would be tried in New York, vigorous motion practice resulted including
preliminary injunction and discovery disputes.
After a seven-day jury trial held from October 18 to November 1, 1999,
judgment was entered on June 1, 2000, granting Yurman relief on its
claims for copyright and trade dress infringement against PAJ, all
post-trial motions having been resolved by an Opinion and Order of April
10, 2000. Based upon a finding of willful infringement of Yurman's
copyrighted jewelry designs, the judgment provided for an award of
Yurman's attorneys' fees and costs pursuant to Section 505 of the
Copyright Act, 17 U.S.C. § 505.
Yurman moved for attorneys' fees and costs it incurred in connection
with the prosecution of its copyright claims for the period from November
1, 1998 (the month in which Yurman commenced its investigation of
defendant's infringing activities, resulting in the preparation and
transmittal of a cease and desist letter to defendant on November 8,
1998) to May 30, 2000, in the total amount of $825,430.39, attributing
$742,303.00 to fees and $83,127.39 to costs. Discovery was had in
connection with the application, and the motion was heard and marked
fully submitted on November 20, 2000.
The following facts are found based upon the submissions of the parties
and hard-won familiarity with the litigation. Both sides have submitted
evidence by affidavit and deposition, and neither has requested an
evidentiary hearing. The nature of the factual issues presented are
particularly suited to the resolution as set forth below.
More than 700 billing entries and charges have been submitted in
support of the application, the great majority of which are not
specifically attributable to Yurman's copyright claim. Only 37 billing
entries and charges specifically refer to the copyright claim, and
attribute 12.50 hours to partners, 161.95 to associates and 5.75 hours to
paralegals. According to PAJ's expert, the fees actually billed to Yurman
for entries expressly attributable to the copyright claims are
A number of the billing entries and charges for December 1998 through
January 1999, relate to a declaratory judgment action brought by PAJ in
Texas. According to PAJ, billing attributable to the Texas declaratory
judgment action include: partners, 17.25 hours; associates 65.50 hours
and paralegals 21.50 hours.
In its submission, Yurman asserts that it did not include any fee
specifically attributable to non-copyright claims, and that it attributed
fifty percent of all charges from September 8, 1999 to November 1, 1999,
to the copyright claim, as well as seventy-five percent of all charges
from November 1, 1999 to December 1, 1999. As to costs, all were
attributed to the copyright claim other than costs incurred for purposes
of trial preparation and trial, i.e., for the period September 8, 1999 to
November 1, 1999. For this latter time period, Yurman attributed fifty
percent of its costs to its copyright claim.
Three of the forty-nine findings of fact proposed by Yurman related to
the copyright claim. Four of the PAJ pieces were found to infringe
Yurman's copyrights and trade dress and twenty pieces were found to
infringe the trade dress.
Yurman was billed $1107,808.50 in fees and $113,785.17 in costs which
included the fees and expenses attributable to the Texas Action.
Yurman's application for fees is calculated on average billing rates of
$520.69 per hour for partners, $278.50 per hour for associates, and
$162.35 per hour for paralegals/non-lawyers, the charged partner rate
being the "customary rate," of Maxim H. Waldbaum ("Waldbaum") the partner
in charge of the litigation. The charged associate rate is based upon the
1999 National Law Journal Survey of the rates employed by the nation's
250 largest firms,
including firms located outside the Southern District of New York.
With respect to the few New York City firms listed, the average firm
size is 365 attorneys, with the smallest firm (Battle Fowler, L.L.P.) at
169 attorneys and the largest (Skadden, Arps, Slate, Meagher & Flom,
L.L.P.) at 1,403 attorneys. The remaining listed New York City firms vary
from 207 to 300 attorneys, averaging 272 attorneys. Pryor Cashman Sherman
& Flynn has 130 attorneys.