deception, and awarded the Beastie Boys $500,000

4.

willful

it

in damages. Id.

at

jury also found that Monster had acted in bad faith in causing the false endorsemerÍ. Id.
On December 4,2014, the Court issued a lengthy decision, denying Monster's post-trial

challenges to the verdict. See Dkt. 182

C.

The Beastie Boys' Motion for Fees and Costs

On January 16,2015, the Beastie Boys moved for an award of attorneys' fees and costs.

Dkt. 188, 189 ("Anderson Decl."), 190 ("Beastie Br."). On March 6,2015, Monster filed its
opposition. Dkt. 205 ("Kahn Decl."), 206 ("Schiano-Strain Decl."), 207 ("Monster Br."). On
March 20,2015, the Beastie Boys submitted a reply. Dkt. 210 ("Beastie Reply Br."),211

("Ganity Decl."). On March 30,2015,the Court heard argument.

II.

The Legal Basis for Beastie Boyso Asserted Entitlement to Fees
The Beastie Boys move for attorneys' fees under both the Copyright Act,17 U.S.C.

$ 505, and the Lanham

Act,

15 U.S.C. $ 1117(a). Because these Acts set different standards

for

fee awards, the Court addresses the Beastie Boys' claim of entitlement to fees under each fee-

shifting provision in turn.

6

A.

Attorneyso Fees Under the Copyright Act

1.

Applicable Legal Standards

of

The Copyright Act provides that "the court in its discretion may allow the recovery

full costs by or against any party other than the United States" and "may also award a reasonable
attorney's fee to the prevailing party as part of the costs." l7 U.S.C. $ 505. Fee awards,
however, are not "automatic" or given "as a matter of course." Fogerty v. Fantasy,

Inc.,5l0

u.s. 517,533 (1994).
Rather, courts award attorneys' fees only where doing so is "faithful to the purposes
the Copyright

of

Act." Matthew Bender & Co. v. W. Pub. Co.,240 F.3d 116,122 (2d Cir. 2001)

(quoting Fogerty,510 U.S. at 534 n.19). The "principal purpose" of the Copyright Act is "to
encourage the origination of creative works by attaching enforceable property rights to them."

Davis v. Blige,505 F.3d 90, 105 (2dCir.2007) (quoting Diamondv. Am-Law Publ'g Corp.,745
F.2d 142,147 (2d Cir. 1984)); see also Twentieth Century Music Corp. v. Aiken, 422U.5.
156 (1975)

l5I,

("The immediate effect of our copyright law is to secure a fair return for an author's

creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the
general public good.").

Under the Copyright Act, "'[t]here is no precise rule or formula' that district courts must

apply in determining whether to award attorney's fees." Zalewski v. Cicero Builder Dev., Inc.,

754F.3d95, 108 (2dCir.2014) (quoting Fogerty,5l0U.S. ar534) (alterationinoriginal).
However,

oothe

Supreme Court has suggested a list of non-exclusive factors that courts may

consider," which are commonly referred to as the "Fogerty factors"; these include

"frivolousness, motivation, objective unreasonableness (both in the factual and in the legal
components of the case) and the need in particular circumstances to advance considerations

7

of

compensation and deterrence." Id. (quoting Fogerty, 510 U.S. at 534). "Of these factors,

'objective reasonableness . . . should be given substantial weight in determining whether an
award of attorneys' fees is warranted."' Id. (quoting Matthew Bender,240 F.3d at 122).

"In an appropriate case," however,'othe presence of other factors might justiff an award
of fees despite a finding that the non-prevailing party's position was objectively reasonable."
Matthew Bender,240 F.3d at I22. Each factor is relevant only insofar as it guides the Court in
resolving, in its discretion, the ultimate inquiry: whether awarding attorneys' fees is consistent

with the purposes of the Copyright Act. See id. (citing Fogerty,510 U.S. at 534 n.19).

2.

Discussion

Considering the Beastie Boys' fee application in light of the principles governing fee
awards under the Copyright Act, the Court's judgment is that, on balance, an award of fees is

consistent with, and would further, the purposes of the

unitary: Although there are arguments favoring

Act. But the analysis is textured, not

a fee award that

ultimately carry the day, there

are also countervailing considerations. These have contributed to the Court's decision to impose
a fee award below that sought by the Beastie

Boys.

See Section

III, infra. The Court's

assessment of the most relevant factors follows.

Objectíve reasonablensss: Monster's conduct and legal positions during and after
and, with one significant exception discussed below, before

trial-were objectively

trial-

reasonable.

As the Court explained in its post-trial opinion, the issues tried with respect to the Copyright Act
claims were difficult and close.
One issue attrial, which affected whether the maximum available statutory damages for
each act of infringement was $30,000 or $150,000, was whether Monster's conduct had been

willful.

See 17 U.S.C. $$

50a(c)(1)-(2). As the Court concluded, "the issue of willfulness was

8

vigorously disputed attrial and certainly could have been resolved for either side." Beastie Boys,

2014WL 6845860, at *13. To be sure, o'there was sufficient circumstantial evidence of reckless
disregard to support the jury's finding" of willfulness, id., but a jury could also have reached the
opposite conclusion. Monster was not unreasonable in contesting willfulness during, and after,

trial. Nor

was Monster unreasonable in its arguments to the

jury

as

to specific factors bearing on

the amount of the statutory damages award, which included'othe deterrent effect of such an
award on Monster and third parties,"

infringement," aîd
I 690-9

I

o'the

oothe

revenue lost by the plaintiffs, if any, as a result of the

conduct and attitude of the parties." Tr. 1613 (jury charge); see alsoTr.

(Monster's summation).

Monster's litigation as to actual copyright damages was also objectively reasonable. The
calculation of actual damages turned on the jury's subjective assessment of the infringing video.

In litigating the cost of an assumed license authorizing Monster to use the Beastie Boys' songs

as

the soundtrack for Monster's promotional video, counsel for each side vigorously advocated as

to the most apt comparator for that unusual video. This inquiry was complicated by the fact that
the Beastie Boys had never licensed their music for traditional product advertisements, Tr. 118-

20,275,864-65, and that the Ruckus video was, by its nature, far from a standard product
promotion. "[T]he quirþ, indeed new-age, nature of the advertising medium in this case, and
the Beastie Boys' extensive licensing history . . . provided fodder for a wide range of potential

valuations." Beastie Boys,20l4 WL 6845860, at *35. The Beastie Boys compared the video to
a

movie trailer, for which the group had received up to $800,000 for a license to use a single

song,s¿¿ PX2I9, at 9, whereas Monster compared the video, inter alia, to Internet

o'webisodes"

produced by a watch company, for which the Beastie Boys had received just a few hundred

dollars per copyright, see PX220,

at2. The jury's verdict

9

indicates that it ultimately accepted a

valuation more in line with those urged by the Beastie Boys. But Monster's decision to
vigorously litigate actual damages, including presenting expert testimony on this point, was
reasonable. Presiding over trial, this Court could not reliably have forecasted, with any level

of

confidence, the jury's actual damages award.

Finally, and relatedly, the Court is not persuaded that the settlement positions Monster
took were unreasonable. Following trial, the Court received briefing as to the settlement process,

with each party contending that the settlement history supported its position on the Beastie Boys'
fee application. To be sure, there is some factual dispute as to Monster's final

offer: The Beastie

Boys' counsel represented that the highest offer had been $250,000, see Anderson Decl. fl 28,
whereas Monster's counsel attested that Monster's final offer had been $650,000, see Kahn Decl.

fl 17. Regardless, viewed in real time and not in hindsight, either figure was defensible. Under
Monster's theory of the case, the Beastie Boys' maximum possible recovery on the Copyright

Act claims was $300,000: Without a finding of willfulness, the statutory damages would have
been capped at $30,000 per infringement. See

l7 U.S.C. $$ 50a(c)(1)-(2). And actual damages

would have been significantly lower than that had the jury accepted Monster's view, and that

of

its expert, as to the most appropriate analogue for the Ruckus video.2
To be sure, the Beastie Boys' final demand of $1.65 million appears prescient in light
the

jury's

$I

.7

of

million verdict. But, particularly given the idiosyncrasies of this controversy,

2

In calculating damages for purposes of settlement, Monster could have reasonably believed that
a Lanham Act violation, even if found, would not result in an award of money damages because
only violations that involve actual consumer confusion or intentional deception permit such an
award. See George BaschCo. v. Blue Coral, 1nc.,968F.2d1532,1537 (2dCir.1992). The jury
found intentional deception, but, as the Court has noted, this finding, like the jury's finding of
willfulness on the Copyright Act claims, was not a foregone conclusion. The evidence was
circumstantial and could be read to support either side's chosen inference. See Beastie Boys,
2014 WL 6845860, at *3 l-32.
10

Monster was not unreasonable in offering either $250,000 or $650,000, or, at an August 2013
settlement conference, in refusing to negotiate until the Beastie Boys demanded'oless than $1

million."

S¿e Anderson

Decl. fl 27.

However, one significant aspect of Monster's approach to litigating the copyright claims
was objectively unreasonable: It refused, until the brink of trial, to concede that it had infringed
the Beastie Boys' copyrights, and

it attempted to shift legal responsibility for any infringement to

Z-Trip. Putting aside the question of whether Monster had acted willfully in trenching on the
Beastie Boys' copyrights, Monster's liability for infringing the 10 copyrights at issue was open
and shut. Monster had taken a host of the Beastie Boys' copyrighted musical compositions and
sound recordings and exploited them, at length, in an extended web advertisement for its

products, without any license to do so. There was no claim that Monster ever had the Beastie

Boys' permission to use these songs, and Monster's anemic pretrial claim (echoing its employee,
Phillips) to have received a legally valid license from Z-Trip to use the group's compositions and
songs in the promotional video was blatantly meritless. The infringement here thus was flagrant.

Yet Monster, strikingly, did not concede liability on the Copyright Act claims until the final
pretrial conference, days before trial. See Dkt. 141, at 48; Anderson Decl., Ex. E; Garrity Decl.
Exs.

A-8.
This refusal positioned the parties needlessly far apart on a foundational issue and, it can

be assumed, made pretrial settlement less

likely. Further,

as a result of Monster's adamancy that

it was not liable for infringement, the Beastie Boys were obliged to prepare for trial on this point,
so as to prove "ownership of a valid copyright and copying of the protectable elements of the

copyrighted work." Scholz Design, Inc. v. Sard Custom Homes, LLC,69l F.3d 182, 186 (2d Cir.
2012) (listing elements of copyright infringement). This entailed, inter alia, procuring

11

certificates of copyright registration to prove that the Beastie Boys owned the rights to the songs

in question, and hiring a musicologist to establish that the video did, in fact, contain the Beastie
Boys' music. These basic facts were never subject to reasonable dispute.
Relatedly, Monster needlessly prolonged this litigation and increased the Beastie Boys'

attorneys' fees through its pretrial attempt, via

a

third-party complaint, to shift blame to Z-Trip.

After denying any responsibility for the copyright infringement in its Answer, Dkt. 5, Monster
brought claims of breach of contract and fraud against Z-Trip, Dkt.

9. Both Z-Trip

and the

Beastie Boys, whose interests were affected by Monster's claims against the DJ, spent time and
money litigating these meritless claims.
As the Court held in granting summary judgment for Z-Trip, Monster's arguments were
patently unreasonable: On Monster's contract claim, no communications between Phillips and

Z-Trip "could be plausibly read to involve an offer," Z-Trip,983 F. Supp. 2d at348, and there
\¡y'as

"no evidence on which a reasonable juror could find acceptance of contractual terms," id. at

350. And, it would "flout common sense" to conclude thatZ-Ttip "granted Monster the rights
necessary here."

Id. at350-51. As to Monster's fraud claim,

o'Monster ha[d] not adduced any

evidence tending to show thatZ-Trip acted with fraudulent intent" or had any motive to defraud

Monster. Id. at351 (emphasis in original). Nor had Monster offered "any credible argument
why it was reasonable to rely on Z-Tríp's colloquialisms as a basis to conclude it had obtained
from him the necessary licenses." Id. at 353. The Court therefore described Monster's fraud
claim against Z-Trip as "risible." Id. at35I.
Because, as to this aspect of the litigation, Monster's conduct was uffeasonable and was

"directly responsible" for certain fees "plaintiff[s] had to expend," the factor of objective

t2

uffeasonableness supports some fee-shifting. Harrell v. Van der Plas,No. 08 Civ.8252 (GEL),
2009 WL 3756327, at *4 (S.D.N.Y. Nov. 9,2009).

lltíllfulness of underlyíng conducl: The jury found that Monster's infringement was

willful,

and the Court upheld that finding as

fairly grounded in the record evidence.

See Beastie

Boys,2014WL 6845860, at *13-16. Despite being alarge, sophisticated corporation with

a

$120 million annual marketing budget and with safeguards in place to protect its own intellectual

property rights, Tr. 1050, "Monster had no comprehensive music licensing policy; it tasked
unqualified and untrained employees with the job of creating and disseminating promotional
recap videos that presented a goodly risk of trenching on others' rights; and it protected its own

intellectual property interests with far more vigor and solicitude than it did others'," Beostie

Boys,20l4 WL 6845860, at *33. As a result of these "striking failure[s]," the Court held, "it
was likely only a matter of time before infringement occurred." Id.

at*I6 8. n.13. Based on

these factors, among others, the Court found that, although the issue of copyright willfulness

"could have been resolved for either side," there was sufficient evidence of reckless disregard to
support the jury's finding of willfulness. S¿e id. at*14.

As courts in this Circuit have repeatedly held, a defendant's willful infringement supports
an award of attorneys' fees to a prevailing

plaintiff.

See, e.g., Kepner-Tregoe, Inc.

v. Vroom,186

F.3d 283, 289 (2dCir.1999); Hounddog Prods., L.L.C. v. Empire Film Grp., lnc.,826 F. Supp.

2d619,634 (S.D.N.Y.20Il);Nature's Enters., Inc. v. Pearson,No.08 Civ.8549 (JGK),2010
WL 447377 , at *9 (S.D.N.Y. Feb. 9, 2010); Manno v. Tenn. Prod. Ctr., Inc., 657 F. Supp. 2d
425,435 (S.D.N.Y. 2009). Courts have awarded fees based on willfulness even where the
infringement was reckless rather than knowing. In Design Resources, Inc. v. John

Ilolf

Decorative Fabrics, for example, the defendant obtained samples of plaintifls fabrics and

t3

commissioned a studio to create similar patterns. No. 83 Civ . 7 606 (CBM), 1 985 WL 2445 , at

*2 (S.D.N.Y. Sept. 5, 1985). "Although the record [did] not establish whether defendant knew
of plaintiff s copyrights," a fee award was appropriate because "there [was] sufficient evidence
to find that defendant acted in reckless disregard for plaintiffls rights in the copyrighted
patterns." Id.

at*ll.

Similarly, inAdidas Sportschuhfabriken Adi Dassler Stiftung & Co., K.G. v. New
Generation, the defendants had sold merchandise decorated with logos, insignias, and cartoon
characters owned by the
}r4ay

plaintifß. No. 88 Civ. 5519 (PKL),

1990

WL

180679, at *1 (S.D.N.Y.

29,1990). The record contained no direct evidence of the defendants' intent, and they

"profess[ed] little knowledge of the significance of the pirated logos and symbols." Id. at*2.
The court nevertheless awarded attorneys' fees because defendants were "under a duty to inquire

into whether their business sources for the designs were fully authorized to sell such products,"
and

if they

had "made significant inquiry into the legality of their activities," "they would have

discovered that their activities were unauthorized and illegal."

Id.

serious internal controls, and Monster's failure to verify whether

Here, too, the lack of any

it had the right to use the

Beastie Boys' sound recordings and musical compositions in its promotional video, justify an
award of fees.

Finally, in Basic Boolcs, Inc. v. Kinko's Graphics Corp., several publishing companies
sued a copy shop for making unauthorized reproductions of book excerpts and selling them to
students as "course packets." 758 F. Srpp. 1522,1526 (S.D.N.Y. 1991). While acknowledging
that the fair use issues in the case bore "some degree of novelty," the court awarded attorneys'
fees to the prevailing

plaintiffs because the defendant had not engaged in a "critical analysis" or

"wrestled with the [fair use] determinations" before engaging in the infringing activities. Id. at

l4

1547. Because the difficult legal issues emerged only during the ensuing litigation, the court
held, awarding attorneys' fees was reasonable and appropriate. See

id.

The Beastie Boys have a

far stronger case for an award of attorneys' fees than the plaintiffs in Basic Books because the
contested issues here as to the Copyright Act involve the appropriate measure of damages; the

fact of infringement was indisputable. Had Monster engaged in a "critical analysis"-or even a
cursory inquiry-before posting the Ruckus video online, it could have prevented the

infringement and obviated the need for this litigation.
Compensatíon and deterrence: A final relevant pair of factors, both of which strongly
support some fee award so as to vindicate the purposes of the Copyright Act, are compensation
and deterrence. See Zalewski,754F.3d at 108; Walt Disney Co. v.,Besf, No. 88

Civ.

1595

(SV/K), 1990 WL 144209, at *4 (S.D.N.Y. Sept. 26,1990) (awarding fees "serves the purposes
of the Copyright Act to compensate the plaintiff and deter future infringements").
As to compensation, a fee award helps ensure that an injured copyright holder is, at the
end of the day, compensated for his

injury. Otherwise, there is some risk that the cost of

litigation will erode, if not eliminate altogether, the plaintiff

s

recovery. In this case, the Beastie

Boys paid their counsel more in fees (approximately $2.4 million) than was awarded by the jury

in total ($1.7 million) or on the Copyright Act claims alone ($1.2 million).3 To be sure, in

3

The plaintiffs in this case will receive some, but not all, of the damages awarded because the
copyrights to the five musical compositions and sound recordings used in the video are co-owned
by other entities. S¿¿ Dkt. 202, reported at Beastie Boys v. Monster Energy Co., No. 12 Civ.
6065 (PAE),2015 WL736078 (S.D.N.Y. Feb. 20,2015). In practice, however, the co-owners,
who have brought a follow-on lawsuit against Monster, will be able to leverage the verdict in this
case into judgments in their favor via offensive collateral estoppel. See Capitol Records, LLC v.
Monster Energt Co., 14 Civ.7718. And the Beastie Boys' counsel represented to the Court that
they have communicated and coordinated with-and indeed, shortly before trial, belatedly
sought leave to litigate the claims of-the other rights holders. See Dkt.72-74. For the purpose
of resolving this motion, in particular for assessing the compensation objective of the Copyright
15

assessing whether the Copyright

Act's compensation goal is implicated here, the Court must

determine the minimum amount reasonably necessary to effectively litigate these claims, not the
amount actually spent in this case; the Court undertakes that analysis in SectionIlI, infra. But it
suffices for now to say that shifting some of the Beastie Boys' substantial fees to Monster helps
ensure the Beastie Boys a net positive recovery as to the copyright claims.

Further, as to the goal of deterrence, a fee award to plaintiffs here may encourage

copyright holders whose rights are infringed to vindicate meritorious claims. Contested
copyright cases can be expensive to litigate, as this case illustrates. Without the prospect of a fee
award, plaintiffs facing mounting legal fees "'might be forced into a nuisance settlement or
detened altogether from enforcing ftheir] rights."' Crown Awards, Inc. v. Disc. Trophy & Co.,

564F. Supp.2d290,296 (S.D.N.Y.2008), aff'd,326 F. App'x 575 (2d Cir.2009) (summary
order) (quoting Assessment Techs. of

l4/1,

LLC v. lí/IREdata, Inc.,36l F.3d 434,437 (7thCir.

2004)). Awarding such fees incents rather than deters potential plaintiffs: It serves to "satisfy
the Copyright Act's purposes" because it

will "encourage plaintiffs to litigate meritorious claims

of copyright infringement" and, in tum, "encourage the origination of creative works by
attaching enforceable rights to them." Id. at295 (citations omitted).
For these reasons, the Court finds that awarding attorneys' fees to the Beastie Boys will,
on balance, advance the purposes of the Copyright Act. In particular, a fee award is supported
by the interests of compensation and deterrence; by the interest in placing some of the burden

of

paying legal fees on the willful infringer; and, to the extent that Monster unjustifiably contested
its liability and wrongly attempted to shift legal responsibility onto Z-Trip, by the interest in

Act, it is therefore fair to treat the Beastie Boys as if they stood to receive the entire award on the
copyright claims.

t6

making aparty bear the expenses generated by its unreasonable litigation tactics. However, the
proper amount of such an award presents a complex question. Various factors-including the
manner in which the Beastie Boys' case was staffed, the fact that some portion of the Beastie

Boys' legal fees were occasioned by work on the Lanham Act claim, and the fact that the issues
titigated attrial included difficult and close questions and that Monster's trial defenses were not
objectively unreasonable-counsel for an award of only a subset of the fees that the Beastie
Boys incurred. The Court addresses these factors and the proper amount of the fee award in
Section III below.

B.

Attorneys' Fees Under the Lanham Act

1.

Applicable Legal Standards

Under the Lanham Act, "[t]he court in exceptional cases may award reasonable attorney
fees to the

prevailingparty." l5 U.S.C. $ 1l l7(a). "The decision whether or not to award such

fees [] rests within the broad discretion of the district judge." Miuoban Prods. Co. v. API

Indus.,lnc.,No. 14Civ.4l (KPF),2014WL1856471,at*23 (S.D.N.Y.May8,2014) (quoting
George Basch Co.,968

F

.2d at 1543) (alteration in original).

The Second Circuit has defined "exceptional cases" as ones involving fraud, bad faith, or

willfulness.

See

Patsy's Brand, Inc. v. I.O.B. Reølty, lnc.,317 F.3d 209,22I (2dCir.2003)

(citing Bambu Soles, Inc. v. OzakTrøding Inc.,58 F.3d 849,854 (2dCir.1995);Twín Peak
Prods. v. Publ'ns Int'1, Ltd.,996F.2d1366,1383 (2d Cir. 1993)); see also, e.g., Keystone Global

LLC v. Auto Essentiøls, Inc., No. 12 Civ.9077 (DLC), 2015 WL 224359, at *7 (S.D.N.Y. Jan.
16,2015); Leviton Mfg. Co. v. Fastmac Performance Upgrades, Inc., No. 13 Civ.1629 (LGS)
(SN), 2014WL2653116, at *8 (S.D.N.Y. Feb. 28, 2014) (collecting cases). However, a finding
of willfulness or bad faith does not automatically entitle the prevailing party to attorneys' fees.

t7

Such a finding may be regarded aso'aprerequisite to finding a case sufficiently exceptional to

warrant an award of fees under section ILIT(a)," but it does îotooautomatically require[] an
award of fees under that section

."

Mister Softee of Brooklyn, Inc. v. Boula Vending Inc., 484

F

.

App'x 623, 624 (2d Cir. 2012) (summary order) (citations omitted). Rather, the court should
ooweigh

considerations such as the closeness of the case, the tactics of counsel, the conduct of the

parties, and any other factors that may contribute to a fair allocation of the burdens of litigation
as between

winner and loser." Fresh Del Monte Produce Inc. v. Del Monte Foods Co.,933

F.

Supp. 2d655,665 (S.D.N.Y.2013) (quoting S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc.,

781F.2d 198,201(Fed. Cir. 1986)).
In the context of the Patent Act, which, like the Lanham Act, provides that courts "may"
award attorneys' fees in "exceptional cases," the Supreme Court recently provided guidance as to
ooexceptional." Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
the meaning of the term
134 S. Ct. 1749,1756 (2014) (discussing 35 U.S.C. $

285). The Court held that:

[A]n "exceptional" case is simply one that stands out from others with respect to
the substantive strength of a party's litigating position . . or the unreasonable
manner in which the case was litigated. District courts may determine whether a
case is "exceptional" in the case-by-case exercise oftheir discretion, considering
the totality of the circumstances.

Id.

The Court further instructed that courts resolving motions for fees in patent cases should

consider the Fogerty factors used in Copyright Act cases, including frivolousness, motivation,

objective unreasonableness, compensation, and deterrence. Id. at 1756 &, n.6. Accordingly,
courts should consider whether a given case'ostands out from others" based on those factors, or
based on a finding of willfulness or bad faith.

18

2.
The

Discussion

jury here found that Monster's conduct was willful, intentionally deceptive, and in

bad faith. Ses Dkt. I47, at

2-4. Those findings, however, do not "require[]

an award of fees."

Mister Softee,484 F. App'x at 624; see slso Gidatex, S.r.L. v. Campaniello Imports, Ltd.,82F.

Supp.2d136,l47(S.D.N.Y.2000)("[T]hisCourthasdiscretiontodenyanawardofattomey's
fees, even with the

jury's finding of

bad

faith."). After reviewing

cases from this Circuit that

have resolved motions for attorneys' fees under $ 1117(a) and measuring the circumstances here

in light of that authority, the Court's considered judgment is that the Lanham Act claims in this
case are not

sufficiently ooexceptional" to merit an award of fees.

Courts in this District typically award Lanham Act fees based on extreme misconduct

during litigation. "[C]ourts frequently look to whether the claims raised by either side were
interposed for an 'improper purpose,"' Microban,2014WL 1856471, at*23 (quoting Multivideo
Labs, Inc. v. Intel Corp.,No. 99 Civ. 3908 (DLC),2000 V/L 502866, at *2 (S.D.N.Y. Apr. 27,

2000)), or whether the losing party engaged in "deceptive litigation tactics," C:Holdings B.V.

v.

Asiarim Corp.,992F. Supp. 2d223,251 (S.D.N.Y.2013); see also Sprint Commc'ns Co. L.P.

v.

Chong,No. 13 Civ. 3846 (RA), 2014WL 6611484, at *5 (S.D.N.Y. Nov. 21,2014)
("[Defendant] not only frustrated the litigation process by failing to participate, he obstructed the

plaintiffs and caused unnecessary delay by using an alias that was only uncovered through
[plaintiffs' ] investigations late in this litigation.").
Courts have also granted Lanham Act fees to prevailing plaintiffs where the defendant

defaulted. See, e.g., Lane Crawford LLC v. Kelex Trading (CA) Inc.,No. 12 Civ. 9190 (GBD)
(AJP), 2014 WL 1338065, at *2 (S.D.N.Y. Apr. 3,2014); Sub-Zero, Inc. v. Sub Zero NY

I9

Refrigeration & Applíances Servs.,1nc., No. 13 Civ. 2548 (KMW) (JLC), 2014 WL 1303434, at

*7 (S.D.N.Y. Apr. l, 2014).
On occasion, courts have also awarded Lanham Act fees based on egregious underlying
facts, for instance, where a defendant continued its infringing conduct "in the face of a

preliminary injunction." Playboy Enters., Inc. v. Chucklebeny Pub., ünc.,687 F.2d563,571 (2d

Cir. 1982).
None of those circumstances are present here. Unlike the Copyright Act claims, as to

which Monster's pretrial denial of liability was unreasonable, the Court does not perceive any

of

unreasonableness to Monster's arguments or litigation positions as to the Lanham Act claim

false endorsement. Monster made responsible arguments opposing that claim, and the jury's

verdict for the Beastie Boys, in the Court's view, was no foregone conclusion. This case is thus

afar cry from one in which the losing party's litigation positions as to

a Lanham

Act claim were

so "devoid of legal merit that one could only conclude that they were advanced with an improper

motive," Microban,2014 WL 1856471, at*23, or constituted "outrageous[]" conduct evincing a
"complete lack of respect for the judicial process," C:Holdings, 992 F . Supp. 2d at 251 . The
case was certainly "exceptional" in the sense that the facts were idiosyncratic, but not in the
sense relevant here, in that the egregiousness required to

justifr a fee award under the statute

was

lacking.
This case thus resembles, more than the cases in which attorneys' fees were awarded, two
Lanham Act cases in which courts in this District declined to award fees. In Gidatex, S.r.L.

v.

Campaniello Imports, Ltd., the jttqy found bad faith, but the court nevertheless declined to award
fees because the defendant's litigation decisions were 'Justifiable," and the plaintiffs had not

prevailed on every issue. 82 F. Supp.2d 136,140,14849 (S.D.N.Y. 2000). Similarly, in Simon

20

& Schuster, Inc. v. Dove Audio, Inc., the court denied Lanham Act

fees to a prevailing

because, although the defendant's infringement was ultimately found

plaintiff

willful, the "litigation

presented a number of close and contested issues; the outcome was by no means a foregone

conclusion." 970 F. Supp. 279,302 (S.D.N.Y. t997). The Court similarly concludes that,
notwithstanding the jury's findings of intentional deception and bad faith, a fee award under the
Lanham Act is not merited here.

ilI.

Determination of the Reasonable Amount of the Fee Award
The Beastie Boys were represented throughout this case by Sheppard Mullin Richter &

Hampton LLP ("sheppard Mullin") and paid Sheppard Mullin all of the fees the firm billed

them. The Beastie Boys seek an award of $2,385,175.50. This figure reflects two reductions,
totaling $101,504.50, from the fees the Beastie Boys paid. First, the Beastie Boys do not seek to
recover fees for attorneys and staff who spent less than 10 hours on the case; this eliminated 70.4
hours of work, corresponding to 520,977 in fees. Second, to avoid a fee award for duplicative

efforts, the Beastie Boys do not seek to recover fees for work performed after July 2013 by
Theodore Max, Esq., Sheppard Mullin's initial lead partner on the case, because from that point

forward, Kevin Puvalowski, Esq., was lead partner. This eliminated I19.3 hours of work,
corresponding to $80,527.50 in fees. Se¿ Anderson Decl., Ex. U.

A.

Legal Standards Governing Reasonableness of

X'ees

In determining the amount of a fee award, district courts are to calculate the
"presumptively reasonable fee." Simmons v. N.Y. City Transit Auth.,575 F.3d I70, 172 (2d Cir.

2009). The starting point for determining the presumptive reasonable fee is the "lodestar"
amount, which is "the product of a reasonable hourly rate and the reasonable number of hours
required by the case." Gaia House Mezz LLC v. State Street Bank & Trust Co., No. 1 1 Civ. 3186

2l

(TPG), 2014WL3955Il8,at *1 (S.D.N.Y. Aug. 13,2014) (quoting Milleav. Mefto-North R.R.

Co.,658 F.3d 154, 166 (2dCir.2011)). "The presumptively reasonable fee boils downto'what
a reasonable,

paying client would be willing to pay,' given that such aparty wishes 'to spend the

minimum necessary to litigate the case effectively."' Simmons,575 F.3d at 174 (quotingArbor

Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,493 F.3d 110, I 12,lI8 (2d
Cir. 2007), amended on other grounds by 522 F.3d 1 82 (2d Cir . 2008)). In resolving what a
reasonable client would pay, the Court must consider the "Johnson factors," namely:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the

level of skill required to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the attorney's
customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time
limitations imposed by the client or the circumstances; (8) the amount involved in
the case and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the "undesirability" of the case; (11) the nature and length of the
professional relationship with the client; and (I2) awards in similar cases.
Arbor Hill,493 F.3d at 186 n.3 (citing Johnson v. Ga. Highway Exp., Lnc.,488 F.2d 714,716
(5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).

"As the fee applicant, plaintiffs 'bear[] the burden of documenting the hours reasonably spent by
counsel, and the reasonableness of the hourly rates claimed."' Allende v. Unitech Design, Inc.,
783 F. Supp. 2d509,512 (S.D.N.Y.2011) (quoting General Elec. Co. v. Compagnie Eurølair,

5.A.,96 Civ. 0884 (SAS), 1997 WL397627 at *4 (S.D.N.Y. July 3,1997)).
Additionally, "[a]ttorney's fees must be reasonable in terms of the circumstances of the
particularcase." JohnWiley&Sons, Inc.v. Kirtsaeng,No. 14-344,2015 WL3396832,at*1(2d
Cir. May 27,2015) (quoting Aldermanv. PanAm\ItorldAirways,169F.3d 99,102(2dCir.
1999)). "'[T]here is no precise rule or formula' for determining a proper attorney's fees award";
rather, the district court should exercise its "equitable discretion" in light of all relevant factors.
GMA Accessories, Inc. v. Olivia Miller,

Inc.,l39

F.

22

App'x 301, 304 (2dCir.2005) (summary

order) (quoting Fogerty,s10 U.S. af 534); see also Clarkv. Hudson Bay Music, Inc.,l04F.3d
351, 351 (2dCir.1996) (unpublished opinion); N.A.S. Imp., Corp. v. Chenson Enters., [nc.,968
F.2d 250, 253-54 (2d Cir. 1992).

B.

The Proper Amount of the Fee Award

The Court's analysis as to the reasonable fee award on the Copyright Act claims proceeds

in three steps.
First, the Court considers challenges Monster raises to discrete aspects of the fees billed

by Sheppard

Mullin-to

areas

of legal work Monster claims were unnecessary to vindicate the

Beastie Boys' claims and to certain billing practices. Finding merit to some of these arguments,
the Court reduces the fees eligible for shifting. Second, the Court considers the extent to which a

further reduction is merited to reflect the fact that some of plaintiffs' counsel's work was
directed at the Lanham Act claim, as to which the Court has declined to award fees. Third, the

Court considers what portion of the resulting fees must be shifted to Monster to vindicate the
interests served by the Copyright Act.

Before examining potential reductions, however, it is important to keep in mind the big

picture. This case was justifiably expensive to litigate. It implicated complex questions of law,
challenging questions of fact, and difficult and hotly contested damages determinations. Further,
the high profile of the parties and the attention given to this lawsuit no doubt impelled counsel to
leave no stone unturned. Indeed, this case was litigated aggressively by estimable lawyers on

both sides. The Court's analysis as to the proper fee award, and the reductions that follow, do
not bespeak any criticism of counsel for either side, whose impressive lawyering the Court has

previously recognized.

23

1.

Monsteros Arguments as to Specific Projects and Billing Practices

a.

Legal

\ilork on Unnecessary Projects

Monster argues that several areas of legal work were unnecessary to vindicate the Beastie

Boys'claims.
First, Monster notes, the Beastie Boys "conducted extensive discovery" into two sets of
videos that were never received in evidence. The first, the "Monster Army" videos, were posted

by athletes whom Monster had sponsored to a website that Monster created for the purpose

of

promoting these athletes and Monster itself. Six such videos allegedly incorporate, without
authorization, Beastie Boys music. The other video was created in connection with a sporting
event in Switzerland called'oWheels Fest," which Monster sponsored and promoted. The video

allegedly used a Beastie Boys song, "Sabotage," as its soundtrack, without authoÅzation. The
Court, however, granted Monster's motion in limine to exclude evidence as to these subjects
pursuant to Federal Rule of Evidence 403, on the grounds that Monster had not created the
videos, and the confusion, delay, and unfair prejudice from litigating at trial the circumstances
under which these videos had been created would outweigh any limited probative value. S¿e

Dkt. 90. Although it was surely proper for the Beastie Boys to seek discovery into the Monster
Army and V/heels Fest videos, the Court agrees with Monster that the legal fees the Beastie Boys
incurred doing so are not properly shifted to it, given the tenuous relevance of, and the exclusion

of, this evidence from trial.a

A table provided by the Beastie Boys showsthat22 billing entries, which total70.7 hours of
legal work, explicitly reference discovery efforts with respect to the V/heels Fest video. Ganity
Decl., Ex. D. These entries also describe other work performed by counsel, such that not all of
the70.7 hours can be assumed to have related to Wheels Fest. At the same time, the Beastie
Boys' legal work opposing Monster's motion in limine to exclude the Monster Army and Wheels
Fest videos, Dkt. 66, is not reflected in this table. Nor is the time expended investigating the
Monster Army videos, which are rarely mentioned by name in the billing records.

a

24

Second, Monster argues that

it should not be compelled to pay the Beastie Boys' fees

incurred with respect to two aspects of legal work relating to expert witnesses. First, Monster
brought a Daubert challenge to the report of Beastie Boys' damages expert Lisa Thomas, and
although the Court held the bulk of Thomas's expert report to be reliable, it granted Monster's

motion insofar as Thomas, in valuing an assumed license to use the Beastie Boys' copyrights,
wrongly assumed a lifetime, as opposed to five-week-long, license. See Dl<t. 63-65,84,87,89,
101-03, 107-08,

I09-l4,116,ll9.

Monster urges that the Beastie Boys' legal work, to the

extent it involved defending this problematic aspect of Thomas's report or helping revise the
report to correct this deficiency, should not be borne by Monster.s The Court agrees. Second,
the Beastie Boys brought an unsuccessful Daubert challenge to one of Monster's expert
witnesses, Dr. Eric Joachimsthaler. See

Dkt.76-78, 80, 90, 104-06. The Court agrees that in

light of the denial of this motion, these costs, too, are not properly borne by Monster.6
Third, Monster notes that the Beastie Boys abandoned two claims shortly before trial: a
copyright infringement claim based on the link to Z-Trip's Megamix included in the Ruckus
video, and a claim asserted under the New York Civil Rights Law. See Dkt. 90,

at6. In similar

circumstances, courts in this District have declined to reimburse plaintiffs for fees related to

voluntarily dismissed claims.

See

Scanlonv. Kessler,23F. Stpp. 2d4t3,417 (S.D.N.Y. 1998)

("The court finds and concludes that plaintiff should only recover expenses for work done on the

s

Between March 6 and March 21,2014, for example, Sheppard Mullin attorneys billed
approximately 80 hours for tasks related to revising Thomas's report. See Anderson Decl., Ex.
U, Dkt. t89-23, at 15-18.
6

For instance, Sheppard Mullin appears to have billed at least 20 hours for preparing the
Daubert motion between February 6 and 14,2014. See, e.g., Anderson Decl., Ex. U, Dkt. 18922, at 88-95.

25

meritorious copyright infringement claims.") (citing Knitwaves v. Lollytogs,

7

I

F

.3d 996,

l0l2

(2nd Cir. 1995). The Court finds this authority persuasive, and holds that fees incuned pursuing
these claims are not properly borne by Monster. See Hensley v.

Eckerhart,46l U.5.424,433-34

(1983) (Courts must "exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary."); Quaratino v. Tffany & Co.,166 F.3d 422,425 (2dCir.1997) (Courts
should exclude'ohours dedicated to severable unsuccessful claims.").7

b.

Partner-Heavy Staffing

Monster next argues that the Court should exclude all of Kenneth Anderson's hours.
Anderson, a Sheppard Mullin partner, billed 902.8 hours on the case for a total of $609,390.
Kahn Decl., Ex. 2 (compiling Anderson's time entries). Monster claims that Anderson "is not a

litigator" and that his work was "duplicative and unnecessary." Monster Br.17.
The Court rejects Monster's attempt to excise as categorically unnecessary all

of

Anderson's legal work on this matter. Anderson undeniably added value to the Beastie Boys'
efforts to vindicate their rights. Logically in light of his role as the firm's relationship partner

with the Beastie Boys-he has represented them for 30 years-Anderson led the firm's
representation of the group during the early part of this case.

,S¿¿

Anderson Decl. fl 39. His work

included issuing cease-and-desist and demand letters to Monster, working to obtain copyright
assignments from entities that held fractional rights in the copyrights at issue so as to streamline

litigation, and developing the case management plan. See id.;KaI:-r;' Decl., Ex.2, at

l-2. And,

although Sheppard Mullin litigating partners took the lead during discovery and handled the case

attrial, the billing records reflect Anderson's contributions. These include serving

7

as the

As these claims do not appear to be explicitly referenced in the billing records, the Court cannot
reliably estimate the fees incurred in their pursuit.
26

primary liaison to the Beastie Boys; preparing the two surviving members of the group for their
depositions; managing important aspects of the fîrm's work with respect to experts, including
selecting those witnesses and reviewing draft expert reports; participating in settlement
conferences and mediations, at least once as the only partner; and, after trial, helping to resolve
the proper allocation of copyright damages as among the various owners. See Kahn Decl.,

Anderson Decl., Ex.

Ex.2;

U. Given Anderson's relationship with the Beastie Boys and his expertise

with intellectual property law, it was reasonable for him to remain involved in the case, and the
Court accepts that his contributions were meaningful.
However, although Monster's focus on Anderson personally misses the mark, its critique
points to a broader consideration highly relevant to the fee award: the extraordinarily partnerheavy nature of Sheppard Mullin's work on this case. The firm billed nearly 2.5 times as many
partner hours as associate hours. Specifically, the firm billed 2,621 .2 partner hours and I ,069 .4
associate hours. See Anderson Decl., Ex.

V. The partners were: Anderson,

who, as noted, billed

902.8 hours totaling $609,390; Puvalowski, who billed 692.5 hours totaling $467,437.50; Paul

W. Ganity, who billed 594.8 hours totaling $401,490; and Max, who (in addition to the 119.3
hours with respect to which the Beastie Boys are not seeking a fee award) billed 431.1hours

totaling 529I,652.50. And the associates were: Thomas M. Monahan, who billed 815.9 hours
totaling $376,177; Valentina Shenderovich, who billed 156.8 hours totaling 573,240; Kathryn J.
Hines, who billed 41.5 hours totaling $20,957.50; and Manuel Gomez, who billed 55.2 hours

totaling $17,940. Anderson Decl., Ex. V.
In the Court's experience, such lopsidedly partner-heavy bills are quite unusual in the
context of litigation work. It is common, particularly with respect to discovery and other pretrial
tasks, that associates shoulder much of the work, under the active supervision of partners, and

27

that partners take lead roles as to projects for which their expertise adds value. The ratio
associate to partner hours on pretrial work typically reflects more associate than partner

of

hours-

often significantly more. See, e.g., Yurman Designs, Inc. v. PAJ, Inc., 125 F. Supp. 2d 54, 55
(S.D.N.Y. 2000), aff'd,29 F. App'x 46 (2dCir.2002) (summary order) (copyright case in which
the ratio of associate hours to partner hours was 13 to one). Clients commonly demand that legal

work be "pushed down" to the timekeeper with the lowest billing rate who is able to capably
perform that work, so as to keep legal fees manageable. In contrast, trial work tends to be more
partner-intensive, befi tting partners' greater trial expertise.
The Court has no doubt that many aspects of this case required active engagement by
Sheppard

Mullin partners. These included preparing for and defending depositions of the two

surviving Beastie Boys; preparing for, taking, and defending expert depositions; and handling the

trial itself. And Monster's vigorous defense of the case at all stages demanded a muscular and
sophisticated response. This case therefore no doubt justified more partner-intensive staffing
than much federal-court litigation.

It may also be that Sheppard Mullin's clients here-including the two surviving Beastie
Boys and the estate executrix (and wife) of deceased band member Yauch-affirmatively wanted
the firm's partners to personally perform virtually all aspects of their legal work. Presiding over

trial and hearing the surviving Beastie Boys' testimony, it was apparent to the Court that this
case had great personal significance to

them. Monster's commercial exploitation of the band's

music and songs, and what the Beastie Boys perceived as Monster's crass misappropriation of
the name of the recently deceased Yauch in its video promoting its energy drinks, appeared to

28

have deeply offended plaintiffs.s See, e.g., Tr.

60-61. It was apparent that this

case, and cause,

was of significant importance to plaintiffs. The Court is mindful that, unlike commercial cases

in which the merits of litigation expenditures are typically subject to cost-benefit analysis, this
case may

well have been one in which Sheppard Mullin's charge from its clients was simply to

win, irrespective of cost. If assuring the highest quality representation and maximizing the
prospects of a favorable verdict were paramount to Sheppard Mullin's clients, then it was

entirely rational for the firm to spare no expense on their behalf. The Court therefore does not, at

all, suggest that Sheppard Mullin's litigation expenditures were excessive or improper. That
judgment was the Beastie Boys' to make-and, as noted, plaintiffs paid 100% of the firm's fees
and by all appearances were well-satisfied clients.

On a fee-shifting application, however, the governing test of reasonableness is objective;

it is not dictated by a particular client's subjective desires or tolerance for spending. The test is
whether the plaintiff "spen[t] the minimum necessary to litigate the case effectively." Simmons,
575 F.3d at I74 (citation omitted); see also Bergerson v. N.Y. State Office of Mental Health,
Cent. N.Y. Psychiatric

Ctr.,652F.3d277,289 (2dCir.20tl) (same); McDanielv. county of

Schenectady, 595 F.3d

4Il,4I5 (2dCir.2010)

11

(same); cf,

Inre Weatherþrd Int'l

Sec.

Litig.,No.

Civ. 1646 (LAK),2015 WL 127847, at* 1 (S.D.N.Y. Jan. 5, 2015) (reducing fee award based

on doubts that a paying client would approve bills for 34 attorneys and 10 staff members who

8

The surviving Beastie Boys also testified that, as a matter of principle, they have not licensed
their music for product advertisements, Tr. ll8-21,864-65, or for creative endeavors with
which they do not identifu, Tr. 866-68, a philosophy that led them, not long before trial, to
decline a $500,000 fee to license a song for an Arnold Schwarzenegger movie because they are
not "fan[s] of [his] recent actions or work," Tr. 867. For this reason, too, the Beastie Boys may
have approached this case with special zeal. Indeed, the surviving band members testified that
had Monster sought permission to use the Beastie Boys' music and names in the video, the group

would have refused. Tr. 121,876.
29

collectively worked over 30,000 hours); Campbell v. Mark Hotel Sponsor, ZIC, No. 09 Civ.
9644 (WHP),2012 V/L 4360011, at *2 (S.D.N.Y. Sept. 13,2012) (reducing fee award because

okould pay over $3.3 million in
the number of hours billed was'ounreasonable," and no client
fees and expenses for the mere possibility of securing a $4.68

million down payment");

Simmonds v. N.Y.C. Dep't of Coru.,No. 06 Civ. 5298 (NRB),2008 V/L 4303474,at*4

(S.D.N.Y. Sept. 16, 2003) (reducing fee award where "a reasonably thrifty client made aware of
the adequacy of [plaintiff s] core claims would have opted for less costly representation").
Here, the Court's review of Sheppard Mullin's bills suggests that the Beastie Boys opted

to pay for, and received, the Cadillac Escalade, not the Honda Civic. Apart from the high ratio
of partner to associate hours, two aspects of these bills are notable. First, some tasks carried out
by partners surely could have been delegated to associates. To cite just a few examples,
Sheppard

Mullin's capable associates presumably could have (1) drafted

a letter

regarding the parties' stipulation of confidentiality, s¿¿ Anderson Decl., Ex. U,

(2) coordinated deposition scheduling, id.

at9l,l07;

to the Court

atTI-7I;

(3) reviewed depositions to identi$

designations for the joint pretrial order, id. at87-89; and (4) researched authority from Monster's

pretrial memorandum, id. at96. Second, there are various instances at which multiple partners
(often including relationship partner Anderson) appear to have participated in the same tasks,
where use of a single partner, or a single partner and an associate, would have been reasonable.
See

p.34, infra.
It was the Beastie Boys' prerogative to commission or approve such staffing. But the

issue for this Court is whether

it is reasonable to shift the resulting fees to Monster, their

adversary. And there is ample authority in this District, applying the standard of objective
reasonableness, for reducing a fee award where the legal hours recorded by

30

plaintifß' counsel

fell unusually heavily on partners with high hourly rates. See, e.g., New Earthshell Corp.

v.

Jobookit Holdings Ltd.,No.14 Civ.3602 (JMF),2015WL2152681, at *2 (S.D.N.Y.Ilv4ay7,

2015);Trinídadv. Pret a Manger (USA) Ird, No. 12Civ.6094 (PAE),2014 WL 4670870,at*9
(S.D.N.Y. Sept. 19, 2014); Luclry Brand Dungarees, Inc. v. Ally Apparel

Res.,

LLC,No. 05 Civ.

6757 (LTS) (MHD), 2009 V/L 466136, at *4 (S.D.N.Y. Feb. 25,2009); Patrolmen's Benevolent
Assoc. ofCityofN.Y., Inc.v. Cityof New )'ork,No.97 Civ.7895 (SAS),2003WL21782675,at

*4 (S.D.N.Y. July 31,2003); Shannonv. Fireman's Fund Ins. Co.,156 F. Supp. 2d279,301-02
(S.D.N.Y. 2001). Here, plaintiffs' case could similarly have been pursued with leaner, lesspartner-heavy staffing. Accordingly, a material reduction in the requested fee award is merited

to reflect the unusually partner-intensive nature of Sheppard Mullin's work.

c.

Duplicative or Vague Billing Records

Monster next presents three distinct challenges to Sheppard Mullin's billing records.

First, Monster claims that

89o/o

of Sheppard Mullin's entries are block billed such that

Monster cannot assess whether the hours that Sheppard Mullin expended were duplicative or
unnecessary.

Id. To support this claim, Monster provided a compilation of all time

entries they

identify as improperly block billed. Søe Schiano-Strain Decl., Ex. 3. Most of Sheppard Mullin's
oodescription
of services" section, without isolating the
time entries do list multiple tasks in the

particular hours assigned to each task.
As a general rule, block billing is disfavored. It impedes the client's ability to understand
the precise time allocable to the tasks for which it is being billed on an hourly basis. And, in the
event of a later fee application, it impedes a court's ability to assess whether the time expended
on any given task was reasonable

.

See Green v. City of New York,403 F.

App'x 626,630 (2d

Cir. 2010) (summary order); Ramirez v. Benares Indian Rest. LLC, No. 14 Civ.7423 (JMF),

3l

2015 WL 926008, at *2 (S.D.N.Y. Mar. 4,2015) (collecting cases); SEC v. Yorkville Advisors,

ZZC No. 12Civ.7728 (GBD) (HBP),2015 V/L 855796,at*14 (S.D.N.Y. Feb.27,2015)
(collecting cases).

At the same time, block billing is most problematic where large amounts of time (e.g.,
five hours or more) are block billed; in such circumstances, the limited transparency afforded by
block billing meaningfully clouds a reviewer's ability to determine the projects on which
significant legal hours were spent. See Abdell v. City of New York,No.05 Civ. 8453 (RIS),2015

WL 898974, at*4 (S.D.N.Y. Mar.2,2015) (finding block billing unproblematic where it was
oofor

temporally short entries combining related tasks"); Trinidad,2014 WL 4670870, at *9

(reducing fee award based on block billed entries covering as many as 16 hours); Charles v. City

of New York,No.l3 Civ. 3547 (PAE),2014 WL 4384155,at*6 (S.D.N.Y. Sept.4, 2014)
(reducing fee award based on block billed entries spanning more than six hours each); Thai-Lao

Lignite Qhailand) Co. v. Gov't of Lao People's Democrøtic Republic, No. 10 Civ. 05256

(KMW) (DF), 2012WL 5816878, at *8 n.9, *10 (S.D.N.Y. Nov. 14,2012) (reducing fee award
where partner billed 1 1-hour days in single entries). Here, in contrast, two-thirds of Sheppard

Mullin's block billed entries-I59 of the 239 entries Monster flagged-were for

less than three

hours, a shorter amount of time. And, for the most part, the block billed entries, particularly the
longer ones, contained enough detail and specificity so as to afford reasonable confidence that
the time billed was productively spent, even if it is impossible to reconstruct the precise amounts

of time allocable to each specific task listed in the block entry. For example, on December 14,
2012, associate Shenderovich billed 7.4 hours for:

Reviewed and revised Plaintiff s initial disclosures. Reviewed and revised First
Set of Requests for Interrogatories to Monster. Reviewed and revised Request for
Production of Documents to Monster. Drafted Request for Interrogatories to ZTrip. Drafted Request for Production of Documents to Z-Trip. Reviewed and
32

revised all. Drafted cover letters. Compiled all documents and coordinated
delivery.
Similarly, on January 29,2013, partner Max billed 4.6 hours for:
Prepare for mediation before Magistrate Judge Pitman; travel to U.S. District Court
S.D.N.Y. for mediation; give presentation and discussion at mediation; discuss
status and evaluation with J. Silva and K. Anderson; return to office; read email for
R. Kahn; discuss with V. Shenderovich regarding discussing follow-up.
These entries, although block billed, clearly enumerate the work completed in the designated

amounts of time. See Aurora Commercial Corp. v. Approved Funding Corp.,No. 13 Civ.230
(RPP), 2014WL 3866090, at *6 (S.D.N.Y. Aug. 6,2014) (declining to reduce fees based on

block billing where attorneys' "entries fwe]re sufficiently detailed to convey to the reader the
tasks for which they billed").

The Court's judgment is therefore that, with limited exceptions, the "commingling

of

activities within one time entry" in this case does not'oimpede[] the [C]ourt's efforts to evaluate
the reasonableness of any of the listed activities"; the block billing thus does not provide a basis

for reducing, more than marginally, the fee award. Berry v. Deutsche Bank Trust Co. Americas,

632F. Supp. 2d300,306 (S.D.N .Y.2009); see also U.5., ex rel. Fox

Rx,

Inc. v. Omnicare, Inc.,

No. 12 Civ.275 (DLC),2015 V/L 1726474, at *3 (S.D.N.Y. Apr. 15,2015) ("The use of 'block

billing' here is perfectly reasonable; the specific tasks in each oblock' are described with
sufficient detail and clarity to confirm 'the reasonableness of the work performed."' (citation
omitted)); G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist.,894 F. Stpp. 2d 415,441 (S.D.N.Y.
2012) ("Defendant has identified no entries where the hours billed are unreasonable, or where

block billing has combined activities compensable at different rates. Therefore, the Court does
not find any reduction warranted."); Adorno v. Port Auth. of N.Y. & N.J.,685 F. Supp' 2d 507,
515 (S.D.N.Y. 2010)

("While block billing is disfavored and may lack the specificity for an

JJ

award of attorneys' fees, it is not prohibited as long as the court can determine the
reasonableness of the work performed." (citation omitted)).
Second, Monster argues thatlTo/o of Sheppard

Mullin's entries, which total634 attomey

hours, are duplicative. To support this claim, Monster provided a compilation of all such entries.
,See

Schiano-Strain Decl.,

8x.4.

Many of these entries are not problematic, as there is no rule

requiring that only one attorney participate in each litigation event; whether it is reasonable for a
second attorney to participate depends on the context. Here, for example,

it was reasonable for

(1) Anderson and Max to attend the initial pretrial conference, a potentially very important event,
on November 16,2012, (2) for Anderson and an associate to attend a settlement conference on

July 25,2013, and (3) for members of the frrm's litigation team to strategize with one another, as
occurred on numerous days (e.g., November

4,7, 14, and 19,2013).

That said, as noted, there are some instances in which multiple partners worked on a task
where such staffing was not, at least evidently, objectively necessary. On November 30, 2012,

for example, multiple partners worked on a letter to opposing counsel; and on June 4 and 5,
2013, four partners billed for attending trial, even though the trial was in the hands of only two

(Puvalowski and Garrity). There are also occasions in which more hours may have been applied
to a task than was needed, consistent with the firm's staffing approach in this case described
above. On July 10,2012, for example, Anderson billed six hours to "complete[] complaint," but
the next day billed another 4.8 hours to

o'ftnalize[] complaint." Anderson Decl., Ex. U, at 13.

All considered, the Court concludes that

some basis exists for reducing the fee award from that

requested due to such staffing practices.

Third, Monster asserts that many billing entries are vague or ambiguous. As might be
expected in a large case with many fee entries, the billing records, in several instances, contain

34

unhelpful descriptions, such as "worked on Monster." Andetson Decl., Ex. U, at 16. Such
ooenable
the court to determine whether a reasonable amount of time was spent on
entries do not

each activity" or'owhether the particular activity is compensable."
Stores,

Miroglio S.P.A. v. Conway

hnc.,629F.Supp.2d307,313(S.D.N.Y.2009). However,thesedeficienciesarefewand

far between; the vast majority of entries are thorough and clear. Accordingly, the few vague
entries do not support a significant reduction in the fees awarded.

d.

Hourly Rates

The Court, finally, considers the reasonableness of the billing rates charged by plaintiffs'

counsel. The Beastie Boys seek to recover fees for the work of four Sheppard Mullin partners,
four associates, and four members of the firm's support staff. In assessing whether the hourly
rates they charged were reasonable, the Court looks to the hourly rates typically charged in this

District.

See

Arbor Hill,493 F.3d at 119.

Monster does not challenge the hourly rates charged by the four Sheppard Mullin
partners who worked on the case, and the Court agrees that those rates were reasonable.

Puvalowski, Garrity, and Anderson each charged an average of $675 per hour, and Max charged
an average of $676.53 per

hour.

S¿e Anderson

Decl., Ex.

V. Courts in this District routinely

approve similar rates for experienced partners in copyright cases. See, e.9., Broad. Music, Inc. v.
Pamdh Enters.,1nc., No. 13 Civ. 2255 (KMW),2014 WL 2781846,at *7 (S.D.N.Y. June 19,
2014) (collecting cases awarding $400 to $735 per hour for partners); OZ Mgmt. LP v. Ozdeal

Inv. Consultants,lnc., No. 09 Civ. 8665 (JGK) (FM), 2010 V/L 5538552, at *3 (S.D.N.Y. Dec.
6,2010), report qnd recommendation adopted,2O11 V/L 43459 (S.D.N.Y. Jan. 5, 20ll)
(describing $657 per hour rate as "well within the range of rates for law firm partners in the New

York City area with significant intellectual property law experience").

35

As to associates, Monster argues that the hourly rates charged by three of the four were

excessive. Sheppard Mullin charged an average of $461.06 per hour for Monahan, then a fourthyear associate; an average of$467.09 per hour for Shenderovich, then a second-year associate;
and an average of $505 per hour for Kathryn Hines, then a third-year associate. Anderson Decl.,

Ex.

V.

Manuel Gomez, then a first-year associate, billed at $325 per hour. .Id. Monster does not

object to that rute. See Monster Br. l8-21.
Rates between $461 and $505 per hour are higher than those typically approved for
associates in this

District.

See, e.g., Genger v. Genger,

No. 14 Civ. 5683 (KBF), 2015 WL

1011718, at *2 (S.D.N.Y. Mar. 9,2015) ("New York district courts have . . . recently approved
rates for law firm associates in the range of $200 to $450 per hour."); Dweck v. Amadi, 10 Civ.

2577 (RMB) (HBP), 2012WL3020029,at*4 &. n. 5 (S.D.N.Y. July 6,2012) (collecting cases
approving rates between $180 and $440 per hour for associates); OZ Mgmt.,20l0 WL 5538552,
at *4 (approving rates between $355 and $400 per hour for associates); Malletier v. Artex
Creative

Int'l Corp., 687 F. Supp. 2d347,361 (S.D.N.Y. 2010) ("The hourly

rates of $390.00 to

$470.00 charged by the associates and junior partner representing Vuitton fall atthe very top

of

the spectrum of reasonable hourly rates for associates."). Accordingly, the Beastie Boys bear the

burdenofjustifyingtheupwarddeviation. SeeAllende,TS3 F. Supp.2dat512. Theyhave,
however, carried that burden. In defense of the associates' hourly rates, plaintiffs provided the
most recent National Law Journal billing survey. Garrity Decl., Ex.

C. It shows that, in 2014,

average associate rates at large New York City law firms ranged from $340 to $678 per hour

with an overall average of $518 per hour. See id. And the lowest rates charged by these

firms-

presumably, the hourly rates for first-year associates-ranged from $120 to $595 with an average

of $318. See id. In light of this data, the Court finds that hourly rates averaging $461 to $505 for

36

second, third, and fourth-year associates were reasonable. That is particularly so where, as here,

the associates' work was, for the most part, relatively demanding and complex rather than

quotidian (e.g., document review).
Monster also contends that the hourly rates Sheppard Mullin charged for litigation
support staff were excessive. Four individuals-Lisa Rodriguez, Stephanie Limbaugh, Giles

Mitchell, and Brian Simpson-billed
per

a

total of 536.7 hours at rates averaging $204.22 to $254.42

hour. To justify these rates, Sheppard Mullin explained that Rodriguez, who billed an

average of $254.42 per hour, has 25 years of experience. Ganity Decl. fl

7. Limbaugh, who

billed atanaverage of $235 per hour, has 14 years of experience and managed the Beastie Boys'
courtroom technology in addition to fulfilling paralegal responsibilities. Id. fl 8. Mitchell, who

billed at an average of $215.48 per hour, has more than eight years of experience and assisted
with processing and producing electronic discovery. Id. n9. Finally, Simpson, who billed at an
average

of $204.22 per hour, spent

a modest number

of hours filing documents and ensuring

compliance with local rules. Id. n 10.
These rates are indeed higher than those typically approved for paralegals and other

litigation support staff. See, e.g., M. Lady, LLC v. AJI, Inc.,No. 06 Civ. 0194 (HBP), 2009 WL
1150279, at *7 (S.D.N.Y.

Apr. 29,2009) (collecting

cases awarding between $50 and $180 per

hour for paralegals); J.S. Nicol, Inc. v. Peking Handicraft,lnc., No. 03 Civ. 1548 (GHD) (AJP),
2008 WL 4613752, at*16 (S.D.N.Y. Oct. 17,2003) (collecting cases awarding between $100
and $150 for paralegals and other litigation support

staff). However, courts in this District have

approved rates of $200 per hour for paraleg als, see Broad. Musíc, Inc. , 2014 WL 278 I 8 46, at *7

(collecting cases), and the Court is prepared to find thatrate reasonable here. Indeed, Trial
Graphix, the service Monster itself used to manage its courtroom technology, charges between

37

$195 and $265 per hour. See Ganity Decl. fl 6; id. Ex.

E. And the work of Sheppard Mullin's

paralegals and support staff was professional and of high quality, as the Court observed. The

Court therefore finds that a fee reduction to a $200 per hour rate for such personnel, but no
greater reduction, is merited.

e.

Aggregate Fee Reduction Based on These Considerations

Considering all of the above factors, the Court's judgment is that a30Yo reduction of the
fees paid by the Beastie Boys is merited, to ensure that the fee award reflects fees that were the

"the minimum necessary to litigate the case effectively." Simmons,575 F.3d at 174. As noted,
the Court is not to compensate counsel for unnecessary hours, Berry, 632

F

. Supp. 2d at 306

(quoting Hensley,46l U.S. at433-34), and in sizing the appropriate reduction,

oothe

court has

discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical
means of trimming fat from a fee application," Bløck v. Nunwood, 1nc.,

No. 13 Civ. 7207

(GHW),2015 V/L 1958917, at *6 (S.D.N.Y. Apr. 30,2015) (quoting Kirschv. Fleet Street, Ltd.,
148 F.3d 149,173

(2dCir.1998));

see also

In re Agent Orange Prod. Liab. Litig.,8I8F.2d226,

237 (2d Cir. 1987) (same). "It is common practice in this Circuit to reduce a fee award by an
across-the-board percentage where a precise hour-for-hour reduction would be unwieldy or

potentially inaccurate." Ass'n of Holocaust Victimsfor Restitution of Artwork & Masterpieces

v.

BankAustria Creditanstalt AG,No. 04 Civ. 3600 (SWK), 2005 WL 3099592, at *7 (S.D.N.Y.

Nov.

17, 2005); see also

Kahlil v. Original Old Homestead Rest.,657 F. Supp. 2d 470,476

(S.D.N.Y. 2009) ("It is well established that across-the-board reductions are appropriate when

billing records are voluminous and numerous billing entries are in dispute." (citation omitted)).
Fee reductions around 30o/o are, further, common in this District to reflect considerations

of whether work performed was necessary, leanly staffed, or properly billed. See, e.g., Hines

38

v.

City of Albany,No. 14-2299,2015 WL 3479820, at*2-3 (2d Cir. June 3, 2015) (summary order)

(affirming 30% reduction in fees based on block billing and other concerns); Melodrama Publ'g,
LLC v. Santiago,No. 12 Civ. 7830 (JSR) (FM), 2015 V/L 2380521, at *6 (S.D.N.Y. May

19,

2015) (reducing fees by 25%owhere the hours billed were excessive and partner-heavy); Genger,
2015 WL 101 171 8, at *2 ("Across-the-board reductions in the range of I5Yo fo 30Yo are
appropriate when block billing is employed."); De La Paz v. Rubin & Rothman,IIC, No. 11

Civ.9625 (ER),2013 V/L 6184425, at *6 (S.D.N.Y. Nov. 25,2013) (reducing fees by 30Yoto
account for vague and excessive entries); Wise v. Kelly,620F. Stpp. 2d435,452-53 (S.D.N.Y.
2003) (reducing fees 25Vo because certain entries were too vague for the court to assess their
reasonableness). In this case, the factor most influential to the Court was the partner-intensive
nature ofthe case staffing, but the Court also took account ofthe other factors addressed above,

including instances in which more than one lawyer was assigned to a task without evident

justification. The 30% reduction here, which equates to $715,552.65, leaves fees of $1,669,622.85.

2.

Fee Reduction to Reflect

\ilork on the Lanham Act Claim

The Court next turns to a separate issue: the proper reduction to reflect that this

litigation-and

Sheppard

Mullin's corresponding fees-encompassed work on the Lanham Act

claim, for which the Court has held fee-shifting unwarranted. See Yurman Design, Inc.,29 F.

App'x

at 48

(affrrming 80% reduction in fees where plaintiff was entitled to fees under

Copyright Act but not Lanham Act). The issue is the appropriate amount of this reduction.

Anticipating that the Court might find fee-shifting merited only for the Copyright Act
claims, Monster proposed a 50o/o fee cut. Monster Br. 16 n.6.e But that proposal is simplistic. It

o'even
if
The Beastie Boys did not suggest an alternative percentage cut; rather, they argued that
Plaintiffs had not pursued their Lanham Act claims, the scope of fact discovery would have been
e

39

ignores the very substantial extent to which the work required to pursue the Lanham Act claim
overlapped with the work required to prevail on the Copyright Act claims. Most obviously, the

two claims arose out of the same operative facts-the creation and dissemination of the Ruckus

video. The fact discovery into these claims thus was almost entirely overlapping. And virtually
all fact witnesses attrial were relevant to both claims. V/ith or without the Lanham Act claim,

trial likely would have been held in this case, with much of the attendant submissions and
preparatory work.

At the same time, certain legal work was particular to the Lanham Act claim. Portions of
some briefs addressed issues relevant only to the Lanham Act claim, see,

e.g.,Dkt.174 (brief in

opposition to Monster's post-trial motions), 197 (brief in support of the Beastie Boys' motion for
a permanent

injunction); the parties' examinations of witnesses in depositions and at trial about

the Beastie Boys' endorsement practices were directed at that claim; the extended expert

testimony attrial as to the value of an implied endorsement-as opposed to the value of a license
to use copyrighted works-was necessitated by that claim; and the parties summed up

extensively attrial with close attention to the elements of the Lanham Act claim (the only claim
as

to which liability was contested), the subsidiary issues of intentional deception and bad faith,

and the quantum of damages for false endorsement. It is fair to assume, too, that a material part

of the jury's deliberations were devoted to the Lanham Act claim.
The Court's unscientific but carefully considered assessment is that a further reduction
20Yo

of

the fees paid by the Beastie Boys is appropriate to strip out the legal work that, but

identical, and expert discovery, the trial, and post-trial proceedings would have been
substantially the same." Beastie Reply B.r.7.
40

for

of

the Lanham Act claim, would not have been done.lO This reduction of $333,924.57 leaves a fee

of $1,335,698.28.

3.

The Fee Award Consistent With Advancing Statutory Purposes

The Court, finally, considers the extent to which a fee award here would further the goals

of the Copyright Act.
For four reasons, the Court's judgment is that an award to the Beastie Boys of 50o/o of the
$1,335,698.28 in fees which the Court has found reasonable and necessary to incur on the

copyright claims-1.

¿.

, 5667 ,849.

14-is

appropriate.

First, as discussed earlier, although significant statutory interests are served by a fee
award, there are competing considerations. A fee award to the Beastie Boys would advance the
goals of compensation and deterrence and reflect Monster's willful infringements, as found by
the

jury; it would also reflect the objective uffeasonableness of Monster's denial of infringement

until the brink of trial, and its attempt to shift responsibility for infringementto Z-Trip. But, at
the same time, there are factors disfavoring an award, including that Monster's legal positions at

trial were objectively reasonable, and that the willfulness and other damages-related issues on
which the copyright claims turned af trial presented hard questions as to which reasonable minds
could differ. These opposite considerations counsel shifting to Monster part, but not all, of the
objectively reasonable fees on the copyright claims. Cf GMA Assocs., 1nc.,2004 WL 1277997,
at *3 (reducing fee award by 86% where "plaintiff was the prevailing party," but "it was not so
by much").

l0

Although the jury's damages verdict is not a reliable proxy for the quantum of legal work, the
Court notes that a20Yo reduction is not far afield from the percentage (29%) of the overall $1.7
million damage award which the Lanham Act verdict ($500,000) represented.

4t

Second, the statutory interest of compensation is met by the award the Court issues. On

the 10 copyright infringement claims, the Beastie Boys recovered $1.2 million in statutory
damages, trumping the alternative finding of $1

million in actual damages. And by the Court's

calculations, the Beastie Boys reasonably spent $1,33 5,698.28litigating these claims. Without a
fee award, the Beastie Boys would be in the red by some $135,698.28, if one compares the

copyright damages award to the group's reasonable fee expenditures. An award of $667,849.14
ensures ample net compensation to the Beastie Boys for the infringement of their copyrights: By

the Court's measure, plaintiffs would come out ahead by some $532,150.86. The Copyright

Act's goal of compensating victims of infringement does not, in the Court's judgment, require

a

larger net recovery.

Third, the award the Court imposes is sufficient, but not greater than necessary, to deter
future would-be infringers. On the copyright claims, Monster is already accountable for the $1.2

million damages award, plus its own legal fees, which assuredly are substantial. A fee award of
$667,849.I4 adds significantly to the price tag of Monster's infringements. It should lead future
parties either contemplating infringement, or designing corporate protocols with respect to the

handling of intellectual property, to think twice before disrespecting others' copyright interests.
Fourth and finally, the award chosen here is in harmony with other fee awards in

copyright cases, including in this District. In a number of less complex cases involving shorter
trials, awards have ranged from about one-quarter to one-half of that imposed here. See, e.g.,
Crown Awards, 564

F

. Supp. 2d at 297

(plaintiff awarded $ 1 50,024.5

1 after a one-day bench

trial); Richard Feiner & Co. v. Turner Entm't Co., No. 96 Civ.1472 (RO), 2004WL2710054, at
*2 (S.D.N.Y. Nov. 23,2004) (plaintiff awarded $219,577.63 after

a four-day

jury trial); In

Designv. Lauren Knitwear Corp.,782F. Supp. S24 (S.D.N.Y. 1991) (plaintiff awarded

42

$103,688 after abrief bench trial). And in copyright cases of comparable duration and

complexity, courts have awarded legal fees consonant with those awarded here. See, e.g.,
Yankee Candle Co. v. Bridgewater Candle Co.,

LLC,140 F. Stpp. 2d

lll

(D. Mass.), af'd,259

F.3d25 (lst Cir. 2001) (prevailing defendant awarded $890,282.40 following apaftíal grant of
summary judgment); ABC, Inc. v. Primetime 24, 67 F. Supp. 2d 558,567 (M.D.N.C. 1999),

aff'd,232 F.3d 886 (4th Cir. 2000) (plaintiff awarded $605,240.75 following grant of summary
judgment); Synapsis Corp. v. Veenstra, 116 F.3d 486,486 (9th Cir. 1997) (unpublished
disposition) (prevailing defendant awarded $536,908.10 after grant of summary judgment);
Fantasy Inc. v. Fogerty,No. 85 Civ.4929 (SC), 1995 V/L 261504,
1995),

ú* I (N.D. Cal.I|l4:ay 2,

aff'd,94 F.3d 553 (9th Cir. 1996) (prevailing defendant awarded 51,249,028.66 following

jury trial and appeal to Ninth Circuit and Supreme Court); Cable/Home Commc'n Corp.

v.

Network Prods., únc.,902F.2d829, S53 (1lth Cir. 1990) (plaintiff awarded $451,789.06 after
grant of summary judgment). This case required plaintiffs to incur substantial fees, and in
awarding fees, the Court must consider "the complexity and difficulty of the case" and "the
resources required to prosecute the case effectively (taking account

ofthe resources being

marshaled on the other side but not endorsing scorched earth tactics)." Arbor Hill,522 F.3d at
I

84. Given these factors, an award of $667,849. 14 is in harmony with these landmarks, whereas

an award

of 100% of the fees which the Court

has found reasonable and necessary would not be.

Accordingly, the Court approves a fee award to the Beastie Boys of $667,849.14.

IV.

Costs
Under the Federal Rules of Civil Procedure,

oocosts

other than attorney's fees" generally

"should be allowed to the prevailing party," "unless a federal statute, these rules, or a court order
provides otherwise." Fed. R. Civ. P. 54(dX1). As noted, the Copyright Act provides that "the

43

court in its discretion may allow the recovery of full costs by or against any
$ 505. For the reasons explained at pages

partyl'

17 U.S.C.

7-I7, supra, the Court finds that the Beastie Boys

are

entitled to an award of costs under the Copyright Act. In addition, under the Lanham Act, "the

plaintiff shall be entitled" to recover "the costs of the action" where

a

violation of $ 1125(a) of

that statute has been established. 15 U.S.C. $ 1117(a). Here, the jury found that Monster's video
created an implied false endorsement in violation

verdict.

See

of $ I 125(a), and the Court upheld

the

jury's

Beastie ìoys,2014WL6845860, at*22-30. Accordingly, the Beastie Boys are

entitled to recover full costs under both the Copyright Act and the Lanham Act.
Monster challenges the Beastie Boys' costs on a line-item basis. See Monster Br. 24-26.

However, the Clerk of Court, not this Court, must resolve those disputes in the first instance. See
Overseas Direct Imp. Co. v. Family

Dollar Stores

1nc.,

No. 10 Civ. 4919 (JGK), 2013 WL

5988937, at *3 (S.D.N.Y. Nov. 12,2013). Pursuant to Local Rule 54.1:

V/ithin thirty (3 0) days after the entry of final j udgment, or, in the case of an appeal
by any party, within thirty (30) days after the final disposition of the appeal, unless
this period is extended by the Court for good cause shown, any party seeking to
recover costs shall file with the Clerk a notice of taxation of costs by Electronic
Case Filing . . . . A party objecting to any cost item shall serve objections by
Electronic Case Filing . . . . The Clerk will proceed to tax costs at the time
scheduled and allow such items as are properly taxable.
Accordingly, the Beastie Boys are directed to present a bill of costs to the Clerk within 30 days
of the final disposition of Monster's appeal or, if no appeal is taken, within 30 days of the entry
of final judgment by this Court. After the Clerk awards costs, the parties will have seven days to
appeal that award to this

Court. Fed. R. Civ. P. 5a(1Xd);

see also Whitfield v.

Scully,24l F.3d

264,269 (2d Cir.2001); Balance Point Divorce Funding, LLC v. Scrantom, No. 13 Civ. 1049
(PKC), 2015 WL 997718, at*2 (S.D.N.Y. Mar.6,2015). For the time being, the Court does not
reach the merits of Monster's objections to the tabulation of costs presented by the Beastie Boys.

44

CONCLUSION
For the foregoing reasons, the Court hereby awards the Beastie Boys attorneys' fees in
the amount of $667,849.14. The Clerk of Court is directed to terminate the motion pending at
docket number 188, and to close this case.

SO ORDERED.

flrl '{

Paul A. Engelmayer
United States District Judge

Dated: June 15,2015
New York, New York

45