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PLAYBOY ENTERPRISES v. U.S. CUSTOMS SERV.

March 18, 1997

PLAYBOY ENTERPRISES, INC., Plaintiff,
v.
U.S. CUSTOMS SERVICE, Defendant.



The opinion of the court was delivered by: SPORKIN

 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). *fn1" The Court has considered the motion and the opposition thereto, and heard argument on March 4, 1997.

 BACKGROUND

 Plaintiff is the registered owner of a number of trademarks including U.S. Registered trademarks for its RABBIT HEAD DESIGN ("Rabbit Head Design") mark. It has been using its Rabbit Head Design mark since 1954 with a variety of merchandise, including clothing, footwear, jewelry, perfume, wallets, sunglasses, sporting equipment, videos, magazines and television programs. The Rabbit Head Design mark is recognized throughout the world and Plaintiff has been actively engaged in protecting it from being misused by exerting efforts to rid the marketplace of counterfeit goods.

 In November 1994, a large number of cartons of wearing apparel bearing the Rabbit Head Design mark were confiscated by the U.S. Customs Service (the "USCS") in Laredo, Texas. Plaintiff's attorneys were notified of the confiscation by letter dated December 19, 1994 and requested more information from the USCS with respect to the confiscation.

 By letter dated August 18, 1995, the office of the USCS Regional Counsel in Houston, Texas informed Plaintiff that the search of documents was complete and that a fee of $ 21.46 was due before the information would be released. Plaintiff sent a check in that amount by letter dated August 24, 1995.

 After receiving Plaintiff's check, the USCS denied Plaintiff's request for the FOIA Material in a letter dated August 30, 1995. The USCS claimed that the FOIA Material was exempt from disclosure under 5 U.S.C. § 552(b)(4) as "trade secrets and commercial or financial information, obtained from a person which is privileged or confidential and, therefore, exempt from disclosure." The USCS also claimed that the samples of apparel requested by Plaintiff were not "records" for purposes of the FOIA. Plaintiff appealed the agency's initial decision through the administrative process, and its appeal was denied on June 21, 1996.

 Plaintiff filed suit in this court under the FOIA on August 16, 1996, seeking the withheld materials. The parties agreed that each would file motions for summary judgment in order to resolve their dispute at a motions hearing. The parties appeared before this Court for a status hearing in October 1996. On December 19, 1996, the government stated that it had reconsidered its position and would produce all of the documents requested by Plaintiff. *fn2" The government further stated that it could not provide Plaintiff with samples because all of the seized wearing apparel had been mistakenly destroyed. On those bases, the government moved to dismiss Plaintiff's complaint as moot.

 This Court held a hearing on February 4, 1997 to consider the government's motion. Plaintiff opposed the motion, and sought an advisory opinion from the Court as to whether clothing samples are "records" subject to the FOIA. While the Court declined to issue such an advisory opinion in its order of dismissal dated February 11, 1997 (the "Order of Dismissal"), it did retain jurisdiction over this case to decide Plaintiff's request for attorney fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). The Court also specifically retained jurisdiction for two years to allow Plaintiff to "move to reopen the case should Plaintiff's subsequent FOIA request[s] for information or clothing samples relating to goods seized by the USCS that bear a counterfeit Playboy trademark be denied, or Plaintiff deems there is a need for immediate action to prevent the destruction of information or clothing samples by the USCS such as occurred in this case."

 ANALYSIS

 There remain two issues before this Court (1) whether Plaintiff should be awarded attorney fees and costs; and (2) if so, what should be the amount of Plaintiff's award.

 I. Awarding Attorney Fees and Costs to Plaintiff

 The FOIA allows a district court to "assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). In order to determine whether a FOIA litigant should be awarded such fees and costs, the Court must engage in a two-step analysis. First, the court must determine whether an FOIA litigant has "substantially prevailed" and is therefore eligible for fees and costs. Second, if the FOIA litigant is deemed eligible, the court must make a discretionary determination as to whether the FOIA litigant is entitled to recover its costs. See, e.g., Tax Analysts v. Department of Justice, 296 U.S. App. D.C. 130, 965 F.2d 1092, 1093 (D.C. Cir. 1992).

 A. Plaintiff has "substantially prevailed" under 5 U.S.C. § 552(a)(4)(E)

 In order to demonstrate that Plaintiff has "substantially prevailed," the plaintiff must show that the filing and pursuing of the lawsuit was reasonably necessary to produce the requested records and that a causal nexus exists between the suit and the agency's disclosure of records. Maynard v. CIA, 986 F.2d 547, 568 (1st Cir. 1993).

 Plaintiff has demonstrated that it has "substantially prevailed." The government only agreed to release the requested records to Plaintiff on December 19, 1995, well after Plaintiff had exhausted its administrative remedies in an effort to reverse USCS's assertion of its claimed "trade secret" FOIA exemption under 5 U.S.C. § 552(b)(4), and well after it had filed its lawsuit in this Court. ...


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