Dippin’ Dots v. Mosey: The Attorney Fee Appeals
2008-13379/2008-1125 Dippin’ Dots v. Mosey
ND/TX 3:96-cv-1959
Dippin’ Dots appeals from Judge Thomas Thrash, Jr.’s orders awarding over $3.2 million in attorney fees to defendants under § 285. Note that Judge Thrash is from the ND/GA.
This action has a long history and began in 1996 when Dippin’ Dots sued Mosey asserting infringement of 5,126,156 and trade dress, all related to a cryogenically frozen ice cream product. Additional defendants were added and counterclaims, including those of the antitrust flavor, were asserted. The court granted summary judgment to defendants on the trade dress claim (affirmed by 11th Circuit here), and, after a jury trial, a judgment was entered of non-infringement, invalidity and unenforceability. Defendants also prevailed on the Walker-Process antitrust counterclaim, but were awarded no damages. The CAFC mostly affirmed, but reversed on the antitrust counterclaim.
Attorneys Fees. In 2005 the court had awarded one group of defendants (the Manufacturing Parties) $1.9 million in attorneys fees and another (Frosty Bites) $676,000, both under the Clayton Act. Frosty Bites also received $504,000 under § 285.
The Clayton Act awards were vacated when the CAFC reversed at to the Walker-Process claim. However, at that time a CAFC motions panel ruled that the § 285 award order had not been appealed.
Now, on remand, the court took up the issue of whether to award attorney fees under § 285 to “replace” those vacated under the Clayton Act. The court apparently had not made a § 285 award previously because those fees would have been “duplicative” of those awarded under the Clayton Act.
The court ruled that the case was exceptional and, although the antitrust judgment was vacated, noted that it did not change the finding that Dippin’ Dots had committed fraud and inequitable conduct before the PTO. Thus, the court granted the requested fees, less a small amount attributable to the trade dress claim. The court rejected Dippin’ Dots request to exclude fees attributable to the antitrust claim, noting that the issues between that claim and the patent claims were so intertwined so as to permit recovery.
The newest appeal has been consolidated with 2008-1125, which had been deactivated. The district court also granted a partial stay of enforcement–but not to original § 285 award for $504,000 which the court said could not be appealed based on the failure to include it in the previous appeal. However, the CAFC has granted a temporary stay of enforcement on that award pending further briefing next week.
Notes: Judge Thrash also weighed in on the “attorneys’ fees” vs. “attorney fees” debate and favors the latter. Avoid “attorneys fees” at all costs.
The House of Astor Scandal: Father Against Son
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Greed, money, and power versus family. Who wins?
In this tale concerning one of the greatest philanthropic ladies in New York, greed definitely wins out.
Millionaire Brooke Astor ruled the New York social scene for decades. Her late husband, Vincent Astor was the last heir as the descendant of legendary John Jacob Astor who made an amazing fortune by trading fur and by his deals in the New York real estate market. The book The Last Mrs Astor: A New York Story was based on Brooke Astor’s life.
In a shocking lawsuit, Brooke Astor’s grandson Philip Marshall, a college professor, has sued his father Anthony Marshall. Father v. Son, sad sad sad.
Anthony, who was Brooke’s legal guardian, was sued by his son Philip in order to have him removed as guardian due to neglect.
“My father…has turned a blind eye to her, intentionally and repeatedly ignoring her health, safety, personal and household needs,” says Philip Marshall in court documents. He says his father was “engaging in a consistent pattern of enriching himself at the expense of my grandmother.”
Anthony Marshall, who’s a Tony-winning Broadway producer from a previous marriage of Brooke Astor, has denied any mistreatment of his mother. However, research has found a tax return form for that has shown a 2005 income of $2,384,999.92 while having Brooke Russell Astor listed as his employer.
Wife of Oscar de la Renta to be legal guardian
Their endorsement for legal guardian of the Astor estate is for fellow philanthropist Annette de la Renta, who is the wife of fashion designer Oscar de la Renta. Even Annette de la Renta has gotten into the act with her affidavit in the case file that claims that “because of the failure of Ms. Astor’s son, Anthony, to spend her money properly, the quality of life of Ms. Astor has been significantly eroded…her life is now restricted to one blue sitting room and her bedroom.”
What do the lawyers say in this House of Astor case?
They have a lot to say actually. Attorney Ira Salzman, who is representing Philip Marshall in the lawsuit, says that “Anthony Marshall has repeatedly refused to use his mother’s great wealth to provide for her basic needs. Mr. Marshall has refused to pay for any new clothing for his mother…the last time new underwear, brassieres, nightgowns and knee-high socks were purchased was in 2004.” He says that one of Astor’s servants would dress her in a scarf but was stopped “because Mr. Marshall was concerned about the $16.00 cleaning bill for each scarf.”
What do people close to Brooke Astor have to say? Who do they support?
Let’s hear from Christopher Ely, who was Astor’s former butler, country home manager, and driver who testified in this case in a written affidavit. “Mr. Anthony Marshall…would complain when he had to replace such things as the roof. He also objected to the costs of maintaining Ms. Astor. I think it is a tragedy that she is not being maintained in the style in which she has lived her entire life for whatever amount of time she has left.”
Fair Use Debate: People Posting Your Private Photos on Forums
From Rebecca Tushnet:
Two Yale Law School students have sued posters on a law school discussion board (AutoAdmit, also known as Xoxohth) for defamation, related torts, misappropriation of personality, and copyright infringement, for reposting candid photos that were part of one student’s online collection at her own page.
What happened (Wash. Post article) to these students was inexcusable — they were harassed, threatened and defamed, and I have subzero sympathy for the defendants, who may have thought that using pseudonyms exempted them from the ordinary requirements of humanity. But — I did write a whole article about this type of copyright issue. And I think copyright is the wrong tool, though privacy torts might be the right ones.
As Feministe summarizes, the misogynist posters on the site, among other things, suggest that a woman who has the temerity to post ordinary pictures of herself on a general webpage has to expect that others will post crude fantasies and threats about her. Their “asking for it” argument is nothing new, but it’s structurally similar to the argument the court accepted in Nunez v. Carribean International News Corp., 235 F.3d 18 (1st Cir. 2000): a debate over the existence and presence of the picture itself is at least a modestly transformative context for the copying. And here the individual posters’ use of it was noncommercial.
The middle two fair use factors (creative but published; entire picture copied) favor the plaintiff a little but rarely matter. The effect on the market depends on whether we analyze the market for photos as a whole or segment it; courts have inclined towards the latter, at least in transformative use cases. There’s not much market for uses of candid photos in discussion threads. The fact that they’re candid wouldn’t necessarily excuse the New York Times from paying if it used the shot to illustrate a story, but it makes copyright’s incentives less important. So: fair use and criticism of women’s bodies, once again joined.
Separately, there are barriers to the misappropriation claim, specifically the fact that the posters didn’t benefit commercially from their acts. The IP claims have the great virtue, from the plaintiffs’ perspective, of being available against the website because they’re exempt from section 230 of the CDA, but here the plaintiffs didn’t sue the site, so I’m not sure losing the IP claims would be all that harmful to the outcome. (Another relevant consideration: the copyright claim gets them into federal court.)
