records be kept of all future dispensing of minoxidil products, including the dispensing date, the contents of the solution and the quantity of Rogaine contained in the product; and (3) all future purchases of Rogaine be made directly from Upjohn rather than from distributors or other third parties.
With respect to Upjohn's claim for attorneys' fees, it is well-settled that the costs of prosecuting a party's contempt are recoverable where the violation of the court order has been "willful." Manhattan Indus., Inc. v. Sweater Bee By Banff, Ltd., 885 F.2d at 8; Vuitton et Fils S. A. v. Carousel Handbags, 592 F.2d 126, 130-131 (2d Cir. 1979) (citing W. E. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 664-65 & n.5 (2d Cir. 1970)); Wella Corp. v. Wella Graphics, Inc., 874 F. Supp. 54, 56 (E.D.N.Y. 1994). As the Court has found the contemptuous conduct to be willful, Upjohn is entitled to reasonable attorneys' fees for pursuing this action.
For the aforementioned reasons, Upjohn's motion for an order of contempt is granted. Accordingly, it is hereby
ORDERED that, by August 1, 1995, Upjohn shall provide the Court with (1) documentation relevant to a determination of its lost profits in terms of foregone sales to defendants beginning in October 1990; and (2) detailed time records setting forth the legal fees incurred in pursuing its contempt motion. It is further
ORDERED that Imbriolo may submit any documentation relevant to these issues by August 15, 1995. It is further
ORDERED that Imbriolo maintain written records of all future dispensing of minoxidil products, including the dispensing date, the chemical contents of the solution dispensed and the quantity of Rogaine contained in the product. It is further
ORDERED that defendants' future purchases of Rogaine be made directly from Upjohn rather than from distributors or other third parties. It is further
ORDERED that Upjohn is authorized under the supervision and with the assistance of the United States Marshal, to take all necessary steps to secure and remove all inventory of Minoxidil Plus at the Hair & Skin Treatment Center, D.J. Carlisi, M.D., P.C. located at 3 East 80th Street, New York, New York, including breaking open, entering and searching for said property and delivering it to the Court. It is further
ORDERED that anyone interfering with the execution of this Order is subject to arrest by the United States Marshal and/or his or her representative. It is further
ORDERED that Upjohn, on whose behalf the court issues this Order, will account completely for all property seized pursuant to this Order and shall compile a written inventory of all such property and shall provide a copy to the United States Marshal, who shall include such copy with his delivery to the court. It is further
ORDERED that Upjohn, on whose behalf the court issues this Order, shall hold harmless the United States Marshals Service and its employees from any and all claims, asserted in any court or tribunal, arising from any acts, incidents, or occurrences in connection with the seizure and possession of the defendant property, including any third-party claims.
SHIRLEY WOHL KRAM
United States District Judge
Dated: New York, New York
July 19, 1995