United States District Court, S.D. New York
February 3, 2004.
VIDEO-CINEMA FILMS, INC., Plaintiff,
CABLE NEWS NETWORK, INC. d/b/a CNN, Defendant. VIDEO-CINEMA FILMS, INC., Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC., Defendant. VIDEO-CINEMA FILMS, INC., Plaintiff, v. CBS CORPORATION, OPINION and ORDER Defendant
The opinion of the court was delivered by: BARBARA JONES, District Judge
OPINION and ORDER
Plaintiff Video-Cinema Films, Inc. ("Video-Cinema") sued Defendants
Cable News Network, Inc. LLP, LLLP, d/b/a CNN ("CNN"), American Broadcast
Network ("ABC") and CBS Broadcasting Inc. ("CBS"), claiming that the
infringed Plaintiff's copyright, pursuant to 17 U.S.C. § 101,
and unfairly competed with Plaintiff when they broadcasted nationally
excerpted footage from the motion picture "The Story of G.I. Joe"
after the death of actor Robert Mitchum, who had appeared in that film.
The Court granted summary judgment to the Defendants on September 18,
2001. Video-Cinema Films, Inc. v. Cable News Network, Inc.,
2001 WL 1154625 (S.D.N.Y. Sept. 18, 2003), as amended, 2001 WL
1518264 (S.D.N.Y. Nov 28, 2001).
Following this decision, Defendants submitted an application for legal
fees jointly "to conserve judicial resources," and to avoid unnecessary
and duplicative work and costs. Video-Cinema Films, Inc. v. Cable
News Network, Inc., 2003 WL 1701904, *1 (S.D.N.Y. Mar. 31, 2003).
The Court ruled in favor of the Defendants on March 31, 2003 ("Fee
Decision"). Id. In reaching its decision to award fees and
costs to Defendants, this Court noted that " [t]hroughout the underlying
litigation, Plaintiff made objectively unreasonable factual and legal
arguments." Id. at *2 (citing several arguments that the Court
found to be without merit).
Presently before the Court are the motions to determine the exact
amount of attorneys' fees and costs
Plaintiff will pay to Defendants pursuant to the Fee Decision. See
Section 505 of the Copyright Act provides that:
[i]n any civil action under this title, the court
in its discretion may allow the recovery of full
costs by or against any party other than the
United States or an officer thereof. Except as
otherwise provided by this title, the court may
also award a reasonable attorney's fee to the
prevailing party as part of the costs.
17 U.S.C. § 505.
In determining what constitutes a reasonable fee award under Section
505, courts in this circuit frequently apply the "lodestar" method.
See Crescent Pub'g Group, Inc. v. Playboy Enters.,
Inc., 246 F.3d 142, 146, 150 (2d Cir. 2001); see generally
Yurman Designs, Inc. v. PAJ, Inc., 125 F. Supp.2d 54 (S.D.N.Y.
2000). Under this method, "fees are determined by multiplying the number
of hours reasonably expended on the litigation by a reasonable hourly
rate." Earth Flag Ltd, v. Alamo Flag Co., 154 F. Supp.2d 663,
668-69 (S.D.N.Y. 2001) (citing Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)); see also Savoie v. Merchants
Bank, 166 F.3d 456, 460 (2d Cir. 1999).
Rates are deemed reasonable when they are "commensurate with the rates
prevailing in the community for similar services by lawyers of reasonably
skill, experience and reputation." Yurman Designs,
125 F. Supp.2d at 58; see also Crescent Publ'g Group, 246
F.3d at 150-51. Some courts have considered various publication surveys
of billing rates, such as the National Law Journal's annual survey of
rates charged by the nation's 250 largest law firms and the billing rate
surveys conducted by the American Intellectual Property Law Association
("AIPLA"). See, e.g., Yurman Designs, 125 F. Supp.2d
at 55-58; Celebrity Serv. Int'l, Inc. v. Celebrity World, Inc.,
9 U.S.P.Q.2d 1673, 1687 (S.D.N.Y. 1988). Courts also may consider the
billing rates approved in comparable cases, see, e.g.,
Luciano v. Olsten Corp., 109 F.3d 111, 115-16 (2d Cir. 1997);
New York State Nat'l Org. for Women v. Pataki, 2003 WL 2006608,
*2 (S.D.N.Y. Apr. 30, 2003), and may also rely on their own knowledge of
current market rates for attorneys of similar skill and experience.
See Screenlife Establishment v. Tower Video, Inc.,
868 F. Supp. 47, 53 (S.D.N.Y. 1994).
Fee awards should also reflect the skill of the attorneys and the
results achieved. Earth Flag Ltd., 154 F. Supp.2d at 669. With
respect to the "results achieved" aspect, courts have repeatedly stressed
that success is to be measured by whether important copyright policies,
such as the fair use doctrine, have been advanced by the party's
actions, not by mere financial gain or by the amount at issue.
See Crescent Publ'g Group, 246 F.3d at 150 ("Because
copyright actions may not always result in high damage awards, for
instance if the commercial value of the work is minimal . . . an
objective measure such as the lodestar seems the most effective method in
enabling parties to retain competent counsel.").
The Court finds that the hours claimed by all the Defendants are
reasonable, especially in light of the protracted nature of the
litigation and the objectively unreasonable arguments made by the
Plaintiff, but modifies each Defendant's requested reward, as explained
more fully herein.*fn1 Cf. id., 246 F.3d at 147,
CNN, through its counsel Davis Wright Tremaine LLP ("DWT"), seeks the
award of attorney's fees and costs in the amount of $282,855 ($236,439 in
fees and $21,045 in costs for all legal work performed in the underlying
action, and $24,567 in fees and $804 in costs for all legal work
performed in the fee proceedings).
a. DWT's Billing Rates
One partner, two associates, and several paralegals at DTW, a national
law firm of more than 300 attorneys, worked on this litigation out of
DWT's New York office since the case's inception in October 1998 through
the summary judgment decision in October 2001. (Balin Decl. at 10-11).
DWT has a sizable media law and intellectual property department and
represents numerous high-profile clients in copyright, amongst other
types, of litigations. (Id. at 11, Ex. 11). The specific
attorneys who worked on this matter are very well-educated,
well-credentialed and experienced in IP litigation. (Id. at
11-14; Exs. 12-14).
From October 1998 until June 1999, DWT charged CNN on all the matters
it handled for CNN*fn2 the standard billing rates of the partners,
associates and paralegals working at the firm. (Id. at 14) From
June 1999 through December 1999, under a "sliding scale volume"
arrangement, the rates billed were discounted by 5%, then 8%, then up to
10% from the standard rates. (Id.). Thereafter, a new
arrangement took affect, whereby DWT's standard fees were flatly
discounted by 10%, from January 2000 through mid-2001, and
then modified only for partner's billing to a 13% discount through
December 2002. (Id. 14-15).
For instance,*fn3 in 2000, the per hour rates were as follows: the
partner's standard rate was $295 and billed rate to CNN was $265; the two
associates' standard rates were $240 and $200, and billed rate to CNN was
$216 and $180 respectively, the paralegals' standard billing rate was
$120 and billed rate to CNN was $108. (Id. at 15; Ex. 6).
The Court finds that DWT's billing rates are reasonable for several
reasons. First, these rates are commensurate with the rates prevailing in
the community for similar services by lawyers of reasonably comparable
skill, experience and reputation. Cf. Yurman Designs,
125 F. Supp.2d at 58. Accordingly to the AIPLA surveys, DWT's billing
rates are below the median rates charged by other New York law firms of
similar size and copyright litigation experience. (See Balin
Decl. Exs. 15-17). For example, in 2000, the median billing for New York
City intellectual property law firms were $370 per hour for partners and
$250 per hour for associates, which is at or above DWT attorneys' rates.
(See id. Ex. 16; see also Ex. 18
that 80% of New York law firms paralegals rates ranged from $105 to
Second, DWT's billing rates are also below the rates awarded New York
counsel in similar intellectual property litigations. Cf.
Yurman Designs, 125 F. Supp.2d at 55-58 (approving and
awarding average billing rates of $520 for partners, $278 for associates,
and $162 for paralegals for the year 1999); Yamanouchi
Pharmaceutical Co. v. Danbury Pharmacal, Inc., 51 F. Supp.2d 302,
305 (S.D.N.Y. 1999)(finding 1998 partner billing rates of $350 and $390
"ball-park reasonable"). Third, the Court, from its own knowledge of
prevailing billing rates, finds DWT's rates to be reasonable.*fn4
Therefore, the Court finds that the rates billed by DWT's attorneys and
paralegals are reasonable.
b. Time Spent by DWT
DWT invoiced 1,057 hours of work for all of its employees involved in
this litigation. The Court finds this amount of time is reasonable for
this protracted litigation that spanned three years and included motions,
and discovery requests and disputes. See Ballin Dec. at
25-40. DWT's time was also undoubtedly multiplied by Plaintiff's numerous
unreasonable claims and arguments. See Video-Cinema Films, 2003
WL 1701904, at *2-5. Moreover, it is clear from the records supplied by
DWT that, in addition to its discounted rates, it also wrote off more
than 72 hours of work.*fn5 (Ballin Dec. Exs. 4-6). Accordingly, the
Court finds that the number of hours invoiced by DWT reasonable.
Plaintiff does not directly challenge the reasonableness of total hours
DWT billed, but argues that Plaintiff should not have to pay for the
hours spent in internal conferences at DWT, and conferences and
communications between DWT and the other Defendants. (Seltzer's CNN Rep.
at 4, 8). Plaintiff offers no legal authority for this contention, and
the Court finds that time spent strategizing, both internally and with
other parties who are litigating the same claims, is legitimate so long
as the time is not excessive. Here, the time spent
was not excessive, and the Court therefore finds that these hours
Plaintiff also argues that DWT's computer records are not
contemporaneous time records of the legal work performed and that they
should therefore be disregarded. The Court does not agree.
In order to evaluate the exact compensation to order, a court should
examine contemporary time records that "specify, for each attorney, the
date, the hours expended, and the nature of the work done." New York
State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136,
1148 (2d Cir. 1983). Original time sheets, however, are not required;
computer print-outs of the pertinent entries, when accompanied with an
affidavit, are sufficient. See Tri-Star Pictures v. Unger,
42 F. Supp.2d 296, 302-03 (S.D.N.Y. 1999).
In this case, it is clear that the records submitted by DWT qualify as
contemporaneous time records. DWT provided the Court with extensive
records of its time entries (Ballin Dec. Exs. 4-5) and its invoices (Ex.
6). The records show the date on which the services were performed, the
hours spent and the nature of the activity performed. Cf. New York
State Ass'n for Retarded Children, 711 F.2d at 1147-48.
Video-Cinema's argument that such
documentation is inadequate is both unsupported and directly
contrary to prevailing law. See also Auscape v. National Geographic
Society, 2003 WL 21976400, *3 (S.D.N.Y. Aug. 19, 2003) ("[Counsel]
has submitted a printout from what appears to be its counsels' billing
software which contains all the required information. Such a submission
clearly meets the evidentiary threshold for the recovery of attorneys'
Therefore, the Court finds the hours, as evidenced by the records
produced with DWT's fee application, reasonable.
c. Results Achieved
With respect to the final lodestar factor, the results achieved, it is
clear to the Court that DWT, and indeed, all of the Defendants,*fn6
achieved significant success for several reasons. First, Plaintiff's
claims against CNN were dismissed on summary judgment. Second, this
litigation advanced the important copyright policy of "fair use," and
serves as precedent protecting similarly-situated news organizations from
future infringement claims arising from their practice of making
reasonable use of short film excerpts in news stories.
d. The Billing Agreement
Even though the Court finds DWT's hourly rates reasonable, it declines
to award the full amount of fees that DWT requests because CNN did not
pay this amount. CNN entered into a billing agreement in September 1999,
approximately one year after the litigation began. As of that time, CNN
had already been billed $95,928.69 in fees alone. The agreement capped
DWT's fees going forward, through summary judgment, at $20,000. CNN
argues that this agreement should not be controlling and that the Court
should award it the "reasonable" fees it was charging CNN on the other
matters it was handling for them.
In Crescent Publishing Group, Inc. v. Playboy Enterprises,
Inc., the Second Circuit stated that although the "lodestar method
suggests that the prevailing rate in the community should trump any
agreement for a lower rate made between the client and its private
counsel," a court should also be careful not to award a fee that could be
considered a "penalty." Crescent Publ'g Group, 246 F.3d at
150-51. Similarly, the Court indicated that although "[i]n some
instances, the actual billing arrangement may not be reasonable," courts
should nonetheless be mindful that "the billing arrangement is a
significant . . . factor in determining what fee is `reasonable.'"
Id. at 151. Most
importantly, the Court warned that a fee award should not amount to
a windfall for the prevailing party. See id.
The Court finds that awarding more than CNN paid pursuant to the fee
agreement here would amount to a windfall for CNN and a penalty against
Plaintiff. The cases cited by CNN, which mostly deal with fee awards in
Section 1988 cases, are inapposite. Although courts allow fee awards in
Section 1988 cases that exceed a fee agreement, there is one significant
difference between the statutes at issue: Fees awarded pursuant to
Section 1988 go directly to the attorneys, whereas under the Copyright
Act, they are awarded to the prevailing party. See id.
([Section 505 of the Copyright Act] clearly provides for a fee award to
be made to a prevailing party, not directly to counsel."). The policy
concerns that weigh in favor of awarding fees to attorneys who take
Section 1988 cases i.e., providing an incentive to these
attorneys by paying them at the prevailing rate rather than the rate that
their clients can afford to pay are absent here.
Accordingly, the Court awards CNN $95,928.69 in attorneys' fees
incurred prior to the fee agreement and $20,000 incurred pursuant to the
fee agreement, for a total of $115,928.69.
e. Costs Incurred in the Underlying Litigation
CNN requests an award for $21,045 in costs for the underlying
litigation. CNN has provided records showing how these costs were
incurred, including electronic research and document duplication, as well
as DWT's bills to CNN reflecting these costs. The Court has reviewed
these costs, which Plaintiff does not contest, and finds that they are
reasonable. Therefore, CNN is awarded costs for the underlying litigation
in the amount of $21,045.
f. Reimbursement for Fees and Costs for Fee Application
DWT also requests $24,567 in fees and $804 in costs for legal services
performed in the protracted fee proceedings, all of which occurred after
CNN's fee agreement with DWT lapsed. The Court finds that this is
reasonable and directs Plaintiff to reimburse CNN in these amounts. The
attorney's fees were calculated by multiplying the hourly rates that the
Court has found reasonable in the previous section by 82.7 billable
hours, which the Court likewise finds reasonable.
CNN's counsel incurred substantial fees and costs countering, as they
had in the underlying proceedings, Plaintiff's meritless arguments,
including that Defendants could not file a fee motion because the "cases
and that Defendants' attorneys "falsely dat[ed]" the moving papers
in an "attempt to cover up their misdeeds." (See Ballin Dec.
Ex. 78; see also id. at 45-50, Exs. 74,
76); Video-Cinemas, 2001 WL 1154625, at *2 (stating that
Video-Cinema's claim "is an example of the frivolous nature of
Plaintiff's arguments"). In addition, DWT wrote off $14,726.09 in
attorneys' fees and $2,105.86 in costs incurred on CNN's opposition to
Plaintiff's untimely Notice of Appeal alone, which Plaintiff agreed to
dismiss after meeting with Second Circuit staff counsel. (Ballin Dec. Ex.
Moreover, as before, DWT wrote off many hours of work spent on the fee
proceedings, including time spent drafting the Motion for Pre-Judgment
Restraint of Video-Cinema, which became moot after its submission, as
well as certain time spent after April 30, 2003 on drafting the extensive
and lengthy Ballin Declaration that accompanied DWT's application for
fees and costs.
Accordingly, the Court awards CNN $162,344.69, which consists of
attorneys' fees in the amount of $115,928.69 and costs in the amount of
$21,045 for the underlying
litigation, and $24,567 in attorneys' fees and $804 in costs for
the fee proceeding.*fn7
ABC requests a total of $127,093 in attorneys' fees and $7,001.97 in
costs for all of the legal work performed throughout the course of this
action. Unlike CNN, however, ABC used its in-house counsel for this
matter rather than retaining outside counsel.
It is well-settled that attorneys' fees and costs should be awarded for
litigation performed by in-house counsel if such fees would be awarded
for the same work performed by outside counsel. Blum v.
Stenson, 465 U.S. 886 (1984); see also
Broadcast Music v. R Bar, 919 F. Supp. 656 (S.D.N.Y. 1996).
Courts usually determine an appropriate fee for in-house counsel's
services based on what the appropriate fee would be for work performed by
"independent counsel for similar services." Broadcast Music,
919 F. Supp. at 661. Therefore, when applying the lodestar calculation,
the court may use a reasonable hourly rate that the in-house counsel
would be awarded if he or she was acting in the capacity of an outside
counsel. See Blum 465 U.S. at 900.
a. Billing Rates
The two attorneys at ABC who worked on this case were well-qualified
and experienced in media law, and would be the equivalent of partners if
they worked at a law firm. Because they were in-house, however, they
performed the functions that would typically be performed by a
combination of senior and junior associate as well. Accordingly, ABC
suggests that the Court use a "blended" rate based on the current market
rates that DWT bills out the two principal attorneys who worked on the
case, and subtracting the same 12% discount, as a reasonable means of
determining a lodestar rate for ABC. This rate comes out to $322 per
Although the Court agrees that ABC's calculation is a reasonable means
of arriving at a billing rate, in this case it would amount to a windfall
for ABC. ABC provided the Court with its "Estimation of the Actual
Imputed Costs of In-House Counsel's Time," in which it calculates that
the attorneys' time is actually worth $152.44 per hour. (ABC's Stat. Ex.
8). Plaintiff asserts, and the Court agrees, that this figure should be
used in the lodestar calculation. Because the court must be careful not
to award fees that could be construed as a "penalty" or a "windfall," the
Court will use the $152.44 figure in the
lodestar calculation for the attorneys. Cf. Crescent
Publ'g, 246 F.3d at 150-51.
ABC asserts that the paralegals' time was worth $108 per hour.
Plaintiff does not challenge this figure, and the Court finds that it is
reasonable. Therefore, the Court will use $108 in the lodestar
calculation of the paralegals' fees.
b. Hours Billed
ABC requests reimbursement for 236.3 hours of attorney time and 9.3
hours of paralegal time.
Similar to its challenge to CNN, Plaintiff does not contest the
reasonableness of the hours purportedly expended by ABC, but instead
asserts that the records produced by ABC verifying the amount were not
Contemporaneous." (Pl's ABC Mem., July 31, 2003, at 2). Specifically,
Plaintiff argues that ABC's former attorney, Stephanie Abrutyn,
"maintained sporadic time records," and "did not submit: an affidavit
. . . as regards whether her alleged time records were recorded
contemporaneously, with any references to them being unreliable since
they are based on hearsay." (Id. at 2). Plaintiff's expert,
Philip Seltzer, challenges Abrutyn's successor attorney, Nathan
Seigel, on the same basis.*fn8 (Report of Philip Seltzer
("Seltzer's ABC Rep.") at 2).
Plaintiff's first contention is, in part, plainly false, as Abrutyn
supplied a sworn affidavit attached to ABC's original Statement as an
Exhibit. (See ABC's Statement of its Reasonable Attorneys' Fees
and Costs ("ABC's Stat.") Ex. B2). Moreover, ABC produced some
contemporaneous records kept by its in-house attorneys, as well as other
contemporaneous records, including DWT's records reflecting time its
attorneys spent with ABC's attorneys and Court records, that evidence
time spent and tasks worked on by ABC's attorneys. (Id. Exs.
2-3). The Court has reviewed these records, and concludes that they
provide sufficient evidence of the 263.3 hours ABC claims it's attorneys
expended and the 9.3 hours expended by the paralegals.*fn9
In addition to this, ABC asserts that it would be grossly
undercompensated for the reasonable value of its work throughout the
three-year litigation if the Court did
not add at least $50,000 in fees for time expended for which no
records were kept. Specifically, ABC argues that it would not be
reimbursed for the time spent on preparing depositions, responding to and
propounding discovery requests, litigating several discovery disputes,
and preparation of summary judgment motions, all of which "occupied most
of [counsel's] time in this case over a period lasting almost a year."
(ABC's Stat. at 16-18).
The Court agrees that $50,000 is reasonable, and more likely than not a
rather conservative estimate of the value of the time actually
rendered.*fn10 However, because ABC did not maintain contemporaneous
records of this time, this award is reduced by 25%. F.H. Rear &
Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir.
1987)(holding that a reduction in fees is appropriate when
contemporaneous records have not been kept); Cf. Broadcast
Music, 919 F. Supp. at 661 (awarding in-house counsel 50% of the
requested attorneys' fees because no contemporaneous records were kept).
Thus, the Court awards $40,137.45 (263.3 x 152.44) plus $37,500, for a
total of $77,637.45, for the attorneys' time and $1,004.40 (9.3 x 108)
for the paralegal's time.
ABC requests an award for $7,001.97 in costs. Plaintiff does not
question the reasonableness of the amount of costs, "but rather
challenges ABC's claim on the basis that it did not provide proper
documentation of the costs, and specifically, that it provided "no
business vouchers or other documentation for travel expenses." (Seltzer
at 5). That statement is plainly refuted by the 26 pages of travel
receipts and expense reports attached the ABC's declaration. (ABC's Stat.
at Ex. 6). The Court has reviewed this evidence and finds that it is more
than adequate. In addition, the Court finds that $7,001.97 is reasonable.
Accordingly, ABC is awarded $85,643.82 in attorneys' fees and costs.
CBS requests $74,826.20 in attorneys' fees and $3,436.78 in costs for
all the legal work performed, which was done by its Law Department rather
than outside counsel.
a. Hourly Rate
CBS requests the same $322 figure for its in-house attorneys that this
Court has rejected for ABC, but does not provide any estimate of the
actual cost to CBS of its in-house counsel's time. The Court therefore
directs CBS to
provide an estimate of the actual imputed cost of its in-house
attorney's time. After reviewing this estimate, the Court will decide the
proper amount of fees to award CBS.
b. Time Billed
Like ABC, CBS's Law Department admits that it is not their regular
practice to maintain time records. Plaintiff argues that because CBS does
not present contemporaneous time records, the amount that CBS requests is
arbitrary and "based on pure speculation." (Declaration of Naomi B.
Waltman in Support of CBS's Application for Award of Reasonable
Attorneys' Fees and Costs, July 31, 2003 ("CBS's Stat."), at 2; Pl's CBS
Mem. at 2; Report of Philip Seltzer "Seltzer's CBS Rep." at 2-4).
Plaintiff's characterization is not accurate. CBS's attorney kept
contemporaneous records for the legal worked performed in conjunction
with the fee proceedings. The Court has reviewed these records, and
approves of the 40.1 hours claimed. In addition, CBS has produced
evidence, most of which consists of DWT's records of conferences and
communications that involved CBS's counsel, showing that they worked at
least 30 hours for the underlying proceedings. The Court finds these
records reliable and
adequate evidence that CBS's attorney worked these 30 hours.*fn11
Therefore, the Court finds that CBS has produced sufficient records to
support 70.1 hours.
However, like ABC, CBS requests $50,000 above whatever figure the
lodestar calculation results in, because it would be undercompensated for
the reasonable value of its work, including for the time spent on
drafting an answer, conducting factual investigations regarding the two
CBS news reports that were at issue in the underlying litigation,
drafting and responding to Plaintiff's discovery requests, preparing for
depositions, litigating several discovery disputes, and the preparation
of lengthy and substantial summary judgment motion papers and reply
After the Court reviews CBS's estimate of the actual imputed cost of
in-house counsel, it will decide whether or to what extend CBS should be
awarded fees beyond the 70.1 hours evidenced by its records.
CBS requests reimbursement for $3,436.78 in costs. Despite Plaintiff's
argument to the contrary, Plaintiff has
provided adequate proof of these expenditures, including bills for
deposition transcripts, document duplicating, and contemporaneous
internal claim forms for travel expenses. The Court has reviewed all of
the proof, and finds that the amount claimed is reasonable. The Court
also notes that this amount is far less than the costs actually incurred
by CBS for expenditures for telephone calls, couriers, mail, electronic
legal research and other items necessary to conduct a litigation, which
are all paid as part of CBS's overhead and which CBS has "no practical
way" of accounting for. (CBS's Stat. at 12).
Accordingly, the Court awards CBS $3,436.78 in costs.
For the reasons above, CNN is awarded $140,495.69 in attorneys' fees
and $21,849 in costs, ABC is awarded ABC is awarded $78,641.85 in
attorneys' fees and $7,001.97 in costs, and CBS is awarded $3,436.78 in
costs. CBS is directed to produce an estimate of the actual imputed cost
of its in-house attorney's time by Tuesday, February 17, 2004. After
reviewing this estimate, the Court will set the amount of CBS's award.