for seizing counterfeit goods it should cooperate with the wronged trademark owner to the full extent permitted by law. The USCS was required by statute to advise Plaintiff of a counterfeit shipment and to provide it all relevant information. It was unreasonable for the USCS to withhold the information for two years and then not to produce all relevant data until Plaintiff commenced its lawsuit. To later destroy the materials only adds insult to injury.
In sum, this Court finds that Plaintiff has "substantially prevailed" and is eligible for fees and costs in this matter.
II. The Amount of Plaintiff's Award for Fees and Costs
Plaintiff has applied to the Court for attorney fees at $ 44,843.00 and costs at $ 11,034.69. It is Plaintiff's view that it should be awarded the entire amount of its request. Plaintiff states its fees and costs request represents a discount from its normal billing rates and excludes hours that were expensive, redundant or unnecessary.
Under the law Plaintiff can only obtain compensation for its litigation costs. It can receive nothing for its preliminary expenditures.
The government does not view the amount of Plaintiff's request to be reasonable. It argues that Plaintiff should not be compensated for work on issues such as its pursuit of an advisory opinion from this Court when it "ultimately did not prevail," nor should Plaintiff be compensated for "non-productive time." Weisberg v. Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1499 (D.C. Cir. 1984). The government also challenges Plaintiff's claimed entitlement to 322 hours of work by three attorneys in this matter, as well as the hourly billing rates of the attorneys. At most, the government argues, Plaintiff is entitled to an award of about $ 22,000 in attorney fees and costs.
The Court finds that Plaintiff's billing rate and the number of hours spent on this matter were not excessive. The charges were well within the normal billing rates of the partners involved in this matter, and the hourly billing rate for the associate who spent the most time on this matter was reduced from $ 200 to $ 100. Plaintiff acted reasonably and did not attempt to gouge the government.
That having been said, the Court believes that Plaintiff had mixed public and private reasons for pursuing this action and that fact must be taken into consideration. While it is difficult to assess the public versus the private benefit present in this case, a reduction of 40% would properly reflect the costs that should be attributable to Plaintiff's private benefit. Since Plaintiff is precluded from bringing a winnable trademark infringement case due to the actions of the government in this matter (i.e. the destruction of the counterfeit materials), the public benefit should be viewed as greater than the private benefit. Because there is now the likelihood the government will change its procedures to better assist the private sector in enforcing this nation's trademark laws, the court believes that 60% of the fees and costs would be a fair value to attribute to the public benefit aspect of the case.
Applying this formula, Plaintiff will be awarded $ 26,905.80 in attorney fees and $ 6,620.81 in costs.
Plaintiff has demonstrated that it has "substantially prevailed" in this matter and is entitled to be awarded attorney fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). Because this matter involves both a "public benefit" and an advancement of Plaintiff's private interest, Plaintiff will receive an award of 60% of its application for fees and costs, or $ 26,905.80 and $ 6,620.81. An appropriate Order is attached hereto.
United States District Judge
This matter comes before the Court on Plaintiff's Motion for Attorney Fees and Costs pursuant to the Freedom of Information Act (the "FOIA"), 5 U.S.C. § 552(a)(4)(E). The Court has considered the motion and the opposition thereto, and heard argument on March 4, 1997. For the reasons cited in the accompanying Memorandum Opinion, it is hereby
ORDERED that Plaintiff's motion is GRANTED ; and it is
FURTHER ORDERED that Plaintiff will receive an award of 60% of its application for fees and costs, or $ 26,905.80 and $ 6,620.81.
United States District Judge