United States District Court, S.D. New York
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, Magistrate Judge.
Plaintiff Dow Jones & Company, Inc. ("Dow Jones") brings this action against defendant Real-Time Analysis & News, Ltd. d/b/a Ransquawk ("Ransquawk") to recover damages stemming from Ransquawk's misappropriation of Dow Jones's news stories and its tortious interference with Dow Jones's contractual relationships. A default and permanent injunction have already been entered against Ransquawk. The only remaining issue is the amount of damages Dow Jones should be awarded.
Dow Jones filed its complaint on January 9, 2014, see Complaint and Demand for Jury Trial, filed Jan. 9, 2014 (Docket # 1) ("Compl."), which was served on Ransquawk on January 15, 2014, see Certificate of Mailing, filed Jan. 15, 2014 (Docket # 2). The complaint contained causes of action for "hot news" misappropriation and tortious interference with contractual relationships under New York law. See Compl. ¶¶ 43-64. Ransquawk failed to respond to the complaint, and on February 20, 2014, Dow Jones obtained a Clerk's certificate of default. See Clerk's Certificate, filed Feb. 20, 2014 (Docket # 5). Dow Jones moved for a default judgment, submitting papers that included declarations and documentary evidence that set forth their request for an award of damages.
On May 15, 2014, Judge Furman issued a "Final Judgment and Permanent Injunction" (Docket # 19) ("May 15 Order"). In the May 15 Order, Judge Furman found that Dow Jones's complaint "states a claim for relief against Ransquawk on both causes of action, " May 15 Order at 1, and granted Dow Jones's request for a permanent injunction against Ransquawk, see id. at 2-3. He also referred the matter to the undersigned for an inquest as to damages. See Order of Reference to Magistrate Judge, filed May 15, 2014 (Docket # 17). On May 19, 2014, this Court issued an Order giving Ransquawk until June 30, 2014, to oppose the damages claimed in Dow Jones's submissions. See Scheduling Order, filed May 19, 2014 (Docket # 20), ¶ 2. This Order notified the parties that the Court would conduct the inquest based upon the written submissions of the parties unless a party sought an evidentiary hearing. Id . ¶ 3. A copy was mailed to Ransquawk's business address.
Because the default entered in this case establishes Ransquawk's liability, see Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir. 1995) (citation omitted), the only remaining issue is whether Dow Jones has supplied adequate support for the relief it seeks, see Kuruwa v. Meyers, 823 F.Supp.2d 253, 256 (S.D.N.Y. 2011), aff'd, 512 F.Appx. 45 (2d Cir. 2013); accord GAKM Res. LLC v. Jaylyn Sales Inc., 2009 WL 2150891, at *2 (S.D.N.Y. July 20, 2009) ("A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability... and the sole issue that remains before the court is whether the plaintiff has provided adequate support for the relief it seeks.") (citations omitted). The Second Circuit has held that a damages inquest may be held on the basis of documentary evidence alone "as long as [the court has] ensured that there was a basis for the damages specified in [the] default judgment." Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991).
Neither party has requested an evidentiary hearing, and Ransquawk has not made any submission to the Court. Because Dow Jones's submissions provide a basis for an award of damages, no hearing is required.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
In light of Ransquawk's default, Dow Jones's properly-pleaded allegations, except those related to damages, are accepted as true. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) ("It is an ancient common law axiom' that a defendant who defaults thereby admits all well-pleaded' factual allegations contained in the complaint.") (citing Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) ("In light of [defendant's] default, a court is required to accept all... factual allegations as true and draw all reasonable inferences in [plaintiff's] favor.") (citation omitted). Thus, the Court's findings of fact are based on the allegations in Dow Jones's complaint regarding liability and the admissible evidence regarding damages contained in its submissions.
A. Facts Relating to Liability
Dow Jones is a Delaware corporation with its principal place of business in New York, New York. Compl. ¶ 5. Ransquawk is a "United Kingdom limited company" with its principal place of business in London, United Kingdom. Id . ¶ 6. Dow Jones is a "widely known and respected publisher of business news and information" that "provides news and information through its newswires, websites, newspapers, newsletters, databases, magazines, and radio and video reports." Id . ¶ 12. Dow Jones "collect[s] and provide[s] accurate, comprehensive, and timely news and business information to its millions of worldwide customers through the significant efforts of its journalists and its substantial investments in its worldwide journalistic infrastructure." Id . Dow Jones's flagship publication, The Wall Street Journal, is America's largest newspaper by paid circulation, having more than 2.2. million readers. Id . ¶ 13. Dow Jones also publishes Barron's and "MarketWatch.com" and operates "Dow Jones Newswires, " which "provides real-time business news and information to hundreds of thousands of financial professionals around the world." Id . Dow Jones's global news department "includes more than 1, 800 journalists working in 45 countries, and Dow Jones incurs millions of dollars of expenses annually that are attributed to its newswire business alone." Malatesta Decl. ¶ 13. "With only a few carefully chosen exceptions, Dow Jones serves as the exclusive distributor of its original news content and does not authorize third parties to distribute that content." Compl. ¶ 14.
Since 2013, Dow Jones has operated "DJX, " which is "an online product that includes original news and analysis from all Dow Jones-owned publications and other news and information resources." Id . ¶ 13. DJX "provides real-time online news and analysis to paid subscribers via live, streaming newsfeeds of headlines and articles generated by Dow Jones." Id . ¶ 15. One of the newsfeeds streamed on DJX, "DJ Dominant, " "compiles in one place exclusive real-time news and analysis from Dow Jones and The Wall Street Journal that can impact markets and that is available nowhere else in the world." Id . ¶ 16. When Dow Jones reporters "break news, " Dow Jones "typically posts to DJ Dominant one or more stand-alone headlines to rapidly communicate hot news to DJX subscribers" and "supplements those headlines with full-text articles shortly thereafter." Id . ¶ 17. Because DJ Dominant is a "time-advantaged service, " it contains "Dow Jones's hottest, most time-sensitive news before Dow Jones publishes that news everywhere else." Id . ¶ 18. Thus, "Dow Jones's hot news is typically published first on DJ Dominant via DJX, then to Dow Jones Newswires customers who have not subscribed to DJX, then to WSJ.com, and then in the print edition of The Wall Street Journal the next day." Id . Dow Jones's "scoops" are made "available exclusively to DJX subscribers before others see [them]." Id . ¶ 19. Because "[t]he electronic delivery of business and financial news is a highly competitive business, " Dow Jones touts its ability "to break news that can impact markets before other sources do" and "highlights this feature for current and potential subscribers, emphasizing that DJX can help put them in position to identify and analyze investing, trading, and hedging opportunities and capitalize on them before their competitors." Id . ¶ 20.
"Customers subscribe directly to DJX by entering into a paid subscription agreement with Dow Jones." Id . ¶ 21. This agreement "permits users to access, review, download, and print' information from DJX for the user's own use" but specifically requires that "users not reproduce, distribute, display, sell, publish, broadcast, or circulate' DJX content to any third party, or make that content available for any such use." Id . Thus, "[a]ll subscribers to DJX must sign either the Dow Jones [Master Agreement'] or similar contractual terms restricting their ability to redistribute DJX content." Id . ¶ 21.
Ransquawk is a competitor that targets the same customer base as Dow Jones and purports to provide "unmatched, instant coverage of Equities, Fixed Income, Energy & Forex." See id. ¶ 23; see also id. ¶ 33 ("Ransquawk competes directly with Dow Jones's DJX product for subscriptions by end-users."). Ransquawk operates a commercial website, "ransquawk.com, " that claims to "deliver a faster, clearer unbiased real-time voice & text newsfeed" to its customers. Id . ¶ 23. Ransquawk offers a "subscription-based software application accessed over the Internet and through a mobile app" that includes "a live audio squawk' broadcast (the audio' component) and an auto-updating text-based newsfeed (the text' component) that allows subscribers to see what [they] hear.'" Id . ¶ 24. According to Ransquawk's website, the Ransquawk application "monitors over 100 news sources" and "aggregates all the major news wires and delivers the information that counts." See id. ¶¶ 24-25. Ransquawk's website "charges variable rates to subscribers based on how many individual listeners' will have access to ...